The Youngstown Sheet and Tube Co.

National Labor Relations Board - Board Decisions

Mar 14, 1961

130 N.L.R.B. 1295 (N.L.R.B. 1961)

THE YOUNGSTOWN SHEET AND TUBE COMPANY 1295
Under these circumstances, we find that the following employees con-
stitute a unit appropriate for purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : 11
All electricians and mechanics, stockmen, and other employees in
the transportable systems division of the Employer's Richardson,
Texas, plant, engaged in the fabrication and installation of electronic
systems in transportable systems, excluding office clerical employees,
draftsmen, radio technicians, laboratory technicians, janitors, build-
ing maintenance employees, professional employees, guards and
watchmen, and supervisors as defined in the Act.la
[Text of Direction of Election omitted from publication.]
u In view of our finding herein we deem it unnecessary to pass upon the alternate re-
quest of IAA1 that its certification in Case No . 16-RC-2660 be clarified by extending it
to the employees sought herein.
ii At the hearing , the manager of the installations division of the transportable division
referred to the electricians and mechanics included in the unit as electrical technicians
and mechanical technicians . The Employer ' s director of industrial relations testified,
however , that the Company had not established a classification for any of the employees
involved . In any event , though the record shows that the included employees are skilled
workers, there is no showing that they are technical employees within the meaning of
the Board 's definition of that term. See Litton Industries of Maryland, Incorporated,
125 NLRB 722.
The Youngstown Sheet and Tube Company and United Steel-
workers of America , Local 1011 and Sidney A. O'Neill. Cases
Nos. 13-CA-3490 and 13-CB-816. March 14, 1961
DECISION AND ORDER
On October 14, 1960, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices al-
leged in the complaint and recommending that the complaint be dis-
missed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a brief in support thereof.
Exceptions were also filed by the Respondent Company together with
a brief in support thereof and in,support of other findings, conclu-
sions, and recommendations of the Trial Examiner. The Respondent
Union has filed a brief in support of the Intermediate Report.
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 Rodgers, Leedom, and Jenkins].
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
Intermediate Report, the exceptions and briefs, and the entire record
130 NLRB No. 139.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed on September 23 and November 10, 1959, by Sidney A. O'Neill,
Charging Party herein, the Regional Director for the Thirteenth Region of the
National, Labor Relations Board, herein referred to as the Board, issued a consoli-
dated complaint on December 31, 1959, against The Youngstown Sheet and "Dube
Company and United Steelworkers of America, AFL-CIO, Local 1011, Respondents
herein, alleging violations of Section 8(a)(3) and (1) and Section 8(b)(2) and
(1)(A) of the National Labor Relations Act, as amended (73 Stat. 509), herein
called the Act. In their duly filed respective answers Respondent, while admitting
certain allegations of the complaint, each denied the commission of any unfair labor
practice.
Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig-
nated Trial Examiner, on March 14 through 17, 1960, at Chicago, Illinois. All
parties were represented at the hearing and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argument, and to file briefs.
Oral argument was waived by counsel and in lieu thereof briefs were filed by all
parties with me thereafter.
Upon consideration of the entire record before me, the briefs of the parties, and
upon my observations of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Youngstown Sheet and Tube Company is an Ohio corporation maintaining
its principal office at Youngstown, Ohio, and manufacturing pants located in Ohio,
Illinois, and Indiana, where it is engaged in the business of manufacturing, produc-
ing, processing, selling, and distributing basic steel. In the course and conduct
of its business operations during the calendar year 1959 the Respondent Company
purchased raw materials, supplies, and equipment valued in excess of $1,000,000
which were shipped directly from outside the State of Indiana to its facility at
Indiana Harbor, Indiana. During the same period finished products and materials
valued in excess of $1,000,000 were shipped directly from its plant at Indiana
Harbor, Indiana, to points outside the State of Indiana. It is admitted that the
Respondent Company is engaged in commerce within the meaning of the Act and
I so find.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local 1011, Respondent herein, and Bricklayers,
Masons and Plasterers International Union of America, Local No. 6 (herein re-
ferred to as Local 6), are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ISSUES
Whether there is credible evidence to support the allegation that the Company
and Union, by agreement or practice, conditioned employment of bricklayers dur-
ing the strike upon the payment to the Union of a strike benefit fee by them or
by their own union.
Whether there is credible evidence to support the allegation that the Company
conditioned employment of bricklayers during the strike upon the payment to
the Union of a fee by them or by their own union.
Whether the Company's utilization of supervisory labor upon the refusal of
bricklayers to cross a picket line constituted discrimination.
Whether the Union violated the Act by insisting that bricklayers, who would
not otherwise violate a picket line, or their own union, pay a strike benefit fee as
a condition for receiving a pass to cross the picket line.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
. A. Introductory facts
The issue presented here is a direct outgrowth of the industrywide strike in the
basic steel industry which began on July 15, 1959, and ended on November 7.
THE YOUNGSTOWN SHEET AND TUBE COMPANY 1297
Among the difficulties attendant upon the shutdown of a steel mill at such times
is the deterioration of the open-hearth furnaces and soaking pits, a type of ingot
reheating furnace. This condition results from the removal of the intense heat
under which these facilities normally operate.
At its Indiana Harbor plant, the Company maintains 17 of these open-hearth
furnaces , as well as a number of soaking pits. Under normal operating conditions
the lifespan of a furnace is approximately 90 days, • operating at two "heats" per
day. While no specific estimate was given for the soaking pits, they too were sub-
ject to a like deterioration . To properly maintain , repair, and rebuild these furnaces
and pits during the course of normal operations the Company 's masonry depart-
ment employs a total complement of approximately 500, of whom 100 are mason
bricklayers and apprentices , all members of Local 6. The remainder are mason
helpers who do teardown and repair work but no bricklaying , and are members of
Respondent Local 1011 . Each of the two classifications have their own distinct
supervision under the overall direction of Masonry Superintendent Joseph Demeter.
To insure maximum efficiency in the operation of the furnaces and pits, and to
maintain a regular working schedule, repair and rebuilding is conducted on a cyclic
basis whereby each furnace and pit would be ready for teardown and rebuilding
after a given interval . Upon the complete shutdown of the plants and the result-
ing accelerated deterioration of many of the pits and furnaces , it was evident to
both management and representatives of the striking Union that unless these fa-
cilities were repaired during the strike, resumption of operations after the strike
would be seriously retarded . Accordingly , it was tentatively agreed that 13 of the
17 open -hearth furnaces and 12 soaking pits should be ready for operation upon
the opening of the plant.
As an incident to the planning and preparation for the repair and rebuilding of
these furnaces and pits representatives of the Company and Local 1011 explored
the situation and concluded that a specified number of mason laborers , members
of Local 1011, would be required to tear down the deteriorated furnaces and ready
them for the bricklaying and rebuilding that would follow. This work was begun
on August 31 and by September 3, had progressed sufficiently to permit the begin-
ning of bricklaying . Meanwhile a similar conference occured between representa-
tives of management and Local 6 directed to ways and means of solving the brick-
laying problem.
B. The maintenance of the picket line
As a result of the several conferences between representatives of management and
the striking Local 1011 arrangements were made, as previously noted, for the dis-
mantling and building work usually done by employees who were members of the
striking Union . To accomplish this officials of Local 1011 provided passes to those of
its members whom the Company requested to report for work . These passes were to
be shown to members of Local 1011 patrolling the picket line at the plant gate, thus
identifying them as having official union permission to work during the strike.' The
passes were not required to be shown to plant security guards stationed at the gate.
Rather, each day the guards were supplied by the Company with a list of employees
and supervisors to whom work had been assigned in the plant, and only those em-
ployees whose names appeared on this list, irrespective of any pass Local 1011 may
have given them , were to be admitted to the plant .2 The names of employee members
of Local 1011 assigned to dismantling and repair of the furnace and pits were included
on these lists.
In issuing picket line passes to its members Local 1011 consistently required of
them that each contribute , by signing payroll deduction authorization cards, $2 to the
strike fund for each day worked . In this respect President Mussatt and other officials
1 Reno Mussatt , president of Local 1011 , testified that pickets were instructed "that
nobody would go through the line without passes." In addition to passes issued to Local
1011 members they were also issued to employees of the various public utilities serving
the plant, that they might have uninterrupted access to the plant for emergency purposes
during the strike. Supervisory employees carried a blue card pass issued by the Company
to identify them as supervisors.
2It appears in the record that one Cruz Lopez appeared at the office of Masonry
Superintendent Demeter, having gone through the picket line without presenting a pass.
How this gentleman succeeded in entering the plant without having been observed by
guards or pickets or having displayed some form of pass became a minor mystery to all
parties at the hearing . Lopez' successful penetration of the plant gates is not of sufficient
import to justify a conclusion by me that the Union's picket line was laxly patrolled, or
that frequent exceptions were made among those excluded by them or plant guards.
597254-61-vol. 130-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Local described this contribution as a "voluntary one." Significantly, he testi-
fied that members receiving passes during this strike "unanimously agreed to sign the
cards." Consequently the voluntary character of the contribution to the strike fund
is academic-all members who received passes having contributed to the strike fund, a
practice that had been invoked during previous strikes conducted by the Respondent.
C. The strike policy of Local 6
Local 6 of the Bricklayers, and its individual members have consistently adhered to
the basic trade union custom of respecting the picket lines of striking unions. Thus
it is clear from the testimony of brick masons who testified that they, as good union
men, had never attempted to cross the picket line .3 It is factually evident, therefore,
that no bricklayer could have been denied entry to the plant by any picket. Similarly
it is clear from the testimony of Local 6's business representative, Malcolm Newlin,
that the organization was in complete sympathy with the striking Union and respected
its picket line.
Local 1011 was understandably anxious to receive tangible evidences of sympathy
and support and to this end solicited individual and organizational contributions from
non-Local 1011 employees. This, of course, explains the repeated suggestions from
Local 1011 people to Local 6 officials and members that a $2 daily contribution be
paid by each working member, and it also accounts for the suggestion of Local 1011
officials at a meeting with Newlin and other Local 6 officials that a bulk donation of
$3,000 would insure immediate picket lines passes to all Local 6 members requiring
them. Meanwhile, however, the membership of Local 6 adopted a resolution obli-
gating them not to pay moneys to another labor organization as a condition for
going to work.
D. The: epairing of the furnaces and pits
Against the background described above, Masonry Superintendent Demeter, with
the knowledge and approval of Local 6's Business Representative Newlin, called 28
or 30 bricklayers in mid-August, asking them if they would be available for work.
He explained to each the need for rebuilding the furnaces and pits and stated that if
he were successful in getting the men to do the job "it would probably be under a
similar circumstance as the previous strike, that when they apply for a pass they may
be asked to make a donation to their cause ." Upon this credited testimony of Dem-
eter I find that he did not on this occasion of his first communication with the
brickmasons condition a temporary return to work upon the making of a contribution
to the strike fund. In this respect I credit also the substantiating testimony of em-
ployee Bartok who quoted Demeter as merely telling him he "might " have to make
a donation . I do not, however , rely upon the confusing testimony of other employees
as to this incident . Employee Plesha's recollection of Demeter 's exact words was
cloudy; employee Cruz revealed himself completely confused as to the time and cir-
cumstances of the conversation . Similarly the testimony of employees McDonald,
Morrison , and Johnson so fluctuated from direct examination to cross-examination as
to cast serious doubt that any of them could recall Demeter 's precise statement,4 and
employee Ganz, in relating the conversation , made no reference to a contribution
being sought.
When Demeter established that anadequate number of bricklayers would be avail-
able for work and while the preliminary arrangements for dismantling were being
made he inquired directly of Business Representative Newlin and the other Local 6
officials whether their members would be permitted to work in 'the plant during the
strike. These officials agreed to this, with the understanding that the work would,be
given to the whole crew on a rotation basis.5 Thereafter on August 28, at a meeting
with Local 6 officials , management representatives indicated an unwillingness to check
off bricklayers ' contributions, as requested by Local 1011 , or to make a company con-
tribution as the price for having the brick work done. Local 6, for its part, indicated
it would not advocate its members breaking a picket line Meanwhile , it will be re-
3 The credited testimony of employee Ganz, for example.
4 McDonald stated that Demeter confined his statement to saying the work would he
under the same circumstances as during the last, strike, Morrison, contradicting himself,
finally quoted Demeter as saying that they "might" have to make donations; and Johnson,
after giving several versions, stated that he "didn't exactly know how he phrased it."
As I am not crediting or otherwise relying upon the testimony of these three witnesses,
I find it unnecessary to consider Respondent Company's contentions directed to the pro-
duction `for impeachment purposes of pretrial statements not signed or otherwise adopted
by the witnesses themselves.
5 The credited testimony of Business Representative Newlin.
THE YOUNGSTOWNA_SHEET AND. TUBE COMPANY 1299
called (supra) Local 6 had refused, in a meeting with Local 1011 officials, to enter
into strike fund arrangements. As matters then stood bricklayers scheduled to work
were to go to Local 1011 for passes, no understanding having been reached as to
what, if anything, Local 1011 would require of them as a condition for the issuance of
the passes to them. Superintendent Demeter, it appears, was aware of the routine
that would be followed, management having previously washed its hands of any
checkoff arrangement, leaving the matter to the final disposition of the respective
union officials. Whereupon Demeter, after consultation with Local 6 and Local 1011
officials, called an agreed-upon number of bricklayers from among those known to
be available, and directed them to report to Local 6 for further instructions. It is not
disputed that in making these calls no reference was made to a contribution fund..
In fact, whenever the subject was raised Demeter disposed of it by referring the em- .
ployee to Local 6, confining his remarks simply to calling the individual to work.
When the employees reported to Local 6, specifically to Business Representative
Newlin, they were directed to report for work after having secured passes at Local
1011 headquarters, and they were specifically instructed that they were not to sign a
payroll deduction card as a condition of receiving such a pass. Upon reporting to
Local 1011 headquarters the bricklayers were told there that unless they did sign a
strike contribution deduction card they would not be issued passes. Each man
refused, as instructed by Newlin, and reported back to Newlin. Newlin thereupon
notified Superintendent Demeter that because of their failures to secure picket line
passes the men would not report for work.
Demeter made several calls to Newlin immediately thereafter, each designed to
procure bricklayers. On each occasion, however, it was the unwillingness of Local
1011 to issue passes that resulted in the bricklayers not reporting for work after
having been called. In his final call to Newlin, Demeter, himself a lifelong mem-
ber of Local 6, suggested that the bricklayers could report to work without passes.
Newlin rejected this suggestion, stating that he would not be a party to having his
members go through a picket line of a sister union.
No'journeymen bricklayers were shown to have thereafter reported for work
at Respondent Company's plant during the strike. Beginning on September 14, upon
the completion of necessary dismantling and repair work by employee members of
Local 1011, the brick masonry work customarily done by employee members of
Local 6 was undertaken and completed by the Respondent Company's super-
visory employees, including Superintendent Demeter himself.
E. Analysis and conclusions
1. The alleged joint violation
It is alleged that Respondents have violated the Act in that they "maintained and
enforced an arrangement, understanding or practice whereby bricklayers and brick-
layer apprentice employees of Respondent Company were required to pay a daily
fee of $2 and to obtain a pass or permit from Respondent Union in order to cross
Respondent Union's picket line and enter Respondent Company's plant," or Local
6 was to make a payment to the Respondent Union for the same purpose. .
Nowhere in the record of this case can it be remotely suggested that any arrange-
ment, agreement, or understanding between the Company and Local 1011 on this
subject ever existed. Every witness testifying to conversations and negotiations be-
tween these two parties emphasized that company officials would have no part in
such a transaction and never hesitated to voice their objections to it. Furthermore,
insofar as the complaint alleges that these parties, between them enforced and main-
tained a practice, the record is equally barren. For to the extent that the alle-
gation implies that both parties indulged in a common practice to accomplish the
same end, as distinct from an agreement to such effect, the Company's expressed
determination to have no part is equally applicable.
Accordingly I shall recommend that for lack of evidence, credible or otherwise,
the allegation respecting this supposed "arrangement, agreement, understanding, or
practice" be dismissed.
2. The Company's actions
The further allegations directed to the culpability of the respective Respondents
are equally without substance in the record. Thus it is alleged that the Com-
pany, by conduct.which amounted to depriving bricklayers and bricklayer appren-
tices of work, discriminated against them and interfered with their statutory rights.
The Company had a furnace rebuilding job to do and it needed the men to do it.
It began by procuring the necessary laborers, members of the striking Local 1011,
who completed their assignment to the Company's satisfaction. Whatever arrange-
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment these laborers may have made to cross their own union 's picket line was their
business , not the Company 's, and the company officials testifying at the hearing so
noted . The Company next sought to procure bricklayers to complete the job. In
the process of recruiting them it expressed its plan unmistakably-"We'll do the
work under the same circumstances as it was done during the previous strike";
and it added the equally understandable observation-"'You may be asked a small
donation ." In other words, the Company, through its masonry superintendent, Dem-
eter , was offering work to its employees and saying to them ; in effect, "There's a
picket line out front, and it's your problem."
I see nothing in the credited testimony of this record that could conceivably con-
vert the Company 's conversational offer of work into the sinister imposition of con-
ditions upon their employment status. The work was there , and the bricklayers, as
loyal union men, were being appraised by another long-standing union member that
traditional union practices might impinge upon the exercise of their free choice to do
the work or leave it to someone else . Because they did leave it, and it was com-
pleted by supervisors only after frequent offers to the bricklayers , there can be no
basis for a valid conclusion that they were either discriminated against or inter-
fered with . Indeed the Company had but one alternative when faced with the
bricklayers ' understandable loyalty to the traditional trade union principle of not
crossing a picket line. It could hold up the work completely until the end of the
strike. The net effect of such an alternative would be, of course , to create a
crippling delay in the poststrike recuperation of the industry 's and employees'
economy. I am aware of no interpretation of the Act that so underwrites respect
for a picket line as to thus extend the damage of the 1959 basic steel strike.
As the Respondent Company, without condition of any payment of fees or dues,
offered to its bricklayers and apprentices the work in question and continued its
offer until it was refused by them , I do not deem the completion of the work by
supervisory employees to be either discrimination , interference , restraint , or coercion,
and I shall recommend that so much of the complaint as so alleges be dismissed.
3. The Union 's actions
In essence , all that Local 1011 appears to have done, within the framework of the
issues herein , it to have maintained an effective and respected picket line. There
is no suggestion , for example , that any bricklayer was ever refused passage through
the line. On the contrary there is very positive testimony, and from each member
of Local 6 who testified , that their trade union principles would never permit them
to violate the basic rule of strike procedure . If, then , Local 1011 refused to allow
bricklayers to cross the picket line the deed was accomplished in incongruous
fashion , by remote control. For it was at the Steelworkers ' headquarters where
Local 1011 officials informed Local 6 members that they would have to donate to
receive a pass. And it was at sundry taverns that Local 1011 officials told Local 6
officials that its members would receive pick line passes only upon the payment of
an individual or organizational donation. Nothing ever happened on the picket line
or anywhere in the vicinity of the plant. No one was threatened , impeded, or
otherwise restrained or interfered with. In fact, no bricklayer ever sought to pass
through the line, nor would they, as union men, be a party to such action.
I am aware , of course , that the pickets at the plant gate were instructed that
"nobody would go through the line without a pass." I know of no case, however,
that makes it a violation of the Act for a union official to instruct pickets to operate
an effective picket line . Yet that is the sum and substance of the instructions
quoted by President Mussatt of Local 1011 . I am not disposed , however, to read
into those instructions a call to arms or a determination to restrain and coerce
bricklayers ; and particularly bricklayers whose trade union sentiments would dic-
tate, according to their own testimony , that they would never , in the first place,
consider crossing a picket line . Furthermore , I find nothing in the credited testi-
mony herein that would suggest that Respondent Local 1011 caused or attempted to
cause the Company to discriminate against the bricklayers "to encourage or dis-
courage membership in any labor organization ." Certainly , Local 1011 was not
seeking to recruit the bricklayers into its ranks . Nor was it seeking to dissuade them
from joining . The fact is that everyone-management, Steelworkers Local 1011,
and Bricklayers , Local 6-was happy and content with the membership status quo
of the individual bricklayers.
I cannot reemphasize too strongly that all Local 1011 was seeking in the instant
circumstances was respect for its picket line, which was never denied it-and sup-
port for its cause, which the bricklayers were not disposed to give. No one was
even remotely concerned with discouraging or encouraging anyone in their union
affiliations , and I so find. Accordingly I shall recommend that so much of the
TIMBER LAMINATORS, INC . 1301
complaint as alleges that Respondent Local 1011 violated Section 8(b)(2) be dis-
missed. Likewise , as no bricklayer ever physically sought to cross a picket line, he
was never prevented by Local 1011 or its pickets from access to the work that the
Company had made available to them . I find and conclude , therefore , that they
were not restrained or coerced by Respondent Local 1011 and I shall recommend
that so much of the complaint as alleges a violation of Section 8 (b) (1) (A) be
dismissed.
[Recommendations omitted from publication.]
Timber Laminators , Inc. and James R. Holt . Case No. 36-CA-
1007. March 14, 1961
DECISION AND ORDER
On October 19, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a) (3) and (1) of the Act
and recommending that it cease and desist therefrom 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.
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 Rodgers, Leedom, and Fanning].
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 Interme-
diate Report, the exceptions and brief, and the entire record as cor-
rected in the case, and hereby adopts the findings of the Trial Exam-
iner insofar as they are consistent with the Decision and Order herein,
but reverses his conclusions and recommendations.
The Trial Examiner found, as alleged in the complaint, that Holt
was an employee whom the Respondent discriminatorily discharged in
violation of Section 8(a) (3) and (1) of the Act. As noted by the
Trial Examiner, except for a brief period of time which followed his
hire in April 1958, Holt acted in the capacity of foreman or leadman
on both day and night shifts. The Trial Examiner, however, found
that at the time he was discharged on March 18, 1960, he was not a
supervisor, basing his finding on the fact that he was then leadman
on the day shift with no more than five employees under him, that he
worked along with experienced men in the framing department, and
there was no evidence that he exercised authority effectively to recom-
mend hiring and discharge. While it is true that Holt directed about
five experienced employees under him on the day shift, this alone does
not dispose of the question whether Holt responsibly directed em-
130 NLRB No. 134.