Randolph Corp.

National Labor Relations Board - Board Decisions

May 22, 1950

89 N.L.R.B. 1490 (N.L.R.B. 1950)

In the Matter of RANDOLPH CORPORATION and CHARLES CHANDLER
AND GEORGE W. SMITH, INDIVIDUALS
In the Matter Of PROGRESSIVE MINE WORKERS OF AMERICA, INTER-
NATIONAL UNION : PROGRESSIVE MINE WORKERS OF AMERICA, DIS-
TRICT #1 ; AND LOCAL UNION #13, PROGRESSIVE MINE `YORKERS and
CHARLES CHANDLER AND GEORGE W. SMITH, INDIVIDUALS
Cases Nos . 14-CA-119 and 141-CB-14.-Decided May 22, 1950
DECISION
AND
ORDER
On July 29, 1949, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this proceeding, finding that the Respondent
Unions 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. The Trial Examiner also
found that the Respondent, Unions as well as the Respondent Com-
pany had not engaged in certain other alleged unfair labor practices
and recommended that the complaints be dismissed with respect to
such. allegations. Thereafter, the Respondent Unions and the Gen-
era] Counsel filed exceptions to the Intermediate Report and support-
ing briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
I The Trial Examiner properly denied the various motions by both Respondents to dismiss
the respective complaints on the grounds that it was contrary to the 6-month proviso in
Section 10 (b) of the Act. The variances between the charges and the complaints were
insubstantial. See Cat hey Lumber Company, 86 NLRB 157. And the statute of limitations
runs from the time of the unfair labor practices to the filing of a charge and service thereof,
not from the time the violation is alleged. See Salant 6 Salant, Incorporated, 87 NLRB
215 ; Weaver Wintark, 87 NLRB No. 53.
The Trial Examiner granted the General Counsel ' s motion to separate the witnesses and
included , as witnesses , the union officials who testified . The Respondent Unions contend
that this was prejudicial error as the union officials were parties privileged to confront
witnesses testifying against them . We find no merit in this contention. Technically, the
Unions and not the officers of the Unions were parties . Section 8 ( b) is not directed to
89 NLRB No. 194.-
1490
RANDOLPH CORPORATION 1491
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent consistent with our
Decision herein :
1. We find, as did the Trial Examiner, that the following state-
ments attributable to the Respondent Unions or their agents, as more
fully described in the Intermediate Report, violated Section.. 8
(b) (1) (A) :
a. Local Union President Todd's statements of March 24, 1948, at
the homes of Chandler and Smith, when, according to their credited
testimony, he said :
I'm tell you as a friend not to come out to work in the morning.
You fellows are stirring up a hornet's nest. There will be trouble
out there : guns, knives, and blackjacks . . . I don't know what
all. . . . I wouldn't go out if I was you.2
All witnesses, including Chandler and Smith, testified that they had
seen no weapons. The Respondent Unions contend that the absence
of guns, knives, and blackjacks shows the absurdity of crediting the
Chandler and Smith version of Todd's statements. The Trial Ex-
aminer observed the witnesses and credited Chandler and Smith,
and the importance of observation of witnesses to any finding of
their credibility is such that we will not overrule the credibility find-
ings of the Trial Examiner unless they are clearly erroneous.3 We do
not think it clearly erroneous to assume that a threat may be made
without its having been carried out.
The Respondent Unions further contend that, if credible, this state-
ment was not coercive, because Smith had not intended to report to
work on March 25, and Chandler reported as usual despite the warn-
ing. It is immaterial , however, that the statements in question, which
we find were calculated to restrain and coerce employees in the exer-
cise of rights guaranteed by Section 7 of the Act, failed to accomplish
that purpose.4
unlawful conduct by persons acting in their individual capacities . Perry Norvell Company,
80 NLRB 225 . As a representative of the Respondent Unions heard all the evidence and
participated both in examination and cross -examination , the officers , who are not subject
to personal liability , were afforded sufficient representation . See Bernheimer v. Converse, 206
U. S. 516, 532.
z Smith Cabinet Manufacturing Company , Inc., 81 NLRB 886.
3Minnesota Mining & Manufacturing Company, 81 NLRB 557, enfd. 179 F. 2d 323 (C..A.
8) ; N. L. R. B. v. Walworth Co., 124 F. 2d 816 (C. A. 7)..
4 Sunset Line and Twine Company, 79 NLRB 1487 , 1505; Smith Cabinet Manufacturing
Company, Inc ., supra.
889227-51-vol. 89-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The threats by pit committeemen Owens and Ramsey to Smith
and Chandler at the home of Smith on March 25, where they said :
. . . get away from that mine because we're not going to
work with you any more. . . There will be trouble if you
come over there.
In holding these statements coercive, we rely on the fact that the admo=
nition not to return to work was backed by a threat of physical
reprisal.5
c. Tidwell's statement at Smith's home "that the Progressive Mine
over there is going to stay progressive as long as I am there, if it takes
bloodshed to do it."
In addition to the above, we also find violative of Section 8 (b)
(1) (A) :
a. Board Member Galli's statement to Chandler that the latter "ain't
making these boys no report [about his conference with UMW agents]
out here at the mine.", and
b. Pit committeeman Ramsey's or Owens' statement to Chandler
ordering him to change back into street clothes "because he wasn't
going to work there . . . the men wouldn't, work with him or
Smith."
Unlike the Trial Examiner, we do not believe that Chandler's "vol-
untary" action, in accompanying Owens and Ramsey from the mine
to Smith's home, made these threats nugatory.
2. Unlike the Trial Examiner, we find that the Respondent Com-
pany constructively discharged employees Chandler and Smith, in
violation of Section 8 (a) (3) and, derivatively, 8 (a) (1) of, the Act,
and that, by causing such actions, the Respondent Unions violated
Section 8 (b) (2) and 8 (b) (1). (A) of the Act.
The Trial Examiner based his contrary conclusions principally on
the ground that there was no affirmative evidence that the Company
had ever discharged or otherwise terminated the employment of the
employees concerned. However, the absence of such affirmative acts
of discharge is clearly not determinative in the present case.' As the
Board and the courts have frequently held,, an employer will be re-
garded as having constructively discharged, employees in violation of
Section 8 (a) (3) if he knowingly permits the ouster of such employees
from his plant by any union or antiunion group.6 Here, it is patent
s Cf. G. H. Hess, Incorporated, $2 NLRB 463.
a E. g., Newberry Lumber cG Chemical Co., 17 NLRB 795, enfd . as modified (on other
grounds) 1.23 F. 2d 831 (C. A. 6) ; Brown Garment Manufacturing Company, 62 NLRB
857; Fred P. Weissman Company, 69 NLRB 1002, enfd. 170 F. 2d 952 (C. A. 6), cert. den.
336 U. S. 972; Hudson Motor Car Company, 34 NLRB 815, enfd•. 128 F. 2d 528 (C. A. 6) ;
J. G. Boswell Company, 35 NLRB 968, enfd. 136 F. 2d 585 (C. A. 9) ; Taylor-Colquitt Com-
pany, 47 NLRB 225, enfd. 140 F. 2d 92 (C. A. 4) ; General Motors Corporation and Delco-
Renay Division, 14 NLRB 113, enfd . 116 F . 2d 306 (C. A. 7).
RANDOLPH CORPORATION 1493
that Chandler and Smith remained away from work as a direct con-
sequence of the coercive actions of the Respondent Unions, set forth
in paragraph 1, supra. The question, therefore, is whether the Com-
pany knew of, and acquiesced in, the expulsion of these employees.
We are persuaded that the Company was fully aware of the Union's
conduct and acquiesced therein. The record shows, in this connec-
tion, that, after Chandler and Smith left work on March 24, 1948, to
attend a meeting with the UMW representative, it was the Company's
Mine Superintendent Oliver who reported their absence to Respondent
Union Local 13's President Todd. At that time Oliver mentioned
to Todd that he thought there was going to be trouble, and even sug-
gested that Todd verify the rumor that Chandler and Smith had gone
to talk with UMW about a possible change in the affiliation of the
miners. That evening Todd did call on Chandler and Smith at their
homes and threatened them with trouble if they reported to work.
Significantly, that same evening Pit Boss Voytas alerted the police on
possible labor trouble at the mine the next day.
On the next morning, March 25, Oliver met the Progressive delega-
tion at the mine. Although he was introduced to the group by Galli, a
board member of the Respondent International, he did not inquire
concerning their presence there. His lack of surprise or curiosity
suggests that he was not unaware of the reason for the delegation.
When Chandler reported for work that morning, according to his
credible testimony, he saw Oliver enter the mine just as he was being
surrounded by the group of visiting union officials. As previously
noted, Smith did not report for work that day and several from the
group decided to call at Smith's house. Either Ramsey or Owens
asked Chandler to accompany them. When Ramsey asked to borrow
Pit Boss Voytas' car to drive the group to Smith's house, Voytas did
not question him. Later, the same day, when Ramsey and Owens
returned to the mine, after further threatening Smith and Chandler,
Ramsey called Oliver out of the mine admittedly to tell him "what
they had told the men" and that the men had agreed not to come
back "until the case was settled." Oliver then requested reassurance
that "they had everything smoothed over." Whether or not Ramsey
gave him a verbatim report of their interview with Chandler and
Smith, Oliver admitted that he knew that the Respondent Unions had
"persuaded" the two men to remain away from work. Thereafter,
although Chandler and Smith were continued on the payroll, the
Company made no attempt to get in touch with them or otherwise
disavow the exclusionary action of the Unions. Three months later,
when Smith went to the mines to get his vacation pay, he asked Mine
Superintendent Oliv(r "if he fired him when Owens and Ramsey told.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to." Oliver evaded a direct answer, saying, "You ain't getting
no information from me. Why ain't you working?" Smith told him
to ask Ramsey, who was standing some 15 yards away. Oliver, having
asked a question to which he obviously knew the answer, remained
silent.
In view of the foregoing, and upon the entire record, we find that
the Respondent Company knew that Chandler and Smith had re-
mained away from work, commencing on or about March 25, 1948,
because of the Unions' coercive conduct resulting from the employees'
activity on behalf of a rival union. By failing to disavow such expul-
sion of these employees from the plant by the Unions, we find that
the Respondent Company violated Section 8 (a) (3) and, derivatively,
:8 (a) (1) of the Act.' As the conduct of the Respondent Unions
impelled the discriminatory discharges effected by the Employer, it
is clear, and we find, that the Respondent Unions thereby violated
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.'
The Remedy
In addition to the Trial Examiner's finding that the Respondent
Unions had violated Section 8 (b) (1) (A) of the Act, which we have
adopted, we have found that the Respondent Company has violated
Section 8 (a) (3) and 8 (a) (1) by the discriminatory discharges
of Chandler and Smith on March 25, 1948, and that the Respondent
Unions, by causing such discriminatory discharges violated 8 (b)
(2) and 8 (b) (1) (A). Accordingly, we shall order the Respondents
to cease and desist from the unfair labor practices in which we have
found them to have engaged and to take certain affirmative action
designed to effectuate the policies of the Act.
Normally, in cases in which an employer has unlawfully discrimi-
nated against an employee by discharging him, the Board orders, in
addition to affirmative relief, that the employer cease and desist from
in any manner infringing upon the rights guaranteed by Section 7
of the Act. However, under the circumstances of the present case,
including the facts that the discharges were impelled by the action
of the Respondent Unions and that we have made no finding of an
independent violation of Section 8 (a) (1), we do not believe that
danger in regard to the commission of other unfair labor practices
by the Respondent Company is to be anticipated from its conduct in
4 Like the Trial Examiner , we do not find sufficient evidence that the Respondent Com-
pany actually instigated and inspired the Respondent Unions' conduct to constitute an
independent violation of Section 8 (a) (1).
8 See Clara -Val Packing Company, 87 NLRB 703; Union Starch '& Refining Company,
89 NLRB 779.
,RANDOLPH CORPORATION 1495
the past. We are of the opinion, therefore, that a broad cease and
desist order against the Respondent Company is unwarranted, and
that one limited to the violations herein, and like or related conduct,
is sufficient to effectuate the purposes of the Act 9
The record shows that the Respondent Company abandoned the
operation involved herein on August 20, 1948. Accordingly, we shall
not order reinstatement of the discriminatees. However, as we have
found that both the Respondent Company and the Respondent Unions
are responsible for the discrimination suffered by such employees, we
shall order them jointly. and severally 10 to make the discriminatees
whole for any loss of pay they may have suffered by reason of the
discrimination against them, by payment to each of a sum of money
equal to the amount he normally would have earned as wages from
March 25, 1948, the' date of the discrimination, to August 20, 1948, the
date on which the mine was closed, less his net earnings u during such
period.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. Respondent Randolph Corporation, Coulterville, Illinois, its
agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Encouraging membership or nonmembership in any labor or-
ganization of its employees in the vicinity of Tilden, Illinois, by dis-
criminating in any manner in regard to their hire, tenure, or any term
or condition of their employment;
(2) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective 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 organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
° See Acme Breweries, 80 NLRB 1098; Union Starch & Re/loving Company, supra ; Illinois
Bell Telephone Company, 88 NLRB 1171.
1U II. M. Newman, 85 NLRB 725.
See Crossett Lumber Co., 8 NLRB 440.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
. (1) Post immediately at any office or place of business in the vicinity
of Tilden, Illinois, copies.of the notice attached hereto as Appendix
A.'2 Copies of said notice,. to be furnished by the Regional Director
for the Fourteenth Region; shall, after being duly signed by Respond-
ent Company's representative, be posted by Respondent Company im=
mediately upon receipt thereof and maintained by it for sixty (60)
consecutive days in conspicuous places, including all places where
notices to employees 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 material; ... _
. (2) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of the receipt of this
Order what.steps,Respondent Company has taken to comply herewith.
2. Respondents Progressive Mine Workers of America, Interna-
tional Union; Progressive Mine Workers of America, District #1;
and Local Union #13, Progressive Mine Workers of America, their
officers and agents,. shall :
(a) Cease and desist from :
(1) Threatening employees of Randolph Corporation in the vicinity
of Tilden, Illinois, with physical harm, injury, and reprisals if they
report for work at the premises of Respondent Company ;
(2) Causing or attempting to cause Randolph Corporation, its
officers, agents, successors, or assigns, in the vicinity of Tilden, Illinois,
to discharge or otherwise discriminate against its employees in viola-
tion of Section 8 (a) (3) of the Act;
(3) In any other manner restraining or coercing employees of Ran-
dolph Corporation in the vicinity of Tilden, Illinois, in the exercise
of their right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives.. of their
own choosing, and to engage in other concerted activities for the pur-
pose 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 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) Post in conspicuous places at the business offices of Progressive
Mine Workers of America, International Union; Progressive Mine
"In the event that this Order is enforced by 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."
RANDOLPH CORPORATION 1497
Workers of America, District #1; and Local Union #13, Progres-
sive Mine Workers of America, including all places where notices or
communications to members are customarily posted, copies of the
notice attached hereto and marked Appendix B.13 Copies of said
iibtice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by an official representative of
each of Respondent Unions, be posted by Respondent Unions imme-
diately' upon receipt thereof and maintained by them for a period of
sixty (60) consecutive days thereafter.. Reasonable steps shall be
taken by Respondent Unions to insure that said notices are not altered,
defaced, or covered by any other material;
' (2) Furnish to the Regional Director for the Fourteenth Region
signed copies of the notice attached hereto as Appendix B for posting,
if Respondent Company is presently conducting mining operations in
the vicinity of Tilden, Illinois, and is willing, on the-bulletin boards of
Randolph Corporation where notices to employees are customarily
posted. The notices shall be posted on the Company's bulletin boards
and maintained thereon for a period of sixty (60) consecutive days
thereafter. Copies of said notice, to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed by
Respondent Unions, as provided in paragraph (2) (b) (1) of this
Order, be forthwith returned to the Regional Director for such posting;
(3) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order what steps
Respondent Unions have taken to comply herewith.
3. Respondent Randolph Corporation, Coulterville, Illinois, its
agents, successors, and assigns, and Respondents Progressive Mine
Workers of America, International Union; Progressive Mine Workers
of America, District #1; and Local Union #13, Progressive Mine
Workers of America, their officers and agents, shall jointly and sever-
ally, make whole Charles Chandler and George W. Smith for any loss
of pay each of-them may have suffered because of the discrimination
against them, in the manner described in the remedy section above.
CHAIRMAN HERZOG and MEMBER MTJRDOCIK dissenting in part:
We agree with the majority's decision except as it finds that the
Respondent Company constructively discharged employees Chandler
and Smith, thereby violating Section 8 (a) (3) and (1) of the Act,
and that in impelling the Company to make these discharges, the
Respondent Unions violated Section 8 (b) (2) and (1) (A).
13 In the event that this Order is enforced by 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."
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chandler and Smith were warned to stay away from the mine by
nonsupervisory fellow employees. In one case,'the warning was de-
livered in a wash house located on Company property ; in the other, at
a private home some distance from the mine. In neither case was the
Company the instigator of the hostile action, nor were any of its
officials or supervisors present when the warnings were given.
Neither Chandler nor Smith informed the Company of the threats
to them; and neither requested protection on the job. Both simply
remained away from work for several months.
Whether the Respondent Company is responsible for the ouster of
Chandler and Smith by fellow employees turns on whether it knew of
that action and by, remaining silent acquiesced in it. The Respondent
Company denies that it knew why Chandler and Smith refrained from
reporting for work. There is no direct evidence to contradict the
Company's denial. As stated above, none of its supervisors or officials
were present when the threats were made, and Chandler and Smith
failed to report the threats. The majority, however, relies on cer-
tain circumstantial evidence to support an inference of knowledge.
We do not believe that this evidence at best does more than raise a
suspicion that the Company may have had knowledge. The burden
of proof is on the General Counsel and we do not feel that the record
presents substantial, evidence to overcome the Company' s denial.
Accordingly we would, contrary to the majority,-dismiss the 8 (a) (3)
and 8 (b) (2) allegations of the complaint.
APPENDIX A
NOTICE TO ALL EMPLOYEES IN THE VICINITY OF TILDEN, ILLINOIS
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 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 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 purposes of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities,
RANDOLPH CORPORATION 1499
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 amended
Act.
WE WILL make Charles Chandler and George W. Smith whole
for any loss of pay they may have suffered because of the discrimi-
nation against them.
All our employees are free to become, remain, or refrain from
becoming 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 amended Act.
RANDOLPH CORPORATION,
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 EMPLOYEES OF RANDOLPH CORPORATION IN THE VICINITY
OF TILDEN, ILLINOIS
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 give notice that :
WE, PROGRESSIVE MINE WORKERS OF AMERICA, INTERNATIONAL
UNION ; PROGRESSIVE AMINE WORKERS OF AMERICA, DISTRICT #1 ;
AND LOCAL UNION #13, PROGRESSIVE MINE WORKERS OF AMERICA,
WILL NOT threaten employees Of RANDOLPH CORPORATION, in the
vicinity of Tilden, Illinois, with physical harm, injury, and
reprisals if they report for work.
WE WILL NOT cause or attempt to cause RANDOLPH CORPORATION
its officers, agents, successors, or assigns, in the vicinity of Tilden,
Illinois, to discharge or otherwise discriminate against its em-
ployees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce the Com-
pany's employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain 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
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8 (a) (3) of the Act.
WE WILL make Charles Chandler. and George W. Smith whole
for any loss of pay they may have suffered because of the discrimi-
nation against them.
PROGRESSIVE MINE WORKERS OF AMERICA,
INTERNATIONAL UNION,
Labor Organization.
By
(Title)
PROGRESSIVE MINE WORKERS OF AMERICA,
DISTRICT #1,
Labor Organization.
------- -
(Title)
LOCAL UNION # 13, PROGRESSIVE MINE
WORKERS OF AMERICA,
Labor. Organization.
Dated ------------ By --------=---------------------------
(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.
INTERMEDIATE REPORT
Messrs. Glenn L. Moller and Harry.G. Carlson., for the General Counsel.
Messrs. Louis J. Portner and M. C. Young, of St. Louis, Mo., for Respondent
Company.'
Mr. G. William Horsley, of Springfield, Ill., for Respondent Unions.
STATEMENT OF THE CASE
Upon a charge duly filed by Charles Chandler and George W. Smith, individuals,
in Case No. 14-CA-119, the General Counsel of the National Labor Relations
Board, herein called the General Counsel and the Board, respectively, by the
Regional Director for the Fourteenth .Region (St, Louis, Missouri), issued his
complaint dated April 20, 1049, against Randolph Corporation, herein called
Respondent Company, alleging that Respondent Company had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor
Relations Act, as amended 61 Stat. 136, herein called the Act.
Upon a second amended charge duly filed by Charles Chandler and George W.
Smith, individuals, in Case No. 14-CB-14, the General Counsel by the aforesaid
Regional Director issued a complaint dated April 20, 1949, against Progressive
Mine Workers of America, International Union; Progressive Mine Workers of
America, District #1; and Local Union #13, Progressive Mine Workers of
RANDOLPH CORPORATION 1501
America,' herein called collectively Respondent Unions, alleging that Respondent
Unions had engaged in and were engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (b) (1) (A ) and (2 ) and Section 2 (6)
and (7) of the Act.
On April 20 , 1949, the aforesaid Regional Director issued an order pursuant to
Section 203 .33 (b) of the Rules and Regulations of the Board consolidating the
above-noted eases. Copies of the complaints , the charges , order of consolidation
and.notice of hearing thereon were duly served upon Respondent Company and
Respondent Unions.
With respect to the unfair labor practices, the complaint in Case No. 14-CA-119
alleged in substance that Respondent Company (1) on or about March 25, 1948,
discharged and thereafter refused to reinstate Charles Chandler and George W.
Smith because of their union activities in behalf of another labor organization,
'lamely United Mine Workers of America, herein called Mine Workers; and (2)
on or about March 24, 1948, caused Respondent unions to restrain and coerce
Chandler and Smith because of their activity in behalf of Mine Workers, and
threaten Chandler and Smith with bodily harm should they report for work at
the premises of Respondent Company.
In Case No . 14-CB-14, the complaint alleged in substance that Respondent
Unions ( 1) caused Respondent Company to discharge Chandler and Smith on or
about March 25, 1948, because , of 'their activity in behalf of Mine Workers ; and
,(2) on or about March 24 and 25, 1948, threatened Chandler and Smith with
bodily harm if they reported for work, on or about March 25 by force and threats
of force removed Chandler from the premises of Respondent Company, and on
or about March 26 assembled on the premises of Respondent Company to enforce
said threats if Chandler or Smith reported for work.
Respondent Company filed an answer in Case No. 14-CA-119 specifically
denying that it had discharged Chandler and Smith and generally denying the
commission of any unfair .labor practices . Respondent Unions filed an answer in
Case No. 14-CB-14 wherein they specifically denied that (1) Chandler and Smith
had been discharged ; and (2 ) Respondent Unions had caused Respondent Com-
pany to discharge the said employees . The answer generally denied the com-
mission of any unfair labor practices.
Pursuant to notice a bearing was held at St. Louis, Missouri , from May 20 to
May 23, 1949 , before the undersigned Trial Examiner , Martin S. Bennett, duly
designated by the Chief Trial Examiner. The General Counsel and Respondents
were represented by counsel and all participated in the hearing. They were
afforded full opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues . During the hearing the under-
signed denied various motions by both Respondents to dismiss the complaint on
the merits as well as on the ground that the complaint had been issued contrary
to the 6 months' proviso of Section 10 (b) of the Act. Ruling was reserved upon
other motions by both Respondents to dismiss the complaint and they are dis-
posed of hereinafter. At the conclusion of the hearing, the undersigned granted
a motion by the General Counsel to conform the pleadings to the proof with
respect to purely formal matters. The parties were then afforded an oppor-
tunity to argue orally and to file briefs and/or proposed findings of fact and con-
1 The complaint in Case No . 14-CB-14 originally listed Progressive Mine Workers,
District #7 as an additional Respondent . At the hearing the undersigned granted a motion
to dismiss the complaint as to District #7. The record ' indicates that there is no separate
entity by this name in the organization of the Progressive Mine Workers of America.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusions of law with the undersigned . Oral argument was waived and briefs
have been received from all counsel.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE . BUSINESS OF THE COMPANY
Randolph Corporation , an Illinois corporation whose principal office is located
at Coulterville , Illinois, is engaged in the operation of coal mines and in the
mining of coal . The instant proceeding is concerned solely with a mine known
as Eureka No. 2,2 located in the vicinity of Tilden, Illinois, which mine was
leased by Randolph Corporation from its owner , Forsythe Corporation , and was
operated by Respondent Company until on or about August 20 , 1948. On that
date Respondent Company withdrew its mine equipment from the mine , thereby
wrecking the mine and permanently preventing its further operation , and turned
the mine back to its owner.
During the period from July 31, 1947 to August 1, 1948, Respondent Company
purchased powder and mine supplies for use in the Eureka No. 2 mine valued
in excess of $50,000, of which approximately 10 percent was shipped to said mine
from points outside the State of Illinois . During the same period , Respondent
Company produced at the Eureka No. 2 mine coal valued at approximately $500,-
000, of which approximately 50 percent was shipped to points outside the State
of Illinois.
The company admits and the undersigned finds that Respondent Company at
all times material herein has been engaged in commerce within the meaning of
the Act!
IT. THE ORGANIZATIONS INVOLVED
Progressive Mine Workers of America, International Union, Progressive Mine
Workers of America, District #1, and Local Union #13, Progressive Mine
Workers of America are labor organizations admitting to membership employees
of Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. The issues
The issues herein are as follows : Firstly, did Respondent Company discharge
Charles Chandler and George W. Smith on or about March 25, 1948, because of
their concerted activities in behalf of Mine Workers, and at the instigation of
Respondent Unions ; secondly, did Respondent Company cause Respondent Unions
to restrain and coerce Chandler and Smith because of their concerted activities ;
and thirdly, did Respondent Unions restrain and coerce Chandler, Smith, and the
employees of Respondent Company in the exercise of the rights guaranteed by
Section 7 of the Act.
3 Also appearing in the record as Ureka No. 2.
3 As stated above, the mine was closed down on August 20, 1948, and it will not be oper-
ated again because of the wreckage caused by the removal of Respondent Company's
materials, Respondent Company is still in existence, although the record does not disclose
the specific nature of its present mining operations.
RANDOLPH CORPORATION 1503
2. Structure of Respondent Company and Respondent Unions
As stated above, Eureka No. 2 mine was operated by Respondent Company
until August 20, 1948, when it was closed down permanently. During the period
of its operation, James Oliver was general superintendent and mine manager
and Rudy Voitas was Oliver's chief assistant or "top boss." Respondent Com-
pany concedes and the undersigned finds that both were supervisory employees
within the meaning of the Act at all times material herein.
In order to follow the events herein, an analysis of the structure of Respondent
Unions will be helpful. The mine was operated under a contract between the
Coal Producers' Association of Illinois and Progressive Mine Workers of America,
District #1. - Progressive Mine Workers of America, International Union, is,
as its name indicates, an international union. It is divided into a number of
districts, the largest being District #1, which includes 85 to 90 percent of the
total membership of the International. This had led to the result, although it
is not clear whether by policy or by express provision of the International con-
stitution, that election to the offices of president, vice president, and secretary-
treasurer of District #1 constitutes automatic election to those same offices in
the International Union; the salaries of these office holders are paid, however,
by District #1. Thus, during the period material herein, John McCann, Dan
McGill, and Frank Lonzerotti, respectively, occupied those positions both in
District #1 and in the International.
The constitution of District #1 provides that the above-named officials
"together with the Board members shall compose the District Executive Board.",
The terns Board member refers to the individual who has been elected to the
District Executive Board as Board member from a "Board Member District."
District #1 is subdivided into a number of Board Member Districts, each of
which embraces a specific geographical area and one or more local unions. Thus,
Earl Galli, at the time material herein, was the elected representative of Board
Member District #7, and in that capacity was a member of the Executive Board
of District #1. However, as noted heretofore, there is no separate organization
or entity known as District #7.
At the foot of the organizational structure are the local unions composing
District #1, of which only Local Union #13 is directly involved in this proceeding.
Its officials were President Alfred Todd and Financial Secretary J. D. Delaney.
Local #13 also had an elected Pit Committee of three members who are included
among its officers, according to the bylaws. Their duties include the adjust-
ment of disputes between members of the Local and the Pit Boss upon request of
either the member or the Pit Boss. The bylaws indicate, however, that the
Pit Committee is to function only after the individual employee has first at-
tempted to adjust the grievance. The Pit Committee of Local #13 consisted of
James Owens, Russell Ramsey and Charles Chandler who, as noted above, is
a charging party in this proceeding.
3. Sequence of events
Contractual relations have existed for some years between District #1 and
the Coal Producers' Association of Illinois of which Respondent Company was
a member. On August 8, 1947, they entered into a contract recognizing District
#1 as bargaining representative which stated that it would be effective July 1,
1947, through June 30, 1948. The record indicates that in December of 1947
some sentiment in favor of a change to Mine Workers as their bargaining repre-
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative developed among the employees of Respondent Company. Several
days later President Todd of Local #13 called a meeting which was attended
by various officials of District # 1. President McCann of District #1 and the
International addressed the employees on this occasion and advised them that
they could not change their bargaining representative in midterm of a contract.
The record also indicates that George Smith spoke in favor of Mine Workers
at this meeting . The sentiment in favor of Mine Workers died down thereafter
but returned in February of 1948 at which time various individuals urged a
change of bargaining representatives at the close of the contract term on June
30, 1948. Chandler and Smith , among others , were active in the pro-Mine
Workers group. -
Shortly before March 24, the pro-Mine Workers group in the mine decided to
send a delegation to call on the Mine Workers representative in the nearby town
of DuQuoin , and Chandler and Smith were selected as emissaries.
a. March 24
On the morning of March 24, 1948, Chandler and Smith reported for work and
checked in at the usual hour. Some minutes later each separately informed
Mine Manager James Oliver that he would not work that day because of indis-
position and left the mine. Both men proceeded instead to DuQuoin where they
met with a Mine Workers representative. That this was the purpose for which
they left the mine was common knowledge throughout the mine; it apparently
,provoked considerable discussion and concern among the men and also disturbed
Mine Manager Oliver. Oliver, who had been troubled by previous work stop-
pages and was aware of the division of sentiment concerning the two labor
organizations, spoke to President Todd of Local #13 after Chandler and Smith
left that morning. Oliver expressed his concern over the departure of the men
and asked Todd if he could explain their absence. He informed Todd that he
feared Respondent Company might encounter some difficulty with Mine Workers
as a result of their departure. Todd informed Oliver that the men had the right
to leave according to the clause of their contract which required them to work
only when "willing and able" and stated that he would inform Oliver of whatever
he discovered.
Later in the afternoon of March 24 and after the day shift had ended, Presi-
dent Todd spoke to Chandler in front of the latter's home. He stated, according
to Chandler, "I'm atelling (sic) you as a friend not to come out to work in the
morning. You fellows are stirring up a hornet's nest, there will be trouble out
there; guns, knives and blackjacks . . . I don't know what all . . . I
wouldn't go out." Chandler replied that he would report for work at the
customary time.
. Approximately 1 hour later Todd also met Smith and made, in essence, the
same statement that he had made to Chandler ; he stated, according to Smith,
"Smithy, you have stirred up a hornet's nest, you and Chandler . . . There'll
be guns, knives, blackjacks and pistols. . . . . and I am telling you, if I was
you I wouldn't go over there." Smith did not reply to Todd .4
4 The findings herein are based upon credited testimony of Chandler and Smith who im-
pressed the undersigned as honest witnesses . Todd who was a shifty witness , admitted
speaking to Chandler but alleged that he had told Chandler only that there was ". . . a lot
of trouble at the mine, and it would be better, I thought it would be better if he would
stay away for a few days [until] the thing cooled off." Todd's version of the incident is
rejected.
. RANDOLPH CORPORATION 1505
That afternoon and evening there was considerable concern in several quarters
as to what might occur the following day at the mine. Thus, "top boss" Rudy
Voitas visited Chief Deputy Sheriff Charles Adams in nearby Sparta. He in-
formed Adams that the men were to vote on the following morning for a union,
that it made no difference to Respondent Company which union represented the
employees, that trouble was expected, and that he wished to alert the police.
Adams advised Voitas to call his office in the morning if any trouble materialized.
There was, however, no further contact of the police by any management repre-
sentative.5
Later that evening Pit Committee Member Ramsey telephoned Earl Galli who,
as set forth above, was a member of the Executive Board of District #1 and
handled affairs in the territory which included Local Union #13. He informed
Gall! that Smith and Chandler had visited a Mine Workers representative that
day. As a result, Galli drove to the Tilden area that evening and conferred with
Ramsey and James Owens. He visited the mine when the night shift ended at
11: 30 p. in. and informed a number of those on the shift of what had taken
place. Galli also informed the men on the night shift that those who desired to
could appear at the mine in the morning.
b. March 25
Chandler, as he had informed President Todd, appeared at the mine premises
on the morning of March 25 at approximately 6: 20 a. m. Smith, however, had
'decided late on the evening of March 24, to attend a memorial service being held
for miners who had lost their lives in a mine [Centralia] disaster and did not
report to the mine on March 25.
When Chandler entered the mine property he discovered that District #1 Board
Member Galli was on the premises and awaiting his arrival. Also present were
Harry Lemler, president of Local Union #4, who had been requested by Galli to
accompany him ; Vice-President Dan McGill of District #1 and the International ;
and Pit Committee Members Russel Ramsey and James Owens. Various other
employees, including Edward Jones, George Gass and Madison Tidwell, were
either present on the scene at the time or appeared some minutes thereafter
The record also indicates that Oliver saw Galli at the mine that morning, greeted
him, was introduced to. the men in the group, and then continued about his busi-
ness. He apparently was not on the scene when Chandler appeared.
Chandler entered the premises and started to pass by the group which in-
cluded Gall! whereupon the latter instructed him to stop. Galli then informed
Chandler that he desired to have a talk with him and Smith. The group, con-
sisting of Galli, Ramsey, Owens, Lemler and an unidentified person, stood about
Chandler.? The group apparently waited a short period for Smith to report to
work, but when Smith did not appear Galli asked Chandler if he had gone to
DuQuoin. Chandler admitted that he had done so for the purpose of ascertaining
how the meu would go about transferring their affiliation to Mine Workers. Galli
told Chandler that he had "no business" in so doing, and when Chandler revealed
5 The credited and uncontroverted testimony of Adams . Voltas did not testify.
O Various witnesses erroneously identified President McCann and Vice-President Lon-
zerptti of District #1 and the International as being present at the mine on the morning
of;farch 25. It was stipulated at the hearing that McCann was not present on March 25
aid, according to the testimony of Lonzerotti which the undersigned credits, he and McCann
appeared at the mine on the following day, March 26, but not on March 25.
7 Chandler erroneously included Lonzerotti in. the group . As noted above , Lonzerotti
was not present that day.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he intended to make a report to the men, Galli informed him that he could
not make any report "out here" to the men, but that he could come to the union
hall to do so. Galli, in addition, apparently stressed the fact that Chandler's
conduct was further reprehensible because Chandler was a member of the Pit
Committee.
At this point, the unidentified individual in the group, whose identity was at
no time disclosed by the record, stated, according to Chandler, "They (apparently
referring to both Chandler and Smith) onghta have their damned guts-kicked
out and their clothes all kicked off of them and throw them in the pond., That's
the way we do 'em where I come from." At this point, Local #4 President Lemler
intervened and said, "That's too cruel." a
By this time 'it was '6: 55 a. m. and the shift was about to start. Chandler
decided to go to work, informed the group of his intention, and entered the wash
house to change into his work clothes. After Chandler had-made the change,
Owens and Ramsey, his fellow Pit Committee members, entered the wash house
and stated that he could "just as well" change back to his street clothes because
he "wasn't going to work there ; that the men wouldn't work with" him and Smith
Chandler changed back to his street clothes and Owens and Ramsey asked him
whether he would accompany them to Smith's home because they wished to speak
'to them together. Chandler agreed to make the trip.
The group left the wash house and there was some discussion as to whose
automobile would be used for, the trip. Board Member Galli was not willing- to
permit the use of his car and the only other was a coupe which belonged -to
Owens. Ramsay stated that he would obtain a car and went over to Rudy
Voitas, the "top boss", who was apparently some distance away ; Ramsey returned
and announced that he had obtained the loan of V'oitas' car.10
Ramsey drove the automobile to Smith's home, taking with him as passengers,
Chandler, Owens and various employees who were on the scene, namely, Gass,
Tidwell and Jones. The record discloses that Jones was asked to attend by
Ramsey and Tidwell was apparently invited to go along by either Ramsey or
Owens. It is significant that Galli was aware that the group was proceeding to
Smith's home and that he knew their purpose. He testified that Ramsey in-
formed him of their destination; that he asked Ramsey the purpose of the trip;
that Ramsey replied he wanted Smith to stay away from the mine for a few
days lest he provoke a wildcat strike; and that Galli replied "0. K."
Before leaving for Smith's home, arrangements were made by the group to
meet the International and District officers at a local tavern known as the Red
Horse Ranch where the officials had indicated they would proceed to eat break-
8 Findings concerning the foregoing incidents at the mine on the morning of March, 25
are based upon the credited testimony of Chandler. The various witnesses for Respondent
Unions and particularly Galli and McGill denied that anyone said anything about stripping
Chandler of his clothes and throwing him in the pond. Their testimony was evasive and
forced on cross-examdnation and is not credited. The testimony of Ramsey and Gass, is
also not accepted. According to Ramsey and Gass, Chandler agreed to stay away from the
mine for a few days, but this is deemed inconsistent with the fact, as appears below, that
Chandler then proceeded to the wash house to change into his work clothes. The testimony
of Gass as well as that of Tidwell indicates further that they did not appear on the scene
until a later stage of the proceedings.
0 This finding is based upon the credited testimony of Chandler . The undersigned rejects
the testimony of Owens that on this occasion he asked Chandler not to report to work
for a few days until things quieted down.
30 The record reveals that Ramsey had borrowed Voitas ' automobile on other occasions.
According to Ramsey , he merely informed Voitas on this occasion that he desired to use
the automobile to drive to Smith ' s home.
.RANDOLPH CORPORATION 1507
fast. Galli, after discussing the trip to Smith's house with Ramsey, as set forth
above, told the group, as he testified, to "stop at the Red Horse Ranch for break-
fast, that we would have breakfast there." This is corroborated by the testimony
of Ramsey who admitted that the District and International officials had informed
the group they would eat breakfast at the Red Horse Ranch.
When the group arrived at Smith's home, Ramsey and Chandler went to the
door, informed Smith that the men wished to speak with him, and Smith accom-
panied them to the automobile. Pit Committee members Owens. and Ramsey
did all the talking for the group save for one statement by Tidwell, appearing
below. Owens told Smith, according to Chandler, that he had created trouble
ever since he had been employed at the mine; to "get your clothes and get away
from that mine" ; that "we're not going to work with you any more" ; and "there
will be trouble if you come over there." Either Owens or Ramsey or both then
made the statement that the Local Union was behind them and Ramsey stated
that he had received his orders from "the District."" Tidwell spoke up at this
point and said that the mine was a Progressive mine and would remain such "if
it takes bloodshed to do it." 12
The group then departed, leaving Smith behind, and dropped Chandler off en
route in the vicinity of his home. They proceeded to the Red Horse Ranch ac-
cording to the instructions given them by Galli, and upon entering the five men
found Galli and McGill there.
There is also a conflict as to what conversation took place at the tavern.
According to Jones, after his recollection was refreshed by his prior affidavit,
Galli asked the Pit Committee if they had seen Smith, and the Committee (Owens
and Ramsey) informed Galli that they had seen Chandler and Smith and had
told Smith to get his clothes and stay away from the mine. Galli replied that he
"believed they had done the right thing." The others in the group testified that
the report was that Smith had only been told to stay away for a few days or until
things were cleared up. It is clear, however, that when the group entered Galli
asked them how they had made out; that the Committee informed Galli they had
instructed Smith to stay away from the mine for at least a period of time ; and
that Galli, according to his testimony as well as that of Owens and Jones, orally
approved their conduct.
Thus, Owens testified that Galli stated, after the report had been made, that
they had "done a good job in holding down trouble at the mine." Even Galli
testified that the report made to him was that Smith had agreed to stay away
from work for a period of time and that he, Galli, had replied that was "0. K."
"There was some conflict as to whether these statements concerning who was behind
the group were made by Owens or Ramsey and also as to whether sponsorship was
attributed to the District or the Local. It is found, however, that Owens or Ramsey, or
both, were the speakers, and in any event, as found below, their appearance was made in
their representative capacity with the Local ; in addition their appearance was authorized
and ratified by the District and International officials. It is thus immaterial to whom
Owens and Ramsey orally attributed sponsorship of their appearance at Smith's home.
12 Findings as to the incident at Smith's home are based upon the credited testimony
of Chandler and Smith which is in substantial agreement . Tidwell , Owens, and Ramsey
claimed that they merely told Smith in Chandler's presence to stay away from the mine
for a few days. Jones at first corroborated their testimony but, after his recollection
was refreshed by a prior affidavit he had signed, he supported Chandler's version of the
incident, as set forth above. The testimony of Gass substantially supported that of
Chandler. Ramsey's recollection was also refreshed by his prior affidavit and he admitted
that he told Smith not to come back to the mine. Finally, according to President Todd
of Local 13, Owens reported to him later that day that the group had visited Smith ;
that Smith and Chandler "were thrown out" ; and that there would be no further trouble
with them.
889227-51-vol. 89-96
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is found that Galli on this occasion ratified the conduct of the group at Smith's
home, inasmuch as he had advance knowledge of their purpose in calling on Smith
and thereafter approved their activity which was within the general scope of
their authority on this occasion.
Late that day, Owens and Ramsey called on Oliver and reported that they had
visited Chandler and Smith ; that Chandler and Smith had been attempting to
turn the mine over to Mine Workers; and that they would not be at work for a
few days. Oliver reminded them that the Company had a contract with Re-
spondent Unions and expressed the hope that everything was in order so that the
mine could continue to operate. According to Ramsey, he also informed Oliver
that Smith and Chandler would not return until their cases were disposed of.
C. Subsequent events
Chandler did not report for work again ; he went to the mine on two other
occasions, once to receive his pay check and on another occasion, approximately
1 month later, to pick up his working clothes. He apparently did not converse
on either occasion with any of Respondent Company's supervisory officials about
returning to work and at no other time did he attempt to communicate with
them.
Smith did not report for work again at the mine. In fact, he did not com-
municate with any supervisory officials of Respondent Company until over 3
months later, on June 30, when he went to the mine, which was closed down
that day, to collect a check covering his vacation pay. After receiving the
check, he went over to Oliver and asked if he had been discharged. Either at
this point or later in the conversation, he exhibited to Oliver a letter he had
received from the Regional Office of the Board concerning his case. Oliver
asked Smith why he had not been working and Smith pointed to Ramsey who
was nearby and suggested that Oliver make the inquiry of Ramsey.
According to the credited testimony of Oliver, Smith was never removed from
the payroll and continued to have a job at the mine insofar as Respondent
Company was concerned.
B. Conclusions
1. The 8 (a) (3) and 8 (a) (1)
The complaint in Case No. 14-CA-119 alleges that Respondent Company dis-
criminated with respect to the hire and tenure of employment of Chandler and
Smith ; caused Respondent Unions to restrain and coerce Chandler and Smith;
and caused Respondent Unions to threaten them with bodily harm if they
reported for work.
Firstly, there is no evidence whatsoever to indicate that Respondent Company
terminated the employment of these two men by discharge or otherwise. - In
fact, Mine Manager Oliver' testified that Smith had never been taken off the
payroll and that he had a position there insofar as Respondent Company was
concerned; presumably, and. there is nothing to indicate the contrary, the same
was also true of Chandler.
Secondly, the record will not support a finding that Respondent Company
caused Respondent Unions to restrain and coerce Chandler and Smith. Oliver
was obviously interested in keeping the mine in operation and had suffered
previous difficulty with wildcat strikes. Under the circumstances, an inference
adverse to Respondent is not justified from the fact that Oliver advised Local
President Todd, on March 24, that two men had left the" mine that morning.
RANDOLPH CORPORATION 1509
The undersigned regards similarly the report to Oliver by Owens and Ramsey
on the afternoon of March 25 of what they had allegedly told Smith that clay ;
the .record indicates that it was customary for Ramsey to talk over grievances
and problems with Oliver each day. It may well be that Oliver preferred
Respondent Unions to Mine Workers as a collective bargaining representative,
but that is insufficient to support a finding that Respondent Company caused
Respondent Unions (presumably as its agents) to restrain and coerce Chandler
and Smith.
Accordingly, the undersigned will recommend that the complaint in Case No.
14-CA-119 be dismissed in its entirety.
2. The 8 (b) (2)
The alleged violation of Section 8 (b) (2) in Case No. 14-CB-14 is based upon
the allegation of the complaint that Respondent Unions "did cause the Company
to discharge its employees, Charles Chandler and George W. Smith, on or about
March 25, 1948." It has been found above that Respondent Company did not
discharge the two men and did not discriminate against them in violation of
Section 8 (a) (3) of the Act. Nor for that matter is there substantial evidence
that Respondent Unions, within the language of Section 8 (b) (2), did "attempt
to cause" Respondent Company to discriminate against Chandler and Smith.
Accordingly, the undersigned will recommend the dismissal of this allegation of
the complaint in Case No. 14-CB-14.
3. The 8 (b) (1) (A)
The undersigned is of the belief and finds that certain conduct engaged in by
Respondent Unions and their agents constituted restraint and coercion of the
employees of Respondent Company in the exercise of the rights guaranteed by
Section 7 of the Act." In making the above finding, the undersigned relies upon
the following :
(1) The separate warnings to Smith and Chandler by President Todd of
Local Union #13 on March 24, 1948, as set forth above in detail, to stay away
from the mine. As Todd was an elected official of the Local and in fact its
titular head, it' is found that Todd, in uttering the threats of physical injury,
acted within the scope of his authority as president of Local Union #13, thereby
rendering Local Union #13 liable therefor. Smith Cabinet Manufacturing Com-
pany, Inc., (United Furniture Workers), 81 NLRB 886; Cory Corporation, 84
NLRB 972.
(2) Threats to Smith and Chandler at the home of Smith on March 25, as
set forth above, by Pit Committee Members Owens and Ramsey. As Owens and
Ramsey were officials of the Local with responsible functions in grievance pro-
ceedings, it is found that they, as was the case with President Todd, were agents
for Local Union #13, acted on this occasion within the scope of their authority,
and rendered Local Union #13 responsible therefor. Tidwell, although a rAnk-
and-file employee was "invited" by Owens and Ramsey to accompany them on
this mission. He uttered a threat to Smith and Chandler in the presence of
Owens and Ramsey and they did not disavow his statement. Under the circum-
stances, it is found that they ratified the conduct of Tidwell, thereby rendering
is It will be recalled that Smith and Chandler had been active on March 24, 1948, for a
change of bargaining representative at the conclusion of the contract with Respondent
Unions on June 30, 1949. This was an appropriate time for such activity. Louis Meier
Company, 73 NLRB 520. Cf. Southwestern Portland Cement Co., 65 NLRB 1.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union #13 responsible therefor. Smith Cabinet Co., Inc., (United Fe.rni-
twre Workers), supra, and Cory Corporation, supra.
It is further found that District #1 is also responsible for the conduct of
Owens, Ramsey, and Tidwell on this occasion. Board Member Galli was in-
formed in advance of the nature of their errand and approved it. Furthermore,
after they reported to him that their mission was accomplished, he indicated
his approval. Under the circumstances, it is found that Galli, within the scope
of his general authority as Board Member of District #1, authorized the group
to act as agents for District #1 and thereafter ratified their conduct. Whether
the group informed Smith and Chandler that they had been sent by the District
or the Local or both is not material. The controlling factor is that the District
Board member did authorize and ratify their conduct on this occasion and acted
within the general scope of his authority to handle all matters affecting the
District within this geographical area.
Finally, the record reveals that Owens was paid by District #1 for the loss
of wages on March 25. He admitted that Galli gave him a check for the amount
but contended that it was a check issued by Local #13. The financial Secretary of
the Local, J. D. Delaney, who signed all checks for the Local, testified, however,
that he never prepared a check for Owens covering this day's work. Further-
more, Owens' fellow committee member, Ramsey, testified that he was paid for
his loss of wages on this occasion by the District. It is found that both Owens
and Ramsey were reimbursed for their time spent at Smith's home on March 25
by the District, thus further demonstrating ratification of their conduct on this
occasion.
With respect to the International, Vice President Dan McGill was instructed
to appear at the mine on March 25. It is found that he did so in his official ca-
pacity. Although he testified, in effect, that he did not hear the conversation
between Galli and the group before they left for Smith's home and that he was
not aware they proposed to call upon Smith, be admitted that he and Galli were
together in the Red Horse Ranch when the group reported that they had accom-
plished their mission. At no time did he indicate any disavowal of their errand.
Under the circumstances, the undersigned does not credit his testimony that he
was not aware of the nature of their mission before they left. It is further
found that when the group later reported to him and Galli at the tavern, McGill
ratified and approved their conduct within the scope of his authority as president
of the International, thereby rendering the International liable therefor.
The undersigned does not find the conversations of Galli, Owens and Ramsey
with Chandler at the mine on March 25 to have been of a coercive nature. The
threat to strip Chandler of his clothes and throw him in the pond was uttered by
an individual in the group whose identity Chandler did not know and the record
at no place discloses, and in any event President Lemler of Local #4, who was
present at the invitation of Board Member Galli, in effect immediately dis-
avowed this statement. The record also does not warrant a finding that Owens
and Ramsey by force and threats of force, as alleged in the complaint, removed
Chandler from the mine premises on March 25, 1948. Owens and Ramsey asked
Chandler to accompany them to the home of Smith so that the cases of both might
be taken up at the same time, and Chandler accepted.
Finally, there is no substantial evidence in support of the allegation of the
complaint that Respondent Unions by their agents and representatives assem-
bled at the mine on March 26 to enforce their prior threats should either Smith
or Chandler report for work. The record indicates only that responsible officials
RANDOLPH CORPORATION 1511
of Respondent Unions were on the scene on March 26. This does not warrant
a finding that they assembled to enforce threats against Chandler or Smith.
Accordingly, the undersigned will recommend the dismissal of this allegation of
the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Unions, set forth in Section III, above, occurring
in connection with the operations of Respondent Company, described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
inerce among the several States, and such of them as have been found to be un-
fair labor practices tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that each of Respondent Unions has engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act, and the under-
signed will recommend that they cease. and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act. The General
Counsel originally requested that both Respondent Company and Respondent
Unions make Smith and Chandler whole for the loss of pay suffered from March
25 to August 20, 1948, the day Respondent Company closed down the Eureka
No. 2 mine. As the undersigned has already recommended the dismissal of the
complaint against Respondent Company in Case No. 14-CA-119, the General
Counsel's request is considered solely as applying to Respondent Unions.
In Colonial Hardwood Flooring Company, Inc., 84 N. L. R. B. 563 the issue
arose whether or not to grant back pay to nonstriking employees who were found
to have been restrained and coerced in a strike situation by various labor or-
ganizations. In that case, solely a proceeding against the labor organizations,
there was as here no discrimination against the employees by the employer. The
Board there held that under the amended Act the only instance where back pay
may be required of a labor organization is where it is responsible for or instru-
mental in the discrimination against an employee. A fortiori, the Board's hold-
ing in the Colonial Hardwood case would apply to the instant proceeding where
there is neither discrimination nor picket line violence. Accordingly, the under-
signed will recommend the denial of the request for back pay.
The record indicates that Respondent Company, which leased Eureka Mine
No. 2 from its owner, will never operate it again. The operation was abandoned
on August 20, 1948, and Respondent Company removed its mining equipment,
thereby wrecking the mine and permanently preventing its operation in the
future by Respondent Company or anyone else. The record does not reveal what
other mining operations Respondent Company may be engaged in in the vicinity
of Tilden, Illinois, the site of the Eureka No. 2 Mine. Although it is apparent
that no remedy may be fashioned with respect to the employees of Eureka No. 2
mine, the undersigned deems it advisable in order to effectuate the policies of the
Act to order Respondent Unions and their agents to cease and desist from engag-
ing in the conduct found to he violative of the Act at any mine Respondent
Company may be operating in and about Tilden, Illinois.
This recommendation is based upon the fact, as disclosed by the record, that
Respondent Unions attempted to further harass Chandler and Smith in obtaining
employment at other mines. Thus, Board Member Galli, shortly after March 25,
instructed Pit Committee Member Ramsey not to issue any transfer cards to
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith or Chandler, although both were then in good standing with Local Union
#13. Although, of course, such mines that may deny employment to Smith and
Chandler because of the lack of such transfer cards, may themselves be guilty
of commission of an unfair labor practice, thereby offering Smith and Chandler
redress for any losses to be suffered, on the other hand, the conduct of Respond-
ent Unions does demonstrate the likelihood of further attempts by them to restrain
or coerce the employees of. Respondent Company."
Upon the above findings of fact and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Randolph Corporation, an Illinois corporation, was at all times material
herein engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
2. Progressive Mine Workers of America, International Union; Progressive
Mine Workers of America, District #1; and Local Union #13, Progressive Mine
Workers of America, are labor organizations within the meaning of Section 2 (5)
of the Act.
3. By restraining and coercing employees of Randolph Corporation in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondent Unions, Pro-
gressive Mine Workers of America, International Union.; Progressive Mine Work-
ers of America; District" #1; and Local Union #13, Progressive Mine Workers
of America , have engaged in and are engaging in unfair labor practices within
the meaning of Sections 8 (b) (1) (A) of the At.
4. The aforesaid unfair labor practices are unfair labor practices, affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent Company, Randolph Corporation, has not engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
6. Respondent Unions have not engaged in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that Progressive Mine
Workers of America, International Union; Progressive Mine Workers of Amer-
ica, District #1; and Local Union #13, Progressive Mine Workers of America,
their officers and agents, shall :
1. Cease and desist from :
(a) Threatening employees of Randolph Corporation in the vicinity of Tilden,
Illinois, with physical harm, injury and reprisals if they report for work at
the premises of Respondent Company ;
(b) In any other manner restraining or coercing employees. of Randolph Cor-
poration in the. vicinity of Tilden, Illinois, in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain 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 protec-
is This recommended remedy is restricted solely to the present operations of Randolph
Corporation in the vicinity of Tilden , Illinois , which is the closest identification of the
mine site in the record . The case does not warrant a finding that this was a part of
Respondent Unions ' strategy throughout the, operations of Respondent Company. Cf.
N. L. R. B. v. Ford Motor Company , 119 F. 2d 326 (C. A. 5).
RAIVDOLPH CORPORATION. 1513
tion, and to refrain from any or all such activities as guaranteed to them by
Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act, as amended :
(a) Post in conspicuous places at the business offices of Progressive Mine
Workers of America, International Union ; Progressive Mine Workers of America,
District #1; and Local Union #13, Progressive Mine Workers of America, includ-
ing all places where notices or communications to members are customarily
posted, copies of the notice attached hereto and marked Appendix A. Copies of
said notice, to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by an official representative of each Respondent
Union, be posted by Respondent Unions immediately upon receipt thereof and
maintained by them for a period of sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by Respondent Unions to insure that said notices
are not altered, defaced, or covered by any other material;
(b) Furnish to the Regional Director for the Fourteenth Region signed copies
of the notice attached hereto as Appendix A for posting, if Respondent Company
is presently conducting mining operations in the vicinity of Tilden, Illinois, and
is willing, on the bulletin boards of Randolph Corporation where notices to em-
ployees are customarily posted. The notices shall be posted on the Company's
bulletin boards and maintained thereon for a period of sixty (60) consecutive
days thereafter. Copies of said notice, to be furnished by the Regional Director
for the fourteenth Region,. shall,after being duly signed- by Respondent- Unions,-
as provided in Paragraph 2 (a) of this Order, be forthwith returned to the
Regional Director for such posting;
(c) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of this order what steps Respondent Unions have
taken to comply herewith.
It is further recommended that the complaint in Case No. 14-CA-119 be dis-
missed in its entirety and that the complaint in Case No. 14-CB-14 be dismissed
insofar as it alleges that Respondent Unions did cause Respondent Company to
discharge employees within the meaning of Section 8 (b) (2) of the Act.
It is further recommended that unless Respondent Unions shall, within twenty
(20) days from receipt of this Intermediate Report, notify said Regional Director
in writing that they will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring Respondent Unions to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from file date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington 25, D. C., an original and six copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report. Immediately upon the filing of
such statement of exceptions and/or briefs, the party filing the same shall serve
a copy thereof upon each of the other parties. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.85. As further provided in said Section 203.46, should any party
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 29th day of July 1949.
MARTIN S. BENNETT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES OF RANDOLPH CORPORATION IN THE VICINITY OF
TILDEN, ILLINOIS
Pursuant to the, recommendations of a Trial Examiner of the National Labor
Relations Board, and in order, to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE, PROGRESSIVE MINE WORKERS OF AMERICA, INTERNATIONAL UNION ;
PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT #1; AND LOCAL UNION
#13, PROGRESSIVE MINE WORKERS OF AMERICA, WILL NOT threaten employees
of Randolph Corporation, in the vicinity of Tilden, Illinois, with physical
harm, injury, and reprisals if they report for work, and
WE WILL NOT in any other manner restrain or coerce the Company's
employees in the exercise of their right to self-organization, to form, join,
or assist labor organizations, to bargain 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 as guaranteed to them by Section
7 of the Act.
PROGRESSIVE MINE WORKERS OF AMERICA, INTERNATIONAL UNION,
Labor Organization.
By -------------------------- - I-----------------------------------
(Title )
PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT #1,
Labor Organization.
By --------------------------------------------------------------
(Title )
LOCAL UNION #13, PROGRESSIVE MINE WORKERS OF AMERICA,
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.