Nello L. Teer Co.

National Labor Relations Board - Board Decisions

Jul 24, 1963

143 N.L.R.B. 787 (N.L.R.B. 1963)

NELLO L. TEER COMPANY 787
On all the facts, we find that the owner-drivers retain little entre-
preneurial independence in the operation of their vehicles. There-
fore, we shall include them in the unit.
The Employer further contends that the fieldmen should be in-
cluded in the drivers' unit. The Petitioner requests their exclusion.
It appears that the fieldmen's primary function is to inspect various
equipment on the farms, make sure standards of cleanliness are ob-
served, and check up on the drivers' testing techniques. If the field-
men find an unsatisfactory health condition on a farm, they report this
both to Inter-Mountain and to the processing plant to which the
producer normally sends his milk. The fieldmen use either Employer
pickup trucks or their own cars to get from farm to farm. They do
no hauling of milk, and are never used as substitutes for any of the
drivers. On these facts, we find that driving a truck is only an
incidental aspect of the fieldmen's duties. Their basic activities do
not indicate a sufficient community of interest with the truckdrivers,
and we shall, therefore, exclude them from the unit.
Accordingly, in view of all the foregoing, we find that the follow-
ing employees of the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 ('b)
of the Act : All salaried and owner or contract drivers employed by
the Employer at its Colorado Springs, Colorado, and Burlington,
Colorado, offices, but excluding fieldmen, laboratory testers, and all
supervisors as defined in the Act.i3
[Text of Direction of Election omitted from publication.]
is As the appropriate unit is larger than the unit sought , the Petitioner may withdraw
its petition without prejudice upon notice to the Regional Director within 10 days from
the date of this Decision.
Nello L. Teer Company and International Union of Operating
Engineers, Local 542, AFL-CIO. Case No. 4CA-92713--3. July
24, 1963
DECISION AND ORDER
On April 15, 1963, Trial Examiner Lloyd Buchanan issued his In-
termediate 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 attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor practices, and recom-
mended that those allegations of the complaint be dismissed. There-
143 NLRB No. 85.
717-672-64-vol. 143-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report and 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 and the entire record in the case, including the ex-
ceptions and briefs, and, finding merit in certain of Respondent's
exceptions, adopts such of the Trial Examiner's findings and conclu-
sions as are consistent with this Decision and Order.
We agree with the Trial Examiner's conclusion that Robert Burton
Morgan was discharged by Respondent on August 29, 1962, for law-
ful cause and not because of any union or other protected activity as
alleged in the complaint. The Trial Examiner further found, how-
ever, that Respondent discriminatorily laid Morgan off on August 27,
2 days before his lawful discharge, because of his union activities, in
violation of Section 8(a) (3) of the Act. We do not agree with this
finding.
On August 27, a valve broke on Morgan's bulldozer. It was de-
cided to give the bulldozer a general overhaul, which would take
several weeks, and, after it was ascertained that another bulldozer was
not available for Morgan to operate, Morgan was laid off temporarily.
In concluding that the layoff was for discriminatory reasons, the Trial
Examiner relied upon findings that Respondent kept employees in
the operator category on the job after machine breakdowns by assign-
ing them to the repair of their machines or to work below their skill
and pay levels or even permitted "sitting around."
However, on the very day that Morgan's machine broke down, but
before the breakdown, the first of two recently hired mechanics re-
ported for work in Respondent's repair shop, and the second one re-
ported for work on the following day. The two mechanics were hired
in implementation of a new policy which called for abandonment of
Respondent's previous policy of employing machine operators in its
shop to assist in repair work whenever their machines were down for
repairs. On the occasions when operators were assigned to other
work because of breakdowns of heavy equipment, only minor repairs
were involved which were effected quickly in Respondent's shop at
the jobsite; Morgan's machine, which was the poorest on the job,'
required a complete overhaul when it broke down, which necessitated
dismantling and the shipment of parts to the manufacturer. At the
time, there was no unused piece of heavy equipment to which Morgan
could be assigned. Brooks, Morgan's counterpart on the night shift,
was employed on other equipment only because all of Respondent's
1 Morgan had been a foreman for several months prior to July 1962 , when he returned
to work as a rank -and-file operator at his own request . The better equipment had been
assigned to operators and was being fully utilized at the time, leaving only an extra bull-
dozer, which was concededly in poor condition , available for Morgan.
NELLO L. TEER COMPANY 789
heavy equipment had not been fully utilized on the second shift. As
for the Trial Examiner's finding that employees just "sat around"
while their machines were undergoing repairs, the record contains
only one instance in which a machine operator sat around doing
nothing while his machine was out of service. The instance is related
in the testimony of an operator whose machine had a flat tire which,
because of some unexplored difficulty, required nearly an entire day
to replace. The operator testified that he just "sat out on the slope
of a bank all day waiting for a tire."
Moreover, the record furnishes a background of treatment of
Morgan which militates against the Trial Examiner's finding of dis-
criminatory treatment on August 27. Thus, is appears that Morgan's
union membership was known to Respondent when it hired Morgan.
Thereafter, Morgan was made a foreman but was reassigned to an
operator's job at his own request. Although his union activity had
been open and apparent for several weeks previous to his layoff,
Morgan had been given 50 to 60 hours' work each week at overtime
rates throughout that period despite frequent breakdowns in his equip-
ment, and, on the Saturday preceding his Monday layoff, had been
granted overtime. In addition, it is undisputed that, following the
August 27 layoff, the Respondent offered work to Morgan in his
classification at another of its projects in Maryland for the duration
of his layoff and that Morgan refused such employment.
On the basis of the foregoing circumstances, we conclude that the
General Counsel has failed to sustain his burden of establishing the
discriminatory character of the layoff by a fair preponderance of the
evidence.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Nello L. Teer
Company, Summit Bridge, Delaware, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from:
(a) Threatening or harassing employees in protected or concerted
activities or in any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Post at its jobsite in Summit Bridge, Delaware, copies of the
attached notice marked "Appendix." 2 Copies of said notice, to be
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Fourth Region, shall, after
being duly signed by Respondent's representative, be posted by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
CHAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the
consideration of the above Decision and 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 :
WE WILL NOT threaten or harass any of our employees in con-
nection with protected concerted activities.
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 organizations, to join or assist
International Union of Operating Engineers, Local 542, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing 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 membership in a labor organ-
ization as a condition of employment, as authorized in Section
8(a) (3) of the Act.
NELLO L. TEER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
'Office, 1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia, Pennsylvania, 19107, Telephone No. Pennypacker 5-
2612, if they have any question concerning this notice or compliance
with its provisions.
NELLO L. TEER COMPANY 791
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended (issued October 31, 1962; charge filed Septem-
ber 11, 1962), alleges that the Company has violated Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended, 73 Stat. 519, by laying off Robert Burton
Morgan on or about August 29, 1962, discharging him on September 10, and failing
and refusing to reinstate him, because he engaged in organizational and other
protected concerted activities; and Section 8(a)(1) of the Act by said alleged acts,
by interrogating employees concerning union activities and sympathies, and by
harassing, intimidating, and threatening employees because of their union allegiance
and other concerted activities. The answer, as amended, denies the allegations of
violation, and alleges that the Company offered to employ Morgan elsewhere after
his job was abolished.
A hearing was held before Trial Examiner Lloyd Buchanan at Wilmington,
Delaware, on January 7 and 8, 1963. At the close of the hearing, the General
Counsel, the Union, and the Company were heard in oral argument. Pursuant to
leave granted to all parties, a brief has been filed by the Company, the time to do
so having been extended.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Delaware corporation with prin-
cipal office in Durham, North Carolina, is engaged in the business of heavy con-
struction work throughout the United States, a jobsite at Summit Bridge, Delaware,
being here involved; that its gross volume of business exceeds $1,000,000 annually
and its sale of services to customers across State lines exceeded $50,000 during the
year immediately preceding issuance of the complaint; and that it is engaged in com-
merce within the meaning of the Act
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a) (1)
Morgan was employed by the Company as a heavy equipment operator on the
Summit Bridge job in the latter part of March 1962. After a few weeks he was
asked to and did take a foreman's job, but rather than go on salary with lesser total
earnings , he returned to work as a rank-and-file operator about the beginning of
July. Project Manager Henry testified that he knew or believed when he hired
Morgan that he was a member of the Union. At any rate it is clear that, beginning
shortly after he returned to the operator's job, Morgan distributed many pledge
cards on behalf of Local 542, the Teamsters, and the Laborers in a joint campaign,
and that the Company knew of these activities.
From my observation of the witnesses and the picture of their relations as por-
trayed, I do not credit the denial by Foreman Schiavoni that in mid-July he referred
to "trouble out of any of [the] men as far as union goes" and that he threatened
to tie concrete around Morgan's neck and throw him into the canal. I credit
Morgan's and employee Pierson's testimony in this connection, and find that the
Company here violated Section 8(a)(1) of the Act. (One witness testified to a
question by Schiavoni concerning distribution and signing of cards. This was not
alleged.)
About this time, after Morgan had solicited another operator's support, Henry con-
nected such solicitation or distribution of cards with lack of loyalty to the Com-
pany. Since disloyalty may warrant punitive action, I find that Henry's remarks
to Morgan tended to interfere with the latter's concerted activities, in violation
of Section 8(a)(1). This incident was fully litigated although only interrogation
by Henry was alleged. The Company's letter of September 11, distributed to all
employees on September 14 and disavowing coercion or restraint, did not cure
this or the other violations found; nor could it insofar as Morgan was concerned
since he was no longer in its employ on that date. While according to Henry his
admitted references to loyalty had no connection with union activities, I credit
Morgan's version.
Whether Superintendent Bodnar , early in August, told Morgan that he was insub-
ordinate and could be fired because his machine needed oil, and the significance of
such remarks (unlike Morgan, former employee Campbell testified that Bodnar
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened to get Morgan one way or another), need not be decided in view of other
findings made. I find that Bodnar did take pledge cards out of Morgan's pocket
and, although he then asked whether he could keep one, these acts, his return with
the card a few days later, and his scatological remarks concerning it constituted
harassment and interference. I do not believe that Bodnar seriously challenged
Morgan to hit him.
We need not dignify by analysis the considerable quantity of testimony received
on the issue whether the Company willfully assigned Morgan to dangerous tasks,
first to push some earth over the edge of an undercut, and then to push some
onto a fire. Whatever the Company's opposition to union organization, I do not
find that it took such extreme measures to rid itself of Morgan. If he charged
that it was doing so, this only reflects his own aggressiveness and unwarranted
sensitivity.
B. The alleged violation of Section 8(a)(3)
1. The layoff
Whatever the Company's attitude toward Morgan when it meiely recognized him
as a union member or thought that he was one, it clearly did not favor the union
campaign or his activity in support of it, as its letter of September 11 again in-
dicated. Whether or not Bodnar sought an excuse to have Morgan discharged,
as when he challenged the latter to hit him, or was merely fooling with him, we
must consider certain acts of layoff and discharge, not to set ourselves up as judges
of the sufficiency of the reasons given, but to determine whether these were valid
or only pretextual.
Certainly there was no discrimination against Morgan before August 27, nor is
any alleged, as he was made foreman and continued at his higher rate of pay, and
as the Company then granted his request to return to operator's work. (It does not
appear that there was lawful basis for denying that request.) But a finding of viola-
tion does not depend on proof of an earlier instance. On the morning of the 27th,
a valve broke on Morgan's D-9 bulldozer, the Company decided to give the machine
a general overhaul, which would take a few weeks, and after ascertaining that he
could not get another bulldozer, Henry sent Morgan home. (I do not rely on the
General Counsel's claim of discrepancy in the computations of elapsed time, based
on approximations.) It is clear from the credible testimony that up to that time,
on breakdowns, operators were assigned to helping repair their machines, to operat-
ing other machines, or to other jobs; they were never sent home. Morgan on August
27 pointed out to Henry that, during another long repair, operator Braswell had
been given other work.
For the Company it was testified that it was decided to hire mechanics at a lower
rate to make machine repairs rather than assign operators to do that work, and
that one mechanic started to work on August 27, a second on August 28, both hired
before. According to Henry, it has been the Company's policy "Since the end of
August" to send operators home if no machine was available when their equipment
broke down. That this new policy was adopted or decided upon before Morgan's
machine broke down is not at all clear. Its adoption at that very time might itself
constitute discrimination. But aside from any such alleged policy decision, several
significant facts stand out- Brooks, who operated Morgan's machine on the night
shift, was assigned to other jobs and not sent home on August 27 or thereafter,
machines and other work being made available to him (allowance most be made
for different circumstances on the night shift); in several instances on the day shift
on and after August 27, when machines broke down, their operators were assigned
to working on the fuel truck and to working on repairs to their machine (Morgan
testified that Braswell started to repair Morgan's machine on August 27; Cox, the
master mechanic, denied this), to laborer's work, or they just "sat around."
While specific machines and operators were cited to support this testimony, there
is no countervailing evidence, beyond the general statement of alleged policy, that
operators other than Morgan were sent home. No company records were offered
to support its general statement and refute the specific contrary testimony. What
appeared at the hearing to be self-contradictory and irreconcilable testimony by
Cox, who had earlier testified that it was "impossible" for the machine to have been
in operation a few days later, can perhaps be understood in the light of the testi-
mony by Campbell i that Morgan's machine was assigned to work on the dump
for a few days after August 27, other operators running it, and that it was there-
1 That Campbell denied that he was a member of .the Union and then, when asked this,
testified that he had signed a pledge card indicates no variance, but rather more specific
interrogation.
NELLO L. TEER COMPANY 793
after overhauled; it was not used for its normal functions during those few days,
and thus was "down"; it had not in fact been repaired during that period, so that
the repairs report would not and did not show repairs. It does not appear just
when various parts were sent out so that the machine became entirely inoperable.
Not only is there no reliable contradiction of the testimony that the machine was
used to some extent on and immediately after August 27, but the credited testi-
mony shows that other operators were not sent home on breakdowns either before
or after that day despite the alleged new policy.
That an employer may send an employee home when a machine breaks down is
clear; but to do so under the circumstances here, in the face of the practice of
keeping employees on the job, assigning them to other work or even letting them
sit around, is discriminatory. On the basis of all of the testimony concerning fur-
ther use of Morgan's D-9 and the continued practice of the assignment of operators
to other machines, repair work, the fuel truck, etc., I find that Morgan's layoff on
August 27 was discriminatory. The evidence of discrimination after Morgan so
actively solicited union support outweighs the testimony that Henry hired him when
he knew or believed that he was a member of the Union. Animus can further be
seen in the interference found supra.
The complaint as amended alleges that the Company laid Morgan off on August
29. But as the evidence indicates and as fully litigated, he was discriminatorily laid
off on August 27. (The amendment from discharge to layoff at that time presented
no element of surprise and, like the allegation of discharge on September 10, was
within the scope of the charge.)
2. The discharge
Prior to August 27, Bodnar several times told Morgan not to talk to other men
between shifts and to get off the job at quitting time. Bodnar claimed that there
were insurance limitations in connection with men on the site beyond their shifts
and that the Corps of Engineers had directed that they leave promptly. (This can
be found to be further harassment by Bodnar.) The inspector at the Corps dis-
claimed any such requirement. Whether or not there was an insurance limitation,
the testimony shows that Bodnar without objection permitted other men to remain.
It was brought out by counsel for the Union that Bodnar may have told other
operators to get off the site at the end of their shift; but this lacked the positiveness
of the testimony that others were not so told. We shall now see that on August 29
Morgan, although not working, spoke to men on the project and that Henry spoke
with him at two places but did not order him off. This further suggests interference
by Bodnar, but not by Henry, who effected the discharge.
Morgan returned to the jobsite on August 29, 2 days after his layoff, and solicited
support for the Union. From one location on the site he went to another, followed
by Bodnar and Henry, the latter telling him that he had been laid off and that he
was not allowed on the job. Maintaining that he had not been laid off, Morgan
claimed that he had been told that he would be called back. When Bodnar sup-
ported Henry's version, Morgan called them both liars, with an ugly modifying ex-
pletive. (According to Bodnar and Henry, the phrase was addressed to the latter
only). Although Morgan had not come that day to seek employment, we have
seen that any bar to presence on the site outside of the working shift period was dis-
criminatorily applied, as the Company had not barred other employees while ex-
cluding Morgan. We have also seen that the attempt to justify such bar through
a representative of the Corps of Engineers had failed. An unproved limitation
discriminatorily applied as was now again done might support an additional allega-
tion of discrimination or interference.
But here enters a testimonial digression, Morgan claiming a distinction between
being laid off and being told that he would be called when his machine was ready.
He appears to have misunderstood when he so vehemently but also insolently main-
tained that there was a difference, as he passed the lie. This is a digression for,
even were there the distinction claimed by Morgan, and if he had not been told
that he was laid off, there was no justification for his attitude and language. He
testified that on the 27th Henry had sent him home until his machine was repaired
and had promised to call him when needed. Both Morgan and Henry testified
that, when the former was sent home, he charged discrimination and said that he
was going to the Board. This suggests that he realized that the action then being
taken against him was a disengagement. (Even at the moment of writing this,
"layoff" is the more natural and common term ) It should also be noted that the
complaint itself, as amended as late as the hearing, alleges, as Henry says he told
Morgan, that the latter was laid off on the 27th. That Morgan was involved in a
private definition is further seen in the reference to his layoff on the 27th by the
General Counsel himself.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the language which Morgan used was common on the job, there is no evidence
that Henry permitted employees to speak so to him. Henry denied that he had
used such language to Morgan . Use of the term which Morgan employed appears
to have reflected his own propensity rather than Henry 's, and is connected with the
former 's general aggressiveness . Even if he had not been sent home for an in-
dicated period of more than a few days, as he now claimed , his rights did not em-
brace such an expression and attitude as he displayed . But it appears that the
layoff notice and check had in fact been prepared on August 27, there being no
issue with respect to this; the Company had decided to lay him off and, I find,
Morgan had so been told , whatever his understanding of the meaning of layoff.
(The notation on the layoff slips, "Temporary Layoff," certainly does not indicate
the contrary when we recall that they had been prepared before the 29th. Morgan
refused to sign these until, as he testified , about September 5 or 6. If Bodnar did
not now know that Henry had decided to discharge Morgan, or if for whatever un-
disclosed reason Bodnar told Morgan that it would be a few days before he would
go back to work, the other facts and the findings herein are not thereby affected.)
That Morgan did not expect to be called to work on the night of August 27 or
the next day, as he testified, is further indicated by the fact that there is no evidence
that he spoke of it when he came to the site on the 29th and solicited support for
the Union.
The discrimination on August 27 has already been found . But that discrimina-
tion and the interference did not constitute such provocation as to warrant Morgan's
outburst. The issue on August 29 was not the validity of his layoff. To say that
the unfair labor practice of August 27 provoked Morgan 's outburst would go far
along the road of holding that an unfair labor practice is provocative of everything
and anything which may follow in point of time. Whatever the Company 's animus
and prior violations , as noted, there is a remedy for violative acts. They do not
warrant use of such language as Morgan directed to Henry, the project manager,
and Bodnar , the project superintendent , the two chief supervisors at the project.
Henry testified that he discharged Morgan for calling him what he did, explaining
reasonably , "Because, if he can get away with it, then every man on that job can
get away with it and then I 'm not running it anymore."
Whether Morgan was discharged on August 29 as originally alleged, or thereafter
by letter dated September 7, his employment was lawfully terminated for sufficient
cause, and not because of his lawful concerted activities. I find entirely reasonable
and I credit Henry's explanation that it was on August 29 that he decided to dis-
charge Morgan , but that in view of Morgan 's threat to go to the Board, he con-
sulted with counsel and the president of the Company before the discharge letter
was issued by the latter.
Before the altercation on August 29, Henry explained that it would take about a
week to repair Morgan 's machine and offered him employment on another of the
Company's projects, not under his supervision . (This does not tend to show
absence of discriminatory motive; employment elsewhere would effectively prevent
Morgan's organizational activity on Henry's project .) Cross-examined as if he had
made that offer after his apparently proper decision to discharge Morgan, Henry
explained that he was not averse to Morgan's employment elsewhere as that would
not affect discipline on his project. Were it necessary , this explanation would be
sufficient although offer of the other job, which was not equivalent employment,
would not be sufficient had the discharge been violative . There is no question con-
cerning Morgan 's ability; he was "an excellent operator."
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II , above, occurring in con-
nection with the operations described in section I, above, have a close , intimate, and
substantial relation to trade, commerce , and traffic among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company, by laying Morgan off on August 27, dis-
criminated against him in respect to his hire and tenure of employment in violation
of Section 8(a)(3) of the Act. I shall therefore recommend that it cease and
desist therefrom and from infringing in any other manner upon the rights guaranteed
in Section 7 of the Act. I shall further recommend , since it has been found that
UNITED MINE WORKERS OF AMERICA, ETC. 795
Morgan 's discharge on August 29 was not discriminatory , that he be made whole
for any loss of pay sustained between August 27 and 29 by reason of the discrimina-
tion against him, with interest at 6 percent , computation to be made in the cus-
tomary manner?
It has been further found that the Company, by threats, harassment , and other
interference in connection with protected concerted activities , interfered with, re-
strained , and coerced its employees in violation of Section 8 (a)( I) of the Act. I
shall therefore recommend that the Company cease and desist therefrom.
CONCLUSIONS OF LAW
1. International Union of Operating Engineers , Local 542, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Burton Morgan , thereby discouraging membership in a labor organization, the
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By such discrimination , and by threats, harassment , and other interference in
connection with protected concerted activities , thereby interfering with, restraining,
and coercing employees in the rights guaranteed in Section 7 of the Act, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
2 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827 ; Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v.
N.L.R.B ., 311 U.S. 7; Isis Plumbing & Heating Co ., 138 NLRB 716.
United Mine Workers of America and District 30, United Mine
Workers of America , and Local No. 9606, United Mine Work-
ers of America and Blue Diamond Coal Company . Case No.
9-CB-1060. July 24, 1963
DECISION AND ORDER
On May 1, 1963, Trial Examiner Jerry B. Stone issued his Inter-
mediate Report in the above-entitled proceeding, finding that all the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respond-
ents International and District had not engaged in certain of the
unfair labor practices alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the General Counsel and
the Respondents filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
143 NLRB No. 80.