American Compressed Steel Corp.

National Labor Relations Board - Board Decisions

May 5, 1965

152 N.L.R.B. 431 (N.L.R.B. 1965)

AMERICAN COMPRESSED STEEL CORPORATION 431
I also recommend that, unless on or before 20 days from the date of receipt of this
Decision and Recommended Order that Respondent notify the said Regional Direc-
tor, in writing, that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order, requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Food Store Employees Union,
Local No. 347, affiliated with Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, as the exclusive representative of the employees
comprising the appropriate unit described below.
WE WILL NOT unlawfully interrogate employees with respect to their union
activities.
WE WILL NOT engage in the unlawful surveillance of employees' union activi-
ties, nor by interrogations or otherwise create the impression of surveillance of
union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed by Section 7 of the National
Labor Relations Act.
WE WILL, upon request, bargain collectively with the above-named union as
the exclusive bargaining representative of all employees in the following bar-
gaining unit with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
All employees of Respondent employed at its plant exclusive of truck-
drivers, driver-salesmen, office clerical employees, and all guards, profes-
sional employees, and supervisors as defined in the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
S. S. LOGAN PACKING COMPANY,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, Room
2023 Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-
2200, if they have any question concerning this notice or if they have information
that its provisions are being violated.
American Compressed Steel Corporation and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
]Helpers of America and Local 152, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases Nos. 9-CA-9932 and 9-CA-2968. May 5, 1965
SUPPLEMENTAL DECISION AND ORDER
On May 8, 1964, the National Labor Relations Board issued its Deci-
sion and Order in these cases," finding that the Respondent violated
1146 NLRB 1226
152 NLRB No. 39.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (1), (3), and (5) of the National Labor Relations Act,
as amended. It further found that the Respondent had not engaged
in certain other unfair labor practices, and dismissed the allegations
of the complaints pertaining thereto. The Board ordered the Respond-
ent to cease and desist from the unfair labor practices, and to take cer-
tain affirmative action necessary to effectuate the purposes of the Act.
On January 28, 1965, the United States Court of Appeals for the
District of Columbia Circuit issued an opinion 2 in which the court
affirmed the Board's finding that the Respondent had in certain respects
violated Section 8 (a) (1), (3) , and (5) of the Act, and enforced the
Board's Order with respect thereto. However, the court disagreed
with the Board's basis for dismissing the complaint with regard to the
alleged unlawful discharge of employee Robert Baker.
The Board's Order that the complaint be dismissed with regard to
the alleged unlawful discharge of employee Baker rested on its adop-
tion of the Trial Examiner's finding that the evidence did not establish
that the Respondent knew of Baker's union activity .3 Furthermore,
the Trial Examiner found that the Respondent's asserted reason for
discharging Baker (i.e., that he had failed to turn off certain valves
on his equipment), was supported by the possibility that those valves
had not in fact been turned off on the day in question.
In its opinion, the court pointed out that, even assuming the Respond-
ent's asserted reason for Baker's discharge was supported by evidence,
"the question remain whether the reason assigned was the sole reason
for Baker's discharge, or whether the Company was motivated even in
part by what it thought was Baker's knowledge of and favorable atti-
tude toward the Union." In the court's view, "the record is replete with
evidence from which it could be concluded that Baker was discharged
because the Company believed, or feared, he was sympathetic to the
Union, though the Company was without knowledge he had signed a
union card the evening before the discharge." The court was satisfied
that the record reflects a clear hostility on the part of the Respondent
to the Union, and also a clear concern about Baker's sympathy for the
Union. Although the court did not decide whether the Board should
have found that Baker's discharge was an unfair labor practice, it con-
cluded that the basis the Board assigned for not so finding failed to
meet the issue posed by the complaint and the General Counsel's excep-
tions to the Trial Examiner's Decision. The court remanded these
2 Local No . 152 of/iv International Brotherhood of Teamsters , etc (American Com-
pressed Steel Corp.) v. N.L R B., 343 F 2d 307 (C A D C )
8 The context of the Trial Examiner's Decision made it clear that the reference to
"Union activity" was a reference to Baker's activity in signing a union card the evening
before this discharge The Trial Examiner concluded that the Respondent was unaware
of this "union activity " as there was no showing it was aware of this signing.
AMERICAN COMPRESSED STEEL CORPORATION 433
cases to the Board for its further consideration in light of the court's
opinion. Accordingly, we 4 have reviewed the record and particularly
the evidence and issues referred to by the court.,'
In our original Decision herein, we found that Herbert Byer, son of
Respondent's president, and a manager-foreman, countered the Union's
campaign by threatening to close the plant if the Union came in, by
threatening to discharge union adherents or to make conditions so diffi-
cult they would quit, by interrogating employees as to what they knew
about the Union, and by stating that he knew who had signed union
cards , thereby violating Section 8 (a) (1) of the Act. The Board found
further that Herbert Byer on more than one occasion had communi-
cated the aforementioned threats to Baker; had expressed disbelief in
Baker's denials of knowledge about union activities; had asked Baker
to talk to the other employees and get them to vote against the union;
and had added a threat that, if the Union came in, Baker's hours would
be cut.
The reason given by the Respondent for Baker's discharge was his
alleged failure to turn off the gas valve on his burner on the night be-
fore his discharge. Baker maintained, both at the time he was charged
with such failure, and again on the witness stand, that he distinctly
recalled shutting off the gas before leaving his work station on the
night in question. Herbert Byer testified that, on the night in question,
another employee, Mack Beech, told him (Byer) that he saw Baker
leave his station and forget to turn off his valves, and that he (Beech)
went over and turned them off. Abe Byer, Herbert's father, testified
that he saw Beech turn off Baker's valves. Beech did not testify. The
Trial Examiner, because he recommended dismissal of the charges as to
Baker on the ground that the Respondent did not know of his signing
a union card, did not resolve the conflict in testimony with regard to
the gas valve allegation. However, as to all other instances where
the testimony of Herbert Byer and Baker conflicted, he credited Baker.
Herbert Byer admitted that other employees on numerous occasions
have forgotten to turn off their gas valves, but that no one had ever
been fired for such failure because it had never been clear exactly which
employees were responsible. However, he stated at another point in
the record that he recalls several occasions on which he reprimanded
employees for such failure.
* Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Fanning and Jenkins].
5 Although granted leave by the court to do so, the Board deems it unnecessary to
receive additional evidence for the purposes of this Supplemental Decision.
789-730-66-vol. 152-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon reassessment of all the factors in these cases, we are persuaded
that, whether or not Respondent's officials were aware that Baker had
signed a union card on the evening before his discharge, Herbert Byer
believed Baker to be sympathetic to the Union. The record evidence
demonstrates further that Herbert Byer was hostile toward Baker
because of such sympathies and because of his refusal to assist Byer
in defeating the Union's organizational campaign, and that his threat
to Baker that union adherents were marked for discharge was directed
against Baker himself.
In the circumstances of this case, including the numerous other
unfair labor practices engaged in by Respondent, we find that the rec-
ord evidence preponderates in favor of a finding that the Respondent
was motivated to discharge Baker, at least in part, in order to retaliate
against him for his union sympathies and his refusal to assist Respond-
ent in combatting the Union. While we do not exclude the possibility
that Baker may have forgotten to turn off the gas valve on his equip-
ment the night before his discharge, and that this failure may have
been a contributing factor in his discharge, we are satisfied that it was
not the sole reason for the discharge.6
Accordingly, we find that the Respondent, by discharging Baker
because of his union sympathies, violated Section 8(a) (3) and (1) of
the Act, and we shall order the Respondent to offer him reinstatement
to his former job with backpay for any loss of earnings he may have
suffered due to the Respondent's unlawful discharge.
CONCLUSION OF LAW
By discharging Robert Baker because of his union sympathies, the
Respondent has engaged in and is engaging in an unfair labor practice
affecting commerce within the meaning of Section 8(a) (1) and (3)
and Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, American Compressed Steel Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from discriminating against Robert Baker or
any other employee because of membership in, or activity on behalf of,
any labor organization.
6In this connection , we note particularly the equivocal nature of Herbert Byer's testi-
mony as to whether such conduct was regarded as a dischargeable offense In view of
Baker's long service, and the absence of evidence indicating that Respondent was dissat-
isfied with his work performance , and the pattern of Respondent ' s unlawful conduct,
there is some basis for inferring that the matter of the valves was at best a pretextuous
reason for the discharge We deem it unnecessary , however , to rest our decision on
such a finding because it is clear that Respondent was motivated at least in substantial
part by its hostility to Baker's sympathy for the Union.
AMERICAN COMPRESSED STEEL CORPORATION 435
2. Take the following affirmative action necessary to effectuate the
purposes of the Act :
(a) Offer to reinstate Robert Baker to his former position as a
"burner" in the yard, and make him whole by offering him backpay in
accordance with the formulae set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing ct Heating Co., 138 NLRB 716.
(b) Notify Robert Baker if he is serving in the Armed Forces of
the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post at is yard in Cincinnati, Ohio, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished
by the Regional Director for Region 9, shall, after being duly signed
by an authorized representative of the Respondent, be posted immedi-
ately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Supplemental Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the purposes of the
National Labor Relations Act, as amended, we hereby notify you that :
WE WILL offer Robert Baker his former job as a burner in the
yard, and pay him for wages lost since July 24, 1963.
WE WILL NOT discriminate against any employee because of
membership in, or activity on behalf of, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of said Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization.
AMERICAN COMPRESSED STEEL CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati,
Ohio, Telephone No. 381-2200, if they have any questions concerning
this notice or compliance with its provisions.
Oil, Chemical and Atomic Workers International Union, AFL-
CIO and Its Local 8-718 and United Nuclear Corporation, Fuel
Division. Case No. 1-CB-877. Ma 5,1965
SUPPLEMENTAL DECISION AND ORDER
On August 28, 1964, the National Labor Relations Board, by a duly
designated panel, issued a Decision and Order in this case, 148 NLRB
629, finding that the Respondents had violated Section 8(b) (1) (A)
and (2 ) of the National Labor Relations Act, as amended, by attempt-
ing to invoke the sanctions of a maintenance-of-membership clause in
its contract with the Company against 50 employees for nonpayment
of dues for January 1963-the month prior to the execution of the con-
tract-and against 16 of these 50 employees, who the Board found had
resigned from the Union prior to the signing of the contract on Febru-
ary 12, 1963, for nonpayment of dues not only for January but also
for subsequent months.' In reaching this conclusion, the Board
affirmed the Trial Examiner's finding that the 50 employees had become
union members although they had not satisfied the formal require-
ments set forth in Respondent's constitution for the acquisition of
membership . The Board found it unnecessary to pass on the question
'The maintenance-of-membership clause provided as follows:
Any employee who is a member in good standing of the Union as of the date of this
agreement or who thereafter voluntarily joins the Union during the term of this
agreement shall remain a member of the Union in good standing as a condition of
employment by the Company. For the purpose of this article , an employee shall be
considered a member of the Union in good standing if he tenders the periodic dues
and the initiation fees uniformly required as a condition of employment.
152 NLRB No. 41.