Northwestern Montana District Council, Etc.

National Labor Relations Board - Board Decisions

Feb 29, 1960

126 N.L.R.B. 889 (N.L.R.B. 1960)

NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC. 889
machinist voting group will be pooled with those of the employees
in the production and maintenance voting group.' If the employees
in the pooled group select a bargaining representative, the Regional
Director is instructed to issue a certification of representatives to
such bargaining representative for a unit of production and main-
tenance employees, including machinists, which the Board in such
circumstances finds to be an appropriate unit for the purposes of
collective bargaining.
[Text of Direction of Elections omitted from publication.]
MEMBERS JENKINS and FANNING took no part in the consideration
of the above Decision and Direction of Elections.
e IP the votes are pooled , they shall be tallied in the following manner : The votes for
the Intervenor shall be counted as valid votes , but neither for nor against the Petitioner;
all other votes are to be accorded their face value whether for or against representa-
tion by the Petitioner.
Northwestern Montana District Council of Carpenters ' Unions
and United Brotherhood of Carpenters and Joiners of America,
Local Union No . 911, AFL-CIO [Glacier Park Company] and
Robert Eugene Wellman . Case No. 19-CB-630. February 29,
1960
DECISION AND ORDER
On November 3, 1959, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondents, Northwestern Montana Dis-
126 NLRB No. 1,06.
890 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD"
trict Council of 'Carpenters' Unions and United Brotherhood of Car-
penters and Joiners of America, Local Union No. 911, AFL-CIO, its
officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Glacier Park Company, its
officers, agents, successors, and assigns, or any other employer, to
discharge, lay off, or otherwise discriminate against employees in re-
gard to their hire or tenure of employment, because of their nonmem-
bership in a union or because of their refraining from activities in, or
on behalf of, a union where Respondents have no contract which re-
quires membership in a labor organization as authorized by the Act.
(b) In any like or related manner restraining or coercing employees
of the Glacier Park Company or of any other employer in the exercise
of the rights guaranteed in Section 7 of the Act, including the right
to refrain from membership in, or activity in behalf of, Local 911 or
any other labor organization, except insofar as the right so to refrain
may be affected by an agreement requiring membership in a labor
organization as a condition of employment made in conformity with
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Notify the Glacier Park Company, in writing, that they do not
object to its employing Robert Wellman as a carpenter.
(b) Notify Robert Wellman, in writing, that they have so notified
the Glacier Park Company.
(c) Make whole Robert Eugene Wellman for any loss he may have
suffered by reason of his discriminatory discharge by paying him a
sum of money equal to that which he would normally have earned
as wages in the period between May 15, 1959, and the date when, in the
absence of discrimination, he would have been laid off, less his net
earnings elsewhere during such period, to be computed in accordance
with established Board practice.'
(d) Post at their respective offices and meeting halls copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after having been duly signed by the Respondents' authorized
representatives, be posted immediately upon receipt thereof and main-
tained by them for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondents to assure
' P. W. Woolworth Company, 90 NLRB 289.
2In the event that this order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC. 891
that said notices are not altered, defaced, or covered by any other
material.
(e) Deliver to said Regional Director signed copies of said notice
in sufficient number to post at all construction and maintenance sites
of the Glacier Park Company in Glacier National Park, the Company
being willing.
(f) Notify the said Regional Director, in writing, within 10 days
from the date of this Decision, what steps they have taken to comply
herewith.
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF GLACIER
PARK COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Glacier Park Company
or any other employer to discharge, lay off, or otherwise discrimi-
nate in regard to the hire or tenure of employment of any em-
ployee in violation of Section 8 (a) (3) of said Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of the Glacier Park Company or of any other employer
in the exercise of the rights guaranteed in Section 7 of said Act,
including the right to refrain from membership in, or activity on
behalf of, a labor organization except insofar as the right so to
refrain may be affected by an agreement requiring membership
in a labor organization as a condition of employment made in
conformity with the provisions of Section 8(a) (3) of said Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL make whole Robert Eugene Wellman for the discrimi-
nation caused against him.
NORTHWEST MONTANA DISTRICT COUNCIL
OF CARPENTERS' UNIONS,
Dated---------------- By-------------------------------------
(Representative ) ( Title)
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, LOCAL UNION No.
911, AFL-CIO,
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges a violation of Section 8(b)(1) (A) and (2) of the Labor
Management Relations Act, .61 Stat. 136, herein called the Act. The specific act
constituting the gravamen of the complaint is the alleged notification and request
by the Respondent to the employer of Robert Wellman,.the Charging Party, that
they would require the employer to discharge Wellman unless he joined the Re-
spondent Local 911, the notification of Wellman by his employer that he would be
discharged unless he joined said local, and his discharge on May 15, 1959, after he
failed to join Local 911. The complaint also alleged that the Respondents made
threats of reprisal if their demands were not met. The Respondents' answer denied
the violations alleged in the complaint.
At the opening of the hearing,' the Respondents moved to dismiss on the ground
that the National Labor Relations Board, herein called the Board, lacked jurisdiction
because Wellman's employer, the Glacier Park Company, is -a wholly owned sub-
sidiary of the Great Northern Railway Company, and Section 2(2) and (3) of the
Act brings the case under the Railway Labor Act. Ruling was deferred until evidence
had been received. At the close of the hearing, the Respondents renewed their
motion, and ruling thereon was reserved. It is now denied for the reasons herein-
after stated.
Briefs were filed with the Trial Examiner by the Respondents and by the Charging
Party, and they have been considered.
From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FACTS
A. The employer
The Glacier Park Company, herein called the Company, is a wholly owned sub-
sidiary of the Great Northern Railway Company, herein called the Railway. It is
a Minnesota corporation, having its own officers and directors. Its operations are
divided into several divisions. One division operates a tie-treating company; one
owns land for development purposes; one operates a hotel in Canada, in Glacier
Park; and a fourth division, the one here concerned, operates several hotels, two
cabin camps, and a camp store in Glacier National Park on the Umted States side
of the border. The Company does not operate any equipment or facilities or per-
form any service in connection with the transportation, receipt, delivery, elevation,
transfer in transit, refrigeration or icing, storage, or handling of property while it
is being transported by any railroad.
The Respondents argue that the wholly owned subsidiary is actually being operated
by the Railway, and, in support of this argument, point to evidence that employees
of the Railway audit the accounts of the Company and to the evidence of the Rail-
way's interest as disclosed through the Respondents' efforts to get a contract with
the Company. The latter evidence disclosed that in 1957, at a time when the Com-
pany was having a hotel erected at Rising Sun, in the park, the Respondent District
Council, herein called the D.C., in seeking to negotiate with the Company concerning
a nonunion contractor, was told by the then manager of the Company that it had
a policy of not entering directly into the labor relations field with contractors that
hired and that the Respondent would have to contact the Railway.2 That manager,
who did not testify, was quoted as saying that he believed the Company was under
the Railway Labor Act. The D.C. wrote a letter to the president of the Railway.
Whatever the reply was, it came through the Company's manager. Later another
attempt was made to get a written contract with the Company and again the D.C.'s
representative was told that he would have to deal with the president of the Railway.
To a telegram addressed to that president, the representative acting for the D.C.
received a reply, purportedly signed by the president of the Railway, saying, in part,
"The management of the hotel properties has been delegated to the personnel located
at Glacier Park, and if there are any misunderstandings it is my suggestion that you
contact the management locally." On still another occasion, the D.C. communicated
with the Knutson Company, which held a management contract from the Company
i The hearing was held at East Glacier, Montana, from September 24 to 26, 1959.
2 The first part of this sentence appears Inconsistent with the last. I recite It merely
as evidence and do not make any finding that it Is accurate.
NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC. 893
for management of hotels in the park. Initially Knutson indicated that it would
sign a letter stating that it would abide by conditions to be stated by the D.C. in a
telegram to be sent to Knutson, but when the telegram was sent, Knutson telephoned
to reply that the Railway's attorneys had refused to let Knutson or the Company
made a written agreement but that Knutson would orally agree to abide by the
conditions for the balance of the job if the Respondent would remove its pickets.
The foregoing evidence is not sufficient, in my opinion, to show that the Com-
pany was actually the Railway operating under a different name. Although ac-
countants for the Railway audited the accounts of the Company, the latter was
billed for their services by the Railway just as an independent firm of accountants
might do if hired by the Company. The rest of the evidence was largely hearsay,
but even supposing the truth of it, it is insufficient to prove that the Company is
the alter ego of the Railway. The expression of opinion by the manager of the
Company that it was under the Railway Labor Act is entitled to no weight at all.
The statement by the Railway's president that management of the hotel properties
had been "delegated" to personnel located in the park, although suggesting that
the Railway had done the delegating, does not prove control by the Railway.
Legally, such delegation could be made only by the Company's officers, and more
than the mere statement of the president of the Railway would be necessary to show
that the Company had not the authority to act independently.
On the record, I find that the Company is an employer within the meaning of
Section 2(2) of the Act and that the National Labor Relations Board, herein called
the Board, has jurisdiction.3
B. The business of the employer
The hotel division of the Company in the United States, in the 1959 operating
season (June 11 to September 15) had a gross revenue in excess of $1,300,000 from
room rentals (including board) and from store and cocktail lounge sales. During
this period, the Company purchased food and hotel supplies in the value of $425,000.
Of this sum, $50,000 was for kitchen equipment bought outside the State of Montana,
$10,000 was for linens and silverware, and $5,000 was for dishes, all bought outside
that State. Approximately half of its $140,000 purchases of food was bought directly
outside the State of Montana and most of the remaining half which was bought in
the State consisted of canned and frozen foods produced and packaged outside the
State and imported for resale in the State of Montana. In addition, more than
$100,000 worth of goods were purchased outside the State of Montana for resale in
the Company's gift shops and camp stores in the park. Almost all the Company's
guests are transients.
The Company's volume of business meets the commerce requirements of the
Board.4
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Local 911 is affiliated with United Brotherhood of Carpenters and
Joiners of America, herein called the Brotherhood. It is a constituent member of
the Northwestern Montana District Council of Carpenters' Unions, hereinafter called
the D.C. Local 911 is a labor organization admitting to membership carpenter
employees of the Company. The D.C. is a labor organization composed presently
of three local unions: those at Kalispell (Local 911), at Thompson Falls, and at
Libby. It is organized, among other reasons, to strengthen the individual locals in
their dealings with employers, and it is authorized to establish and maintain uniform
dues and initiation fees, bylaws, working rules, and working agreements with
employers.
III. THE UNFAIR LABOR PRACTICES
A. Causing or attempting to cause Wellman's discharge
1. The alleged oral contract
a. Background
Since 1956 the D.C. had attempted unsuccessfully to get the Company to sign a
contract covering the carpenters it hired for maintenance and repair work. In 1957,
the D.C. decided that if it did not get a contract, it would not furnish men to the
Company. When it was unsuccessful in its attempts, it called a strike and posted a
3 See Northern Pacific Transfer Company, 89 NLRB 1561 (wholly owned subsidiary of
Northern Pacific Railway Company)
Floridan Hotel of Tampa, Inc., 124 NLRB 261.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line at three of the Company's hotels. At some undisclosed date in 1958,
the picket line was removed, but the Company was put on the unfair list by the
Building Trades Council and remained thereon until April 1959.
b. The basis for the claim of an oral contract
Late in 1958, Louis ^Crohn, business agent of the D.C., spoke with William
Colstrom, general superintendent of the Company, in an effort to get the Company
to sign a contract. Colstrom, who had an authority to enter into a collective-
bargaining contract, told Crohn that he could not and would not sign the proposed
contract.
At the time of that conversation, according to Crohn, the D.C.'s contract with
contractors in the area bound the D.C. not to furnish men to employers who had
not signed the D.C's contract. Crohn testified that by the D.C.'s new contract with
contractors in the area , the D.C. was allowed to furnish men to employers who
agreed orally rather than in writing to the D C.'s contract. This appears to have been
a conclusion drawn by Crohn from that clause of the contract which reads.
Section 12. As an assurance that all contractors operating in the territory
covered by this Agreement shall be subject to the same employment conditions,
the union agrees that no member workmen will be furnished any contractor
performing similar construction work in the area covered by this agreement who
operates under conditions less favorable to the employees [not?] covered by
the agreement than those set forth herein.
It will be observed that there is no requirement in this contract for an oral ad-
herence agreement. The only requirement is that the conditions maintained by an
employer (not a signatory to the contract) must not be less favorable 'to his em-
ployees than those provided for employees of signatories to the contract. As I
read this clause, the D.C. was required to look only to the benefits to individual
employees and not to benefits to the D.C. under the agreement, such as the hiring
hall and union security provisions, before it could furnish men to an employer.
The foregoing agreement, signed on March 17, 1959, was made retroactive to
March 1, 1959. About April 7, Crohn returned to talk with Colstrom, attempting
to get the Company sign its 1959 contract. When Colstrom said that a written
contract was out of the question, Crohn said that he would settle for an oral one.
Colstrom said that was also ont of the question and there was no purpose in it as
the Company was paying the scale, more than the subsistence required. Actually
the Company was then paying the 1958 rate of $3.13, although the new contract
called for $3.25 as of March 1. Colstrom, however, presumably was counting the
board and lodging furnished to the Company employees as the basis for this state-
ment. He said that if the Company paid the scale it would have to eliminate the
free subsistence. He did say, however, that the Company would pay the contract
scale but would not sign the contract. Crohn said that upon that agreement, the
Company would then be meeting many of the D.C.'s requirements, as the Company
already observed such conditions as the 40-hour week, time and a half for over-
time, and several other employment conditions, and that the only major objection
which he saw was that the Company did not have a weekly payday. Colstrom told
Crohn that it would be difficult to put the carpenters separately on a weekly payday,
but, when Crohn asked if Colstrom would leave that open, Colstrom replied that he
would take the matter under advisement. Crohn then led 'Colstrom through a num-
ber of the provisions of the D.C.'s 1959 contract to point out changes that had
been made. When Crohn indicated that the hiring-hall clause was new, Colstrom
apparently expressed disapproval of that practice for the Company. There was no
discussion of the union-security clause in the contract. Crohn told Colstrom that
he was trying to get the Company off the unfair list and had to make a report back
to the D.C. and to do so he had to have something "concrete." Crohn testified that
he then asked Colstrom, "would you say that you would pay the union wage scale?"
and that Colstrom had answered affirmatively, that he had then asked Colstrom, "If
I go back and report that you are willing to abide by all the terms of our written
contract as it has been revised, with the exception of the weekly payday, and with
the possible exception of this hiring hall procedure, would you say that is correct9"
Crohn testified, "I think he said `yes,' I'm not sure whether he nodded his head or
said `yes' but he seemed in agreement." Colstrom denied making any oral contract.
,Crohn returned to Kalispell and made a report to the D.C. of his talk with
Colstrom. As a result of this report, the Company was removed from the unfair
list about April 10, 1959. In his testimony, Crohn appeared to have a tendency
to transmute the sense of words to fit his conclusions . In neither the written account
of Crohn's report to the D.C. nor a subsequent letter written by Crohn to Berntson
NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC . 895
notifying him that the Company was in good standing did Crohn specifically mention
the existence of an oral agreement. Whether or not Crohn spoke of contract "terms,"
as he testified, as distinguished from employment "conditions" benefiting employees,
I am satisfied and find that Colstrom did not understand that Crohn was asking
more than compliance with those conditions of employment which were sought by
the D.C. for the direct benefit of employees. I find, accordingly, that Colstrom did
not intend to enter into a contract but meant at most to indicate the Company's
intent to keep pace with the current union wage scale and to continue its other condi-
tions of employment, most of which already coincided with those under the D.C.'s
contract. That the Company began to pay the new rate of $3.25 per hour as of
May 1, 1959, and not retroactively to March 1, as the contract by its terms required,
evidences Colstrom's understanding.
2. Wellman's employment history
a. The events of 1958 and early 1959
Early in 1958, Lee Burns, who was described by Wellman as in charge of con-
struction work for the Company, approached Wellman and asked if he would like
to work for the Company. Wellman said that he would but because of an injury
he had received, he had been unable to work as a carpenter for 2 years. Burns
therefore started Wellman as an apprentice, but after 2 months raised him to journey-
man's scale. During the spring of 1958, Raymond Petersen, who at that time was
business agent for both Local 911 and the D.C., visited the hotel where Wellman
was working and, while there, asked Wellman what his intentions were about joining
Local 911. Wellman told him that he could not see any point in joining at that time
because he understood the union men on the job were going to be fined $50 (for
working for the Company while it was on the unfair list) and he could see no point
in joining if he were going to be fined. Following this, three union members who
were working at the same place put pressure on Wellman to join Local 911, thinking
that otherwise they would get into trouble for working with a nonunion man. (The
working rules of the D.C. at that-time provided that members "shall not work with
other than journeyman carpenters and joiners, members of the United Brother-
hood . except as provided for in these By Laws." The only exception is in the
permission to work with one employer of a firm, partnership, or association). There
is only hearsay evidence that Wellman's coworkers spoke to Burns about their prob-
lem but more than once Burns expressed to Wellman his wish that Wellman would
join Local 911. On the last occasion, Burns told Wellman that he was afraid he
was going to lose the other carpenters, as they were going to quit if Wellman did
not. Wellman had told Burns at the start of his employ that he intended to quit on
June 1 to work for his father, and Burns asked Wellman to quit early and save a lot
of confusion. Wellman complied with Burns' request and left the Company's employ
early in May. In January 1959, 12 carpenters who had worked for the Company
in 1958, cited for violation of union rules, were tried and fined. Some of these men
were members of Local 911 and some of other locals not in the D.C., but as Local
911 claimed jurisdiction in Glacier National Park, it claimed the right to discipline
members of other locals working there. Among other specifications of the charges
in the proceedings against the 12 were those of working for an employer on the
unfair list and of working with a nonunion man. A fine of $50 each was imposed.-5
b. Wellman's 1959 employment
In March 1959, Wellman looked up Harlan Berntson who then was project
superintendent in charge of maintenance and construction at certain of the Company's
hotels, and asked for a job. Berntson told him he would like to have him. Well-
man asked if the Company had a contract with "the union." Berntson said it had
no contract and that Wellman need not worry about it.
Shortly after the Company was removed from the unfair list, Crohn visited the
Company's Many Glacier Hotel where carpenters Martin Salois and Wellman,
among others, were working. Salois then was job steward. Crohn asked Salois for
a list of names of the men on the job and their locals and then gave Salois a receipt
book and told him that non-members of Local 911 had to transfer their "books"
or pay a permit fee for working there. He asked Salois to collect the fees. Salois,
a member of the Cutbank local, thereafter failed to collect or remit any fees to
Local 911.
6 The result was on appeal at the time of the hearing in this case.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of May 7 , 1959 , Raymond Petersen , business agent of Local
911, visited the Many Glacier Hotel to police the job and there he spoke with Salois,
who had meanwhile been promoted to foreman . Petersen asked to speak with the
steward . Salois told him that a new steward had not been elected yet. Petersen
said that Crohn had been up earlier and had been told that the permit fees would
be sent in after the next payday and he asked Salois why they had not been . Salois
told Petersen that the carpenters were of opinion that Local 911 did not have juris-
diction over the work. This opinion was caused by a comparatively recent change
in local affiliations growing out of an internal union matter which is not material
here. Petersen said that Local 911 had always had jurisdiction and he told Salois
that he was there to collect permit fees and would not leave without them. Salois
said that Petersen would have to wait until after work then because it was not per-
missible to talk to the men during working time. Petersen asked Salois to arrange a
meeting for him after work and Salois agreed to do so.
After work, Salois met with his group of carpenters, seven beside himself, of
whom only one was a member of Local 911. They decided amongst themselves
(presumably those who were members of other locals) that they would not recog-
nize the jurisdiction of Local 911 unless Petersen had satisfactory proof thereof.
Then they went out to the road where Petersen was waiting by his car. Most of
the ensuing discussion between Petersen and the Company 's employees dealt with
perrmt fees , conflicting claims of jurisdiction , the right of Local 911 to collect permit
fees, and the refusal to pay. Petersen told them that they would be subject to a fine
of $2 a day for each day they worked without a permit. (The bylaws and working
rules of the D.C. so provided.) One man said to Petersen that Local 911 did not
even have a contract with the Company. Petersen said that Local 911 had an oral
agreement . In the course of the discussion Petersen turned to Wellman and asked
him to join Local 911 and to pay something on his initiation fee. Wellman declined.
There is a conflict of testimony about what Petersen said next. Wellman testified
that Petersen said that , if Wellman did not join , he (Petersen ) would see the super-
intendent and see that Wellman was discharged . Wellman also quoted ,Petersen
as saying that he had got him fired from his last job and that he would do it again.
Petersen denied making the last statement. According to Salois, Petersen did not
put it as Wellman testified . Salois testified that Petersen said, "You remember what
happened the last time and it will happen again ." The latter appears more probable
than the way Wellman put it because Petersen actually had not requested Wellman's
discharge in 1958 although Petersen 's warning to Wellman's fellow workers of a
possible fine at that time apparently caused the fellow workers to ask the superin-
tendent for Wellman's discharge. Accordingly I find that Petersen did remind
Wellman of what had happened in 1958, although he did not say that he , himself,
had procured Wellman's discharge. This reminder evoked an invective outburst
from Wellman, who accused Petersen of having gotten him fired before and threat-
ened Petersen 's life if Petersen got him discharged again . The meeting broke up with
Salois' request that Petersen leave.6
3. Wellman 's discharge
Salois reported the foregoing incident to Superintendent Berntson that same week.
During the following week before May 14,7 Crohn came to see Berntson at Lake
McDonald, where he then was . Crohn asked Berntson if Wellman was still working
for the Company. Berntson acknowledged that he was. Berntson 's account of the
ensuing conversation was a recitation of the substance of a fraction of the conver-
sation . Crohn's account, although longer , appeared to skip over and omit portions
of his statements that might be regarded as significant from the General Counsel's
point of view. Berntson testified that Crohn suggested that the Company discharge
O The credibility of the General Counsel 's witnesses was attacked by the Respondent
with respect to what Petersen said. The accounts of these witnesses varied somewhat
as to the language used and as to the subject mentioned Although the memory of these
witnesses may have been slightly impaired by subsequent events , I am satisfied that each
was testifying honestly concerning what he believed to be his recollection . I have based
my findings on what I believe to be the most reliable parts of the testimony of the
respective witnesses taking into account Petersen 's credited specific denials of two state-
ments attributed to him--( 1) getting Wellman discharged in 1958 and ( 2) threatening to
pull men off the job if Wellman did not join Local 911
° Neither Crohn or Berntson fixed the date . I deduce from other events that this was
the time.
NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC. 897
Wellman before Petersen returned to Many Glacier again and intimated that other-
wise there might be trouble . It does not appear from Berntson 's testimony that
Crohn elucidated on the kind of trouble that might be expected. According to
Crohn's account, he referred to the incident of near violence when Petersen was
at Many Glacier the week before, and Berntson said that he did not approve of
Wellman's conduct, and, "in the course of the conversation," Berntson remarked
that the Company would soon be laying off some men at Many Glacier and that
he was going to lay Wellman off. Crohn testified that he asked when Wellman
would be laid off and Berntson replied, "Probably this week or next week. I won't
lay him off until the work is terminated." Crohn then testified, "Well, I told him 'I
was just mentioning it because, I said, `We have an oral contract with your com-
pany . . . however . . . the question has been raised at umon meetings . as
to whether that 31 day clause [the union shop clause] in an oral contract was valid: "
Crohn went on to say that, if Wellman were laid off for any reason other than termi-
nation of the job, it might "lead to liability for the union or employer ..." under
the Act. Following this testimony, Crohn was asked, and denied, that he had
requested Berntson to lay Wellman off.
Although I believe that Crohn fairly accurately quoted himself, as far as he went,
I am not convinced that he completely or accurately quoted Berntson. The latter
testified at the hearing that the work at Many Glacier continued into the summer and
a crew of carpenters continued to work, but that it was customary to reduce the
force on about June 1 each year because some of the lodging quarters being occu-
pied by the maintenance and construction crew would be needed for the summer
hotel staff which begins to arrive on about May 25. I conclude from all the evi-
dence that Berntson mentioned the customary time for reduction in force and then
intimated to Crohn that he would mark Wellman for layoff and accelerate the
date somewhat, even though, as Berntson testified, the work in 1959 was not far
enough along in mid-May to commence reduction of the work force at that time.
General Superintendent Colstrom testified that Bernston telephoned him in
Minneapolis (Colstrom's home city) and told him that he had Wellman, a nonunion
man, working for him, that Petersen was "raising the dickens" and it looked like
they would have to let Wellman go. Colstrom testified that he asked why and that
Berntson had replied that the men would either be fined (presumably for working
with a nonunion man in violation of D.C.'s working rules) or be taken off the job.
Colstrom asked Berntson how the men would be taken off the job, and Berntson
said the same as in 1957 when there was a strike and picket line. This was an infer-
ence on Berntson's part because neither Petersen nor Crohn had specifically men-
tioned a strike or pulling the other men off the job in May of 1959. Colstrom told
Berntson to use his own judgment and to lay Wellman off if necessary.
On May 14, Berntson told Salois that if Wellman did not join "the union" (Local
911) by May 15 (the end of the pay period) to lay him off on that day. Salois at
once told Wellman what Berntson had said. Wellman said he would consider the
matter overnight and would let Salois know the next day. On May 15, Wellman
told Salois he had decided not to join, so Salois told Wellman that he was laid off
at the end of that day, and at the end of the day Wellman picked up his tools and left.
4. Conclusions
Whether through ignorance of the legal nature of a contract and its formation,
through wishful thinking, or through misinterpretation of Colstrom's words, the D.C.
and Local 911 took the mistaken position that Local 911 had an oral contract con-
taining a union-shop clause .8 But even believing that the D.C. had an oral con-
tract, Crohn was uncertain of the enforceability of a union-shop clause in such an
agreement. For this reason, he did not "demand" Wellman's discharge. However,
by his own testimony, he intimates that he was suggesting Wellman's discharge be-
cause, according to him, the D.C. had an oral contract with the Company. An ex-
press demand or request is not essential to a violation of Section 8(b) (2) of the Act .9
It suffices if any pressure or inducement is used by the union to influence the em-
8 The General Counsel contends that not only was there no contract but that, if
there had been one, it would have been illegal because less than a majority of the Com-
pany's carpenters were represented by the D.C, and he further contends that an oral
union -shop clause is invalid In view of my finding that there was no contract, it is
unnecessary to pass on the other contentions here
s Turner Construction Company, 110 NLRB 1860.
554461-60-vol 126-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD_
player. Taking into account the knowledge that Berntson had of the ability of the
D C. to cause a stoppage of work or to withhold future references of carpenters, his
knowledge, through Salois' report of Petersen's visit of May 7, of Petersen's threat
to Wellman that Petersen would ask the superintendent for Wellman's layoff if
Wellman did not make application to join Local 911 and pay something right then
on his initiation fee, I am convinced that the Respondents gave Berntson good cause
to believe that the D.C. could and would cause an interruption in .the work if Well-
man was not laid off. In this state of mind, Berntson would require no more than
a bare suggestion by Crohn that it would be advisable to lay Wellman off to capitu-
late. Although most of the carpenters at Many Glacier Hotel were members of
locals who were not within the D.C., both the D.C. and Local 911 claimed jurisdic-
tion over work at that hotel. Despite the refusal of the carpenters to concede juris-
diction and despite the claims of their locals, the D.C. and Local 911 had argument
in support of their claim, and, if upheld by the Brotherhood, they would be in a
position to fine even members of other locals in their territory for working with a
nonunion man. The carpenters knew this, knew that fines had been imposed by
Local 911 earlier,10 and they were uneasy about their chances of escaping a fine.
Thus, the D.C. and Local 911 held a whip which could be used to cause members
of other locals to quit their jobs to avoid a fine. Berntson was aware of all this.
To him, therefore, a suggestion by Crohn was virtually tantamount to a demand.
It is the position of the Resopndents that Berntson laid Wellman off not because
of any request by the Respondents, but solely because of his fear of losing his men
because they were thinking of quitting if Wellman continued on the job. Wellman
had worked in harmony with these same men for something approaching 2 months
and those men had not shown the least desire to quit until after Petersen came and
stirred up their fears by taking the position that no nonunion man should be working
on the job. Berntson knew this. Of course, to Berntson, the Respondents would
be the cause of his losing men if he did not discharge Wellman as they desired,
whether the men would be caused to leave because of direct action of the Respond-
ents Eby their declaring the Company unfair and posting a picket line, or by,indirect
action of keeping the men in a state of apprehension of being fined for violation of
the D C.'s working rules.ii The Respondents had only to express their desire,
therefore, to induce the Company to discharge Wellman and that expression of
desire would be taken as a request. That Crohn couched his suggestion in the guise
of advice does not, in my view, remove the words from the character of a request.
The meaning to be attributed to words does not depend alone upon their form.
They must be viewed in the context in which they are spoken. Here, the entire
history of the case and Berntson's awareness thereof must be taken into account.
Crohn had reason to believe that Berntson would be induced to lay Wellman off as
a result of his visit. The advice that it might be a violation of the Act if Wellman
were laid off before the job was completed was not calculated to postpone the action
desired by the Respondents. So far as the record shows, the Respondents did not
have any reason to believe that Wellman would, but for their suggestion, be among
the few that might be laid off around June 1. Crohn's words, therefore, convey to
me, and reasonably could have conveyed to Berntson, a suggestion that, when Well-
man was laid off on May 15 the Company should claim it was because of a normal
reduction in force. Under all the circumstances, Berntson was not likely to -feel
that the Respondents were willing to defer action until the entire job was completed.
The mere fact that it was customary to lay some men off around June 1 would not
in itself justify the layoff of Wellman either on May 15 or June 1 if he was laid off
because he was a nonunion man. It is clear that he was, and I find that Wellman
would not have been, laid off on May 15 but for inducement exerted by the Respond-
ents and that Wellman was laid off on that date because of his nonunion status.
On all the evidence, I conclude and find, therefore, that the Respondents at-
tempted to cause, and did cause, the Company to discharge Wellman because of
his nonmembership in a local union of the Brotherhood, thus causing the Company
to discriminate against Wellman in violation of Section 8(a) (3) of the Act, thereby
restraining and coercing employees of the Company in the exercise of the rights
guaranteed in Section 7 of the Act.
A question may be raised as to whether or not Local 911 is to be found to have
violated Section 8(b)(2) of the Act inasmuch as the Company was induced to
10 The fact that the fines were being appealed would not suffice to dispel apprehension.
11 Cf H Halton Newman, an indivzdval , d/b/a H H . Newman, 5 NLRB 725 ; J A Utley
Company, 108 NLRB 295.
NORTHWESTERN MONTANA DISTRICT COUNCIL, ETC. 899
,discharge Wellman by virtue of the request of Crohn, who was business agent of the
D.C., rather than by the request of Petersen, who was business agent of Local 911.
The answer to this question, is of course, that the D.C. was authorized by Local 911
to act in its behalf within the geographic limits of its claimed jurisdiction. Hence,
all acts performed by Crohn, as related herein, were performed pursuant to such
authority. I find, therefore, that both Respondents have violated Section 8 (b) (2) of
the Act.
B. Restraint and coercion
The Respondents argue that they cannot be said to have coerced an employee,
except perhaps Wellman (when Petersen told Wellman that he would have to ask
Wellman's superintendent to lay him off) and that therefore there should be no find-
ing of a violation of Section 8(b) (1) (A) of the Act. This argument is foreclosed
by Board decision.13 Furthermore, in accordance with established Board law, I find
that Petersen's statement to Wellman that Petersen would see the superintendent and
see that Wellman was laid off constituted an independent act of coercion in violation
of Section 8 (b) (1) (A) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
As I have found that the Respondents have committed certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act. Since I have found
that no union-security contract between the Respondents, or either of them, and the
Company existed, I shall limit my recommendations that the Respondents cease and
desist from causing or attempting to cause the Company to discriminate against any
of its employees to the situation where neither of them has a contract requiring union
membership as authorized by the Act. Since this conduct will continue to be a
violation of the Act even after the recent amendments to Section 8(a) of the Act
become effective in November of this year, no modification of the remedy after that
date will be required.
In addition to the case-and-desist recommendations, I shall recommend that the
Respondents notify the Company that they have no objections to Wellman's being
hired by it as a carpenter and that they shall make Wellman whole for any loss he
may have suffered as a result of the discrimination herein found to have been caused
by the Respondents.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Glacier Park Company is an employer within the meaning of Section 2(2) of
the Act
2. The Respondents are labor organizations within the meaning of Section 2(5)
of the Act
3. By causing and attempting to cause Glacier Park Company to discriminate
against Robert Wellman within the meaning of Section 8(a)(3) of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(b) (2) of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondents have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.)
12 Coal, Gasoline and Fuel Oil Teamsters , Chauffeurs and Helpers, Local Union No
553, et al , 113 NLRB 111.
13 Seaboard Terminal and Refrigeration Company , 114 NLRB 1391.