Sunset Minerals, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1952

100 N.L.R.B. 1457 (N.L.R.B. 1952)

SUNSET MINERALS, INC. 1457
and the employees have been newly hired. There is no integration
between this new plant and the Employer's old plant, no interchange
of employees between the two plants, and each plant is under separate
immediate supervision. The employees in the two plants possess
substantially different skills. We find that a unit limited to the
employees of the Intervale plant may therefore be appropriates
However, as the two plants are located in the same community, about
.) miles apart, have common office services and facilities, are under
the same general supervision, and are subject to the same over-all
direction of labor relations policies, a unit of both plants as desired
by the Intervenor may also be appropriate.4
Accordingly, we shall direct an election in a voting group composed
of all the employees at the Employer's Intervale plant at Detroit,
Michigan, excluding office clerical employees,,, professional employees,
guards, and all supervisors as defined in the Act.
If a majority of these employees vote for either of the two petition-
ing Unions, they will be taken to have indicated their desire to be
represented by such union in a separate unit, and the Regional
Director conducting the election herein is instructed to issue a
certification of representatives to such union for a unit composed of
employees at the Intervale plant, which the Board, under such circum-
stances, finds to be appropriate. If a majority of these employees
vote for the Intervenor they will be taken to have indicated their
desire to be represented, together with the employees of the John R.
plant, in a two-plant unit, and the Regional Director will issue
a certification of results of 'election to such effect.
[Text of Direction of Election omitted from publication in this
volume.]
' Wilson Athletic Goods Manufacturing Co , Inc., 95 NLRB 892.
Phillips -Jones Corporation, 96 NLRB 153.
' The Petitioner in Case No . 7-RC-1883 apparently requests the inclusion of plant
clerical employees . As the Board has held that plant clerical employees properly belong
in a production and maintenance unit, we shall include them . National Cash Register
Company, 95 NLRB 27.
SUNSET MINERALS, INC. amd INTERNATIONAL UNION OF MINE, MILL
& SMELTER WORKERS, LOCAL 18. Case No. 19-CA-516. October 10,
1952
Decision and Order
On March 3, 1952, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
100 NLRB No. 241.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications :
1. The Union has since 1947 been the recognized bargaining repre-
sentative of the Respondent's employees. On May 30, 1951, the finan-
cial secretary of the Union submitted to the Respondent on behalf of
the employees a list of 16 grievances, relating principally to safety
conditions and sanitary conditions in Respondent's mine. Two of the
employees, Carroll and Utz, had played a prominent part in formulat-
ing and preparing this list of grievances, and Carroll had previously
discussed various grievances with management at the instance of other
employees. A number of the grievances on the list submitted by the
Union related to particularly hazardous conditions in the mine, created
by undue exposure of the employees to explosives. While the Respond-
ent on June 2 and 3 took steps to correct some of the more easily reme-
died conditions, one of Respondent's supervisors, as found by the Trial
Examiner, informed an employee that no action would be taken on any
of the grievances except those relating to lack of toilet facilities. To
impel action on all the grievances, a number of employees, including
Carroll and Utz,-concertedly absented themselves from work on June
4.1 As found by the Trial Examiner, management knew on June 3
chat such a strike was contemplated.
When the employees returned to work on June 5, 5 of the 20 em-
ployees who had been absent on June 4 were discharged, allegedly for
not complying with a company rule requiring advance notice of
absence or, failing that, a satisfactory explanation of such absence.
Carroll and Utz were among those discharged. The other employees
in the mine immediately struck in protest against these discharges.
This second strike was settled on June 18 through negotiations between
the Union and the Respondent, the latter agreeing to reinstate 3 of
the dischargees.
2. Like the Trial Examiner, we find that the Respondent on June 5,
1951, discharged five of its employees for engaging in the strike of
I On the same day, the Respondent 's general manager called the Union 's financial secre-
tary by phone to arrange an initial conference on the grievances . It does not appear
from the record whether the general manager , at the time of this call , knew that the
strike had actually taken place, although he was informed that the strike was scheduled
for that day . Nor is there any evidence that the strikers on June 4 knew about the
general manager 's phone call to the Union.
SUNSET MINERALS, INC. 1459
June 4.' In addition to the evidence cited by the Trial Examiner in
support of this finding, we rely upon the uncontradicted testimony of
the Union's international representative that, shortly after June 5,
the Respondent's general manager informed him that the five em-
ployees had been discharged because they "had deliberately partici-
pated and led in the organization of the stoppage" on June 4.z
3. In view of the circumstances recited above, and upon the entire
record, we find, contrary to the Respondent's contention, and in agree-
lnent with the Trial Examiner, that the June 4 strike was not in
derogation of the Union's authority as the representative of the em-
ployees.3 Accordingly, like the Trial Examiner, we find that the June
4 strike was a protected concerted activity, and that, in discharging the
five employees for engaging in such activity, the Respondent violated
Section 8 (a) (3) and (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Sunset Minerals, Inc., Kellogg,
Idaho, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,
Mill & Smelter Workers, Local 18, or in any other labor organization
of its employees, by discriminating against its employees in any
manner with respect to their hire or tenure of employment, except to
the extent permitted by Section 8 (a) (3) of the Act.
3 Although the Respondent' s general manager testified after this witness, lie was not
questioned concerning this statement.
Moreover , in its brief filed with the Board, the Respondent appears at one point to have
abandoned its contention that the five employees were not discharged for striking but
only for violating the company rule concerning reporting absence The brief states in
effect that the Respondent determined on June 5 to discharge "all men involved in this
strike" (I e the June 4 walkout), and that in determining which employees had been
involved in the strike, as distinguished from those who might have been absent on June 4
for other reasons , the Respondent selected for discharge those five employees who had not
given advance notice of their absence on June 4. Thus, Respondent appears to concede
that It discharged the five employees for striking, and that it used their alleged violation
of the reporting-off rule only as a means of identifying them as strikers.
3 Citing N. L, R. B. v. Draper Corporation, 145 F. 2d 199 (C. A. 4), the Respondent con-
tends that the evidence in the instant case requires a finding that the June 4 strike was
In derogation of the Union's authority and therefore not protected. However, unlike
the situation in the Draper case, at the time of the June 4 strike the Respondent's
employees had been led to believe by the Respondent that it would not take any further
action on the grievances presented by the Union, and the strikers could not have known
of the Respondent' s offer on June 4 to meet with the Union In view of the foregoing, and
upon the entire record, we find that the strike was not designed to interfere with the
exclusive authority of the employees' bargaining representative, as was the case in
Draper. Moreover, the plant-wide strike of June 5 and subsequent negotiations by the
Union for reinstatement of the dischargees demonstrate that the majority of the employees
and the Union adopted and ratified the June 4 walkout. See American Manufacturing
t ompany o f Texas, 98 NLRB 226.
227260-53-vol. 100-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing,
its employees in the exercise of their right to engage in any or all
of the activities protected by Section 7 of the Act, or to refrain from
engaging in any such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section 8
(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act : _
(a) Offer to Ronald Utz and Newberry Carroll immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
(b) Make whole the aforesaid Utz and Carroll, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy," for any loss of pay they may have suffered by reason of the
discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order.
(d) Post at its mine at Kellogg, Idaho, copies of the notice attached
to the Intermediate Report as Appendix A 4 Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by Respondent's authorized representa-
tive, be posted by it immediately upon receipt thereof and maintained
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
a This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" in the caption hereof the words "A Decision and Order ." If this
Order is enforced by a United States Court of Appeals, the notice shall be further amended
by substituting for said words "Decision and Order " the words "A Decree of the United
States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by International Union of Mine , Mill & Smelter
Workers, Local 18, herein called the Union , the General Counsel of the National
Labor Relations Board, by the Regional Director for the Nineteenth Region
(Seattle, Washington), issued a complaint dated November 16, 1951, against Sun-
SUNSET MINERALS, INC. 1461
set Minerals, Inc., herein called. Respondent. The complaint alleged that Re-
spondent had engaged in unfair labor practices within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act
as amended, 61 Stat. 136, herein called the Act. Copies of the charge, complaint,
and notice of hearing were duly served upon the parties.
Specifically, the complaint alleged that Respondent, on or about June 5, 1951,
had discharged and thereafter refused to reinstate five employees, Howard Hunt,
Frank Schuster, Lawrence Mitcham, Ronald Utz, and Newberry Carroll, because
they had assisted the Union or engaged in concerted activities for their mutual
aid or protection. Respondent's answer admitted the discharge of the men but
denied the commission of any unfair labor practices. It alleged affirmatively
that (1) three of the five, Hunt, Schuster, and Mitcham, had been reemployed on
June 18 in positions equivalent to those they had occupied prior to June 5, 1951,
and (2) the five complainants had absented themselves from work on June 4 as
part of a conspiracy to injure Respondent, without notice and contrary to a rule
requiring employees to furnish notice of intended absences.
Pursuant to notice, a hearing was held at Kellogg, Idaho, on December 7 and 8,
1951, and at Spokane, Washington, on February 12, 1952, before the undersigned
Trial Examiner, Martin S. Bennett. All parties were represented by counsel
who 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 close of the hearing, the parties were afforded an opportunity to
present oral argument and to file briefs and/or proposed findings and conclusions
with the undersigned. Oral argument was waived and a brief has been received
from Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Sunset Minerals, Inc, is a Washington corporation which maintains its princi-
pal office and place of business at Kellogg, Idaho, where it is engaged in the min-
ing of zinc and lead. All lead mined by Respondent is sold to Bunker Hill and
Sullivan Mining Company, located nearby, which processes the lead, commingles
it with lead purchased elsewhere, and ships the resulting refined product to points
outside the State of Idaho. The lead concentrate thus sold by Respondent be-
tween November 1, 1950, and November 1, 1951, was valued at $179,383. Dur-
ing the same period, all zinc mined by Respondent was sold to Sullivan Mining
Company, located in Kellogg, which processed the zinc, commingled it with zinc
mined elsewhere, and shipped the resulting refined product to points outside the
State of Idaho ; the zinc thus sold by Respondent was valued at $305,684. These
shipments of zinc and lead outside the State of Idaho are valued respectively in
excess of $25,000 per annum. Respondent admits and the undersigned finds that
Respondent is engaged in commerce within the meaning of the Act. Hollow
Tree Lumber Co., 91 NLRB 635. -
II. THE LABOR ORGANIZATION INVOLVED
International Union of Mine, Mill & Smelter Workers,-Local 18, Is a labor or-
ganization admitting to membership employees of Respondent.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction
1. The issue ; background
The issue presented herein is whether Respondent has engaged in conduct vio-
lative of the Act by discharging five employees on June 5, 1951, because they con-
certedly absented themselves from work on June 4. The position of the General
Counsel is that these five were engaged in a protected concerted activity. Re-
spondent admits the discharges, but the testimony presented was solely to the ef-
fect that the men were discharged because they had violated a company rule by
being absent without obtaining advance permission or providing a satisfactory
reason on June 5 for their absence. Apparently a remedy is sought only with re-
spect to Utz and Carroll, inasmuch as the other three were reinstated to their
former or substantially equivalent positions on June 18, 1951, and, during the
intervening period, the plant was on strike and shut down as a result of these
five discharges.
The Union has been since 1947 and currently is the bargaining agent of
Respondent's employees. At the time material herein, Respondent and the
Union were signatories to a collective bargaining contract which will not expire
until June 20, 1952. This contract contains no restrictions on the right to
strike.
2. The grievances
During May of 1951, a number of grievances relative to working conditions
in Respondent's mine arose among the employees; these related primarily
to safety and sanitary conditions in the mine and on the surface. The
grievance committee provided for by the contract had been inactive for a
great many months. According to General Manager Bliss Moore, no grievances
had been presented for several years and, in fact, there was no committee in
existence at the time. As a result, on May 30, Financial Secretary Frederick
Pruitt of the Union wrote to Respondent, stating that he was enclosing a list
of grievances filed by employees, and requesting a meeting to discuss them.
Enclosed was a list of 16 working conditions which Pruitt contended should
be corrected forthwith. This communication was received on May 31.
While both the General Counsel and Respondent developed some testimony
relative to the accuracy and merit of the grievances, the undersigned deems it
unnecessary to set it forth. The fact is that the conditions complained of did
exist and that, in some degree at least, they were such as to merit correction.
This was admitted by General Manager Moore in his testimony. Moreover, this
was recognized at the time by Moore who instructed Mine Superintendent
Lomas to correct at least several of the conditions specified in the May 30
communication.
3, Union and concerted activities ; the strike of June 4
As stated, three of the five complainants were reinstated on June 18, 1951.
The remaining two, Utz and Carroll, insofar as the record indicates, were the
most active of the group in union activities and in urging the men to strike.
Carroll was both warden and shop steward of the Union. He and Utz had
played a part in the, preparation and formulation of the list of grievances
submitted to Respondent by the Union on May 30. Carroll was outspoken in
the mine in his criticism of the mine hazards and sanitary conditions complained
of in the list of grievances. In fact, on various occasions, he had presented
SUNSET MINERALS, INC. 1463
his views on working conditions to Mine Superintendent Lomas and Shift
Bosses Ross and Blythe. According to Carroll, his views reflected the views
of the miners who urged him to obtain action from Respondent to correct
these conditions. And there is evidence that there was some talk in the mine
in favor of a walkout. Both Carroll and Utz urged the miners to adopt such
a course of conduct, Utz as recently as June 1 and 2, and Carroll shortly before
June 4.
The strike took place on June 4 and all the complainants save Mitcham testified
tnat they absented themselves from work in support of their grievances. The
strike did not take Respondent by surprise. According to the uncontroverted
testimony of Leonard Tibbett, who is still in Respondent's employ, Night Shift
Boss Oscar Blythe, admittedly a supervisor, informed him on the night of
June 3 "that a bunch of the boys were going on a fishing trip the next day.'; I
Furthermore, as Mine Superintendent Lomas admitted, Day Shift Boss Ross
telephoned him on June 3 and informed him that there was to be a "walkout"
on the following day. Lomas reported to General Manager Moore on the
evening of June 3 that there was to be a fishing holiday on the following
day. In fact, Lomas admitted that he had heard rumors to this effect approxi-
ruately 1 week earlier ; as noted, that was approximately the time when Carroll
was urging the employees to walk out.
On June 4, according to Lomas, there were 20 absences from work, of which
7 were unexplained ; the others had allegedly either reported off in advance
or had provided satisfactory excuses. These 7 included the 5 complainants
herein, plus 2 others who were reinstated. Lomas testified he later concluded
that the latter 2, unlike the 5 complainants, had in fact reported their absences ;
on the other hand, none of the 5 complainants did report off on June 4. There
is no evidence that the walkout was caused by anything other than resentment
over working conditions, as testified by the complainants herein . Although
General Manager Moore, as he testified, had directed Superintendent Lomas to
correct any improper conditions, and steps had been taken to correct several
of the more easily remedied matters, such as lavatory conditions, there is
other evidence that sheds light on the attitude of Respondent's supervisory
staff in the matter, although not necessarily that of Moore. Thus, according
to the testimony of Victor Wickstrom, who is still in Respondent's employ,
Day Shift Boss Ross informed him on June 3 that Respondent had received
16 grievances, but that all were rejected except those few relating to lavatories.'
The undersigned finds, therefore, that a group of employees, including the
five complainants herein, in concert absented themselves from work on June
4 in protest of working conditions. It is further found that Respondent had
knowledge, on June 4, that its employees were engaging in this concerted activity.
Ir may further be noted that the day of the strike, June 4, coincided with the
opening day of the Idaho fishing season, references to which were made on
the following day, June 5, by several strikers. There was no picketing at the
1 The supervisory staff of the mine is small . Bliss Moore is general manager and vice
president , Raymond Lomas is mine superintendent , and Walter Hall is mill superintendent.
Beneath them, at the time material herein , were three bosses: Night Shift Boss Blythe
and Day Shift Bosses George Ross and Bill Carder, also appearing in the transcript as
Carter. The latter two were in charge of mine areas above and below, respectively, the
1,000-foot level.
2 Ross admitted other parts of this conversation, discussed hereinafter , wherein he
expressed an intention to discharge Carroll . He testified he informed Wickstrom that
Respondent was cleaning up the matters raised in the grievances , but elsewhere indicated
that he did not "exactly recall" the conversation . The undersigned credits Wickstrom's
version of the entire conversation , which is corroborated in part by the testimony of
Harold Lammert who was nearby at the time.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, but merely a concerted absence on the part of the strikers. Whether or
not some actually participated in the onset of the fishing season is not disclosed
by the record
4. The return and discharge of the strikers on June 5
Mine Superintendent Lomas uncontrovertedly testified that he personally de-
cided on the morning of June 5 to discharge those employees absent on June 4
who (1 ) had not received permission to be off , ( 2) had not reported off, or (3)
provided no reasonable excuse for being absent. He informed his three shift
bosses that there was a posted rule in the plant that "each man must report off"
and that the absence of approximately one-half the working force on June 4
had resulted in financial loss to Respondent.
Lomas allegedly mentioned no names to the shift bosses but merely informed
them to discharge all who fell within one of the above three categories. He
claimed that a rule had been posted for several years which instructed all em-
ployees to report their absences or else clear with management prior to returning
to work after an absence ; other evidence to be set forth hereinafter discloses
that the rule was not uniformly followed or enforced. Lomas further testified
that the five complainants herein were discharged pursuant to this rule for being
absent without reporting their absence and for not providing a reasonable excuse
therefor upon their return. This was the only reason advanced herein by
Lomas who uncontrovertedly testified that it was he who made the policy decision
to carry out the discharges . Significantly, no other reason was given to the
discharged men on June 5.
With respect to the return of the strikers on June 5, the record shows the fol-
lowing. Utz , Hunt, and Schuster, on reporting for work, were met by Shift Boss
Ross. The latter asked Utz where he had been on the previous day and Utz
replied , "Fishing." Ross then stated , "Your check is in the office . Take the
rest of the summer off to catch up." Ross also asked Schuster where he had
been and the latter replied that he simply had not arrived at work . Ross in-
structed him to wait a few minutes at which time his check would be ready.
According to Hunt, Ross met him as he entered the plant and informed him that
his "time" was ready in the office . As is apparent , Hunt was not given an
opportunity to explain his absence . Moreover, it appears that the decision to
discharge Utz and Hunt had been made prior to the interviews , inasmuch as
their pay checks were ready in the office at the time thereof.
Carroll, on reporting for work, was summoned to the office by Shift Boss Carder
who, in the presence of Lomas, questioned him concerning his absence . Carroll
protested that he had been working .7 days a week for some time, that he was
entitled to an occasional day off, and that he had gone fishing. Carder replied,
"Your time is waiting in the outer office." Here too, inasmuch as the pay check
of Carroll was ready for him, it appears that the policy decision to discharge
him had been made prior to his interview 3 As is apparent, none of the five
was provided with the reason for his discharge. It may also be noted that there
Is no evidence that any of them were replaced prior to discharge ; in fact, no
contention of this nature is made.
The discharges on the morning of June 5 created considerable unrest among
the employees of the mine and they immediately decided to engage in a work
stoppage in protest of the discharges; this resulted in the closing down of the
8 The fifth dischargee, Mitcham, did not testify herein. The parties stipulated that lie
was discharged on June 5 after being absent on June 4. It is clear from the pleadings
that his case is on a par with those of the other four.
SUNSET MINERALS, INC. 1465
mine. This later strike was settled by the parties on June 18 with an agree-
ment to reinstate Hunt, Schuster, and Mitcham to their former or substantially
equivalent positions and to refer all the cases to the Board for decision.
B. Contentions, analysis, and conclusions
As stated, Respondent's position, as developed in its testimony was solely
that the five strikers were discharged because they had been absent from work
on June 4, 1951, and had neither complied with a company rule requiring the
reporting of absences nor supplied a reasonable excuse for their absence. Pre-
cisely why the strikers did not publicize the concerted nature of their activity
is not disclosed by the record. However, this is immaterial for the fact is that
they did engage in a concerted activity ; Respondent had knowledge prior to June
4 that they planned to engage in a walkout ; and, with such knowledge, Respond-
ent discharged them, prior to replacement, on June 5.
Turning momentarily to Respondent's defense that the strikers were discharged
for being absent without permission, a number of factors render it open to
question. Firstly, in at least some of the cases, the pay checks were ready
when the men reported for work on June 5. This is indicative not of an intent
to ascertain the reasons of the strikers for their absence but rather of a fait
accompli with the decision to discharge the men having been made prior to
their reporting for work that morning. In fact, Hunt was terminated with-
out being questioned concerning his absence; Shift Boss Ross merely discharged
him without further comment when Hunt reported for work.
Secondly, there is considerable evidence that Respondent's rule of reporting
absences was not regularly enforced. While Superintendent Lomas provided,
in his testimony, four instances between December 1950 and May of 1951 when
employees had allegedly been discharged for not reporting off, the record on
the other hand discloses a number of instances both prior to and after June of
1951 when unreported absences met with no discipline and were not questioned.
Thus, Howard Hunt credibly testified that he had been absent 1 day approx-
imately 1 week prior to June 4; that he had not reported off ; and that no ques-
tions were asked and no comment made when he returned. Mine Superintendent
Lomas claimed that Hunt had reported off on two occasions ; however, on one
occasion, according to Lomas, he acquired his information from Shift Boss Ross
who told him that Hunt was going on a trip to Spokane. Not only was Ross
silent on the topic but, in addition, the testimony of Victor Wickstrom discloses
that he had made a trip to Spokane sometime prior to June 4 for which he had
procured advance permission. It would appear that Lomas has confused the
cases of Hunt and Wickstrom and the undersigned therefore credits Hunt's
testimony herein.
Employee Leonard Tribbett credibly testified that he had been absent on
November 30, 1951, shortly before the present hearing; that he had not reported
off ; and that no inquiries had been made on his return to work. He also testified
that he had been absent five or six times, both before and after June 4; that
he had not reported off on those occasions ; and that he had not been disciplined
therefor. Tribbett conceded that he had reported off on several other occasions.
While he knew that Respondent had installed an absentee card system after
June 4, he did not fill one out for his absence on November 30; in fact he had
never seen one of the cards. Respondent introduced in evidence an absentee
card reflecting Tribbett's absence on November 30. However, it was not a
card made out by the latter but rather by the shift boss. Hence, it does not serve
to refute his testimony. As a result, the undersigned does not credit the testi-
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Lomas that Tribbett, who impressed the undersigned as an honest
v itness and is still in Respondent's employ, did report off on November 30.
William Winters uncontrovertedly testified that he had been absent on June
1 and 2, 1951, that he had not reported off, and that he was not disciplined as
a result. His superior was Shift Boss Ross who was present at the hearing when
Winters testified. Neither in this case nor in any of the others did Respondent
offer payroll evidence to controvert any of the absences testified to by the various
witnesses for the General Counsel. See Waterman Steamship Co., 309 U. S. 206
and N. L. R. B. v. Yale and Towne Manufacturing Co., 114 F. 2d 376 (C. A. 2).
Thirdly, the record further demonstrates that Respondent was desirous, prior
to June 5, of eliminating Carroll and Utz from its employ and that the walkout
of June 4 provided an opportunity to carry out this desire. Thus, as heretofore
found, Shift Boss Ross held a conversation with employee Victor Wickstrom on
June 3. The two men discussed the list of grievances and Ross then stated,
according to Wickstrom who is still in Respondent's employ, that "We have two
employees, Carroll and Utz, that we have to get rid of." This was corroborated
by Harold Lammert who was in the vicinity at the time and, as noted, was
substantially admitted by Ross. A similar statement was made by Ross on the
previous day, June 2, to Robert Tribbett. According to the testimony of the
latter, a clear and forthright witness who is still in Respondent's employ, Ross
stated that Carroll "had been stirring up a lot of trouble around the mine, and
that he was a troublemaker, and that he was going to have to get rid of him."
In the view of the undersigned, Ross equated being a "troublemaker" with the
union activities then being carried on by Carroll relative to working conditions,
as described hereinabove. See N. L. R. B. v. Bird Machine Co., 161 F. 2d 589 (C.
A. 1).4
In the final analysis, Respondent's defense is of no avail because, as a matter
of law, it admittedly has engaged in conduct which is violative of the rights
guaranteed by the Act. Its employees were engaged in a concerted activity
which followed upon their demand for improvement of working conditions. It
was therefore a concerted activity for their mutual aid or protection, within
the meaning of Section 7 of the Act, and one of which Respondent admittedly
had knowledge. By engaging in this activity they did not cease to be employees
and, as economic strikers, they were not subject to discharge. True, a strike or
concerted activity of the type herein involved is by its very nature a form of
quitting of employment, but it is also one which is expressly protected by the Act.
N. L. R. B. v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5), enfg. 83 NLRB 53.
As economic strikers, these employees were immune to discharge. They ran the
risk of being permanently replaced prior to discharge, but such is not the case
here. N. L. R. B. v. Mackay Radio d Telegraph Co., 304 U. S. 333. Their outright
discharge for engaging in a protected concerted activity is per se violative of the
Act. N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9) ; N. L. R. B. v.
Remington Rand, Inc., 130 F. 2d 919 (C. A. 2) ; N. L. R. B. v. Kennametal, Ina.,
182 F. 2d 817 (C. A. 3) ; and N. L. B. B. v. Augusta Chemical Co., supra.
Nor can it be found that the strikers were insubordinate in violation of com-
pany rules. Not only does the record indicate that Respondent's rule on report-
ing absences was loosely and irregularly enforced but controlling herein is the
fact that the existence or nonexistence of the rule is immaterial. If Respondent's
4 Ross, an unimpressive witness, did not recall having a conversation with Tribbett on
this occasion, but nevertheless denied that he had made the statement attributed to him.
However, this statement was closely similar to the statement that Ross admitted making
on the following day to Wickstrom. Under the circumstances , the undersigned does not
credit Ross' denial.
SUNSET MINERALS , INC. 1467
contention has merit , any strike contrary to the desires or rule of an employer
is violative of the Act. The simple answer is that the Act permits and protects
this type of concerted activity , which is perforce a withholding of employment
contrary to the desires of an employer . Consequently , the undersigned finds that
under the circumstances present herein , Respondent disciplined those whom
it considered to be the leaders of the Union in the plant in reprisal for engaging
in a concerted activity protected by the Act , and has thereby engaged in conduct
violative of Section 8 (a) (1) of the Act. Under these circumstances , the under-
signed further finds that the discharges tended to discourage adherence to the
Union and were violative of Section 8 (a) (3) of the Act. N. L. R. B v. Kenna-
metal, Inc., supra . And it is immaterial whether these discharges be termed
violative of Section 8 (a) (1) or 8 (a) (3), for , in either event, the remedy
applied by the Board is identical . Smnith Victory Corporation , 90 NLRB 2089,
enfd. 190 F. 2d 56 (C A. 2) ; Ohio Oil Company, 92 NLRB 1597; and Dant &
Russell, 92 NLRB 307.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring in con-
nection with the operations of Respondent 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
6 The testimony of Respondent 's witnesses predicated the discharge of the complainants
solely on their failure to comply with the purported rule for reporting absences. In its
brief Respondent , for the first time , raises noncompliance by the strikers with the grievance
procedure of the contract as a defense , claiming that the strike was not a protected
concerted activity. N. L. R. B. v. Draper Corp., 145 F. 2d 199 (C A 4).
True, the contract in effect at the time of the strike does set forth certain steps relative
to grievance and arbitration procedure and this strike took place prior to the completion
of these steps . On the other hand, the evidence shows that the grievance procedure had
fallen into disuse ; that for a great many months there had been no grievance committee ;
and that no grievances had been presented for several years. In fact, the grievances
presented on May 30 had been proffered by Financial Secretary Pruitt of the Union and
treated with by Respondent even though they had not been presented initially by aggrieved
employees or the grievance committee, as provided by the agreement . Furthermore,
although the contract does set forth the steps to be taken by the grievance committee, it
provides only that the Union shall have the "right " to maintain a grievance committee;
there is thus a serious doubt that these grievance procedures weie in effect after the
extended absence of a grievance committee . The foregoing is not indicative of a strike
to interfere with collective bargaining on the part of the authorized business agent. See
Ruzza -Cardozo, 97 NLRB 1342.
Finally, assuming that the grievance procedure was in effect and that the strike had
taken place prior to the completion of the steps of the grievance procedure , the fact
still remains that Superintendent Lomas, who decided to make the discharges , admittedly
predicated his decision solely on the violation of the purported rule for reporting absences;
that Respondent has in effect condoned any unprotected aspect that may have attached
to the strike ; and that it has as a result waived any defense based upon such ground
Wallick & Schwalm Co., 95 NLRB 1262; Elwood M. Jenks, 81 NLRB 707; and Sunnyside
Winery, 77 NLRB 93. There is nothing to the contrary in Mackay Radio & Telegraph
Co., 96 NLRB 740, where the Board expressly recognized that participation in activities
which the Board holds to be unprotected for policy reasons, but which are not violative
of public policy, may be condoned . See N L. R B. V. E' A Laboratories , 188 F. 2d 885
(C. A. 2) ; enfg. 80 NLRB 625 and 86 NLRB 711 , and Alabama Marble Co ., 83 NLRB
1047 , enfd. 185 F. 2d 1022 (C. A. 5).
1468 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
It has been found that Respondent has discriminated with respect to the
hire and tenure of the five complainants; it has, however, reinstated three,
Hunt, Schuster, and Mitcham, to their former or substantially equivalent posi-
tions. Moreover, the plant was on strike and shut down between their dis-
charge on June 5 and reinstatement on June 18. It would appear, therefore,
inasmuch as there is no back-pay remedy, that no affirmative remedy is being
sought with respect to these three.
The undersigned will recommend that Respondent offer Ronald Utz and New-
berry Carroll immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges. See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827. It will further be recommended that Re-
spondent make them whole for any loss of pay suffered by reason of the discrim-
ination against them. Said loss of pay, based upon earnings which they would
normally have earned from the date of discrimination to the date of Respondent's
offer of reinstatement, less net earnings, shall be computed on a quarterly
calendar basis in accordance with the formula adopted by the Board in F. W.
Woolworth Co., 90 NLRB 289. See Crossett Lumber Co., 8 NLRB 440.
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. International Union of Mine, Mill & Smelter Workers, Local 18, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of
Howard Hunt, Frank Schuster, Lawrence Mitcham, Ronald Utz, and Newberry
Carroll, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their right to engage in or to refrain from engaging in any or
all of the concerted activities guaranteed them by Section 7 of the National
Labor Relations Act, and WE WILL NOT discourage membership in INTER-
NATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCAL 18, or in
any other labor organization of our employees, by discriminating against
any employees in any manner with regard to their hire and tenure of em-
ployment, except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
KIRSTEIN LEATHER CO., INC. 1469
prejudice to any seniority or other rights and privileges previously enjoyed
and we will make them whole for any loss of pay suffered as a result of the
discrimination against them.
RONALD UTZ
NEWBERRY CARROLL
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the above-named union, or any other labor organization.
We will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of membership in
or activity on behalf of any such labor organization.
SUNSET MINERALS, INC.
Employer.
Dated ------------------ By ---------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
KIRSTEIN LEATHER Co., INC. and LOCAL 21, INTERNATIONAL FUR &
LEATHER WORKERS' UNION OF U. S. AND CANADA, PETITIONER. Case
No. 1-RC-&891. October 10, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before George A. Sweeney, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Sectyion 2 (6) and (7) of the Act?
4. The Petitioner seeks to represent a group of maintenance employ-
ees.2 It currently represents the Employer's production employees
' We find no merit in the Employer's contention that the exclusion of the maintenance
employees from the Petitioner ' s current contract with the Employer is sufficient reason to
bar this petition . The Board has consistently held that an exclusionary clause In a collec-
tive bargaining agreement is not tantamount to an agreement not to seek recognition for
the excluded employees and does not preclude a later certification of the contracting union
as representative of the excluded employees. Baltimore Transit Company , 92 NLRB 688;
Martin Parry Corporation, 95 NLRB 1506 , 1507 ; Bulldog Electric Products Company,
96 NLRB 642; Wilson & Co., Inc., 97 NLRB 1388.
2 The maintenance employees are also referred to in the record as mechanics.
100 NLRB No. 235.