White Sulphur Springs Co.

National Labor Relations Board - Board Decisions

Mar 19, 1962

136 N.L.R.B. 375 (N.L.R.B. 1962)

WHITE SULPHUR SPRINGS COMPANY 375
White Sulphur Springs Company and Local 651 of the United
Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada,
AFL-CIO. Case No. 9-CA-2159. March 19, 1962
DECISION AND ORDER
On April 11, 1961, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices alleged in the complaint and recom-
mended that these allegations be dismissed. Thereafter, the General
Counsel and the Charging Union filed exceptions to the Intermediate
Report, and the former also filed a brief in support of his exceptions.
The Respondent also filed exceptions to certain findings and recom-
mendations of the Trial Examiner with a brief in support thereof and
in support of the Trial Examiner's recommended dismissal of certain
portions of the complaint.'
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 briefs, and the entire record in
this case, and finds merit in certain of the exceptions of the General
Counsel and Charging Union. Accordingly, the Board adopts the
findings and conclusions of the Trial Examiner to the extent consistent
with the following:
The facts are accurately stated by the Trial Examiner and are
summarized herein. Respondent operates the Greenbrier Hotel at
White Sulphur Springs, West Virginia, employing approximately
1,000 employees, a large percentage of whom are represented in sep-
arate units by 6 different unions. The Charging Union represents one
such unit which consisted, during the events in issue, of six plumbers.
The contract for the plumbers unit contained an automatic renewal
provision and, no notice to modify being given by either party, the
contract by its terms was extended for an additional year beyond the
original expiration date of June 15,1960. Two other unions, however,
' The Respondent ' s request for oral argument is hereby denied as the record, including
the exceptions and briefs , adequately present the issues and positions of the parties.
136 NLRB No. 30.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were negotiating during this period for new contracts and thereafter
went on strike on June 23, 1960. The strike was settled on July 19,
with the adoption of new bargaining agreements for the several unions
involved. These agreements granted increased benefits to the em-
ployees in the units covered, changed the expiration date of each
contract from June 15 to December 15, and placed restrictions on the
rights of the employees in *these units to refuse to cross a picket line
at the Respondent's premises.
A few days after these contracts were signed, officials of the Re-
spondent called the six plumbers together in response to inquiries from
some of them as to whether they might also obtain the wage increases
which had been negotiated for the employees in the other units.
Wright, Respondent's vice president and general manager, told the
plumbers that they could secure these increases only if they would
accept a similar contract. In the alternative, they could continue to
work under the existing contract which was effective until June 15,
1961. Compton, the shop steward for the plumbers unit, then phoned
Hunt, the Union's business agent, about the company offer. Hunt
confirmed Compton's opinion that because of the contract then in
effect, there was no way for the plumbers-to get the increase which the
other units had obtained. The next morning, Way, Respondent's chief
engineer, brought a "letter of intent" and a new contract to the plumb-
ing shop and explained to the six plumbers that if they signed the
letter of intent indicating approval of the new contract, the Employer
would put the new wage provisions into effect. Four of the six em-
ployees signed the letter of intent but Compton and Boone refused,
relying on the advice of the business agent that the existing contract
could not be modified.
A few'hours later, Way returned to the plumbing shop and told
both Compton and Boone that if they did not sign the letter of intent
they "could not work." Compton again called- Hunt at' union head-
quarters at Charleston, West Virginia (approximately 125 miles from
White Sulphur Springs), and told him that he and Boone had been
directed either to sign the letter or go home. Hunt instructed the
two men to stay on the job until they heard from him again. Later,
after the close of the workday, Hunt called Respondent's general man-
ager and told him to put Compton and Boone back to work and to
pay them for the time they had lost or he would place a picket line at
the hotel. The next morning, Saturday, July 23, Way called Compton
at his home and instructed him and Boone to report for work at 12:30
p.m. that day. Compton told him he wanted to talk to Hunt first,
since Hunt had told him the day before that he would take care of
the matter. Neither man reported for work that day or the following
Monday, July 25. Over the weekend Compton again tried to get in
touch with Hunt by telephone but was unable to do so.
WHITE SULPHUR SPRINGS COMPANY 377
Monday at 11 a.m., Way again phoned Compton and told him that
he and Boone had to return to work by 12:30 p.m. that day. Compton
told Way that he had not yet heard from Hunt and was still confused
about what to do in view of Hunt's advice to wait until he heard from
him. Neither employee returned at 12:30 but 2 hours later Compton
finally reached Hunt, who advised the two men to return to work.
When Compton called Way to tell him that he had heard from Hunt,
Way said that he would have to check with Wright. At 4:30 p.m.,
Compton and Boone were advised they could not return to work be-
cause of their failure to report by the 12:30 deadline.
. The complaint alleged violations of Section 8(a) (1), (3), and (5)
of the Act. The Trial Examiner found that Respondent's threats to
discharge Compton and Boone if they did not sign the letter of intent
and their subsequent termination on Friday, July 22, were violations
of Section 8 (a) (1). He also found, since both men were offered full
reinstatement on July 23 and again on July 25, that Respondent had
fulfilled its obligation to them, and was under no further duty to
rehire or reinstate them. The Trial Examiner also found no violation
of Section 8 (a) (5) with respect to Respondent's offer to the individual
employees in the plumbers' bargaining unit to negotiate a new contract
with them in view of the past practice of the parties whereby the union
representative had required the plumbers to indicate their prior ap-
proval of a proposed contract by signing a letter of intent.
1. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (1) by threatening to terminate Compton and Boone if
they would not sign the letter of intent. We also agree with him that
Wright's remarks to Compton not to pressure the employees, and
telling them to make their decision by a certain time, were not of suffi-
cient gravity to require a finding that Respondent thereby interfered
with or restrained the employees in rights guaranteed under the Act.
2. As noted above, we agree with the Trial Examiner that Respond-
ent violated Section 8 (a) (1) by threatening to terminate Compton and
Boone if they did not sign the letter of intent. We disagree, however,
with his failure to find that the subsequent discharge and refusal to
reinstate them were in violation of Section 8(a) (3). The Respondent
contends that Compton and Boone were not discharged on Friday,
July 22; that they did not consider themselves discharged; and, in
fact, had been advised by Hunt to stay on the job. But in view of their
understanding that their Union had an effective agreement with Re-
spondent which could not be reopened or renegotiated for another 11
months, it is apparent that Compton and Boone were confused by
Respondent's attempt to have the plumbers individually consider
acceptance of a new and different agreement. Respondent made it
clear to them that if they did not sign the letter of intent they could
not work. They were given no other choices. They did not volun-
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tarily leave their jobs, and they were prepared to return to work as
soon as they heard from their representative. Their reluctance to do
anything which might be construed to be in derogation of the Union's
status is understandable, in view of their correct assumption that the
contract could not be modified without the Union's approval.
Since Compton and Boone were discriminatorily discharged, they
should have been afforded a reasonable period to conisder whether Re-
spondent's offer of reinstatement would not prejudice the Union's
status. We note that the first offer was made on a Saturday and gave
them only a few hours within which to reach their representative
who was located 125 miles away. The second offer was made on
Monday morning and was conditioned upon their reporting to work
by 12:30 p.m. Compton and Boone were thus confronted with what
reasonably appeared to them to be a serious problem of whether to
return to work in contravention of what they believed Hunt wanted
them to do. This was all happening, moreover, during a weekend,
when, despite their efforts, they were unable to reach Hunt for further
advice. Under the circumstances, we find that Compton and Boone
were justified in delaying their return an extra 2 hours until they were
satisfied that their bargaining representative had no objections to
their accepting Respondent's offer of reinstatement. By holding its
offer of reinstatement open for an unreasonably short period of time,
Respondent continued to discriminate against Compton and Boone
because of their adherence to the Union's position. However, since
Respondent's offer was otherwise made in good faith, we shall not
hold it liable for backpay from Saturday, July 23, until Compton and
Boone made themselves unconditionally available for employment 2
3. We also conclude that the Respondent violated Section 8(a) (5)
by its demand that Compton and Boone sign the letter of intent and
by attempting to deal directly with the employees in the bargaining
unit, without notice to the Union and without regard for its right to
act as their representative. Respondent contends that the Union's
business agent himself wished to be advised of the intentions of the
plumbers before adopting any bargaining agreement, and that it was
merely carrying out that understanding at this time. The situation
was, however, quite different at this juncture when Respondent was
seeking to modify an existing agreement. In the past, when the busi-
ness agent had requested the Respondent to obtain a letter of intent
from the employees, it was as part of -a course of negotiations in
which the business agent, because of the distance between him and the
unit, had to rely on written communications from the employees as
to their wishes. At the time of the events in question, on the other
hand, the Respondent was seeking to modify the agreement by pre-
senting the business agent with a contract already approved by the
2 Combined Metal Mfg. Corp., 123 NLRB 895, 898.
WHITE SULPHUR SPRINGS COMPANY 379
employees, without his intervention or representation. Moreover,
when Respondent terminated Compton and Boone for refusing to
accept its contract offer, it had attempted to coerce them into a hasty
acceptance of its offer, rather than forwarding a tentative proposal of
the employees to the authorized bargaining representative. If the
Respondent, faced with a request by some employees for modification
of their agreement, had discussed the matter with the bargaining agent
and had left to the latter the choice of obtaining the views of all the
employees in the unit, it would then have complied with its obligations.
By dealing individually with the employees and failing to-accord their
representative an opportunity to consider whether it wished to modify
the agreement, Respondent violated Section 8(a) (5) .1
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
As we have found that Respondent discriminatorily discharged
Charles Compton and Jack Boone, and thereafter refused to rein-
state them because of an unreasonable limitation, we shall order it to
offer them immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, discharging if necessary any individuals hired
to replace them. We shall also order Respondent to make them whole
for any loss of earnings they may have suffered by reason of the
discrimination against them, by payment to each of a sum of money
equal to that which he would normally have earned as wages during
the period (a) from the discriminatory discharge to the Respondent's
effective offer of reinstatement on July 23, 1960, (b) from their un-
conditional request for reinstatement to the date of the Intermediate
Report herein,' and (c) from the date of this Decision and Order to
the date of Respondent's offer of reinstatement, less the net earnings
of each, to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289.
As we have also found that the Respondent unlawfully refused to
bargain by dealing directly with its employees and by not according
the authorized bargaining representative an opportunity to determine
whether it wished to modify the existing bargaining agreement, we
shall order the Respondent to cease and desist from bargaining
directly with its employees or attempting to do so.
3 American Vitrified Products Company, 127 NLRB 701, 715; Medo Photo Supply
Corporation v. N L.R B., 321 U.S. 678, 684.
4 Where the Board, contrary to the Trial Examiner, orders reinstatement of employees,
backpay is normally abated from the date of the Intermediate Report to the date of the
Board 's Decision and Order.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing and the entire record in this case,
we hereby accept the Trial Examiner's conclusion of law No. 1 and
make the following additional:
CONCLUSIONS OF LAW
2. By threatening Compton and Boone with discharge unless they
signed the letter of intent, Respondent interfered with, restrained,
and coerced its employees in the exercise of their guaranteed rights in
violation of Section 8 (a) (1) of the Act.
3. By discharging Compton, arid Boone on July 22, 1960, and by
Tequiring that they accept its reinstatement offer within an unreason-
ably short period of time, Respondent has discriminated with respect
to the hire and tenure of its employees in order to discourage their
support of the Union, and has thereby engaged in and is engaging in
an unfair labor practice within the meaning of Section 8(a) (3) of
the Act.
4. By dealing directly with the employees in the unit represented by
Local 651 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, the Respondent has refused and is refusing to
bargain in good faith within the meaning of Section 8(a) (5) of the
Act.
5. The foregoing unfair labor practices affect commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, White Sulphur Springs
Company, White Sulphur Springs, West Virginia, its officers, agents,
successors , and assigns, shall :
1. Cease and desist from :
(a) Discharging or threatening to discharge employees because they
will not accept the terms of an agreement which is proposed to them
directly, to the exclusion of their authorized bargaining representative.
(b) Refusing to bargaining collectively with Local 651, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, as
the exclusive representative of the employees in the appropriate unit,
by insisting on bargaining directly with the employees about wages,
hours, or other conditions of employment, and by excluding such
authorized bargaining representative from participating in negotia-
tions for a new collective-bargaining agreement.
WHITE SULPHUR SPRINGS COMPANY - 381
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights granted by
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Charles Compton and Jack Boone immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered in the
manner set forth in that section of our Decision and Order entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(c) Upon request, and at appropriate times, bargain collectively
with the above-named labor organization as the exclusive representa-
tive of the employees in the appropriate unit, and, if an understanding
is reached, embody such understanding in a signed agreement.
(d) Post at its hotel at White Sulphur Springs, West Virginia,
copies of the notice attached hereto marked "Appendix." I Copies of
said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the Respondent, be posted
by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Order.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or threaten to discharge employees
because they will not accept the terms of an agreement which is
proposed to them directly, to the exclusion of their authorized
bargaining representative. -
WE WILL NOT refuse to bargain collectively with Local 651 of
the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, as the exclusive representative of the em-
ployees in the appropriate unit, by insisting on bargaining direct-
ly with the employees about wages, hours, or other conditions of
employment, and by excluding such authorized bargaining repre-
sentative from participating in negotiations for a new collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
granted by the Act.
WE WILL offer to Charles Compton and Jack Boone immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay suffered
as a result of the discrimination against them.
WHITE SULPHUR SPRINGS COMPANY,
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.
Employees may communicate directly with the Board's Regional
Office (Transit Building, 4th and Vine Streets, Cincinnati, Ohio;
Telephone Number, Dunbar 1-1420) if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by Local 651 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Ninth Region, issued his
complaint against White Sulphur Springs Company, herein called Respondent. With
respect to the unfair labor practices , the complaint alleges, in substance , that Re-
spondent , by seven incidents specifically alleged and described , interfered with,
restrained, and coerced its employees in violation of Section 8(a) (1) of the Act.
The complaint also alleges that on or about July 22, 1960 , Respondent laid off Charles
R. Compton and Jack M. Boone because of their membership in, and activities on
behalf of , the Union , and refused to reinstate them on or about July 25 , 1960, for
the same reason , thereby violating Section 8 ( a)(3) of the Act . It is also alleged
that Respondent , since on or about July 21, 1960, has refused to bargain in good
faith with the Union in violation of Section 8(a)(5) of the Act. By its answer,
Respondent denied the commission of any unfair labor practice and specifically
WHITE SULPHUR SPRINGS COMPANY 383
pleaded that the discharge of Compton and Boone was because of their refusal to
obey reasonable directions of Respondent to return to work.
At the hearing held before David London , the duly designated Trial Examiner, at
White Sulphur Springs, West Virginia , on November 2, 1960, all parties were repre-
sented by counsel or other representative and were afforded full opportunity to be
heard , examine, and cross-examine witnesses , present oral argument , and to file
briefs. Since the close of the hearing, ' briefs have been received from General
Counsel and Respondent and have been duly considered . Upon the entire record
in the case, and my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a West Virginia corporation , owns and operates the Greenbrier Hotel
at White Sulphur Springs , West Virginia , at which less than 75 percent of the guests
occupy its guest facilities more than 1 month at a time . During the calendar year
1959, which is a representative period , Respondent received gross revenues in excess
of $500 ,000 from the operation of said hotel and had a direct inflow of food , goods,
and merchandise , in interstate commerce , of a value in excess of $50,000 which was
shipped to it from points outside the State of West Virginia . Respondent admits, and
I find , that it is an employer as defined in Section 2(2) of the Act, and is engaged in
commerce and in operations affecting commerce , as defined in Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 651 of the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, is
a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
As indicated above , Respondent operates the exclusive Greenbrier Hotel at White
Sulphur Springs, West Virginia , the maintenance of which requires the services of
approximately 1,000 employees . Since about 1948 , all these employees , other than
supervisory , office clerical , guards, etc., have been represented by six unions and
with whom Respondent maintained yearly collective -bargaining agreements which,
until 1960 , expired on June 15 of each year.
When , during June 1960 , negotiations with Hotel and Restaurant Local 863, which
represented approximately 539 employees , and Maintenance Workers Local 1182,
which represented 210 employees , failed to result in a contract , those organizations
went on strike on June 23 and placed picket lines at the entrances to the hotel
grounds. Most of the employees refused to cross the picket line and Respondent
was forced to close the hotel and remove its guests.
Included among the employees who absented themselves from work until the
strike was settled on Tuesday, July 19 , were the six plumbers with two of whom we
are concerned , and all of whom were represented by the Charging Union herein.
Their union , however , was not involved in the failure of negotiations described above
and that resulted in the strike , because neither their union nor Respondent had
given notice to terminate their 1959 agreement which contained an otherwise yearly
renewal of their 1-year contract , dated June 16, 1959.
The negotiations which ended the strike on July 19, 1960 , resulted in new con-
tracts with the several unions involved , other than the Plumbers . Instead of the
prior 1 -year terms ending on June 15 of each year , the expiry date of these new
contracts was fixed as of December 15, 1962 . In addition , they granted a wage
increase to all the employees covered thereby , and also contained "clauses in which
the party other than the Hotel Company promises certain matters in regard to
crossing a picket line if one should be established ," a provision which was not then
in the Plumbers' contract.
Pursuant to instructions from E. T. Wright , vice president and general manager
of Respondent , the six plumbers were assembled at 10 a.m. of Thursday , July 21,
i On or about November 21, 1960 , the General Counsel made a motion, concurred in by
Respondent , to correct the record of official proceedings herein by making 11 changes in
the transcript of testimony The motion is hereby granted and the transcript is accord-
ingly corrected.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the office of L. B. Way, Jr., chief engineer. Present in behalf of Respondent at
that meeting, in addition to Wright, were Way, James LaDu, personnel director,
and Paul Hudgins, Respondent's attorney. Prior to the meeting, Wright had been
informed that the plumbers "were keenly interested in the settlement with the other
unions," and had expressed some concern "whether it would be possible for them
to get the increases" which the remaining hotel employees had obtained in their
negotiations.
Wright told the six plumbers that they could receive the wage increases and other
benefits given to the other hotel employees,2 but, in that event, a new contract would
have to be negotiated with their union; that they had a "choice of working under the
old, or they could have a new contract" and its benefits, but that he would like to
have their answers within a reasonable time. The plumbers thereupon left the
chief engineer's office and went to their workshop.
As the management representatives were leaving Way's office, Attorney Hudgins
advised Wright that he ought to fix a definite time for the reply to his inquiry
concerning the wishes of the plumbers. Wright thereupon went to the plumbers' shop
where he found the six men engaged in a discussion of the matter he had proposed.
Wright apologized for intruding, and stated that he would like to have their decision
by noon of Monday, July 25. When Compton, the union steward, told Wright that
there was "no way these men could get these added benefits [because they] have a
contract already in force," Wright asked him not to "make it difficult for these
men-[their] contract has been breached." Wright's remark was occasioned by a
reliance on his counsel's opinion that the existing contract with the plumbers "had
been breached by their failure to come to work during the strike." Wright thereupon
left the plumbers' shop.
During the following morning, Friday, L. T. Walton, foreman in charge of the
plumbers, reported to Way that "a majority of the employees were in favor of re-
ceiving these wage increases and other benefits." Shortly thereafter, Way took
"a letter of intent" and a new contract to the plumbing shop, where all the plumbers
were gathered, and laid both documents on the table. He explained "what the letter
of intent was supposed to do," and that he had marked in red on the new contract
the changes which varied the provisions of the contract dated June 16, 1959. Later
that morning, Walton returned the "letter of intent" signed by four of the plumbers
and informed Way that Compton and Boone refused to sign it.
That letter read as follows:
JULY 21, 1960.
Letter of Intent
The undersigned members of United Association of Journeymen Plumbers
and Pipefitters and Apprentices of North America, Local Union 651, A.F. of L.-
C.I.O., hereby declare that they desire to return to work for the White Sulphur
Springs Company and that a contract will be executed on their behalf between
the said Local Union and the said White Sulphur Springs Company, containing
wage rates as follows: an increase of 3¢ per hour over the wage rates set forth
in a contract dated June 16, 1959, between the Company and the Union, with
an additional increase of 30 per hour effective January 1, 1961, plus an additional
51¢ per hour effective January 1, 1962, the new contract to expire December 15,
1962, and to contain the other provisions contained in the Agreement dated
July 18, 1960, between the Electrical Workers Local Union #637 and the
Company.
(S)
(S)
(S)
(S)
H. J. WALTON,
OVID LocK1-IAtT,
THOMAS REED,
M. L. MURPHY.
When Way was informed that Compton and Boone had not signed the letter, he
conferred with Wright and Hudgins. He then returned to the plumbers' shop shortly
before noon, and told both Compton and Boone that if each did not sign the letter,
"he could not work." 3 Both men "stayed in the shop during the rest of the afternoon
but didn't work." Neither man reported for work on the following day, Saturday.
In the meantime, and about noon of Thursday, shortly after Wright had the
conference with the six plumbers, Compton made a long-distance call to Charleston,
2 Wright testified, without contradiction, that "it has been traditional with this Com-
pany to share with all employees, union and nonunion alike, any benefits that are granted
to any particular group."
8 Compton testified that Way told the two men that Wright's instructions were that
the two men "either sign the letter of intent or go home "
WHITE SULPHUR SPRINGS COMPANY 385
West Virginia, and spoke to James L. Hunt, business agent for the Union, and
informed Hunt that Respondent had "propositioned" the men with a new contract.
Hunt replied that the men already had a good contract and inquired how, under the
circumstances, they could accept a new one.
Compton called Hunt again on Friday after Way had presented the letter of intent
and new contract to the men, and "asked him about signing the letter." Hunt told
him not to sign anything, that he would take care of the matter, and that if the men
did not have a good contract he would get them one. Compton conveyed this infor-
mation to the other plumbers.
Compton called Hunt once more that afternoon, and told him that Way had
directed him to either sign the letter or go home. Hunt instructed him to stay on the
job until he heard further from Hunt and that he was going to get "legal advice"
from the Union's attorney. Shortly thereafter on Friday, Hunt called Wright,
"complained . . . that Boone and Compton were not working," and told him that
if they were not put back to work and paid for time lost he would place a picket line
at the hotel.
Way was told of this call by Wright and, on Saturday morning, called the other
four plumbers to his office. He informed the men of Hunt's call to Wright and of a
threat by Compton that if the men "were not allowed to work under the old contract
that Mr. Hunt would cause trouble." The four men responded that "rather than
cause additional trouble they would stay on the job and work under the old contract."
Way called Compton at his home at I1 a.m. and talked to him, as well as to Boone,
who was there at the time. Way instructed both men to report for work at 12:30 p.m.
of the same day and told both men they would be paid for time lost. Compton, the
shop steward, told him he would have to telephone Hunt to find out what to do.
Neither man reported for work that day nor the following Monday, June 25.
About 11 a.m. on Monday, Way called Compton and Boone at their respective
homes and again instructed each man to report for work at 12:30 p.m. that day.
Neither man reported as directed. Compton had tried to reach Hunt by telephone
on Sunday and Monday but was unable to do so until about 2:30 p.m. Monday,
when Hunt again instructed him to go back to work. Compton called Way immedi-
ately thereafter and told him that pursuant to instructions from Hunt he was ready
to return to work. Way replied that because the time limit for the return to work
had expired, he would have to discuss the matter with others, and would advise Comp-
ton as soon as his "status" was determined. Way consulted Wright and Hudgins,
and their decision was not to allow the men to return to work and both Compton
and Boone were so advised. No replacement for either man was hired to the time of
the hearing herein.
B. The issues
The General Counsel, in his brief, has succinctly summarized the issues that, in his
opinion , must be resolved herein, as follows:
1. Whether Respondent committed independent violations of Section 8(a)'(1) of
the Act by interfering with and restraining its plumber employees by: (a) directing
a union shop steward, during a meeting of the employees held to discuss wages and
working conditions offered by the employer, not to pressure the employees, and tell-
ing them to give the employer their decision by a certain date; (b) telling two of the
employees that if they did not sign a "Letter of Intent" they would have to go home
from work, and then telling them they would have to return to work at a specified
time or they would be discharged, and not reinstated.
2. Whether Respondent violated the Act by discharging Compton and Boone and
refusing to reinstate them.
3. Whether Respondent violated Section &(a) (5) of the Act by dealing directly
with, and offering certain wages, working conditions, and contract terms to, its em-
ployees through the exclusion of the employees' collective-bargaining representative.
With respect to 1(a) immediately above, I conclude that Wright's remark to
Compton on July 21, not to "make it difficult" for the other plumbers to make up
their minds whether they wanted a new contract, to be an innocuous remark and
certainly not of sufficient gravity to find Respondent guilty of interfering with, or
restraint of, the rights granted to employees by the Act.
A similar conclusion is reached with reference to Wright's request that Respondent
be notified of the decision by the following Monday. It will be recalled that though
the 1959 contract had been automatically extended to June 15, 1961, Wright had
been informed in July 1960 that the plumbers wanted to know if they could get the
increases that had just been granted to the other hotel employees. In that state of
the record, Wright's request constituted a reasonable attempt to promptly determine
the status of the relationship between the parties, and was not, therefore, violative
of the Act Harcourt and Company, Inc., 98 NLRB 892, 896; The Jacobs Manufac-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turing Company, 94 NLRB 1214, 1225. In this connection, it should be noted that
Shop Steward Compton was one of the persons to whom the request was directed.
I find, however, that Respondent violated Section 8 (a) (1) of the Act 4 when Way,
on July 22, told Compton and Boone that unless they signed the letter of intent they
could not work. Although Way did not state, in haec verba, that the .two men would
be "discharged" or "fired," he made it clear that, unless they signed the letter, their
services would no longer be accepted, or at best, they would have to sign the letter to
retain their jobs. "Any acts or words which show a clear intention on the part of
the employer to dispense with the services of the employee, and which are equivalent
to a declaration that the services will no longer be required or accepted, are sufficient
to effect their discharge." Taylor v. Tulsa Tribune Co., 136 F. 2d 981 (C.A. 10);
N.L.R.B. v. Cement Masons Local No. 555, Operative Plasterers and Cement Masons
International, AFL (Anderson-Westphal Co.), 225 F. 2d 168, 172 (C.A. 9).
Compton and Boone had a right, guaranteed by the Act, to withhold their assent
and signatures to the letter of intent. By Way's threat of discharge unless they signed
the letter, Respondent interfered with, restrained, and coerced these two men in the
exercise of their guaranteed rights, and thereby violated Section 8(a)(1) of the Act.
By denying Compton and Boone employment on July 22 unless they signed the letter,
thereby discharging them, Respondent also violated Section 8(a) (1) of the Act.$
However, I find no violation in Respondent's refusal to rehire or reinstate these
men when they offered to return to work after about 2:30 p.m. of July 25. Not
having complied with Respondent's direction to return to their jobs by 12:30 that
day, Respondent was under no obligation to comply with their request more than 2
hours later. Shop Steward Compton apparently did not feel that he had been dis-
criminately treated for he testified that neither at the time of the event, nor at the
time of the hearing, did he have any "hard feelings against the hotel." Boone testi-
fied that he merely felt that he was caught "in the middle between the union and the
company-the company wanted [him] to go back to work and the union didn't
want [him] to-and [he] chose to do what the union told [him]."
There remains for consideration the last contention of the General Counsel that
Respondent violated Section 8(a)(5) of the Act. In this connection, Respondent
contends, and I think rightfully so, that in determining what conclusion should be
drawn from the facts heretofore found pertaining to Respondent's conduct in this
respect, consideration must be given to the existing background and bargaining history
of the parties, particularly the events that preceded the contracts of June 1958 and
June 1959.
Though the Union had a membership of approximately 117, the 6 or 7 plumbers
employed by Respondent, at all times relevant herein, were the only members there-
of residing in the White Sulphur Springs area. Accordingly, as Hunt testified,
as far as the contract was concerned, it was always the practice of the Union to let
the handful of resident members "be the judging [sic] factor of the issue at hand."
The other members of the Union "had no voice" in the matter.
Thus, in 1958, in the course of negotiaitons for a contract the term of which was
to begin June 16, 1958, the last, if not the only, bargaining conference attended by
Hunt occurred several days prior to May 28 of that year. Respondent's offer,
which Hunt reported to the seven plumbers, was apparently rejected by the men
and Hunt returned to his office in Charleston, West Virginia, approximately 125
miles distant from White Sulphur Springs.
On May 28, 1958, LaDu sent Hunt four copies of a proposed contract. His
accompanying letter read as follows:
Mr. J. L. HUNT, Business Agent,
United Association of Journeymen Plumbers, Pipefitters and Apprentices of
North America, Local Union 651,
115 Court Street,
Charleston, West Virginia.
DEAR MR. HUNT: Enclosed are four copies of the Contract between the
United Association of Journeymen Plumbers and Pipefitters and Apprentices
of North America-Local 651, and the White Sulphur Springs Company.
4Not Section 8(a)(3), as alleged in the complaint
R Though it may not have sufficient probative weight to be characterized as an admission
against interest, in arriving at the above conclusion, some consideration should be given
to Respondent's offer of reinstatement to both men, with backpay, made on July 23 and 25.
The effect of these offers is considered in the section of this report that follows entitled
"The Remedy."
WHITE SULPHUR SPRINGS COMPANY 387
We have gone over the Contract with Mr . Michael Lake Murphy, Shop
Steward , who has informed us the local membership approve and wish the
Contract signed . Thus we present them to you for signing.
It is my thought that you will wish to keep one copy and return the balance
to us.
Enclosed is a letter , to you , from Mr. Murphy, stating his position and the
desire of our employees covered by this agreement.
Your cooperation is appreciated.
Sincerely,
JAL: mjr
Enclosures (5)
JAMES A. LADu,
Director of Personnel, White Sulphur Springs Company.
Also enclosed therein , was the following letter addressed to Hunt , as business agent
for the Union, and reading as follows:
MAY 28, 1958.
DEAR MR. HUNT : The membership of Local 651 , United Association of
Journeymen Plumbers and Pipefitters and Apprentices of North America, agree
to the terms of the enclosed Contract and wish it be signed . As Shop Steward
for our local, I am sending this information along with the Company's letter and
the Contract forms.
Sincerely yours,
MICHAEL LAKE MURPHY,
Shop Steward, Local 651.
After receiving these letters , Hunt, without further negotiation , signed the contract.
On February 11, 1959 , the Union advised Respondent that it desired to open
negotiations for the term beginning June 16 , 1959. Two bargaining conferences
were held in White Sulphur Springs on June 4 and 12 attended in behalf of the
Union , by Hunt and Shop Steward Compton . No agreement being reached, Hunt
left town during the evening of June 12 and never returned for any further negotia-
tions concerning the 1959 contract.
Because of the failure to reach agreement by the expiration date of the 1958 con-
tract, the plumbers went on strike on or about June 16, 1959 , but returned to work
on June 18 . On June 20 , LaDu wrote Hunt the following letter:
JUNE 20, 1959.
Mr. JAMES L. HUNT,
Business Agent,
United Association of Journeymen Plumbers , Pipefitters and Apprentices of
North America , Local Union #651,
115 Court Street,
Charleston, West Virginia.
Subject : Agreement between Local #651 and the White Sulphur Springs Com-
pany, effective June 16, 1958.
DEAR MR . HUNT : As you know , the above contract terminated on June 15,
1959 . The plumbers who were employed by this Company under that contract
came to work without a contract on June 18th. We have been advised that
the plumbers wish to work under a similar contract and, therefore , we are en-
closing an original and a copy of a new contract dated June 16, 1959, effective
for one year.
It is assumed that you join us in wanting the plumbers to have the benefits
which will accrue to them under this contract . If the contract is signed and
returned immediately, the provisions will become effective as of June 16, 1959.
Obviously , if there is any delay in its execution and return to us, the contract
will not be effective except from the date it is executed and received by us.
Very truly yours,
WHITE SULPHUR SPRINGS COMPANY,
(S) JAMES A. LADu,
Director of Personnel.
cc: Mr . Charles Compton, Shop Steward
Hunt was apparently not shocked by this turn of events, nor did he complain that
the plumbers had directly "advised" Respondent of their wishes concerning a con-
tract, for he made no contact with Respondent until more than a month later, on
July 29 , when he telephoned LaDu . In that conversation , Hunt voiced no protest
concerning the status of affairs , but asked LaDu "one salient question . . . [did]
641795-63-vol. 136-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent have a piece of paper or form indicating the plumbers ' . . . desire and
wish to have the contract signed by Mr. Hunt?" LaDu replied that he did not.
LaDu reported the conversation with Hunt to Holtzman , the then manager of
the hotel . Because Hunt apparently had not contacted the plumbers , Holtzman
called a meeting of these employees , "brought the men up to date , chronologically,"
and explained the negotiations that took place in 1958. He further told the men
that Hunt had telephoned LaDu and asked him whether he "had such a paper"
for the current 1959 negotiations and that LaDu had replied that he did not.
On July 30, a copy of the following letter was received by Holtzman: 6
Mr. J. L . HUNT,
JULY 30, 1959.
Business Agent,
L.U. 651.
It has been agreed on by the undersigned to accept the Contract as offered
by the Company and would like your signature as approval.
By doing so, we would then be granted the (8 ) cents an hour wage increase
which has automatically been retracted.
(S)
(S)
(S)
(S)
(S)
(S)
(S)
M. L. MURPHY,
K. L. WRIGHT,
E. L. PERRY,
L. T. WALTON,
Ovm LOCKHART,
THOMAS REED,
JACK BOONE.
Finding that the contract mailed to him "was in compliance" with the above letter,
Hunt, on or about August 11, signed and mailed the contract to Respondent. He
specifically admitted that he had never "complain [ed] of the fact that the men had
signed this letter of intent ," notwithstanding the fact that he had not participated
in the negotiations that resulted in agreement.
Though I am mindful of the well -established principle that where a collective-
bargaining representative of employees has been chosen by them , it is incumbent
upon the employer to bargain with that representative and no other , I am never-
theless convinced that , under the circumstances existing here , Respondent's conduct
was not violative of the Act.
I find no evidence in this record that Respondent engaged in negotiations with
the employees "to the exclusion of the employees ' collective bargaining representa-
tive," as claimed by the General Counsel . Indeed , the letter of intent , the very
document which occasioned this entire proceeding and upon which the general
Counsel relies , was prepared for the plumbers by Respondent and states "that a
contract will be executed on their behalf between [ the] Union" and Respondent.
It will also be recalled that , according to the testimony of Hunt, the business agent
for the Union , it was always the practice of the Union , "as far as the contract was
concerned ," to let the six or seven plumbers employed by Respondent decide under
what terms and conditions they were to be employed . Whether this was due to the
fact that they constituted a small , compact unit by themselves , and or because they
constituted such a small proportion of the total membership of the Union and were
located approximately 125 miles distant from the Union 's headquarters , or for any
other reason , is no concern of mine. Hunt 's testimony , however, establishes that the
Union acquiesced in the local unit 's negotiation of their own contract with Respond-
ent, and merely required it to notify union headquarters of the results thereof by
a letter of intent . It was after this information was received , and presumably with
full knowledge how accord was achieved , that the formal written contracts were
signed by union officials.
This is what was done in 1958 and 1959 , and establishes a pattern of conduct
satisfactory to the Union , Respondent , and the employees . Until this proceeding
was instituted , not a single voice was uttered in protest thereof by any union official,
nor was there any suggestion that Respondent 's meeting and negotiations with the
men was in derogation of the Union 's status as collective -bargaining representative.
I conclude, therefore , that by acquiescing in the 1958 and 1959 practice detailed
above, the Union authorized its White Sulphur Springs unit to continue that practice
in 1960 , and that Respondent 's conduct in these last negotiations was not violative
of the Act. Joseph E. Cote, d/b/a J . E. Cote, and Brook Farms Foods, Inc., and
Edouard Cote, 101 NLRB 1486 ; Allis-Chalmers Manufacturing Company, 106
OIts phraseology and form indicate It was prepared by the plumbers and not by any
official or counsel of Respondent
OWENS-ILLINOIS GLASS COMPANY 389
NLRB 939 , 949-950; The Frohman Manufacturing Co., Inc., 107 NLRB 1308, 1314.
The Stanley Works, 108 NLRB 734, 746; and Frank L. Sample , Jr., Inc., 118
NLRB 1496 , 1500-1501 , upon which the General Counsel relies , are inapposite.
In Stanley Works, "the Respondent appealed directly to the employees themselves
to accept the final offer , which the Union 's membership had already rejected." Here,
the employees in question had, in effect, been authorized by their union to carry on
their own negotiations.
In Sample, the company took its own poll of the employees on a matter concerning
which the union had already expressed its desires at a union meeting. There, the
company defended its conduct on the ground "that its action was taken with the
acquiescence of the collective bargaining agency and was, therefore , protected." The
Board found , however , there was "no evidence to support the foregoing assertion of
the Company . . At the earliest opportunity after the union committee, made
up of plant employees , learned of the Respondent 's plan to poll the employees, it
registered a vigorous but ineffective protest over the proposed balloting. In the
light of these facts , therefore , it can hardly be said that the Union acquiesced in the
Company's plan to poll the employees on the lunch hour question."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Though I have found that Respondent unlawfully discharged Compton and Boone
on July 22 , 1960 , both men were offered reinstatement and backpay on July 23, and
were again offered reinstatement on July 25 , both of which offers were rejected.
Under these circumstances , I find no authority which authorizes me to require that
Respondent repeat its offer to these two men.7
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce , and the Union is a labor organization,
both within the meaning of the Act.
2. By threatening Compton and Boone with discharge unless they signed the
letter of intent , and by discharging them on July 22, 1960 , Respondent interfered
with , restrained , and coerced its employees in the exercise of their guaranteed rights
in violation of Section 8 (a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
4. Respondent did not discriminate against Compton and Boone by refusing to
reinstate them after ,they rejected previous offers of reinstatement.
[Recommendations omitted from publication.]
7In this connection , it should be noted that Respondent apparently has been able to
satisfy its needs for plumbers by the staff that remained after Compton and Boone were
discharged . No replacements have been hired since that time.
Owens-Illinois Glass Company and United Marine Division,
NMU, AFL-CIO, Local 333, Petitioner . Case No. 12-RC-1293.
March 19, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before M. E. Stadler, hearing offi-
136 NLRB No. 32.