United Stone and Allied Products Workers

National Labor Relations Board - Board Decisions

Sep 19, 1958

121 N.L.R.B. 914 (N.L.R.B. 1958)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, professional employees, guards, and supervisors as defined in
the Act
5 The Steelworkers and the Mme Workers contend that employees
in a laid-off status at both plants are only temporarily laid off and
eligible to vote The Employer contends that these employees have
been permanently laid off and are ineligible to vote The Employer's
district manager testified that while there are seasonal layoffs in the
concrete products industry, this has not occurred in the 2 plants in
question for the 2 previous seasons, and that the seasonal decrease in
business normally occurs in the late fall, whereas the present layoff
was motivated by general business conditions, which conditions show
no indication of change in the near future to justify the reemployment
of these employees
At the Bridgeville plant 7 employees were laid off recently, and the
Employer testified that 7 more were to be laid off during the week fol-
lowing the hearing He also testified that there might be an inde-
pendent seasonal layoff in the fall which would only be temporary
At the Neville Island plant about 32 employees have been laid off
since April 15, 1958 The Employer's district manager testified that
the majority of these employees were laid off because of the comple-
tion of an exceptionally large order of sewer pipe, and the possibility
of obtaining a comparable order is extremely remote, atnd-that the
remaining employees were land off because of general business condi-
tions And, as at the Bridgeville plant, a seasonal decrease in business
may necessitate a temporary layoff in the fall in addition to the
present layoff
Although the Employer indicated that should conditions warrant,
the laid-off employees from both plants would be recalled, there ap-
pears to be no reasonable expectancy of their recall in the near future
Accordingly, we find that the employees in a laid-off status, including
the seven additional employees at Bridgeville, if they have been laid
off as expected, are not eligible to vote in the election 5
[Text of the Direction of Election omitted from publication
8 See Brown -Forman Dtst2llers Corporation, 118 NLRB 454
United Stone and Allied Products Workers of America, Local
No. 24, AFL-CIO, and Harold Etchison, Its Agent and Gibson-
burg Lime Products Company. Case No 8-CB-248 Septem-
ber 19, 1958
DECISION AND ORDER
On April 9,1958, Trial Examiner Arthur Leff issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
121 NLRB No 122
UNITED STONE AND ALLIED PRODUCTS WORKERS 915
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
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 Interme-
diate Report, the exceptions, the brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, United Stone and
Allied Products Workers of America, Local No. 24, AFL-CIO, its
officers, representatives, successors, assigns, and agents, including the
Respondent, Harold Etchison, shall:
1. Cease and desist from :
(a) Threatening any employee of Gibsonburg Lime Products
Company with loss or impairment of his employment for furnishing
statements or giving testimony in connection with any grievance
proceeding or any other proceeding in which the Union is involved
or interested.
(b) In any like or related manner restraining or coercing employees
of the aforesaid Company, its successors or assigns, in the exercise
of their rights to refrain from assisting the Union or engaging in any
of the other activities referred to in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement requiring
membership in'a labor organization as authorized by Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the business office of the Respondent Union copies of
the notice attached hereto marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for the Eighth Re-
gion, shall, after being duly signed by an authorized representative
' In the event that this Order is enforced by a decree of the United States Court of
Appeals, the notice shall be amended by substituting for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent Union and the individual Respondent, be posted
by said Respondents immediately upon receipt thereof and maintained
by them for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Additional copies of the notice hereto attached as an Appendix
shall be signed by or on behalf of each of the Respondents as afore-
said and forthwith returned to the Regional Director. The notice
shall be posted, the Company willing, in places at the Company's
plant at Gibsonburg, Ohio, where notices to the Company's employees
are customarily posted.
(c) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, as to the steps the
Respondents have taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED STONE AND ALLIED PRODUCTS
WORKERS OF AMERICA, LOCAL No. 24, AFL-CIO, AND TO ALL EM-
PLOYEES OF GIBSONBURG LIME PRODUCTS COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT threaten any employee of Gibsonburg Lime
Products Company with loss or impairment of his employment
for furnishing statements or giving testimony in connection with
any grievance proceeding or any other proceeding in which the
aforesaid Union is involved or interested.
WE WILL NOT in any like or related manner restrain or coerce
any employee of the aforesaid Company, its successors or assigns,
in the exercise of his right to refrain from assisting the Union or
engaging in any of the other activities referred to in Section 7 of
the Act, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
authorized by Section 8 (a) (3) of the Act.
UNITED STONE AND ALLIED PRODUCTS WORKERS
or AMERICA, LOCAL No. 24, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(Harold Etchison)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
UNITED STONE AND ALLIED PRODUCTS WORKERS
INTERMEDIATE REPORT
917
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 6tat. 136, herein the Act. The complaint, issued pursuant to a charge filed
by the Company above named on November 4, 1957, alleges, and the answer denies,
that the Union and its agent above named, herein the Respondents, engaged in
unfair labor practices affecting commerce within the meaning of Sections 8 (b) (1)
(A) and 2 (6) and (7) of the Act in respects fully to be detailed below. A hearing
was held on March 11 and 12, 1958, before the duly designated Trial Examiner.
All parties were represented by counsel at the hearing. At the opening of the hear-
ing motions were granted to amend the complaint and the answer in certain minor
respects. Motions made by the Respondents at the opening of the hearing, and again
at the close of the General Counsel's case, to dismiss the complaint for insufficiency,
were denied. At the close of the case, the Respondent moved to dismiss the com-
plaint for want of supporting evidence. Ruling on this motion was reserved. It is
now disposed of in accordance with the findings of fact and conclusions of law made
below. At the conclusion of the case, all parties presented oral argument. The
Charging Party and the Respondents filed briefs on March 28, 1958. ,
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gibsonburg Lime Products Company, herein the Company, is an Ohio corpora-
tion, engaged in the production of limestone products at Gibsonburg, Ohio. The
Company annually ships finished products of a value in excess of $1,000,000 in
interstate commerce to and through States of the United States other than the State
of Ohio. The Respondents concede that the Company is engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America, Local No. 24, AFL-CIO,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent Union is the recognized representative of the Company's em-
ployees. Conditions of employment are governed by a contract between the Com-
pany and the Union. The contract contains a union-security clause, requiring covered
employees to become members of the Union within 30 days following their employ-
ment and thereafter maintain their membership in the Union.
On October 19, 1957, employee Carl Langerman engaged in a verbal altercation
with Superintendent Cloyce Sleek during working hours, and for this was discharged.
Employee Leslie Flick witnessed the beginning of the altercation, and employees
Hemminger and Raymond Beeker all of it.
After his discharge, Langerman filed a grievance protesting the disciplinary action
taken against him. The governing collective-bargaining agreement provides for a
four-step grievance procedure terminating in arbitration. The penultimate step calls
for consideration of the grievance at a conference between management representa-
tives and the employee plant committee. The grievant or the Union is also privileged
to have present at the third step the Union's business agent or an International
representative.
Langerman's grievance quickly passed through the first two steps of the grievance
procedure and, remaining unsettled, reached the third level.
Prior to the third-step meeting, Superintendent Sleek prepared, a written statement
setting forth his version of the altercation that lead to Langerman's discharge.
Among other things, Sleek asserted that Langerman in the course of an argument
relating to the use of certain plant equipment had questioned Sleek 's judgment and
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capabilities, had been insubordinate, had engaged in abusive language, and had
threatened to "catch" Sleek uptown.
In connection with the Company's investigation of the grievance, Richard Trum-
bull, a management representative, summoned Flick, Hemminger, and Becker to his
office on October 24, 1957. Trumbull showed them copies of Sleek's prepared state-
ment and requested them to read it, make such corrections as they might consider in
order, and sign the statement as corrected. Flick, who had been present at the
beginning of the altercation, approved and subscribed his name to Sleek's statement
without change. Hemminger refused to approve Sleek's statement in the form sub-
mitted, taking exception to certain references in it to Langerman's alleged insub-
ordinate conduct, and excepting also to Sleek's generalized declaration that
Langerman had expressed himself in "abusive language." As to the latter, however,
Hemminger orally agreed that Langerman had uttered certain specific expressions
of an abusive character, not specified in Sleek's statement but to which Trumbull
directed Hemminger's attention. Hemminger did not take issue with those portions
of Sleek's statement which charged Langerman with questioning Sleek's judgment and
capabilities and which referred to Langerman's threat to "catch" Sleek uptown. But
he refused to approve Sleek's statement, even as corrected in line with his own
suggestions, on the ground that he wanted prior authorization from a member of the
Union's plant committee. Nevertheless, he agreed to, and did, endorse on the back
of the statement that he had read it and had offered corrections. Beeker expressed
reluctance to approve Sleek's statement, declaring that he did not know what trouble
this might lead him into. In the end, however, he agreed to sign Sleek's statement
after making substantial deletions which omitted everything of substance except that
an argument had occurred, that Langermari had made remarks concerning Sleek's
judgment and capabilities, and that Langerman had stated that he would "see" Sleek
uptown.
The third-step grievance meeting was held on October 30, 1957. The Respondent
Harold Etchison represented the Union at this meeting along with the Union's plant
committee. Etchison is not an official of the local union which is the Respondent
here, but is employed by the Union's International as a district director. Etchison
sat in at this meeting in the place of Lester Weyandt, the Union's regular business
agent, who, because of other union business out of town, was unable himself to be
present. Before leaving town, Weyandt had requested the International to supply
a substitute for him, advising the International that he felt strongly about the dis-
charge of Langerman (who was a plant committeeman) and that he wanted
Langerman's grievance carried through to arbitration, if necessary. Weyandt while
testifying conceded that Etchison represented the Local at, the third-step grievance
meeting with his approval and that of the Local as well.
Flick, Hemminger, and'Beeker, as witnesses to the altercation, were called to the
third-step grievance meeting and were questioned as to what they knew of the
occurrence. All appeared reluctant to make a full disclosure. Flick denied that he
was present during the actual argument and asserted that he could not recall hearing
any of the offensive statements attributed to Langerman. This, according to Flick's
testimony at the hearing in this proceeding, was not true, for he had been present at
the beginning of the argument and had heard Langerman utter at least certain state-
ments of an abusive nature. Hemminger, contrary to what he had in effect orally
conceded to Trumbull, stated that he had not heard Langerman use any abusive
language. Beeker, although admitting his presence at the argument, professed not
to recall what was said; this was not only contrary to the statement he had signed,
but, as appears from testimony given by him in this proceeding, was contrary to
fact.
The third-step grievance meeting failed to produce a disposition of the grievance,
and the matter was referred to arbitration. At the time of the hearing in this pro-
ceeding the arbitrator's decision had not yet been announced.
B. The issue to be resolved
The gravamen of the complaint here is that the Respondents, in order to compel
assistance to the Union in its prosecution of the Langerman grievance, illegally
coerced the employee eyewitnesses to the Langerman-Sleek altercation to make false
statements at the grievance meeting, or to withhold information within their
knowledge. More specifically, the complaint as amended alleges that the Re-
spondents violated Section 8 (b) (1) (A) of the Act by engaging in the following
conduct:
UNITED STONE AND ALLIED PRODUCTS WORKERS 919
7. On or about October 30, 1957, Respondent Union through its agent,
Respondent Harold Etchison, did restrain and coerce employees of the Com-
pany by orally threatening employees, who were called to testify at a meeting
of Company and Respondent Union representatives convened for the purpose
of processing a grievance filed by employee Carl Langerman, with loss of
Union membership and with loss of employment by the Company if the
employees signed any statement incriminating a fellow Union member and/or
gave testimony in support of the Company's action in discharging employee
Langerman, a fellow Union member. Said Etchison further told said em-
ployees, who were eyewitnesses to the altercation out of which the grievance
arose, to testify that they did not remember, or had forgotten, what occurred
on the occasion in question, and all such eyewitnesses, acting under said threat
of loss of membership and employment, did falsely so testify.
The Respondents' answer, verified by Harold Etchison on behalf of both Re-
spondents, in effect admits that certain threatening statements were made by Etchison.
But it avers that such statements were related only to possible internal union
disciplinary action and did not extend to possible job forfeiture, and for that and
other reasons was outside the ambit of Section 8 (b) (1) (A). More specifically,
the answer alleges:
It is admitted that on October 30, 1957, the Respondent Harold Etchison
was present at a meeting in the office of the [Company] for discussion of a
grievance relating to the discharge from employment of one Carl Langerman.
Having been advised that Raymond Beeker, Leslie Flick and Sam Hemminger
had been previously asked by the employer to sign statements as to their version
of the facts concerning the discharge of Langerman, the Respondent Etchison
told them that the furnishing of statements to the employer regarding the
discharge of a fellow employee might subject them to suspension from the
union under the union's constitution.
It is denied that there was any statement by the Respondents to the effect
that the employees who made the statements in question would lose their em-
ployment with the employer. It is further denied that the Respondent Etchison
told such employees to testify that they did not remember or had forgotten
what had occurred on the occasion in question.
As to the applicable law, this case presents no problem. If, as alleged in the
complaint, the Union through its agent threatened employees with loss of employment
as a reprisal measure for supporting the Company's position on the grievance, this
would be conduct clearly violative of Section 8 (b) (1) (A). Section 7 of the Act,
dealing broadly with employee self-organizational and related rights, grants em-
ployees, inter alia, not only the right to assist a union but also the right to refrain
from doing so. Section 8 (b) (1) (A) protects employees from restraint and
coercion in the exercise of their rights conferred by Section 7. Just as employees
have a right protected by the Act to assist a union by supporting its position on a
grievance through testimony or otherwise, so, too, they have a similarly protected
right to refrain from assisting a union through nonsupport of, or even active op-
position to, the Union's position. A union which threatens employees with damage
to their job tenure for failing thus to aid its cause engages in illegal restraint and
coercion within the meaning of Section 8 (b) (1) (A). Fox Midwest Amusement
Corporation, etc., 98 NLRB 699, 719; Textile Workers Union of America, CIO, etc.,
108 NLRB 743, 748, 773; International Association of Bridge, Structural & Orna-
mental Iron Workers, etc., 112 NLRB 1059, 1060. Nor does it matter that the
threat is made to union members who may have bound themselves to observe union
membership obligations or abide by certain standards of behavior toward fellow
union members. As the Supreme Court declared in the Radio Officers case,' "The
policy of the Act is to insulate employees' jobs from their organizational rights . .
[and, subject only to the limitation in the proviso to Section 8 (a) (3), not here
applicable, it was] designed to allow employees to freely exercise their right to join
unions, be good, bad, or indifferent members, or abstain from joining any union
without impairing their livelihood." [Emphasis supplied.]'
On the other hand, if, as alleged in the answer, Etchison's statements went no
further than to warn the employees that they might be subjected to disciplinary
action within the Union for furnishing statements in support of the Company's
1 The Radio Officers ' Union, etc . v. N. L. it. B., 347 U. S. 17, 40.
I
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position, and excluded any threat of job impairment, this would not be violative of
Section 8 (b) (1) (A). Such-a warning, though in fact coercive, would neverthe-
less be outside the reach of Section 8 (b) (1) (A) by reason of the proviso to that
section which safeguards "the right of a labor organization to proscribe its own rules
with respect to the acquisition or retention of membership." The proviso privileges
a union to discipline its own members as union members, but not as employees, for
any reason it sees fit-and what a union may lawfully do it may of course lawfully
threaten to do. Fox Midwest Amusement Corporation, etc., supra; Peerless Tool
and Engineering Co., 111 NLRB 853, 857.
What is involved in this case, then, is essentially an issue of fact. Did Etchison
simply warn the employees that they might be subjected,to sanctions affecting only
their status as union members for exercising their protected right to refrain from
assisting the Union? Or were his declarations of such a nature as to convey addi-
tionally the' threat, expressly or by reasonable implication, that their exercise of
that right might also impair their job status?
The relevant evidence on that factual issue will be reviewed and analyzed in the
succeeding sections of this Report. But before reaching that issue, brief mention
might be made of an additional issue raised by the Respondents during the hearing,
but not pressed by them at oral argument or in their brief. The contention was
made at one point of the hearing that the Respondent Union could not be held
responsible for statements made by Etchison because Etchison was a paid official of
the International and not of the Local which is the Respondent here.2 It is clear,
however, from the facts adverted to above in connection with the Langerman griev-
ance, that Etchison was acting as a substitute for the Union's regular business agent
with the Union's full approval and in furtherance of its interests. Under the circum-
stances the Respondent Union may not avoid responsibility for Etchison's statements.
Sunset Line and Twine Company, 79 NLRB 1487.
C. The testimony relating to the alleged coercive statements
Flick, Hemminger, and Beeker arrived early for the third-step grievance meeting.
Before the arrival of the management representatives, they were joined by Etchison,
Langerman, and the plant grievance committee which was composed of Max Reyes
and Dale Fought. The individuals mentioned met informally before the grievance
meeting began. It was during this meeting that the coercive remarks the complaint
attributes to Etchison are alleged to have been made. All who were then present
were called as witnesses-Flick and Hemminger by the General Counsel, the others
by the Respondents.
Flick alone of the witnesses testified that Etchison's remarks included, in so many
words, a threat of job impairment. Flick testified:
He [Etchison] asked us what we were going to say because he wanted to know
what to say. He told us then that if any of us signed any papers or would
testify against an employee or any of the union members that they would take
it up for a vote and throw us out of the Union and have us . . . and we would
lose our job.
Flick further testified that in response to a query by Beeker as to what Beeker was to
say if asked questions at the grievance meeting, Etchison advised Becker to say
that he "either forgot or could not remember."
Flick's testimony that Etchison expressly uttered a threat of job loss was not
supported by Hemminger, the General Counsel's only other witness. Hemminger's
version of what occurred was as follows:
Q. Then what happened when you got inside the meeting room?
A. Mr. Etchison said something about whenever a person signed a paper
or statement incriminating a fellow employee, that would result in the Union
taking a vote to discharge from the Union.
Q. What else was said?
A. I asked him if Lester Weyandt, the International representative could do
that. He said, "No" . . . but that the membership of the Union could take
a vote . . . the Local could take a vote and you know what that meant.
* * * * * * *
2 The answer as originally filed admitted by failure to deny that Etchison acted as
agent for the Respondent Union. At the opening of the hearing, however, the Respondents
amended their answer to deny all allegations not specifically admitted.
UNITED STONE AND ALLIED PRODUCTS WORKERS 921
Q. What did that mean to you?
* * * * * * s
A. Oh, at that time it meant that I would lose my job.
TRIAL EXAMINER: If the Union took a vote you would lose your job?
The WITNESS: If they would kick me out of the Union.
TRIAL EXAMINER: But Mr. Etchison didn't say anything about you losing your
job, did he?
The WITNESS: No, I don't think so.
TRIAL EXAMINER: That was just something you inferred from the other words,
is that right?
The WITNESS: Yes.
Etchison categorically denied stating that the employee witnesses might be ousted
from their jobs if they made statements or gave testimony favoring the Company.
As for the rest, his testimony was vacillating. Upon direct examination, and also
at several points of his cross-examination, he testified he told employees that if
they testified falsely or untruthfully about what they knew they might be subjected
to suspension from the Union. In this respect, however, his testimony was at vari-
ance both with his verified answer to the complaint and with an affidavit he had
given the Board's field examiner. Neither the affidavit nor the answer-both of
which are cast in substantially the same language-makes any reference to false or
untruthful statements. In the end, Etchison admitted that there was a question in
his mind as to whether he had said anything about false or untruthful statements.
And he revised his testimony, at least one point, to affirm what he had previously
sworn to, viz, that he told the employees that "the furnishing of statements to the
employer with regard to the discharge of a fellow employee might subject them to
suspension from the Union under the Union's constitution." But he still experienced
difficulty in pointing to any specific provision in the Union's constitution which
would have authorized disciplinary action against members for engaging in such
conduct.
The testimony of the remaining witnesses (other than Langerman) 3 supports in
the main Etchison's assertion-also supported by the General Counsel's witness,
Hemminger-that he did not explicitly declare, as Flick's testimony would have it
appear, that the employees would jeopardize their jobs if they made statements
harmful to Langerman's grievance. Reyes and Fought went further in their denials
than Etchison, however. While conceding that Etchison was critical of the em-
ployees for furnishing the Company statements without prior union approval, they
testified that Etchison made no threat at all, not even of union suspension. In that
respect, their testimony, patently at variance with what is admitted in the Respond-
ent's answer, I regard as incredible.
The testimony of Beeker is separately considered as it is of special interest for
other reasons. It discloses that Etchison's threat at least of membership suspension
made just before the grievance meeting was not the first and only time that Etchison
had voiced a warning of that kind. It also serves to explain why Flick may have
read into Etchison's remarks a threat of job ouster, even though such a threat may
not have been specifically expressed. Beeker testified-and in this respect his
testimony is corroborated by Etchison-that on the evening before the third-step
grievance meeting was held he had a preliminary meeting with Etchison to discuss
the pending Langerman grievance. Etchison at the earlier meeting criticized Beeker
for having signed a statement for the Company. According to Beeker, Etchison
told him:
... you shouldn't sign a statement, and if you sign the right kind of state-
ments that the Union can have a hearing on you and then bring it up in front
of the men for dismissal from the Union.
Beeker's phrasing of what Etchison told him seems garbled. What was actually said
is, I think, more nearly reflected by Etchison's admission at one point of his cross-
examination, that he told Becker the night before that he would have to take up
with Weyandt "the question of the Sleek statements that several employees had
endorsed" and that as a consequence of such statements the employees "might be
suspended under our union's constitution." This much is clear, however, that
Etchison's comment, whatever its precise phrasing might have been, led Becker to
be concerned about his job security. Becker, as his testimony shows, believed that
loss of union membership for whatever reason meant the loss of his job. Beeker
3 Langerman's testimony produced nothing of value Langerman, who Is hard of
hearing, simply testified that he could not recall anything that was said at the time.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
communicated his concern to Flick and Hemminger the next day as the three were
on their way to attend the third-step grievance meeting. Beeker at that time re-
ported to the other two what Etchison had told him the night before, and, on the
basis of what Etchison had said, colored no doubt by his own understanding of the
consequence of loss of union membership, told Flick and Hemminger that they
could be voted out of the Union and lose their jobs on account of the statements
they had signed .4
D. Analysis of evidence and concluding findings with regard to the alleged coercive
statements
On all the testimony and from my observation of the witnesses, I am not per-
suaded that Etchison expressly threatened the employees with loss of their jobs, as
Flick alone testified. While Flick did not impress me as wilfully dishonest, I think
he may have confused the statements Etchison actually made 'in his presence with
what Beeker had reported to him shortly before. Moreover, and quite under-
standably, I think that Flick may have read into Etchison's remarks his own under-
standing at the time, as revealed by other testimony he gave, that loss of his union
membership for whatever reason automatically meant the loss of his job. I believe,
and I find, that Hemminger's testimony, as set out above, substantially reflects what
Etchison stated to the employees. The admission in the Respondent's answer, that
Etchison told the employees that "the furnishing of statements to the employer
regarding the discharge of a fellow employee might subject them to suspension" is
consistent with this finding.5
But the finding that Etchison did not in so many words threaten the employees
with job loss does not in itself dispose of the factual issue that must here be decided.
A threat implied is no less coercive than one that is outspoken. The question re-
mains: Were Etchison's statements of such a character as might reasonably be
expected to convey to the employees addressed the thought that they would be
subjected to job reprisal for furnishing statements or giving testimony unfavorable
to the Langerman grievance the Union was processing? Whether it was or not
must be appraised in the light of all the surrounding circumstances.
The General Counsel would have a threat of job reprisal inferred-even if Flick's
testimony is ignored-from Hemminger's credited testimony concerning Etchison's
reply to his question as to whether Weyandt could "kick him out." It will be
recalled that Etchison's response was that Weyandt could not, but that "the Local
could take a vote and you know what that means." The General Counsel argues
that the italicized words could be interpreted in only one way, that a vote by the
Local would mean the loss of Hemminger's job. On the basis of this question and
response standing alone, however, I am not persuaded that the inference urged
is a proper one, let along an inescapable one. For the words used by Etchison are
equivocal, and do not exclude the possibility that Etchison was saying that a vote
by the Local would mean an unfavorable vote resulting in ouster from the Union.
Etchison's remarks must be considered in a broader context, however. It must
be remembered that the employees in question were covered by a union-shop con-
tract which required them to remain union members as a condition of employment,
and which did not on its face indicate any exception from the generality of that
requirement. In these circumstances, Etchison must have been aware, or at least
reasonably should have anticipated, that a threat of membership ouster unaccom-
panied by any qualifying explanation might well be interpreted by the employees
addressed as carrying with it a threat of job ouster. That the employees here
involved did in fact draw such an interpretation from Etchison's remarks is in this
record amply demonstrated The testimony not only of the General Counsel's
witnesses, Flick and Hemminger, but of the Respondent's witness Beeker as well,
4 This appears not only from Beeker's testimony, but from that of Flick as well.
5 As for the complaint's further allegation that Etchison instructed the employees to
testify at the grievance meeting that they did not remember, or had forgotten, what
occurred, there is no supporting evidence except for testimony of Flick, and Flick's
testimony in that regard is contradicted by witnesses for the Respondent. In view of the
fact that Flick's testimony has been found unreliable in another material respect, I am not
prepared to accept his uncorroborated testimony in this respect either, and therefore
make no finding that Etchison gave any such specific instruction to the employees
UNITED STONE AND ALLIED PRODUCTS WORKERS 923,
shows convincingly that the employees understood the union-security clause to
equate their union membership with their job rights, and, because they did, reason-
ably construed Etchison's threat of membership expulsion as a threat to their job
tenure. It is no answer to say that the employees were mistaken in their belief
that under the union-security clause their job rights were thus bound to their mem-
bership status, since under the proviso to Section 8 (a) (3) they could not be
lawfully discharged if their membership was lost for some reason other than the
nonpayment of dues. It is not to be expected that untrained employees will read
a union-security clause with the acument of a lawyer versed in labor relations, and
therefore interpolate into their reading of the language of the clause the restrictions
the law imposes on its enforceability. To be sure, the privilege a union otherwise
has to advise members that they may be subject to loss of their membership for
conduct thought unbecoming a union member is not forfeited when a union enters
into a union-security agreement. But where, as here, a threat to union membership
in a union shop situation may reasonably be anticipated to carry overtones of a
threat to job tenure, it is not too much to require that a union , desirous of warning,
employees of the consequences of certain conduct on their membership status,
should at least make it clear that the action threatened will not involve an illegal
impairment of their job rights.6
Under all the circumstances, I am persuaded, and I find, that Etchison's state-
ments, considered in the context of the union-shop situation, were of a kind that was
calculated to, and reasonably did, imply to the employees addressed that the Union
would take measures leading to the employees' loss of their jobs if the employees
furnished statements or gave testimony adverse to Langerman's grievance which the
Union was processing. Such statements, for which both the Union as principal
and Etchison as its agent must be held responsible, therefore contained a threat of
jobb reprisal outside the immunity of the proviso to Section 8 (b) (1) (A) of the
Act. Since, for reasons set out above, the threat was designed to restrain and
coerce employees in the exercise of a protected right, it constituted a violation by
the Respondents of Section 8 (b) (1) (A) of the Act. Contrary to the argument
of the Respondents, the record is not devoid of evidence that the threat had its
desired effect. But even if it were otherwise, it would not matter. As stated by
the Seventh Circuit Court of Appeals in Progressive Mine Workers of America
(Randolph Corporation) v. N. L. R. B., 187 F. 2d 298, "It is hardly open to ques-
tion . . . that threats, intimidation and coercion do not escape the pale of an unfair
labor practice because they were not executed or . . . did not have the expected or
desired result." Considering the character of the unfair labor practice committed,
and the possibility of its repetition if not enjoined , I find no merit to the Respondent's
final argument that no remedial order is warranted in this case because the violation
was an isolated one.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in activities violative of Section 8 (b)
(1) (A) of the Act, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the purposes of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
6It may be noted, moreover, that Etchison's purpose in making the threatening re-
marks could not have been to advise the employees of their responsibilities under the
Union's constitution, as the Respondent's answer would have it appear. The Union's
constitution, which is in evidence, contains no provision prohibiting members from furnish-
ing statements or giving testimony favorable to an employer in a situation such as is here
involved. Both Etchison and Weyandt admitted while testifying that they knew of no
union policy to that effect, or of any member of the International Union who had ever
been brought up on charges for such conduct.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Gibsonburg Lime Products Company is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. United Stone and Allied Product Workers of America, Local No. 24, AFL-CIO,
is a labor organization within the meaning of Sections 2 (5) and 8 (b) of the Act.
Harold Etchison is an agent of said labor organization , within the meaning of
Sections 2 (13) and 8 (b) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , and Howard Bennett,
Its Agent and Bonded Freightways, Inc. Case No. 9-CC-449.
September 19, 1958
DECISION AND ORDER
On May 28, 1958, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report together with a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
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
1In addition to the cases cited by the Trial Examiner, we also rely on Local 47 , Inter-
national Brotherhood of Teamsters , etc. (Texas Industries, Inc.), 112 NLRB 923, 924-925.
At the time of the issuance of the Intermediate Report in this case , the Sand Door case,
cited by the Trial Examiner , was pending before the Supreme Court . Since that time,
the Supreme Court has affirmed the Court of Appeals for the Ninth Circuit in enforcing
the Board's order in that case , holding that a "hot-cargo" contract does not serve as a
defense to an otherwise unlawful secondary boycott, Local 1976, United Brotherhood of
Carpenters, etc. v. N. L. R. B., 357 U. S. 93.
121 NLRB No. 123.