Leeds and Northrup Co.

National Labor Relations Board - Board Decisions

Dec 2, 1965

155 N.L.R.B. 1292 (N.L.R.B. 1965)

1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent did not violate Section 8 (a)(3) of the Act as alleged in the
complaint.
4. The Respondent did not violate Section 8(a) (1) of the Act as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that the complaint herein be dismissed in
its entirety.
Leeds and Northrup Company and Leeds and Northrup Em-
ployees' Union . Case No. 4-CA-3335. December °2, 1965
DECISION AND ORDER
On May 11, 1965, Trial Examiner Frederick. U. Reel issued his
Decision in the above-entitled case, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs, and the Respondent filed briefs in support
of the Trial Examiner's Decision.
The National Labor Relations 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 Trial Examiner's Decision and the entire record in
this case, including the exceptions and briefs, and hereby adopts the
conclusions and recommendations of the Trial Examiner for the
reasons herein set forth.
The Trial Examiner concluded that the Respondent did not violate
Section 8(a) (1) of the Act by offering and providing to employee
union members the services of company counsel without cost to the
employees, and by payment of other legal expenses incurred in resist-
ing the Union's court action to collect fines imposed by the Union for
crossing its picket line. Under the circumstances of this case, we agree.
As set forth more fully in the Trial Examiner's Decision, the relevant
events which occurred during an 18-month period are largely undis-
puted. The background facts show that on November 28, 1962, the
employees of the Respondent Company went out on strike. Of the
2,092 employees in the unit, 50 union members did not participate in
the strike. Early in January 1963 after the strike ended, the Union
announced that those employees who had crossed the picket line would
be charged with violating the Union's bylaws and tried before its
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
155 NLRB No. 125.
LEEDS AND NORTHRUP COMPANY 1293
executive committee. The. Company promptly advised the nonstrikers
that it would do everything legally possible to protect their rights and
that they should call the personnel office as soon as they received
their trial notices. Company counsel thereupon met with the affected
employees and furnished each of them with a draft of a proposed
letter reciting that the signatory individual would not appear at the
scheduled trials, that the initial strike was unlawful, and that a fair
trial could not be held because the case had been prejudged. Most of
the employees signed the letters, and the Company transmitted them to
the Union. Subsequently, the Union held hearings and assessed the
fines, which the General Counsel conceded, for purposes of argument
and for this proceding only, were illegally levied?
The events upon which the unfair labor practices allegations are
based, i.e., those falling within the 6-month period preceding the
filing of the charge, occurred on February 14 and April 23, 1964,
when company counsel again met with the affected employees. Attend-
ance was voluntary at these meetings, at it was at those held in 1963.
The employees were informed how the fines would be collected if the
Union instituted court action and were asked to notify the Company
should any of them be sued. At the April 23 meeting, company counsel
also advised the employees of a suit brought against employee Hildreth
and offered to act as counsel to any of the employees who so desired in
the event they were sued.
By the time of the instant hearing, the Union had instituted court
action against two employees. Both were told by company counsel
that they would not have to pay any legal fees incurred in their defense,
and counsel thereafter defrayed witness and other fees in connection
therewith. However, the employees were advised that they would be
required to pay their own fines should the Union prevail. It is noted
that. the record indicates that some of the affected employees were no
longer represented by, or members of, the Union at the time the court
action was begun but, instead, were represented in a separate bargain-
ing unit by another union that had been certified lay the Board during
the previous year.
It is undenied that the employees who crossed the picket line did so
in accordance with their own personal convictions. There. is no con-
tention that they were approached or solicited by the Respondent to
take such action. In fact it was only after the Union threatened the
employees with discipline that the Respondent offered its assistance
and, insofar as is relevant here, made available free legal services to
those employees who wished to resist the court actions. The record is
devoid of any evidence that the nonstriking-.employees were induced
2 The General Counsel in his brief asserts that his concession related only to procedural
infirmities regarding the strike and fines, but it is clear from the record that his assump-
tion was not so limited.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby to resist these suits. Further, as indicated above, the employees
were advised by the Respondent that they would have to pay their own
fines should the Union prevail in its court action against them
Upon these facts, we find that the-Respondent did not engage in any
conduct that was violative of Section 8 (a) (1) of the Act. Accordingly,
we shall dismiss the complaint in its entirety.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
3 Compare Barney Wilkerson Construction Company, 145 NLRB 704, 716.
TRIAL EXAMINER'S DECISION
This case, heard before Trial Examiner Frederick U. Reel at Philadelphia, Penn-
sylvania, on March 15 and 16, 1965, pursuant to a charge filed May 1, 1964, and
a complaint issued February 12, 1965, presents the novel question whether an
employer violates Section 8(a)(1) of the Act by furnishing legal counsel to certain
of his employees and otherwise assisting them in their efforts to resist paying fines
which their bargaining representative levied upon them for having crossed its picket
Imes to go to work and for having failed to perform picket duty during a strike
against their employer. Upon consideration of the entire record, and after study
of the briefs filed by General Counsel, Charging Party, and by Respondent, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION-INVOLVED
Respondent, hereinafter called the Company, a Pennsylvania corporation engaged
at Philadelphia in manufacturing control instruments- and heat treating furnaces,
annually ships products valued in excess of $50,000 to points outside the State, and
is therefore engaged in commerce within the meaning- of Section 2(6) and (7) of
the Act. The-Charging Party, herein called the Union, is a labor organization which
at all times material herein has been the statutory bargaining representative of the
Company's employees. -
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, events occurring over 6 months prior to May 1, 1964,
the date of the charge
For 15 days in November-December 1962, the Union conducted a strike against
the Company. Of the Company's more than 2,000 employees, all but approximately
50 abstained from work during the strike. These 50, however, although union mem-
bers as required by the union-security provisions of the contract between the Com-
pany and the Union, crossed the picket lines on one or more occasions and performed
work during the strike. During the strike, the Company advised all employees who
were coming to work during the strike to Day their union dues as a protection against
discharge under the union-security provisions of the Act. The Company further
let it be known that in the event the Union fined the employees, the Company would
not deduct fines from paychecks so that the Union would have to sue each individual
to collect any fine it levied against him.
-Early in January 1963, after the strike ended, the Union announced that it would
conduct trials before its executive committee of the employees who crossed picket
lines during the strike. The Company promptly announced that it would "do every-
thing legally possible'' to protect the employees who had exercised their right to
cross picket lines, and it advised employees who had received trial notices to call
the Company's personnel office for further discussions. On January 24, 1963, 2 days
before the first trial before the Union's executive committee, company counsel met
with a group of the affected employees, and furnished each of them with a draft of
a proposed letter to the Union. This letter recited that the individual signing it
would not appear at the scheduled trial and protested the Union's proposed action
as an infringement on the employees' rights under Section 7 of the Act. The letter
further argued that the strike had been illegally called in violation of the Union's
LEEDS AND NCRTRI;P COMPANY 1295
bylaws, and also alleged that the executive committee had prejudged the case and
could not grant a fair trial. A number of employees signed such letters which the
Company then transmitted to the Union.
The Unions executive committee levied fines against certain employees who had
crossed the picket lines. The first such fines were announced early in February 1963.
The amount of the fine was computed by ascertaining the minimum daily wage for
the employee's salary group (some employees received wages in excess of the mini-
mum for their group) and multiplying this figure by the number of days the
employee worked during the strike.
On February 15 and March 15, 1963, company counsel held further meetings with
employees who were threatened with fines by the Union. During this period the
Union's executive board conducted further trials and levied further fines against
employees who had failed to perform picket duty. These fines were in the amount
of S5 for each day missed plus a Si "processing" fee. As in the case of the earlier
fines, company counsel prepared and made available to the affected employees form
letters from the employee to the Union protesting the "picket duty" trials as illegal
for reasons similar to those set forth in the earlier letter. A number of employees
signed these letters, which like the earlier letters were returned to company repre-
sentatives and delivered by them to the Union.
In the meantime the Company had filed a charge on January 19, 1963, with the
Board's Regional Office, alleging that the Union had violated Section 8(b)(1)(A)
of the Act. On May 31, 1963, the Regional Director issued a complaint on that
charge, alleging that by mass picketing, threats of violence and threats of fines dur-
ing the strike, and by fines imposed after the strike for crossing picket lines and
failing to participate in picketing, the Union had violated Section 8(b) (1) (A). The
hearing on that complaint (Case No. 4-cB-886) originally set for July 22, 1963,
was thereafter postponed on several occasions until September 24, 1963, when the
Regional Director postponed it "indefinitely." Subsequent events in that case
occurred within 6 months of the filing of the charge in the instant proceeding, but
may for purpose of convenience be summarized here. After the decision of the
Board in Local 283, United Automobile, Aircraft and Agricultural Implement Work-
ers of America, UAW, AFL-CIO (Wisconsin Motor Corporation), 145 NLRB 1097,
the Regional Director and the Union entered into a settlement agreement in Case
No. 4-CB-886, not joined in by the Company, in which the Regional Director with-
drew the complaint and the Union agreed to post a notice reciting that it would not
engage in mass picketing, or threats against employees crossing picket lines or other
violations of Section 8(b)(1)(A). The effect of the settlement was to absolve the
Union of liability under Section 8 (b)(1)(A) for having fined the employees, an
absolution dictated by the Board's decisions in Wisconsin Motor, supra, and in
Local 248, United Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO (Allis-Chalmers Manufacturing Company), 149 NLRB 67,
while the Company's request for review of the settlement was pending before the
General Counsel. The latter sustained the Regional Director, and the Company
-thereupon moved the Third Circuit to set aside the settlement agreement and remand
the case for trial. The Board's motion to dismiss the petition for review was denied
April 12, 1965, and the case is now pending before the Third Circuit.
B. The Company continues within the 10(h) period to support the employees
resisting the union fines
On February 14 and on April 23, 1964, company counsel again met with employ-
ees threatened with union fines. These meetings, like those held in 1963, were con-
ducted on the Company's premises during working hours, and were each attended
by from 25 to 35 employees, most of whom (and perhaps all of whom) were salaried
employees, who .suffered no loss in pay for time spent at the meeting or in travel
between the meeting place and their regular employment station, which in some
cases was nearly 20 miles away. Each of the meetings lasted from 30 to 60 minutes.
The Company's personnel office notified the affected employees of the meetings, but
attendance thereat was voluntary.
At the February 14 meeting company counsel discussed with the assembled employ-
ees how the fines would be collected if the Union instituted suit,"and stated to them
that any of them who were sued should apprise the Company. In April 1964 the
Union filed suit against one of the employees, Harry Hildreth. (Hlldreth had left
the bargaining unit in March 1963, and became a supervisor in June 1963.) At the
April 23 meeting company counsel advised the employees of the suit against Hildreth,
and offered to act as counsel to any of the employees who so desired in the event
they were sued.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to filing suit against Hildreth in the county court of Philadelphia, the
Union also filed suit on May 1, 1964, against Carol Halpin O'Sullivan, a rank-and-
file employee. Both Hildreth and O'Sullivan are represented in their respective
cases by the firm which represents the Company, and both employees were told by
counsel that they would not be required to pay any fees in connection with the
defense of those cases . Counsel have undergone some expense in the Hildreth case,
including the taking of depositions and the purchase of a transcript thereof, but
counsel have not yet determined how the question of their reimbursement and
compensation will be handled, except that it is settled that Hildreth and O'Sullivan
will not be required to pay them. The Company, however, has paid the witness fees
to the union ofricials whose depositions were taken in the Hildreth case. If the
defense of the Union's suit is unsuccessful, the employee will pay their own fines,
but no counsel fees or other costs. Insofar as Hildreth and O'Sullivan conferred
with counsel on company time, they suffered no diminution of salary for time spent.
Finally, with respect to the merits of the Union's fines, General Counsel conceded,
for purposes of argument and for this proceeding only, that the fines were illegally
levied either because of infirmities or illegality in the original strike action of the
Union or for other reasons. By the same token, however, company counsel con-
tended that even if the Union ultimately prevails in the fine litigation, the Com-
pany's conduct in assisting the employees to defend those suits did not violate the
Act.
C. Discussion
Briefly stated, the foregoing facts establish that after certain employees exercised
their Section 7 right to refrain from supporting a strike, and after their Union levied
fines against them for such activity (all before the 10(b) period encompassed by
this litigation), the Union brought suits to collect some of the fines and the Company
or its counsel (within the 10(b) period) financed the defense of those suits, indicated
a readiness to finance the defense of any similar- actions which the Union might
bring to collect the fines, and permitted preparations for the defense of these actions
to be conducted on company time and property. General Counsel alleges that by
this conduct the Company has interfered with, restrained, or coerced employees in
the exercise of their Section 7 rights. For reasons developed briefly below, I can-
not agree with this contention, and accordingly recommend that the complaint be
dismissed.
Section 7 of the Act provides that employees have the right to engage in, and to
refrain from engaging in, union and concerted activities. The employees in this
case when they crossed the picket lines and refused to do picket duty were exercising
their Section 7 right to refrain from assisting their Union and from joining in con-
certed and union activity, i.e., from supporting or joining in the strike. They exer-
cised this right without prior indication from the Company that it would assist them
in resisting union fines; the most the Company had said (and all this well- over
6 months before the filing of the charge) was that it would not assist the Union in
collecting fines, and the Union would have to sue for them. But General Counsel
argues that within the 6-month period the Company- has assisted the employees in
opposing the Union's efforts to collect its fines, and thereby not only interfered with
the Section 7 rights of these employees, but also tended to interfere with the future
exercise of Section 7 rights in the _ event company employees are ever again con-
fronted with the question whether to support or oppose their union in a strike.
So far as tha current fines are concerned, it is probably true that the employees
are encouraged not to pay the fines (and pro tan to not to assist the Union) by the
fact that resistance and litigation will cost them nothing. But the fundamental right
here involved was their right to refrain from supporting the strike, and this right
they long since exercised. Indeed, it is because they exercised that right that the
Union fined them and now sues to collect the fines. This union action, although
calculated to restrain and coerce them in the exercise of that right, is not an unfair
labor practice; it is saved from illegality by- the proviso to Section 8(b)(1)(A).
Wisconsin Motor, xupra; Allis Chalmers, supra. But in protecting the employees
against the expense of litigation in the fine actions, the Company is merely assuring
them that their prior exercise of their right not to support the strike shall not
involve them in any greater liability than is encompassed by the fine itself. Insofar
as this is "interference," it is in support of a Section 7 right the employees have
already exercised.
General Counsel places his greatest emphasis on the contention that the Com-
pany's conduct in this case will have a tendency in the event of future strikes to
encourage employees not to support the Union, and that this interferes with the free
LEEDS AND NORTHRUP COMPANY 1297
exercise of their right. But in the event of a future strike and picketing, employees
will have a Section 7 right to refrain from supporting the strike as well as a Sec-
tion 7 right to support it. In making their determination at that time they will be
subject to restraint or coercion by their Union in the form of a threatened fine or
other disciplinary action such as, expulsion. This will not be an unlawful infringe-
ment of their Section 7 right because of the proviso to Section 8(b)(1)(A), but it
will nonetheless infringe on or detract from that right. Insofar as the Company's
action in this case would tend to encourage employees to believe that they would
not have to bear the cost of litigation in the event the Union sued to collect any
fines it might levy, the effect is to diminish the restraint or coercion on the exercise
of the Section 7 right implicit in the fine itself. The Company offers no reward or
inducement to the employees in determining whether they should support the stsLke
or not, but only lessens the extent to which their determination of that issue may be
affected by union coercion. That is to say, if the employee determines not to sup-
port the strike, this determination is reached notwithstanding the employee's aware-
ness that he may be fined therefor. He may, of course, pay the fine. But he may
be of the view that the fine is not lawfully imposed. Vindication of this position
may involve him in more expense than payment of the fine, and he may therefore
forgo the vindication and pay the fine. The Company's action in this case removes
this bar to the employee's seeking this vindication. But if the Union prevails in the
suit for the fine, the employee is compelled to pay it. The employee can only
prevail if the fine were illegally imposed, and in that event there surely is no equity
in compelling him to pay the costs of litigation which the union acting wrongfully
(though not necessarily in violation of Section 8(b) (1) (A)) imposed on him for
exercising his Section 7 right. In sum, the critical right is that of the e iployee to
support or oppose the strike. The employer's potential "interference" in this case
comes into play only after the employee has determined to exercise his right to
oppose the strike. Insofar as it affects that determination at all, it does so only in
the sense that the employee is assured of minimal detriment (the fine) if he exercises
his right as he desires, and is offered the chance of avoiding that detriment without
incurring legal fees. But the minimal detriment remains as a (lawful) union inter-
ference with his Section 7 right, and there is no countervailing interference by the
employer to affect the employee's exercise of his right except the possibility that in
successful litigation he will avoid the fine. The latter-result can only eventuate if
the union has acted unlawfully in imposing the fine, in which event there is no equity
in the union's position (here maintained by General Counsel), and the employee
enjoys no gain but only absence of loss, through his exercise of his Section 7 right?
For the foregoing reasons I conclude that the Company's conduct in this case did
not interfere with, restrain, or coerce employees in the exercise of their Section 7
rights. It follows that the complaint should be dismissed.2
CONCLUSIONS OF LAW
The Company by furnishing counsel and otherwise assisting employees in their
defense to the Union's efforts to fine them for crossing picket lines and failing to
perform picket duty has not engaged in an unfair labor practice within the meaning
of Section 8(a) (1) of the Act.
i Scherer 4 Sons, 147 _NLRB 1442, relied on by General Counsel is distinguishable. among
other reasons because the employer, there had the employees' initiate the litigation at his
expense, rather than, as here, merely pay for the defense. In Scherer, the employer stim-
ulated the exercise of the Section 7 right whereas here the employer's action only mini-
mizes the detriment suffered by an employee for exercising a Section 7 right.
2 Counsel for the Charging Party in his brief advances a point not urged by General
Counsel, namely that the Company has interjected itself into the relationship between
the fined employees and their union and to that extent has interfered with a Section 7
right. Of course, if the fines were illegally levied (as both counsel for the Union and for
General Counsel conceded, eraeendo), this "interference" is no more violative of a Section 7
right than the "interference" inherent in providing employees with protection against
physical assault by union agents. In any event. for reasons developed above. I believe
that the Company's intrusion into the employee-union relationship to the limited extent
involved here and under these circumstances is in essence an action in support of a Sec-
tion 7 right the employees have chosen to exercise notwithstanding the Union's (lawful)
coercion in the form of a threatened fine, and that the employer's "interference" does not
derogate from any Section 7 right.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
United States Rubber Company and United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL-CIO. Caere No.
2.3-C.4-2-018. December 3,1966
DECISION AND ORDER
On October 14, 1965, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it. cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the. Trial Examiner including
his granting of the General Coi.msel's motion for judgment on the
pleadings, and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions , and recommendations
of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT
ON THE PLEADINGS
STATEMENT OF THE CASE
Upon a charge filed April 5, 1965, by United States Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, herein called the Union, against United States
Rubber Company, herein called the Respondent, the General Counsel of the National
Labor Relations Board, herein called the Board, by the Regional Director for
Region 23, issued his complaint dated April 16, 1965, and amendments thereto
dated April 28 and May 7, -1965. As amended , the complaint alleges the Union's
January 15 , 1965, certification by the Regional Director as the exclusive collective-
bargaining representative of an appropriate unit of the Respondents employees at
its Laredo , Texas, proving grounds, following a secret-ballot election won by the
Union, the Union's subsequent request for collective bargaining on behalf of these
employees and the Respondent 's refusal in violation of Section 8 (a)(5) and (1)
of the Act to bargain with the Union pursuant to its request.
The Respondent 's answer to the amended complaint concedes that an election
was held m which the Union secured a majority of the votes cast , admits that the
Union subsequently received its exclusive representative certificate and thereafter
155 NLRB No. 103.