United Steelworkers of America, AFL-CIO

National Labor Relations Board - Board Decisions

Mar 11, 1959

123 N.L.R.B. 124 (N.L.R.B. 1959)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent Union has engaged in and is 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), (2), 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.
[Recommendations omitted from publication.]
United Steelworkers of America , AFL-CIO [Boyles Bros. Drill-
ing Company] and International Hod Carriers and Common
Laborers Union, Local No. 16, AFL-CIO. Case No. 33-CC-51.
March 11, 1959
DECISION AND ORDER
On December 31, 1958, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
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, Bean, and Fanning].
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
Intermediate Report, the exceptions, the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On September 22, 1958, International Hod Carriers and Common Laborers
Union, Local No. 16, AFL-CIO, filed a charge against United Steelworkers of
America, AFL-CIO, herein called the Respondent, charging the Respondent with
violation of Section 8 (b) (4) (A) of the Labor Management Relations Act, 61
Stat. 136, herein called the Act. On October 17, 1958, the General Counsel of
the National Labor Relations Board, herein respectively called General Counsel
and the Board, caused a complaint to issue against the Respondent. The
Respondent received notice of the filing of the charge on September 23, 1958,
and duly received copies of the charge, complaint, and notice of hearing.
In substance the complaint alleges that on about September 7, 1958, the
Respondent engaged in a labor dispute and strike with Boyles Bros. Drilling
Company, herein called Boyles, that Boyles was engaged in construction work
for Phillips Petroleum Company, herein called Phillips, and that, although the
123 NLRB No. 20.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 125
Respondent had no dispute with Phillips , it did on and after September 7, 1958,
picket Phillips and , on and after September 9, 1958, order and instruct the employees
of Phillips at certain locations to cease and refuse to work, and that, as a result,
said employees of Phillips did cease and refuse to work.
Following issuance of the complaint , the Respondent filed with the Regional
Director motions for a bill of particulars and to dismiss the complaint, the
latter motion on the ground that the Regional Director had failed to comply
with Sections 101.4, 101 . 7, and 101.8 of the Board 's Statements of Procedure.
These motions were referred to the Trial Examiner for ruling . The former was
in part granted and in part denied . Ruling on the latter motion was deferred
until after the opening of the hearing . Meanwhile the Respondent filed an
answer in which it denied that it engaged in a labor dispute with and strike
against Boyles , admitted that it had no labor dispute with Phillips , and denied the
allegations averred as a basis for the issuance of the complaint.
Pursuant to notice, a hearing before the Trial Examiner was held at Albuquerque,
New Mexico , on November 5 and 6, 1958 . At the opening of the hearing , counsel
for the Respondent reiterated the aforesaid motion to dismiss, citing and relying
on Madden v. International Organization of Masters, Mates & Pilots of America,
Inc., AFL-CIO, 259 F. 2d 297 (C.A. 7). The Trial Examiner denied the motion
on the ground that strict compliance with the Board 's Statements of Procedure is
not, in a complaint case before the Board , a jurisdictional requirement. At the
close of the General Counsel's case , the Respondent again moved to dismiss, first,
on the grounds previously advanced , and second , for failure of proof to support
the complaint , but counsel for the Respondent chose to withhold the motion to
dismiss on the evidence rather than rest without introducing evidence of its own
and submit the case on the General Counsel 's evidence . The renewed motion to
dismiss on the grounds relied on in its motion made at the opening of the hearing
was denied . A renewal of the same motion at the close of the hearing was again
denied, but ruling was reserved on the motion to dismiss for failure of proof. This
motion is disposed of by the findings and recommendations herein.
At the close of the hearing , the Respondent argued orally on the record and, at
the request of counsel for the Respondent , a time was fixed for the filing of briefs.
Within this time as later extended , the Respondent and the General Counsel filed
briefs with the Trial Examiner.
From my observation of the witnesses and upon the entire record in the case,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF BOYLES
Boyles, a Utah corporation with its principal office in Salt Lake City, Utah, and
with branch operations in 16 States of the United States, is in the construction
business. During a representative 12-month period, it has received revenue from
its operations of about $5,000,000. During the same period, it has purchased raw
materials, equipment, or supplies valued at about $2,000,000, of which about
$500,000 in value was shipped to it, in interstate commerce, across State lines.
During the same period, it furnished services valued in excess of $100,000 to other
companies engaged in interstate commerce, said companies during the same period
having shipped goods in interstate commerce valued in excess of $50,000, or
having performed services outside the State or States in which they are located, in
excess of $50,000.
It. THE STATUS OF THE RESPONDENT
The Respondent is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Inducement of employees of other employers to engage in strikes
1. Background
Boyles is under contract to sink mine shafts for Phillips in the Ambrosia Lake
area about 20 miles from Grants, New Mexico. Since January 1957, Boyles, in
the performance of this contract, has been engaged in sinking shafts known as the
Sandstone and the Cliffside shafts on Phillips property. Before August 1958 the
Respondent had a collective-bargaining agreement with Boyles for employees on
the aforesaid operations.
On August 6, 1958, in the case of Boyles Bros. Drilling Company, Case No.
33-CA-438, Trial Examiner Spencer issued his Intermediate Report, recommending
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Boyles cease and desist from certain unfair labor practices violative of Section
8(a)(1) and (2) of the Act and that Boyles withdraw and withhold all recognition
of the Respondent herein as the representative of any of its employees at the site
of the aforementioned operations, unless and until the Respondent should have been
certified by the Board as such representative. Trial Examiner Spencer also recom-
mended that Boyles reimburse its employees and former employees at the project
for any dues and initiation fees deducted from their earnings pursuant to a checkoff
provision in Boyles' agreement with the Respondent and post copies of the notice
attached to the Intermediate Report and Recommended Order.
Thereafter Boyles notified the Board of its intention to comply with Spencer's
Intermediate Report and Recommended Order. On August 27, 1958, Bob
Williams, Boyles' general superintendent, posted at each of the two shafts, Sand-
stone and Cliffside, copies of the notice as recommended by Trial Examiner Spencer,
except that the paragraph concerning reimbursement of dues and initiation fees
was omitted.' This notice constituted a withdrawal of recognition of the Re-
spondent and a termination of contract relationship.
Meanwhile, about August 24, Angelo Verdue, an international representative of
the Respondent, called Thomas Hughes, an employee of Boyles who was chairman
of the grievance committee at Boyles' operations, and asked him to set up a
meeting for August 27. Hughes did so, and a meeting was held in Grants at the
appointed time at which Verdue told those present that the Respondent could not
represent the employees until an election had been held and the Respondent had
been certified by the Board. No dues were collected by the Respondent from the
employees previously represented in September nor thereafter so far as the evidence
shows.
In the first part of September 1958, Boyles filed a petition for an election and
arrangements were made for an election at which the Respondent, the Charging
Party, and another labor organization were to appear on the ballot. On October
16 a meeting was held, and the parties arrived at a consent-election agreement with
an election set for November 19, 1958. Starting in September, the several unions
engaged in organizational activities at an increased pace.
During the period when the Respondent's collective-bargaining agreement with
Boyles was extant, certain grievance procedure was provided. Tom Hughes, a
Boyles employee, had been chairman of the local grievance committee of the
Respondent from the time of its inception in 1957 until the expiration of the
collective-bargaining agreement? It is the General Counsel's position that this
agreement continued to be applied, but, as the agreement contained a union-shop
clause and yet no dues were collected by the Respondent in September, and as the
agreement provided for carrying grievances, not settled at the local level, to repre-
sentatives of the Respondent in Salt Lake City, Utah, and yet this was not resorted
to after the end of August, I find no evidence that the agreement was enforced in
these matters. Boyles gave no evidence of recognizing the existence of the agree-
ment following the posting of the notice previously mentioned. I find, therefore,
that the agreement was not in effect after August 27, 1958.
2. The Edsel matter
About September 1, 1958, Calvin Monk, Boyles' superintendent of shafts, di-
rected John Williams, the shift boss at the Sandstone shaft, to put Harry Edsel,
a day-shift employee who normally worked above ground, "on the bottom," 3 i.e.,
underground. When Williams told him, Edsel protested on the ground that his
health would be adversely affected by working in the dampness below ground. As
Edsel had heard that Boyles had a full crew on the bottom, he sought an explanation
of his ordered transfer from Monk. No explanation is disclosed. Boyles did not,
however, immediately insist upon Edsel's going underground but apparently warned
him that persistence in refusal to take the transfer would result in his discharge.
'This omission may have been occasioned by the extended moratorium on the so-called
Brown-Olds remedy which was not to expire until September 1, 1958. 43 LRRM 49.
Board records show full compliance as of -November 7, 1958.
2 Others on the grievance committee in August 1958 were Murray Franklin, Jesse Green,
Ted Meeker, Bill Bateman, and Charlie Marshall.
3 This finding and others in this paragraph are based largely on hearsay testimony, but
as the facts here related are collateral to the issues and as the parties appeared to accept
the testimony on which these findings are based, their acceptance as fact does not affect
the result. The facts are recited purely as background.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 127
Hughes, erstwhile chairman of the grievance committee, having received a
secondhand account of the Edsel matter, viewed the threatened discharge of Edsel
as a step in retrogression because, under the previous collective-bargaining agree-
ment between Boyles and the Respondent, men with seniority had job preference,
and Edsel had longevity sufficient to have entitled him to choose to keep the job
above ground. In Trial Examiner Spencer's Intermediate Report appeared the
language customarily used in the remedy section where a violation of Section
8(a)(2) is found:
Nothing herein, however, shall be construed as requiring . [Boyles] to
vary wages, hours of employment, rates of pay, or other substantive provi-
sions in its relations with . . . [its] employees themselves, which . [it]
has established in the performance of said agreement, or the prejudice the
assertion by such employees of any rights they may have thereunder.
Hughes had seen this passage and he construed Boyles' threat of discharge to
Edsel as an attempt to disregard the rights of seniority which the employees had
gained and desired to retain. He therefore went to Superintendent Monk and told
him that the employees did not expect any gains "in the 60-day [compliance]
period" but that they expected Boyles not to change conditions and that, as long
as they remained the same, the job would operate smoothly until the election
was held. During that week, the employees at the Sandstone Shaft discussed
the Edsel matter among themselves.
On September 7, 1958, about 1 p.m., Edsel was discharged pursuant to the
warning given him a week earlier. This was 3 hours before the end of his shift.
3. The strike
When Edsel was going home, he stopped and told Hughes of his discharge and
the circumstances of it. Between 3 and 3:30 that afternoon, Hughes walked into
the hoistroom. Two or three employees who had previously heard of Edsel's
discharge asked Hughes, "What are we gonna do, shut her down?" The hoistman
on the day shift, the one before Hughes' shift, came and Hughes asked him to
"flash" the men out of the bottom. It was then about 40 minutes before the end
of the shift. Hughes then went through the shop and told the mechanic that
"we" were shutting down. When the shift boss, John Williams, appeared, Hughes
told him that "we were going to have to shut it down until we got the matter
of Edsel settled." Hughes then went to the Boyles office and told General
Superintendent Bob Williams and Monk that the employees were off and that
they had shut down.4 He asked Monk how many men he wanted to pump
water, an operation needed to keep the shaft from filling with seeping water.
After Monk had replied, the group moved to the coffee room, where Hughes told
Williams that there would be no more work until Edsel was replaced with full
pay, and he sought to discuss the matter. Williams replied that he could not
negotiate,5 that he would not negotiate even if he could, and he threatened to
file an unfair labor practice charge and sue. Hughes asked, "Who do you intend
to sue, the men?" Williams answered, "You, or anybody." Williams asked
Hughes if he was shutting the Cliffside shaft down, and Hughes replied that he
was. Williams asked for a man to man the pumps there. The Sandstone em-
ployees, except for the pump crew that was left in charge, gathered on the
road until about 4 p.m. I infer that they were waiting for the employees at the
Cliffside shaft on the day shift to pass at that time as they were leaving on their
way home. A majority of the employees on subsequent shifts at both Sandstone
and Cliffside shafts joined the walkout.
On September 8, 1958, at the request of Boyles for a meeting, Hughes, Franklin,
Edsel, and an employee named Arnold Allen 6 were present at a meeting at the
4 General Superintendent Williams testified that Murray Franklin (a member of the
grievance committee before the nullification of the Respondent 's contract ), who worked at
the Cliffside shaft, was with Hughes. Hughes did not mention Franklin 's presence in his
testimony but testified that the crew at the Cliffside shaft finished the shift . The testi-
mony of Williams and Hughes is not necessarily inconsistent . Franklin could have worked
on the swing shift, like Hughes, and have learned of Edsel's discharge in the same manner.
s At this 'time, Williams apparently assumed that Hughes was representing the Respond-
ent, although no mention was made of the Respondent by either Hughes or Williams in
,their conversation.
e Edsel was the dischargee , Hughes and Franklin had been on the grievance committee
when there was a contract, but there is no evidence that Allen had ever had any position
under the Respondent.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franciscan Motel in Grants at which Superintendent Williams and others repre-
sented that Company. Hughes told the Boyles representatives that the employees
did not have any representation (i.e., union representation) and that they felt
that Boyles was trying to take away their gains, inferentially, those acquired as a
result of the collective-bargaining agreement which had been nullified on August
27. Presumably Williams understood at this time, if not before, that Hughes and
the other employees were acting as representatives of the employees and were
not purporting to act as representatives of the Respondent, for Williams testified
with reference to his conversation with Hughes on September 7 that he learned
this fact "later," and it was at the meeting on September 8 that this appeared
to have been brought out. This meeting and subsequent meetings through the
week prior to Friday, September 12, were ineffective.
During the day of September 8, Hughes made arrangements for a meeting of
Boyles employees for that night at the Community Center in Grants and notice
thereof was spread by word of mouth. Hughes testified that he announced that
it was to be a meeting of employees and not a union meeting, but some people
jumped to the conclusion that it was a union meeting. Because some of the
employees did not understand the significance and effect of the notice which had
been posted on August 27 in compliance with Trial Examiner Spencer's recom-
mended order, according to Hughes, he invited International Representative George
Haycock of the Respondent to come and explain the notice so that the employees
would understand that they were not being represented by the Respondent. The
meeting was attended by 30 or 40 employees that night. It was a rather informal
meeting, however, and some employees left before the meeting ended. Hughes
presided and told the employees the circumstances of the Edsel discharge and
why he thought it was unjust. He then mentioned the posted notice and said that
there was no contract as far as the Respondent was concerned and that because
there was no contract the employees would have to stick together and get Edsel
back to work. One employee suggested that the matter should be arbitrated and
that meanwhile they should all go back to work. Another, identified by the
witness Ernest Wright as a shift boss (i.e., foreman), remarked that, if there was
no picket line, "we're gonna man that job." Sometime after the meeting started,
Haycock came in and made a brief statement, explaining the fact that the
Respondent was not the bargaining agent for the employees and that it could
not negotiate a contract until after the election and until certified by the Board.7
When he finished his statement, Haycock left the meeting, which continued with
further discussion and wound up with a vote to post pickets, the pickets to serve
on a voluntary basis.
4. The picket-line activities
About 10:30 p.m., after the meeting on September 8, pickets were posted at the
end of the County Line Road where that road ended at a cattle guard at the
entrance to the Phillips property on which the Sandstone and Cliffside shafts were
located. Approaching this property by the County Line Road from the direction
of Grants, one would pass the entrance to the Phillips Anna Lee Mine, where
Phillips employees worked, a short distance before reaching the aforesaid cattle
guard. Employees of Phillips were not, therefore, required to pass the pickets
at their location. The pickets remained that night until after the time the
graveyard shift would have gone to work. The pickets numbered about 20 and
all were Boyles employees. General Superintendent Williams identified one as a
Phillips employee, a man by the name of Stanley Ontis. However, Ontis, a
Phillips mechanic leadman, testified that as of September 7 he was transferred to
the area of the Sandstone and Cliffside shafts for maintenance purposes (pre-
sumably because the Boyles mechanic would be on strike) and to see that Boyles
properly maintained Phillips machinery which it was using. The so-called pickets
did not carry signs that night and Williams did not testify as to how he identified
Ontis as a picket. It does not appear for certain that he was actually acting as
a picket. As Ontis passed the pickets and went to work during that week, he may
, Witnesses for the General Counsel quoted Haycock as saying, "If we're gonna win
this, we gotta stay together," and also as saying "that Edsel had a lot of seniority and
we had to stick together to get him back on and to stick together to get a new contract."
Such witnesses testified that Haycock was at the meeting, without disclosing that he was
not at the full meeting. They also testified that Hughes spoke of staying out on strike
until they had a contract. Hughes denied this. The testimony of the witnesses for the
General Counsel disclosed a fragmentary and imperfect memory. I credit Hughes' testi-
mony, and base my findings as to this meeting mainly on his testimony.
UNITED STEELWORKERS OF AMERICA, AFL-CIO ]29
well have been merely stopping to chat with the pickets as he was going to or
leaving work on the night of the 8th. But if he did picket, he apparently did
not, before the night of September 10 at least, cease working for his employer
in order to do so.
Pickets were at the same place on Tuesday, September 9, most of the day,
but sometime before 11 p.m. they moved to the junction of Ambrosia Road and
the County Line Road where there was a restaurant called Chuck and Anne's
Cafe. Neither the reason for the move nor the time they remained there appears.
A couple of small signs were held by pickets, bearing the single word "Pickets."
This was at a spot where Phillips employees were likely to pass on their way to
work. However, Phillips employees worked that night as usual although they
were represented by the Respondent. Whether or not the pickets remained at
Chuck and Anne's until 12 midnight, when the Phillips swing shift would be
leaving and the graveyard shift would be starting, does not appear, but they
moved back to the aforesaid cattle guard again and were there when Williams
next saw them at about 2:15 a.m. on September 10. Except for a part of the
day of September 10, picketing continued until September 12, although on
September 11 and 12, when they were joined by Phillips employees, they were
stationed at locations nearer to the direction of Grants than before.
The record is not altogether clear as to the date or time of day, but I find,
on all the evidence, that it was shortly before noon on September 9,8 when
Respondent's International Representative Haycock, together with other contract
negotiators on their way to a contract negotiating meeting with Phillips at the
Anna Lee Mine, drove up to a point between the entrance to that mine and a point
near the picket line in the vicinity of the aforementioned cattle guard. There,
Haycock relayed to Hughes a message which he had been requested in Grants
to deliver to him. The substance of this message was that Boyle's attorney,
Albert Ussery, had requested a meeting in Albuquerque at 2 p.m. on September
10 and that he had requested that Edsel be present. At this time, a car containing
some representatives of the Charging Party, which was also attempting to
organize Boyles employees and which was to be on the ballot at the election
later held, was present. Haycock walked up to this car and shook hands and
spoke a few words to the occupants. One witness called by the General Counsel
on rebuttal, Peter Baldwin, who was in this car, testified that one of the other
occupants of the car he was in, Gardner McCoy, asked Haycock, "Well, how is
your strike going?" and that Haycock had replied, " `Fine' or words to that
effect." On cross-examination, Baldwin testified that Arthur Mullet, a staff
representative of the Respondent, was at that location at the time of this conversa-
tion but had walked back toward the group of pickets, about 25 to 50 feet from
the car. He also testified that Haycock had said he was in negotiations with
Phillips. Haycock did not testify, but Mullet testified that he had left the Grants
area on the morning of September 7 and went to Salt Lake City and was there
on September 9; and he denied having been on the picket line at any time.
Although Haycock was not called to deny Baldwin's testimony (for what reason
does not appear), I am not disposed to credit Baldwin's testimony regarding
Haycock's answer to McCoy's question. It appears to me extremely improbable
that Haycock would ingenuously have acknowledged sponsorship of the strike
of Boyles employees (even if Respondent had in fact sponsored it) to representa-
tives of the labor organization that had filed the charge which resulted in Trial
Examiner Spencer's recommendation that Boyles withhold recognition from the
Respondent. Baldwin's powers of observation were shown not to be infallible,
and his quotation of Haycock's reply as " `Fine' or words to that effect" definitely
indicates a vague memory. Furthermore, Jesse Green, a picket during the Boyles
walkout, testified that about 9 a.m., which would place the time as before Hay-
cock's arrival, McCoy stopped at the picket line and Green went up to the car
to speak with him. He testified credibly that McCoy asked, "What Steelworkers
authorized this strike?" and that he had replied that it was not a strike but was a
walkout of Boyles employees only. I find that McCoy knew before he talked
with Haycock that the walkout was not claimed to be a Respondent-sponsored
strike. On all the evidence, I find that, if McCoy asked the question which
8 Part of the uncertainty as to date arises from the fact that, although Hughes admitted
the related incident, he answered negatively when asked, "Was Haycock on the picket line
on September 9?" I am convinced that Hughes, whose testimony I credit, understood
this question to mean, "Did Haycock participate in the picketing on September 9?"
rather than, "Was Haycock at the location of the picketing on September 9?"
508889-60-vol. 123-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baldwin testified he asked Haycock, Haycock did not answer as testified by
Baldwin. The record does not disclose who requested Haycock to convey the
message which he delivered to Hughes, whether Ussery or someone else.
About seven or eight pickets were at the cattle guard at the end of the
County Line Road about 2:30 p.m. on September 10, when a car drove up
containing three of Boyles' foremen, their master mechanic, and two Boyles
employees. According to Arthur Holtz, a Boyles mechanic who was one of the
pickets, the car proceeded about 50 feet beyond the picket line and stopped.
At that point, the occupants of the car, or most of them, got out and walked
back. Foreman John Williams approached the pickets and commented that the
employees were only hurting themselves and that the dispute should be submitted
to an arbitrator.9 Holtz explained that a meeting was then going on in
Albuquerque and that they should wait and see what the outcome of that was.
Williams said that the strike was illegal and that the pickets should either "work,
go home, or else." Holtz asked, "Or else what?" Williams replied, "Or fight."
Holtz offered to fight Williams alone, but Williams' group indicated that they
all would fight. The pickets decided to go home and did. That night Holtz
told Hughes about the incident.
The following day, the pickets were out in larger numbers and were joined
by Phillips employees, who had walked out on the night of September 10 as
hereinafter related. Pickets remained at various locations thereafter, including
approaches that might be used by employees of Phillips, until the end of the
week when the dispute was settled by arbitration.
5. The Phillips walkout and succeeding events
In August 1958, the Respondent was certified as the collective-bargaining repre-
sentative for Phillips employees, and the first negotiating meeting was held on
September 9. Before this meeting, Horrie, the local representative of the Re-
spondent, had given Phillips' assistant superintendent, Gerald Karr, the names of
the negotiating-grievance committee. Named as chairman of the committee was
Bill Sherley who worked on the swing shift as a conveyor-chain operator, the
conveyor being the means of conveying the muck from the skip to the hopper.
During the first half of the swing shift, Edgar Staples, the shift foreman, was
notified by his superintendent that a strike was anticipated and to be prepared
and let the latter know when it took place. Just after the midshift lunch period,
a Phillips engineer at the Sandstone project who was a management representative,
came to Staples to see about borrowing a pump, the one at the Sandstone
shaft having broken down. Two Phillips employees entered the Anna Lee Mine
to remove a pump. Just after the pump was brought out, the men in the mine
all came out and went toward the change room. Staples asked what was going
on and one of the employees told Staples that they were going to help their
"brothers." Sherley asked Staples to speak to the men to see if he could not
keep them on the job. Staples replied that he thought Sherley should talk to
them. When the men went to the change room, Staples called the superintendent,
who told him to get the company rule book and read it to them. Staples got the
book and read to the employees the section concerning disciplinary action for
leaving the job without having been properly relieved. Some of the men wanted
to return to work while others were of a mind to leave. Staples chose not to
let only part of the shift work and told all who had not already left that no one
should remain except the men he had asked to remain for maintenance. It was
close to 10 p.m. when the crew left. On Thursday, September 11, the other shifts
of Phillips employees joined the walkout.
The General Counsel adduced some inconclusive evidence concerning the fact
that Sherley had, after the lunch period, in response to a message received that
he was to call a certain number, made a telephone call to Grants, that he had
later used the intermine telephone twice, and that shortly after his last use of
the intermine telephone, the men came up from the mine. The first time Sherley
used the intermine telephone, Staples picked up the receiver of an extension
when the bell rang and he heard Sherley ask the party he was speaking with when
9 This finding is based on the rather sketchy testimony of the witness John Cranshaw,
an employee who had come in the car with Williams, which appeared to be fairly accurate
as far as it went. I infer that Williams meant that, by staying out on strike, the
employees were losing wages and that they should submit the matter to arbitration and
meanwhile return to work.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 131
he was going to send out more muck. Later, Staples saw Sherley with the
telephone in his hand and went to the extension to listen in but he heard no
conversation.
On Thursday, September 11, about 8 a.m., management representatives of
Phillips met with the members of the negotiating committee in the mill office
building in an effort to get the men back to work.1° Karr said that the company
(Phillips) did not know why the men had walked off the job and asked why.
Sherley said that there was no problem between Phillips and its employees but
that the employees in effect resented the fact that the men on the Boyles picket
line had been run off in a high-handed manner the day before. Karr asked if the
members of the committee represented the employees. They replied that they
did but that this was not a union-called strike-that this was a spontaneous
walkout in sympathy over the Boyles dispute. Either at this meeting or in a
later conversation on the same day, Sherley told Karr that, in addition to the
.aforementioned picket-line incident, the employees had walked out at Phillips
because they did not like the fact that Phillips employees were moving a pump
for installation at the Boyles Sandstone shaft. The Phillips representatives
attempted to confine the area of the dispute and to get its own employees back
on the job. However, despite their efforts and a further meeting on the morning
of September 12, the employees did not return to Phillips until information had
been received later that day that Boyles and its employees had agreed to an
arbitration of the Edsel matter. Then the men on the 4 o'clock shift on
September 12 returned to work. Boyles employees did not return to work until
the beginning of the next week.
Concluding Findings
The complaint charges that the Respondent had engaged in a strike against
Boyles and in addition had ordered and instructed employees of Phillips to cease
and refuse to work.
With respect to the strike or walkout at Boyles, the only evidence that the
walkout was Respondent inspired is the fact that Haycock spoke at the September
8 meeting of employees which was held after the walkout and at which there
was a vote taken to put up a picket line, that on September 9 Haycock conveyed
a message from Boyles' attorney to Hughes when Hughes was at the picket
line, and that most of the employees who were acting as representatives for the
striking Boyles employees had been members of the Respondent's grievance
committee during the time when Boyles and the Respondent had had a contract.
On the record it cannot be found that Haycock was informed that the meeting
of employees on September 8 was a meeting of union employees only or that
he knew that at that meeting a vote was to be taken to put up a picket line.
From the fact that at least one foreman was present at the meeting, and the
fact that some of the employees present were not favorable to the Respondent, I
conclude that the meeting was not limited to employees who were, or had been,
members of the Respondent. The evidence discloses that Haycock came into this
meeting, which had been announced to be a meeting of employees, not a union
meeting, made his brief speech, and left without waiting to hear anything else
that transpired at the meeting. The evidence that Haycock conveyed to Hughes
a message emanating from Ussery when Haycock was en route from Grants to
the Phillips mine, is not an act warranting any inference that the Respondent was
sponsoring the Boyles walkout.
It is fairly evident that the principals in the walkout at Boyles were employees
who were favorable to the Respondent and who apparently hoped again to
have the Respondent represent them in collective bargaining. But at the time
they acted, the employees were not in fact being represented by the Respondent.
The leaders of the walkout had no actual authority to represent the Respondent.
They were not even paying dues as members of the Respondent as far as appears.
The General Counsel adduced evidence that Hughes was reputed to be the local
11 On direct examination Gerald Karr, assistant superintendent, mine-milling department
of Phillips, named those who were present at the first negotiating meeting on September 9.
This included Haycock and George Wilde, a staff representative of the Respondent, and
the members of the negotiating committee. Then in response to a leading question as to
whether the Phillips representatives met with the same men on Thursday morning,
September 11, Karr answered affirmatively. Karr's later testimony does not mention the
presence of Haycock or Wilde at this meeting, and the testimony of Jess Lester, a member
of the committee, indicates that only the men on the negotiating committee were present
in behalf of the employees and that Haycock and Wilde actually were not present.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leader of the Respondent and that, with one or two exceptions , the men who
conducted negotiations with Boyles on the Edsel matter through the week of
September 8 to 12 had been members of the Respondent 's grievance committee
when the Respondent had been acting as collective-bargaining representative for
Boyles' employees . That these men had formerly acted as a grievance committee
in the past is not enough from which to infer that they had been clothed by the
Respondent with authority to call a strike on its behalf. Even if there were still
a contract and they were authorized by the Respondent to act as a grievance
committee , which in fact they were not, I am not satisfied that their authority
would have extended to calling a strike on behalf of the Respondent. On the
evidence as it stands , I infer that Hughes was a natural leader of the men, one
to whom all looked for leadership , and that he would have been so regarded
by the employees even if the Respondent had never represented the Boyles
employees . The fact that he and others active in the Edsel dispute had an
affinity for the Respondent rather than some other union falls far short of
establishing that they were authorized to bind the Respondent by their acts.
According to Superintendent Williams, he dealt with Hughes only as an employee
representative and not as a representative of the Respondent in negotiations on the-
Edsel dispute . On all the evidence I find that the Respondent is not chargeable
with the acts of the leaders of the walkout at Boyles.
With respect to the walkout at Phillips, there is no direct evidence that the
Respondent ordered or directed the employees to walk out. In response to a_
request for a bill of particulars naming the representatives of the Respondent who
had ordered the employees at Phillips to cease working , the General Counsel
named the employee members of the negotiating committee. He did not name-
any international representatives or other officials of the Respondent . The mem-
bers of the committee, although assuming to act for the striking Phillips employees,
assured the Phillips management representatives that the Respondent was not
involved in the walkout.
I am not satisfied that the walkout at Phillips was as spontaneous as the
evidence for the Respondent sought to establish. The Respondent 's position is-
that the removal of the pump from the Phillips mine sparked the walkout,.
although the abuse of the pickets on the Boyles picket line had aroused the ire.
of the Phillips employees and constituted an underlying cause of their walkout.
However, it appears that the Phillips superintendent had information that there'
might be a walkout before the pump incident occurred , and therefore it may
be inferred that the possibility of a walkout that night existed in advance of the-
midperiod of the swing shift. This does not, however, establish that the walkout-
was planned before the swing shift came on the job, let alone that it was planned by-
the Respondent.
The rather nebulous evidence concerning telephone calls made by Sherley-
before the walkout may create a germ of a suspicion but the only utterance of'
Sherley actually overheard was one connected with Phillips ' business . He is not
connected with the walkout by any substantial evidence . Such evidence fails to,
prove that he either received orders from the Respondent in a telephone call or-
that he, himself, called out the men . I infer that the employees first off the-
job at Phillips on September 10 were members of the Respondent . This would'
explain why they were incensed by the picket -line incident in which Boyles"
management representatives dispersed the pickets with threats of force. They
undoubtedly knew that the leaders of the Boyles walkout were advocates of
representation by the Respondent . However, the fact that employees at both.,
Phillips and Boyles had a common interest and a desire to be represented by the:
Respondent is insufficient to charge the Respondent with responsibility for their acts..
I conclude and find that the allegations of the complaint have not been,
sustained by the evidence.
Upon the basis of the foregoing findings of fact and upon the entire record:
in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of Section 2(5)'
of the Act.
2. Boyles Bros . Drilling Company is engaged in commerce within the meaning'
of Section 2(6) and (7) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning.
of Section 8(b) (4) (A) of the Act.
[Recommendations omitted from publication.]