Indiana Gas & Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1961

130 N.L.R.B. 1488 (N.L.R.B. 1961)

1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with discharge if they join or remain
members of International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Local No. 13.
WE WILL NOT interfere with the above -named Union 's efforts to organize our
employees , or in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No. 13, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and 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 National Labor Relations Act.
WE WILL make Robert Duane Moore whole for any loss of wages suffered as
a result of our discrimination against him.
All our employees are free to become or remain members of the above-named
Union, or any other labor organization , except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the amended Act.
We will not discriminate in regard to hire or tenure of employment or any other
term or condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
GARDNER CONSTRUCTION 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.
Indiana Gas & Chemical Corporation and James L. Watkins
Local 12009 , United Mine Workers of America , Region 40 and
James L. Watkins
District No. 50, United Mine Workers of America and James
L. Watkins. Cases Nos. 25-CA-1138, 25-CB-363, and 25-CB-
372. March 22, 1961
DECISION AND ORDER
On June 23, 1960, Trial Examiner Max M. Goldman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, but that the Respondent Unions had
not engaged in and were not engaging in certain other unfair labor
practices, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel, the Respondent Company,
130 NLRB No. 157. _
INDIANA GAS & CHEMICAL CORPORATION 1489
and the Respondent Unions filed exceptions to the Intermediate Re-
port, and Respondents filed supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report,. the exceptions and the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
our decision herein.
The Trial Examiner found that the Respondent Company violated
Section 8(a) (1) and (3) of the Act when it discharged James L.
Watkins. For the reasons stated below we disagree.
The record shows Watkins, a nonunion employee, was discharged
for engaging in a heated argument with another employee. The sub-
ject matter of the argument was the Indiana "right-to-work" law and
Watkins' refusal to join the Respondent Unions; the credited evidence,
however, fails to establish that the Respondent Company's officials
knew the subject matter of the argument. Nor -is there any evidence
that this argument was utilized as a pretext to -disguise, some other
motivation. The issue, then, is whether a discharge for engaging in
conduct, which, for the purposes of this decision we assume, was in
fact a protected concerted activity, can be found to be unlawful in the
absence of knowledge by the Company of the facts establishing the
protected concerted nature of the activity.
On this issue the decision of the Board in Walls Manufacturing
Company, Inc., 128 NLRB 487, is, in our opinion, controlling and
compels a negative answer. In that case an employee was discharged
for engaging in conduct which was in fact a protected concerted ac-
tivity, but it was not until after the discharge that the respondent
there learned of the facts which established the concerted nature of
the conduct. In finding that the discharge there was not unlawful, the
Board stated :
In order to sustain a finding of a violation based on the dis-
charge, it is necessary to establish that at the time of the discharge
the Employer had knowledge of the concerted nature of the ac-
tivity for which the employee was discharged.
Moreover, the Cusano and Salt River cases, relied on by the Trial
Examiner, are in our opinion clearly distinguishable from the instant
case. In both of those cases the respondents knew the facts which
established that the dischargees were engaging in protected concerted
activity. Thus, the conclusion in those cases, that in such circum-
i The request of the Respondents for oral argument is denied because the record; in-
cluding the exceptions and briefs , adequately presents the issues `and the positions of
the parties.
597254-61-vol. 130-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances a. -good-faith belief that the facts as known established un-
protected rather than protected activity was no defense when the
activity was- in fact protected, is not precedent for the conclusion of
the Trial Examiner here, that ignorance of the facts is no defense.
_ Nor can we accept the reasoning of our dissenting colleague as a
basis for finding that the Respondent Company violated Section
8 (a) (1). Any finding as to disparate treatment of Watkins is -based
on the assumption that Long, the other participant. in the, ,argument,
was not disciplined. The question whether Long was. disciplined ,was
not, however, litigated at the hearing, and there is nothing in the record
to establish that he was in fact not disciplined. In any event, it must
be established that interference with Section 7 rights resulting from
a discharge was a foreseeable result of any disparate treatment where,
as here, no interference was intended. Thus, in The Radio - 0 fj'icers'
Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company) - v. N.L.R.B., 347 U.S. 17, 44-46, where, as in-
the Price Valley case cited by our dissenting colleague, the respondents
were aware of the relevant facts, the holding of the courts was-,that
in such circumstances it was immaterial that there was no. specific
intent to encourage or discourage union membership, or to interfere
with Section 7 rights. Indeed, the holding in these cases falls- far short
of supporting our dissenting colleague's conclusion that the Respond-
ent Company here is responsible for unintended consequences which
could not have been foreseen because the facts were .unknown.
. For the foregoing reasons, therefore, we will reverse the Trial Ex-
aminer as to Watkins, and dismiss the complaint as.to•him. In-all
other respects we agree with the violations found by the Trial
Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that :
A. The Respondent Company,. Indiana-Gas & Chemical Corpora-
tion, Terre Haute , Indiana , its officers , agents, successors , and assigns
shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent Unions by main-
taining or hereafter executing an agreement limiting pensions to
union members , or maintaining , enforcing, or hereafter executing an
agreement limiting health insurance to union members , or denying
health insurance benefits to an employee because he is not a member
of the Respondent Unions or any other labor organization of its
employees.
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
INDIANA GAS & CHEMICAL CORPORATION 1491-
form, join, or assist any labor organization, including the above-
named labor organizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining, or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Unions make James
Bailey whole for any loss suffered by him by reason of his not receiv-'
ing health insurance benefits as set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Post at its plant at Terre Haute, Indiana, copies of the notice
attached hereto marked "Appendix A." 2 Copies of such notice, to
be furnished by the Regional Director for the Twenty-fifth Region,
shall, after being duly signed by an authorized representative of the
Respondent Company, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent Company to insure that said notices are not altered,
defaced or covered by any other material.
(c) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what 'steps the
Respondent Company has taken to comply herewith.
B. The Respondent Unions, Local 12009, United Mine Workers of.
America, Region 40, and District No. 50, United Mine Workers of
America, Terre Haute, Indiana, its officers, representatives,. agents,
successors,and assigns, shall : .
1. Cease and desist from :
(a) Causing or attempting to, cause the Respondent Company, its
officers, agents, successors, or assigns, to discriminate against its em-.
ployees in violation of Section 8(a) (3), by maintaining, enforcing,
or hereafter executing a contract limiting health insurance benefits
to union members, or by denying health insurance benefits to an em-
ployee because he is not a member of the Respondent Unions, or by
maintaining or hereafter executing a pension agreement limiting bene-
fits to members of the above-named labor organizations.
(b) In any manner restraining or coercing employees of the Re-
spondent Company in the exercise of the rights guaranteed in Section
7 of the Act, including the right to refrain from engaging in any or
all of the activities guaranteed thereunder.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act. -
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."
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Jointly and severally with the Respondent Company make
James Bailey whole for any loss suffered by him by reason of not
receiving health insurance benefits as set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Post at their offices and meeting halls at Terre Haute, Indiana,
copies of the notice attached hereto marked "Appendix B." S Copies
of said notice,- to be furnished by the Regional Director for the
Twenty-fifth Region, shall, after being duly signed by a representa-
tive of each of the Respondent Unions, be posted by them immedi-
ately upon the receipt thereof, and be maintained by them for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by them to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Promptly mail to the said Regional Director signed copies of
"Appendix B" for posting at the Company's Terre Haute facilities.
(d) Notify said Regional Director in writing, with 10 days from.
the date of this Order, what steps the Respondent Unions have taken
to comply herewith.
MEMBER FANNING, dissenting in part:
I join the majority opinion to the extent it adopts the findings, con-
clusions, and recommendations of the Trial Examiner. However, I
dissent from the majority's dismissal of those portions of the com-
plaint which allege that the discharge of Watkins violated the Act.
I agree with the Trial Examiner that Respondents lack of knowledge
of the substance of the "heated argument" for which it discharged
Watkins 4 is no defense to the allegations of the complaint.
The facts involving Watkins' discharge are simple and not in dis-
pute. Watkins, opposed to union membership, and Long, a vocal and
ardent union adherent, were engaged in a heated argument concern-
ing the necessity of Watkins' joining the union as a condition of con-
tinued employment. This argument took place in the employees'
lockerroom, before work had started on the morning of March 6,
1959, in the presence of other employees. Though Respondent was
not apprised of the substance of the argument, the record clearly
shows that the content and substance became known to other em-
ployees who were present during the argument. Upon hearing of
the' argument, but without investigation, Respondent precipitately
discharged Watkins, but took no action against Long the other par-
ticipant in the argument. On these facts, I conclude that Respondent
violated Section 8(a) (1),
8 See footnote 2, supra.
`I accept the majority's finding that Watkins was discharged because he engaged, in a
"heated argument."
INDIANA GAS & 'CHEMICAL CORPORATION 1493
Section 7 of the Act guarantees to employees not only the right "to
form, join, or assist labor organizations," but also the "right to refrain
from any or all such activities." The right to "refrain" need not be
exercised in concert with other employees. Clearly, the "right to re-
frain" carries with it the right to discuss, argue, or dispute the matter
with union adherents, with the same freedom enjoyed by them. Sec=
tion 8 (a) (1) makes it an. unfair labor practice for an employer to
"interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7." The discharge of Watkins, the anti-
union employee, for engaging in a "heated argument" when viewed
against the lack of any disciplinary action, as to Long, the prounion
employee who engaged in the same "heated argument," could have
no other effect on employees who witnessed the argument than to im-
press upon them the favored position of the union and consequent
freedom of union adherents to express their views : a freedom denied
to antiunion employees. Watkins' discharge, therefore, necessarily
discouraged employees from exercising the right to refrain from
union activity and encouraged union activity and membership. In
these circumstances, Watkins' discharge interfered with employees'
exercise of rights guaranteed by Section 7 within the meaning of
Section 8 (a) (1). This consequence of Watkins' discharge flows from
the fact of employees' knowledge of the antiunion and union positions
taken by Watkins and Long during the argument, and the Respond-
ents' precipitate and disparate treatment of them for engaging in
the argument. It is therefore clear that Respondent's lack of knowl-
edge of the substance of the argument is immaterial in evaluating the
impact of Watkins' discharge on the employees' exercise of the rights
guaranteed by Section 7. It is also immaterial that Respondent was
not motivated by a desire to infringe such rights, for "it is the effect
and not the motivation of his action which determines whether he
has violated Section 8(a) (1) .5
Accordingly, I find that Respondent Company violated Section
8(a) (1) of the Act by its discharge of James L. Watkins. I deem it
unnecessary, however, to decide whether such discharge also violated
Section 8(a) (3) inasmuch as the remedy necessary to effectuate the
policies of the Act would be the same in either case.
CHAIRMAN McCuLLOCH took no part in the consideration of the
above Decision and Order.
5 J. E. McCatron, R. F. Nine and M. M. Dinkel , d/b/a Price Valley Lumber Co., et at. v.
N.L.R.B., 216 F. 2d 212 ( C.A. 9). The majority, in answer to this dissent , plainly ignores
the distinction drawn by the court as to the necessity of proving motivation in 8(a) (1)
and (3 ) cases. In the former , no showing that an employer intended to interfere with
the rights of his employees , as guaranteed in Section 7, is necessary . Only a showing
that its conduct did so interfere is required . In the latter , unlawful motivation 14'a
necessary element of the violation , however, such motivation may be conclusively pre-
sumed in appropriate cases.
1494 DECISIONS-OF NATIONAL- LABOR' RELATIONS BOARD
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in Local 12009, United
Mine Workers of America, Region 40, or District No. 50, United
Mine Workers of America,. or any other labor organization of
our employees, by maintaining or hereafter executing a pension
agreement limiting benefits to members of the above-named labor
organizations, maintaining, enforcing, or hereafter executing a
health insurance agreement limiting benefits to members of the
above-named labor organizations; or by denying health insurance
benefits to an employee because he is not a member of the above-
named labor organizations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise. of their rights guaranteed
under Section 7 of the Labor Management Relations Act, includ-
ing the right to refrain from any or all of the activities guaran-
teed thereunder.
WE WILL jointly and severally with the above-named labor
organizations make James Bailey whole for any loss suffered by
him because of not receiving health insurance benefits under our
contract with these labor organizations.
All our employees are free to become, remain, or- to refrain from
becoming or remaining members of the above-named labor organiza-
tions or any other labor organization. -
INDIANA GAS & CHEMICAL CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 12009, UNITED MINE WORKERS OF
AMERICA, REGION 40, AND DISTRICT No. 50, UNITED MINE WORKERS
OF AMERICA ..
Pursuant to a Decision and Order of the National,Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that :
INDIANA GAS & CHEMICAL CORPORATION 1495
WE WILL NOT cause or attempt to cause Indiana Gas & Chemical
Corporation, its officers, agents, successors, or assigns, to discrimi-
nate against its employees by maintaining, enforcing, or hereafter
executing a contract limiting health insurance benefits to our
.membership or by denying health insurance benefits to an-em-
ployee because he is not one of our members, or by maintaining
or hereafter executing a pension agreement limiting -benefits to
our membership.
WE WILL NOT in any manner restrain or coerce employees of
the above-named Company in the exercise of the rights guaran-
teed under Section 7 of the Act, including the right to refrain
from engaging in any or. all of the activities guaranteed there-
under.
WE WILL jointly and severally with the above-named Company
make James Bailey whole for any losses suffered by him because
of not receiving health insurance benefits.
LOCAL 12009, UNITED MINE WORKERS
OF AMERICA, REGION 40,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
DISTRICT No. 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Indiana - Gas & Chemical Corporation, herein also called
the Company or the Respondent Company, and Local 12009 , United Mine Workers
of America , Region 40,1 herein also called the Local Union , and District No. 50,
United Mine Workers of America, herein also called the District Union or the Unions
or the Respondent Unions when referred to together , was initiated by James L. Wat-
kins, an individual . The hearing was conducted on February 16 and 17 , 1960, at
Terre Haute , Indiana . The parties presented oral argument and also filed briefs.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent Company, an Indiana corporation , is engaged at Terre Haute,
Indiana; in ' the manufacture and sale of metallurgical coke- and coal chemicals.
I The caption of the complaint in its present form has been corrected to conform to the
proof adduced at-the hearing. In its original form the complaint 'showed District 50
Instead of Region 40.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1958 , which is a representative period, the Company sold -and shipped from
its plant directly to points outside the State of Indiana , goods valued in excess of
$50,000 . It is found that the Respondent Company is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The Local Union, Local 12009, United Mine Workers of America, Region 40,
and the District Union, District No. 50, United Mine Workers of America, are labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented by the pleadings are whether the Company and the Unions
violated Section 8(a)(1) and (3) and Section 8(b)(1)(A). and (2), respectively, by
(1) entering into, maintaining, and enforcing a collective-bargaining agreement of
November 1, 1958, covering all the Company's employees, which provides that the
Company shall furnish certain hospital, surgical, and medical insurance coverage for
only its employees who are members of •the.Local Union and their families; (2)
entering into and maintaining a pension agreement of November 1, 1958, covering all
the Company's employees which provides that the Company shall make payments to
a pension fund based upon the number of hours worked by all the employees, but
establishes a pension plan only for employees who are members in. good standing of
the Local Union; (3) refusing under the collective-bargaining agreement employee
James Bailey insurance coverage on April 17, 1959, because he was not a member
of the Local Union; and (4) discharging James L. Watkins because he was not a
member of, and to prevent trouble with, the Union.
B. The contracts and their application
The bargaining contract between the Company and the Unions (referred to by the
signatories as a wage agreement) was entered into and became effective beginning
November 1, 1958, and was for a term of 1 year and thereafter from year to year,
subject to termination upon 60 days' notice preceding any anniversary date. The
contract does not define the term employee as used therein or set forth a formal unit
description, but lists in an appendix the classifications and their respective rates of
pay which were bargained for. Among others it contains the following provisions
which are here set forth with emphasis added:
Article IX
Sick Benefits
Section 3
[In pertinent part:]
The Company shall provide Hospital, Surgical "and Medical Coverage for
each member of the Union, and his immediate family,-such member being in
good standing with the Company, in accord with Blue Cross and Blue Shield
comprehensive policies,-
Article V
Pensions
The Company shall deliver and pay over to a corporate trustee which shall
be jointly named and contracted with by the Union and the Company, a copy of
which contract being attached hereto as "Exhibit C" and become a part hereof,
an amount or sum of money equal to ten and one-quarter (10.25) cents per
hour on all hours worked during the previous calendar month, by all persons
employed in the bargaining unit as defined herein, as a Pension Fund.
Article XII
Section 1
The Company agrees that the sole bargaining -power for wages, rates of pay,
hours of work and other conditions of employment, for all employees who are
or. shall become members of the Gas and, By-Product Coke Workers Local No.
12009, District No. 50, United Mine Workers of America, is vested exclusively
in the Union through its duly elected or appointed officers or committees.
INDIANA GAS & CHEMICAL CORPORATION 1497
The agreement does not contain a provision-requiring union membership as a condi-
tion of employment.
The Pension Agreement between the Company and the Unions originally entered-
into July 1, 1952, as amended on November 1, 1958, among other things, contains
the following provisions which are here set forth with emphasis added:
Purpose
It is the purpose and intent of this Agreement to effectuate those portions of
the Wage Agreement entered into by and between the Union and the Company
dated as of July 1, 1952, to provide a pension plan, as hereinafter set forth, for
the employees of the Company, who are members in good standing of the
Union in accordance with the Rules of District 50, United Mine Workers of
America, and to establish a trust fund to be known as the pension fund, to the
extent hereinafter set fourth, to be used exclusively for the benefit of such em-
ployees upon the following terms and conditions:
Article I
Definition
Section I. The term "Employee" as used in this Agreement shall include all
Employees of the Company who are members of the Union, and especially ex-
cludes all Employees not covered by the terms of the Wage Agreement by and
between the Union and the Company.
. Article II
Payment to Pension Fund
[In pertinent part: ]
Section 1. The Company will deliver and pay over to such corporate trustee,
as may be named, under the terms of the Wage Agreement, an amount or sum
of money equal to six cents (6¢) per hour on all hours worked during the
previous calendar month by all persons employed in the bargaining unit as
defined in the wage agreement;
The bargaining agreement remained in force until November 1, 1959, when an-
other agreement became effective. The Pension Plan Agreement was amended on
December 14, 1959, and superseded the earlier agreement. These new agreements
do not contain the provisions recited above limiting the benefits involved to mem-
bers of the Local Union. The new agreements do not contain changes in other
respects which are significant to this proceeding.2
It is therefore found that the Company and the Unions provided by contract for
a period of at least 1 year beginning November 1, 1958, for hospital, surgical, and
medical insurance coverage limited to members of the Local Union, and for a pen-
sion fund ,to which the Company was required to contribute on the basis of all per-
sons employed who were subject to the collective-bargaining agreement although
benefits were to be limited to members in good standing of the Local Union. As the
original charge against the Company alleging a violation of Section 8(a) (1) and (3)
was not filed and served until July 21, 1959, the original charge against the Local-
Union alleging a violation of Section 8(b) (1) and (2) was not filed and served until
July 30, 1959, and as the original charge against the District Union alleging a viola-
tion of Section 8(b)(1) and (2) was not filed and served until September 17, 1959,
the execution of the agreements on November 1, 1958, under Section 10(b) is be-
yond the reach of the Board's authority and no finding of unfair labor practices will
be made'in this respect. As these contracts between the Company and the Unions
governing the daily employment relationship were in. effect until at least November
1, 1959, and hence were of a continuing nature, and as these contracts on their face
show an illegality, findings of unfair labor practices may be based upon the main-
tenance and/or enforcement of these contracts but should be limited to the period
2 Contrary to the position of the Company, the current agreements do not render moot
the questions presented by the earlier agreements. See N.L.R:B. v. Mexia Textile Mills,
Inc., 339 U.S. 563.
The General Counsel contends that the defects of the prior agreements were not cured
by the current agreement as the latter does not set forth a bargaining unit. Without
passing upon the legal significance of this contention, inasmuch as the current agreement
sets forth in an appendix a listing of the classifications and their respective rates of pay
which were bargained for, it is found to constitute a sufficient unit description.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Company's case beginning January 20; 1959, in the Local Union's case begin
ring January 29, 1959, and in the District Union's case beginning March 16, E69;
all ending with the expiration of these contracts about November. 1, 1.959.3
The record discloses the following concerning the operations under these con-
tracts. Edward Kelly, an employee of the Company of many years' standing, among
other duties, makes out accident reports, sees to it that injured employees get medi-
cal and hospital attention, checks employees by visiting them when they are off from
work due to illness or injury, and takes care of the insurance at the plant in all its
facets, including disability, group life, and the medical and hospital insurance in-
volved in this proceeding. Kelly also does some personnel work in connection with
the hiring of the employees.4
New men employed by the Company have a probation period of,30 working days
after which they are eligible for the,insurance and membership in the Local Union.
To use Kelly's words, "... if he's the man they want, why, both the organization
and the company, they accept the man, and he's an employee." After Kelly'checks
with the timekeeper as to whether he has on file a union dues checkoff authorization
card from a particular man, Kelly has the man involved bring in certain required
information concerning his insurance such as date of birth and matters relating to
his family, and then arranges for coverage. Kelly testified that he did not always
check with the timekeeper regarding the union authorizations, but only did so occa-
sionally in order to find out if a man was still working for the Company. It is
observed that the form authorization in evidence as part of the bargaining agree-
ment makes no provision for showing whether an individual has left the Company's
employ. There have been occasions when Kelly received authorization cards from
Alva Fagg, secretary of the Local Union, and Kelly passed them along to the time-
keeper. According to Kelly, when he receives an authorization card he knows that
the individual has worked with the Company long enough to have completed his
probation, and he then checks to see if the individual has been covered by the
insurance.
Kelly also testified that it was not necessary for an employee to have executed
an authorization card in order to obtain the insurance coverage. Kelly gave as ex-
amples of persons covered by the insurance prior to the execution of authorization
cards, James Watkins, James Grissom, James Bailey, and Billy Irwin. It also appears
that Watkins was employed on December 20, 1958, and received the insurance on
March 1, 1959; Grissom was employed on February 20, 1959, and received the
insurance on May 1, 1959; Bailey was employed on January 29, 1959, and received
the insurance on May 1, 1959; and Irwin was employed on January 6, 1959, and
received the insurance on April 1, 1959. Kelly stated that there were a few instances
of an employee's failing to get insurance coverage, but that as soon as that was
realized the situation was corrected.
- James Bailey, who is alleged to have been discriminatorily denied health insurance
benefits, was in the hospital in 1959. Between April 18 and 21, Kelly visited Bailey
and inquired about his condition. On this occasion Kelly asked Bailey whether he
had been contacted about joining the Local Union and Bailey replied that he had not
been asked to join. Kelly stated to Bailey that he was not covered by Blue Cross
because that insurance was given to the employees under the contract with the Local
Union .5 Bailey, as already found, was employed on January 29, 1959, and was not.
afforded insurance coverage until May 1, 1959. Bailey joined the Local Union in
the latter part of April or early May and his monthly dues were first checked off on
July 4.
There is no contention that the pension fund agreement was enforced, as distin-
guished from being maintained, and the record shows that .the Company made con-
tributions to the pension fund pursuant to the agreement for each employee immedi-
ately after the employee completed his probation period regardless of whether he
was a union member.
It is accordingly found within the limitations of Section 10(b) given above that
the Respondent Company and the Respondent Unions maintained the pension agree-
ment, maintained and enforced the health insurance provisions of their bargaining
8 See Local Lodge 1434, .etc. v. N.L.R .B. (Bryan Manufacturing - Co.), 362 . U.S. 411;
and The Radio Opicer8' Union, etc . v. N.L.R.B., 347 , U.S, 17, 84. The parties do not urge
the limitations of Section 10(b) in this aspect of the case.
' At first Kelly testified when examined by the General Counsel that he had never 'had
any title other than bookkeeper , and after -he was confronted with his prior statement he
testified that he was personnel manager when he executed the statement in October 1959.
5 These findings are based upon Bailey's credible testimony . Kelly, whose duties - in-
eluded visiting ill or injured employees, did not impress the Trial Examiner favorably as
a witness , and his testimony that he had not seen Bailey at the hospital is not credited.
INDIANA GAS & CHEMICAL CORPORATION 1499
agreement , and discriminated against James Bailey in April 1959, by denying him
health insurance benefits because he was not a member of the Local Union , in viola-
tion of Section 8(a)(1) and (3), and Section 8(b)(1)(A) and (2) of the Acts
C. James L. Watkins
The General Counsel alleges that Watkins, who had been employed on December
19, 1958, was discriminatorily discharged in violation of Section 8(a)(1) and (3)
and Section 8(b)(1)(A) and (2) of the Act. The Company and the Unions take
the position that Watkins was discharged for good cause and that the discharge was
not brought about by any conduct on the part of the Unions.
As Watkins was discharged on March 6, 1959, and the original charge against the
District Union alleging a violation of Section 8(b)(1) (A) and (2), was not filed
and served until September 17, 1959, more than 6 months subsequent to the dis-
charge, it will be recommended under Section 10(b) that the complaint against the
District Union regarding Watkins be dismissed.?
In support of the defense that Watkins was discharged for good cause, the Com-
pany relies upon an incident which occurred in the lockerroom before work the
morning of Watkins' discharge on March 6, when Watkins engaged in an argument
with a fellow employee and further upon the position that it did not know the subject
of the argument at the time of the discharge.8
On the occasion involved, Watkins, who was not a member of the Local Union,
had a discussion in the lockerroom before working time in the presence of a number
of other employees with fellow employee Flaud Long, who was a member but not
an officer of the Local Union. It was not uncommon for employees to hold discus-
sions in the lockerroom and while there were raised voices and the discussion was
described as "pretty heated" it does not appear that anything untoward occurred.
Watkins, who had expresed his views about the Unions before, supported, and Long
opposed, the Indiana right-to-work law. After Long determined from Watkins that
Watkins was not a member of the Local Union, Long declared that Watkins would
have to join or Watkins would not be working for the Company. Watkins replied
that he would join the Local Union when he was offered the same membership rights
which Long had .9 About midmorning, Alva Fagg, secretary, according to Watkins'
credible testimony, told Watkins to give Mark Myers, treasurer of the Local Union,
$8 for dues and fees. About 2 p.m. Foreman Larkin Bailey informed Watkins that
he was laid off due to a reduction in force. Watkins left the plant shortly thereafter.
Management officials testified that they could not recall who among the foremen
reported the incident of the morning of March 6. However, the record supports the
Company's position that it discharged Watkins for engaging in the argument on the
morning of his discharge and that it did not know the subject matter of the argument-10
See Rockaway News Supply Company Inc. (Newspaper and Mail Delivers' Union of
New York and Vicinity ), 94 NLRB 1056, 1059; Carty Heating Corporation and Mechani-
cal Contractors Association of New York, Inc., 117 NLRB 1417, 1418; and Northeast
Coastal, Inc., 124 NLRB 441.
7 This matter was not raised by the District Union.
8 The following are other elements which constitute the good cause relied upon by the
Company to explain Watkins' discharge: (1) Poor attitude toward his job , belligerent
and argumentative , did not get along with either the foremen or his fellow employees,
and was a troublemaker; (2) absence without excuse on February 1, 1959 ; ( 3) late
for work March 5, 1959; (4) walked off the job when a machine became difficult to.
operate; (5) unsatisfactory work; and ( 6) refused to obey a foreman 's order. It is
unnecessary to pass upon -the validity of these assertions.
9 The Unions take the position that they have a nondiscrimination policy regarding
creed, color, and nationality . Whether there is any basis for the belief Watkins expressed
to Long on this score is of no consequence to this proceeding.
10 The General Counsel adduced testimony by Harold Gordon that in August 1959 be
saw a report by Foreman Melvin Prater showing that Watkins was discharged, among
other reasons , because Prater anticipated trouble in view of Watkins' opinion of the
Local Union and further that Prater thereafter destroyed a paper which may have been
the same report. Later in the hearing it appeared that the General Counsel had had in
his possession but had not shown to Gordon a report purportedly executed by Prater dated
March 11, 1959, which does not mention the Local Union. Since Gordon did not testify
concerning the report dated March .11, the Trial Examiner cannot find that the report
Gordon testified he saw in August was not the same report of March 11, nor can the
Trial Examiner find that Gordon's recollection is accurate concerning the contents of
the report which he testified he saw in August . Under these circumstances no weight is
attached to Gordon 's testimony in-this respect.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In espousing his views during the course of this argument in favor of the Indiana-
right-to-work law and his opposition to joining the Local Union, Watkins was exer-
cising a right protected under Section 7, to refrain from and possibly to influence
others to refrain from joining a labor organization. Watkins' discharge resulted from
engaging in this argument. Whether the Company knew of, or intended to discharge
Watkins for espousing, these views is immaterial. Rights under Section 7 are not
determined by such variables as knowledge and intent but by an appraisal of the
conduct involved and the terms of the statute itself. As the Court of Appeals
for the Third Circuit declared in Cusano d/b/a American Shuffleboard Co. v.
N.L.R.B.,11
It is true that an employer may discharge an employee for a good reason, a bad
reason, or for no reason at all. . . . This rule, however, is necessarily limited
where an employee is engaging in activities protected by the Act. . . To adopt
petitioner's view would materially weaken the guarantees of the Act, for the
extent of employees' protected rights would be made to vary with the state of
the employer's mind. We conclude that if the conduct giving rise to the em-
ployer's mistaken belief is itself protected activity, then the employer's erroneous
observations cannot justify the discharge.
It is accordingly found that the Company discharged James L. Watkins on March
6, 1959, in violation of Section 8(a)(1) and (3) of the Act.
Officials of the Company and the Unions supported each other in their testimony
to the effect that the Unions had nothing to do with Watkins' discharge. The
Unions and the Company have had a relationship for 20 to 25 years. The bargain-
ing agreement in force at the-time of the events does not contain a provision making
membership in the Unions -a-condition of employment. Although it may be in-
ferred that the Local Union was desirous of having as many members as possible,
as would any organization, and also that the Company was aware of this desire, as
any employer would have been, there is no showing on this record of any conduct
on the part of the Local Union which would bring about Watkins' discharge nor any
showing that the Company discharged Watkins because he was not a member of, or
to prevent trouble with, the Local Union.12 It will therefore be recommended that
the complaint against the Local Union regarding Watkins be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company and the Respondent Unions set forth
in section III, above, occurring in connection with the operations of the Respondent
Company described in section I, above, have a close, intimate, and substantial rela-
tion 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.
V. THE REMEDY
Having found that the Respondent Company and the Respondent Unions have
engaged in unfair labor practices, it will be recommended that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Thus, it having been found that the Respondent Company and the Respondent
Unions violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2), re-
spectively, by maintaining a pension agreement which provides for benefits to mem-
bers of the Respondent Unions only, by maintaining and enforcing a bargaining
agreement providing for health insurance for members of the Respondent Unions
only, and denying to James Bailey health insurance benefits in April 1959, because
he was not a member of the Local Union, it will be recommended that the Respond-
ent Company and the Respondent Unions cease and desist from engaging in this
conduct and also that they jointly and severally make Bailey whole for such loss as
he suffered by reason of not receiving health insurance benefits, by payment to him
of a sum of money equal to the amount of insurance benefits he would have received
but for the discriminatory denial of health insurance coverage.
n 190 F. 2d 898, 902-903 (C.A. 3). See also, Salt River Valley Water Users' Associa-
tion v. N.L.R.B., 206 F. 2d 325, 329 , where the Court of Appeals for the Ninth Circuit
observed, "That the [employer] may have acted in good faith believing itself justified in"
discharging [the employee] is not material where the activity for which he was dis-
charged was actually protected by the Act."
22 Of. Insulation Contractors of Southern California, Inc., etc., 110 NLRB 638.
SCHICK INCORPORATED 1501
It having also been found that the Respondent Company discriminated with regard
to the hire and tenure of employment of James L. Watkins on March 6, 1959, it will
be recommended that the Respondent Company offer Watkins immediate and full
reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges and make him whole for any loss of
pay suffered as a result of the discrimination against him, by payment to him of a
sum of money equal to the amount he would have earned from the date of the
discrimination against him to the date of the offer of reinstatement less net earnings
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. Earnings in any one quarter shall have
no effect upon the backpay liability. for any other such period. It will also be
recommended that the Respondent Company preserve and make available to the
Board, upon request, payroll and other records to facilitate the computation of the
backpay due.
As the unfair labor practices committed by the Respondent Company and the
Respondent Unions are of a character striking at the root of employee rights safe-
guarded by the Act, it will be recommended that they cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Unions, Local 12009, United Mine Workers of America,
Region 40, and District No. 50, United Mine Workers of America, are labor or-
ganizations within the meaning of the Act.
2. The Respondent Unions have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(b)(1) (A) and (2) of the Act.
3. The Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce within .the meaning of
Section 2(6) and (7) of the Act.
5. The Respondent Unions have not engaged in violations of the Act with regard
to James L. Watkins as alleged.
[Recommendations omitted from publication.]
Schick Incorporated and United Steelworkers of America, AFL-
CIO and District No. 98, International Association of Machin-
ists, AFI-CIO , Petitioners . Cases Nos. 4-RC-4381 and 4-RC-
4404. March 22, 1961
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon petitions duly filed in Cases Nos. 4-RC-4381 and 4-RC-
4404 under Section 9 (c) of the National Labor Relations Act, a con-
solidated hearing was held before Chester S. Montgomery, hearing
officer, and the proceeding was thereafter transferred to the Board.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3 The Petitioner in Case No. 4-RC-4381 Is referred to herein as Steelworkers , and the
Petitioner In Case No. 4-RC-4404 to referred to as IAM. International Brotherhood of
130 NLRB No. 155.