Tri-W Construction Co.

National Labor Relations Board - Board Decisions

Nov 26, 1962

139 N.L.R.B. 1286 (N.L.R.B. 1962)

1286 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or coerce the employees
of Jamestown Sterling Corporation in the exercise of the rights guaranteed by
Section 7.
UNITED FURNITURE WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
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, Fourth
Floor, The 120 Building , 120 Delaware Avenue , Buffalo 2 , New York, Telephone
Number , Tl. 6-1782 , if they have any question concerning this notice or compliance
with its provisions.
Tri-W Construction Company and International Union of Operat-
ing Engineers , Local 542 and District 50, United Mine Workers
of America , Party to the Contract
Tri-W Construction Company and United Brotherhood of Car-
penters and Joiners of America, Local No. 492 and District 50,
United Mine Workers of America , Party to the Contract. Cases
Nos. 4-CA-2399-1 and 4-CA-2399-2. November 26, 1962
DECISION AND ORDER
On June 1, 1962, Trial Examiner Thomas A. Ricci issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices violative of Section 8(a) (1), (2), and (3) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as recommended in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices violative of the Act.
Thereafter, the General Counsel and the International Union of
Operating Engineers, Local 542, one of the Charging Parties herein,
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
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 entire
record in this case, including the Intermediate Report and the ex-
I As the record , including the exceptions and briefs , adequately present the Issues and
positions of the parties, the request for oral argument by International Union of Operat-
ing Engineers , Local 542 , Is denied.
139 NLRB No. 116.
TRI-W CONSTRUCTION COMPANY 1287
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner?
ORDER
The Board adopts the Recommendations of the Trial Examiner.3
IT IS HEREBY FURTHER ORDERED that all other allegations of viola-
tions of the Act as contained in the complaint be, and they hereby
are, dismissed.
2 In the absence of exceptions , the Board adopts pro forma the findings and conclusions
of the Trial Examiner that Respondent committed violations of Section 8(a)(1), (2),
and (3 ) of the Act.
3 The penultimate paragraph in the notice is amended to read : "60 consecutive days
from the date of posting" instead of "60 days from the date hereof."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Thomas A. Ricci in Reading , Pennsylvania , on February 6 and 7 , 1962 , on con-
solidated complaint issued by the General Counsel , against Tri-W Construction
Company, herein called the Company and the Respondent . The issues litigated were
whether the Respondent had violated Section 8 (a)(1), (2), (3 ), and (5 ) of the Act.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Tri-W Construction Company is a corporation duly organized and existing under
the laws of the Commonwealth of Pennsylvania and maintains its principal office at
Pittsburgh, Pennsylvania. It is engaged in the business of general construction, and,
since on or about March 28, 1961, had been engaged in the construction of a reser-
voir for the Hamburg Municipal Water Authority in Berks County, Pennsylvania.
During the past year, in the conduct of its business operations , the Respondent pur-
chased and received building materials and other goods valued at in excess of
$50,000 directly from States of the United States other than the Commonwealth of
Pennsylvania. I find that the Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the statute and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find , that International Union of Operating Engineers,
Local 542, herein called Operating Engineers and Local 542; United Brotherhood of
Carpenters and Joiners of America, Local No. 492, herein called Carpenters and
Local 492;,and District 50, United Mine Workers of America, herein called District
50, are labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Overall picture of the case
The events giving rise to this proceeding occurred at Hamburg , in eastern Penn-
sylvania, where the Respondent contracted to do the construction work on a new
reservoir for the municipality . The Company's main office is in Pittsburgh and,
apparently , its work generally is carried on in the western part of the State. For
the Hamburg project the Company hired local employees. It took on and used
three categories of workmen-laborers, carpenters , and operating engineers. The
laborers were hired first , and shortly thereafter the Company contracted with the
local union of the International Hod Carriers Union on behalf of those employees.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The carpenters were hired next , almost all referred, upon request, from the local office
of Carpenter Local No. 492. The third group to be taken on were operating
engineers.
In June 1961 , while both the carpenters and engineers were at work , the Com-
pany's superintendent on the Hamburg job was approached by the business agents
of Locals 492 and 542, who made certain demands on him. Whatever these de-
mands were, they were not satisfied and on June 29 all the carpenters and operating
engineers then employed went on strike . The laborers , although covered by regular
contract, ceased work in sympathy.
It is an allegation of the complaint , reiterated by the General Counsel at the hear-
ing, that the employees struck because the Respondent refused to bargain with
Locals 492 and 542, and that in consequence the strike was in protest over unfair
labor practices of the Respondent. Whether the dispute which provoked the strike
involved the question of recognition or arose from economic issues is a question of
fact decided below.
With the strike in progress , and the project closed down as a result , the Company's
officials met with representatives of all three unions-Carpenters, Laborers, and
Operating Engineers-on July 6, in an effort to settle the strike and return the em-
ployees to work. They failed, and the Company then communicated with each of
the strikers individually, requesting that they return in order to avoid being replaced
by other employees whom the Company would attempt to find.
It does not appear that any of the strikers responded to these invitations, and
the Respondent turned to District 50 in an effort to obtain employees. On July 10,
1961, District 50 offered a number of strike replacements and on that day the
Company hired about 10 employees. On that same day it executed an agreement
recognizing District 50 as exclusive representative of all employees on the project,
excluding the laborers. Two days later it made a regular collective-bargaining con-
tract with District 50. It is a further allegation in the complaint that by executing
these agreements, the Respondent gave illegal assistance to District 50 and thereby
violated Section 8(a)(1) and (2) of the statute. The contract with District 50
contains a union-security clause requiring employees covered by the agreement to
become members of District 50. A final allegation of the complaint is that this
union-security clause, apart from all other considerations, exceeds the limits of
union-security provisions allowed by the 1959 amendments to the statute, and there-
fore constitutes a further unfair labor practice by the Respondent in violation of
Section 8(a) (3) of the statute.
B. The alleged refusal to bargain in violation of Section 8(a)(5)
On July 6, 1961, after Locals 542 and 492 had called their operating engineers
and carpenters out on strike, officers of these two unions met with company repre-
sentatives in a conference that lasted several hours. The record shows clearly,
and the General Counsel, as well as the Charging Parties, concede, that the discus-
sions that day constituted pure collective bargaining over economic matters, with no
question raised at all as to the union agents' right to represent their respective mem-
bers who had been at work and were then in strike status. The talking was entirely
about their disagreement as to whether the Company would continue to pay its
established wage rates or the much higher ones which the Unions were demanding.
The first issue raised is whether the preponderance of the evidence supports the
allegation that before July 6 the Company refused to bargain with either of these
unions, or to extend to them recognition as bargaining agents for employees in
appropriate units as the statute requires. I think it clear on the record as a whole
that this allegation of the complaint has not been proved. As I shall recommend
dismissal of the complaint in this respect, ,l deem it unnecessary to determine whether
the carpenters, as a group, and the operating engineers, as another, constitute a unit
appropriate for purposes of collective bargaining in this situation, or whether their
respective unions, Locals 492 and 542, in fact represented a majority among either
group at any given moment.
The refusal to bargain with Carpenters Local 492 is said to be evidenced in several
conversations its business agent, Kreiser, had with Scott, the job superintendent.
On May 12, before there was need for any carpenters, Kreiser visited Scott and in
a general conversation about the use of carpenters asked would this be a union shop;
according to Kreiser's testimony, Scott answered: " I can 't see why we shouldn't."
Kreiser left his card and said he would "appreciate it if you would give us a call if
you need any carpenters." Kreiser returned on May 20 and gave Scott two copies
of a contract which Local 492 had with other employers in the area; Scott said
he would forward this to his home office in Pittsburgh and gave Kreiser the tele-
phone number in Pittsburgh of White, ,the Company's president. Scott then asked
TRI-W CONSTRUCTION COMPANY 1289
Kreiser to furnish him with a carpenter foreman and Kreiser sent Schultz, one of
his members , for this purpose. Six additional carpenters were hired during the
next 30 days, all brought by Schultz and all members of Local 492.
Kreiser appeared again in Scott's office on June 20, with Ross, secretary-treasurer
of the American Federation of Labor Joint Council, and, as Kreiser testified, they
had a "long, friendly discussion." Kreiser conceded that the Company was paying
adequate wages to its carpenters , but insisted the project came under "heavy build-
ing construction," rather than under "highway construction," and that Scott was
therefore failing to adhere to the correct contract. Kreiser explained that in this
part of Pennsylvania projects of this kind were deemed to fall in the general area
of heavy building construction and therefore must be covered by the type of contract
which he, Kreiser, had given to Scott some weeks before. Although the carpenter
wages under both types of construction classification appear to have been about the
same , there were other benefits accruing to carpenters in the heavy building con-
struction contract which the Company was not paying. Scott took the position that
this was a matter beyond his authority and that Kreiser must take this matter up
with White. Kreiser tried to reach White in Pittsburgh by telephone several times,
but failed to locate him.
There were no other communications between representatives of Local 492 and
the Company until White appeared at the project on July 6, a week after the car-
penters and the operating engineers had struck on June 29.
The charge of refusal to bargain with Operating Engineers Local 542 also rests
on two conversations Scott had with a representative of that union before the strike.
By the end of May, the Company had hired 11 operating engineers of whom 9
were still at work. Leon was appointed business agent of Local 542 on May 29,
when he moved from Philadelphia to this area. Most of the operating engineers
on the job were members of his union and he heard that they were complaining about
being underpaid. He visited Scott on June 2 and told him the purpose of his call
was to voice the protest of the operating engineers on this subject. Leon explained
to Scott that in that area of Pennsylvania the work which the Company was doing
came under the subject "building and heavy construction," for which Local 542
would require one type of contract. Scott replied he was paying the rate applicable
to "highway construction" and he showed Leon the local operating engineering
contract for such work. Again the same type of disagreement developed between
Scott and Leon as had been discussed by the job superintendent with Kreiser of the
Carpenter's local. In this instance, however, the variance in wage rates between
what Scott called "highway construction" contract rates and the "building and
heavy construciton" contract provisions demanded by Leon, came to almost $1 per
hour; in addition there were other benefits-including a guaranteed 40-hour week-
called for by Leon's proposed contract. Leon persisted in his demand and Scott
said he had no authority to change, that he would advise White of Leon's demands,
and that Leon could get in touch with White. Leon left his contract form. He
returned in the afternoon but Scott had not yet communicated with White.
Two weeks later, Leon telephoned Scott and was told that White was attempting
to resolve the question of whether the job should be considered "building and
heavy construction" or "highway construction" by appeal to Mr. Wharton in Wash-
ington, the International Operating Engineers' general secretary and treasurer. On
June 27, Leon spoke to Scott again in person a second time He then told Scott
that a majority of the men "were impatient and they insisted that I take immediate
action to force them into a meeting to negotiate an agreement and get the proper
wage rates for them, and they suggested that I tell Mr. Scott and give him a couple
of days to get the boss onto the site with me by Thursday, and unless he was on
the site with me or made an appointment and agreed to sit down with me by Thurs-
day, he would strike the job "
When Scott advised Leon to communicate with Mr Wharton, of the International,
Leon accused the Company of treating him "like a child," he insisted his local was
autonomous. He closed with the statement- "If I didn't receive some positive ap-
pointment or meet some responsible representative of the Company, the job would
be struck on Thursday morning." Scott's reply was that if any employee was dis-
satisfied, be could quit.
The strike came 2 days later and the parties next conferred on July 6, in the
general but futile attempt to settle the dispute.
The strongest bits of evidence relied on by the General Counsel for his conten-
tion that the strike was provoked by a refusal to bargain are that Scott told Leon
he, Scott, had no authority to negotiate a different contract than the one he was
following, and the fact that White, the company president, did not himself move to
communicate with either of the two business agents. In the light of the evidence
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set out above, and other direct evidence showing beyond question that the source
of the Union's dissatisfaction was the Company's insistance upon treating this project
as a "highway" instead of "heavy construction" job, I find the proof in its totality
insufficient to support this complaint allegation.
No one on behalf of the Company ever questioned either the majority repre-
sentative status of the two locals or the right of their agents to speak on behalf
of the carpenters and the operating engineers. Indeed, neither of them ever had
occasion to say that they were claiming bargaining rights. Leon admitted his only
purpose in speaking to Scott at all was in order to persuade him to raise the operat-
ing engineers' hourly rate. As to the carpenters it would be especially difficult to
ignore, on this question, the fact that Scott deliberately hired a Local 492 member
as foreman and knowingly permitted him to hire union members exclusively. Leon
made no attempt to communicate with White; he explained his inaction by saying
Scott had lead him to believe that White would take the first step between them.
But most persuasive to me is the further fact that during the several hours spent
discussing the wage rate disagreement on July 6, never once did a union repre-
sentative accuse the Company of having refused to recognize the Unions, or to
meet with them on request. All they did was continue to belabor the very subject
which had formed the substance of all the conversations which Kreiser and Leon
had had with Scott-whether the contract urged by the Unions was to be used
or that which had guided the Company. The record as a whole shows clearly
that it was not White in person that Leon wanted in Hamburg, or any "responsible"
spokesman of the Company; what he wanted, from first to last, regardless of the
descriptive phrases he may have used as a witness at the hearing, was a very sub-
stantial increase in wage rates.
The complaint asks that the strikers be declared unfair labor practice strikers as
of the time of the hearing in February 1962. Even were it to be assumed, con-
trary to the findings which I make, that before the July 6 meeting these were unfair
labor practice strikers protesting a refusal to bargain, that strike surely ended that
day and a new one, strictly over economic matters, was begun then and there. The
Company had hired no replacements; the project was completely shut down. White
tried repeatedly to persuade both the union agents and the employees themselves
to return to work on his economic terms. They refused. He asked the unions
not to put him in a position where he would be compelled to turn to District -90
for replacements; he even offered to abide by the "highway" contract in its fringe
benefit aspects, including such matters as welfare contributions. Still the employees
refused to return to work. It would be impossible to call them unfair labor prac-
tice strikers from that point on.
Accordingly, I shall recommend dismissal of the complaint to the extent that it
alleges violations of Section 8(a) (5) of the Act.
C. The illegal assistance to District 50 in violation of Section 8(a)(2) and
(1) of the Act
The abortive strike settlement meeting took place on Friday. During the
weekend White communicated with District 50 and asked it to furnish strike replace-
ments. Early the next Monday morning, on July 10, a number of new employees
applied for work at the project. Exactly how many of these were brought by Dis-
trict 50 or exactly how many were hired that day is not shown by the record. The
Company did hire somewhere between 6 and 10 on Monday. By the end of that
week it had taken on a few more, but in no event more than 10 additional em-
ployees. These also appear to have been replacements for the carpenters and
engineers on strike. There is indication that some of the laborers, all of whom
had also struck, returned to work, but whether any of the new employees were
placed in the category of laborers was not precisely revealed at the hearing. In
any event, at most during Monday the Company hired 10 replacements for the
group of carpenter and operating engineers, and there were at that time 9 carpenters
and 11 operating engineers on strike. During the morning on Monday the Com-
pany executed a written recognition agreement in favor of District 50; that con-
tract recognized it as exclusive bargaining agent for all employees excluding laborers.
On Wednesday, July 12, District 50 and the Company signed a comprehensive
collective-bargaining contract covering the same group, including a union-security
provision.' There is vague and inconclusive evidence in the record as to what
1 White testified that Tragus, a representative of District 50, gave him the completed
agreement on Monday, after the two of them had spent some hours discussing its sub-
TRI-W CONSTRUCTION COMPANY 1291
proof was shown White to support the exclusive recognition he accorded District
50 by July 12. He said Tragus, for District 50, handed him "a fist full of slips
of intended employees that wished to have District 50 bargain for them." At the
same time he belittled the number of District 50 men included among the maximum
of 10 persons hired the first day of the week. I think it unimportant, for resolu-
tion of the main issue raised by this allegation of the complaint, to resolve definitively
these minor factual questions. Even if all 10 replacements hired in the early part
of the week were out-and-out District 50 members, the violation of Section 8(a) (2)
inherent in the Respondent's execution of the agreement with that Union would be
no less clear.
There were 20 strikers to be considered at that time. The record shows that all
nine of the carpenters were either members of Local 492 or members of other locals
of the International Brotherhood of Carpenters and Joiners of America who had
transferred their cards into Local 492. Of the 11 operating engineers on strike a
clear majority was shown to have been card-carrying members of Local 492 at that
time. Scott testified unequivocally that if the men had not gone on strike there would
have been enough work on the project to occupy all of them all summer.
But apart from the actual membership of the strikers in their respective craft local
Unions, there is no question but that White was aware when he signed up with
District 50 that Locals 492 and 542 were actively engaged in pressing their demands
upon the Company, and, at the very least, claiming representative status as bargain-
ing agents. In fact, only 3 days earlier White had recognized their strong and
lively representative status during several hours of discussion.
In these clear and simple facts Board law relating to the pertinent allegation of
the complaint is clear. Where an employer extends recognition to a union which
ostensibly evidences representative status among the employees, at a time when a
rival labor organization is also claiming exclusive recognition in circumstances
which raise a "real" question of representation, or a substantial issue is to which
union is the true choice of the employees as a whole, the employer violates the
general proscription of the statutes which guarantees to all employees freedom of
choice in the matter. By arrogating to himself the privilege of resolving the question
of representation by according exclusive recognition to one of the two competing
unions he renders unlawful assistance to that organization in violation of Section
8(a)(2) and 8(a)(1) of the statute.2 When the Respondent executed its contract
with District 50 the operating engineers and carpenters on strike clearly retained their
employee status; if not all of them, without question a substantial number were en-
titled to immediate reinstatement, had they abandoned the strike, because there was
ample work for a full complement. Their closed ranks, in the face of the Respond-
ent's individual solicitation to them only the day or two before July 10 to bypass their
union representatives and abandon the strike, effectively emphasized their continued
adherence to Locals 542 and 492 and their insistence that their unions deal with the
Respondent on their behalf. In these circumstances no further analysis is required
to reach the factual conclusion that the claim for representative status of these two
unions was a "real" rather than a "bare" matter?
Accordingly, I find as alleged in the complaint that the Respondent's exclusive
recognition of District 50 as representative of its employees, in the face of the con-
tinuing claims by Locals 542 and 492, was in derogation of the rights of its employees
to make their own selection with respect to their bargaining representatives, and
that such recognition, and the subsequent execution of a full contract with District
50, constituted violations of Section 8(a) (1) and (2) of the Act 4
stantive terms ; be added he "believed" the agreement had in fact been executed on
July 12, "or later." What the parties signed was a one-page document attached to an
area agreement dated January 1, 1959, between District 50 (U DI W.) and the Pennsyl-
vania Heavy and Highway Construction Bargaining Committee. A fully executed copy of
the written instrument between the Company and District 50. received in evidence, is
dated July 12, and White's affidavit, executed before the hearings, supports the finding
that his final agreement with District 50 must have been signed by July 12 at the latest.
2 Midwest Piping & Supply Co, 63 NLRB 1060; Novak Logging Company, 119 NLRB
1573; Brittany Dyeing and Printing Corp., 126 NLRB 785
8 See William Penn Broadcasting Company , 93 NLRB 1104
s See also Section 9(a)(3) of the statute as amended in 1959.
In view of my finding that execution of the contract with District 50 was an illegal act
for the reasons set out above, I deem it unnecessary to consider the further allegation
of the complaint that that same conduct was also illegal for the reason that District 50 at
the time of the execution of the contract in fact represented only a minority of the
employees covered thereby.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Illegal assistance to District 50 in violation of Section 8(a)(3)
The agreement executed by the Respondent and District 50 on July 12, 1961,
includes the following provision:
It shall be a condition of employment that all employees of the employer
covered by this agreement who are members of the Union in good standing on
the effective date of this agreement shall remain members in good standing and
those who are not members on the effective date of this agreement shall on the
seventh day following the effective date of this agreement become and remain
members in good standing in the Union. It shall also be a condition of em-
ployment that all employees covered by this agreement and hired on or after
its effective date shall on the seventh day following the beginning of such
employment become and remain members in good standing in the Union.
The complaint alleges that by incorporating this provision in its contract with
District 50 the Respondent violated the statute because the clause excedes the
limited degree of union security permitted under the Act. As the Respondent's
project involved in this case appears to be included within the ambit of the language
set out in Section 8(f) (2) of the 1959 amendments to the Act, the contract language
in question must be tested against the wording of that part of the statute. As
written, Section 8(f)(2) permits a union shop in the construction industry after the
seventh day following the beginning . . ." of employment or the effective date of
the agreement. As the clause here being examined requires membership of all
employees not previously members of District 50 "on the seventh day" following
employment or the effective date of the agreement, it clearly fails to provide the
full 7-day grace period required by the statute.5 Accordingly, I find that the clause
in question is unlawful and that by its execution and maintenance the Respondent
violated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of that Company as set out in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of the Act.
I have found that the Respondent recognized District 50, United Mine Workers
of America, and entered into an agreement with it on July 12, 1961, during the
pendency of a question concerning representation of the employees covered thereby.
By such conduct, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of their right freely to select their own bargaining repre-
sentative, and has accorded unlawful assistance and support to District 50. In
order to dissipate the effect of the Respondent's unfair labor practices, I shall
recommend it be ordered to withdraw and withhold all recognition from District 50
and to cease giving effect to the aforementioned agreements, or to any renewal or
extension thereof, until such time as that labor organization shall have demonstrated
its exclusive majority representative status pursuant to a Board-conducted election
among the employees. Nothing herein shall, however, be construed to require that
the Respondent vary or abandon any existing term or condition of employment.
Upon the basis of the foregoing, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Tri-W Construction Company is an employer within the meaning of Section
2(2) of the Act.
2. International Union of Operating Engineers, Local 542; United Brotherhood
of Carpenters and Joiners of America, Local No. 492; and District 50, United Mine
Workers of America, are labor organizations within the meaning of Section 2(5)
of the Act.
5J. W. Bateson Company, Inc., 134 NLRB 1518
TRI-W CONSTRUCTION COMPANY 1293
3. By contributing unlawful assistance and support to District 50, United Mine
Workers of America, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (2) of the Act.
4. By entering into and maintaining a contract containing an unlawful union-
security clause the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act.
5. By the foregoing conduct the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
6. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusion of law, I recommend
that the Respondent, Tri-W Construction Company, Hamburg, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to District 50, United Mine Workers of
America, or any other labor organization.
(b) Recognizing and contracting with District 50, United Mine Workers of
America, as the bargaining representative of its employees, unless and until said
labor organization shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among the employees.
(c) Performing or giving effect to its July 12, 1961, agreement with said union,
or to any renewal, extension, modification, or supplement thereof.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purposes 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 membership in a labor organization as
a condition of employment as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Withdraw and withhhold all recognition from District 50, United Mine
Workers of America, as the collective-bargaining representative of its employees,
unless and until said labor organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election among the employees.
(b) Post at its Hamburg, Pennsylvania, project, copies of the attached notice
marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Fourth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fourth Region, Philadelphia, Pennsyl-
vania, in writing, within 10 days from the date of these Recommendations, what
steps the Respondent has taken to comply herewith.?
It is further recommended that unless the Respondent within 20 days from the
receipt of this Intermediate Report and Recommended Order notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring it to take the aforesaid
action.
It is further recommended that the complaint be dismissed to the extent that it
alleges violations of Section 8(a) (5) of the Act.
6In the event that these Recommendations be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
7 In the event that these Recommendations be adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director , in writing, within 10 days from the
date of this Order , what steps the Respondent has taken to comply herewith."
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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 notify our employees that:
WE WILL NOT assist or contribute support to District 50 , United Mine Workers
of America , or to any other labor organization.
WE WILL NOT recognize or contract with District 50, United Mine Workers
of America, as the bargaining representative of our employees , unless and until
said labor organization shall have demonstrated its exclusive majority repre-
sentative status pursuant to a Board-conducted election among our employees.
WE WILL NOT perform or give effect to our July 12, 1961 , agreement with
said District 50, United Mine Workers of America , or to any renewal , extension,.
modification, or supplement thereof.
WE WILL withdraw and withhold all recognition from District 50, United Mine
Workers of America , as the collective^bargaining representative of our em-
ployees, unless and until said labor organization shall have demonstrated its
exclusive majority representative status pursuant to a Board-conducted elec -
tion among our employees.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of their rights of self-organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain from any or all 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, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
TRI-W 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.
Employees may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania,
Telephone Number , Pennypacker 5-2612 , if they have any question concerning
this notice or compliance with its provisions.
Susquehanna Broadcasting Co., The Pfaltzgraff Pottery and
International Brotherhood of Operative Potters, AFL-CIO
Susquehanna Broadcasting Co., The Pfaltzgraff Pottery and
International Brotherhood of Operative Potters, AFL-CIO.
Cases Nos. 4-CA-2486-1 and 4-CA-2486-2. November 26, 1962'
DECISION AND ORDER
On August 1, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate 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 Inter-
'mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
139 NLRB No. 109.