The International Nickle Co., Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1948

77 N.L.R.B. 286 (N.L.R.B. 1948)

In the Matter of THE INTERNATIONAL NICKEL COMPANY, INC., and
DISTRICT 50, UNITED MINE WORKERS OF AMERICA, A. F. OF L.
Case No. 9-C-2236.-Decided April 23, 1948
Mr. Allen Sinsheimer, Jr., of Cincinnati, Ohio, for the Board.
Sullivan & Cromwell, by Mr. Charles S. Hamilton, Jr., and Mr.
Roy L. Steinheimer, of New York City, for the respondent.
Messrs. M. E. Boiarsky and T. C. Townsend, of Charleston, W. Va.,
for the Union.
DECISION
AND
ORDER
On January 23, 1947, Trial Examiner Horace S. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had not violated Section 8 (1) or (3) of the Act,2 as
alleged in the complaint, and recommending that the complaint against
the respondent be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, counsel for
the Board and the Union filed exceptions to the Intermediate Report
and supporting briefs, and the respondent filed a brief concurring
in the Intermediate Report. Both counsel for the Board and the
Union have requested oral argument. Because the record and the
briefs, in our opinion, adequately present the issues and the positions
of the parties, the requests for oral argument are hereby denied.
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 Intermedi-
ate Report, the exceptions and briefs filed by counsel for the Board
and the Union, the brief filed by the respondent, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
1 The power of the Board to issue a Decision and Order in a case such as this where the
charging union has not complied with the filing requirements specified in Section 9 (f), (g),
and (h ) of the National Labor Relations Act, as amended , was decided by the Board in
Matter of Marshall and Bruce Company, 75 N. L. R B 90.
2 The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act are con-
tinued in Section 8 (a) (1) and 8 ( a) (3) of the Act, as amended by the Labor Manage-
ment Relations Act, 1947.
77 N. L. R. B., No. 39.
286
THE INTERNATIONAL NICKEL COMPANY, INC. 287
mendations of the Trial Examiner, to the extent consistent with this
opinion.
The question before us is whether the respondent acted lawfully
in discharging Johnson and Keefer after the strike because of their
conduct while it was in progress. This depends upon whether their
concerted activities were of such a character as to be protected by the
Act. No question is before the Board as to whether their conduct was
itself unlawful so as to expose them or the Union to liability under
Section 8 (b) (1) of the amended Act.
The Trial Examiner found, and we agree, that the strikers, by
their picket activities, unlawfully "barred access to the plant to the
respondent's supervisory and other employees, and effectively deprived
the respondent of the use of its plant." The picketing activity, as
detailed in the Intermediate Report, is summarized as follows : At the
beginning of the strike on the evening of November 19, 1945, between
50 and 100 pickets assembled in small groups near each of the plant's
two entrances or gates. When the supervisors, who were scheduled
to report for duty at the changes of shift at midnight on November 19
and the following morning, approached the gates to enter the plant,
they were advised individually or collectively by striker Keefer, whose
discharge is discussed below, or some other picket, that no one
was being permitted to enter the plant except Brown and Clappier,
the respondent's general manager and production manager. The
supervisors who were on duty in the plant when the strike got under
way were told by picket Johnson, whose discharge is also discussed
below, that they would not "be able to get back" if they went out.
There is also credible testimony that, as the supervisors approached
the gates on several occasions during the strike, the pickets stationed
themselves so as physically to block the entrance. In these circum-
stances, the supervisory personnel did not attempt to enter the plant
until the picketing was enjoined on December 2, 1946, by action of a
State court.
In excepting to the Trial Examiner's finding, counsel for the
Board and the Union contend in effect that, because the men engaged
in no overt acts of violence, their activity on the picket line must be
protected as "free speech." We find no merit in this contention. The
activity that prevented the supervisors from entering the plant, viewed
in its entirety, convinces us that Johnson and Keefer, among others,
actually barred the supervisors from the plant by an implied threat
of violence. The supervisors were faced with a clear and present
danger of bodily harm if they had elected to enter the plant; in our
opinion, only their forbearance prevented actual violence. This con-
288 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
duct went beyond peaceful persuasion and constituted concerted ac-
tivity which Ave think unprotected by the Act.3
The Trial Examiner found, and we agree, that the respondent's
discharge of Johnson and Keefer was not violative of the Act. Our
finding, unlike that of the Trial Examiner,4 is based on the ground
that, as Johnson and Keefer themselves forbade supervisors to enter
or reenter the plant and otherwise personally participated in picketing
activity which we have found to be unprotected, their discharges were
not violations of the Act and their reinstatement should not be di-
rected.5
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 the complaint herein against The
International Nickel Company, Inc., Huntington , West Virginia, be,
and it hereby is, dismissed.
MEI1BEIIS HoUs,roN and MURDOCK took no part in the consideration
of the above Decision and Order.
INTERMEDIATE REPORT
AIr Allen Sinshetnier ,.fr , for the Board
Messrs Al. E Boiarsky and T. C Townsend of Charleston , W Va, for the Union.
Sullivan and Cromwell , by Messrs Ohm les S . Hamilton , Jr, and Roy L . Stet i-
heimer , of New York , N. Y, for the respondent.
STATEMENT OF THE CASE
Upon a charge filed on August 27, 1946, by District 50, United Mine Workers of
America, A F. of L, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Ninth Region (Cin-
cinnati, Ohio), issued a complaint dated August 28, 1946, against the International
Nickel Company, Inc, herein called the respondent, alleging that the respondent
had engaged in and wa, engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (i) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat 449, herein called the Act
With respect to the unfair labor practices the complaint alleged that on or
about December 4, 1945, the respondent discharged James Johnson and A. O.
Keefer, and since then has failed and refused to reinstate them, because of their
3 Cf Milk Wagon Drivers Union of Chicago , Local 373 v Meadowmoor Dairies, Inc, 312
U S. 287 , 293, N L. R . B v. Perfect Circle Company, 162 F. ( 2d) 566 (C C A. 7)
' We find it unnecessary to pass on the Trial Examiner ' s finding that Johnson and
Keefer ( who were officers of the local union ) " inspired and determined the manner in which
the strike as a whole , including the picketing , was conducted ," and that the "respondent
discharged them because of the manner in which they conducted the strike of November
19 " We do not express any views herein concerning their responsibility for the conduct
of others or the Union ' s responsibility foi their conduct
i N L R y v Perfect Circle Company, 162 F. (2d) 566 (C. C A 7) ; N. L. R B. v.
Indiana Desk Company, 149 F (2d) 987 (C C. A 7).
THE INTERNATIONAL NICKEL COMPANY, INC. 289
membership in and activities on behalf of the Union, and because they engaged
in conceited activities for the purpose of collective bargaining or other mutual
aid or protection No interference, restraint, or coercion other than the dis-
charges was alleged
The respondent filed an answer dated September 6, 1946, admitting some of
the allegations of the complaint with respect to the nature of its business, but
denying that it had engaged in any unfair labor practices As an affirmative
defense, the answer stated that the respondent discharged Johnson and Keefer
because of illegal acts committed during and prior to a strike of the respondent's'
employees, itself alleged to have been illegal in both its inception and conduct.
Pursuant to notice, a hearing was held from October 29 to 31, 1946, at Hunting-
ton, West Virginia, before Horace A Ruckel, the undersigned Trial Examiner
duly appointed by the Chief Trial Examiner. The Board, the Union, and the
respondent weie represented by counsel and participated in the hearing Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues, was afforded all parties
At the conclusion of the hearing the parties were afforded an opportunity to
argue orally before the Trial Examiner, and to file briefs and/or proposed find-
ings of fact and conclusions of law with the Trial Examiner by November 14,
1946. Thereafter the time for filing briefs was extended. No oral argument
was had On December 3, 1946, briefs were filed by all parties
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 RESPONDENT
The International Nickel Company, Inc., is a Delaware corporation having its
principal office at New York, New York, and plants located at Bayonne, New
Jersey, and Huntington, West Virginia. At the Huntington plant, the only one
involved in this proceeding, the respondent is engaged solely in refining and
rolling nickel alloys. The products of the Huntington plant are valued in excess
of $500,000 annually, of which more than 50 percent is sold and delivered to
points outside the State of West Virginia The raw materials used by the Hunt-
ington plant are valued in excess of $ 500,000, of which more than 50 percent is
received from points outside the State of West Virginia The respondent admits
that it is engaged in commerce within the meaning of the Act.
H THE ORGANIZATION INVOLVED
District 50 , United Mine Workers of America , is a labor organization admitting
to membership employees of the respondent . The United Mine Workers of
America is affiliated with the American Federation of Labor.
III THE ULL\FAIR LAFBOIi PRACTICES
A The dichar•ges
1. Background
In November 1946, at the time of the events herein related, the respondent
employed approximately 2500 employees at its Huntington plant, of whom approx-
imately 2000 were production and maintenance workers. The Union has been
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the certified representative of the latter categories of employees since May 1045.
In June of that year negotiations for a contract were begun , and in July an
interim agreement was entered into adopting such provisions of a proposed
contract as had been agreed upon up to that time. Remaining unresolved issues
were certified to the War Labor Board, in August. Two panel hearings were
held, the second on November 18, and on November 19 representatives of the
respondent and the Union met and discussed the differences which still separated
them. The Union's representatives at this meeting, as at previous meetings,
consisted of a negotiating committee of eight members , six of whom were em-
ployees, including James Johnson, president of the plant local, and A. O. Keefer,
chairman of the mill grievance committee. The meeting of November 19 broke
up about 5 p. m. without any further agreement having been reached, and shortly
before the change of shift at midnight the respondent's production and mainte-
nance employees went on strike . The strike lasted until December 4 . Upon its
conclusion all the striking employees, with the exception of Johnson and Keefer,
were permitted to resume their jobs. Contract negotiations were resumed,
eventuating in an agreement dated December 15, 1945, in effect at the time of
the hearing
Upon the resumption of production on December 4, the respondent sent Johnson
and Keefer identical telegrams as follows :
EFFECTIVE TODAY YOU ARE HEREBY DISCHARGED FROM OUR
EMPLOYMENT BECAUSE OF THE PART YOU TOOK IN THE ILLEGAL
ACTIONS AGAINST THE COMPANY DURING THE PAST WEEK. YOUR
CHECK FOR WAGES DUE YOU WILL BE MAILED TO YOU.
2 Events immediately preceding and during the strike, the activities of
Johnson and Keefer
The strike on November 19 is alleged to have been illegal, and Johnson and
Keefer are alleged to have engaged in unlawful concerted activity and by reason
thereof to have forfeited their right to the protection of the Act, because the
strike was called without notice of a labor dispute first having been given as
required by the War Labor Disputes Act.' Admittedly, the requirements of
the War Labor Disputes Act were not complied with. It may further be ad-
mitted for the sake of argument, although it is not conceded by the Board or
the Union, that Jackson and Keefer, as president of the plant local and chair-
man of the mill grievance committee, were among the officers of the Union who
might fairly be held reponsible for such non-compliance The Board in
several cases,2 however, has held adversely to the respondent's contentions that
becaue of such failure of compliance employees are thereby deprived of the
protection of the Act and may for that reason be lawfully discharged.
The respondent asserts, however, that during the strike pickets systematically
barred certain of its supervisory employees from the plant, thereby illegally
depriving the respondent of the use of its property, and that under the decisions
in the Fan steel' and Clinch field cases' such conduct removes the participants
157 Stat . 163. The act requited service of notice upon the Board, the Secretary of
Labor , and the National War Labor Board
2 Matter of Union City Body Company, 69 N. L R B 172; Matter of Kalamazoo Sta-
tuonery Company, 66 N. L R . B 930, Matter of Fairmont Ci eamery Company, 64
N L R B 824; Matter of Republic Steel Corp, 62 N. L R. B 1008.
3 N L. R B v. Fansteel Metallurgical Corp ., 306 U S 240.
4 N L R I3 v . Clinchfield Coal Corp , 145 F ( 2d) 66 (C C A 4)
THE INTERNATIONAL NICKEL COMPANY, INC . 291,
from the protection of the Act, and constitutes valid grounds for their discharge.
The manner in which the strike was conducted and Johnson's and Keefer's
responsibility therefor, as revealed by the record, are hereinafter related.
The Huntington plant is surrounded by a high fence and wall. Aside from a
railroad entrance, ingress is restricted to two gates, the west gate and the
east, or main, gate. Each of these gates is approximately 35 feet wide. Upon
the commencement of the strike on the night of November 19, and prior to the
change of shifts at midnight, pickets clustered around the east and west gates
in numbers which witnesses for the Board and for the respondent variously
estimated to be from 50 to 100. The number of pickets increased by 8 o'clock
the following morning, when the morning shift would normally have come on
duty. The exact manner in which the pickets were grouped is in dispute, the
respondent contending, and the Union denying, that the picketing was practically
shoulder to shoulder, and amounted to mass picketing of such a nature as effec-
tively to deny the respondent access to and hence the use of its plant. It is
not contended, and witnesses called by the respondent as well as those called
by the Board, denied, that any acts of violence were committed, or threats of
violence uttered, during the entire pendency of the strike.
When the strike was called, most of the supervisory employees of the respondent
then on duty remained in the plant. Various foremen testified that they did so
because they were under the belief that if they left they would not be permitted
to return. This belief was well grounded. M. H. Gibson, night superintendent,
and H. G. Burgess, relief night superintendent, testified that shortly before the
midnight shift change they went to the west gate and asked Johnson, who was
circulating among the pickets, if any employees were going to be admitted to the
plant Johnson replied, according to the testimony of both Gibson and Burgess,
that only H. M. Brown, general manager of the plant, and R. R. Clappier, pro-
duction manager, were going to be admitted. About 11: 30 p. M. Burgess asked
Johnson, according to the former's testimony, if it would be possible to have some
stationary engineers passed through the picket lines, to which Johnson repeated
his assertion that no one was going to be admitted other than Brown and
Clappier. Johnson, called as a witness in rebuttal, denied the substance of the
convei sation testified to by Burgess and Gibson. The undersigned was not im-
pressed by Johnson's testimony, which was pervaded by evasions and euphemisms
seriously affecting his credibility as a witness, and finds that Johnson made, in
substance, the declarations attributed to him by Gibson and Burgess, both of
whom he found to be credible witnesses.
Altogether, 17 of the respondent's supervisory employees testified credibly
that either at midnight on November 19, or on the morning of November 20,
they approached the gates singly or in small groups with the intention of entering
the plant, but were refused admission by pickets. The substance of their testi-
mony is that although they observed no act, and heard no overt threat, of
violence, pickets at the two gates were so numerous and so close together as
effectively to bar their entrance without physical contact and the use of some
degree of force. This the foremen were not prepared to employ.'
5 T3 pical excerpts from the testimony of these witnesses are here set forth L A Roberts,
chief engineer, testified as follows :
Trial Examiner Ruche r. Tell us what happened
The WITNESS I drove up to the plant about a quarter past eleven The west gate
was well filled with men, so I proceeded on up to the east gate-the main gate-
and started to turn off the road into the plant, and I just got the wheels turned and
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Various foremen testified credibly that they also attempted to enter the plant
by one or both gates on various occasions after November 20, only to be met by a
converging group of pickets who refused them admission.
The record shows that although as the strike wore on the pickets stationed
at the gates decreased in number, the line was frequently reinforced shortly
before the normal shift change times, presumably on the theory that any concerted
Footnote 5-Continued
that was all I wasn't able to go any further without running over some one So,
I sat around for a few minutes and they told me no one was going in, so, after a
few moments I left the premises-
Q (By 1%Ir Steinheimer) Would you tell us about how many men you saw at
the west gate on that night
A I judge there may have been possibly 150 at the west gate
Q How many at the main gate1
A Between 70 and 100 at the main gate
s • e s
Q (By Mr Steinheimer) When was the next time, Mr Roberts that you attempted
to enter the plant?
A -Tuesday morning, the 20th I was up there again about between 7 • 30 and
a quarter of eight At that time I didn't make any attempt to drive in I parked
the car up above the entrance and walked back and I saw fellows that I recognized
and some that I did not, and asked them, "How about getting me in"" And they
said no one was going in except Mr Brown and I told them who I was and what-
well, just roughly-what we had to do in the plant to keep the thing going, but
most of the fellows at the gate knew me, I'm sure of that, but I didn't get in anyway
Q (By Mr. Steinheiner) About how many men were there standing in fiont of
the gate that morning's
A It looked very much like it did the night before I couldn't notice any appreciable
difference in numbers or in station
Q Could you have walked through the men standing in front of the gate without
pushing your way through?
s
The WITNESS I could not, sir
Q (By Mr. Steinheimer) Did you see Mr Keefer at any time's
A I saw Mi Keefer that morning
Q Did you talk to Mr Keefer 's
A Mr. Keefer-yes, I did Mr Keefet was on the other end of the picket line
from where I attempted to enter, and after being unsuccessful at that end I went
down to where Mr Keefer and Mr Baribeau were and asked Otis (Keefer) what
it was all about,-and he said, "There's no work today
s x • s s
Q (Br Mr Steinheimer) Did you think what would happen if von tried to go on
through the men standing in front of the gate?
t s ♦ s w
The WITNESS To be perfectly frank with you, I didn't know I might have gotten
through ; I might not I doubt very much, though, if I would have gotten through
except with some violence I am sure there would have been that
Hairy Patterson, carpenter foreman, attempted to enter the plant on the morning of
November 20 He testified as follows
Q Can you tell as what happened'
A I drove to the main gate and there was a Jot of men standing in the gateway-
in the diiveway-and I cut my car over towards the line of nien
Q Did you turn up a little hit into the drive I
'A Yes, sir, and MI Keefer, he stepped out beside niy car and I asked him if I could
get in the plant-and he stated "No," no one but Mr Brown and Bob Clappier was
going in So, f backed my car out and drove up the road, turned around and went
back hone
Q About how many men would you estimate were at the gate's
A Thei e was approximately fifty or seventy-five men
Q. And were they standing between your car and the entrance to the gate?
THE INTERNATIONAL NICKEL COMPANY, INC. 293
attempt on the part of supervisory employees to force their way into the plant
would be most likely to occur at those times.
On December 2, a temporary injunction was issued by the Supreme Court of
Appeals of West Virginia , restraining the Union and its officers , including
Johnson and Keefer, from preventing access to the Huntington plant. Upon the
issuance of this injunction , supervisory and other employees who presented them-
selves at the gates were permitted to enter.
The evidence is substantial and convincing , however, that from the beginning
of the strike until restrained by Court order , the strikers barred access to the
Footnote 5-Continued
A Yes, sir
Q Were they so close together that you could not have driven your car into the
plant"
* * * * *
The WITNESS I couldn't have went in without shoving someone back.
G C Goff , construction engineer , testified as follows
Q Tell us what happened when you got out to the plant
A I approached the line standing in front of the east gate -About the middle
of the line I was told that theie was no one going in, and seeing an acquaintance
that I knew at the left portale of the gate-at my left-I approached him hoping
that lie may give me permission through his influence to let me into the plant
Trial Examiner RUCiCEL Who was it?
The WITNESS Otis Keefei
Q (By dli Steinlieiinei ) What did } ou say to Mr Keefer"
A I wanted perninSsion to go into the plant to get my wrist watch out of my desk
and return
Q This was after you found that they weren't letting anyone go into the plant?
A That's right
Q What did Mr Keefer say"
A "There's no one going in "
Q Will you tell us about how many men there were standing in front of the main
gate that morning"
A I'd sac-estimate about approximatel y seventy-five to eighty men
Q %%'here were they standing i
A They were standing in the gate about three to four deep , the full length of the
gate
Q Could you have walked through those men without pushing someone aside?
* * *
The WITNESS. I could not
The testimony of Lester Walcutt, assistant chief engineer , was as follows :
Q Did you come to enter the plant on November 20, 1045?
A I did
Q Will you tell us what happened on that day"
A. -I went up to the plant I noticed our group of men standing in front of
the gate
Q Which gafe'i
A The main gate-I walked over to the picket line to see if I could get in,
and they said , "No, the only ones going in today are Mr Brown and Mr Clappier
Q Where were these pickets standing"
A About fioui the gate to a forward towaids the road , the full width of the gate,
no fornialion , but, generally speaking , at an average depth of three or four
* * * * *
Q Were they standing so close together that 3 on couldn 't walk thi ough the line
without shoving someone over to the side"
* *
The WITNESS They were
Q (Bv Mr Steinhemiei) Would you tell me what your state of mind was when
you saw this picket lire and calked to pickets about getting through?
* *
788886-49-vol 77-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant to the respondent's supervisory and, other employees, and effectively
deprived the respondent of the use of its plant"
The remaining question to be resolved is the responsibility of Johnson and
Keefer for the conduct of the strike, and whether the respondent discharged them
therefor, and not because of their legitimate activities on behalf of the Union
including permissible strike action.
The record leaves little doubt that Johnson and Keefer, as president of the
local and chairman of the mill grievance committee, respectively, were among
the leaders of the strike, and were so regarded by both the strikers and the
respondent's officials. 'Johnson and Keefer admitted their presence among the
pickets on the evening of November 19 as well as on the morning of November
20 and on various other occasions, and that they gave advice and assistance
to the other pickets, although Johnson, in particular, attempted to distinguish
between advice and assistance on the one hand and mandatory instructions
on the other. Indeed, much of Johnson's testimony is transparently designed to
obscure the nature of the events and to minimize his share in them. He
admitted that immediately after negotiations were broken off, on the afternoon
of November 19, he went to the Union's ball and consulted with other officers
of the organization concerning the resulting situation; that he called several
shop foremen on the telephone to ask them the reaction of the employees to
the breaking off of negotiations; and that he gave it as his "opinion" that a
strike might take place. While testifying, he admitted that lie knew by 9
or 10 o'clock on the night of November 19, that the strike would take place.
Johnson's attempts to distinguish between mere prophecy on the one hand, and
advocacy and authoi ization on the other, do not carry conviction, and affect
adversely the credibility of his testimony as to his responsibility for the conduct
of the strike.
With respect to the latter, Johnson admitted that on occasion he addressed
employees who gathered around him on the picket line, although he denied
that he had any hand in actually placing the pickets. Indeed, Johnson studiously
refrained from admitting that there were any pickets, and referred instead
to "boys standing around." He admitted that he "might have made a statement
that the fellows decided not to let the office workers in," but denied that he
Footnote 5-Continued
The WITNESS This was my first experience with anything like that, and I was
rather confused, but it seemed futile to get through a crowd determined to keep
you out.
Louis Reasor, superintendent of standards, gave the following desciiption of the picket line
• t a
Q. Where were the pickets stationed'
A Stretching across the flood wall opening
Q Were they between you and the gate'
A. They were between me and the gate
s
Q In your judgment, Mr Reasor, could you have gotten into the gate at that time
without pushing someone aside'
# s s s s
A The formation of men across the gate opening was rather close, and for me
to have gotten into the plant property would have necessitated shoving or pushing
my way between men
In the Clinch field case strikers picketed the entrance to a coal mine and refused the
request of a foreman for permission to remove an electric motor car which was blocking
the mine entrance The request was refused, and the foreman did not persist in the face
of the strikers' opposition The Court held that the actions of the strikers amounted to
a' seizure of the mine, and held lawful the employer's discharge of strike leaders responsible
therefore
THE INTERNATIONAL NICKEL COMPANY, INC . ' 295
personally participated in any such decision , stating that such information as
he had on the point was based upon "gossip" and "hearsay." With respect to
the erection of a tent at one of the gates where pickets kept warm before a
stove and were served coffee, Johnson professed lack of prior knowledge of
such arrangements . Although denying that he had any hand in issuing instruc-
tions that Brown and Clappier , alone of the respondent 's officials , should be
admitted to the plant , he admitted that he might have said on occasion that
he "understood" that this was the case. Similarly , although denying that he
stated to anyone that any foreman leaving the plant would not be permitted to
return , he admitted that he might have discussed the matter in a "round about
way," and might have said something to the effect that "maybe those guys,
when they go out, they won't be able to get back."
One day during the course of the strike , Crosby, production superintendent,
telephoned Johnson that a number of salaried employees were going to attempt
to get into the plant to do some work . Johnson admitted that upon receiving
this telephone call he made arrangements with a local broadcasting station to
make spot announcements at regular intervals requesting all striking employees
to report at the plant gates at shift change time that afternoon , an appeal
to which some 75 or 100 strikers responded. Johnson denied , however, that this
appeal had any connection with Crosby ' s telephone call, or that the summoning
of additional strikers to the gates was for the purpose of reinforcing the
picket lines . He testified that the strikers just "wanted to get together" in a
"pleasant meeting."
On November 28, the Union , over Johnson 's signature , wrote the respondent
as follows :
We suggested to Mr Cabbell November 25, 1945 in the presence of Mr.
Charles Sattler, Commissioner of Labor for The State of West Virginia
that we were willing to see that men were taken through the picket line
in order to take care of the maintenance of your plant, this offer has not
as yet been accepted We again made the same otter November 27, 1945
in the Circuit Court of Cabell County to allow fifteen men to go into your
plant, for the purpose of maintaining the equipment and this cffer was
refused by your lawyer.
Please accept this letter as a renewal of our offer in regard to 15 men
going into the plant to safeguard your equipment.
Conclusions as to the discharges
The evidence is substantial, and the undersigned finds, that the respondent
had 'reasonable cause to believe that James Johnson and A. O. Keefer were
among the leaders of the Union responsible for the illegal conduct of the strike.
It is difficult to escape the conclusion, on the basis of the findings of fact set
forth above. that Johnson in particular, and Keefer only less so, inspired and
determined the inanner in which the strike as a whole, including the picketing,
was conducted. Johnson's letter of November 28, offering to permit a limited
number of employees to enter the plant, confirms his own responsibility for the
exclusion of the supervisory employees from the plant. Keefer's responsibility,
so far as it is revealed by the record, rests principally upon his refusing admis-
sion to the plant to Roberts, chief engineer, Patterson, carpenter foreman,,and
Goff, construction engineer, whose testimony to this effect is set forth above.
In the absence of any evidence whatsoever of anti-un•on bias or hostility, or
of L.v,dence that the I espondent was motivated in discharging Johnson and Keefer
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by their legitimate collective activity, it must be concluded, and the undersigned
finds, that the respondent discharged them because of the manner in which they
conducted the' strike of November 19. Accordingly, the undersigned recommends
that the complaint herein be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAw
1. District 50, United Mine Workers of America, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. The respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
3 The respondent has not engaged in any unfair labor practices within the
meaning of Section 8 (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case the undersigned recommends that the complaint
against the respondent, The International Nickel Company, Inc., be dismissed
in its entirety.
As provided in Section 203 39, of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (151 days from the date of service of the order
transferring the case to the Board, pursuant to Section 203.38 of said Rules and
Regulations, file with the Board. Rochanibean Building, Washington 25, D. C., an
original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof, and any party or
counsel for the Board may, within the same period, file :iii original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director Proof of service on the Other
parties of all papers filed with the Board shall be promptly made as required
by Section 203 65 As further provided in said Section 203 39, should any party
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.
HORACE A RUCICEL,
Ti ial Exaininer
Dated January 23, 1947