Peerless Quarries, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1951

92 N.L.R.B. 1194 (N.L.R.B. 1951)

In the Matter of PEERLESS QUARRIES , INC. and JOHN B. WHITE, AN
INDIVIDUAL
In the Matter of INTERNATIONAL UNION OF OPERATING ENGINEERS,
HOISTING & PORTABLE LOCAL No. 101, A. F.,'L.; INTERNATIONAL HOD
CARRIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA,
HEAVY CONSTRUCTION LABORERS' LOCAL 663, A. F. L. and JOHN B.
WHITE, AN INDIVIDUAL
Cases Nos. 17-CA-270 and 17-CB-23.-Decided January 10, 1951
DECISION AND ORDER
On September 14, 1950, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report in the above-entitled. proceeding, find-
ing that Peerless Quarries, Inc., herein called the Respondent Com-
pany, and International Union of Operating Engineers, Hoisting .&
Portable Local No. 101, A. F. L., and International Hod Carriers',
Building & Common Laborers' Union of America, Heavy Construc-
tion Laborers' Local 663, A F. L., herein referred to as Local 101 and
Local 663, respectively,' 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 Intermediate Report attached hereto. Thereafter, the Respond-
entUnions and the Respondent Company filed exceptions to the Inter-
mediate Report, and the Respondent Unions filed a brief .2
The Board 3 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 the brief, and the entire record in
the cases and hereby adopts the findings,' conclusions, and recom-
' Local 101 and Local 663 are collectively referred to herein as the Respondent Unions..
And the Respondent Company and the Respondent Unions are collectively called the
Respondents.
2 The Respondent Company relies on the brief filed by the Respondent Unions to support
its exceptions.
3 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 [ Members Houston, Murdock,
and Styles].
4 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein.
Accordingly, we note the following corrections : ( 1) The Trial Examiner found that the
92 NLRB No. 184.
1194
PEERLESS QUARRIES, INC. 1195
mendations of the Trial Examiner, with the exceptions, modifications,
and additions noted below.
1. We agree with the Trial Examiner that the Respondent Com-
pany's operations are subject to the Board's jurisdiction. The juris-
dictional facts, fully set forth in the Intermediate Report, show, inter
alia, that during 1949 the Respondent Company sold and shipped
products valued at more than $25,000 to customers outside the State.
Upon these commerce facts, we therefore find, in accordance with
the jurisdictional policy adopted by the Board since the issuance of
the Intermediate Report herein, that the Respondent Company is en-
gaged in commerce and that it will effectuate the policies of the Act
to assert jurisdiction here."
2. The Trial Examiner found, as fully detailed in the Intermediate
Report, that the Respondent Company violated Section 8 (a) (2) and
8 (a) (1) of the Act. We agree with the Trial Examiner insofar as
he bases this finding upon the Respondent Company's conduct in assist-
ing the Respondent Unions in recruiting and maintaining their
membership.
However, we do not adopt the Trial Examiner's finding that the
Respondent Company also lent financial support to Local 101 by
advancing funds "to pay initiation fees for new employees in the .. .
Union, subsequently reimbursing itself by deduction of such advances
from the wages of new employees." In reaching this conclusion the
Trial Examiner relied on the testimony given by Masters, the Re-
spondent Company's office manager. We have carefully examined
Master's relevant testimony, which is quoted in full in the Intermedi-
ate Report, and are of the opinion that it is, at best, ambiguous and
affords insufficient basis for such a finding. In these circumstances,
we shall dismiss the complaint insofar as it alleges that the Respondent
Company rendered unlawful financial assistance to the Respondent
Unions.
3. As fully detailed in the Intermediate Report, the Trial Examiner
found that the Respondent Company violated Section 8 (a) (3) and
8 (a) (1) of the Act by delegating to the Respondent Unions control
over John B. White's employment status and thereafter transferring
the complainant, at the instance of the Respondent Unions, from the
operation of the high loader, to the less remunerative job of driving a
October 1, 1949, contract was signed by the Respondent Company and 20 other quarry
operators ; the record shows, however , that a total of 20 operators , including the Re-
spondent Company, signed the contract ; ( 2) Thomas Jackson was steward for Local 663,.
and not Local 101, as the Trial Examiner inadvertently states at one point in the Inter-
mediate Report ; and (3 ) In footnote 17 of the Intermediate Report, the Trial Examiner
obviously intended to rely on Master 's testimony , and not. Madden's, as inadvertently stated
therein.
G Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diesel wagon; and that the Respondent Unions violated Section
8 (b) (2) and 8 (b) (1) (A) of the Act by causing the Respondent
Company to discriminate against White.
The Respondents contend, however, that the transfer of White to
the Diesel wagon on February 6, 1950, was "voluntary and made at
the request of White." According to them, the conduct of the Re-
spondent Company on about February 3, which the Trial Examiner
viewed as a relinquishment of managerial authority to the Respondent
Unions, constituted no more than an effort on the part of the Respond-
ent Company "to work out a satisfactory compromise" of the prior
demands by the Respondent Unions for White's removal from the
high loader.
We find no merit in the Respondents' position. For the reasons
stated by the Trial Examiner, we conclude that the capitulation took
place as found, and that the ensuing transfer was not voluntary.
Moreover, even assuming, arguendo, that the Respondent Company
did not capitulate to the Respondent Unions as of February 3, we
find ample evidence of discrimination against White by the Respond-
ents in the circumstances attending his actual removal from the high
loader on February 6. Thus, as more fully described in the Inter-
mediate Report, after White was advised by Local 663's representative
on February 6 that "there is nothing else we can do but take you off
[the high loader] now," he got in touch with Superintendent Madden
of the Respondent Company. White told Madden that "they had
taken me off, and if they were going to take me off the high loader I
preferred going on the `uke' since that was the way it was, had to. be."
'Superintendent Madden thereupon removed White from the high
loader, promising him that ,he would try to arrange for the "uke"
assignment "if that's what you want next to the high loader."
On the basis of all the foregoing, and the entire record, the Respond-
ents' claim that White's removal from the high loader was "voluntary
and made at the request of White' is manifestly untenable. White's
remarks made it clear that, but for the Respondent Unions' action
that morning, he would not have come to Madden. Indeed, White,
following his conversation with Madden, asked for time off to consult
a lawyer "to see what could be done about the matter" and to visit
the Board's Regional Office "to see what they could do about it."
Significantly, too, Madden failed to indicate any opposition to the
removal of White from a job which he had performed well for several
years and which he preferred to hold. He merely. acquiesced in the
proceedings as reported by White, and promised to try to arrange the
transfer. In our opinion, it is exceedingly clear, and we find, that,
PEERLESS QUARRIES, INC. 1197
in removing White from the high loader, the Respondent Company
was actually complying with the Respondent Unions' requests for his
removal, bolstered by threats to picket, after their desire for such
action had again been made known, in no uncertain terms, to the
Respondent Company through White .6
We find further that, inasmuch as no valid union-shop agreement
was in existence at the Respondent Company's plant at the time,T
the Respondent Company, by removing White from the high loader
because he was not a member of Local 101, violated Section 8 (a) (3)
and 8 (a) (1) of the Act. And as the Respondent Unions caused the
Respondent Company to discriminate against White in violation of
Section 8 (a) (3) of the Act, we find that the Respondent Unions
thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act."
• The Remedy
We have found, as did the Trial Examiner, that the Respondents
have engaged in certain unfair labor practices. Therefore, in accord-
ance with the recommendations of the Trial Examiner, which we
adopt in the absence of exceptions thereto, we will order the Respond-
ents to cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
. The Trial Examiner refused to recommend that the Respondent
Company be ordered to reimburse its employees for union initiation
fees and dues checked off from their wages on the ground that "the
Respondent Unions were not company-dominated but were only sup-
ported and assisted in violation of Section 8 (a) (2)." Although we
do not agree with the rationale employed by the Trial Examiner in
this instance, we shall nevertheless adopt his recommendation for
the reasons that (a) no exceptions thereto have been filed and (b)
6 As appears from the Intermediate Report, Lebbing, treasurer and business representa-
tive of Local 101, had on several occasions prior to February 1950 demanded White's
removal from the high loader because he was not a member of Local 101, which claimed
jurisdiction over the high loader operation . And on or about February 1, Senzee, secretary
of Local 663, joined Lebbing in demanding White's removal and in threatening to picket
the Respondent Company if the change was not made . In Imputing Lebbing's conduct
on about February 1 to Local 101, we, like the Trial Examiner , regard as uncontrolling
the fact that Lebbing may not have been specifically authorized to utter threats. It is
enough for this purpose that in his dealings with the Respondent Company at the time
Lebbing was , as the facts show, acting within the scope of his employment as an official
of Local 101 . Cf. Sunset Line and Twine Company, 79 NLRB 1487; Smith Cabinet Manu-
facturing Company, Inc ., 81 NLRB 886.
I The Respondent Company cannot claim the protection of its contract with the Re-
spondent Unions executed on October 1, 1949, since , as found by the Trial Examiner,
no union-security authorization election pursuant to the provisions of Section 9 (e) (1)
was ever conducted among the employees covered by the contract.
8 Clara-Val Packing Company, 87 NLRB 703; Randolph Corporation , 89 NLRB 1490;
Air Products , Incorporated, 91 NLRB 1381.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner did not find that the Respondent Company un-
lawfully coerced its."employees into paying initiation fees and dues .q
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:
1. The Respondent Company, Peerless Quarries, Inc., Turner, Kan-'
sas, its officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Entering into, renewing, or enforcing any agreement with
International Union of Operating Engineers, Hoisting & Portable
Local No. 101, A. F. L., or with International Hod Carriers', Build-
ing & Common Laborers' Union of America, Heavy Construction
Laborers' Local 663, A. F. L., or any other labor organization, which
requires its employees to join, or maintain their membership in, such
labor organization as a condition of employment, unless such agree-
ment has been authorized as provided by the National Labor Rela-
tions Act, as amended ;
(2) Recognizing International Union of Operating Engineers,
Hoisting & Portable Local No. 101, A. F. L., or International Hod
Carriers', Building & Common Laborers' Union of America, Heavy
Construction Laborers' Local 663, A. F. L., or any successor thereto,
as the representative of any of its employees for the purposes of deal-
ing with the Respondent Company concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organizations shall have been
certified by the National Labor Relations Board;
(3) Performing or giving effect to its contract with International
Union of Operating Engineers, Hoisting & Portable Local No. 101,
A. F. L., and International Hod Carriers', Building & Common La-
borers' Union of America, Heavy Construction Laborers' Local 663,
A. F. L., or to any modification, extension, supplement, or renewal
thereof, or to any other contract, agreement, or understanding entered
into with said organizations relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said organizations shall have been certi-
fied by the National Labor Relations Board : Provided, however, that
nothing herein shall be construed to require the Respondent Company
to vary or abandon those wage, hour, seniority, or other substantive
6 See in this connection, Federal Stores Division of Spiegel, Inc., 91 NLRB 647; Meyer G.
Welch, Incorporated, 91 NLRB 1102; Precast Slab and Tile Company, 88 NLRB 1237.
PEERLESS QUARRIES, INC. 1199
,features of its relations with its employees, established in,performance
..of such agreement, or to prejudice the assertion by the employees of
any-rights they may have thereunder;
(4) . Encouraging membership in International Union of Operating
Engineers, Hoisting & Portable Local No. 101, A. F. L., or in any
other labor organization of its employees, by demoting, transferring,
or discharging any of its employees or discriminating in any other
manner in : respect to their hire and tenure of employment, or any
terms or conditions or employment;
(5) Telling employees that in order to work for the Respondent
.Company they must become members of International Union of
Operating Engineers, Hoisting & Portable Local No. 101, A. F. L.,
or International Hod Carriers', Building & Common Laborers' Union
of America, Heavy Construction Laborers' Local 663, A. F. L., or any
other labor organization, except to the extent that membership in a
labor organization may be required as a condition of employment by
a valid agreement, as authorized in Section 8 (a) (3) of the Act;
(6) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist any labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be'affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act;
(1) Offer to John B. White immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(2) Withdraw and withhold all recognition from. International
Union of Operating Engineers, Hoisting & Portable Local No. 101,
A. F. L., or International Hod Carriers', Building & Common Labor-
ers' Union of America, Heavy Construction Laborers' Local 663,
A. F. L., as the representative of any of the Respondent Company's
employees for the. purposes of dealing with the Respondent Company
concerning grievances, labor disputes, wages, rates of pay, hours of
employments or otl,gr conditions of employment, unless and until
said organizations all have been certified by the National Labor
Relations Board;
'1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Post at its operations at Turner, Kansas, copies of the notice
attached hereto as Appendix A.10 Copies of said notice to be fur-
nished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for a period of at least sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to its em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material;
(4) Notify the Regional Director for the Seventeenth Region, in
writing within ten (10) days from the date of this Order, what steps
the Respondent Company has taken to comply herewith.
2. Respondent Unions, International Union of Operating Engi-
neers, Hoisting & Portable Local No. 101, A. F. L., and International
Hod Carriers' Building & Common Laborers' Union of America,
Heavy Construction Laborers' Local 663, A. F. L., their officers and
agents, shall :
a. Cease and desist from :
(1) Causing or attempting to cause Peerless Quarries, Inc:, its
officers, agents, successors, or assigns, to demote, transfer, discharge,
or otherwise discriminate against its employees in violation of Sec-
tion 8 (a) (3) of the Act;
(2) Giving effect to the union-security provisions of their contract
with Peerless Quarries, Inc., its successors or assigns, or to any ex-
tension, renewal, modification, or supplements thereto,, or to any
superseding contract, except in accordance with the provisos to Sec-
tion 8 (a) (3) of the Act;
(3) Restraining or coercing employees of Peerless Quarries, Inc.,
its successors or assigns, in the exercise of their right to self-organi-
zation, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the undersigned
finds will effectuate the policies of the Act :
(1) Notify, in writing, Peerless Quarries, Inc. that they have no
objection to the employment of John B. White by the Respondent
w In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order," the words "A
Decree of the United States Court of Appeals Enforcing."
. PEERLESS QUARRIES, INC. 1201
Company and request it to offer him immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges;
(2) Post in conspicuous places in their business offices, and all
places where notices to their members are customarily posted, copies
of the notices attached hereto as Appendix B and Appendix C.71
Copies of said notices, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by an official
representative of each of the Respondent Unions, be posted by the
Respondent Unions immediately upon receipt thereof and be main-
tained by them for a period of sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondent Unions to insure
that said notices are not altered, defaced, or covered by any other
material;
(3) Mail to the Regional Director for the Seventeenth Region
signed copies of the notices attached hereto as Appendix A and Ap-
pendix B, for posting, the Respondent Company willing, on the
bulletin boards of Peerless Quarries, Inc., where notices to employees
are customarily posted. The notices shall be posted on the Respond-
ent Company's bulletin boards and maintained thereon for a period
of sixty (60) days thereafter. Copies of said notices, to be furnished
by the Regional Director for the Seventeenth Region, shall, after
being signed as provided in paragraph 2 (b) (2) of this Order, be
forthwith returned, to the Regional Director for said posting;
(4) Notify the Regional Director for the Seventeenth Region, in
writing, within'ten (10) days from the date of this Order, what steps
the Respondent Unions have taken to comply herewith.
3. Respondent Peerless Quarries, Inc., its agents, successors, and
assigns, and Respondent International Union of Operating Engineers,
Hoisting & Portable Local No. 101, A. F. L., its officers and agents,
and Respondent International, Hod Carriers', Building & Common
Laborers' Union of America, Heavy Construction Laborers' Local
663, A. F. L., its officers and agents, shall jointly and severally, make
whole John B. White for any loss of pay he may have suffered be-
cause of the discrimination against him, in the manner set forth in
tike. section of the Intermediate Report entitled "The remedy." Upon
request, the Respondent Company shall make available to the Board
or its agents, for examination and copying, all payroll records, social
security payment records, time cards, personnel records. and reports,
u Local 101 shall post Appendix B an Local 663 shall post Appendix C. In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words "A Decision and Order" In each of the notices , the words
'.'A Decree of the United States Court of Appeals Enforcing."
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the amounts of back pay
due and the right of reinstatement under this Order.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the Respondent Company violated the Act by conduct other than that
found to be unlawful in this Decision and Order , be, and it hereby
is, dismissed.
APPENDIX A
NOTICE To ALL EMPLOYEES
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 our employees that :
WE WILL withdraw and withhold all recognition from INTER-
NATIONAL UNION OF OPERATING ENGINEERS , HOISTING & PORTABLE
LOCAL No. 101, A. F. L., AND FROM INTERNATIONAL HOD CARRIERS',
BUILDING & COMMON LABORERS' UNION OF AMERICA, HEAVY CON-
STRUCTION LABORERS' LocAL 663, A. F. L., as the representative of
any of our employees for the purposes of 'dealing with us con-
cerning grievance, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until
such organizations shall have been certified by the National Labor
Relations Board as the bargaining representatives..
WE WILL cease performing or giving effect to our contract with
INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING &
PORTABLE LOCAL No. 101, A. F. L., AND INTERNATIONAL HOD CAR-
RIERS', BUILDING & COMMON LABORERS' UNION OF AMERICA, HEAVY
CONSTRUCTION LABORERS' LOCAL 663, A. F. L., or to any modi-
fication, extension, supplement, or understanding entered into
with said organizations relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organizations shall have
been certified by the National Labor Relations Board : Provided,
however, that nothing in the Decision and Order requires us to
vary or abandon those wage, hour, seniority, or other substantive
features of our relations with our employees, established in per-
formance of any such agreement, or to prejudice the assertion
by employees of any rights they may have thereunder.
WE WILL NOT encourage or discourage membership in any labor
organization of our employees, by discriminating in any manner
in regard to their hire, tenure of employment, or any terms or,
conditions of employment.
WE HEREBY DISAVOW any statement to employees that in order
to work for us they must become members Of INTERNATIONAL
PEERLESS QUARRIES, INC. 1203
UNION OF OPERATING ENGINEERS , HOISTING & PORTABLE LOCAL No.
101, A. F. L. OR INTERNATIONAL HOD CARRIERS', BUILDING &
COMMON LABORERS' UNION OF AMERICA, HEAVY CONSTRUCTION
LABORERS' LOCAL 663, A. F. L., or any other labor organization,
except to the extent that membership in a labor organization
may be required as a condition of employment by a valid agree-
ment in conformity with Section 8 (a) (3) of the Act.
IVE WILL NOT in any like or related manner .interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations , to join or assist
any labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in ' concerted
activities for the purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) .(3) of the Act.
WE WILL offer to JOHN B. WHITE immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights or privileges pre-
viously enjoyed, and we will make him whole for any loss of
pay suffered as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except
to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
PEERLESS QUARRIES, INC.,
Employer.
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.
APPENDIX B
NOTICE To ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS, HOISTING & PORTABLE LOCAL No. 101, A. F. L., AND TO
ALL EMPLOYEES OF PEERLESS QUARRIES, INC.
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 PEERLESS QUARRIES, INC.,
its officers , agents, successors , or assigns , to demote , transfer,
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, or otherwise discriminate against its employees in
violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of PEERLESS QUAR-
RIES, INC., its successors or assigns, in the exercise of their right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT give effect to the union-security provisions of our
contract with PEERLESS QUARRIES, INC., its successors or assigns,
to any extension, renewal, modification, or supplements thereto,
or to any superseding contract, except in accordance with the
provisos to Section 8 (a) (3) of the Act.
WE WILL make JOHN B. WHITE whole for any loss of pay he
may have suffered because of the discrimination against him.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
HOISTING & PORTABLE LOCAL No. 101, A. F. L.,
Labor Organization.
By ----------------------------------------------------
(Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be. altered, defaced, or covered by any other material.
APPENDIX C
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING
& COMMON LABORERS' UNION OF AMERICA, HEAVY CONSTRUCTION'
LABORERS' LOCAL 663, A. F. L., AND TO ALL EMPLOYEES OF PEERLESS
QUARRIES, INC.
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 PEERLESS QUARRIES,
INC., its officers, agents, successors, or assigns, to demote, transfer,
discharge, or otherwise discriminate against its employees in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of PEERLESS QUARRIES,
INC., its successors or asigns, in the exercise of their right to. self-
PEERLESS QUARRIES, INC. 1205
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
• AVE WILL NOT give effect to the union-security provisions of our
contract with PEERLESS QUARRIES, INC., its successors or assigns,
to any extension, renewal, modification, or supplements thereto,
or to any superseding contract, except in accordance with the
provisos to Section 8 (a) (3) of the Act.
WE WILL make JOHN B. WHITE whole for any loss of pay he
may have suffered because of the discrimination against him.
INTERNATIONAL HOD CARRIERS, BUILDING
& COMMON LABORERS' UNION OF AMER-
ICA, HEAVY CONSTRUCTION LABORERS'
LOCAL 663, A. F. L.
. Labor Organization.
By ------------------------------------------
(Title)
Dated -----------------------
This notice must remain posted for 60 , days from the date hereof,.
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Charles F. McCoy, Esq., for the General Counsel.
Cornelius Roach, Esq., of Kansas City, Mo., for the Respondent Company.
John J. Manning, Esq., C. G. Ha-,ilton,, Esq., and N. J. Senzee, Esq., of Kansas
City, Mo., for the Respondent Unions.
STATEMENT OF THE CASE
Upon charges duly filed by John B. White, an individual, the General
Counsel of the National Labor Relations Board,' by the Regional Director of the
Seventeenth Region (Kansas City, Missouri), issued a complaint dated June 13,
1950, against Peerless Quarries, Inc., Turner, Kansas, herein called the Re-
spondent Company, against International Union of Operating Engineers, Hoist-
ing & Portable Local No. 101, A. F. L., herein called Local 101, and against
International Hod Carriers', Building & Common Laborers' Union of America,
Heavy Construction Laborers' Local 663, A. F. L., herein called Local 663,2
1 The General Counsel and his representative at the hearing are referred to as the
General Counsel. The National Labor Relations Board is herein called the Board. '
'2 Local 101 and Local 663 are sometimes collectively referred to herein as the Respondent
Unions. The Respondent Company and the Respondent Unions are at times collectively
called the Respondents herein.
1206 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
alleging that the Respondents had engaged and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2), and
(3), Section'8 (b) (1) (A) and 8 (b) (2), and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charges, complaint, and notice of hearing were duly served upon
the Respondent Company and the Respondent Unions.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) The Respondents entered into a collective bargaining contract con-
taining union-security provisions about Octpber 1, 1949; (2) the Respondent
Company has rendered financial and other support to the Respondent Unions
by informing employees that they must join one of the Respondent Unions in
order to gain and retain employment, by advancing money to pay initiation
fees and dues in the Respondent Unions for new employees, and by enforcing
the union-security provisions of the contract despite the fact that no election
has been conducted by the Board among the Respondent Company's employees
as provided for in Section 9 (e) of the Act; (3) on various dates John B. White
made applications to the Respondent Unions for membership in Local 101 but
such membership was denied him; (4) on or about February 6, 1950, the Re-
spondent Unions caused the Respondent Company to demote White from his
employment as a high loader operator to an inferior position because he was
not a member of Local 101; and (5) on or about February 6, 1950, the Respond-
ent Company demoted White from the position of high loader operator to an
inferior position and has thereafter failed and refused to reinstate him to his
former or substantially equivalent position, because he was not a member of
Local 101. The complaint further alleged that by the foregoing conduct the
Respondent Company has engaged in unfair labor practices within the meaning
of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Act and
that the Respondent Unions have engaged in unfair labor practices within the
meaning of Section 8 (a) (1) (A) and 8 (b) (2) and Section 2 (6) and (7)
of the Act.
The Respondent Company and the Respondent Unions duly filed answers,
denying that they had engaged in the alleged unfair labor practices and that
the operations of the Respondent Company affected interstate commerce within
the meaning of the Act. Pursuant to notice, a hearing was held on June 26 and 27,
1950, before Frederic B. Parkes, _ 2nd, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Re-
spondent Company were represented by counsel and the Respondent, Unions
were represented by counsel and official representatives. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was. afforded all parties. During the course of the hear-
ing, the General Counsel moved to amend the complaint so as to set forth cor-
rectly the date on which the alleged discrimination against White occurred.
The motion was granted. At the conclusion of the hearing, the motion of the
General Counsel that the pleadings be conformed to the proof in respect to
minor variances such as names and dates was granted. At the same time,
the undersigned reserved ruling on the motions of the Respondent Company
and the Respondent Unions that the complaint be dismissed for failure of the
evidence to sustain the complaint's allegations and for lack of jurisdiction on
the part of the Board. .Those motions are disposed of in accordance with the
findings of fact and conclusions of law made below.
PEERLESS QUARRIES, INC. 1207
Upon the conclusion of the hearing, the undersigned advised the parties that
they might argue before, and file briefs or proposed findings of fact and con-
clusions of law, or both, with, the Trial Examiner. The parties waived oral
argument. The General Counsel, the Respondent Company, and the Respondent
Unions have each filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Peerless Quarries, Inc., a Kansas corporation, is engaged in the business of
mining and crushing limestone, of manufacturing asphalt paving material, and
of the sale of such products. Its offices, mine, crushing plant, and asphalt plant
are located at Turner, Kansas, which is approximately 7 miles from the Mis-
souri border. It employs approximately 30 employees during its peak season
in the summer. During the slack season in the winter, between 10 and 15 em-
ployees are employed.
In ownership, management, and operations the Respondent Company is closely
allied to Reno Construction Company, which is engaged in the business of high-
way construction of a heavy nature. The stockholders of the Respondent Com-
pany, namely, S. H. Reno, Mrs. S. H. Reno, G. M. Reno, Harry Hamilton, and
Grant West, are also connected with Reno Construction Company. S. H. Reno
owns Reno Construction Company. G. M. Reno is general manager of the Re-
spondent Company and also is employed as general superintendent of Reno Con-
struction Company. West and Hamilton serve as engineer and superintendent,
respectively, of Reno Construction Company. Reno Construction Company rents
equipment to the Respondent Company and at least one employee, a crane oper-
ator, was transferred from the former to the latter.
In 1949 the income from Reno Construction Company's operations totaled
approximately $1,000,000, of which 25 percent originated from highway con-
struction work in the State of Missouri and 75 percent from similar work in
the State of Kansas. Fifty percent of the work in Kansas was on highway proj-
ects, a portion of the cost of which was borne by the United States Government.
In view of these factors, it seems clear that Reno Construction Company is
engaged in interstate commerce A
During 1949 the Respondent Company's purchases of supplies and repair parts
amounted to $43,112.02. These purchases were of the following five general
types : (1) Gasoline and oil valued at $9,392.64 were bought from Sinclair Refin-
ing Company of Kansas City, Kansas; (2) dynamite purchased from concerns
outside the State of Kansas amounted in value to $3,302.47; (3) supplies for
maintenance of loading equipment cost $8,419.36 and were purchased, almost
exclusively, from a supplier in the State of Missouri; (4) supplies to repair the
crushing plant totaled $9,114.30 and were shipped to the Respondent from points
outside the State of Kansas; (5) supplies for maintenance of tool and drill
equipment cost $12,883.25 and were obtained from numerous suppliers, located
in Kansas and Missouri. Although Superintendent Charles J. Madden was unable
to estimate the amount of the tool and drill equipment which originated outside
'Strong Company, 86 NLRB 687; Brown-Ely Co., 87 NLRB 27; J. R. Reeves et al., 89
NLRB 54.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the State, he testified that excluding gasoline , oil, and dynamite supplies , approx-
imately 25 percent of the purchases of other supplies for maintenance and
repairs were purchased within the State of Kansas . The remainder of such
purchases , valued at approximately $22,812.68 , originated outside the State of
Kansas. Adding the amount of the purchases of dynamite to this figure results
in a total of $26,115.15, representing the value of out-of-State purchases.' Dur-
ing 1949, on a percentage basis , 60 percent of the total purchases of supplies and
materials was made outside the State of Kansas.
In 1950 the Respondent Company expanded its operations by the addition of
an asphalt plant. The order for the machinery and parts composing the plant
was placed in mid-February or early March 1950 and delivery of such plant
was made from points outside the State of Kansas in late April 1950. The plant
commenced operations between May 8 and 10, 1950 . The total cost of such
equipment was approximately $100,000. In May and June 1950 , supplies of
asphalt for the operation of the plant were purchased and shipped to the
Respondent from points outside the State of Kansas and were valued between
$6,000 and $10,000'
During 1949 the Respondent Company sold approximately 360,000 tons of
rock valued at approximately $432,161.58 .8 According to the Respondent 's esti-
mate, rock valued at approximately $40,099.99 was sold and shipped to points
outside the State of Kansas. This figure is approximately 9 percent of the
total sales. However , these out-of-State sales do not reflect the entire impact
of the Respondent's sales upon commerce , inasmuch as they do not include the
sales of the Respondent Company made within the State to concerns engaged
in interstate commerce . The following tabulation reflects such sales-
Concern in interstate commerce Amount of sales
Atchison, Topeka, & Santa Fe R. R_____________________ 1$26,874.02
Massman Construction Company________________________ 44, 333.95
Reno Construction Company____________________________ 46,562.40
Massey Concrete Company______________________________ '14,500.00
1 This figure reflects the sales of materials delivered to the Atchison , Topeka, &
Santa Fe R. R. within the State of Kansas . The value of products sold to it and other
customers and shipped to points outside the State of Kansas is not reflected in this
tabulation but is contained in the 9 percent of the total sales sent to customers without
the State.
2 Superintendent Madden estimated that the Respondent Company's sales to Massey
Concrete Company ranged between 10 , 000 and 15 , 000 tons and that the average cost
per ton of the Respondent Company ' s products was $1 . 45. In reaching this figure, the
undersigned has used the 10,000-ton estimate of Madden.
4 The purchases of oil and gasoline from Sinclair Refining Company, which operates a
refinery in Kansas City , Kansas, have not been included among the purchases made or
originating outside the State of Kansas . The record does not reveal the source of the oil
processed by the Sinclair Refining Company or establish beyond a reasonable doubt the
basis for an inference that the source of such oil was outside the State of Kansas.
5 The Respondents contend that in determining the jurisdictional issue, the Board
should consider evidence only in respect to the Respondent Company's operations prior
to the commission of the alleged unfair labor practices . Inasmuch as it is hereinafter
found that the record sustains the complaint ' s allegations and that such unfair labor
practices have not been remedied and, in fact , are continuing , and as it appears that
the policy of the Board on jurisdictional issues is to consider the latest available data
on commerce , the undersigned finds the Respondents ' contentions in this regard to be
without merit. Cf. Robin Hood Sportswear of California, 73 NLRB 852.
6 This figure and all other sales items in terms of value herein include drayage and
prepaid freight charges.
PEERLESS QUARRIES, INC. 1200
Concern in interstate commerce Amount of sales
Atkinson-Wendell Construction Company---------------- - $11,600.00
Eby Construction Company----------------------------- - 7, 250.00
M. W. Watson Construction Company------------------- 1,450.00
Winston Bros. Construction Company-------------------- 362.50
Sunflower Ordnance Works----------------------------- 362.50
Total ------------------------------------------ '153,295.37
8 Madden testified that the Respondent Company sold Atkinson-Wendell Constructioq
Company between 8,000 and 10,000 tons of material for use in the State of Kansas.
The lesser of these estimates had been used in reaching the figure in the text.
4 Sales of $14,500 to Frye Asphalt Company, Kansas City, Kansas, of $1,450 to E. W.
Geiger, Inc., Leavenworth, Kansas, and of $29,000 to Geiger Ready Mix Company,
Leavenworth, Kansas, have not been included in the tabulation inasmuch as it is not
clear beyond doubt that the operations of these customers affect commerce within the
meaning of the Act.
These sales,' made locally to concerns whose businesses affect commerce within
the meaning of the Act, constitute at least 37 percent of the Respondent's total
sales. In addition, as mentioned above, approximately 9 percent of the Re-
spondent's total sales is shipped by truck and railroad to points outside the
State of Kansas.
In May and June 1950, the Respondent Company sold the total production,
of its asphalt plant of 450 tons daily to Reno Construction Company which used
such products on a paving project in Kansas City, Missouri.
As indicated above, the Respondents moved to dismiss the complaint on the.
ground that the Respondent Company's operations did not substantially affect
commerce. The Respondents' position is.without merit and the cases on whick
they rely are clearly distinguishable on their facts from the instant proceeding!
Upon the entire record, the undersigned finds that the Respondent Company's:
operations affect commerce within the meaning of the Act, particularly in
view of (1) the substantial amount of purchases shipped to it and originating-
from points outside the State of Kansas and the volume of its interstate sales-
shipped to points outside the State of. Kansas,8 (2) the fact that at least 37-
percent of its total sales in 1949, although locally made, was made to concerns,
engaged in interstate commerce,' and (3) its close relationship to Reno Con-
struction Company, which is engaged in interstate commerce."
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Hoisting & Portable Local N'o..
101, and International Hod Carriers', Building & Common Laborers' Union of-
America, Heavy Construction Laborers' Local 663, are labor organizations.
affiliated with the American Federation of Labor, admitting to membership.
employees of the Respondent Company.
° Texas Construction Material Company, 80 NLRB 1248; Knoxville Sangravl Material,
Company, Inc., 80 NLRB 1461; Makins Sand & Gravel Co., Inc., 85 NLRB 213; Consruc-
tion Materials Company, 85 NLRB 320; Brewer & Brewer Sons, Inc., 85 NLRB 387;.
Transit-Mix Concrete Company, Inc., 85 NLRB 661.
8 John A. Denie's Sons Co., 86 NLRB 682; Ready Mixed Concrete Company, 90 NLR$:
No. 49.
9E1 Dorado Limestone Company, 83 NLRB 746.
10 Tampa Sand & Material Company, 88 NLRB 861. See also Gifford-Hill & Company,
Inc., et al., 90 NLRB 428.
929979-51-vol. 92-78
1210 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The contract ; support and assistance to the Respondent Unions; interference,
restraint , and coercion
On October 1, 1949, the Respondent Company and the Respondent Unions
executed a collective bargaining contract to be in effect until October 1, 1950.11
In respect to union security, the contract contained the following provision :
The Quarry Operator agrees subject to ratification by an election of the
employees under the provisions of the "Labor Management Relations Act of
1947" to require as a condition of continued employment that all present
employees of the Quarry Operator subject to the provisions of this Agree-
ment must become members of the Union on or prior to the thirtieth (30)
,day following the effective date of this Agreement and all new or additional
employees who become subject to the provisions of the Agreement must
become members of the Union on or prior to the thirtieth (30) day following
the beginning of such employment or the effective date of this Agreement,
whichever is the later , and all such employees must remain members. of the
Union in good standing thereafter by payment of dues so long as they remain
on the Quarry Operator's pay roll. Any employee who, within the period
herein specified, fails to become a member of the Union by failing to pay
initiation fees, or who, after becoming a member loses his membership by
failing to pay his regular membership dues shall, upon written receipt of
written request from the Union, immediately be discharged by the Quarry
Operator.
,A union-shop authorization election , pursuant to the provisions of Section
9"(e) of the. Act, has never been conducted among the employees of the Respond-
ent Company. Nevertheless, it is clear that the Respondents have put into full
force and effect and enforced the union-security provisions of their contract.
All employees of the Respondent Company were members of either Local 663
or Local 101. During the initial 30 days of employment, new employees were
informed by the Respondent Company, according to the credible testimony of
Superintendent Madden, - "You have to become a member" of the Respondent
Union having jurisdiction over the job on which the employee worked, "if you
are going to go ahead and work. That's what our contract is for." The Re-
spondent Company - also deducted from employees' wages monthly dues and
monthly installments on the payment of initiation fees in the Respondent
Unions upon signed authorization of the employees. William Masters, office
manager of the Respondent Company, gave the following testimony, which is,
credited, in respect to the signing of such authorizations :
Well, different employees, they may work there three of four days before
they come in [to the office], or they may work there a longer time, and after
they have been there three or four or five days they come up and we give
them the papers , Social Security form, and at the same time if Mr . Jackson
[steward for Local 101] hasn't said anything one way or the other we also
give them the authorization for the union 12
11 It appears that the same contract was also signed by 20 other quarry operators or
employers in the construction field in the "metropolitan area of Greater Kansas City,
Missouri."
12 In view of this testimony and that of Madden, earlier referred to, Masters ' subsequent
denial that he ever told employees that they had to become members of the Respondent
Unions in order to work for the Respondent Company is not credited.
PEERLESS QUARRIES, INC. 1211
The initiation fee in Local 101 was $120 and new employees generally paid it
in weekly installments of $12, which the Respondent Company deducted from
their wages upon their written authorization. In respect to the remittance of
these fees to Local 101, Masters testified as follows :
Q. . . . Well now when then did you send in the $120, at that time or did
you wait and send it in later?
A. No, it would vary. Sometimes if a man had only paid, oh, possibly
$75 or $90, or something like that, and I had already had a man that went
to work, or had gotten a card before that, if his remittance was due, I
would just lump the two of them together and send them in, although the
one man wasn't quite paid out.
Q. I see. He wouldn't be paid out but you knew he would be there and
that you would deduct it in the future, is that correct?
A. That's right.
In view of this testimony, the undersigned finds that the Respondent Com-
pany advanced sums from its funds to pay initiation fees for new employees
in the Respondent Union, subsequently reimbursing itself by deduction of such
advances from the wages of new employees.13 By this practice, by informing
new employees that they were required to join one of the Respondent Unions
in order to work for the Respondent Company, and by enforcing the union-
security provisions of its contract with the Respondent Unions without com-
pliance with the provisos to Section 8 (a) (3) of the Act, the Respondent
Company has interfered with, restrained, and coerced its employees in the
-exercise of the rights guaranteed in Section 7 of the Act and has lent assistance
to the Respondent Unions in recruiting and maintaining their membership, and
also financial support, in violation of Section 8 (a) (2) as well as Section 8 (a)
,(1) of the Act 14
B. The discriminatory transfer of John B. White
1. Sequence of events
White entered the Respondent Company's employ in July 1947 as the operator
of a "high loader," which was "a caterpillar tractor with a high front end, used
for loading rocks, picking it up and loading it in trucks." At that time and there-
:after, White was a member of Local 663. Although the jurisdiction of Local
101 embraced the high loader operators, White never became a member of Local
101 and the latter never sought to enlist his membership in its ranks. It is
-conceded that White was highly skilled in the operation of the high loader.
About September or October 1948, Lewis Lebbing, treasurer and assistant rep-
resentative of Local 101, complained to Superintendent Madden that White was
-not a member of Local 101 and requested that Madden remove White from the
,operation of the high loader. Madden did not comply with Lebbing's request
.and White continued as an operator of the high loader. According to the credible
,testimony of Madden, "There were a couple of times after that that [Lebbing]
came out and objected to the man running it, wanted us to take him off of the
high loader, and I wouldn't do it."
13 Superintendent Madden denied that the Respondent Company had ever advanced any
of its funds to pay the initiation fees of new employees . Although Madden may have
sincerely believed that this was the policy, his testimony in this regard is not credited
In view of the testimony of Madden , who had charge of such matters.
i4 Pacific American. Shipowners Association , 90 NLRB 1099 ; Waterfront Employers
Association :o f ,the Pacific Coast, 90 NLRB 1021.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About February 1 or 2, 1950, Lebbing and N. J. Senzee, secretary for Local
663, called upon Madden and, according to the latter's credible testimony, de-
manded that White be removed from the high loader and "they threatened to
put a picket at our place if I didn't make a change." " Madden testified credibly
in addition as to this colloquy as follows:
. .. the thing had drug along so long, they kept insisting they wanted him
off, that I said to them, well, if they should find out and decide now if we
are going to take the man off and quit all of the bickering we had had
before and the fussing and fighting, so it is my recollection that . . . Mr.
Lebbing said, "Well, let's don't do anything today. I will go back and.
talk to-" I believe it was Mr. Hamilton [representative for Local 101],
he said he was going to talk to, and he says, "I will call you tomorrow."'g
The following day, Lebbing telephoned Madden and informed him that Madden
"would have ^ to take [White] off" the high loader. Thereupon, Madden went
to the office of General Manager Reno at Overland, Kansas, and informed him
of the conversations with Lebbing and Senzee.
Reno testified that in late January he had had a conference with Senzee and
Lebbing in regard to another matter but during their conversation reference
was made by Lebbing to "this problem over at Peerless with the 663 man on
the high loader," and that Reno "had heard some reports on and off for a year
and a half or so about the thing." Reno, however, had not considered the
matter serious, testifying, "I thought it was just going on and on maybe and
they wouldn't do too much about it." Upon Madden's report of his conver-
sations with Senzee and Lebbing, Reno telephoned Senzee and the following
conversation occurred, according to Reno's credible testimony :
... there wasn't much to discuss ... because we had a few days in advance
gone over it and I told him that Charley [Madden] told me that we ought
to do something about it right away because Mr. Lebbing wanted that change
made, and I told him that inasmuch as Mr. White . . . belonged to Mr..
Senzee's local, that I wished that he would go out and talk and see, if between
he and Mr . Lebbing and Mr. White they couldn't make a satisfactory agree-
ment where everybody would be happy over the situation."
15 Lebbing 's version of his statement was as follows : "I said it is possible we would
have to, to take our men off of that and ask Mr . Hamilton [ representative for Local 101]
to get the job straightened out." Upon the entire record and his observations of the
witnesses , the undersigned credits Madden 's version of the colloquy.
"Apparently Lebbing consulted with Hamilton about White 's operation of the high
loader despite his nonmembership in Local 101 and Hamilton recommended that White
be -removed from such position . This finding is based upon . the following testimony of
Hamilton :
Q. . . . Now, did you tell Lebbing to tell [ the Respondent Company ] to take
[White] off , and if you did, what was your reason for telling him?
A. Well, he was the only one in that quarry that didn't belong to 101. The man
had made no application and no procedure had ever been done -for him to join the
organization , and so on.
Q. You say the only one in that quarry, you mean the only high loader operator?
A. Yes.
Q. And Lebbing had informed you that he was operating the high loader, is.that_
correct? As a non-member?
A. Yes, sir.
17 Madden gave the following version of the telephone conversation between Reno and .
Senzee :
In general it was that this man was a union member of 663 and that we wanted
no part in taking the man off of the high loader , or anything , that [Senzee ] should
PEERLESS QUARRIES, INC . 1213
Senzee stated that he would come to the Respondent Company's quarry the
following Monday and confer with White.
On February 6, 1950, when Senzee came to the quarry, he told Foreman
George Huck that Senzee wished to talk with White and that Senzee would
"have to do something about running the high loader." Huck sought out White
and sent him to the office to meet Senzee. At Huck's suggestion, Thomas Jack-
son, steward for Local 663, was also summoned to participate in the conference.
According to the credible testimony of Jackson, Huck at that time stated, "I
come down to get you ... they pulled J. B. [White] off the high loader, and I
told Mr. Senzee had he notified you, and he said `no,' so I told him I thought he
ought to let the steward know."
White testified that on February 6, 1950, he and Senzee had the following con-
versation and that Steward Jackson was present during the latter portion and
participated therein :
[Senzee] says, "Well, John, we are running into a little difficulty here . . .
I understand that you are one of the best operators in the business but we
are going to have to take you off." So I said, "Well, why? Why is that?
Why do you want to take me off?" He says, "Well, 101 is raising such a
fuss," he says, "we are just going to have to take you ol`tf," he says, "some
other engineer came over to the building and make a kick and there is
nothing else we can do but take you off now." I says, "Do you think if I
would get my initiation fees could I get a card in 101?" And he says, "No,
you would just be wasting your time," he says, "you couldn't go over and
get a card, you couldn't get one." . . . he says that they don't take colored
in 101.....Well, after [Jackson] got there Mr. Senzee told Mr. Jackson
what was happening, that they were taking me off of the high loader, and
Mr. Jackson says, asked him what was the cause of it, and he told him that
it was because I didn't have a 101 operator's card and it wasn't possible
for me to get one. And Mr. Jackson told him he didn't see why that they
would make such a difference as that. But Mr. Senzee said there was
nothing he could do about it but take me off.
Q. Did you say anything further to Mr. Senzee about being taken off?
A. Well, not any more than I just told him I didn't think it was right,
I didn't think it was constitutional, I didn't think it was right but he said
there was, nothing he could do.
Q. Then what happened next?
A. Then after that Mr. Senzee says, "Well, John," he says, "I hate to do
it but that's all." So he turned around and went on. He left.
Jackson's testimony corroborated that of White° Jackson testified that dur-
ing the conference among himself, White, and Senzee, the latter told Jackson
.that "they would have to take White off of the high loader because 101 were
kicking on him operating it, see. He was not a 101 man, and that they were
kicking on him operating it, and that they would have to pull him off. Jackson
-corroborated White's testimony in respect to Senzee's statements that it would
be impossible for White to become a member of Local 101, because he was a
Negro and Local 101 did not admit Negroes to membership.
Senzee admitted that for a year and a half Local 101 had complained that
White was "doing work that came under their jurisdiction and they insisted
come out and talk to him, and if they wanted him to get off the machine he should
come out and talk to the man. . . .
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that we put him over in the classification in which he belonged." Senzee
denied that he told White that it would be necessary to remove the latter from
the high loader operation but testified, "I told him that the engineers were
complaining about him doing work under their jurisdiction and carrying the
Local Union 663 card, and that we would have to make some adjustment on the
thing." According to Senzee, "the choice was up to [White] as to. which kind
of work he was going to do ... if he was going to run the high loader he would
have to come under the engineers because they had jurisdiction over the opera-
tion of the high loader, but if he was going to do most any other type of work
around there which came under our jurisdiction he could keep his card in
Local 663 which he still has.." When White complained about relinquishing
-his job, Senzee told him, "Yes . . . it may appear that . . . you are being
crucified, but it is the 101's work and we don't have jurisdiction over it and
there is nothing I can do about it." However, it was also Senzee's testimony
that he promised White that Senzee would "talk with the company about find-
other work for him to do coming under our jurisdiction." Senzee
denied that he informed White that it would ,be impossible for him to become a
member of Local 101; Senzee insisted that he merely told White that Senzee
knew of no Negroes among the membership of Local 101.
Upon the entire record and. his observation of the witnesses, the undersigned
credits the testimony of White and Jackson and finds that the conference with
Senzee occurred as testified to by them. Senzee's testimony. is not credited to the
extent that it is at variance with the testimony of White and Jackson 1B
Following the conference with Senzee, White went to Madden's office and, ac-
cording to White's credible testimony, "told Mr. Madden that they had taken me
off, and if they were going to take me off the high loader I preferred going on
the `uke' [a Diesel-powered truck used to haul rock from the mine to the crusher]
since that was the way it was, had to be." Madden replied, "Well, J. B., we will
see if we can't work that out for you then if that's what you want next to the
high loader." White then asked for permission to-leave work in order to con-
fer with his attorney. Madden granted his request. After conferring with his
'B In making these findings, it is unnecessary for the purpose of this Report to resolve
the conflicts in the testimony in regard to whether White was denied membership in Local
101 because of his race and no findings in that regard are made herein. Section 8 (b) (2)
provides that it shall be an unfair labor practice for a labor organization "to cause or
attempt to cause an employer to discriminate against an employee in violation of subsection
(a) (3) or to discriminate against an employee with respect to whom membership in such
organization has been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership." It seems clear that the first proscription of this
section refers, inter alia, to cases such as the instant proceeding in which union-security
provisions of a contract are being enforced despite the lack of compliance with the pro-
visos to Section 8 (a) (3) of the Act. The second proscription in the above-quoted section
refers to cases in which there is a valid contract with lawful union-security provisions
but such provisions are being enforced against an employee to whom membership in the
contracting organization has been denied. The latter situation is not that of the instant
proceeding. Accordingly, the undersigned is in agreement with the following position of
the General Counsel, as succinctly stated in his brief ;
It is our position that all that is necessary for the General Counsel to prove to,
establish a violation of Section 8 (b) (2) where there has been no 9 (e) election
is an attempt to cause or the cause and resulting employer discrimination under Sec-
tion (a) (3). The second part of 8 (b) (2) relating to membership denial or ter-
urination clearly is applicable only to a case in which there has been an election under
9 (e) and there is a contract allowable under the provisos of 8 (a) (3). Thus,
whether White was denied membership discriminatorily for color or whatever reason
is not material in this case where there is no lawful union shop contract.
PEERLESS QUARRIES, IN C. 1215
attorney, White returned to the quarry later in the day and requested Mad-
den's permission to have a leave of absence for the remainder of the day in order-
that White might visit the Board's Regional -Office in Kansas City and seek.
their advice. Again, his request for leave was granted by Madden 19
On February 6, 1950, Madden transferred William Schuetz, who operated a.
Diesel-powered truck, to White's job on the high loader and White was given
the Diesel truck to drive. As an operator of the high loader, White had been
paid $1.75 per hour. As driver of .the Diesel truck, his wage rate fell to $1.40-
an hour. Thereafter, White continued to drive the Diesel truck. On occasion,
however, he has operated the high loader for brief periods of time due to the
absence of the regular operator.
2. Conclusions
The Respondents contend that the complaint's allegations as to White have,
not been sustained for the reason that the transfer of White from the operation
of a high loader to that of a Diesel truck was made only upon his voluntary re-
quest for a change in duties. Upon the entire record and the facts found above,.
the contention is clearly without merit.
In summation, for a year and a half Local 101 had urged the Respondent Com-
pany to remove White from the operation of the high loader because he was not
a member of Local 101, which had jurisdiction over such operation. During
the same period, Local 101 had addressed similar complaints to Local 663. The
Respondent Company did not comply with Local 101's requests during that period
of time. However, following a renewal of the demand by Local 101 for the trans-
fer of White and a threat of establishing a picket line in the event that com-
pliance was not made with its request,20 Superintendent Madden told the rep-
resentatives of the Respondent Unions in a joint conference that "they should
find out and decide now if we are going to take the man off and quit all of the
bickering we had had before and the fussing and fighting." The conference
concluded with Lebbing's statement that he would consult with Hamilton, his
superior, and telephone Madden the next day. The following day, Lebbing
informed Madden that the Respondent Company "would have to take [White]
off" the high loader.
Thereupon, Madden consulted with General Manager Reno, who was aware
of Local 101's desire to have one of its members operate the high loader in White's
stead, and after being advised by Madden of the latest conference with Lebbing
and Senzee, Reno telephoned Senzee and appealed to him to "see if between he
and Mr. Lebbing and Mr. White they couldn't make a satisfactory agreement
where everybody would be happy over the situation."
19 The findings in this paragraph are based upon the testimony of White who impressed
the undersigned as an accurate and reliable witness. Madden's testimony was in accord
with that of White in regard to these incidents, except as to minor variances. As to
those conflicts , White's testimony is accepted. The undersigned does not credit Madden's
testimony that White knew the position of the Respondent Company to be "that it was
all right with them for him to continue operating a high loader ." If such were indeed
the position of the Respondent Company, there would have been no reason for Reno to,
telephone Senzee and state, according to Madden 's testimony , "if they wanted [ White}
to get off the machine [Senzee] should come out and talk to.the man."
20 Contrary to the contentions of the Respondent Unions, the unedrsigned is of the
opinion that the record establishes that Lebbing and Senzee were agents for Local 101
and Local 663, respectively, and that their statements and activities are attributable to
such organizations. However, since the threat of picketing was directed at the Respondent
Company and not toward employees , it is not found that such threat was violative of
the Act.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 6, 1950, Senzee came to the mine and when he asked Foreman
Huck to summon White, Senzee told Huck that Senzee would "have to do some-
thing about running the high loader." In the conference with White and Jack-
son, Senzee told White, "We are just going to have to take you off" the high
loader because "some other engineer came over to the building and made a kick
and there is nothing else we can do but take you off now." Inherent in Senzee's
statements during this conversation is the implication that the Respondent Com-
pany had or would accede to the requests that White be removed from the. high
loader operations.
Immediately after the conference with Senzee, White told Superintendent
Madden that "they had taken me off, and if they were going to take me off the
high loader I preferred going on the `uke' since that was the way it was, had
to be." At the same time, White asked for permission to leave work in order to
-confer with his attorney and later in the day asked Madden for the remainder
,of the day off from work so that White might seek the advice of the Board's
Regional Office. In view of these findings, it is clear that White did not of his
-own volition voluntarily request a transfer from the high loader operation. It is
also clear that none of the Respondents had any reason to believe that such
request was voluntary on the part of White.
On the contrary, after numerous requests by Local 101 for White's removal
from the high loader operation and Lebbing's threat in Senzee's presence that
'Local 101 would picket the Respondent Company's operations. if White con-
tinued to operate the high loader, the Respondent Company appealed to Senzee
for the Respondent Unions and White to "make a satisfactory arrangement."
In the absence of a valid contract providing for a union shop to the extent per-
mitted by the Act, the Respondent Company's action in regard to White was a
-clear violation of the "affirmative duty imposed upon an employer by the Act to
insure that its right of discharge is not delegated to any union or anti-union
group."
The facts of the instant proceeding are closely analagous to those cases in
which an employer has taken no steps to prevent one faction of employees from
.ejecting from his plant a dissident group and in which instance the Board has
held, "even where no other unfair labor practice is committed, an employer who
takes no action to prevent the. ejection of his employees by members of a rival
union, is himself responsible for the ejection, such ejection being tantamount to a
-discharge." 22 Here, no valid union-shop contract existed, nevertheless Local 101
demanded that White be removed from the high loader operation because he was
not a member of that organization, and Local 663 acceded to that request. Such
factors were known to the Respondent Company. Instead of holding steadfast to
its earlier policy of refusing to make the requested transfer, the Respondent
-Company capitulated to the requests for White's demotion and, in fact, requested
Local 663 to discuss the matter with White and Local 101 and arrive at a "satis-
factory arrangement." Under these circumstances, it cannot be said that White
voluntarily requested a transfer from the high loader operation, particularly in
view of the manner in which he stated his request, followed immediately by a
:request for permission to leave work in order to see his lawyer. Clearly, as to
White, the Respondents were enforcing the union-security provisions of their
contract, despite the fact that the Respondent Unions had failed to comply with
the provisos to Section 8 (a) (3) of the Act. Upon the entire record, the under-
signed finds that by acceding to the requests that White be transferred from the
21 Fred P. Weissman Company, et al ., 69 NLRB 1002, 1025.
11 Hudson Motor Car Company, 34 NLRB 815, 826.
PEERLESS QUARRIES, INC . 1217
high loader because he was not a member of Local '101, and by transferring
White from the high loader to the Diesel-powered truck the Respondent discrim-
inated in regard to the hire and tenure of White's employment, thereby encourag-
ing membership in Local 101, in violation of Section 8 (a) (3) and derivatively of
Section 8 (a) (1) of the Act.
That the Respondent Unions caused the Respondent Company to so discrimi-
nate against White in violation of Section 8 (a) (3) is clear. Local 101 had long
urged such a transfer. Local 663 had knowledge of such demands, acceded
thereto, participated, with Local 101 jointly in conferences with the Respondent
Company in respect to the demands, and, in fact, informed White on February
6, 1950, that "we are just going to have to take you off" the high loader. The
undersigned concludes that by causing the Respondent Company discrimina-
torily to transfer White from the operation of the high loader because of his
nonmembership in Local 101, the Respondent Unions thereby violated Section 8
(b) (2) and (8) (b) (1) (A) of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the o ,)orations of the Respondent Company described 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 commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor. practices, the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the Respondent Company has discriminated in
regard to the hire and tenure of employment of John B. White, it will be rec-
ommended that the'Respondent Company offer White immediate and full rein-
statement to his former or substantially equivalent position 24 without prejudice
to his seniority or other rights and privileges.
Having further found that the Respondent Unions here caused the Respondent
Company to so discriminate in regard to the hire and tenure of employment of
White, the undersigned will recommend that the Respondent Unions notify the
Respondent Company, in writing, that they have no objection to his employment
and that they request the Respondent Company to offer him immediate and full,
reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges.
Since it has been found that the Respondents are responsible for the discrimi-
nation suffered by White, it will be recommended that the Respondents jointly
and severally make him whole for the loss of pay he may have suffered by the
reason of the discrimination against him from the date of his transfer from the-
-high loader. Consistent with the Board's new policy in the method of computing.
back pay,26 it will be recommended that the loss of pay be computed on the basis-
23 Cif. Randolph Corporation, 89 NLRB 1490 , and cases cited therein.
81 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" Is Intended to mean "former position
wherever possible , but if such position is no longer in existence , then to a substantially
equivalent position ." See The Cha8e National Bank of the City of New York, San Juan,.
Puerto Rico, Branch, 65 NLRB 827.
25 F. W. Woolworth Company, 90 NLRB 289.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of each separate . calendar quarter or portion thereof during the period from.,t4e
,discriminatory action to the date of a proper offer of reinstatement., The quar-
terly periods, hereinafter called "quarters," shall begin with. the first- day of
.:January, April, July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which White would normally have earned for each
quarter or portion thereof as an operator of the high loader, his earnings as an
-operator of the Diesel-powered truck during that period. Earnings in one.par
ticular quarter shall have no effect upon the back-pay liability for any other
quarter. It will also be recommended that the Respondent Company make avail-
able to the Board upon request payroll and other records to facilitate the check-
ing of the amount of back pay due.20
However, it would be inequitable to the Respondent Unions to permit the
amount of their liability for back pay to increase despite the possibility of their
willingness to cease their past discrimination, in the event that the Respondent
Company should fail promptly to offer reinstatement to White. In accordance
with the Board's policy, the undersigned will accordingly provide that the Re-
spondent Unions may terminate their liability for further accrual of back pay
to White by notifying the Respondent Company in writing that they have no
-objection to his reinstatement. The Respondent Unions shall not thereafter be
-liable for any back pay accruing after 5 days from the giving of such notice.
-Absent such notification, the Respondent Unions shall remain jointly and sever-
:ally liable with the Respondent Company for all back pay to White that may
accrue until the Respondent Company complies with the recommended offer of
-reinstatement.
It has been found that by advancing funds to pay the initiation fees of em-
,ployees in the Respondent Unions, by informing new employees that they were
-required to join one of the Respondent Unions in order to work for the Respond-
ent Company, and by enforcing the union-security provisions of its contract with
the Respondent Unions without compliance with the provisos to Section 8 (a)
-(3) of the Act, the Respondent Company has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (2) of the Act. As the Board has
-held, the effect of such coercive conduct would not be eradicated were the
Respondent Company permitted to afford the Respondent Unions the privilege
of enjoying a representative status strengthened by virtue of the illegal enforce-
ment of the union-shop contract. Accordingly, the undersigned will recommend
that the Respondent Company withdraw recognition from the Respondent Unions
.and cease giving effect to its contract with the Respondent Unions, or to any
.modification, extension, supplement, or renewal thereof, unless and until the
Respondent Unions have been certified by the Board. Nothing in these recom-
mendations, however, shall be deemed to require the Respondent Company to
vary or abandon those wage, hour, seniority, or other substantive features of its
'relations with- its employees, established in performance of said contract, or to
prejudice the assertion by the employees of any rights they may have under such
agreements"
Since it has been found that the Respondent Unions were enforcing the union-
security provisions of their contract with the Respondent Company, despite the
20 F. W. Woolworth Company, supra.
27 In his brief , the General Counsel urges , that the Respondent Company "should be
:ordered to refund initiation fees and dues checked off pursuant to this unlawful assistance."
-The undersigned will not recommend the reimbursement of such fees and dues since the
Respondent Unions were not company-dominated but were only supported and assisted in
violation of Section 8 (a) (2). See Salant & Salant, Inc., 88 NLRB.816.
PEERLESS QUARRIES , INC . 1219
fact that they had not complied with the provisos to Section 8 (a) (3) of the
Act, it will accordingly be recommended that the Respondent Unions cease and
desist from giving effect to the unlawful union-security provisions in their con-
tract with the Respondent Company, except in accordance with the provisos
to Section 8 (a) (3) of the Act.
On the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Peerless Quarries , Inc., constitute trade, traffic, and
commerce among the several States within the meaning of Section 2 (6) and
(7) of the Act.
2. International Union of Operating Engineers , Hoisting & Portable Local
No. 101, A. F. L., and International Hod Carriers ', Building & Common Labor-
ers' Union of America , Heavy Construction Laborers' Local 663, A. F. L., are
labor organizations within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining , and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act , the Respondent Company
has engaged and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
4. By contributing support to the Respondent Unions, the Respondent Com-
pany has engaged and is engaging in unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
5. By discriminating in regard to the hire and tenure of employment of John
B. White, thereby encouraging membership in a labor organization , the Respond-
ent Company has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
6. By causing the Respondent Company to discriminate in regard to the hire
and tenure of employment of John B. White in violation of Section 8 (a) (3)
of the Act , the Respondent Unions have engaged and are engaging in unfair
labor practices within the meaning of Section 8 ( b) (2) of the Act.
7. By restraining and coercing employees of the Respondent Company in
the exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act, the Respondent Unions have engaged and
are engaging in unfair labor practices within the meaning of Section 8 (b)
(1) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section .2 ( 6) and (7) of the Act.
[Recommended Order omitted from . publication in this volume.]