Monolith Portland Cement Co.

National Labor Relations Board - Board Decisions

Jun 20, 1951

94 N.L.R.B. 1358 (N.L.R.B. 1951)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
danger of their commission is reasonably to be apprehended. A broad 52 cease
and desist order will therefore be recommended, prohibiting infringement inany
manner upon the rights guaranteed in Section 7 of the Act.
It has been further found that the unfair labor practices interfered with the
free choice of a collective bargaining representative in the election of September
26, 1949. It will therefore be recommended that said election be vacated and set
aside. -
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, A. F. L., and Employees'
Bargaining Committee ( also known as Employee -Management Policy Committee)
are labor organizations within the meaning of Section 2 ( 5) of the Act.
2. By dominating and interfering with the formation and administration of
the Committee , and by contributing support thereto , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(2). of the Act.
3. By discriminating in regard to the hire and tenure of employment of Richard
N. Mow, Harold D. Rinker, Estelle P. Hurlburt, and Maggie Van Meter, thereby
encouraging membership in the Committee and discouraging membership in the
Union, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section S (a) (3) of the Act. - -
4. By such domination, interference, support, and discrimination, and by,
threatening them with reprisal for union activity, interrogating them concerning
union sympathy, announcing a policy statement and granting wage increases and
other benefits shortly after and despite the Union's demand for recognition, and
by including supervisors in an election eligibility list, thereby interfering with,
restraining, and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
.5. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
52 C. Ray Randall Manufacturing Company, 88 NLRB 140.
MONOLITH PORTLAND CEMENT COI.IPANY and LOCAL 550, INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS, CIO
UNITED CEMENT, LIME AND GYPSUM WORKERS, LOCAL 291, AFL and
LOCAL 550, INTERNATIONAL UNION OF MINE, MILL AND SMELTER
WORKERS, CIO. Cases Nos. 21-CA-535 and 21-CB-189. June 20,
1951
Decision and Order 0
On July 27, 1950, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
94 NLRB No. 211.
MONOLITH PORTLAND CEMENT COMPANY 1359
Respondent Company had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report, attached hereto. The Trial Examiner also found
that the Respondent Company had not engaged in certain other unfair
labor practices alleged in the complaint, and that the Respondent
Union had not engaged in any unfair labor practices alleged in the
complaint, and recommended that these allegations be dismissed.
Thereafter, the Respondent Company and General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs, and the
Respondent Company filed a reply brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and reconn-
mendations of the Trial Examiner, but only to the extent that they
are consistent with the Decision and Order herein.1
1. The Trial Examiner found, and we unanimously agree, that the
Respondent Company has assisted and supported the AFL in viola-
tion of Section 8 (a) (2).
From 1941 until June 29, 1949, Mine, Mill and Smelter Workers 2
was the recognized bargaining representative of the Respondent Com-
pany's employees. On the latter date, a Board election was held upon
petition of the AFL, in which the employees voted not to be repre-
sented by the AFL.3 On the same day, and thereafter, Mine, Mill
demanded continued recognition as bargaining representative, which
was refused, and also engaged in organizational activity .4
In the 3-week period between June 29, after the AFL lost the elec-
tion, and July 19, the Respondent Company engaged in the following
conduct.: (a) The Company issued a notice to all employees on July 5,
in which it declared that it could not recognize and deal with Mine,
Mill, and also threatened the employees with discharge if they should
strike at the behest of Mine, Mill; (b) Foreman Woods solicited em-
ployee Clodfelter to join the AFL, and coupled it with a threat that
employees who participated in a Mine, Mill strike would be dis-
charged; (c) Woods solicited employee Johnston to join the AFL;
1 We adopt the Trial Examiner's findings of fact in Sections III A, B, and C of the
Intermediate Report, and we do not disagree with some of his conclusions . However,
we consider certain of his concluding findings in Section III D to be immaterial or not
properly to be treated as isolated issues, and we therefore substitute our own concluding
findings , and the reasons therefor, for those of the Trial Examiner.
2 Mine, Mill and Smelter Workers was then a CIO affiliate ; it is now unaffiliated.
3 Because Mine, Mill was not then in compliance with the filing provisions of the Act,
it was not on the ballot ; it did , however , come into compliance on August 15, 1949.
4 It demanded recognition again on July 5, 7, and 11, and about July 6 circulated a
petition designating it as bargaining representative.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Woods, on another occasion , asked Johnston if the latter had
signed a Mine, Mill, petition ; ( e) Woods, in a conversation with em-
ployee Fornelli , suggested to Fornelli and a number of other em=
ployees who were present that they join the AFL; ( f) about July 17,
Woods solicited a group of quarry employees to join the AFL; (g)
Woods told employee Wise, when the latter asked for a day shift job,
that he might get a better job if he talked more in favor of the Com-
pany and less in favor of Mine, Mill; ( h) Supervisor Kingsbury
interrogated employee Collins as to what had taken place at a Mine,
Mill meeting with regard to whether Mine, Mill would call a strike;
and (i ) Supervisor Enlund solicited employee Luna to join the AFL.
On July 19, the Respondent Company recognized the AFL as the
bargaining representative of the employees on the basis of a card check,
and on the same day executed a 5-year contract with the AFL in
contrast to 1-year contracts that it had executed with Mine, Mill
when the latter-was the recognized bargaining representative.5 The
Respondent Company also paid the members of the AFL negotiating
committee for working time spent in negotiating this contract, al-
though it had not made such payments to members of the Mine, Mill
negotiating committee when Mine, Mill had negotiated contracts.
Finally, on August 15 , the Respondent Company permitted the AFL
to conduct an election of officers on company property.6
After the Board election of June 29 , the defeated AFL and Mine,
Mill occupied the position of rival unions who were competing for
voluntary recognition as the bargaining representative of the Re-
spondent Company's employees .° In such a situation , the Respondent
Company was under a duty to allow the employees to make their
own free choice as to which , if either , of the two competing unions
the employees wished to represent them. Instead , the Respondent
Company immediately after the election embarked upon, and there-
after pursued , a campaign in support of the AFL and against Mine,
Mill. The first step in this campaign was the July 5 notice to all
employees , in which the Company threatened the employees with dis-
charge if they should engage in Mine, Mill strike activit y.8 There-
after, in the short period prior to recognition of the AFL, the Com-
pany, through several . foremen, engaged in a series of coercive interro-
S The 1948 Mine. Mill contract was, as found by the Trial Examiner, terminable 1 year
later. The 1946 Mine , Mill contract was also terminable at the end of a year, but was
renewed as amended for another year.
The Trial Examiner found that Foreman Woods only tacitly permitted this . Woods
testified, and we find, that he gave express permission.
° Section 9 (c) of the amended Act precluded the holding of another Board election,
and a resultant certification of either union as bargaining representative, for a year.
8 For the reasons stated by the Trial Examiner in Section III, D ( 3) of the Intermediate
Report, we find , as he did. that this threat was not a protected statement . See also
Electric Ry. Employees v. Wisconsin ERB-ii. S.-decided February 26, 1951 ; United Auto
Workers v. O'Brien, 339 U. S. 454.
MONOLITH PORTLAND CEMENT COMPANY 1361,
gations concerning the employees' activity in behalf of Mine, Mill,9
threats of reprisal for such activity, and solicitations of its employees
to join the AFL.10 Thus, despite the employees' rejection of the AFL
in the Board election, the Respondent Company, in the 3-week period
following the election, engaged in a course of conduct that was de-
signed to establish the AFL as bargaining representative, and to elimi-
nate Mine, Mill from the scene. And having done this, the Company
then proceeded to entrench the AFL by granting recognition to it,
by executing a contract with it immediately thereafter for a much
longer term than any ever given to Mine, Mill, and by granting other
privileges to it that Mine, Mill had never received.
We find unanimously that the Respondent Company, by this entire
course of conduct, including its recognition of the AFL,11 has assisted,
and contributed support to, the AFL in violation of Section 8 (a)
(2) 12
2. The Trial Examiner found, and we agree, that the Respondent
Company violated Section 8 (a) (1) and (2) by its publication of an
illegal discriminatory clause in its July 19 contract with the AFL, and
by its protracted delay in publicizing a. curative change of the clause.
The July 19 contract mistakenly included a provision giving
seniority rights only to AFL members for purposes of layoffs and
9 Standard - Coosa -Thatcher Company, 80 NLRB 50.
10 We do not agree with the Respondent Company ' s contention that these statements
were merely isolated departures from a policy of strict neutrality , in view of the fact that
they were all made in a short period of 3 weeks , and they followed the July 5 notice of
the Company itself, threatening discharge for Mine, Mill activity . Under such circum-
stances, we think it clear that these statements were part of a course of conduct designed
to implement a policy to assist the AFL. Nor do we find any merit in the Respondent
Company ' s argument that these statements did not have any unlawful effect because it had
instructed its foremen to be neutral , in view of the Company 's admission that the
employees were not notified of such instructions , and in view of the policy conveyed to
the employees by the Company itself in the July 5 notice . See N. L . R. B. V. Bird Machine
Ca., 161 F . 2d 589 ( C. A. 1), enforcing 65 NLRB 311.
11 Because of the unlawful assistance given to the AFL by the Respondent Company
prior to its recognition of the AFL, any showing of majority which the AFL was able
to make on July 19 to support its recognition was vitiated , and the Respondent Company
violated Section 8 (a) (2) by recognizing an illegally assisted labor organization. Myer
and Welch, Incorporated, 91 NLRB 1102 . And in view of this finding , it is unnecessary
for us to pass upon the General Counsel's contention, or the Trial Examiner ' s rejection
thereof , that the Respondent Company ' s recognition of the AFL was an independent
violation of Section 8 (a) (2) on various other grounds.
12 Cf . Sioux City Brewing Co., 82 NLRB 1061 ; N. L. R. B. v . Toledo Desk & Fixture
Company, 158 F. 2d 426 ( C. A. 6), enforcing 65 NLRB 1086 . Because the complaint does
not allege that the Respondent Company violated Section 8 ( a) (5) by its refusal to recog-
nize Mine , Mill , after the election , we do not pass upon that issue ; nor do we rely in any
way on this conduct as a basis for the finding made here.
We agree with the Trial Examiner ' s findings , as detailed in Section III, D ( 3) of the
Intermediate Report , that some of the statements made by the Respondent Company in
the period between the election and recognition of the AFL were independent violations
of Section 8 (a) (1). We find it unnecessary , however , in view of our finding herein, to
determine in isolation whether the statement in the July 5 notice, "[Mine , Mill] cannot
be legally recognized and dealt with by Monolith ," was an independent violation of Section
8 (a) (2), as contended by the General Counsel.
953841-52-vol. 94-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promotions 13 Mimeographed copies of the contract with this provi-
sion were distributed to the employees a few days after it was ex-
ecuted. The mistake was discovered about a month later, and the
parties corrected it by supplemental agreement so as to make the
clause nondiscriminatory, but the employees were not notified of the
correction until about 6 months later, when printed copies of the
contract, with the correction in the form of an amendment, were dis-
tributed to the employees.
The Board has held that the execution by an employer of an illegal
discriminatory contract is a violation of Section 8 (a) (1) and (2)
because such a contract coerces employees to become or remain mem-
bers of the contracting union, and correspondingly restrains employees
from exercising their right to refrain from becoming or remaining
members of the contracting union 14 Such a contract was executed
here." It is true that the parties did not intend to execute such a con-
tract, and therefore presumably did not intend to enforce it so as to
discriminate against nonmembers of the AFL, but the employees were
led to believe otherwise. By publicizing the contract in its discrimi-
natory form, the Respondent Company led the employees to believe
that their seniority. rights tinder the contract depended upon AFL
membership. The necessary effect of the publication, therefore, was
to coerce the employees to become or remain members of the AFL by
an apparent threat to discriminate against nonmembers, no less than
if the parties had intended to execute and enforce the publicized con-
tract. And although the Respondent Company may not have intended
to publicize a discriminatory contract any more than it intended to
execute or enforce one, it must be held responsible for this unlawful
effect in view of the fact that its publication of the contract was purely
negligent. It is also true that the parties to the contract corrected it
about a month after its publication so as to make it nondiscriminatory,
but they did nothing for 6 months thereafter to remove the coercive
effect of the publicized contract. Indeed, by delaying notice to the
employees of the correction of the contract during this period, the
Respondent Company inexcusably permitted the unlawful effect of the
publicized contract to continue, for which it must clearly be. held
responsible 16
13 The parties used a 1940 AFL contract containing the provision as a basis of negotiat.
ing the July 19 contract. Upon discovery, the parties agreed to make the provision
nondiscriminatory , and instructions were given to company subordinates to make the
necessary language changes in the provision to accomplish this, but these instructions
were not carried out in the preparation of the final drafts. of the contract. As.a result,
the executed contract mistakenly included this discriminatory provision.
Julius Resnick, Inc., 86 NLRB 38; New York State Employers Association, Inc., and
Red Star Express Lines of Auburn, Inc., 93 NLRB 127.
15 The prefertial seniority provision in the contract was illegal because it failed to
satisfy the requirements laid down in the proviso to Section 8 (a) (3).
16 The Respondent Company points to several extenuating factors which delayed the
printing of the corrected contract , and which in turn delayed publication of the printed
MONOLITH PORTLAND CEMENT COMPANY 1363
We unanimously find, therefore, that the Respondent Company, by
its publication of the illegal discriminatory clause in its July 19 con-
tract with the AFL, and by its protracted delay in publicizing the
curative change of the clause, violated Section 8 (a) (1) and (2).
A majority of the Board 17 disagree, however, with the Trial Ex-
aminer's finding that the Respondent Company violated Section 8
(a) (3)-by its publication of the discriminatory clause in the July
19 contract, and by its protracted delay in publicizing the curative
change of the clause.
The Board has held that the execution by an employer of an illegal
discriminatory contract is a violation of Section 8 (a) (3)1$ In that
case, however, the employer and the union agreed to, and presumably
intended to enforce, such a contract, thereby actually creating dis-
criminatory conditions of employment. Similarly, the Board has held.
that ". . . by the act of executing [a] contract containing unlawful!
union-security provisions, with the intention that such provisions be
enforced, the Respondent Unions joined with the Respondent Em-
ployer in creating the conditions which would result in future dis-
crimination, and that they thereby have attempted to cause the
Respondent Employer to discriminate against employees, in viola-
tion of Section 8 (a) (3) of the Act, thereby violating Section 8 (b))
(2)." (Emphasis supplied.) 19 Here, however, because of the mutual
mistake in including the discriminatory clause in their July 19 con-
tract, neither the Respondent Employer nor the Respondent Union
agreed to, or intended to enforce, a discriminatory contract, and there-
fore did not actually create discriminatory conditions of employment,
either before or after the correction of the clause. We have never-
theless found that the Respondent Company's publication of the dis-
criminatory clause, and delay in publicizing its correction, had a
necessary effect that violated Section 8 (a) (1) and (2). But in the
absence of any discriminatory conditions of employment that were
actually created by the Respondent Company, there could not have
been any violation of Section 8 (a) (3) by it. The Respondent Coin-
pany's publication of the discriminatory clause, and delay in pub-
licizing its correction, only created, as our dissenting colleagues
concede, what appeared to be discriminatory conditions of employ-
ment, which, in our opinion, is not sufficient to establish a violation
of Section 8 (a) (3). No employee was actually, or could actually,
be discriminated against under the contract. We find, therefore, that
contract . No excusable reason appears , however, for its failure to notify the employees
informally of the correction in the interim. -
19 Chairman Herzog and Members Houston and Styles.
's New York State Employers Association, Inc., and Red Star Express Lines of Auburn,
Inc., supra. In
19 Acme Mattress Company, Inc .; 9rNLRB . 1010. ++n"++ -':- »:'% t = :,:a:'-
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Company did not violate Section 8 (a) (3) in con-
nection with the discriminatory clause in the July 19 contract.20
We also disagree with the Trial Examiner's finding that the Re-
spondent Union did not violate Section 8 (b) (1) (A) in connection
with the illegal discriminatory clause in the July 19 contract.
Since the issuance of the Intermediate Report, the Board has held
that a union's execution of an illegal: discriminatory contract coerces
and restrains employees in violation of Section 8 (b) (1) (A), be-
cause it carries a threat of economic action against employees who
might desire to exercise the protected, right to refrain from joining
the contracting union 21
Just as publication of the July 19 contract in its discriminatory form
carried an apparent threat of economic action by the Respondent
Company against nonmembers of the AFL, it carried a similar threat
by the Respondent Union, the other party to the contract. And in
like fashion, the Respondent. Union, as the other party to the con-
tract, inexcusably permitted this threat to continue for 6 months
after it knew that it had made such a threat. In our opinion, an ap-
parent threat of economic action by a union, which is contained, as
here, in a negligently promulgated and perpetuated misrepresentation
as to the terms of a contract, is no less coercive tlilin an actual threat
of economic action that is contained in a true contact.
It is correct, as pointed out by the Trial Examiner, that the Respond-
ent Company alone handled the publication of the contract, but the
Respondent Union, as the other contracting party, was equally re-
sponsible for the inclusion of the discriminatory clause in the contract;
it knew of, and apparently raised no objection to, the publication of
the contract; and it should, therefore, be held equally responsible for
any unlawful consequences that flowed from the publication. And
clearly, of course, the Respondent Union is responsible for any nn-
la;wful consequences which flowed from its delay in publicizing the
correction of the. discriminatory clause.
We unanimously find, therefore, that the Respondent Union, by
permitting publication of the illegal discriminatory clause in its July
19 contract with the Respondent Company, and by its protracted de-
lay in publicizing the curative change of the clause, violated Section
8 (b) (1) (A)•
The Trial Examiner found, and a majority of the Board 22 agree,
however, that the Respondent Union did not violate Section 8 (b) (2)
in connection with the discriminatory clause in the July 19 contract.
20 In the absence of any exception thereto, we also adopt the Trial Examiner 's dismissal
of the allegation that the discriminatory clause was enforced, in violation of Section 8 (a)
( 3). In the Respondent Company's failure to promote employee Castillo.
21 New York State Employers Association , Inc., and Red Star Express Lines of Auburn,
Inc:, anpra.
22 Chairman Herzog and Members Houston and Styles.
MONOLITH PORTLAND CEMENT COMPANY . 1365
We have already found that, because of the mutual mistake with
respect to the inclusion of the discriminatory clause in the July 19
contract, neither the Respondent Employer nor the Respondent Union
agreed to, or intended to enforce, a discriminatory contract, and
therefore did not actually create discriminatory conditions of employ-
ment, either before or after the correction of the clause; and accord-
ingly that the Respondent Company did not violate Section 8 (a) (3)
in that connection. Similarly, in the absence of any intent on the part
of the Respondent Union to obtain or enforce a discriminatory con-
tract, and the resultant absence of any discriminatory conditions of
employment actually created by it and the Respondent Company,
the two elements which the Board has held must be present in order
to have a violation of Section 8 (b) (2) in this situation,23 we find
that the Respondent Union has not violated Section 8 (b) (2) by
virtue of the discriminatory clause in the July 19 contract.
3. We unanimously disagree with the Trial Examiner's findings
that the Respondent Company violated Section 8 (a) (1) by pro-
hibiting the distribution of literature in the plant prior to the election
June 29, 1949.
On May 4, 1949, which was shortly after the AFL filed its petition,
the Company orally requested Mine, Mill to refrain from distributing
campaign literature in the plant.24 On May 11, the Company confis-
cated a stack of Mine, Mill campaign leaflets which had been left by
a time clock, and removed a Mine, Mill campaign leaflet from the
union bulletin board in the pla.it.25 On May 27, the Company posted
a notice to the employees prohibiting the distribution of literature in
the plant.2e The Company did, however, permit the distribution of
literature in the company parking lots and the entrances to the plant,2'
and also permitted Mine, Mill to post notices of meetings and social
events on the Mine, Mill bulletin board.
The Trial Examiner found that the Company's May 11 removal of
the Mine, Mill campaign leaflet was a violation of Section 8 (a) (1)
on the ground that the posting of the leaflet on the bulletin board
was not "union activity" within the meaning of the contract provision
prohibiting such activity, and even if it were, there is no evidence
23 See Acme Mattress Company, Inc., supra.
24 Mine, Mill agreed to do so if the AFL likewise refrained.
25 Mine, Mill was campaigning for a "no vote" in the election.
86 The second paragraph of this notice quoted a provision in the still effective Mine, Mill
contract which prohibited "union activities . . . during working hours," and on June 8
the Company , in a discussion with Mine, Mill , took the position that its May 11 removal
of the leaflet and the May 27 notice were both proper under this contract provision.
For the reasons hereinafter noted , however , we find it unnecessary to consider these facts
or the Company 's arguments in connection therewith.
27 This applied to the AFL as well as to Mine, Mill. Contrary to the Trial Examiner's
finding, the Company did not prohibit AFL distribution of literature in a parking lot just
before the election ; this prohibition was on distribution in the plant.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the posting occurred during working hours so as to be prohibited
by the contract. He also found that the May 27 notice prohibiting
the distribution of literature 28 was a violation of Section 8 (a) (1)
because it applied to nonworking time as well as working time, and
there was neither a contract waiver nor any evidence of interference
with production to justify such a rule.
Both of these findings are based on the premise that an employer's
nondiscriminatory ban on the distribution of literature in his plant 29
is circumscribed to the same extent, and in precisely the same way, as
a ban on solicitation, viz., that such a prohibition, absent special cir-
cumstances , may not be imposed during nonworking time because it
is deemed to be an unreasonable impediment to self-organizatio11.30
However, the Board has distinguished distribution of union literature
d from other forms of union activity, such as solicitation, in this con-
nection. . We have held that an employer can lawfully prevent the
distribution of literature in the plant proper, even during the em-
ployees' nonworking time, in the interest of keeping the plant clean'
and orderly'31 at least where it is not evident that such activity cannot
readily be conducted somewhere off the employer's premises.32 Ac-
cordingly, and especially in view of the fact that employees were
permitted to distribute literature in the company parking lots and
the entrances to the plant,33 we find that the Respondent Company's
interdiction against any distribution of literature in the plant,'and
the steps it took to enforce that interdiction, were permissible limi-
tations upon its employees' organizational activities, and not violative
of Section 8 (a) (1).34
ss The Trial Examiner interpreted the May 27 notice as including a prohibition on
union activities . generally as well as on the distribution of literature, and found that
this prohibition was proper on its face but unlawful as interpreted by the Company. The
quotation of the contract prohibition on "union activities " in the notice , and the Company's
3statements on June 8 , however, clearly indicate that the inclusion of the contract provision
in the notice was simply a citation of authority for the ban on the distribution of literature;
and there is no evidence that anything except literature in the plant was actually
prohibited in any way . Thus , there is no issue here of a ban on union activities generally.
29 As found by the Trial Examiner , the ban on literature was not discriminatorily'
applied as between Mine , Mill and the AFL. Moreover, the record does not show that
the Company ' s purpose in prohibiting literature in the plant was to suppress self-
organization.
3D Peyton Packing Company, Inc., 49 NLRB 828; Republic Aviation Corp ., v. N. L. R. B.,
324 U . S. 793.
31 Tabin -Picker d Co., 50 NLRB 928 ; North American Aviation, Inc., 56 NLRB 959 ;
The Goodyear Aircraft Corporation , 57 NLRB 502 ; General Motors Corporation , 73 NLRB
74; Westinghouse Electric Corporation , 91 NLRB 955.
32 N. L. R. B. v. Le Tourueau Company of Georgia, 324 U. S. 793. Cf . Newport News
Children's Dress Co ., Inc., 91 NLRB 1521.
33 Cf. Newport News Children's Dress Co ., Inc., supra.
14 To the extent that our decisions in American-Book-Stratford Press , Inc., 80 NLRB 914,
and Chicopee Manufacturing Corporation of Georgia , 85 NLRB 1439 , are inconsistent
herewith , they are hereby overruled.
We find it unnecessary , therefore , to consider the Company ' s contentions that Mine, Mill
waived any rights in this connection in its contract and also by its oral agreement on
May 4, and that the Company was otherwise privileged in prohibiting the distribution
of literature.
MONOLITH PORTLAND CEMENT COMPANY 1367
The Remedy
Because we have found that the Respondent Company unlawfully
assisted and supported the AFL by recognizing and executing a
contract with the AFL on July 19, 1949, as well as by other conduct
both before and after that date, we shall, as recommended by the
Trial Examiner, order the Respondent Company to withdraw recogni-
tion from the AFL, and to cease giving effect to its July 19, 1949, con-
tract with the AFL, or to any modification, extension, supplement, or
renewal thereof, or to any superseding contract with the AFL, unless
and until the AFL shall have been certified by the Board.35 Nothing
in our order, however, shall be deemed to require .the Respondent
Company to vary or abandon those wages, hours, security, or other
substantive features of its relations with its employees, established in
the performance of said contract, or to prejudice the assertion by the
employees of any rights they may have under said contract.
As we have found that the Respondent Company did not violate
Section 8 (a) (1) by prohibiting the distribution of literature, we shall
dismiss this allegation of the complaint.
We have found that the Respondent Company has violated Section
8 (a) (1) and (2) of the Act. In our opinion, the commission of un-
fair labor practices generally is to be reasonably anticipated from this
unlawful conduct in the past. We shall, therefore, as also recom-
mended by the Trial Examiner, order the Respondent Company to
cease and desist, not only from the unfair labor practices herein found,
but also from in any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.36
It has further been found that the Respondent Union has restrained
and coerced the employees of the Respondent Company in violation of
Section 8 (b) (1) (A). We shall, therefore, order the Respondent
Union to cease and desist from such, or any like or related, conduct.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following additional :
CONCLUSIONS OF LAW
1. The Respondent Company did not violate Section 8 (a) (1)
of the Act by prohibiting the distribution of literature in its plant.
2. By restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent Union has
engaged in unfair labor practices within the meaning of Section 8
.(b) (1) (A) of the Act.
86 Cf. The Carpenter Steel Company, 76 NLRB 670.
86 See N. L. R. B. v. Empress Publishing Company, 312 U. S. 426; May Department Stores
Co. v. N. L. R. B., 326 U. S. 376.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The foregoing unfair labor practices engaged in by the Respond-
ent Union are unfair labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
Order
Upon the entire record in these cases , and pursuant to Section 10
(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that :
I. The Respondent , Monolith Portland Cement Company , Monolith,
California , its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Interfering with the administration of, or contributing sup-
port to, United Cement , Lime and Gypsum Workers, Local 291, AFL,
or any other labor organization , and from otherwise interfering with
the representation of its employees through a labor organization of
their own choosing.
(b) Recognizing or in any other manner dealing with the United
Cement, Lime and Gypsum Workers, Local 291 , AFL, as the collective
bargaining representative of any of its employees , unless and until
such organization shall have been certified as such representative by
the Board.
(c) Giving effect to its contract with United Cement , Lime and
Gypsum Workers, Local 291 , AFL, or to any modification , extension,
supplement , or renewal thereof, or to any superseding contract with
it, unless and until the said organization shall have been certified by
the National Labor Relations Board.
(d) Coercing employees to become or remain members of United
Cement, Lime and Gypsum Workers, Local 291, AFL , or any other
union, by an apparent threat to discriminate against nonmembers
with respect to seniority or other terms or conditions of-employment,
except to the extent that a contract requiring membership in a particu-
lar union as a condition of employment has been authorized in accord-
ance with the requirements of Section 8 (a) (3) of the Act.
(e) In any other manner interfering with , restraining , or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or . assist Local 550 , International
Union of Mine, Mill and Smelter Workers, or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purpose of collective
bargaining , or other mutual aid or protection , and 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 organi-
zation as a condition of employment , as authorized in Section 8 (a)
( 3) of the Act, as guaranteed in Section 7 of the Act.
MONOLITH PORTLAND CEMENT COMPANY 1369
2. Take the following affirmative action] which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from United Cement,
Lime and Gypsum Workers, Local 291, AFL, as the collective bar-
gaining representative of any of its employees, unless and until it shall
have been certified as such representative by the Board.
(b) Post at its plant in Monolith, California, copies of the notice
attached hereto and marked "Appendix A." 37 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after having been duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all, places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
II. The Respondent, United Cement, Lime and Gypsum Workers,
Local 291, AFL, its officers, representatives, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Coercing employees of Monolith Portland Cement Company,
or any other employer, to become or remain its members by an appar-
ent threat to discriminate against nonmembers with respect to senior-
ity, or any other term or condition of employment, except in accord-
ance with the proviso to Section 8 (a) (3) of the Act.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in Monolith, Cali-
fornia, copies of the notice attached hereto and marked "Appendix
B." 38 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the Re-
spondent's representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to its members are customarily posted. Reasonable steps shall
"In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
35 The proviso. in footnote 37, supra, shall also apply to this notice.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent-to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto and marked "Appendix B,"
for posting, the Respondent Company willing, at the Monolith, Cali-
fornia, plant of the Respondent Company, in places where notices to
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondent's representative, be forth-
with returned to said Regional Director for such posting..
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps.
the Respondent has taken to comply herewith.
MEMBER REYNOLDS, dissenting in part only :
I cannot agree with the finding of Chairman Herzog and Members
Houston and Styles that the Respondent Company did not violate
Section 8 (a) (3) in connection with the illegal discriminatory clause
in its July 19 contract with the Respondent Union.
We are unanimous in finding that the Respondent Company, by its
publication of this clause, and its protracted delay in publicizing the
curative change of the clause, violated Section 8 (a) (1) and (2),
and also that the Respondent Union thereby violated Section 8 (b)
(1) (A), because the necessary effect of this conduct, despite the fact
that the parties did not intend to enforce the clause, was to coerce
the employees to become or remain members of the AFL by an
apparent threat to discriminate against nonmembers. In my opinion,
the necessary effect thus created by this conduct was to discriminate
in favor of AFL members and against nonmembers, no less than if
the parties had actually intended to do so. The employees were led
to believe that discriminatory conditions of employment were in
effect, and were completely unaware of the fact that the parties did
not intend to enforce the discriminatory clause. So far as they were
concerned, therefore, such conditions did exist.
Under such circumstances, I think it clear that the Respondent Com-
pany practiced discrimination against them, within the meaning of
Section 8 (a) (3), in a very real, and not as my colleagues apparently
argue, in only a fictitious, sense. Because of the employees' lack of
knowledge of the contracting parties' true intention with respect to
the discriminatory clause, discriminatory conditions of employment
were actually imposed upon them, although such conditions may not
have existed as a matter of technical contract law. And that being so,
I believe that the apparent threat to discriminate by the Respondent
Company was sufficient to constitute a violation of Section 8 (a) (3).
I would find, therefore, that the Respondent Company, by its publica-
tion of the illegal discriminatory clause in the July 19 contract, and
MONOLITH PORTLAND CEMENT COMPANY 1371
by its protracted delay in publicizing the curative change of the
clause, violated Section 8 (a) (3), as well as Section 8 (a) (1) and (2).
Similarly, I disagree with the finding of Chairman Herzog and
Members Houston and Styles, and the separate opinion of Member
Murdock, that the Respondent Union did not violate Section 8 (b) (2)
in connection with this discriminatory clause. Just as I would find
that the Respondent Company's apparent threat of discrimination
was an actual discrimination within the meaning of Section 8 (a) (3),
I would also find that the Respondent Union, by joining in this threat,
attempted to cause such discrimination within the meaning of Sec-
tion 8 (b) (2).
And contrary to the opinion of Member Murdock, I believe that a
union attempts to cause an employer to discriminate within the mean-
ing of Section 8 (b) (2) yhere, as here, it negligently joins. with an
employer in apparently creating discriminatory conditions of em-
ployment, no less than if it intentionally does so. Section 8 (b) (2)
does not, in my opinion, require the mens rea of the criminal law on .
the part of the union. Member Murdock agrees with me that the
Employer's negligence here had the effect of discriminating against
the employees, and I think it necessarily follows that the Union, as
a joint party to the negligence, attempted to cause the Employer to
so discriminate.
I would find, therefore, that by permitting the publication of the
illegal discriminatory clause in the July 19 contract, and by its pro-
tracted delay in publicizing the curative change of the clause, the
Respondent Union joined with the Respondent Company in appar-
ently creating discriminatory conditions of employment, and that it
has thereby attempted to cause the Respondent Company to dis-
criminate against employees in violation of Section 8 (a) (3), thereby
violating Section 8 (b) (2).
I otherwise concur in the decision of my colleagues.
MEMBER MURDOCK, dissenting in part only, and concurring specially
in part only :
For the reasons stated by Member Reynolds in his dissenting opin-
ion, I would also find that the Respondent Company violated Section
8 (a) (2), as well as Section 8 (a) (1) and (2), in connection with the
illegal discriminatory clause in its July 19 contract with the Respond-
ent Union.
Unlike Member Reynolds, however, I concur, although for some-
what different reasons, in the finding by the majority that the Re-
spondent Union did not violate Section 8 (b) (2) in that connection.
In the Acme Mattress case,39 the Board held that " ... by the
89 Acme Mattress Company, Inc., supra.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
act of executing the contract containing unlawful union-security pro-
visions, with the intention that such provisions be enforced, the Re-
spondent Unions joined with the Respondent Employer in creating
the conditions which would result in future discrimination, and that
they thereby have attempted to cause the Respondent Employer to
discriminate against employees, in violation of Section 8 (a) (3),
thereby violating Section 8 (b) (2)." (Emphasis supplied.) The
Board thus recognized that an indispensable element for a finding that
a union has attempted to cause an employer to discriminate within the
meaning of Section 8 (b) (2) is that the union intend to bring about
such a result.4° This element is completely absent in the instant case.
Here, as all my colleagues apparently agree, neither the Employer
nor the Union, because of the mistaken inclusion of the discriminatory
clause in their July 19 contract, intended to execute, enforce, or pub-
licize such a clause. Moreover, it cannot be found on this record that
their delay in publicizing the curative change of the clause was any
more than negligence. I would, nevertheless, find that the Employer,
by its publication of such a clause, and by its protracted delay in pub-
licizing the curative change of the clause, discriminated against the
employees in violation of Section 8. (a) (3). However, in the absence
of any intent on the part of the Union to cause the Employer to so
discriminate, I do not see how we can find that the Union attempted
to cause the Employer to discriminate.41 Accordingly, I join with the
majority in dismissing the allegation of the complaint that charges
the Respondent Union with violating Section 8 (b) (2).
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
1`7E WILL NOT interfere with the administration of, or conrtibute
support to, UNITED CEMENT, LIME AND GYPSUM WORKERS, LOCAL
291, AFL, or any other labor organization of our employees.
WE WILL NOT coerce our employees to become or remain members
of the above-named, or any other labor organization, by an appar-
ent threat to discriminate against nonmembers with respect to
seniority, or other terms or conditions of employment, except to
40 Cf. Miller on Criminal Law (Hornbook Series ), Section 29 : "An attempt consists of
an act done by the accused , with a specific intent to commit a particular crime . . . .
(Emphasis supplied.)
41I am, however, fully in accord with the distinguishable finding that the Respondent
Union , qy permitting publication of the illegal discriminatory clause in the July 19 con-
tract, and by its protracted delay in publicizing the curative change of the clause,
nevertheless restrained and coerced the employees in violation of Section 8 (b) (1) (A).
MONOLITH PORTLAND CEMENT COMPANY 1373
the extent that the rights of such employees may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized, under certain conditions,
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist LOCAL 550,
INTERNATIONAL UNION Or MINE, MILL AND SMELTER WORKERS,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted.
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act. All
our employees are free to become or remain members of this or any
labor organization.
WE WILL withdraw and withhold all recognition from UNITED
CE MMIENT, LIME AND GYP SUM WORKERS, LOCAL 291, AFL, as the
collective bargaining representative of any of our employees,
-unless and until such organization shall have been certified as such
representative by the National Labor Relations Board.
WE WILL cease giving effect to any and all contracts or other
agreements with UNITED CEMENT, LIME AND Gypsum WORKERS,
LOCAL 291, AFL, or to any superseding contracts or agreements
with it, unless and until it shall have been certified by the National
Labor Relations Board as bargaining representative.
MONOLITH PORTLAND CEMENT COMPANY,
Employer.
By -------------------------------
Dated------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT coerce employees of MONOLITH PORTLAND CEMENT
COMPANY, or any other employer, to become or remain our mem-
bers by an apparent threat to discriminate against nonmembers
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to seniority, or any other term or condition of
employment, except in accordance with the proviso to Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
UNITED CEMENT , LIME AND Gypsum
WORKERS, LOCAL 291, AFL,
Labor Organization.
By ---------------------------------------
(Representative ) ( Title)
Dated------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Mr. George H. O'Brien, for the General Counsel.
Gibson, Dunn & Crutcher, by Mr. William French Smith, of Los Angeles, Calif.,
for the Respondent Company.
Mr. George H. Hassett, of Los Gatos, Calif., and Mr. Floyd N. Burks, of North
Hollywood, Calif., for the Respondent Union.
Mr. Milton S. Tyre, of Los Angeles, Calif., for the Charging Union.
STATEMENT OF THE CASE
Upon a charge filed against Monolith Portland Cement Company , herein called
the Company , and against United Cement, Lime and Gypsum Workers, Local
291, AFL, herein called the AFL, or AFL Union , on August 12, 1949, by Local
550, International Union of Mine, Mill and Smelter Workers, CIO, herein called
the Charging Union , the CIO, or CIO Union, the General Counsel for the National
Labor Relations Board, herein respectively designated the General Counsel and
the Board , issued a consolidated complaint dated March 9, 1950 , alleging that the
Company had engaged in unfair labor practices within the meaning of Section
8 (a) (1), (2 ), and (3 ) and Section 2 (6) and ( 7) of the National Labor Rela-
tions Act as amended , 61 Stat. 136, herein called the Act, and that the AFL
had engaged in unfair labor practices within the meaning of Section 8 (b) (1)
(A) and ( 2) of the Act. Copies of the respective charges together with copies
of the complaint and notice of consolidated hearing were duly served upon the
respective parties.
With respect to the unfair labor practices , the complaint alleges in substance
that in a Board -conducted election on June 29 , 1949, a majority of the employees
of the Company decided that they did not desire representation by the AFL
Union, that on or about July 19, 1949, the Company and AFL, disregarding the
said election , entered into an illegal collective bargaining agreement providing
that certain privileges be.accorded members of the AFL and denied all others,
that at that time the AFL had not been freely designated as collective bargaining
representative by a majority of said employees ; that the Company interfered
uvith , restrained , and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, among other things, by interrogating employees
about their union activities ; telling employees to join the AFL ; asking employees
MONOLITH PORTLAND CEMENT COMPANY 1375
to influence their . fellow employees in favor of the AFL ; promising benefits to
employees if a majority joined the AFL; suggesting denial of privileges to em-
ployees who did not adhere to the AFL ; granting special privileges to the AFL
and its members ; informing its employees on about July 5, 1949 , that any who
exercised their right to strike would permanently leave the payroll and forfeit
all rights of seniority and otherwise ; forbidding under threat of discharge the
distribution of literature on company premises at any time and unreasonably
restricting the union activities of its employees ; and finally that on about July
26, 1949, the Company denied promotion to F. C . Castillo , because he was not a
member of the AFL , in implementation of the afore -mentioned illegal preference
provisions of the July 19, 1949, contract.
The answer of the Company filed on March 20, 1950 , affirmatively alleges in
substance that after the election of June 29 , 1949, the AFL presented authoriza-
tion cards signed by a majority of the employees in the unit after the date of
said election , that the Company pursuant thereto recognized the AFL and on
July 19, 1949 , entered into a collective bargaining agreement with it. The
answers of both the Company and the AFL deny all allegations of unfair labor
practices.
On March 9 , 1950, the Regional Director for the Twenty -first Region of the
Board issued his order consolidating the cases for hearing and concurrently
served notice of hearing on the parties . Pursuant thereto a hearing was held
at Tehachapi , California , between March 28 and April 20, 1950, before the under-
signed Trial Examiner , duly designated by the Chief Trial Examiner. The
General Counsel , the Charging Union ; and the Company were represented by
counsel, the Charging Union was also represented by various officials, and the
AFL Union was represented by the seventh general vice president and by a
general representative of the international union. All parties participated in
the hearing and were afforded full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence bearing on the issues.
At the opening of the hearing a motion by the counsel for the General Counsel,
hereinafter referred to as G. C. counsel , to correct a typographical error in the
date of the notice of hearing and a motion by the Company for leave to file a
verification to its answer were granted . Also at the opening of the hearing, the
Company's counsel moved to dismiss the complaint on the ground that the gist
of the case was one of refusal to bargain with the CIO Union , and that all the
acts complained of occurred before the time that the CIO Union was in compli-
ance with the Act. The motion was denied. A motion by the Charging Union
for leave to intervene was denied as unnecessary to make it a party, regardless
of its disaffiliation with the CIO after the filing of the charge . The AFL Union
moved at the outset for a 4-week continuance because its attorney was other-
wise engaged .' Time was given by the Trial Examiner for procuring other
counsel but the continuance was not granted . On the second day of the hearing,
the AFL Union announced its preference to proceed without substitute for its
regular counsel. At the close of the hearing G. C. counsel's motion to amend
the complaint as to formal matters to conform to the evidence was granted and
ruling was reserved on the Company 's motion to dismiss for failure to state a
cause,of action or to prove any violation of the Act . This motion is now dis-
poseii " of in accordance with the findings of fact and conclusions of law herein.
The parties chose not to argue orally , but all four declared their intent to file
briefs with the Trial Examiner , who fixed a date for the filing thereof. Briefs
.were received from G. C. and from company counsel. *On June 12, 1950 , a reply
brief was received from company counsel.
1 On February 17, 1950, the Charging Union severed its affiliation with the CIO.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following.: _
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a. Nevada corporation licensed to do business in the State of
California. It owns and operates a plant at Monolith, California, where it man-
ufactures cement. During the year 1949 it purchased for the Monolith plant
materials, equipment, and supplies valued at $1,000,000, of which materials,
equipment, and supplies valued at $306,000 were shipped to the plant from points
.outside the State of California. During the same year, the Company shipped
-2,447,775 barrels of cement from its Monolith plant in the following quantities :
Cement shipped on government work to a government
agency direct_______________________________________ 166,098 barrels.
To contractors for government work____________________ 144,725 barrels.
All other shipments___________________________________ 2,136,932 barrels.
Of its total shipments, 2,114,640 barrels were shipped to points within the State
of California. The Company does not contest the jurisdiction of the Board.
II. THE ORGANIZATIONS INVOLVED
United Cement, Lime and Gypsum Workers, Local 291, affiliated with the
American Federation of Labor, and Local 550, International Union of Mine, Mill
and Smelter Workers, CIO, are labor organizations admitting to membership
employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. The physical properties of the Company
The Company owns about 15,000 acres of land.around Monolith, California, on
which are located the manufacturing plant and the town site. It leases the
quarry site, which lies about 2 or 3 miles from the plant in a northerly direction.
A highway and the paralleling railway, running past the plant in an easterly and
westerly direction, separate the plant from the principal town site, which lies to
the south of the highway. The Company owns or controls the houses and trailers
in,the town and leases them to employees? About half of the employees live in
the company town and the remaining half live in or near Tehachapi, 4 miles to
the west. The space between the railway tracks and the highway adjacent to
the plant is used by employees as a parking area. The employees at the.quarry
use a space near the quarry buildings for parking.
B. Events up to June 29, 1949
1. Collective bargaining history
Since 1937 the Company's employees have been represented by a union. After
a Board-conducted consent election that year, an AFL Union was chosen by the
employees in a close election and represented the employees until 1941. In 1941,
in another close election, the employees chose the CIO Union as their collective
bargaining representativ4 and were represented by that union, although not with-
2 The rent from the lease of the trailers is turned over to the county by the- Company.
MONOLITH PORTLAND CEMENT COMPANY 1377
out at least two contests, until 1949. The CIO Union's latest contract, made
July 28, 1948, was terminable on June 30 of any year thereafter by the giving of
60 days' notice by either party.
2. Events leading to the 1949 election
On April 16 , 1949, the AFL wrote to the Company claiming to represent a
majority of the latter 's employees and requesting a meeting for the purpose of
negotiating a collective bargaining agreement . On April 22 , 1949, W. D. Burnett,
the Company 's vice president in charge of labor relations , wrote in reply that
"as we now have a labor contract with a C . I. 0. union , which is not terminable
until June 30, 1949 , we cannot negotiate a contract with your union at this time,
and recommend that any question of representation at our plant be decided
by the National Labor Relations Board by election , as in the past." Burnett
closed his letter by stating that the Company would consider a consent election.
The AFL did not wait for the Company 's reply but on April 19, 1949, filed a,
petition for an election with the Board . On April 25 , the Company , acting con-
sistently with the terms of the Act and the existing collective bargaining agree-
ment, served written notices on both the local and the international of the CIO
Union of termination of the contract on June 30 , 1949' In the final paragraph
of the letter , the Company, as requested by the expiring agreement , offered to
meet with the CIO within 10 days. Copies of this letter were distributed by
foremen to employees at work at about the same date . This was the first time
that the Company had given notice of intent to terminate ' a contract under such
provision.
Thereafter , on May 4, 1949 , representatives of the CIO Union and the Com-
pany met, and the CIO Union raised the question of a new contract " Burnett
read to the CIO ' s committee the AFL's letter claiming a majority and his reply
thereto and then told them that he would not negotiate with any union until after
there had been a Board-conducted election . The CIO Union at this time had not
yet complied with Section 9 (f), (g), and (h) of the Act" and could not have ap-
peared on the ballot with the AFL Union. Jack Marcotti , international repre-
sentative of the CIO Union, who was at the meeting , asked Burnett whether,
in the event that a "No" vote resulted , the Company would then negotiate with
the CIO Union . A misunderstanding arose as to Burnett 's reply. Witnesses
for the General Counsel testified that Burnett answered that he would , that he
would have to. Burnett and other witnesses for the Company testified in sub-
stance that he answered that the CIO Union would be the representative of the
employees until June 30, the expiration date of the contract , and that until
then he would bargain with them in the event of a "No" vote.
At the end of the May 4 meeting , Plant Superintendent Bert Oberg asked, in
view of past experience with interunion disputes , that the parties refrain from
distributing campaign literature on plant premises . Oberg understood that
the CIO Union agreed to refrain from doing so. The confusion of the Union's
witnesses as to dates makes it difficult to piece together their testimony as to
what was said at particular meetings , but I conclude that the CIO conditionally
and informally consented to refrain if the AFL did. Mike Moran, president
The CIO Union, on April 28, 1949, in accordance with a provision in the-agreement
and with the requirements of the Act, gave notice of its desire to modify and amend the
existing agreement and to meet for the purpose of negotiation.
4 Witnesses for the General Counsel fixed the date as May 25 instead of May 4. On all
the evidence, I find that they were mistaken.
6 The' international came into compliance on August 8, 1949, and the local came into
compliance on August 15, 1949.
953841-52-vol. 94-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the CIO local, testified credibly that the AFL did not, however, refrain from
doing so.
Following this date and until June 29 when the election was held, the CIO
and AFL engaged vigorously in election campaigning, distributing the customary
preelection literature, in which the CIO campaigned for a "No" vote.6
On about May 11, Oberg received a report that Moran was bringing a large
quantity of printed campaign leaflets to the machine shop, where they were
found in a stack. He received reports that machine shop employees were dis-
tributing such literature to other departments during their lunch time. Later
the same day, according to Oberg, Jack Woods, the quarry foreman, telephoned
him, reported that there was a bunch of such literature lying at the time clock
at the quarry, and one posted on the bulletin board, and asked what to do about
it. Oberg gave Woods instructions for removing the circular posted on the union
bulletin board and for bringing it, along with the rest of. the circulars, to the
office. Woods complied. According to Woods' testimony, his attention was
called to the circular on the bulletin board by some of the men; he read it and
thought it was "a little strong" ; so he went to employee Wilburn West, an official
of the CIO Union, and told him he did not know if it was allowed to post that
kind of literature there;' and hesuggested that he and West take it to the office
to find out if it was permissible. Woods related that he and West went to Oberg
with the circular and, as Woods testified, "I think we decided that that was a
little too strong to put up on the bulletin board." The CIO Union protested the
removal of this circular from the bulletin board by letter to Oberg and at a meet-
ing with Oberg on May 25, but to no avail.
On May 27,° Oherg caused to be distributed to all foremen and to be posted
on all bulletin boards, the following notice over Oberg's signature :
Notice to All Employees
Distribution of Literature on the Company premises, whether at plant or
Quarry without special permission from the Superintendent's office in each
instance is strictly forbidden. Any employee found violating this rule will
be subject to instant dismissal.
Union. activities shall not be conducted during -working hours, except
that, with the consent of the Employer, a member or members of a Union
Committee may try to adjust an existing problem between the Union and
the Employer.
On the morning of June 7, a foreman came to the office and reported to Martin
Lodi, the personnel and safety director, and to Oberg that Moran had been
observed coming onto the plant premises and heading toward the machine shop.
Moran, although an employee of the Company, was on workman's compensa-
tion and presumably had no occasion for coming onto the plant premises except
in connection with his union duties and activities. Oberg and Lodi left the
office to find Moran. In about half an hour they met him as he was leaving
the premises. Oberg asked Moran what he was doing on the premises. Moran
said he was investigating a grievance. Oberg asked him if he had obtained
permission from any foreman or from the superintendent's office to investigate
B During May, Burnett and Oberg, at foremen's meetings, instructed foremen to be
neutral in their conduct toward both unions. There is no evidence that employees were
informed of this, however.
7 From an examination of all the evidence, including testimony of various witnesses
and exhibits, it seems probable that the date of this posting was later, but it never was
fixe4 with certainty.
MONOLITH PORTLAND CEMENT COMPANY, 1379
the grievance. Moran replied that he had not and that under the terms of
the contract lie did not consider it necessary. Oberg said that Moran misin-
terpreted the contract, which provided that there would be no union activities
without consent of the employer, and that Moran's activities that morning were
in violation of the notice of May 27. Moran said that his union felt the notice
was in violation of its rights and that he did not intend to,abide by it. Oberg
told Moran that thereafter he was not to come onto the plant premises for any
union activity unless he had first obtained permission from the office. Oberg then
called over the scale man, who was also a watchman, and instructed him not to
let Moran come on the premises except to work unless he had permission from
the office. He added that this was to apply not only to Moran but to any union
official.
Burnett was out of the State from May 20 to June 1 and did not again meet
with the CIO committee until June & On that date the CIO grievance committee
met with Burnett, Oberg, and Lodi, and the rules posted on May 27 were dis-
cussed. Moran, for the CIO, argued that the rules were in violation of its
rights. He further argued that the lunch period was not working time' and
that the employees could then conduct union activities. Burnett approved of
Oberg's action and, referring to a clause in the current contract against union
activities during working hours,° he took the position that as the plant operated
24 hours a day and 365 days a year, all time was working time and that the
literature could not be distributed in the plant at any time. The Company
permitted the CIO to post on its bulletin boards notices of meetings and social
events but not propaganda and it did not prevent the distribution of literature
.at the parking lot between the highway and the tracks, or on the south side of
the highway.
Meanwhile, on June 2, 1949, there was a Board-conducted hearing on the peti-
tion of the AFL Union as well as on the petition of another union, the IBEW,
which had asked a separate unit of electrical workers. On June 10, the IBEW
withdrew its petition. A consent election between the Company and the AFL
Union was approved by the Regional Director of the Board on June 22, 1949, and
the election was set for June 29, 1949.
On June 27, 2 days before the election, on his return from Laramie, Wyoming,
where the Company has another plant and where he had negotiated a contract
with another local of the CIO Union, Burnett learned of the publication in CIO
leaflets at Monolith that he was being quoted as having promised to bargain
with the CIO Union in the event of a "No" vote. On the same day he pub-
lished and had distributed to employees a letter denying any such promise
and stating that the Company's attorneys had advised that a "No" union ma-
jority vote meant that after June 30 there would be no union representative
until the employees, in their discretion, by majority action took further steps.
He also stated that the CIO "by failing to comply with the national policy"
set out in the Act had prevented itself from "being an effective factor" in any
election needed to fix the contract rights between Monolith and its employees.
Following the election, the ballots were counted and the tally showed 152
votes for the AFL and 189 votes against it. When the CIO officers, committee-
All production employees have paid lunch periods and must eat on'the plant.,premises.
Their lunch periods are staggered . Maintenance and repairmen do not have a paid lunch
period and may clock out and leave the plant premises for lunch . There are about 110
maintenance and repairmen.
A The contract provided : "Union activities shall not be conducted during working hours,
except that , with the consent of the Employer , a member or members of a union committee
may try to adjust an existing problem between the Union and the Employer."
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, and representatives who were present heard the results they spoke to
Burnett, who was also present. Frank Lopez, an international representative
of the CIO Union, on the basis of the election results, asked for a meeting to
begin negotiations. Burnett turned to the Board agent who had counted the
ballots and asked him when the results of the election would be official. The
reply was that 5 days, exclusive of Sundays and holidays, were given in which
time objections, could be filed.10 Burnett, intending to be noncommittal, said
he would be up (from Los Angeles where the Conipany-has its main office) and
would have a funny story to tell them. Witnesses for the General Counsel quoted
Burnett as saying that he would be up on July 5 or 6, but Burnett denied this.
Burnett testified that Lopez had asked if he would come up around July 5 or 6
and negotiate and that he had answered that he would come up sometime and
tell them a funny story. In any event the C10 group inferred that he would
meet with them for negotiating purposes on that date.
C. Events following the election
1. The wage increase
On July 1, 1949, the Company put into effect on its own initiative a wage
increase of 71/2 cents per hour. On the sane date, by mimeographed letter to
the employees, it announced the increase as voluntarily made to meet the last
increase made by other cement companies in southern California. The same
letter announced the Company's appointment of 'Martin Lodi, its personnel
director, as its permanent arbitor, and stated that he would be authorized to
join with any arbiter, appointed by any employee or group of employees, in
selecting a third arbiter. The letter continued with a statement that the Com-
pany's attorney had given an opinion that there was "no union" at Monolith with
which it might negotiate and that "no union" would mean "no dues." n . It was
suggested that the employees might Ike to use part of the money formerly paid
for dues in a voluntary relief program for employees in which the employees
and the Company would each contribute half. Finally, it was announced that
Lodi would be available to discuss or arbitrate grievances, hours, working con-
ditions, and other matters of interest to employees.
2. Further efforts by the CIO to bargain
On July 5, 1949,'Marcotti, the representative of the CIO Union, in Los Angeles,
telephoned Burnett to request negotiations on the basis of the result of the elec-
tion. Burnett told him that he considered the election results as inconclusive,
that to him it meant the employees wanted no union. Marcotti testified that
he had urged that the Company meet with the CIO, and if the Board should prove
.that they did not represent a majority, the Board would set the contract aside.
He also testified that he offered to do anything Burnett wanted in order to prove
his Union's majority, suggesting courses that could be taken. Burnett testified
that Marcotti, in this conversation, relied strictly on the election result to prove
the CIO's majority. It is not clear whether or not he intended this to be a
denial of.Marcotti's testimony regarding suggested methods for proving majority.
But considering this and all the evidence, I find that if'Marcotti mentioned ways
10 The AFL filed objections on July 5, 1949, but they were overruled by the Acting
Regional Director on July 21, 1949.
11 During the 1948-49 contract the Company had deducted dues properly authorized by
union members. In June 1949, ;the Company deducted voluntarily authorized dues for
337 employees. At this'time there were approximately 390 employees in the unit. -
MONOLITH PORTLAND CEMENT COMPANY 1381
in which the CIO could prove its majority, he did-not make a definite proposal to
prove at that time a majority in one of those ways. Marcotti intimated that,
if the Company did not recognize the C10, the result might be economic strife,
which Burnett apparently took to mean a strike. Burnett said that he wished
to consult with his brother, the president of the Company, and with the Company's
attorneys.32
The same day Burnett prepared a letter to the employees which, with a letter
of opinion of the same date from a law firm to the Company, he had mimeo-
graphed. He took the mimeographed copies to Monolith that evening ; he dis-
tributed them that night to the employees. Burnett's letter except for the signa-
ture read as follows :
URGENT NOTICE TO MONOLITH EMPLOYEES
MONOLITH, CALIFORNIA, July 5, 19119.
To All Honolitlr Employees:
From the attached Opinion of our Legal Department, you will see that
the International Union of Mine, Mill and Smelter Workers, C. I. 0., cannot
be legally recognized and dealt with by Monolith, and any employee who
leaves Monolith's employ as part of any urging or plan of that Union will
Permanently Leave the Monolith Payroll and Forfeit All Rights of Seniority
and Otherwise.
We are compelled to deliver this notice during the evening hours, as time
did not permit its delivery at the plant, as we are anxious that none of our
employees -be led into Poorly Advised or Hasty action which- could be to the
great detriment of such employee, our other employees and the employer,
Monolith.
The body of the attorney's letter of opinion which was distributed with,Bur-
nett's letter read as follows :
Referring to this morning's telephone advice to you by Jack C: Marcotti,
International representative, that the International Union of Mine, Mill and
Smelter Workers was the bargaining agent for the employees at the plant.
He also requested a meeting between that union, as such representative, and
the Company tomorrow, Wednesday, July 6, 1949.
In accordance with our recent detailed opinion, you are advised that
this union has no standing or status concerning the rights, representative or
otherwise, of the Company's employees.
Further, that any employee who follows its banner by leaving work
will by such act terminate his relationship with the Company as an employee,
losing all of his rights, including seniority.
At about this time there were rumors of a possible strike at the quarry. In
anticipation thereof, the Company made arrangements to have an independent
contractor operate the quarry in the event of a strike. There is no evidence,
however, that this was made known to employees.
On July 6 at about 2 p. in., the CIO negotiating committee, accompanied by
Frank Lopez, an international representative, went to the superintendent's
office to meet with management respresentatives and were informed by Oberg
that Burnett had left town and that there could be no meeting.
22 Burnett apparently wrote Marcotti that in the opinion of the Company's attorney
the CIO had no standing as collective bargaining representative, because Marcotti referred
thereto in a letter dated July 11, 1949.
1382 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
On the-same date, Moran, president of the CIO local, prepared in petition form
copies of a request to the Company to negotiate a contract with the CIO as the
petitioners ' choice of bargaining agent. These were circulated for signatures but
neither these nor any other authorizations were thereafter presented to the
Company as proof of majority representation.
On July 7, 1949, Lopez wrote to the Company requesting the latter to fix a
meeting date pursuant to the Company 's letter of April 25 in which .the Company
offered to meet and confer with the CIO within 10 days. The record discloses
no answer to this letter . Marcotti wrote another request for a bargaining
meeting on July 11 but he received no answer . In neither letter did the CIO
offer new evidence of majority since the election.
Marcotti later attempted to reach Burnett by telephone without success, and
he called upon the State Conciliation Service, which appointed a conciliator.
The date of appointment and the efforts made by the conciliator are not in
evidence . However, the course of events was apparently unchanged by what-
ever the conciliator did.
3. Statements of company officials and supervisors
Before Burnett returned to the Los Angeles area from his trip to Monolith!
for the purpose of distributing his "urgent notice" to the employees on July 6,.
he went to Tehachapi with Oberg . At around noon that day, Burnett drove into,
a gas station to have his car tank filled . There he met employee Wilburn West,
a trustee and member of the negotiating committee for the CIO Union , and the
following conversation ensued. Burnett asked West how things were going.'a'
West replied that he did not know, because he had been away on his vacation.
Burnett told Oberg to give West one of the letters which he had been distributing.
Oberg did so. West quoted Burnett as then saying , "I can no longer bargain
with you boys . . . the no vote carried and your union is Communist dominated,
and I wish you would try to get the boys lined up or leave the CIO, and get
some signatures and I will sit down and bargain with you." Although West's
testimony had a factual basis, I believe the quotation was somewhat garbled.
Burnett and Oberg each gave testimony of their memory of the conversation.
I am not satisfied that any of the three gave a complete or orderly account of
the conversation. However, Burnett denied that he had told West to get rid
of the CIO and I credit his denial . On the basis of the testimony of the three,
I find that the conversation , after the opening statements , was substantially
as follows. Burnett commented that he had heard strike rumors. West said
that the boys were pretty badly worked up, and Burnett replied that he knew
they were and asked West to be careful, that he was one of the old timers and
that the "boys" looked to him as a leader , that he should talk to the boys and
not let them fly off the handle, but let them study the situation thoroughly
before they took any drastic measure. Burnett told West that "this whole
thing" would not have occurred if the CIO and its officials had complied with
the Act by signing the non -Communist affidavit and furnishing the report that
the Act provides . West replied that he knew that and that his Union was taking
steps right then to have that corrected . Burnett also told West that if he would
get enough signatures , he would sit down and bargain . I do not, however, find
that Burnett even suggested much less urged , any particular representative.
"According to West , " they " asked him what he thought about the union situation at
that time. As the plural included Oberg, it is possible that Oberg asked this question.
Lodi testified to an occasion when Oberg asked such question of an employee who came
to the office during this period . Because of West's vagueness I make no finding hereon.
MONOLITH PORTLAND CEMENT COMPANY 1383
At around the same period of time in July, while Burnett was in Monolith, he
met employee Lee Peters near the plant, and a conversation ensued. The account
of this conversation given by Peters and Burnett agree in the general subject mat-
ter but disagree in the statements made or in the manner in which they were
made. However, I find that such disagreement as existed arose from Peters'
interpretation or misinterpretation of what Burnett said. From the testimony
of both Peters and Burnett, I find that the conversation took place as follows :
Burnett greeted Peters and mentioned the reports of a strike in the quarry which
he had heard. Peters commented that he was disgusted with some of the things
that were being done. Burnett called Peters "a level head" and asked him not
to let the boys do anything drastic. Burnett said that there was no contract and
no union representation at the time and that "you fellows have got to get busy
some way." When Peters asked what they could do, Burnett asked, rhetorically,
if "you guys want" a contract. Peters answered affirmatively and Burnett con-
tinued, "You go out and get some signers, get a couple hundred in here and I will
give you a contract tomorrow." After some further exchange of words, Peters
said that it looked to him as though they would have to get rid of both Unions and
get an independent union. Burnett replied that, if Peters would bring those
signers, he would give a contract the next day. In the course of the conversation
Burnett commented that "it isn't much like the old days." They reminisced
about the times when "the kiddies used to go to Catalina and be there for a week's
vacation all paid," and about the Christmas presents and bonuses and turkeys
for Christmas that they used to get. Peters quoted Burnett as saying that the
Union was taking all that away from him, and that he could have "that all back,"
inferentially if they got an independent union. Burnett denied this part of Peter's
testimony and explained that the reason why the mentioned benefits had not been
continued after the war was because of the uncertainty as to the effect of the wage
and hour law and the Taft-Hartley Act." I credit Burnett's explanation. I find,
contrary to the contention of General Counsel, that Burnett was not trying to
influence Peters to get rid of the CIO and to organize an independent union. He
gave evidence of willingness to recognize the majority choice, whatever it might
have been.
During the first half of July, Jack Woods, a foreman of the quarry, was con-
cerned about the prospect of a strike and so undertook on a number of occasions
to talk about the Unions. A number of witnesses testified to statements made
by Woods. Most of them were vague or confused about the dates of such state-
ments, some of them placing them as early as a month before the June 29 elec-
tion. From an examination of the testimony of all the witnesses, including those
of the Company, from dates fixed by exhibits, from coincidence of subject plat-
ter, and on all the evidence, I find that all of these statements were made between
the date of the election and July 19.
Between July 12 and 15, while employee John Clodfelter was operating a bull-
dozer at the quarry, Woods approached him and said that he hated to see Clod-
felter lose out, that anyone going out on strike would not come back, that he
would like to see Clodfelter sign up, that some of the boys had cards he could sign,
and he should see Glen Weaver." At this time Clodfelter was a member of the
14 The Catalina trips for employees ' families were discontinued in about 1941 , when the
war made it impossible to use the island.
11 Glen Weaver was another employee. His authorization card for the AFL was dated
July 17. As the cards of other active AFL men were dated about this same time, I do
not consider the date' of Weaver's card as inconsistent with Clodfelter ' s testimony.
Woods testified that he was trying to keep the men from going on strike in advising them
to join the AFL.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, and lie understood Woods to mean that he would lose his job if he did not
sign with the AFL. That evening he asked Weaver for a card to sign but
Weaver had none . Clodfelter signed an AFL card on July 17.
About July 16 or 17 , 1949 , when Woods was talking speculatively about whether
the CIO was going to strike , employee Homer Johnston asked Woods for his
advice as to whether he should go CIO or AFL , saying that he had cone there
to work and make a living . Woods replied , according to Johnston , that if the
CIO went out on strike ; " the lime men [ referring to the AFL Union ] is liable to
come up and go to work . . . they got a contract here, and if you get one of those
little cards you might go ahead and work." 's Johnston signed an AFL applica-
tion card that afternoon . As the AFL contract 'was not signed until after this
date, I find that Johnston was in error on the tense of the verb "got." Otherwise
I credit Johnston 's testimony.
Johnston further testified that before the CIO petition for authorization was
circulated (w1,lich he signed on July 8, 1949 ) he had applied to the Company for
a $3,000 loan and had been told by Lodi that he. could not get it because he had
not worked for the Company long enough . About a week after he signed the
AFL card, Johnston testified , he had a talk with Woods in the quarry office.
Presumably Johnston told Woods he had been turned down on his application for
a loan although Johnston 's testimony leaves this to inference . Johnston testified
that Woods asked him if he had signed the CIO petition , that he had answered
that he had, and that Woods remarked , "Well, Mr. Oberg seen your name on that
down there at the office ." In view of the order of the events testified to by John=
ston , and on Lodi 's testimony regarding the lending practices of the Company, I
find that Johnston's application for a loan was hot turned down because of his
having signed the CIO petition . It is possible that Woods was joking, but Woods
did not throw any light on this when he was on the stand. As Woods apparently
had the idea that the Company favored the AFL and might favor AFL employees,
the evidence does not warrant a finding that this remark was made in jest.
Employee Fernando Fornelli testified to a conversation with Woods in the
presence of a number of other employees including Johnston. I infer that
this was at approximately the same time as Johnston 's conversation with Woods.
Fornelli made a bet with Woods that " it would go CIO." Woods bet on the
AFL" Fornelli quoted Woods then as saying that the men who voted for the
CIO would go down the hill if they did not join the AFL. This quotation sounds
very similar to those made by Woods in the meeting related in the next para-
graph and I refrain from making a separate finding here , believing the quotation
is more accurately set forth hereafter . Fornelli also testified that Woods said
if they wanted to sign for the AFL to go uptown where there were some men
who would sign them up . That night Fornelli signed an AFL application.
"' The date of this statement is difficult to fix. Johnston testified that it was within
a month either way of the election. The tense used regarding the contract would indicate
that it was after July 19, when the AFL-Company contract was made. But Johnston
testified that he signed up with the AFL Union that same day. The application that he
signed bore the (late of July 17. Some of the applications were not dated until they were
turned in to the AFL organizer. From other evidence, it seems probable that the
conversation took place on July 16.
11 G. C. counsel had considerable difficulty in attempting to get Fornelli to explain
what "it" was that would go one way or the other and finally asked if they were "talking
about" the Board election. Fornelli answered "yes," and it was assumed that the bet
was made before the election. I believe Fornelli misunderstood the import of the question
as having reference to the bet, and I find that the bet was made between July 15 and 17.
Fornelli testified that on the evening of the same day the bet was made lie signed an
AFL card. His card was dated July 17, although it may have been dated after he
signed it.
MONOLITH PORTLAND CEMENT COMPANY 1385
About July 17, Woods gathered a group of employees together in the first-aid
room at the quarry at the end of the night shift and beginning of the morning
shift.18 None of the witnesses, including Woods, had more than a sketchy
recollection of what Woods said, but from a composite of the testimony, I con-
elude and find that he made a statement substantially as follows : Woods said
that he had been there a long time and they had too ; that he liked them all and
wanted to stay friends; that he wanted them to do what they thought was right
but that they should watch their step ; that if they went on strike they would
all be without their wages, including himself, and that he did not know where
they would get help to pay for their homes and their cars ; that the men should
.all line no or they would "go down the hill";` that the best thing for them
would be to sign up with the AFL because the CIO was gone, and that, if they
wanted to sign with the AFL, there were some men uptown who would sign
them up.
Several days after Woods talked to the group of employees, employee Vergil
Wise met Woods and asked for a straight day shift job, as he felt he was en-
titled to it according to his seniority. According to Wise, Woods replied, "Well,
if you would talk a little bit more in favor of the company and not so much this
CIO union, it might get you a better job out of it."
One morning in the first part of July 1949, (luring the period when there were
rumors of a CIO strike, Douglas Kingsbury, assistant master mechanic in charge
of the machine shop, asked employee Justin Collins, a CIO member, what had
taken place at the meeting of his Union the night before with regard to whether
or not a decision had been made to strike or not to strike. Collins did not give
a definite answer and Kingsbury then said that if Collins was smart, he would
drop the question entirely. During the same period of time, when Collins was
in a conversation with employee Jack Givens, a former president of the CIO
Union, Kingsbury joined them. Collins was arguing in favor of a strike and
Givens against it. Givens remarked that if they did not get the situation settled
one way or the other soon, he would be tempted to organize an independent
union in order to get things settled down. Kingsbury interjected that, the way
things were going, an independent union might be better than either of the
others.
About the time Burnett had the conversation, above related, with Peters, he
met Collins and had a conversation with him. Collins testified, and Burnett
denied, that the latter remarked that the greatest danger in the country today
was communism and that the CIO Union was full of it. Although I would re-
gard the statement testified to by Collins as no more than an expression of
opinion, I credit Burnett 's denial, believing that any mention of communism
that Burnett may have made was in connection with the failure of the CIO
Union at that time to file non-Communist affidavits as required by the Act.
After work one day in July 1949, employee Miguel Luna was leaving the plant
grounds with employee Gregorio Morentin, with whom he was accustomed to
walk, when Harvey Enlund, supervisor of the town site,`"' called to him front
is Woods explained that some of the employees had asked his advice concerning the union
situation and that he had answered that he would think about it overnight and have a
meeting in the morning.
19 This statement was not explained . It. might mean that if the men did not get
together they would go on strike or get in financial straits as a result of one. I do not
construe it to be a threat.
20 As such , Enlund has six or seven men under hii? , and he is regarded as a supervisory
employee by Burnett . With Lodi he determines the occupancy of houses and trailers. He
was not in the bargaining unit.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behind . Luna dropped back. Enlund asked Luna if he had signed for the
AFL. Luna answered negatively and Enlund asked why not. When Luna' ex-
plained that he thought the AFL did not do anything for the employees, Enlund
commented , according to Luna, "Look, the contract is going to be passed.
'Everything will be nice for the future ." When Luna appeared hesitant , Enlund
said that if Luna wanted to sign up he should "go over there where this fellow,"
indicating Burks, was standing . Luna said that he would not go then . Enlund
asked Luna if he thought Morentin would sign . Luna answered that he did not
know, and Enlund said, "Well, you tell him." Enlund testified to having had
a conversation with Luna of quite different subject matter about July 8. He
also testified that he saw Luna several times a week. I find that the conversa-
tion related by Luna was separate and distinct from the one testified to by
Enlund, and I infer from all the evidence that the conversation about which
Luna testified took place about a week or so later . Enlund testified that he had
at, no time discussed "union activities" with Luna. I do not credit this as a
denial of the conversation that Luna related.
On about July 1, Enlund met employee Gerald Worthington in the Monolith
market and , according to Worthington , remarked , "You got a raise today , didn't
you? Didn't take any union , either, to get it, did it?" 21 Worthington also
testified that shortly thereafter , in the same place , Enlund passed him and
remarked, "Well, it may take a CIO union to get you out of camp." He also
testified that in the neighborhood of July 4, Enlund passed him on the street in
Tehachapi and asked , "Have you got out of Monolith yet?" I believe and find
that the last two quotations were intended by Enlund to be passing pleasantries
and that Worthington misunderstood their import . Worthington was accus-
tomed to stay close to his place of abode and Enlund ' s comments may have
alluded to that habit.
Employee Gregorio Morentin , who speaks very little English , testified , through
an interpreter , that, at a time within a month before or after the June 29
election , Assistant Foreman Raymond Farrell , who does not speak Spanish, in
his presence told employee Francisco Ramirez to tell him ( Morentin ) to sign
with the AFL and that Ramirez thereafter told him in Spanish what Farrell had
said. Morentin testified that he understood Farrell without the interpretation.
In English , Morentin quoted Farrell as saying to Ramirez , "You talk to Morentin,
tell Morentin better sign the A. F. L." Both Ramirez and Farrell testified to
a conversation of different subject matter in August or later in which Farrell
spoke to Ramirez about citizenship. But Farrell testified that Morentin was
not present , to his knowledge , during this conversation . After Farrell had
testified that he could recall no conversation in which he told Ramirez or any
other employee to sign with the AFL nor any conversation he had with any
employee in 1949 when either the AFL or CIO was mentioned , he was asked
on cross-examination if it was his testimony that no such conversation occurred
and answered affirmatively, and then, when asked if he would have remembered
it if it had occurred , he answered that he "probably would." Ramirez, called
by the General Counsel, failed to corroborate Morentin's testimony but either
intentionally or through lack of understanding of English , seemed to avoid the
specific matter that Morentin testified to until pressed . Then he denied that
Farrell had told him to tell Morentin anything ; and he denied that Farrell had
mentioned the AFL or CIO or that he had had any conversation with Farrell
other than , the one he testified tos Morentin testified on cross-examination that
21 Enlund did not remember having made this statement . I credit Worthington's tes-
timony.
MONOLITH PORTLAND CEMENT COMPANY 1387
Ramirez had told him that Farrell had said he ( Morentin ) would lose his
job if he did not join the AFL but that he did not join. Although I am not
firmly convinced that Ramirez ' and Farrell ' s denials should be credited, the
only direct, as distinguished from hearsay, evidence that Farrell made the state-
ments attributed to him by Morentin was the latter 's testimony of what he
understood Farrell to say in English. Although Morentin repeated this in Eng-
lish without an interpreter when he testified , I feel there is room for doubt as
to Morentin ' s ability to understand what he heard in English . On the entire
record and from my observation of the witnesses I make no finding that Farrell
made the statement testified to by Morentin.
4. The Company's contract with the AFL
About July 14, 1949, the AFL began to obtain new authorization cards. The
following day it received a charter for the local union, for which application had
been made on July 8, and on July 15 began an intensive drive for authorizations.
On the latter date, Floyd Burks, general representative for the AFL Union,
wrote a letter to Burnett with the Los Angeles office address, claiming that a
majority of the production and maintenance employees had recently made appli-
cation for membership in the AFL local, requesting a meeting to negotiate a
contract , and offering to submit proof in any manner desired . Despite the
address on the letter, it was not sent to Los Angeles. In the restaurant at
Monolith on the morning of July 15, Burks approached Superintendent Oberg,
who was there , and asked if he knew where Burnett could be reached, and,
if he mailed a letter to him in Monolith , whether he would receive it. Oberg
told Burks that Burnett was expected up later in the day. Burks then addressed
the envelope , in which lie sent this letter, to the plant , where Oberg received
it at about 9:30 or 10 o'clock that morning. Oberg testified that Burnett had
informed him a day or two in advance that Burnett would be up for supper
on Friday, July 15, which was not his customary day of the week to visit the
plant. Nevertheless, Oberg did not await Burnett's arrival but telephoned him
in Los Angeles and, upon Burnett 's instructions , read Burks ' letter to him.
When Burnett reached Monolith, shortly after noon on July 15, he dictated
a reply to Burks at his address in North Hollywood , California , stating, "Upon
your presentation to us of reasonable evidence that such Local Union does
represent such a majority of the employees, we will, pursuant to our obligation
under the law, meet with your negotiating committee. . . . I judge that this
letter was more for "the record " than for Burks ' information as it was not mailed
until after 5 o'clock, when Oberg on his way home mailed it in Tehachapi, for,
in the meantime . at about 3:30 or 4 p. in. Burks came to the office and met with
Burnett, Lodi , and Oberg. Burks said that he had a number of membership
applications. Burnett asked if he had a majority and Burks replied in the
negative but added that there were some "out in the plant yet." Burnett told
Burks that lie could not do business on the assumption that he had a majority.
Burks said that he would get the rest that night. That same night Burks called
upon Burnett at the "guest house ," a cottage used by visiting officials and guests
of the Company . With Company's counsel present , Burks reported the number
of cards lie then had but apparently he did not produce them then. Arrange-
ments were made to meet at the plant the next day at 9 :30 a. in.
On July 16 at the appointed time, Burks and an AFL committee came and,
in the presence of Burnett, Oberg, Lodi , and Smith, company counsel , presented
12 Burnett could not remember what it was that caused him to decide to go to Monolith
that Friday.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a bunch of applications for AFL membership. Burnett had the cards checked '
A large proportion of them bore dates prior to the election. Burnett said they
would have to have authorizations signed since the date of the election. At this
time, Burnett had Oberg give Burks a copy of the letter mailed to him at North
Hollywood.
Burnett returned to his home in Glendale over Sunday, returning to Monolith
on Monday, July 18, after Oberg had telephoned that Burks had come in to say
that he had enough signatures to show proof of majority. That afternoon at
about 3 o'clock, Burks presented about 201 or 202 cards at the plant office, accord-
ing to a list prepared by the Company. Lodi turned them over.to the chief clerk,
Arden Brockman, and to Lodi's assistant, Donald Van Handel, to check the dates
of signing and to check the signatures on the cards against the signatures of
employees on the current payroll and in the bargaining unit. The checking took
the rest of that working day and a short part of the following morning. On the
morning of July 19, Brockman and Van Handel reported to Lodi that one
signature, that of Gerald Worthington did not match. It was signed with a.
cross, whereas Worthington could write his name, and the name written by the
cross was not Worthington's signature. Several signatures did not appear to
match too closely. The latter cards were checked against more recent signatures
of the employees and appeared to Lodi to match. One card was undated. In
three instances dates had been stricken and a later date written above the
stricken one. Lodi reported to Burnett on these findings and Burnett questioned
Burks about the Worthington card and about the cards on which dates had been
changed. Burks explained that he had gone to Worthington's trailer after hear-
ing that Worthington had been looking for him, that Worthington and his son
came out, that he had signed the son up and had filled out a card for Worthington
to sign, but that Worthington had made some excuse that he could not write or
that he did not have his glasses, that he told Worthington to put an "X" on the
side and, when that was done, he wrote Worthington's name in.24 Burnett testi-
fied that Burks explained to him regarding three cards which had new dates
written over stricken dates that the signers had made an error in the date and
that he had stricken the date and written in the correct date and that in one
or two instances they had used an application signed before June 30 and that
he had changed the date for the applicant. Burnett accepted the explanation
and counted all the cards offered except an undated one. Four cards bearing
the date of July 19 were added to the list of those counted.25 In all, 205 cards
were counted as valid. At the time, there were 392 employees in the unit.
Burnett, had Brockman and Van Handel prepare an affidavit reciting what they
had done concerning the card check. He also asked and was given possession of
zi On direct examination for the Company, Burnett testified that he had clerks check
them. On cross-examination he testified that he, Oberg. and Lodi examined them. It
may be that they were examined both ways or Burnett may have confused this instance
with the later one when he had others check the cards.
24 Worthington, who testified for the General Counsel before Burnett and Burks, related
the only conversations with Burks that he could recall and they did not relate to the
signing of a card. On cross-examination he testified that he could write his own name,
that no one else was present when Burks spoke to him, and that he never told Burks he
could not sign his name. He was not shown the card in question, was not asked if he
had told Burks he could not sign without his glasses, and he was not asked if he had put
a cross on an application card for the AFL.
2s There appears to be no clear evidence as to the time when these four cards were
tendered to the Company. But as Burks testified that he tendered cards on July 18 and
19, as the four cards dated July 19 were counted, and as the count was completed before
bargaining, it is inferable that they were tendered on the morning of July 19.
MONOLITH PORTLAND CEMENT COMPANY 1389
the cards for the purpose of having them photostated. He testified that he did
this' in anticipation of a hearing and of their use as evidence.
After the card check, Burnett recognized the AFL as collective bargaining
representative. Burnett, Oberg, and Lodi on the same morning met with Burks
and a negotiating committee of AFL employees. The AFL tendered a copy of
the 1940 contract which the Company had had with an earlier AFL local and a
contract which the AFL had with other cement manufacturers in southern
California. These they compared with the 1948 CIO contract provisions. Wage
changes were not discussed, except for a few minor equalization changes. The
July .1 increase, made after the AFL had completed negotiations with the
cement manufacturers in southern California, presumably satisfied the AFL.
After a brief discussion in the morning of July 19, Burnett told the AFL nego-
tiating committee that he thought lie had an idea of what they wanted and asked
permission to draw up a contract which he thought would be satisfactory. The
meeting adjourned until 1 p. in. Meanwhile Burnett cut out sections of the old
contract and pasted up a dummy from which a typewritten copy was prepared.
The 1940 AFL contract contained a union-shop clause. The new draft con-
tained it union-shop clause automatically effective if authorized by an election.
Among other clauses the 1949 draft used the 1940 contract seniority clauses.
In these clauses the word "member," "members," or a variation thereof was used
where the word "employee" or "employees" would be used in an open-shop con-
tract. The result was to make it appear that seniority was provided only for
AFI: members. In the afternoon session of the negotiating meeting, Burnett
noticed the use of the words "Union member" in one of the five paragraphs where
that or an equivalent expression was used. He struck out those words and
wrote in the word "employee" in that one place.2G Also stricken was the para-
graph copied from the earlier contract which read: "The seniority of any
person employed subsequent to the date of this contract shall date from the time
lie is accepted into membership of the Union." Burnett testified that he gave
instructions to Lodi or someone' else to make the change from "member" to
"employee" wherever the word appeared, but that his instructions had not been
carried out. Penciled changes were made in various provisions of the contract
and, as changed in pencil, it was signed on the evening of July 19 by the Company
and the AFL. The term of the contract was, as requested by Burnett, stated to
run from July 19, 1949, to April 30, 1954, and from year to year thereafter- subject
to 60 days' notice. The contract also was subject to reopening within 60 days
of July 19, 1949, to discuss working conditions, and within 60 days of any April
30 for the purpose of adjusting wage rates to conform to those paid by a majority
of the cement companies in southern California, or for. the purpose of adjusting
working conditions or both. Within the next few days after the signing, the
contract, after being retyped, was mimeographed and distributed to employees.
In August 1949, Burnett, while reading the contract of July 19, 1949, noticed
that the seniority provisions had not been corrected. He consulted with counsel
26 This clause , as changed , still retained the word "member " in other places. As
corrected , the clause read : " In the event a job is bulletined in any department , the senior
member in terms of department seniority who bids therefor shall be entitled thereto,
provide (] he is competent . In the event , however, that no member in the department bids
for the job, said job shall be granted to the member outside of the department competent
to do the work and having the greatest plant seniority and bidding therefor. If
no employee. [ this is the word substituted for "Union member"] bids for the job, the
Employer may fill the position with anyone it chooses ." On the draft copy, the words
"the senior member" were once stricken and an interlineation written above them but the
interlineation and the line through the quoted three words had been erased. There is
no explanation of this.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and on August 23 prepared and sent to Burks a letter proposing that "employees"
be substituted for "members of the Union" or "members" and the word "em-
ployee" be substituted for "member" wherever such terms were used in the
seniority provision . This proposal was accepted by the AFL and it was signed
as a supplemental agreement on August 31, 1949. In its last paragraph the
agreement provided , "It is also understood that all subsequent publications of
the contract will include the changes agreed to in this letter." The first pub-
lication of the contract thereafter was made after the contract and amendment
had been printed in booklet form. Bids for the printing were taken on October
21, 1949; the contract for the printing was awarded on January 7, 1950; and the
printed contract, including the amendments, was distributed to employees on
February 10, 1950. There is no evidence that the employees were provided
with any other notice of the amendment.
5. The alleged discriminatory failure to promote Castillo
Florencio Castillo was employed at the quarry and by the Company since
1935. He started as a driller , then went on crushing . By the spring of 1949
he was a shovel helper . In mid-May , the shovel operator on a 490 Marion
electric shovel was injured and Castillo was put on the shovel as a temporary
operator , getting the shovel operator 's pay. Shortly thereafter , while Castillo
was occupying that position and while he was having lunch, the relief man who
continued to operate the shovel during Castillo 's lunch period picked up too
large a boulder. • As he swung around with it, the shovel tipped over . Both the
relief operator and Castillo were, Foreman Jack Woods testified , unnerved by
this. Castillo himself admitted that for a while after this he was afraid to
operate the shovel. For a time thereafter , Castillo did other work.
On July 14, 1949 , the Company posted a temporary vacancy for a shovel
operator . of a 490 electric shovel. Castillo , among others , bid on this job. Of
those who bid on this temporary job, Castillo had the greatest plant and depart-
mental seniority . However, the man next in seniority was, on July 26, 1949,
awarded this job by the Company. Castillo testified that on July 26 he was
still a member of the CIO.
On October 6, 1949, a permanent job vacancy for a 490 shovel operator was
posted. Castillo again bid on this job as did the man who was awarded the
temporary job in July. On October 11, 1949, Castillo was awarded the job. He
testified that at this time he was not a member of the CIO , although there is
no evidence that he joined the AFL. Castillo testified that Woods did not tell
him why he had not been awarded the bid in July . Woods testified that after
the shovel accident , it was 2 weeks before Castillo again went on a shovel, that
he was of the opinion that , if he put Castillo back on the 490 shovel at the time
that the first job was awarded on July 26 , Castillo would not make the grade
because of the fact that he was "gun shy." It was for this reason, Woods testi-
fied, that he recommended that the other man be awarded the job rather than
Castillo.
There is some cause for suspicion that the Respondent discriminated against
Castillo under the discriminatory provisions of the July 19 contract , in view of
the fact that the employees were not notified of the amendment thereto prior to
February 1950, in view of the fact that Castillo . dropped his CIO membership
beween July 26 and October 11 , and in view of the fact that the permanent job
was not ' awarded to Castillo until after the date of the filing of the charge
(August 12 , 1949 ) which initiated an investigation by the Board . Castillo was,
however , for a time after the shovel tipped over , admittedly "gun shy." Whether
MONOLITH PORTLAND CEMENT COMPANY 1391
or not he remained so until July 26 is not clear. But in Woods' opinion he still
was. Woods explained that the 490 shovel was a very expensive piece of equip-,
ment and that damage to it would run in the thousands of dollars; so the Re-
spondent would wish to put it in the hands of an operator in whom the Company
had confidence. On all the evidence I find that the Company did not discrimi-
nate in regard to the hire and tenure of Castillo's employment.
6. Further facts alleged to indicate favoritism for AFL
The Company paid all members of the AFL negotiating committee who were
scheduled to work on July 19 for the time they spent at the bargaining confer-
ence. During the period from 1937 to 1941, which would be approximately the
time during which the earlier AFL Union was the bargaining agent, the time
spent by employees representing the Union in negotiating contracts was paid
for. During the period from then through the 1948 negotiations, when the CIO
was the bargaining representative, the Company did not pay employees for their
time spent in negotiations.24
On about August 15, 1949, just before 8 a. in., Woods tacitly permitted the
AFL employees to conduct an election of officers at the quarry in the space
utilized for parking cars.
D. Concluding findings
The foregoing facts have been related not necessarily because I believe that
they are unfair labor practices but because they have been offered as evidence of,
or bearing upon, the alleged unfair labor practices, and there may be some cause
for argument as to whether or not they are violations. Some statements of super-
visors which were testified to by witnesses I consider not even arguable matter,
and I have not wasted space reporting them here. To avoid misunderstanding,
it may be noted that I am finding to be unfair labor practices only what is
expressly so found in this section.
The argument of G. C. counsel appears to be that the Company unlawfully
assisted the AFL in the following ways: (1) Failing to recognize the CIO as
the bargaining representative after the employees had rejected the AFL in the
June 19 election; (2) recognizing the AFL on inadequate proof of its majority
claim; (3) assisting the AFL in obtaining an apparent majority through acts
of interference and coercion by supervisory employees; (4) recognizing one of
two competing labor organizations while a question concerning representation
is pending; (5) recognizing the AFL within a year after the employees rejected
it in an election; (6) after recognizing the AFL, by paying employee representa-
tives for time spent in negotiating a contract, by hastily giving the AFL a con-
tract for a long term, by granting special seniority rights to AFL members, and by
permitting the AFL to conduct an election of officers on company time and prop-
erty. These will be considered in order.
(1) The first argument is based on the theory that a presumption of majority
representation arose with the CIO's certification in 1947 following a Board-or-
dered election 28 and that this presumption not only was not rebutted by the Re-
spondent but was confirmed by the rejection of the AFL in the June 29, 1949,
election and by the facts that before the election a substantial majority of the
employees were having their dues checked off under voluntary authorizations
and that no more than 30 employees in June 1949 availed themselves of the
27 The Company during the .entire period paid members of the grievance committee for
time spent in grievance meetings.
28 Monolith Portland Cement Company, 72 NLRB 35.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privilege of cancelling their authorizations . The presumption of continuing
majority is sometimes found to exist where no rival union is making a claim to
majority or is engaged in organizing the employees . 29 Ordinarily there' would
be no resort to a presumption where there is a claim by a rival union for, if the
rival makes a substantial showing, the Board orders an election , both claimants
are on the ballot, and the result of the election removes the necessity for in-
dulging in any presumption . Here, because the CIO Union had not yet coin-
plied with the filing requirements of the Act, it was not on the ballot . No charge
of refusal to bargain was made even . after compliance , possibly because the 010
Union was not, at the time of the claimed violation , capable of utilizing the func-
tions of the Board, but possibly also because it might have been required to prove
its majority other than by presumptions and because it was not prepared to do
so. G. C. counsel relies strongly on the dues deductions to support the conten-
tion that the majority continued . In June 1949 , dues were checked off for 337
employees . This would indicate that only about 53 employees of the total num-
ber of 390 were not paying dues. If the 30, more or less, who cancelled their
dues deduction authorization were added to the 53, it would appear by this rea-
soning thdit only 83 were opposed to the CIO. Yet in the election on June 29,
152 employees voted for the AFL. Apparently some of those who had not under-
taken to cancel "their check=off authorizations voted for the AFL. It is impossible
to say that all the rest of the employees who voted against the AFL were in favor
of the CIO . As the 1948 contract had come to an end, the Company was no longer
obliged to deduct dues thereunder and express revocations of dues deduction
authorizations were unnecessary . The Company 's refusal to recognize and bar-
gain with the CIO, under the circumstances , should not be construed as unreason-
able or as a step to aid the AFL by giving the latter further time to organize.
(2) G. C. counsel took the position that the Company failed at the hearing
to prove that it was justified in recognizing the AFL on a card check and that
no less than conclusive proof by the Company of the validity of the application
cards would suffice to justify its action in recognizing the AFL. G. C. counsel
claimed that the Company had the burden of proof to the same extent that he,
himself, would have had it in proving a Section 8 (a) (5) violation. Even if
the latter claim were true, it has never been required that the payroll signatures
be offered in evidence or that a handwriting expert prove the signatures. Unless
a respondent in an 8 ( a) (5) case challenges particular cards, it suffices to
prove that the cards are apparently valid, giving the respondent an opportunity
to check the cards against the records. Such an opportunity was offered by
the Company to G. C. counsel here and the offer was not accepted . The only
cards which G. C. counsel challenged were that of G. J . Worthington, which
had been signed by a mark, the three cards with changed dates, and the undated
card. If all had been rejected there still would have been a majority. The Com-
pany might have precluded suspicion in the matter on July 18, 1949, had it
required the Union to submit its cards to the Board for checking , but that was
not a necessary procedure . I find that the General Counsel did not prove that
the Company accepted inadequate evidence of the AFL majority.
(3) Despite Burnett's care in maintaining neutrality , the evidence indicated
that the Company preferred the AFL and that some supervisors made such pref-
erence quite apparent to employees. Such evidence , short of coercive statements;
however, do not constitute a violation of Section 8 (a) (1) or ( 2) of the Act.30
2ODorsey Trailers , Inc., 80 NLRB 478, 485; Bethlehem Steel Company, 73 NLRB 277.
30 James R . Kearney Corporation , 81 NLRB 26 ; Carpenter Steel Company , 76 NLRB
670; Oval Wood Dish Corp ., 62 NLRB 1129 ; Richmond Home Telephone Co., 70 NLRB 452.
MONOLITH PORTLAND CEMENT COMPANY .1393
Some of the Company's utterances , on the other hand, were of a coercive char-
acter. These included the published statement of July 5 that "any employee
who leaves Monolith's employ as part of any urging or plan . . . will perma-
nently leave the Monolith payroll. . . . " This statement and the accompany-
ing letter of the Company's attorney at the time and under the circumstances
of their publication can only mean that the Company was threatening, any
striker with summary discharge and permanent severance from the payroll.
Such a threat is interference, restraint, and coercion in violation of the Act"
This threat was given personal emphasis by Foreman Woods in his statement
to Clodfelter that he hated to see anyone lose out and that anyone going on strike
would not come back, and I find that by this statement, by Woods' statement to
Wise that he might get a better job if he would talk more in favor of the Com-
pany and less for the CIO, by Kingsbury's questioning of Collins as to what had
occurred at the union meeting, and by Enlund's questioning of Luna as to whether
lie had signed for the AFL " the Company interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed by the Act.
The Company argues in its brief that its threat of discharge of strikers in
the notice of July 5 was not a violation of the Act because the CIO had not
proved its majority and a strike by it to compel recognition without such proof
would not have been a protected activity. The Company cites a number of cases
in support of this contention and points to the California law which makes it
unlawful for a union to strike for recognition where a controversy exists be-
tween two or more unions as to which one is entitled to exclusive bargaining
rights. (Labor Code of California, Sections 1115 and 1118, Cal. Stats. 1947, Ch.
1388, 81.) I find it unnecessary to pass on what the situation would have been
if there had in fact been a strike for such purpose. At the time the threat of
discharge for striking was made, the AFL had not reentered competition for
recognition ; so only the CIO was making a claim on the Company, and the
strike, if it had occurred, would not have been one declared unlawful by the
California law. The CIO had not proved its majority yet, it is true., but it had-
not then been proved to be a minority union, either; so cases involving-strikes
by minority unions to compel recognition are not applicable. Before the Coin-,
pany's threat, the CIO had announced no official position on striking; there
were merely rumors or intimations of possibilities. It may be that the CIO
intended, if it favored a strike at all, to offer proof of majority in the form of
authorizations or otherwise before striking for recognition. The Company's
threat of discharge made no allowance for this. The Company argues that
employees who go on strike may be permanently replaced and that it is lawful
to inform employees that they may be replaced if they go on strike. In the
case of an economic strike this is true, but the Company was assuming the
risk that such a strike would be found to be an economic strike. Furthermore,
the language of the threat was not that the employees might be permanently
replaced ; it was that they would be permanently severed from the payroll,
with no qualification as to whether or not their jobs were filled during the
strike. Under the circumstances, I find that the Company's threat of July 5 to
discharge employees if they should go out on strike constituted a violation of
Section 8 (a) (1) of the Act.
31 River Falls Co-Operative Creamery, 90 NLRB 257.
Questioning about union membership , activities , and views has consistently been held
to be a violation of the Act . Standard ,Coosa-Thatcher Co., 85 NLRB 1358 ; Empire Pencil
Co., 86 NLRB 1187 . The Company argues that it had not authorized its supervisors to
make statements in violation of the Act and that even if such statements were made they
did not have a coercive effect. Both of these arguments are without merit. The Jeffrey
Manufacturing Company, 62 NLRB 21 . 2 ; N. L. R . B. v. Bird Machine Co., 161 F. 2d 589.
953841-52-vol. 94-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the Company, by the foregoing acts of interference through
Woods' and Enlund's exhortation of employees to join the AFL, particularly
where, as here, such exhortation coincides in time with coercive utterances,
aided and contributed support to the AFL in violation of'Section 3 (a) (2) of
the Act."'
(4) G. C. counsel's argument that the Company recognized one of two com-
peting labor organizations at a time when a question concerning representation
was pending is based on the. fact that the Regional Director had not issued his
report on the AFL's objections-to the election of June 29 until July 21 and that
in the meantime, on July 19, the Company entered into a contract with the AFL.
There might be more merit to this argument if the CIO had at that time, been
in a position to compete in a new election or if it had already tendered author-
ization cards as specific evidence of a majority interest. But at the time of
the recognition of the AFL on July 19 the CIO had made no such tender or
even a serious offer to submit such proof. Its claim to recognition was based
on its preelection status, unrevoked dues deduction authorizations, the "no" vote,
and its claim to a presumption of continued majority. I have found that this
type of proof.was not sufficient. If the objections had ultimately been sustained,
the result would have been a new election ; but it would be speculative to assume
that the CIO could have complied with Section 9 (f), (g), and (h) before the
date of a new election. If the AFL had withdrawn its objections, the CIO
would have had no cause to complain. And if the objections had been sustained,
the AFL might have withdrawn its petition and proved its majority by card
check instead of election. Any question concerning representation was one
only of whether the AFL or no union represented the employees. No question
was before the Board as to whether or not one of two competing labor organiza-
tions represented the employees ; so the CIO was not, at the time, in a position to
take advantage of the status of the proceedings on the AFL petition and
objections.
(5) G. C. counsel argues that after a union loses an election it may not be
recognized as the majority representative within a year following the date
of the election regardless of majority status. In support of this argument, he
quotes, among other things, Senator Taft's statement in the Congressional
Record, Senate, April 23, 1947, page 3954:
The bill also provides that elections shall be held only once a year, so that
there shall not be a constant stirring up of excitement by continual elections.
This is a loose quotation of the provision of Senate Bill 1126, which later became
Section 9 (c) (3) of the Act. The same type of misquotation appears in Senate
Report No. 105 on page 1126:
In order to impress upon employees the solemnity of their choice, when the
Government goes to the expense of conducting a secret ballot, the bill also
provides that elections in any given unit may not be held more frequently
than once a year 84
Senate Bill 1126 and Section 9 (c) (3) of the Act read :
No election shall be directed in a bargaining unit . . . within which, in the
preceding twelve-month period, a valid election shall have been held. . . .
The language of the Act is not ambiguous. Thus there is no occasion for resort
to legislative history. It is the Board'that is restrained from directing an elec-
33 Crosby Chemicals, Inc., 85 NLRB 791; Sioux City Brewing Co., 82 NLRB 1061.
3' This sentence follows a commentary on run-off elections and appears to have been
worded with reference to such situations.
MONOLITH PORTLAND CEMENT COMPANY 1395
tion. No restriction is placed on the voluntary conduct of employer and union.
If a union is lawfully chosen by a majority of the employees and the employer
is willing to recognize such union without a Board-ordered election, nothing in
the Act prevents such recognition.
(6) G. C. counsel in his brief argues that the following among other things are
evidence of violation of Section 8 (a) (2) of the Act:
a. "Monolith had categorically refused to bargain with Mine Mill and bad
informed all of its employees that Mine Mill `cannot be legally recognized or
dealt with by Monolith.' " On the facts of this case I find no violation; in this
evidence.
b. "Monolith, through Burnett, suggested to Cement Workers, through Burks,
a method by which the election results could be circumvented (i. e. presentation
of authorization cards)." I find no merit in this argument. Burnett told one
or two CIO members that if they would procure 200 signers he would give them
a contract. There is no reason why he should not have made the same statement
to AFL men.
c. "Monolith recognized Gypsum Workers on a hasty and inadequate compari-
son of signatures and the bare unsupported word of the Cement Workers' repre-
sentative." I find that the comparison of signatures was made in an adequate
manner, and I do not deem the time taken in the comparison to have been inade-
quate. It may be that as a result of the card check some of the cards that were
credited by the Company should have been rejected, but as pointed out before there
would have been a majority without them.
The term of the contract, about 5 years, subject to certain reopening privileges
is also claimed to be evidence of unlawful assistance to the AFL. Standing
by itself, the long term of the contract would be unobjectionable. The trend
nowadays appears to be toward longer contracts. But in any event under
Board policy a contract for longer than 2 years would be no bar to an election.
The term may indicate a desire to favor the AFL or it may indicate only a desire
for stable labor'relations.. Some of the favors bestowed upon the AFL by the
Company may have been without thought of special favor at the time, but the
very failure to consider the matter was in contrast to the rigid treatment accorded
the CIO and would in all probability have been looked upon by employees as
intentional support. In this category would be the Company's payment of em-
ployees on the AFL negotiating committee for their time spent during working
hours in gaining recognition and negotiating a contract. The election of officers
of the AFL occurred at the quarry parking space during or about the time of
the change in shifts just before 8 a. m. It is true that Woods tolerated it. It is
also true that he had not allowed campaign literature even to remain at the
quarry and had, at Oberg's instructions, removed not only the stacks of literature
apparently left for self-service, but also removed or ordered removed one from
the CIO's own bulletin board. The restriction on distribution of literature at
the quarry parking lot was, however, applied to the AFL as well as to the CIO."
So no partiality was shown in this respect. After the Company's recognition
of the AFL and the heat of the campaign cooled to some extent, Woods appar-
ently relaxed the reins. If there had been no question of assistance before
July 19, the permitting of the AFL election of officers on the quarry parking
lot would be too inconsequential to consider. Taken with other evidence of
favoritism by the Company it could influence employees to believe that the
Company would treat them better if they belonged to the AFL rather than the
CIO. As the CIO had not forsaken its contest for recognition at the time, the
35 On June 25, before the Board-conducted election, Woods reported to Oberg that Burks
had put AFL campaign literature in the parked cars at the quarry parking lot. Oberg
requested Burks not to do so.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation was not as if only one union were in the picture. Hence, I find that
this was evidence of assistance in violation of Section 8 (a) (2) of the Act.
I find also that the Company's censorial removal of the CIO leaflet from its
bulletin board constituted unlawful interference with the employees ' rights
in violation of Section 8 (a) (1) of the Act. By this I do not wish it to be under-
stood that I approve the contents of the 010 campaign literature . Some of it
would justifiably have aroused the resentment of company officials . But arbi-
trary, self-appointed censorship was not the proper remedy 38 The bulletin was
removed from the bulletin board during the term of the CIO 's contract, while
the CIO was the bargaining representative . The contract itself did not limit
the CIO's use of its bulletin boards. I do not regard the mere act of posting
printed matter on the bulletin board to be "activity" prohibited by the contract.
But if it were, there is no evidence that this activity occurred during working
time.
If Oberg had excluded Moran from the plant premises (except with his
permission ) at any time before the beginning of the union campaign , his ordering
him to leave the premises on June 7 might have looked less as though the reason
then was to prevent the dissemination of propaganda than to enforce his inter-
pretation of the contract. However, Oberg did deny Burks permission on July 16
to contact some of the AFL officers who were at work. The rule for excluding
not only union representatives but all persons not entering the premises for
the purpose of working unless permission was first obtained had been first pub-
lished by the Company in 1942 in a book of rules. This book was not being
currently distributed and the rule in question may not always have been assidu-
ously enforced, but it was supported by sound reason. One not present to work
could interfere with production and could also increase the accident hazards.
I judge that Oberg was rather sharp with Moran and his tone of voice may not
have been friendly, but I find no violation of the Act in his requiring Moran
to get advance permission to visit the men at work. The very next day the
Company granted Moran permission to investigate the grievance which he had
been talking to employees about on June 7.
The validity of the May 27 rule against distribution of literature and union
activities is raised . The Board has held that despite the general principle that
an employer may not prohibit union activities by employees on plant premises
during nonworking time such as rest periods or lunch periods, a union can
"effectively bargain away the employees' right to engage in self-organizational
activities on the employer's premises during nonworking hours." " But to
effectively bargain away such rights the contract should not be open to a con-
trary construction," for the Board is reluctant to deprive employees of any of
the rights guaranteed them. by the Act in the absence of a clear and unmistake-
able showing of a waiver of such rights.39 In this case, the contract barred
union activities during "working hours" only. The meaning of the words
"working hours" and "working time" as used in plant rules is not so well settled
to mean the respective employees' own working time and not the employers'
plant working time that no citation is required. Hence, the Company was not
justified in adopting a rule prohibiting such activities on the employees' own
time. The Company argues that special circumstances make. such a rule neces-
sary to maintain production and discipline. These special circumstances, the
Company argues, are to be found in the fact that between 70 and 75 percent
,' See Maryland Drydock Company , 88 NLRB 1305.
3T Fruitoale Canning Company , 90 NLRB 884.
38 Cf . North American Aviation , Inc., 56 NLRB 959, 963.
19 Tide Water Associated Oil Company, 85 NLRB 1096.
MONOLITH PORTLAND CEMENT COMPANY 1397
of the employees have paid lunch periods "spent in conjunction with their jobs,"
while the remainder have 30-minute staggered lunch periods. "Because most
of the jobs involve surveillance of machinery and equipment rather than routine
production functions," the Company argues, "the difficulty of determining who
is and who is not on one of the staggered lunch periods is great" and "to make
the rule at all effective and maintain production, the Company has had to pro-
hibit such activities even during this period for those relatively few employees
who do not have paid lunch periods." I see no such difficulty as the Company
suggests. All maintenance employees have a lunch period which is not paid for
by the Company. All production employees have a paid lunch period. The
foremen should know their own production employees, and, as the latter are
required to eat near their job locations it should not be difficult to know who is
and who is not on his lunch time. In order to keep production continuous, the
foremen would, where active machine operation is needed, as in Castillo's case,.
put on a relief operator. The regular operator in such instance is not expected
to work during lunch time even though the time is paid for. The foreman
thus would certainly know or could easily ascertain who is and who is not on
his lunch time. Of course, an employee on his lunch time would have no right
to interfere with employees who are working, but it is not difficult for a foreman
who is accustomed to day-to-day conduct to determine whether or not one em-
ployee has a legitimate right to interrupt another employee in his work, and,
if he is in any doubt, he may question the employees involved"0 And the fact.
that the employees are compensated for their lunch time is not alone sufficient
to warrant a prohibition of the exercise of rights guaranteed in Section 7 of
the Act 41
The Company further argues that the rule was proper because it did not dis-
criminate between the two unions. This argument is applicable in the instance
where a validly worded rule is adopted or enforced discriminatorily. That is
not the situation here. The fault here lies in the fact that the Company read
"working hours" as "plant operating hours" and therefore prohibited union activi-
ties at all times when the plant was in operation, which was generally 24
hours per day. It is not a question of discrimination between unions. It is a
question of interfering with the rights of employees guaranteed by the Act.
Although the contract does not contain words describing the area of prohibited
activity, the contracting union would not be understood to be bargaining away
the rights guaranteed in the Act everywhere in the world. The contract clause
would normally be construed to apply to the working areas or areas used in con-
junction therewith. That is normally the understanding.when such activity is by
rule restricted on "company property." But in view of the fact that the Company
here owns or controls such an extensive area, part of which is unoccupied, part
of which is occupied by the town site, and only part of which is occupied by the
plant and quarry, a more precise bounding of the areas of prohibited activities
in the Company's rule prohibiting union activity is desirable. Although the
second paragraph of the notice posted on May 27, 1949, mentions no limit on
area, however, I do not believe the employees would misunderstand its appli-
cation, for the words "Company premises" in the first paragraph are modified
by the phrase "whether at plant or quarry," and the second paragraph, quoting
40 Pure Oil Company , 75 NLRB 539.
41 "The mere fact that an Employer compensates his employees for lunch and rest
periods-however shgrt, and whether or not regularly, scheduled-during which they are
free to leave their places of work and assemble to eat and talk , does not justify him in
attempting to curtail their right to engage in concerted activities at such times." I. F.
Sales Company, 82 NLRB 137.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract verbatim, should be read in conjunction with the first paragraph
as applying to the same area, especially as "working hours" in the second para-
graph would necessarily mean hours that an employee puts in at the plant or
quarry. I find no violation therefore in the language of paragraph 2. But the
first paragraph contains no time limitation and, as already stated, the-second
was so interpreted by the Company. This timeless restraint not being justified
either-by the contract or by special circumstances, the rule against distribution
of literature and union activities at all times unduly interferes with the rights
guaranteed to employees in Section 7 of the Act. Even though the rule against
distribution here was not limited in terms to union literature, it was promul-
gated at a time when union literature was extensively being distributed and
obviously was directed at the distribution of union literature.'. The Company
argues in its brief that the rule was justified "to prevent interference with the
'efficiency of production and the littering of the plant premises, and to aid in
maintaining its cleanliness." I find that such was not the purpose here. There
was no evidence that it interfered with, production. Any scattering of.literature
followed after individual employees acquired possession of the leaflets. The evi-
dence indicates that one of the methods of distribution of literature on plant
premises followed by the CIO was to lay a stack of leaflets on a bench near the
time clock, presumably so that employees could help themselves. Oberg testified
that employees also distributed pamphlets during their lunch period. If the
employees thereafter threw away their leaflets, no more litter would result than
if they had received the leaflets on their way to work in the parking area, where
the Company did not prohibit distribution, and dropped the leaflets. after entering
the plant grounds. Oberg did not testify that cleanliness was a reason for his
posting the rule on May 27. He testified that the May 27 notice was posted be-
cause of a violation of an informal agreement he understood was reached on
May 5 that the unions would refrain from union activities including the dis-
tribution of pamphlets on plant premises. Any understanding reached on May 5
was informal and provisional on the AFL's refraining from like conduct. I
credit Moran's testimony that the AFL did not so refrain. Any agreement
reached on June S when Burnett was present was a result of a Hobson's choice
for the CIO. I find that by the promulgation of such rules with the interpreta-
tion of them verbally conveyed to the CIO committee, the Company interfered
with, restrained, and coerced its employees in the exercise of their rights. guar-
anteed in Section 7 of the Act. As this restraint was applied equally to the CIO
and AFL, I find no assistance to the AFL in this violation.
With regard to the seniority provisions in the July 1.9 contract between the
Company and the AFL a serious problem is posed. I have found that the words
giving AFL members special seniority rights were included as a result of an
oversight and careless neglect to eliminate the offending words. It was not,
as Company counsel argues, a typographical error. But the absence of wilful
intent to discriminate against nonmembers of the AFL cannot change the effect
of the publication of the contract in that form. Employees to whom mimeo-
graph copies of the contract were distributed could not be expected to know
the subjective intent of the contracting parties. To them the provisions meant
better seniority rights and promotions to AFL members. The natural tendency
of such a provision would be to induce employees to join the AFL and to dis-
courage membership in any other union. The correction of the language a month
or so after the distribution of copies of the contract to the employees was
not called to the employees' attention until. it appeared in the printed copies
of the contract which were distributed in February 1950. Then it appeared as
42 American Book-Stratford Press, Inc., 80 NLRB 914.
MONOLITH PORTLAND CEMENT COMPANY 1399
an amendment, separated in the booklet from the original improper clauses,
rather than as a correction of an error in the body of the contract itself. As-
suming that this manner of printing and distribution was adequate notice to
the employees without expressly directing their attention to the amendment,
the delay in publicizing the correction of an illegal preference clause is inex-
cusable. Such delay would further work to the advantage of the AFL and it
should have been known that it would. Accordingly, I find that the publicizing
of the illegal preference provisions and the protracted delay in publicizing a
correction thereof after discovery not only was per se a violation by the Company
of Section 8 (a) (3); but was also a violation of Section S (a) (1) and (2) of the
Act.43
The complaint charges the AFL with a violation of Section 8 (b) (1) (A)
and (2) of the Act. The Board has construed Section 8 (b) (1) (A) in the
light of the legislative history of the Act and has come to the conclusion that
this subsection was intended to eliminate physical violence, intimidation, and
threats of economic action by unions against employees." There is no evidence
here of such conduct by the AFL. "Nor is there any suggestion in the legislative
history of Section 8 (b) (1) (A) that `coercion' and `restrain' may be found
to flow automatically from a union's violation of Section 8 (b) (2) [even if
one were present here] where .. the efforts of the union were not directed
against a particular individual or group of individuals and constituted merely
an'attempt to cause the employer to discriminate within the meaning of Section
8 (b) (2)."' Although the inclusion of the illegal seniority provisions in the
July 19 agreement under the circumstances of this case might raise a suspicion
that they were directed at CIO members, I have found no evidence of a specific
intent on the part of the AFL to do this apart from the provisional union-shop
clause, which could not become effective until after a union-shop election. Con-
sistently with the Board's interpretation of Section 8 (b) (1) (A), I find that
the AFL did not violate that subsection.
Not only does no violation of Section 8 (b) (1) (A) occur from a mere attempt
to induce the employer to violate Section 8 (a) (3) of the Act, but an attempt
within the meaning of the Act must first be proved before it can be found that
a union has violated Section 8 (b) (2). The legislative history of the Act makes
it plain that "attempt" means something more than "to persuade or attempt to
persuade"-the words originally appearing in the original Senate bill and for
which were substituted "cause or attempt to cause.s46 In the cases in which
the Board has found a violation of Section 8 (b) (2) there has been some element
of pressure brought to bear upon the employer to consent to a clause in the
contract which would require a discrimination on the part of the employer." In
43 National Maritime Union of America, 78 NLRB 971, enfd . 175 F. 2d 686 , cert . den. 338
U. S. 945 ; Amalgamated Meat Cutters and Butcher Workmen, etc ., 81 NLRB 1052; Julius
Resnick., Inc., 86 NLRB 38 (8 (a ) ( 1) and (2) violation ) ; Pacific Maritime Assn.,
89 NLRB 894 ( complaint alleged violation of Section 8 (a) (1) but did not, as in the
instant case . allege that the mere execution of the illegal contract was a violation of
Section 8 (a) (3) of the Act).
44 National Maritime Union of America, supra, at pp . 982-6.
46 Ibid. pp. 985-6.
44 Congressional Record, Senate-June 5, 1947 , p. 6600. Senator Taft explained that
the reason for the change was that the "House conferees objected on the ground that it
seemed inconsistent with the provisions guaranteeing all parties freedom of expression."
Ibid.
47 Amalgamated Meat Cutters and Butcher Workmen, etc ., 81 NLRB 1052 ( strike for
illegal- closed -shop contract) ; National Maritime Union of America, 78 NLRB 971 (strike
for illegal closed-shop contract ) ; International Typographical Union, '86 NLRB 951
(threat to strike for maintenance of illegal conditions ) ; Fry Roofing Co., 89 NLRB 854
( threat of strike to compel discrimination).
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case at hand it does not even appear that the AFL persuaded or attempted
to persuade the Company to include the illegal clause. As far as the evidence
is concerned, the AFL's only affirmative part leading to the inclusion of the
illegal clause was the production of an old contract to serve as a basis for a new
one and the signing of the new agreement. There is no indication of any pres-
sure brought to bear upon .the Company to include the clause. The Company
voluntarily assumed the responsibility for preparing the draft, mimeographing
it as corrected, and distributing the mimeographed copies of the contract. I
therefore find that the AFL did not violate Section_ 8 (b) (2) of the Act as
contended.
The complaint does not allege and the brief of G. C. counsel does not contend
that the wage increase of July 1, 1949, constituted.a violation of Section 8 (a)
(1) of the Act by the Company. But assuming that it might have been in-
troduced in evidence under a general interference allegation, I find that it did
not constitute a violation of the Act. As the CIO was not proved on that date
to represent a majority of the employees, and as no other union then claimed
to represent them, the Company was free to give such raise, especially as it was
given in accord with the policy of meeting the rates of its competitors.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in Section III, above, occurring in
connection with the operations the Company described 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 and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Company has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Company unlawfully assisted and supported the
AFL both before and after the signing of the July 19 contract. It will there-
fore be recommended that the Company cease recognizing or in any other man-
ner dealing with United Cement, Lime, and Gypsum Workers, Local 291, AFL,
as the collective bargaining representative of any of its employees, unless and
until such organization shall have been certified as such representative by the
Board. It will further be recommended that the Company cease and desist from
giving effect to the July 19, 1949, contract with the AFL Union, or to any mod-
ification , extension , supplement , or renewal thereof, or to any superseding con-
tract with it, unless and until said organization shall have been certified by
the National Labor Relations Board.
The undersigned will recommend that the complaint be dismissed insofar as
it alleges that the Company discriminatorily withheld promotion from Florencio
Castillo , in violation of Section 8 (a) (3) of the Act. It will also be recom-
mended that the complaint be dismissed insofar as it alleges that the AFL Union
violated Section 8 (b) (1) (A) and (2).
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , the undersigned makes the following:
CONCLUSIONS OF LAw
1. Local 550, International Union of Mine, Mill and Smelter Workers, for-
merly affiliated with the Congress of Industrial Organizations , and United
MONOLITH PORTLAND CEMENT COMPANY 1401
Cement, Lime, and Gypsum Workers, Local 291, affiliated with the American
Federation of Labor, are labor organizations within the meaning of Section 2
(5) of the Act.
2. By assisting and lending support to United Cement, Lime and Gypsum
Workers, Local 291, AFL, the Company has engaged in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
3. By entering into a contract containing an unlawful provision for preference
of AFL employees, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Company has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5 . The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Company did not engage in an unfair labor practice by denying
promotion to Florencio Castillo in July 1949.
7. The AFL did not engage in unfair labor practices within the meaning of
Section 8 (b) (1) (A) or Section 8 (b) (2) of the Act.
[Recommended Order omitted from publication in this volume.]
JACK SMITH BEVERAGES, INC. and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, AND SOFT DRINK DISTILLERY WORKERS
OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANI-
ZATIONS and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL No.
164, PARTY TO THE CONTRACT. Case No. 7-CA-331. June 21, 1951
Decision and Order
On November 3, 1950, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
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 copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent and the
General Counsel filed exceptions to the Intermediate Report; and
Respondent and Teamsters Local 164 filed briefs.
The request for oral argument is denied, because the record and
briefs, in our opinion, adequately set forth the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
94 NLRB No. 210.