The Sioux Steel Co.

National Labor Relations Board - Board Decisions

Aug 7, 1941

33 N.L.R.B. 1155 (N.L.R.B. 1941)

In the Matter of THE SIOUX STEEL COMPANY and LOCAL 727, INTER-
NATIONAL BROTHERHOOD OF BOILER MAKERS, IRON SHIPB UILDERS &
HELPERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION
OF LABOR
Case No. C-1728.-Decided August 7, 1941
Jurisdiction : sheet metal products manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and, Coercion: employer's unfriendly and resentful atti-
tude towards union following its inception as evidenced by the conduct of
its supervisors and some of its officials.
Disci on inatwon • discharges and lay-offs, charges of, dismissed.
Remedial Orders : cease and desist interference, restraint, and coercion.
Mr. Henry 1,17. Lehmann, for the Board.
Danforth di Danforth, by Mr. George G. Danforth, of Sioux Falls,
S. Dak., for the respondent.
Mr. Norman M. Neel, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Local 727, International
Brotherhood of Boiler Makers, Iron Shipbuilders & Helpers of
America, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Eighteenth Region
(Minneapolis, Minnesota) issued its complaint dated July 27, 1940,
against the Sioux Steel Company, Sioux Falls, South Dakota, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
A copy of the complaint, accompanied by notice of hearing, was
duly served upon the respondent and upon the Union. ,
With respect to the unfair labor practices, the complaint alleged,
in substance, (1) that the respondent discharged or laid off Douglas
33 N. L R. B., No. 198.
450122-42--vol 33-74 1155
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moberly on about October 28, 1939, Clarence Reynolds on about
November 11, 1939, and Glenn H. Malloy on about December 9, 1939,
and thereafter refused to reemploy them because they joined and
assisted the Union and engaged in concerted activities for the pur-
poses of collective bargaining and other mutual aid and protection;
(2) that the respondent discharged or laid off Orland Weis on about
October 28, 1939, because he joined and assisted the Union and
engaged in concerted activities for the purposes of collective bargain-
ing and other mutual aid and protection, but thereafter reemployed
him on about June 28, 1940; (3) that the respondent, from August
1939 to the date of the complaint, advised, urged, threatened, and
warned its employees to refrain from becoming or remaining mem-
bers of the Union or from assisting the Union in any way, and, by
making derogatory comments to its employees concerning the Union
and other labor organizations, indicated its disapproval of and
opposition to the self-organization of its employees; and (4) that
by the above acts, and by other acts,'the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On August 7, 1940, the respondent filed its answer, in which it
admitted certain allegations of the complaint as to the nature and
interstate character of its business, admitted the discharge or lay-off
of Moberly, Reynolds, Malloy, and Weis, but denied the alleged
unfair labor practices. In addition, the answer affirmatively alleged
(1) that Moberly was laid off and discharged because the work in
which he was engaged "fell off" and there was no further work to be
done "in his particular line of employment that justified the re-
spondent in continuing and keeping him as an employee"; that the
respondent has since offered employment to Moberly, which offer was
refused; (2) that Weis was laid off and discharged. for the "same
reasons" as Moberly, and that as soon as there was work available
for Weis to perform he was reemployed and is now working for
respondent; (3) that Reynolds was discharged for inefficiency, be-
cause through his carelessness and negligence he broke and destroyed
an expensive die ; and that prior to that he had become inefficient
and was not giving attention to his job -as an employee; and (4)
that Malloy was discharged because of a direct violation of the rules
and regulations of respondent, in that he permitted a shipment of
goods to be sent out to Sears, Roebuck & Company with the label
of the respondent thereon.
Pursuant to notice, a hearing was held in Sioux Falls, Sout .
Dakota, on August 29, 30, 31 and September 3, 1940, before J. J.
Fitzpatrick, the Trial Examiner duly'designated by the Chief Trial
Examiner. The Board and the respondent were represented by
THE SIOUX STEEL COMPANY 1157
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made certain rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
After the hearing the respondent filed a brief with the Trial
Examiner.
On November 7, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. He found that the respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section
8 (1) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from such unfair labor practices
and take certain affirmative action in order to effectuate the policies
of the Act. He further recommended that the complaint be dis-
missed in so far as it alleged that the respondent had discriminated
against Weis, Moberly, Reynolds, and Malloy, within the meaning
of Section 8 (3) of the Act. On December 28, 1940, the respondent
communicated with the Board stating that it had complied with the
recommendations of the Trial Examiner by the posting of notices'
prepared under the direction of the Regional Director.
On December 28, 1940, the Union filed exceptions with the Board.
Oral argument before the Board was not requested by any of the
parties. The Board has considered the brief filed with the Trial
Examiner and the exceptions and save as the exceptions are consistent
with the findings, conclusions, and order herein, finds them to be
without merit.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Sioux Steel Company is a South, Dakota corporation with its
office and place of business located in Sioux Falls, South Dakota.
It is principally engaged in the manufacture of hog feeders, gran-
aries, pig pens, and other sheet-metal products. The principal mate-
rial used by the respondent in its operations is flat-sheet steel. It
also uses copper, tin, paint, and other materials. From July 1,
1939, to June 30, 1940, the cost of the materials used at the respond-
ent's plant was $474,673, of which, more than 75 per cent were
purchased outside the State of South Dakota. During this same
period the respondent sold manufactured products amounting to
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately $832,419 in value, of which , more than 60 per cent
were sold to customers in States other than the State of South Dakota.
In its answer , the respondent admitted the interstate nature of its
business.
IT. THE ORGANIZATION INVOLVED
Local 727, International Brotherhood of Boilernmakers, Iron, Ship-
builders & Helpers of America, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
In the summer of 1939, there was conversation among the employ-
ees in.the respondent 's plant concerning the formation of a labor
organization . On September 3 of that year 15 employees applied
to the American Federation of Labor for a charter as a federal
labor union . Thereafter , on October 6, the group received a charter
and the Union was established in the plant . On the same date,
Clarence Reynolds was elected president ; Herbert Butler , vice presi-
dent; and Glenn H. Malloy, secretary-treasurer of the Union. At
about that time Orland Weis and Douglas Moberly joined the local
and were active in soliciting members and arranging for meetings.
Malloy testified that in early October 1939 he asked his foreman,
Hugh Robinson , " if he cared to join" the Union, and that Robinson
replied in the negative , and added that he would never join the
Union unless he was forced to do so. Malloy also testified that
Robinson then asked to see his union card, and that he produced
his-card and showed it to Robinson . The latter did not testify at
the hearing. The Trial Examiner found that Robinson made the
statements attributed to him by Malloy and we so find.
Moberly testified that in October 1939 on the clay he received his
union card and while he was working , Richard Moyer, shop super-
intendent, said to him , "Are you another one of the dissatisfied work-
ers around here ?" Moberly further testified that he replied that
if Moyer was referring to the Union , he intended to join that organ-
ization and that Moyer then asked what the employees "intended to
get" by joining the Union , and added , "Most of these unions are
run by rackets and radicals."
Clarence Reynolds testified that in September 1939, while there
was talk about the Union in the plant but before he had joined,
Moyer inquired whether or not he had joined the Union, and that
on being told that he had not yet joined , Moyer said , "If the, boys
THE SIOUX STEEL COMPANY 1159
get too huffy about it, we can shut the plant or put them on 7 hours
a day." In addition, on the day following his election as president
of the Union, according to Reynolds, Mover approached him in the
plant and said, "I understand you are a big shot in the Union," and
he replied, "Not exactly" whereupon Moyer said, "Why, you are
president." Reynolds further testified that he replied that he was
president, that Moyer then asked if he had a union card, and that
he produced his card and showed it to Moyer, who looked at it and
walked away. _
Herbert Butler, an employee and vice president of the Union,
testified that early in October 1939, Moyer asked him if he joined
the Union; and asked to see his union card, that he showed his card to
Moyer, and that Moyer inquired who the other officers of the Union
were and asked whether Reynolds was president of the Union.
During the course of the conversation, according to Butler, Moyer
said that he "wouldn't really have no objections to me joining the
Union"; but added "you want to kind of watch yourself., Some of
those fellows are pretty slick, those organizers." Butler further
testified that Moyer then stated that before he became foreman, he
was asked to join a union; that he then attented a union meeting
at which the union promised him 90 cents an hour if he joined; and
that he did not "think he could get it, so' he wasn't much impressed
with that union there."
Moyer did not deny the statements attributed to him by Moberly,
Butler, and Reynolds, and accordingly we find as did the Trial
Examiner, that he made such statements.
Orland Weis testified that shortly after he joined the Union on
October 3, he had several talks about the Union with Otto Nieber,
night superintendent. The first time, according to Weis, Nieber
stated that he wondered, "why the fellows wanted a union there"
and stated that even if he were not a foreman, he would not join
a union. A few nights later, according to Weis, Nieber said that
he had heard that "there was a lot of fellows in the shop in the
Union," and he was wondering who they' were. Weis further testi-
fied that a few days later Malloy handed him his union card and
an insurance policy issued by the Union, and that, while he was
working on the evening of the same day, Nieber inquired what Malloy
had handed him that afternoon. He testified* that he showed Nieber
the union card and the insurance policy. Weis also testified that
a few nights before the general lay-off of October 28, 1939, Nieber
again stated that he wondered why the men had joined the Union,
and said that he had been with the Company many years and had
never joined a union, and that he thought the Company would play
fair with its employees. Nieber did not testify at the hearing. We
find that he made the statements attributed to him by Weis.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Hjelm, an employee, testified that after the general lay-off
in October 1939, resulting from the completion of a contract with
the United States Government, he and Earl Huss, another employee,
inquired of Max Rysdon, general manager, whether or not the re-
spondent had obtained any more government contracts; that Rysdon
replied in the negative and stated that even if such contracts were
procurable, he would not "be much in favor of taking them"; that
"this was the first time in the history of the company there had been
union talk in the shop"; and that he did not know "why the boys
felt that way," since the respondent was "paying just as much, if
not more wages than any of (its) competitors." Huss corroborated
Hjelm's testimony, stating that, on the occasion in question, Rysdon
said that he was not "very much interested" in any other government
contracts "with all the union talk going around," and complained
that the employees were not as friendly towards him as they were
before the advent of the Union. Rysdon did not deny this testimony,
and we find that he made the statements attributed to him by Hjelm
and Huss.
In November 1939 the union officials listed above, accompanied
by J. H. Winger, a union organizer, had a conference with Charles
Rysdon, president of the respondent, Dave Jolivette, vice president,
and Moyer for the purpose of negotiating with the respondent con-
cerning a collective agreement and concerning the reinstatement of
Douglas Moberly and Clarence Reynolds, whose discharges are dis-
cussed below. During this conference, according to Butler, Winger
asked Charles Rysdon if he had any objection to the Union and
Rysdon replied that he did not object to the Union, that he, himself,
had once been a member of a union and worked at a union plant at
union wages, but had given it up to take a job at a non-union plant
at lower wages, and that he made more money at the non-union
plant because he could work longer hours. Butler further testified
that Rysdon then told Reynolds that he (Rysdon) had brought Rey-
nolds in as an "elbo man" and he was making advancement; and
thought it was "queer" that he had joined the Union. Butler's'testi-
mony was corroborated by Reynolds and Malloy, and the latter testi-
fied that Rysdon also stated that the employees were receiving better
wages than the respondent's competitors were paying and, therefcre,
he did not see, any need for a union. Charles Rysdon did not testify
at the hearing. We agree with the Trial Examiner and find that
he made the above statements.
In January 1940, Dave Jolivette told Hjelm, according to the
latter, that he was not very much'in favor of the Union in a small -
plant such as the respondents, but that in a large concern such as
John Morrell and Company he, thought a union was desirable. Joli-
vette testified that he could not recall making the statement attributed
TAE SIOUX STEEL COMPANY 1161,
to him by Hjelm. The Trial Examiner had the opportunity to ob-
serve the demeanor of the witnesses and under all the circumstances
credited to Hjelm. We accept as true the testimony of Hjelm.
It is clear from the facts set forth that from the time of the incep-
tion of the Union in the early fall of 1939, thQ respondent's attitude
towards the Union, as evidenced by its supervisors and some of its
officials, was unfriendly and resentful. The respondent contends that
it made no effort to retard the Union and that its attitude was not
unfriendly. The facts do not support this contention. At no time
did it make any effort to dissipate among its employees the impres-
sion created by the statements of its supervisors and officials. Under
all the circumstances, it is chargeable with responsibility for said
statements.
From all these facts we find that the respondent has interfered
with, restrained, and coerced its employees in the exercise of their
rights to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
B. The alleged discrimination with regard to hire or tenure of
employment
The respondent normally employs about 21 production workers.
However, during its normal busy season, which corresponds to the
grain season and runs from about June to the first of October of
each year, the respondent employs additional help and concentrates
its efforts on making grain bins. In 1938, which was a normal year,
the work crew consisted of 21 employees, with 29 employed in Octo-
ber, which was the peak for that year. In 1939, because of a large
Government order for grain bins, the respondent employed as many
as 145 men during the period from July until October 28, 1939. On
or about this last named date, the Government order having been
completed, 122 men were laid off. Two of the discharges involved
herein took place on that date, and the respondent contends that they
were due to slack work. The remaining two discharges occurred
during the following months of November and December. The
respondent does not claim that the latter two employees were dis-
charged because of slack work, but contends that they were discharged
for certain alleged delinquencies in their work which are discussed
below.
Douglas Moberly and Orland Weis were both laid off on October 28,
1939.1 Moberly started to work for the respondent in July 1938.
1 Moberly was not notified of his lay-off until he returned to work the morning of Monday.
October 30 , when he was informed by respondent that he was supposed to have been notified
of his lay-off Saturday. Moberly did not work October 30, and it is clear that respondent
intended to include him in the general lay-off of October 28.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In August of that year he was laid off for about a month, after which
he resumed work for the respondent and was employed on the night
shift 2 where he was placed in charge of a crew, a position which he
held until the lay-off involved herein. During the rush season his
principal work was assisting in making grain bins or parts thereof.
In the "off season," however, he did various jobs throughout the plant,
being employed for the most part as a machine operator. He joined
the Union about the first of October 1939, and thereafter, as herein-
before set forth, had a number of conversations with Foreman Moyer
about the Union. There is no evidence that he was particularly active
in the Union.
Weis, also, began working for the respondent in July 1938, and
was laid off October 28, 1939. For the most part he was a machine
operator although he worked as a bench helper on occasion. At the
time of his lay-off he was on the night shift assisting in the making
of grain bins to fill the afore-mentioned Government order. Weis
also joined the Union in early October 1939, and was active in signing
up members and arranging meetings.' As hereinbefore discussed, he
had a number of conversations about the Union with his night fore-
man, Otto Nieber, who knew he was a union inember. Both Moberly
and Weis claimed that when they were laid off in October 1939,
several other employees junior to them and who were doing substan-
tially the same type of work they were doing, were retained by the
respondent.
The evidence is undisputed that six employees retained after the
lay-of? of Moberly and Weis, or reinstated before they were offered
reinstatement, were junior in length of service to Moberly and Weis.
These were Lester Darling, Charles Fluck, Ed Shelton, Verne Roda,
Wilbur Fiske, and Kenneth Inglis. Darling was the only one named
who was on the night crew on which both Moberly and Weis were
working. The record shows, however, that the respondent had no
fixed seniority policy, but selected employees for lay-off, on the basis
of-efficiency at the particular job, giving regard to seniority only if
efficiency were equal. Darling was laid off on November 17,,1939,
and reemployed on December 22 of that year. Moyer testified that
Darling was called back to do some painting and other repair work,
that he was better qualified to do than Weis or Moberly and that when
this work was finished, Darling was kept on as business picked up
in the spring of 1940. Moyer also stated that Charles Fluck was
retained after the lay-offs because he was a helper to a first class
mechanic; that Roy Shelton was not laid off because he did furnace
fittings and special jobs requiring hand or bench work as opposed to
2 Moberly received a small additional bonus for acting as subforeman under night -foreman
Otto Nieber , but he apparently worked along , with the other production employees
THE SIOUX STEEL COMPANY 1163
machine work, the type of work done by Moberly and Weis ; that
Ed Shelton was retained because he could do pattern and bench work;,
and Verne Roda was a graduate engineer. The two other junior
employees , Fiske and Inglis , were laid off at the same time as Moberly
and Weis and were subsequently reemployed January 9, 1940, to
assist in rearranging the machinery, in the plant. Moyer testified
that Inglis had had experience in that kind of work and was thus
better qualified than either Moberly or Weis.
Weis applied for work in December 1939, and again in January
1940. On the last occasion he was advised by the respondent that
he would be sent for when business picked up the following spring.
Thereafter, he was put back to work on June 28, 1940, and is still
working. When Moberly was laid off , he inquired of Moyer whether
the lay-off was temporary or permanent and was advised that it de-
pended upon business conditions . In so far as the record shows he
never applied to the respondent for work thereafter . On July 29,
1040, the respondent wrote him a letter stating that it was starting
a night shift and requesting him to apply for work, if interested.
Moberly had another job at that time and did not apply for re-
employment.
Upon the entire record, we agree with the Trial Examiner that
Moberly and Weis were not selected for lay-off because of their Union
.membership and activity. It is not controverted that the mass lay-off
of October 28 was necessitated by slack business, and the evidence
does not reveal that in laying off Moberly and Weis and retaining
certain other employees with less seniority , the respondent was moti-
vated by their union membership and activity. When the respond-
ent's business warranted the restarting of the night crew, Moberly
was advised of that fact and given an opportunity to apply for work.
Weis was reemployed in June 1940 , and was still working at the time
of the hearing.
We find that Moberly and Weis were laid off because of slack busi-
ness and not because of their union membership and activity.
Clarence Reynolds was first employed by the respondent in 1928,
and worked continuously for 5 years thereafter until he was laid off
in 1933 for lack of work. He was reemployed by the respondent in
1936 and worked until he was discharged on November 10, 1939.
During the period of his last employment, he was given two small
raises and some time before October 1939, Max Rysdon, the general.'
manager, told him that he had been commended by Moyer, his fore-
man, because of the fact that he was taking an International Corre-
spondence School Course in sheet-metal work and drafting and was
showing interest in his work. Rysdon also told him that he should
keep up his interest in his work, and that some day he might be a
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman. Reynolds dropped the correspondence course prior to
October 1939.
Reynolds became interested in the Union in the fall of 1939 and did
some organizational work a week or two before he joined the Union
on October 3, 1939. On that date he became president of the Union,
and, at about the same time as set forth above, had two discussions
with Moyer concerning the Union, in the course of which Moyer re-
vealed that he knew that Reynolds was president of the Union and also
disclosed his hostility toward the Union. In addition; at about the
same date, Charles Rysdon, president of the respondent, asked Reyn-
olds why he had joined the Union.
On November 10, 1939, the respondent received an order for a hog
feeder and Reynolds was, instructed by Moyer to prepare the door for
it. To do so, it was necessary for him to bend some sheet metal in a
6-foot press. The press was new as also were the upper and lower dies
which were being used in it. Reynolds broke or bent the lower die in
such a manner that thereafter it was of no use as a die. He immedi-
ately reported the matter to Moyer, who in turn reported to Max
Rysdon and Jolivette. A few minutes later, Moyer advised Reynolds
that he was discharged. During the discussion Reynolds offered to
pay for the die, which was worth about $60. At the hearing Reynolds
in effect admitted that he was at fault in its damage.
Reynolds claimed that he was never warned that he would be
discharged if he broke a die and this was not disputed. It is clear,
however, that on a previous occasion another employee who broke
a die was promptly discharged. There is evidence to indicate that
Otto Niber, a foreman, at one time cracked a die but was not dis-
charged or reprimanded. The evidence is undisputed, however, that
the die was an old one, and had cracked as a result of crystalliza-
tion from long use and not because of negligence on the part of the
operator.
Upon the entire record, we agree with the Trial Examiner and find
that Reynolds was not discharged because of his union membership
and activity.
Glen H. Malloy was first hired by the respondent in October 1936
as a helper, and later became an assistant to Hugh Robinson, foreman
of the shipping department. He was one of the employees who ap-
plied for a charter for the Union in September 1939, and when the
charter was granted he was elected secretary-treasurer of the Union.
He was also on the bargaining committee. On October 6, 1939, as
hereinbefore found, when Foreman Robinson asked Malloy if he had
joined the Union, Malloy showed Robinson his union membership
card. In addition, Malloy participated in the conference with the
respondent's officials on November 3, at which time the Union asked
for a contract and Charles Rysdon made the statement set forth
THE SIOUX STEEL COMPANY 1165
above revealing his hostility toward the Union. Malloy was also
present at a second conference with the respondent concerning the
proposed union contract, which was held on about November 17, 1939.
On December 9,'1939, the shipping department obtained an order
for a small bill of goods, including two cartons of bolts, from the
local Sears, Roebuck & Company store at Sioux Falls, South Dakota.
'Ordinarily, goods shipped by the respondent to dealers doing business
with it, carried the respondent's labels on the outside of the package,
but the practice with respect to all sales to mail order houses; in-
cluding Sears, Roebuck & Company, was to withhold the repond-
ent's label from the goods.3 Standing instructions to that effect
were issued to the shipping-room employees, and such instructions
were known to Malloy. This was to avoid criticism on the part of
the respondent's regular dealers.
At about noon on December 9, Robinson gave Malloy the Sears,
Roebuck & Company order. The order included two small packages
of bolts. Malloy made up the order and gave the goods to Stanley
Anderson, who drove a delivery truck for a local package-delivery
concern, instructing him to deliver them to Sears. Shortly there-
after, Anderson delivered the packages to Leslie Ottoson, an employee
in the shipping department at the Sears store.
On the morning of December 9, Max Rysdon had returned from a
business trip to Chicago and had found on his desk three com-
plaints from retail dealers concerning sales to Sears. He had never
before received such complaints, and that afternoon he visited the
Sears store for the purpose, inter alia, of discussing these com-
plaints with the Sears manager. Failing to find the latter in his
office, Rysdon' walked into the shipping department in, search of
him. While there, he discovered, among several packages which
had been delivered by the respondent to Sears, one box which carried
the respondent's label. He then telephoned Abel De Groot, the re-
spondent's office manager, to bring over an unlabeled box of bolts.
The office manager did so, and the unlabeled box was substituted
for the labeled box of bolts. Rysdon then had two employees in
the shipping room of Sears place their initials on the box containing
the label, and instructed De Groot to return it to the respondent's
plant and keep it in his office. De Groot took the box to his office
and placed it in his safe, and it was, produced by the respondent at
the hearing.
That afternoon, Max Rysdon called the employees in the shipping
department, including Malloy, to his office. Rysdon then told them
that he had been receiving complaints from dealers to the effect
t The label consisted of a sticker containing the name of the respondent pasted on the
outside of the carton.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent was shipping labeled goods to Sears, that he had
gone over to the local Sears store and there found a labeled box of
bolts. He then produced the labeled box referred to above, and
asked who was responsible for sending it to Sears, stating that
"Whoever sent this is going to be fired." Thereupon Robinson asked
Malloy if he had not sent out a delivery that morning. Malloy asked
Rysdon what time the shipment went out, and the latter replied
that it was sent out at about 12 o'clock. Malloy then said : "If that
is the box of bolts that went on that shipment at 12 o'clock, I sent
it." Thereupon, Rysdon promptly discharged Malloy.
Later that day, Malloy went to the Sears store, and asked Ottoson,
the shipping clerk, what had occurred and asked him to check the
shipment to ascertain whether the labeled box had been in the ship-
ment sent out by Malloy or whether it has been sent to Sears in some
previous order. Later in the same day, Ottoson telephoned Robin-
son that the boxes that had been brought over that noon had been
placed with previous orders of the same kind from the respondent,
thereby suggesting the possibility that the labeled box might already
have been in stock at the time Malloy's shipment arrived at Sears.
About 2 days later, Malloy saw Rysdon and asked if the telephone
call from Ottoson had "cleared" him. Rysdon replied that he had
not "had time to check up on that call yet, but it didn't make any
difference, (Malloy) was still out of work."
The following April, Malloy again applied to Rysdon for work
and was told, "Well, this is a big surprise. I expected a confer-
ence," and further, that the respondent "would think it over." Two
days later Malloy was told that he would not be needed. Malloy
has not been reemployed by the respondent.
The respondent contends that Malloy was discharged because he
violated instructions by placing the respondent's label on the box
in question. There appears to be little doubt that Rysdon discovered
the labeled box at the Sears store in the manner described by him,
and we so find. There is, however, some doubt whether Malloy
was, iri fact, responsible for the shipment of the labeled box to
Sears. Anderson, who delivered the packages in question, testified
that none of them contained a label, but admitted that he did not
examine them closely for the purpose of ascertaining whether they
were labeled. In addition, Ottoson, who received them at Sears,
testified that the packages were intermingled with other similar
packages from the respondent, thereby giving rise to the possibility
that the box containing the labels was delivered at some previous
date. Under all the circumstances, however, it is unnecessary to
resolve this doubt. There is no evidence that at the time of the
discharge Rysdon had any reason to doubt that Malloy was respon-
THE SIOUX STEEL COMPANY 1167
sible for the shipment of the labled box. It appears from the testi-
mony of both Rysdon and Ottpson, that Rysdon suggested the likeli-
hood of the discharge of the person responsible for the delivery of
labeled bolts before he left the Sears store. It also seems evident
that he was unaware of the person responsible for that day's delivery
when he told the assembled shipping employees that such person
would be discharged. It is plain, therefore, that when Malloy said,
"If that is the box of bolts that went on that shipment at 12 o'clock,
I sent it," the respondent believed that Malloy was responsible for
the rule infraction.
We are of the opinion that the record will not support a finding
that Malloy's discharge was motivated by his union membership and
activity. The gravity of the rule, violation is undisputed, fraught
as it was with the possibility of serious detriment to the respondent's
business. Consequently Malloy's discharge following as it did Mal-
lony's admission of having sent that day's delivery, must be deemed
to have been prompted by Rysdon's belief that Malloy had violated
'the rule.
While the events occurring subsequent to Malloy's discharge create
some doubt concerning the respondent's motive in refusing to rein-
state him, we are of the opinion that on the entire record, the evidence
is insufficient to establish that Malloy's union activities constituted
the respondent's reason for so acting.
Accordingly we'find that Malloy was not discharged or refused
reinstatement by the respondent because of his union membership
and activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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
Having found that the respondent has engaged in unfair labor
practices within the meaning of Secton 8 (1) of the Act, we must
order the respondent, pursuant to the mandate, of Section 10 (c), to
cease and desist therefrom. We shall also order the respondent to
take certain affirmative action designed to effectuate the policies of
the Act.4
Of course , insofar as the respondent has taken affirmative action consistent with our
Order herein , it need not repeat such action
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire
record of the proceedings, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 727, International Brotherhood of Boiler Makers, Iron
Shipbuilders & Helpers of America, affiliated with the American
Federation of Labor, is a labor organization within the meaning of
Section 2 (5)' of the Act.
2. The respondent by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations, Board hereby orders that
the respondent, the Sioux Steel Company, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, and coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of
the Act :
(a) Post immediately in conspicuous places at its factory and
maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating that the respondent
will not engage. in the conduct from which it is ordered to cease and
desist in paragraph 1 (a) of this order;
(b) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed in so far
as it alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act.
THE SIOUX STEEL COMPANY 1169
Mn. EDWIN S . SMITH, dissenting in part :
I concur in the Decision and Order except insofar as it dismisses
the complaint with respect to Glenn H. Malloy.
I am of the opinion that the respondent refused to reinstate Malloy
because of his prominent association with the Union. Malloy was
one of the organizers of the Union, its secretary-treasurer, and a
member of the union bargaining committee. The respondent was
aware of Malloy's active affiliation, and, as the Board finds, was
hostile to the Union and engaged in unfair labor practices.
Immediately following Malloy's discharge, he learned from the
Sears clerk that he may not have been responsible for the error
which caused his discharge. The Sears clerk also telephoned such
information to Robinson, Malloy's superior, and about 2 days later,
Malloy asked Rysdon, the respondent's manager, whether the tele-
phone call had "cleared" him. Rysdon replied that he had "not
had time to check on that call yet, but it didn't make any difference,
(Malloy) was still out of work." So far as the record discloses Rysdon
made no effort to "check" on the telephone call. It is thus evident
that Malloy's previously supposed culpability, resulting in his dis-
charge, was not the operative factor in the failure to reinstate him.
Thereafter, when Malloy again applied, Rysdon made what appears
to have been a slighting reference to the Union. Rysdon refused
to reinstate Malloy, without assigning 'any specific reason for
this rejection.
In view of Malloy's outstanding activity in the Union, the re-
spondent's hostility toward this organization , and the failure of
the record to disclose any plausible lawful reason for the re'spondent's
refusal to reinstate Malloy, I am of the opinion that such refusal
was caused by Malloy's union membership and activity. I would
find, therefore, that the respondent engaged in unfair labor practices
within the meaning of Section 8 (1) and (3) by refusing to reinstate
Malloy and I would order his reinstatement with back pay from
the date of the discrimination.