Wyandotte Chemicals Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1954

108 N.L.R.B. 1406 (N.L.R.B. 1954)

1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By such conduct and by threats and warnings of its foremen, Respondent has interfered
with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act and has thereby violated Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not violate the Act in any particular by the discharge of Martin
Brown or by delaying the recall of strikers following May 30.
[Recommendations omitted from publication
WYANDOTTE CHEMICALS CORPORATION and WILLIAM F.
PATTERSON
LOCAL 12270, DISTRICT 50, UNITED MINE WORKERS OF
AMERICA and WILLIAM F. PATTERSON. Cases Nos. 7-CA-
886 and 7-CB-148. June 22, 1954
DECISION AND ORDER
On January 28, 1954, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondents, Wyandotte Chemicals Corpora-
tion, herein called the Company, and Local 12270, District 50,
United Mine Workers of America, herein called the Union, had
engaged in and were engaging in certain unfair labor practices
alleged in the complaints 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 Intermedi-
ate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner
with the following additions, exceptions, and modifications:
1. We find, in substantial agreement with the Trial Examiner,
that the Union made threats to strike, permitted and endorsed
a strike, and caused the Company to deny overtime work to
William F. Patterson, all because of Patterson's dual union
activities and because he failed to engage in an earlier work
stoppage in March 1952, as more fully set forth in the Inter-
mediate Report. By such conduct, the Union violated Section 8
(b) (1) (A) and (2) of the Act.
2. We also agree with the Trial Examiner that the Company
violated Section 8 (a) (3) and (1) of the Act by acceding to the
Union's demand that Patterson be denied overtime work. While
the Company had no desire to penalize Patterson because of his
dual union activities or because he was not a member of, and
108 NLRB No. 196.
WYANDOTTE CHEMICALS CORPORATION 1407
did not assist , Local 12270, under the circumstances of this
case , we find that the Company knew that the Union, in demand-
ing denial of overtime work to Patterson , was motivated by the
fact that he was not a member of the Union and by the further
fact that he failed to participate in the work stoppage of March
1952. Clearly, the Company knew, in June 1953, that the union
employees refused to work with Patterson because of his non-
union status . We infer that the Company had knowledge from
the outset of the reasons which motivated the Union in de-
manding that overtime work be denied to Patterson from the
following circumstances : (1) As early as January 1952, Patter-
son objected to the Company that the Company had stopped
deducting union dues from his wages , although authorized in
writing to do so ; and the Company then knew that the Union
had removed Patterson ' s name from the dues checkoff list;
(2) the employees voiced no objection to working with Patterson
until shortly after he refrained from participation in the March
1952 strike; ( 3) Patterson was the only welder who remained
at work in the plant during the March 1952 strike ; and (4) the
Company questioned the Union' s offered explanation , namely,
that the employees refused to work with Patterson because they
regarded him as an unsafe worker, by pointing to his unblem-
ished accident record of long standing . By acceding to the
Union' s demand with such knowledge the Company encouraged
membership in the Union and thus discriminated against
Patterson within the meaning of Section 8 (a) (3) and also in-
terfered with, restrained , and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (1).
3. We do not agree , however, with the Trial Examiner's
conclusion that the Company violated Section 8 (a) (2) of the
Act by denying overtime work to Patterson under the circum-
stances of this case . We are of the opinion that this is not the
type of support , standing alone , which Congress had in mind in
enacting Section 8 (a) (2) of the Act. Accordingly, we shall
dismiss the 8 ( a) (2) allegation.
4. In accordance with previous decisions , we reject the
Company' s contention that back pay should not be assessed
and no cease and desist order should issue against the Company
because it yielded to the Union' s economic pressure in denying
overtime work to Patterson.'
5. We also find no merit in the contention that Patterson's
delays in filing the charges in this case bars all relief or tolls
the back-pay period . The unlawful conduct of the Respondents
began shortly after March 1952 and has continued at least to
the date of the hearing before the Trial Examiner . Patterson
filed his charge on March 18, 1953. Accordingly, we shall order
that the Respondents jointly and severally make whole Patterson
'See, for example , Acme Mattress , 91 NLRB 1010 , enforced 192 F . 2d 524 (C. A. 7); The
Englander Company, Inc., 108 NLRB 38; N. L . R. B. v. Puerto Rico Steamship Assoc.,
211 F . 2d 274 (C. A. 1).
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of earnings attributable to their unfair labor
practices during the period from September 18, 1952, the
beginning of the 6-month limitation period of Section 10 (b)
of the Act , to the date when such unfair labor practices
terminate.
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:
I. The Respondent Company , Wyandotte Chemicals Corpora-
tion , Wyandotte , Michigan , its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in Local 12270, District 50,
United Mine Workers of America , or in any other labor
organization , by denying or reducing overtime of any of its
employees or by discriminating in any other manner in respect
to their terms or conditions of employment, except as authorized
in Section 8 (a) (3 of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrainfrom any or all of
such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) List William F. Patterson on its overtime schedule with
a number of hours equal to the average of the other class A
welders on the date of such listing , and thereafter offer to him
full and equal overtime assignments.
(b) Jointly and severally with the Respondent Union make
whole the said William F. Patterson for any loss of pay he may
have suffered by reason of the discrimination against him, in
the manner set forth in the Decision and in the section of the
Intermediate Report entitled " The Remedy."
(c) Post at its plant in Wyandotte , Michigan , copies of the
notice attached hereto and marked "Appendix A." 2 Copies
of said notice , to be furnished by the Regional Director for
the Seventh Region , shall , after being duly signedby its repre-
sentative , be posted by the Company immediately after receipt
2 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."
WYANDOTTE CHEMICALS CORPORATION 1409
thereof, and be maintained by it for sixty ( 60) consecutive days
thereafter , in conspicuous places , including all places where
notices to its employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices
are not altered , defaced , or covered by any other material.
(d) Notify the Regional Director for the Seventh Region, in
writing, within ten (10 ) days from the date of this Order, what
steps it has taken to comply herewith.
II. The Respondent , Local 12270 , District 50, United Mine
Workers of America , its officers , agents , representatives,
successors , and assigns , shall:
1. Cease and desist from:
(1) Demanding , requiring , instructing , or inducing the Re-
spondent Company , its officers , agents , successors , or assigns,
to deny or reduce overtime of any employees because they are
not members in good standing in the Respondent Union , except
in accordance with Section 8 (a) (3) of the Act.
(2) In any other manner causing , or attempting to cause, the
Respondent Company, its officers , agents , successors, or
assigns, to discriminate against any employee in violation of
Section 8 ( a) (3) of the Act.
(3) In any other manner restraining or coercing employees
in the exercise of any right guaranteed in Section 7 of the Act,
except to the limited extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment , 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) Notify the Respondent Company, in writing , that it with-
draws its objections to the assignment of overtime to William
F. Patterson equitably and in accordance with the Company's
regular procedure , and requests the Company to list him on
its overtime schedule with a number of hours equal to the
average of the other class A welders.
(b) Jointly and severally with the Respondent Company make
whole the said William F. Patterson for any loss of pay he may
have suffered by reason of the discrimination against him, in
the manner set forth in the Decision and in the section of the
Intermediate Report entitled " The Remedy."
(c) Post at its office in Detroit , Michigan , copies of the
notice attached hereto and marked "Appendix B." 'Copies of
said notice, to be furnished by the Regional Director for the
Seventh Region, shall , after being duly signed by the Re-
spondent Union's representative , be posted by the Respondent
Union immediately upon receipt thereof, and be maintained
by it for sixty ( 60) consecutive days thereafter , in conspicuous
places, including all places where notices to its members are
customarily posted . Reasonable steps shall be taken by the
3See footnote 2, supra.
339676 0 - 55 - 90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for the Seventh Region
signed copies of the notice attached hereto and marked "Appen-
dix B ," for posting , with permission of the Company, in the
Company 's plant, for sixty ( 60) consecutive days, in places
where notices to employees are customarily posted. Copies
of said notice , to be furnished by the Regional Director for the
Seventh Region , shall after being duly signed by the Re-
spondents Union' s representative , be forthwith returned to
said Regional Director for such posting.
(e) Notify the Regional Director for the Seventh Region, in
writing , within ten (10 ) days from the date of this Order,what
steps have been taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint against
the Respondent Company, insofar as it alleges that it violated
Section 8 (a) (2) of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of
the National Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT encourage membership in Local 12270,
District 50, United Mine Workers of America, or any
other organization , by denying or reducing overtime to
any of our employees or by discriminating in any other
manner in respect to their terms or conditions of em-
ployment.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of the right to self- organization , to form labor organi-
zations , to join or assist Local 12270 , District 50,
United Mine Workers of America, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
or all of such activities except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL list William F. Patterson on our overtime
schedule with a number of hours equal to the average
of the other class A welders on the date of such listing,
and offer to him full and equal overtime assignments,
and, jointly and severally with Local 12270, District 50,
WYANDOTTE CHEMICALS CORPORATION 1411
United Mine Workers of America, make him whole for
any loss of pay suffered as a result of the discrimination
against him.
WYANDOTTE CHEMICALS CORPORATION,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof and must not be altered, defaced , or covered by any
other material.
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
our members that:
WE WILL NOT demand, require, instruct, or induce
Wyandotte Chemicals Corporation , its officer , agents,
successors , or assigns , to deny or reduce overtime of
employees because they are not memberh in good standing
in this labor organization , except in accordance with
Section ( a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt
to cause Wyandotte Chemicals Corporation to discriminate
against any employee in violation of Section 8 (a) (3) of
the Act.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of any right guaranteed in
Section 7 of the Act , except to the extent that such right
may be affected by the provisos to Section 8 (a) (3) of
the Act.
WE WILL jointly and severally with Wyandotte Chemicals
Corporation make whole William F. Patterson , for any loss
of pay suffered as a result of the discrimination against
him.
LOCAL 12270, DISTRICT 50, UNITED MINE
WORKERS OF AMERICA,
Labor Organization.
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.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
The complaints in these consolidated cases allege respectively that the Company has
violated Section 8 (a) (1), (2) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, by denying and/or reducing overtime employment of William F. Patterson, because
of his nonmembership in and refusal to assist the Union, because of his membership in and
activities on behalf of other labor organizations, and because the Union demanded that the
Company deny overtime employment to him; and that the Union has violated Section 8 (b) (1)
(A) and (2) of the Act by itself denying overtime to Patterson and by attempting to cause and
causing the Company to commit the acts alleged against it and for the reasons, except the
last, noted supra. (No evidence was offered that the Union denied overtime to Patterson;
that allegaton is hereby dismissed.) The answers deny the allegations of unfair labor practice,
and the Company alleges affirmatively that it offered overtime to Patterson whenever work
was available which he could perform alone or in cooperation with other employees. A
hearing was held before me at Detroit, Michigan, from December 7 to 9, 1953, inclusive.
Upon the entire record in the case and from my observaton of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and stipulated arid I find that the Respondent, a Michigan corporation with its
principal office and place of business at Wyandotte, Michigan, and plants in Wyandotte and the
States of California, Mississippi, and Kansas, is engaged in the production of heavy chemicals;
that it annually purchases raw materials valued at more than $1,000,000, more than 60
percent of which is shipped to the Wyandotte plant from points outside the State of Michigan;
that it annually manufactures and sells products valued at more than $1,000,000, approximately
50 percent of which is shipped from the Wyandotte plant to points outside the State of Michigan;
and that the Company is engaged in interstate commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES
The General Counsel points out that Section 8(a) of the former and now current agreements
between the Company and the Union provides that the union-security clause is not to become
operative unless and until the procedure followed is by law permitted for that purpose. But
the Respondents do not here seek to justify their acts by theumon-security clause (As the
issues developed, the noncompliance status of the Union is thus immaterial.) The defense,
rather, is a denial that Patterson was interfered with or discriminated against and that such
discrimination was caused by the Union.
Nor need we consider the validity of the agreements since it is not alleged that, as dis-
tinguished from the practices followed, they violated the Act.
A. Outline of events
No finding is made herein that acts which occurred prior to September 18, 1952, the begin-
ning of the 6-month statutory period, are violations of the Act. But denial or limitation of over-
time within the statutory period is a violation even if it be a continuance of similar earlier
acts; and while earlier pressure by the Union is not cited as an unfair labor practice, the
reasons therefore and the intent indicated explain the later pressure, as do the reasons there-
fore cited and noted infra.
The Company and the Union were parties to a collective-bargaining agreement executed on
January 26, 1950, and thereafter extended to January 21, 1953, when another agreement was
entered into to be in effect, with supplemental agreements, until January 21, 1954.
Patterson, a welder in the plate shop, was removed as steward on October 3, 1951. He was
suspended from the Union by action taken on April 2, 1952, and affirmed on May 29, 1952.
As noted supra, it is here immaterial, althoughthe point was clearly made, that the suspension
was for reasons other than nonpayment of dues or initiation fees; the issue centers on the
denial of overtime, not on the suspension from the Union. In fact, Patterson had engaged in
WYANDOTTE CHEMICALS CORPORATION 1413
dual union activities while he was a steward,although there is no evidence that the Company
had knowledge of those activities or that it discriminated against him for that reason or be-
cause he was not a member of and did not assist Local 12270.
Patterson was near thetopin theovertimeschedule prior to the week ending March 31, 1952.
During that week a work stoppage followed disciplinary action taken by the Company against
some employees. Of the welders, Patterson alone remained on the job, and his overtime that
week was exceptionally high. Thereafter he was offered no more overtime until sometime
after March 31, 1953. (The charges herein were filed on March 18, 1953.) For the calender
year 1952 he was listed with 1062 hours, the next lowest being 219, and the average for the
other men being 228. The corresponding figures in 1952 through November 23 are 36k, 26344,
and 295.
Part of the 3644 hours was worked on June 6, 1953 (this date was first declared to be "about
June 7, "and the mdicent was thereafter referred to at the hearing as that of June 7; but it is
clear that it occurred on Saturday), when Patterson alone was called in to finish a pipe welding
job. On the following Tuesday, when that pipe was to be installed, the pipe shop men refused
to work on it, and went home. (The testimony in this connection is considered infra.) They
came in on Wednesday, voted against working on that job, and again went home. On Thursday,
some worked and others went home. By Monday of the following week, all were back at work.
B. The alleged violation of Section 8 (a) (1), (2), and (3)
The established procedure in assigning overtime to welders calls for continuing on a job
the man who is working on it at the close of the normal working day unless his overtime
accrual for the calendar year to that time is 20 hours or more in excess of that of the man
with the lowest accrual; in which latter case the low man is called for the job. This "verbal
rule" had existed for several years, and was reduced to writing and signed on behalf of both
the Company and the Union on May 26, 1952. The agreements between the Company and the
Union provide that overtime be divided "as equitably as possible." It was admitted on behalf
of the Company that the division was not equitable in Patterson's case: because the union
stewards told the foremen that the men would not work with him, the Company had decided
not to give Patterson overtime. It now assigns overtime to him only if he can work on the job
alone. (This is likewise the case with respect to work during regular working hours, to the
point that he is sometimes paid when he does no work.) Further, the Company decided not to
discipline those who refused to handle Patterson's work as hereinabove noted or to work
with him, although the agreements authorize discharge for such refusals.
Of the various bases alleged by the General Counsel for a finding of discrimination by the
Company, the latter's witnesses thus admitted (this term is used since we are here consider-
ing only the Company's liability) that the Union demanded and brought pressure to bear on it
to deny overtime to Patterson. The Act does not itself require equality of overtime, but the
job and the Company's practice do; and the denial of equality at the Union's insistence con-
stitutes discrimination within the meaning of the Act. The "Practicalities" of the situation
do not exculpate the Company from its submission (likewise admitted by its counsel) to such
pressure.t I find unlawful discrimination by the Company against Patterson and, derivatively
in such a case because it was committed at the instance of the Union, unlawful support2 as
well as interference.
C. The alleged violation of Section 8 (b) (1) (A) and (2)
We come now to the evidence against the Union on the issue of its alleged demands and
pressure. Shortly after the March 1952 work stoppage, Bakhaus, a steward and admittedly
acting in a representative capacity as do all the stewards, told Behm, a supervisor, that the
other men in the plate shop would not work with Patterson; nor would employees in other
departments work with him. Connell, another steward, has several times made similar
statements to Behm, the first in April or May 1952, and the last time a few months before
the hearing.
Lewis, the Company's director of industrial relations, testified to several conversations
with Cebula, the first soon after March 31, 1952. Cebula was area committeeman and chair-
man of the Union's bargaining committee at that time. Cebula told Lewis that the men would
'Pappas and Company, 94 NLRB 1195.
2Otis Elevator Company, 97 NLRB 786.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not work with Patterson because the latter was unsafe to work with and that he (Cebula)
could not force them to work with Patterson. On each occasion when Lewis spoke with Cebula
concerning this, the latter replied that the men in the plate shop and in other departments
would not work with Patterson. When Lewis cautioned Cebula about the contract provision
against collective or individual interference with or refusal to work, Cebula replied that the
responsibility was the Company's, not the Union's; this despite the express provision that
the Union would not "cause, sanction, or permit" such action. That the unsupported charge
that Patterson is "unsafe" was not in fact accepted or indorsed by Cebula is clear from
Lewis' testimony that, then he pointed out that Patterson had not been involved in any accidents,
Cebula's sole reply was again that he could not make the men go to work. Even were we to
accept the claim that the unanimous reaction of the employees was "personal and individual"
(of which more infra), the declaration thereof by a union representative and his attempt to
justify such reaction might under these circumstances constitute union action.
This earlier pattern was continued, and later evidence thereof is found in the strike or
work stoppage vote of June 10,1953; Steward Bledsoe's and Committeeman Janes' declarations
in June 1953 to pipe shop foreman Moores and Personnel Supervisor Galletti that the men
would not handle scab work; and Connell's statement to Lukasik, a supervisor in the plate
shop, that if Patterson were put on other overtime jobs, the men would not work.
All of this testimony by Company representatives stands undenied. I credit these witnesses
who, as noted supra, thus admitted the Company's liability. It is therefore unnecessary to
rely on Patterson's testimony concerning conversations with the Union's and Company's
representatives, the denials thereof, and his inability to get his steward to file a grievance
because he wasn't getting overtime; and to weigh the varied extent of these other witnesses'
apparent reliability, as I observed them. Since that conflicting testimony was received, how-
ever, when it was not yet apparent that there would be uncontradicted testimony concerning
conversations between company and union representatives, analysis of the Union's testimony
will indicate the extent of credibility and reveal the facts concerning the refusals to work
with Patterson, including the issue whether they were in concert.
The marked reaction to Patterson's working alone on June 6, 1953, was ostensibly so great
because of the allegedly unsafe condition created when a welder works alone. We are told
that maintenance by the Company of that unsafe condition on that day impelled the other
welders to refuse for several days to work--and such refusals were continued until a formal
grievance was filed. Yet for more than a year prior to that date and during the period since,
these employees, so concerned, even outraged by that unsafe condition, have not only per-
mitted it but have in factcaused and insisted on it as they have refused to work with Patterson.
(Whatever hazards may exist when welding is done in vats or on installed pipes where there
is danger of leakage, it appears that the pipe on which Patterson worked on June 6 was there-
after installed.)
In further explanation, we hear that Patterson was himself "unsafe." But asked why he
was unsafe, Janes cited only his working alone on June 6, together with other incidents which
would indicate that Patterson is "bull-headed" and possessed of that too common short-
coming, an exaggerated sense of self-importance, all of which allegedly resulted in "personal
and individual" refusals to work with him. Cebula testified that when he was told that Patterson
is an unsafe worker, he investigated the matter.But his investigation was confined to "taking
the men's word for it." As noted supra, when Lewis discussed the matter with Cebula and
pointed out that Patterson had had no accidents, Cebula had no reply.
There is no evidence that Patterson is an unsafe worker, and I do not credit the hear-
say that he was thought to be. As noted, whatever unsafe aspects are inherent in his regu-
lar solitary employment are imposed on him by the very refusals to work with him. As
for the weight to be given to the hearsay that Patterson is personally obnoxious to fellow
employees as support for their refusals to work with him, certain facts clearly stand out:
Patterson was elected steward by his fellow welders and served annually from 1946 to
1951, such service was terminated, not by election of another, but by removal notice from the
3The Company stipulated and the evidence shows that Moore, who is in charge of 53 em-
ployees, is a supervisor within the meaning of the Act. As far as the Union is concerned,
aside from the evidence concerning Moore's duties, Bledsoe recognized him as supervisor
as he urged him not to assign the men to a particular job, under threat of strike; and the
employees recognized Moore's power authoritatively to assign the work when they left the
job rather than follow his assignment, and later repeated the performance after voting on
the question.
WYANDOTTE CHEMICALS CORPORATION 1415
committeeman in October 1951 after the former had engaged in dual union activities; he
was apparently considered by his fellows to be neither unsafe nor otherwise undesirable as
late as March 24, 1952, as his overtime record attests , and prior to which time there do not
seem to have been any complaints to the Company about his work or personality; his alleged
serious shortcomings were called to the Company 's attention suddenly and at once insistently
immediately after he failed to join in the work stoppage during the week ending March 31, 1952;
and work stoppage followed Patterson 's overtime employment on June 6, 1953. (We need not
here repeat the conversations between the Union's and the Company's representatives,
described supra.)
In addition to my inability to credit the Union 's various explanations , I note the statement
by Janes in connection with the June incident that the objection there was not that Patterson
worked on that job, but that he worked alone. (Janes also declared that the men figured that
they, emphasizing that word , should have finished the job on Saturday since they had started
it. But their assignment would further have violated the rule and procedure established for
the assignment of overtime.) Although d group of 35 or more men considered themselves
so seriously affected that they refused to work at all, there was delay until Thursday, June
11, in filing a grievance . Not until June 10 was the grievance submitted to the steward. An
explanation for this delay can be found in the fact that objection to the assignment to Patterson,
because he was persona non grata to the Union , was not at first considered to be a basis for
filing a grievance . While the objection that those who started the job should have been per-
mitted to finish it on June 6 maybe recognized as personal with the men immediately involved,
it is not only part of the general pattern of the Union 's failure to eliminate this atmosphere
of interference and discrimination and its representatives ' participation therein, but here
specifically the Union indorsed and supported the refusal to work. In fact , it is no idle
speculation to realize that any welder who did not join in the stoppage after the June 6
assignment to Patterson would face the treatment accorded to him for his temerity in March
1952.
Would we seek explanation for the refusals to work with Patterson or on his jobs, it may
be found, as noted supra, in the fact that Patterson , as he "admitted right on the stand, ...
was soliciting business for a rival union. Right in the plant while he was a Union steward for
the United Mine Workers ." In the terms of Erastian doctrine , cuius regio , eius religio: the
religion of a province is determined by the religion of its ruler. The repo here is the Union;
hence, says the doctrine , no other union may be supported . But the law says otherwise, and
Patterson could not lawfully be discriminated against for this reason . Even were one inclined
to apotheosize the Union and subscribe to a doctrine of organizational pantheism, the limita-
tions imposed by statute must nevertheless be recognized.
Having analyzed the Union 's testimony in explanation of the refusal to work with Patterson,
I do not credit it. But even if it were credited and accepted as sufficient , the statements by
union representatives made to the Company, which I do credit, are violative of the Act. I find
further that the refusal to work was a concerted action which the Union permitted by its
admitted failure to discipline its members , and which it endorsed . Such permission and
endorsement , the actual threats to the Company by union representatives in order to prevent
various assignments to Patterson , and the accomplishment of that objective are in violation of
Section 8 (b) (2) and (1) (A). !
The testimony concerning filing of a grievance or Patterson 's attempt to do so is not di-
rectly relevant to the issue of discrimination in overtime . The General Counsel nevertheless
points to the alleged refusal by Connell to handle Patterson 's grievance as indicating the
Union 's attitude toward him . Aside from the fact that the Union 's attitude and acts have been
more directly established, the General Counsel would, by himself pointing to the Union's acts
in removing Patterson as steward and expelling him, meet the Union's denial that he sought
to file a grievance. But this is another way of urging that unlawful intent is established not
only by the early acts , but also by a later alleged act proof of which itself depends on the
prior ones . Such an issue must stand or fall with proof of the prior acts and without the
later, which , because of its dependent status , is at best redundant.
It was argued that of approximately 2,450 employees in the bargaining unit, some 40 are
not members of the Union ; and full overtime is not denied the others . What the surrounding
circumstances are in the other situations, and the extent of their similarity to that before us,
we do not know. To mention only two items , we do not know and need not speculate whether
the other nonmembers engaged in dual union activities , stressed by the Union 's counsel, or
4Cf. Pappas and Company, 94 NLRB 1195.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether they joined in the various work stoppages . Hence the fact of noninterference and
nondiscrimination in those other cases is of little value in determining attitude and intent
here. (Since the end of June 1952, all of the Class A welders in the Plate Shop except Patterson
have been members of the Union.) Nor, as far as discriminatory action and interference are
concerned, is it necessary that the Respondents act against all or any other nonmembers to
make unlawful any proven violative acts against one.5
No more persuasive is the Union 's reliance on the "recommendation " that members re-
frain from interfering with the employment rights of Patterson and other suspended indi-
viduals , noted in the decision of suspension issued by the Union's International Commission.
Where, as noted supra, the Union disclaims responsibility for an obligation specifically estab-
lished by contract , it is not to be expected that its recommendation under aggravated circum-
stances will be heeded . But in any event , subsequent action of union representatives belied
the fair works, 6 and the recommendation does not relieve the Union of responsibility and
liability for contrary action taken by its representatives.
The Union not only attempted but it succeeded in causing the Company to discriminate in
violation of the Act. The activity noted also constituted violative restraint and coercion by
the Union.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section II, above, occurring in connection
with the operations of the Company described in section I, above, have a close, intimate, aiid
substantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondents have engaged in and are engaging in certain
unfair labor practices affecting commerce, I shall recommend that they cease and desist
therefrom and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company, by reducing and denying overtime employment to
Patterson, discriminated against him in regard to his terms and conditions of employment in
violation of Section 8 (a) (3) and (1) of the Act, and that because such discrimination was in
response to the Union's demand, the Company contributed unlawful support in violation of
Section 8 (a) (2) of the Act; and that the Union caused the Company so to discriminate, and
itself restrained and coerced employees in violation of Section 8 (b) (2) and (1) (A) of the Act.
I shall therefore recommend that the Company list Patterson on its overtime schedule with a
number of hours equal to the average of the other class A welders on the date of such listing,
and thereafter offer to him full and equal overtime assignments; and that the Company and
the Union, jointly and severally, make him whole for any loss of pay he may have suffered by
reason of the discriminatory action aforementioned by payment to him of a sum of money
equal to that which he would normally have earned in overtime to the date t of restoration
as above directed but for the discrimination against him.
Since the Company's violation does not indicate an intent generally to interfere with the
rights of employees, and it is not reasonably to be apprehended that it will commit unfair
labor practices different from and not related to those found herein, I shall recommend only
that the Company cease and desist from the unfair labor practices found, and any like or
related conduct. 8
The Union's unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Respondent's employees. Such purpose is related to other unfair
labor practices, and it is found that the danger of their commission is reasonably to be appre-
hended. I shall therefore recommend a broad cease and desist order against it, prohibiting
infringement in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
5 W. C Nabors Company, 89 NLRB 538.
6Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439.
7 In the case of the Union, this date or the date on which the Union serves upon the Company
the written notice as set forth in Section 2 (b) (1) of the recommendations hereinafter made,
whichever shall first occur, shall be the terminal date.
8Cf. Krambo Food Stores, Incorporated, 106 NLRB 870.
ELJER CO. 1417
CONCLUSIONS OF LAW
1. Local 12270, District 50, United Mine Workers of America, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of William F.
Patterson, thereby encouraging membership in a labor organization, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By contributing support to the Union, the Respondent has engaged in and is angaging in
unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4. By such discrimination and support, thereby interfering with, restraining, and coercing
its employees in the exercise of, rights guaranteed in Section 7 of the Act, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing the Company to discriminate in regard to terms and conditions of employ-
ment in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
ELJER CO.1 and FEDERATION OF GLASS, CERAMIC AND
SILICA SAND WORKERS OF AMERICA, CIO, Petitioner.
Case No. 6-RC-1421. June 22, 1954
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 Harvard G.
Borchardt , hearing officers . The hearing officer ' s rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act.
4. The Petitioner , which is the certified bargaining repre-
sentative for a unit of production and maintenance employees
at the Employer's Ford City, Pennsylvania, plant,' seeks to
represent the office and plant clerical employees at Ford City
in a single unit, or in separate units if it is determined that
the two groups may not be combined . The Employer raises
1 The Employer's name appears as amended at the hearing.
2 The unit which the Board found appropriate in the earlier case excluded office and plant
clerical employees in accordance with a stipulation of the parties. Case No. 6-RC-1245,
issued April 6, 1953 (not reported in printed volumes of Board Decisions and Orders).
108 NLRB No. 201.