United States Steel Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1963

143 N.L.R.B. 942 (N.L.R.B. 1963)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Bridge Division , United States Steel Corporation and'
Orville Williams . Cease No. 8-C,A-P,994. July 30, 1963
DECISION AND ORDER
On May 24, 1963, Trial Examiner C. W. Whittemore 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
and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondent filed exceptions to
the Intermediate Report together with 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, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as noted herein.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 2
We agree with the Trial Examiner 's findings that the Respondent violated Section
8(a) (3) and ( 1) by discharging Orville Williams on May 25, 1962 However, unlike
the Trial Examiner , we do not rely on the fact that other locals of the International
Union of Operating Engineers , AFL-CIO, may have engaged in unlawful acts in order to
deprive dissenting employees or members of their employment
In discrediting certain testimony of Superintendent Bevans, the Trial Examiner relied,
in part, on the fact that Bevans , while sitting in the hearing room, displayed neither sur-
prise nor concern while listening to Williams ' testimony . We do not agree that the
absence of emotional display on Bevans' part while a spectator in the hearing room should'
be considered in resolving Bevans' credibility . However, as the Trial Examiner relied on,
other factors, including his observations of Bevans as a witness , we find no reason to re-
verse the Trial Examiner's credibility finding in regard to Bevans
2 The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
NOTE -We will notify the above-named employee if presently 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 Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Orville Williams on November 23, 1962 , the General
Counsel of the National Labor Relations Board on February 11, 1963 , issued his
complaint and notice of hearing . Thereafter the Respondent filed its answer. The
complaint alleges and the answer denies that by discharging Williams on May 25,
1962, the Respondent engaged in unfair labor practices in violation of Section,
143 NLRB No. 105.
AMERICAN BRIDGE DIV., UNIIED STATES STEEL CORP . 943
:8(a)(3) and (1) of the National Labor Relations Act, as amended. Pursuant to
notice a hearing was held before Trial Examiner C. W. Whittemore in Cleveland,
'Ohio, on April 10 and 11, 1963.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been received from all counsel.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the hearing, is made by the following findings, conclusions,
and recommendations.
Upon the record thus made , and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New Jersey corporation with principal office and place of
business in Pittsburgh, Pennsylvania, where it is engaged in the production and
distribution of steel products. Its American Bridge Division operates plants in
Cleveland and Lorain, Ohio. It annually ships finished products valued at more than
$100,000 directly to points outside the State of Ohio.
The complaint alleges, the answer admits, and it is here found that the Respondent
Is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , AFL-CIO, is a labor organization
;through which the Respondent hires employees.
HI. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The sole issue raised by the complaint stems from the undisputed fact that the
Respondent failed to employ Orville Williams at a job being performed in Lorain,
'Ohio, as it did certain other employees, when work at certain Cleveland projects
were completed in May 1962. General Counsel claims that Williams was unlawfully
terminated at Cleveland and denied employment at Lorain because of pressure
brought to bear upon it by the above-named labor organization, which at the mate-
rial time held Williams in somewhat more than mild disfavor. This contention the
Respondent denies.
B. Relevant facts
That Williams had offended the leadership of the Cleveland Local No. 18 of the
'Operating Engineers is established by the following uncontradicted facts:
(1) Williams, a member of Local No. 18 for many years, participated in 1959
in what apparently was a membership revolt against its leadership.
(2) In 1961, Williams and a few others, known as "rebels," were "tried" on certain
•charges and were fined more than $2,000 each and suspended for 2 years. They ap-
pealed to the parent International. There the fine was reduced to $500 but the sus-
pension was affirmed. Williams filed a suit against the Local; it is still pending in a
local United States district court.
(3) Although suspended, in the early months of 1962, Williams campaigned for
.an opposition group of candidates for union officers.
Williams has been an operating engineer since 1939 and a member of Local No. 18
for about the same length of time. Except for a brief layoff in 1961, he worked
for the Respondent on its Cleveland area projects from the latter part of December
1959 until his termination on May 25, 1962. Lorain, a few miles outside Cleveland,
is under the supervision of the same construction superintendent.
During this period Williams served under a number of succeeding superintendents,
.all of whom , it is well established, considered him to be a capable and highly valued
employee.
Whether by written contract or oral understanding the record does not reveal, but
it appears that during the time of Williams' employment the Respondent customarily
hired its operating engineers through Local No. 18's hiring hall.
It is undisputed that in 1961 when Williams was working under Superintendent
Kohmeyer, the latter decided to appoint him as master mechanic, a promotion calling
for an increase in pay. Kohmeyer took Williams to the union hall to obtain clear-
ance for the appointment . Business Agent Roviscane objected, pointing out to
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kohmeyer that Williams was causing the Local a lot of trouble . After warning
Williams not to cause any more trouble , Roviscane finally gave his approval to the
appointment.
As noted, Williams continued his leadership in the Union's group of "rebels."
A. N. Vaughn was superintendent in the area preceding R. L. Bevans, who took
over this job on February 20, 1962, and terminated Williams' employment in May.
As a witness for the Respondent Vaughn admitted that Williams was capable of
operating any equipment on the Cleveland projects. He also admitted having had
knowledge of the "rebel " group of the Union and that he had seen Williams'
"picture" in a local newspaper clipping in connection with this movement. Vaughn
further admitted having experienced difficulty with Roviscane , who had "shut down"
a certain project under his supervision.
Except for finding ( 8), below, the credible testimony of Williams is the chief
basis for the following findings of events immediately relevant to his termination:
( 1) In the spring of 1962, Williams worked on both of the two jobs the Respondent
had in Cleveland as well as the Company's garage in that city.
( 2) As construction on these jobs slacked off and was completed the last of
April , Superintendent Bevans told Williams that in the event no new projects de-
veloped in Cleveland he would put him on a certain crane in nearby Lorain, where
other work was in progress.
(3) Shortly after this promise Bevans informed Williams that he would have to
lay him off. The operator protested , pointing out that he would not be able to get
a job through the union hall and because of his age he could not get factory work.
Bevans replied that he had done everything he could to keep him employed , but was
at the "end" of his "rope ." He added that Williams' so -called "friends" wanted to
make him the "goat." He finally agreed to keep him on a while longer , and said that
"maybe something will come up, and we will put you over in Lorain." The super-
intendent ended the conversation by stating that he was "quite a politician" himself,
and would "try to handle it."
(4) From then until May 25, Williams put in nearly half his time setting up and
repairing equipment at Lorain.'
(5) While at the Lorain garage, in mid-May , Williams observed that someone
was operating the big crane which Bevans had indicated he would be sent to run.
He asked Whitaker who was running it. The assistant superintendent replied that
the master mechanic at Lorain , Kunkle, had called in one Baxter to operate it,
and added , "they was squawking about you going to work." 2 Whitaker also told
Williams that he did not understand why he was not kept in Lorain, since there was
plenty of work for him there , instead of going back and forth to Cleveland.
(6) At about the same date , while working at Cleveland , Williams received a
telephone call from Bevans, then in Lorain, in which the superintendent warned
him to stay in the garage when he came to Lorain , and not "go near the men or
the equipment on the job." He explained that if he did go out on the job "the engi-
neers are going to walk off the job." Williams said he did not understand . Bevans
replied that he would have understood had he been there in Lorain that morning,
when "all hell broke loose." 3
(7) When finally dismissed on May 25, Williams was told by Bevans that he had
to lay him off. The superintendent declared that he had done all he could to keep
him on , and said that if he got his union book back he would give him a job He
added that he had come to the "end of the road ," and that "the operators and
truckers were going to chase him right out of town" and would walk off the job if
he were sent over to Lorain to work. He gave Williams his card, wrote upon it his
home telephone number, and told the employee to have anyone "interested"
i The Trial Examiner cannot believe the testimony of Bevans and his assistant, Whitaker
that Williams did no repair work in Lorain during this period. Williams ' testimony on
this point has the corroboration of his wife , who from their home in Lorain drove him to
and from his Lorain work , and of a disinterested ironworker, an employee of the Re-
spondent at Lorain Had there been truth in the supervisors ' denials that he did work
at Lorain, it is reasonable to believe that the Respondent would have brought forward
his work record's for that period.
2 The Trial Examiner does not credit Whitaker 's equivocal denial that he made this re-
mark about Baxter : "No, sir, not that I know of " It is undisputed that Baxter had been
newly hired at Lorain
8 Bevans admitted having told Williams to stay with his equipment , but denied giving
the employee the above -quoted explanation His denial is not credited.
AMERICAN BRIDGE DIV., UNITED STATES STEEL CORP. 945
in hiring him "call him night or day" and he "would give" him "the best
recommendation." 4
(8) Late in November, Attorney Miller, then retained by Williams, and a court
reporter visited Bevans at his home. When the attorney asked Bevans if he would
not have given Williams work at Lorain had it not been for the pressure placed upon
him by the Union, the superintendent evaded the question and said he would make
no comment.5
C. Conclusions
As noted above in footnotes, the Trial Examiner cannot credit the denials of
Bevans and his assistant, Whitaker. In the first place, it is most difficult to believe
that Williams, admittedly held for so many years in the high regard of succeeding
superintendents, should fabricate out of pure imagination the details of conversa-
tions described herein. Bevans, in the hearing room throughout the operator's tes-
timony, revealed neither surprise nor concern as Williams narrated the several events.
When, as a witness himself, Bevans voiced his denials in response to leading questions,
he did so as if by rote. Whitaker, when stating his first few denials, tempered them
by adding: "not to the best of my knowledge." As if discovering that a stark denial
could be as conveniently uttered as equivocal ones, his negatives then came without
such defensive reservations.
Nor did Bevans offer any credible reason, under any circumstances, for failing to
transfer so valuable an employee to the nearby job also under his supervision in
Lorain. Others who had worked in Cleveland were transferred, and new operators
were hired, all during the time of the slacking off of work in Cleveland. His mere
claim that there was no more work for him is unsupported by any company records
and is incredible.
And although Local No. 18 was not made a party to these proceedings, public
records of Board and court decisions establish that other locals of the same Inter-
national have engaged in numerous acts of unlawful nature in putting pressure upon
employers in order to deprive dissenting employees or members of their employment.
And it is undisputed that Local No. 18, through its business agent, had tried to pre-
vent a former superintendent of the Respondent from promoting Williams.
The Trial Examiner fully believes that both Whitaker and Bevans, as witnesses,
were persuaded to disclaim such pressure from Local No. 18 only because they feared
reprisals from that organization.
In short, the Trial Examiner concludes and finds that the preponderance of credible
evidence sustains the allegations of the complaint as to the termination of Williams'
employment on May 25, 1962. By yielding to union pressure the Respondent, in
effect, unlawfully discriminated as to the tenure of Williams' employment to en-
courage membership in good standing in a labor organization, and thereby interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirm-
ative action 'to effectuate the policies of the Act.
It will be recommended that the Respondent offer Orville Williams immediate and
full reinstatement to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the discrimination against him, by pay-
ment to him of a sum of money equal to that which he would have earned as wages,
4 There is no dispute that Bevans gave his card for reference. Bevans' denials as to
the reasons he gave Williams for dismissing him are not credited
5 The attorney's account of this interview is, in substance, corroborated by the dis-
interested court reporter Bevans admitted the occasion, conceded he had told the attorney
he had done all he could do for Williams, and said he had told Miller that pressure had
been put upon him. As a witness Bevans claimed that he meant `!pressure" from
Williams.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absent the discrimination against him, from May 25, 1962, to the date of the offer
of reinstatement, in the manner prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289. The backpay obligations of the Respondent shall include the
payment of interest at the rate of 6 percent to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the serious and continued nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of Orville Williams, to en-
courage membership in good standing in the above-named labor organization, the
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 employees in the exercise of
rights guaranteed by Section 7 of the Act, the 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 within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that American Bridge
Division, United States Steel Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Encouraging membership in good standing in any labor organization by
discharging, laying off, or refusing to reinstate any of its employees or in any other
manner discriminating in regard to hire or tenure of employment, or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action, to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Orville Williams to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth in the section
above entitled "The Remedy."
(b) Make available to the Board or its agents, for examination and copying, all
payroll and other records necessary for the determination of the amount of backpay
due and the right of reinstatement under terms described herein.
(c) Post at its operations in Cleveland and Lorain, Ohio, copies of the attached
notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed by the Respondent's
duly authorized representative, be posted immediately upon receipt thereof and
maintained for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced or covered by any other
material.
6 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Circuit Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
LOCAL 110, SHEET METAL WORKERS INT'L ASSN., ETC. 947
(d) Notify the Regional Director for the Eighth Region , in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order what steps have been taken to comply herewith.?
7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
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, as amended, we hereby notify you that:
WE WILL NOT encourage membership of any employee in any labor organiza-
tion by discharging or laying off any employee, or in any other manner discrim-
inating against any employee in regard to hire, tenure of employment, or any
term or condition of employment, except as authorized by Section 8(a) (3) of
the Act.
WE WILL NOT interfere with, restrain, or coerce employees in any manner,
in connection with the exercise of the right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3) of the Act.
WE WILL offer Orville Williams immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay suffered
by reason of our discrimination against him.
AMERICAN BRIDGE DIVISION, UNITED STATES
STEEL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from 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, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465
if they have any question concerning this notice or compliance with its provisions.
Local 110, Sheet Metal Workers International Association, AFL-
CIO, and its Agents Allen Board and Randolph Heyser and
Brown and Williamson Tobacco Corporation, Charging Party
and Lodge 681, International Association of Machinists, AFL-
CIO, Party to the Dispute. Case No. 9-CD-64. July 30, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the filing of charges under Section
8 (b) (4) (D) of the Act. A hearing was held before Donald G. Logs-
don, hearing officer, on April 1, 2, and 3, 1963. All parties who
143 NLRB No. 99.
717-672-64-vol . 143-61