United Steelworkers and Local 586

National Labor Relations Board - Board Decisions

Jan 22, 1969

174 N.L.R.B. 189 (N.L.R.B. 1969)

UNITED STEELWORKERS AND LOCAL 586
United Steelworkers of America , AFL-CIO and its
Local Union No. 586, United Steelworkers of
America, AFL-CIO and Inspiration Consolidated
Copper Co., and Frank D . Burgess. Case
28-CB-431
January 22, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 2, 1968, Trial Examiner Howard Myers
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Charging Party filed exceptions to the Trial
Examiner's Decision and the Respondents filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.'
1. The Trial Examiner found, and we agree, that
the Respondents violated Section 8(b)(1)(A) of the
Act by refusing to grant Frank D. Burgess a pass to
work during the strike; threatening him with
violence in order to prevent him from working; and
maintaining picket lines and intimidating Burgess by
blocking his ingress to Employer's premises.
Contrary to the Respondents' contention, Burgess
was not required to continue his efforts to cross the
picket line until the consequences became quite
obvious and therefore, discretion would be the better
part of valor. The risking of life and limb is not a
condition precedent to finding a violation in such
circumstances.
Clearly, the presence of the pickets and their
statements to Burgess, in the circumstances herein
including the Respondent's disenchantment with
Burgess and their refusal to grant him a pass,
support the Trial Examiner's finding that Burgess
'The Respondent has excepted to certain credibility findings made by the
Trial Examiner . It is the Board's established policy not to overrule a Trial
Examiner ' s resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect We find no such basis for disturbing the Trial Examiner's
credibility findings in this case Standard Dry Wall Products Inc., 91
NLRB 544 , enfd 188 F 2d 362 (C.A. 3)
189
was unlawfully intimidated in his attempts to cross
the picket line to get to work.
2. The Trial Examiner also found, and we agree,
that the Respondents violated Section 8(b)(2) by
attempting to cause the Employer to discharge,
layoff, and otherwise discriminate against Frank D.
Burgess in violation of Section 8(aX3) of the Act.
However, we arrive at this conclusion solely for the
reasons stated herein.
The complaint alleged that the Respondents
discriminatorily refused to issue a pass to Frank D.
Burgess permitting him to cross the Respondents'
picket line for the purpose of attending work at the
Employer's Kiser-Pringle Pump Station, a facility
that continued to operate during the strike as a
result of a mutual agreement between Respondents
and the Employer; that commencing on or about
August 9, 1967, persons or individuals patrolling the
Employer's premises at Inspiration, Arizona, in
behalf of Respondents, refused to permit Burgess to
pass through their picket lines without a written
pass from the Respondents authorizing such ingress
to and egress from the Employer's premises; and
that Respondents' conduct was an attempt to
discriminate against Burgess because he was not a
member of Respondents' labor organizations.
As more fully set forth by the Trial Examiner,
Burgess had been a member of Miami Local No.
586, Respondents' predecessor, but had withdrawn
his membership in 1964 or 1965. On May 30, 1967,
Burgess executed an authorization entitled
"Assignment" that was tantamount to an
application for membership in the Union. At the
next meeting of the Union's executive board in early
June 1967, Burgess' application for membership was
tabled because, in the view of president Robert
Barcon, the executive board did not want Burgess to
know that it was eager to have him in as a member.
All attempts to move Burgess' admission to the
Union at subsequent general membership meetings
failed to carry. Thereafter, Burgess withdrew his
application for membership.
When the nationwide strike against the copper
industry was called on July 15, the Employer and
the Respondents agreed to operate certain facilities,
including the Kiser-Pringle pump stations. The
Employer also agreed to furnish a work schedule to
the Respondents containing the names of individuals
who would be permitted to work during the strike,
including pump station personnel. Burgess was
scheduled to work from 4 p.m. to midnight on July
15, at the Kiser station.
Barcon called MacDonald, the Employer's
director of industrial relations, on July 15 or 16, and
requested that Burgess be taken off the job because
he was not a member of the Union. When
MacDonald refused to remove Burgess because he
was part of the scheduled work crew, Barcon stated
he was not satisfied with the answer and that he
would discuss the matter with International staff
representative Schnaittacher. Schnaittacher called
174 NLRB No. 34
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MacDonald a day or two later and informed him
that Burgess should come off the schedule because
he did not belong to the Union. After MacDonald
reiterated the Employer's position, Schnaittacher
stated that the Union could not be responsible for
anything that may happen to Burgess. Schnaittacher
also stated that the Union objected to Burgess'
conduct in avoiding the picket line at the main
entrance of the pump station on July 16, by using a
private road and walking to the pump station.
On the first and second day of the strike Burgess
called MacDonald and said he was unable to get in
because of the large picket line at the pump station.
Burgess called again on the third day and asked
permission to take his 3 weeks vacation because, in
his view, he was not permitted to work and perhaps
the strike would be over when he returned. Although
Burgess was scheduled to return on August 9, he did
not return to work until October 4. Burgess called
MacDonald on the 11th of August and said he was
unable to get into the plant because of picket lines,
and he asked that his name be taken off the
schedule because he did not want the Employer.to
continue to double the shifts of certain employees as
it was not fair to the Employer. MacDonald
credibly testified that there were no pickets at the
pump station during the period of Burgess' vacation,
but that the pickets appeared for 3 days following
the date of his scheduled return from vacation.
Significantly, MacDonald observed no more pickets
at the Kiser pump station following Burgess' request
to be removed from the work schedule.
Burgess testified that he called the Union hall on
August 9, the day he was scheduled to return to
work, and asked Barcon for a work pass because
everyone else had one, but Barcon replied that he
had nothing to do with the case. Thereafter, Burgess
spoke to Schnaittacher and he stated that he
couldn't give Burgess a pass. Schnaittacher also
informed Burgess that he would not be responsible
for him if he went through the picket line.
On August 9, Burgess drove to the plant
approximately an hour before he was scheduled to
work, but drove away after parking and looking at
the approximately 10 pickets at the main entrance.
The next evening, August 10, Burgess, his son, and
a neighbor drove to the pump station entrance but
were unable to go through the cattle guard, and
entrance 8 feet wide, where five pickets were
stationed. Burgess parked the vehicle and walked
over to ask the pickets if he could go through. A
picket informed him that he would have to have a
pass, and that individuals without a pass would not
get through. Following Burgess' return home
because he couldn't get through the picket line, he
called the Employer and asked to be taken off the
work schedule.
The record indicates that there was no picket line
at the Pringle pump station, although one was
established at the Kiser station where Burgess
worked, that the picketing was discontinued while
Burgess was on vacation and started up again upon
his return, and that Schnaittacher, in a conversation
with MacDonald, stated that the Union was having
a peaceful strike and that Burgess was creating
problems.
In agreeing with the Trial Examiner's finding, we
emphasize that Barcon, in a telephone conversation
with MacDonald, requested that Burgess be taken
off the job because he was not a member of the
Union; that Schnaittacher also made a similar
request to MacDonald a day or two later; that
Schnaittacher refused to give Burgess a pass and
informed him that he would not be responsible for
him if he went through the picket line; and that
Burgess was unsuccessful in his attempt to cross the
picket line and was informed by a picket that
individuals without a pass would not get through.
In view of the foregoing, it is clear that at a time
when all of the other scheduled employees at the
Kiser facility were granted passes during the strike,
that Burgess was denied such a pass because he was
not a member of the Union. We are convinced that
Barcon and Schnaittacher's requests to MacDonald
to have Burgess removed from the work schedule
because of his lack of Union membership, was
tantamount to a request to discriminate. We find,
accordingly, that Barcon and Schnaittacher
attempted to cause MacDonald to discriminate with
regard to the terms and conditions of Burgess'
employment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondents, United
Steelworkers of America, AFL-CIO, and its Local
Union No. 586, .United Steelworkers of America,
AFL-CIO, their officers, agents, and representatives,
shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: This proceeding,
with the General Counsel of the National Labor Relations
Board (herein, respectively, called the General Counsel'
and the Board), United Steelworkers of America,
AFL-CIO (herein called the International), and its Local
Union No. 586 (herein called Local 586)2 being
represented by counsel, came on to be heard before the
duly designated Trial Examiner, at Globe, Arizona, on
April 9, 1968, upon a complaint, dated November 28,
1967, and issued that day by the General Counsel, for and
on behalf of the Board, through the Regional Director of
Region 28 (Albuquerque, New Mexico), and Respondents'
answer duly filed on December 18, 1967.
This term specifically includes counsel for the General Counsel
appearing at the hearing.
'Conjointly the International and Local 586 are referred to herein as
Respondents or as the Union.
UNITED STEELWORKERS AND LOCAL 586
The complaint, as amended at the hearing, based upon
a charge duly filed on August 31, 1967, by Frank D.
Burgess, alleged that Respondents, and each of them,
violated Section 8(b)(1)(A) and 8(b)(2) of the National
Labor Relations Act, as amended from time to time,
herein called the Act '
Upon the entire record in the case" and from his
observation of the witnesses, the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS OPERATIONS
Inspiration Consolidated Copper Company is, and
during all times material has been, a Maine corporation,
with authority to do business in the State of Arizona.
At all times material, the Employer has maintained its
principal offices and place of business at Inspiration,
Arizona, where it has been engaged in, and is engaging in,
the mining and milling of copper ore.' During the
12-month period immediately preceding the issuance of
the complaint herein, the Employer's out-of-State
purchases of equipment, supplies, and related goods and
materials exceeded $50,000 in value. During the aforesaid
period, the Employer's out-of-State shipments of mined
and milled copper exceeded $50,000 in value.
Upon the basis of the foregoing facts, the Trial
Examiner finds, in line with established Board authority,
that the Employer is, and at all times material has been,
engaged in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that its
business operations meet the standards fixed by the Board
for the assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The International and Local 586 are labor
organizations admitting to membership employees of the
Employer.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
For many years the Employer and the International
Union of Mine, Mill and Smelter Workers for itself and
3Specifically, with respect to the unfair labor practices, the complaint, as
amended at the hearing , alleged, in substance , that during an economic
strike against Inspiration Consolidated Copper Company (herein called the
Employer), Respondents violated the above referred to sections of the Act
by (1) discriminatorily refusing to issue a written pass for the purposes of
attending work to Frank D. Burgess, the Charging Party, because he was
not a member of the Union, (2) not permitting Burgess to cross the union's
picket line without such a pass , and (3) causing or attemting to cause the
Employer to unlawfully discriminate against Burgess in employment
because Burgess was not a member of the Union -
4Including the briefs filed by the General Counsel and by Respondents'
counsel on June 3, 1968, which briefs have been carefully considered.
Under date of May 13, 1968, the General Counsel filed with the Trial
Examiner a motion, together with proof of service of copies thereof upon
the other parties, to correct certain inaccuracies appearing in the
stenographic transcript of the hearing . The motion is hereby granted and
the motion papers are recieved in evidence as TX Exh 1.
'The employees of the Inspiration , Arizona, facilities are the only bnes
here involved
191
on behalf of Miami Miners Union, Local 586, have had
collective-bargaining agreements covering the employees
in the units designated in the various Board's Decisions
and Certifications of Representatives issued, as of October
19, 1942, January 9, 1943, April 4, 1957, and June 12,
1961.
The latest collective-bargaining agreement between the
Employer and the above-mentioned labor organizations
covered the period from October 15, 1964 until June 30,
1967.6
On July 1, International Union of Mine, Mill and
Smelter Workers merged into United Steelworkers of
America, AFL-CIO, and simultaneously Miami Miners
Union Local No. 586 merged into Local 586 of the
United Steelworkers'
On July 15, Respondents and six other labor
organizations called a nationwide strike against the copper
industry, at which time picket lines were established at the
mines and plants of the employers involved, including
those of the Employer.'
When the strike referred to immediately above became
inevitable, Respondents and certain other labor
organizations involved in the strike agreed orally with the
Employer that they would maintain men at the
underground operations of the Employer's Christmas,
Arizona, mining and milling facilities. Respondents and
the other labor organizations striking the Employer also
agreed orally to maintain men at the Employer's
Inspiration, Arizona, Kiser-Pringle pump station (herein
called pump station) in order to provide for continued
functioning of the Inspiration mining and milling
operations.' In turn, the Employer agreed orally to supply
the unions involved with the work schedules of the men to
be used during the strike in the aforesaid operations.'°
Pursuant to the aforesaid oral agreements the Employer
furnished Respondents and to the other striking labor
organizations involved with schedules of those who were
to work during the strike. All changes in the schedules
were also submitted to the labor organizations involved,
including the schedules of those employed at the pump
station
When the strike began on July 15, the seven striking
labor organizations established a joint picket line at the
main entrance of the Employer's Inspiration, Arizona,
premises, which entrance is located on J.S. Highway
60-70.
B. The Pertinent Facts
Frank D. Burgess, the Charging Party, has been in the
Employer's employ since 1948. For the past 16 years he
had been working at the pump station.
In 1961 or in 1962, Burgess became a member of
Miami Local No. 586 and for a time was one of its shop
'All dates hereinafter mentioned refer to 1967 , unless otherwise noted
''The record is silent as to whether Respondents formally adopted,
succeeded to, or were bound by the aforementioned 1964-67 agreement on
and after June 30 However, the record does disclose that the Employer
bargained with Respondents as the collective-bargaining representative of
the employees covered by said agreement until the commencement of the
strike on July 15
'The strike ended on March 26, 1968
'Said pump station provides electrical power and water to the
Inspiration facilities, including the fire safeguard equipment, the domestic
water requirements of the surrounding area, and the homes of the
employees
"Similar arrangements for the operation of these facilities had been
made during past work stoppages.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stewards. In 1964 or 1965 he withdrew his membership
from said organization."
Under date of May 30, 1967, Burgess executed an
authorization directed to the Employer bearing the legend:
Authorization for Checkoff of Union Membership
Dues, Initiation Fees, and Uniform Assessments
The first paragraph of the authorization reads:
I hereby assign to Local Union No. 586,
International Union of Mine, Mill and Smelter
Workers, Miami, Arizona, and authorize and direct
you to deduct from my wages such amounts as the
Financial Secretary of said Union may certify to you in
writing from time to time as due and owing by me for
regular monthly membership dues, initiation fees and
uniform assessments, and to remit the amounts so
deducted to the Financial Secretary of the Union...."
The aforesaid authorization, which, incidentally, is
headed "Assignment," and bears the signature of Ladislo
Garcia, a then union steward, as witness, was submitted to
the Union's executive board for its approval in the
forepart of June by either Garcia or by some other union
member.':
At the first executive board meeting after the Burgess
authorization had been submitted for approval, which
meeting was chaired by the local's president, Robert
Barcon, the board decided to table Burgess' request for
readmission into Miami Local No 586, "because," to
quote Barcon's testimony, "[we] didn't want Frank
[Burgess] to know we were anxious to have him in as a
member.. .""
At the meeting of the local's general membership'
which immeidately followed the conclusion of the meeting
of the executive board, referred to immediately above, the
membership was informed that the executive board had
taken no affirmative action with respect to Burgess'
application for readmission to the Union, but had decided
to table consideration of the matter. The membership then
voted to table Burgess' application.
"The record establishes , and the undersigned finds, that Respondents
and/or their predecessors have been the collective-bargaining
representatives for the Employer' s employees here involved since about
October 19, 1942.
"The State of Arizona has a statute commonly referred to as a "Right
to Work Law" In those States having such a statute , a union member
executes a "wage assignment " authorization instead of the customary
"check off" authorization if said person wants his employer to check off
his union membership dues
Apparently, the submission of a "wage assignment" authorization
executed by a unit employee to the executive board of the International
Mine, Mill and Smelter Workers, Miami Local No. 586 , was tantamount
to applying for membership therein
"The record discloses that the same members of the executive board
were piqued at Burgess ' withdrawal from Miami Local 586 in 1964 or in
1965 Barcon stated in his undated written statement given to a Board
agent, "Burgess voluntarily withdrew from the Union during an escape
period He got mad about an attempt to change the rules concerning the
working schedule of a particular crew."
"The procedure followed by Miami Local No 586 with respect to an
application for membership therein was The executive board would
consider the application at its first meeting following the submission of the
appliation , then the board would announce to the membership at the
general membership meeting which immediately followed the conclusion of
the executive board's meeting , what the board's recommendation was with
respect to the applicant's request for membership , and then the
membership would , at said meeting or at some subsequent meeting, pass
upon the application
At the next regular membership meeting, which took
place about a week later, a member moved, and the
motion was seconded by another member, that Burgess be
admitted to the local. During the course of the discussion
which then ensued, "Some officers or members,"
according to the aforementioned Barcon's prehearing
undated written statement, "said we should make him
[Burgess] sweat a little more, so the member withdrew his
motion [to admit Burgess into Miami Local No. 586] and
the second was [also] withdrawn."
After the close of the above referred to meeting Garcia,
the person who had submitted Burgess' "wages
assignment," or some other member, told Barcon that
Burgess desired to withdraw his authorization Thereupon
said authorization was torn up.
A day or two before the strike commenced, the
Employer furnished the striking unions the work schedules
of those who were to do maintenance work during the
strike, including the work schedules of the pump station
personnel. These lists disclosed that Burgess was to work
from 4 p.m. to midnight on July 15.
On the day the strike commenced or the following day,
Barcon, who was then president of Steelworkers Local
586, telephoned Duncan MacDonald, the Employer's
director of industrial relations, and asked that Burgess be
taken off the job because he was not a Union member.
MacDonald refused Barcon's request on the ground that
Burgess was a part of the regular pump station work crew
and his name was on the work schedule previously
submitted to the striking labor organizations. Barcon,
after indicating his dissatisfaction with MacDonald's
decision, stated that he would take the matter up with
Sylvan Schnaittacher, a United Steelworkers staff
representative, and that MacDonald would hear from
Schnaittacher.
When Burgess passed through the main entrance,
located on U.S. Highway 60-70, at about 2:30 p.m. on
July 15, en route to his job at the pump station,15 there
were no Union pickets stationed there. However, at about
6 o'clock that evening, Burgess had an occasion to drive a
company truck near the aforementioned entrance, at
which time he saw about four men sitting in the driveway
of said entrance near a sign bearing the legend, "586
Local."16 When Burgess returned about 10 minutes later,
the men and signs were still there. In fact, pickets were
still at the said entrance when Burgess passed through at
the conclusion of his shift that night.
The next day, July 16, Burgess was scheduled to again
work the 2:30-10 30 p.m. shift. Instead of proceeding to
the pump station through the main entrance, as was
Burgess' custom, he had his son drive him to a private
road, referred to in the record as the country club road '17
and then walked to his appointed work area. At the end
of his shift that night, Burgess left the plant via said
private road. Neither going to nor upon leaving work did
Burgess see any Union pickets. In fact, Burgess' purpose
in using this unusual route to go to and to leave work was
to avoid the possibility of encountering any Union pickets.
On July 16 or 17, Schnaittacher telephoned
MacDonald. The latter testified that this conversation was
similar in nature to his July 15 or 16 conversation with
Barcon in that Schnaittacher requested Burgess' name be
removed from the work schedule because Burgess was not
"At that time Burgess was on the 2.30- 10 30 p.m shift.
"The fact that these men were Respondents ' pickets is not disputed
"This private road , which branches off U.S Highway 60-70, is adjacent
to the famous Apache Trail
UNITED STEELWORKERS AND LOCAL 586 193
a Union member and his reply that the Company did not
intend to comply with said request and that Schnaittacher
then remarked, "The Union could not be responsible for
anything that may happen to Burgess ... [and] the Union
had objected to [Burgess] going across the field" going to
and upon leaving work."
On July 17 or 18, Burgess telephoned, MacDonald
stating that he was afraid to cross the Union's picket line
and therefore thought it advisable for him to immediately
take the 3 weeks' vacation due him because "anything
could happen [to him] on getting through the picket line"
and, moreover, the strike might be over before he returned
from his vacation. MacDonald agreed that it was a good
idea for Burgess to go on vacation then.
During the period of Burgess' vacation," which lasted
from July 19 through August 6,20 Respondents had no
pickets at the entrance customarily used by the pump
station employees."
According to Burgess' schedule his first work
assignment upon his return from vacation was to be the
August 9 graveyard shift (midnight to 8 a.m.).
Shortly before reporting for work on Wednesday,
August 9, Burgess called the Union hall and asked to
speak to Barcon.22
Regarding the above referred to telephone conversation,
Burgess testified that he asked Barcon for a pass to go
through the picket lines in order to go to work; that
Barcon replied, "he had nothing to do with [Burgess']
case, it [had been] turned over to the International, to Mr.
Schnaittacher"; that he then asked to speak to
Schnaittacher, that when Schnaittacher came to the
telephone he inquired "about the business of my [Union]
application"; that when Schnaittacher replied he knew
nothing about it, he asked for a pass to go through the
picket lines in order to go to work; that Schnaittacher
said he could not give him one; that when he said "I'm
going to the Labor Board," Schnaittacher said, "once it's
in the Labor Board that will be the end of it"; and the
conversation ended when Schnaittacher remarked, to
quote Burgess, "He would not be responsible for me if I
went through the picket line."
Schnaittacher testified on direct examination by the
General Counsel, that during the aforementioned August 9
telephone conversation with Burgess, after telling Burgess
that he would not get a pass because passes were only
given to Union members so that the pickets would know
that those members showing passes were working behind
the picket lines with the Union's permission he told
Burgess, "I could not guarantee what might happen to
him off the job and, specifically, I said to him, as nearly
as I can recall, something to the effect that if he acted as
he used to and mouth off at the bar, I couldn't be
responsible for somebody taking a poke at him, but we
were not going to interfere with him going to work"; that
he also told Burgess that Burgess "was free to go to work
when he was scheduled, and if he went he would have to
"Referring to Burgess using the country club road on July 16.
"Incidently, Burgess did not leave town during this vacation period
"Burgess was not scheduled to work on July 17 or on July 18. In fact,
Burgess ' work schedules show that he would have worked had he not gone
on vacation on July 19, from said date through July 23, from July 26
through July 30; from August 2 through August 6, with the intervening
dates as regular scheduled days off.
"The fact that a picket line was placed at the entrance used by the pump
station employees only when Burgess was scheduled to work is not
disputed by Respondents.
"Miami Local No 586 held their regular executive board and weekly
membership meetings on Wednesday evenings.
go through the picket line but no one at the picket line
would molest him"; that he also said "it was the position
in [of] the Union that we prefer him not to go to work,
that we preferred that only members should work with our
passes, but this matter was not under our control because
the company had scheduled him and that we were not able
to change the position of the company and that if he went
he would not be interfered with"; and that when Burgess
stated that he had tried to become a member of the Union
and the Union refused him membership, he replied, "I
said that was not my concern, I didn't know anything
about it, that it had no bearing on the matter at hand."
During the course of his examination by counsel for
Burgess, the Charging Party herein, Schnaittacher testified
as follows:
Q. (By Mr. Petica) Mr. Schnaittacher, referring your
recollection to the telephone conversation that you had
with Mr. Burgess, did you advise Mr. Burgess that, "If
he insisted on going to work as scheduled, there would
be no violence, although he knew the members did not
like him to go and he should understand we would not
make him any guarantee of what might occur if he did
go to work." Did you tell that to Mr. Burgess or words
to that effect?
A. Something along that line
Q. And you also advised him that, "The Union
would not engage in any violence toward him, but we
were not responsible for other people'
A. I think that is essentially what I told him, but it
was coupled, of course, with remarks to the facts of his
behavior in general , in the town, if it led him to getting
in fights and so on, this would be his problem, in fact, I
advised him to kind of behave himself and not go out
looking for trouble.
Upon the entire record in the case, coupled with the
fact that Barcon and Schnaittacher each gave the Trial
Examiner the distinct impression that he was studiously
attempting to conform his testimony to what he
considered to be to the best interest of Respondents,
while, on the other hand, Burgess impressed the
undersigned as being a sincere and forthright witness, the
Trial Examiner finds that Burgess' versions of what
transpired during his aforementioned telephone
conversations with Barcon and Schnaittacher to be
substantially in accord with the facts. Moreover,
MacDonald, not only was a credible witness but, in
addition has no personal interest, nor stake, in the
outcome of the proceeding, substantiated, in the main,
Burgess' testimony whenever his testimony bore directly
on matters pertaining to Burgess ' controversy with
Respondents thereby giving credence to Burgess' entire
testimony.
William Manues, Jr., testified under direct examination
by the General Counsel, and the Trial Examiner finds,
that he has been working for the Employer for about 12
years; that at the time of the hearing he was a Union
member working at the Employer's Christmas, Arizona,
facilities; 23 that he attended the Union's August 9 general
membership meeting;2 1 that during the course of said
meeting, Barcon , who chaired the meeting and which was
attended by Schnaittacher, various union officers, and
various executive board members, announced, to quote
"These facilities are located about 30 or 35 miles from the Employer's
Inspiration operations
"While Manues did not specifically place this meeting as having been
held on August 9, the record clearly indicates , and the Trial Examiner
finds, that he was referring to the meeting held on said date
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manues, "They had a special picket out they wanted
pulled, they wanted volunteers"; that Barcon also stated in
his announcement that this special picket duty was for
that night only; that he and about 9 other members
volunteered to do the requested special picket duty;25 and
that at the conclusion of the aforementioned membership
meeting the appropriately ten volunteers went into a
private office with Barcon, some other union officers, and
Schnaittacher. According to Manues' credited testimony 16
the following transpired at the aforesaid private office
meeting.
Q. To the best of your recollection, tell us what was
said at that time when the group of volunteers went in
to speak with the Union representatives?
A. Well, I heard someone was breaking the picket
line and they told - asked if we would go but they
didn't want no violence.
Q First tell me who spoke, we have to identify the
speaker who said that. You mean Mr. Barcon?
A I'm not sure.
Q. Could you begin again and tell us what, to the
best of your recollection, what he said?
A. He heard he was going to have some picket line
breakers and they wanted someone to stand watch there
but they didn't want no violence whatsoever.
Q. Did they say who the picket line breaker would
be?
A. I never heard them say who it was.
Q. Was any reference made to passes during that
discussion or conversation?
A. If they had passes, let them through.
Q. If they didn't have passes?
A. Try to stop them but with no violence.
Regarding the events which transpired after the August 9
general membership meeting the credited evidence
establishes that beginning at about 9:30 or 10 o'clock that
night, Union pickets were stationed at all entrances
leading to the pump station, including at the entrance
leading to the aforementioned private country club road;
that Manues and three or four other Union members
picketed the entrance leading to said private road for
about 3 hours; that Schnaittacher also picketed at the
entrance to said private road from about 9 or 10 p.m.
until, as he testified, "sometime not too long before
midnight"; and that while the private road entrance was
being picketed, the following occurred, to further quote
Schnaittacher, "Someone said, `There goes Burgess,' and
pointed to a pickup truck driving past."
Burgess, as noted above, was scheduled to work on the
August 9-10 graveyard, -midnight-8 o'clock shift. At about
11 p.m., Burgess drove toward the pump station main
entrance preparatory to going to work. As he approached
said entrance, Burgess saw about 10 or 11 pickets there
and about five or six automobiles in the vicinity thereof.
Thereupon, Burgess turned his car around, parked across
the highway from the aforesaid entrance for 3 or 4
minutes, and then "drove on."
The next night, August 10, Burgess' son , Terry, drove
Burgess and a Mr. Negarri, a coworker of Burgess as well
as a neighbor, to the main entrance leading to the pump
station. As young Burgess drove to the said entrance,
"The record does not disclose whether this announcement was made by
Barcon before or after he and Schnaittacher had their telephone
conversations that night with Burgess
"Manues , although called by the General Counsel, appeared to the Trial
Examiner to be a very reluctant witness
Burgess saw live pickets and a picket sign reading, "Local
586 on strike." Because the pickets were standing in the
entrance driveway it was physically impossible for young
Burgess to drive the car into the plant. Under the
circumstances, in order to report for work it was
necessary for Burgess to get out of the car near the
aforesaid entrance. As Burgess approached the entrance,
he said to the pickets, to quote from his credited
testimony, "I'd like to get through to go to work." When
one of the pickets replied, "You have to have a pass,"
Burgess replied that he had none. Burgess then left the
plant entrance and went home after said picket remarked,
"Nobody has a pass is not getting through." 27
On August 11, Burgess telephoned MacDonald and said
he was unable to go to work because of the picket line
and asked that his name be removed from the work
schedule because he thought it was unfair to the company
to have to continue to "double over" people .21
On August 31, Burgess filed a charge with the Board
which is the basis of the complaint of the instant
proceeding.
On or about October 17, the parties herein entered into
a temporary settlement agreement and Burgess returned
to his normal work schedule at that time. Subsequently,
for reasons apparently not here pertinent, Respondents
withdrew from said agreement.
C. Concluding Findings
The Trial Examiner is convinced, and finds, upon the
entire record in the case, as epitomized above, that
Respondents, and each of them, violated Section
8(b)(1)(A) and (2) of the Act.
It is true, as MacDonald testified, that a pass was not
necessary before a man was permitted to work and it is
equally true that on July 15 and on July 16, Burgess did
work without first securing a union pass. The fact,
however, remains that on July 15, there were no pickets at
the main entrance which Burgess and the other pump
station personnel normally used to go to and from work
and that on July 16, Burgess proceeded to his work area
via the private country club road in order not to encounter
the pickets stationed that day at the entrance normally
used by the pump station personnel going to and from
work. It thus follows that Respondents' contention, as
expressed at the hearing and in their brief, that they had
"every right" to put up a picket line "against" Burgess or
to refuse him a pass because the picket line was
established only "when Burgess was scheduled to work not
because Burgess had no pass but because he was not a
member of the Union" is not only belied by credited
evidence but is without merit or substance 29
='Burgess' testimony regarding this August 10 incident is uncontradicted
:"`Double over" means the employee on a preceding shift works two
consecutive shifts
"It is significant to note at this juncture the credible and undemed
testimony of Manuel' nephew, William Hughes , who testified that he has
been a pump station employee at the Inspiration facilities for over 11 years
and has been a member of Respondents and/or their predecessors for
about 4 or 5 years, that about 2 months ago he tendered his resignation to
Respondents , that during the conversation, which took place about the
third week of August 1967, he had with two of his uncles, William Manues
(a witness referred to in this Decision ) and Jesse Manues, wherein William
Manues said that he and some other pickets had been "picketing the pump
station" and had been "patrolling the Apache Trail and also the field" on
a certain Wednesday night, and the pickets were not "going to let Frank
Burgess go to work and if somehow he did get to work he would probably
be pulled off." The only time William Manues did picket duty was on
Wednesday, August 9, at which time he picketed at the private country
club road which is adjacent to Apache Trail
UNITED STEELWORKERS AND LOCAL 586
Furthermore, the fact that Respondents and the
Employer had agreed orally before the commencement of
the strike that Respondents should man the pump station,
did not, as the General Counsel pointed out in his brief,
"clothe Respondents with immunity with regard to their
refusal to issue Burgess a pass because of his
non-membership in Local 586 [footnote omitted], when its
object was to prevent Burgess from going to work That
the real object of the Union's refusal to issue Burgess a
pass is revealed by the fact that the only significance the
work pass had was to alert pickets at the Kiser Pump
Station to keep Burgess and other employees without
passes from going to work [footnote omitted]."
By such actions, the Trial Examiner finds that
Respondents restrained and coerced Burgess in the
exercise of the rights guaranteed in the Act by refusing to
issue him a pass because he was not a Union member.
This finding becomes inescapable when consideration is
given to the fact that by refusing Burgess a work pass,
Respondents, in effect, signaled the pickets stationed at all
entrances to the pump station not to allow Burgess to go
to work.
It also should be borne in mind that Respondents'
officials, at least some of them, were disturbed because
Burgess resigned from Miami Local No. 586 in 1964 or
1965 or because he would "mouth off" at the local bars
about the Union, and that this unpleasantness was a real
factor in the Union's refusal to permit Burgess to regain
his membership in Miami Local No. 586 and thus
Burgess ' inability to get a pass during the strike prevented
him from working his scheduled hours.30
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with business operations of
the Employer as 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
It having been found that Respondents had engaged in
certain unfair labor practices violative of Section
8(b)(1)(A) and (2) of the Act, it will be recommended that
Respondents take certain affirmative action to effectuate
the policies of the Act.
Counsel for the Charging Party requested on the record
that the Trial Examiner award Burgess backpay and other
monetary compensation as a result of Respondents' illegal
conduct.
Under established Board precedent, a labor
organization may be required to pay backpay only where
it causes an employer to unlawfully discriminate against
an employee. Colonial Hardwood, 84 NLRB 563. In the
instant case, Respondents attempted to cause the
Employer to discriminate against Burgess. However, the
Employer did not accede to this request by the Union and
did not in fact discriminate against Burgess, so there was
"The legislative history of Section 8(b)(A)(1) and (2) demonstrates that
one of the major purposes of these sections was to eliminate the very
practices here engaged in by Respondents including the prevention of a
person from going to work because "the union does not like him."
(Statement of Senator Taft, 93 Cong Rec. 3836, 4191.)
195
no "causation" within the meaning of the Act. The Union
did, in fact, prevent Burgess from going to work by
threats and picketing which were violative of Section
8(b)(1)(A) of the Act. The Board has held that under such
circumstances the employee involved is not entitled to
backpay. International Union of Operating Engineers,
Local 513 (Long Construction Company), 145 NLRB 554,
555.
In order to make effective the interdependent guarantee
of Section 7, to prevent a recurrence of unfair labor
practices and thereby minimize industrial strife which
burdens and obstructs commerce and thus effectuate the
policies of the Act, the Trial Examiner will recommend
that Respondents cease and desist from in any manner
infringing upon the rights of the employees of the
Employer guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Inspiration Consolidated Copper Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act -
2. Respondents are labor organizations within the
meaning of Section 2(5) of the Act
3. By refusing to grant Frank D. Burgess a pass to
work during Respondents' strike against the Employer; by
threatening Frank D. Burgess with violence in order to
prevent him from working; by establishing and
maintaining picket lines solely for the purpose of
preventing Frank D. Burgess from working and in order
to intimidate him, by blocking Frank D. Burgess' ingress
to and egress from the Employer's premises; by refusing
to permit him to cross the Respondents' picket lines; by
engaging in all of such conduct because the said Frank D.
Burgess was not a member of Respondents' labor
organization, and for other irrelevant, invidious and unfair
reasons, Respondents restrained and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act,
and have engaged in, and are engaging in, unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
4. By attempting to cause the Employer to discharge,
lay off, and otherwise discriminate against Frank D.
Burgess in violation of Section 8(a)(3) of the Act,
Respondents have engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8(b)(2) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, the Trial Examiner recommends that
United Steelworkers of America , AFL-CIO and its Local
Union No. 586, United Steelworkers of America,
AFL-CIO, their respective officers , representatives,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to issue to Frank D. Burgess or to any
other person a work pass to which they are entitled to
under the Act.
(b) In any manner causing or attempting to cause
Inspiration Consolidated Copper Company , Inspiration,
Arizona, to discriminate against its employees , including
Frank D . Burgess, in violation of Section 8(a) of the Act.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Restraining or coercing employees of Inspiration
Consolidated Copper Company, in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted, activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at their respective business offices and at any
other place where they customarily post notices to their
members, copies of the attached notice marked
"Appendix."31 Copies of said notice, on forms provided by
the Director for Region 28, shall, after being duly signed
by a duly authorized representative of each Respondent,
be posted immediately upon receipt thereof, and
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where
Respondents customarily post notices to their respective
members. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Director for Region 28, in writing, within
20 days from the date of this Order, what steps have been
taken to comply herewith.32
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals enforcing an Order " shall be substituted for the words "a Decision
and Order"
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 28 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED STEELWORKERS OF
AMERICA, AFL-CIO, AND ITS LOCAL UNION No. 586,
UNITED STEELWORKERS OF AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Inspiration
Consolidated Copper Company, its officers, agents,
successors , or assigns , to discriminate against any of its
employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT restrain or coerce employees of
Inspiration Consolidated Company, its officers, agents,
successors , or assigns , in the exercise of the rights
guaranteed in Section 7 of the Act, or in their right to
refrain from all or any such concerted activities.
UNITED STEELWORKERS
OF AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
LOCAL UNION No. 586,
UNITED STEELWORKERS
OF AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Resident Office, Room 207
Camelback Building, 110 West Camelback Road,
Phoenix, Arizona 85013, Telephone 261-3717.