American Sheet Metal Works

National Labor Relations Board - Board Decisions

Jun 27, 1942

41 N.L.R.B. 1383 (N.L.R.B. 1942)

In the Matter of AMERICAN SHEET METAL WORKS, NEW ORLEANS,
LOUISIANA and STEEL WORKERS ORGANIZING COMMITTEE, LOCAL 2179,
AFFILIATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-2115.-Decided June 27, 1942
Jurisdiction : sheet metal products industry.
Unfair Labor Practices:
Intcrfcrence, Restraint, and Coercion: warning and questioning employees.with
respect to their union activities.
Discrimination: discharge of one employee, charges of, dismissed ; strike pro-
voked by discharge not caused or prolonged by unfair labor practices of
employer.
Collective Ban gaining: majority membership in union undisputed-refusal to
bargain in good faith: granting of individual raises throughout plant follow-
ing assertion during negotiations that it could not afford general wage increase;
failure to submit contemplated individual wage increases as possible basis
of agreement.
'Unit Appropriate for Collective Bargaining : all inside production and main-
tenance employees, excluding foremen, supervisory and office personnel, a
journeyman and an apprentice.
Mr. C. Paul Barker; for the Board.
Mr. Sam'wel Lang, of New Orleans, La., for the respondent.
Mr. John Bouche, of New Orleans, La., for the Union.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, Local 2179, affiliated with Congress of Indus-
trial Organizations, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for
the Fifteenth Region (New Orleans, Louisiana), issued its complaint
dated November 28,1941, against American Sheet Metal Works of New
Orleans, Louisiana, 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), (3), and
41 N. L. R. B., No 247.
1383
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) and Section 2 (6) and ( 7) of the National Labor Relations Act,
49 Stat. 449 , herein called the Act. Copies of the complaint , accom-
panied by notice of hearing, were duly served upon the respondent
and the Union. On December 10, 1941, the complaint was amended
to enlarge the allegations with reference to unfair labor practices
within the meaning of Section 8 (1) of the Act, -and on December 11,
1941 , the complaint was further amended by the addition of the name
of one employee to the list of those against whom the respondent is
alleged to have discriminated . Notice of such amendments were duly
served on the respondent and the Union and extension of the time of
hearing because of such amendment was waived by all parties.
With respect to the unfair labor practices the complaint, as amended,
alleged in substance ( 1) that on or about -July 31, 1941, the respondent
discharged Alberta Smith, a female negro employee , because of her
membership in and activities on behalf of the Union; ( 2) that on or
about August 28,041, the members of the Union , about 80 in number,
went on strike because of the discharge of said employee and that the
strike continued until October 18, 1941, when it was terminated; (3)
that during the strike the respondent attempted to interfere with the
strike and the Union by representing that the strike was over -and
had been lost-and by soliciting individuals to return to work; (4) that
on August 22, 1941, and at all times thereafter ,' the Union has been
the exclusive representative of the employees of the respondent within
a unit appropriate for the purposes of collective 'bargaining and that
on or about September 7, 1941, and at all times thereafter , the respond-
ent refused to bargain collectively -with the Union as the exclusive
representative of such employees ; (5) that by the foregoing acts, and
by questioning employees concerning the Union , by spying on union
meetings , and by making disparaging remarks concerning the Union,
the respondent aggravated, prolonged, and continued the above-
described strike, and interfered with, restrained and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act; and ( 6) that on or about October 18 , 1941, the date the strike
terminated , the respondent failed and refused to reemploy or reinstate
29 named employee's who engaged in the strike , because of their mem-
bership in or activities on behalf of 'the Union.
On December 6, 1941 , the respondent filed its answer which, as
subsquently amended, admits certain allegations of the complaint
concerning the nature of its business and the representation by the
Union of all the employees in the alleged 'appropriate unit, but denies
that it had engaged in or was engaging in the alleged unfair labor
practices.
Pursuant to notice , a. hearing was held from December 11 to 16, 1941,
inclusive , at New Orleans, Louisiana , before R. N. Denham , the Trial
AMERICAN SHEET METAL WORKS 1385
Examiner duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and the Union by its
representative. All 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. The Trial
Examiner granted a motion by the respondent to exclude prospective
witnesses from the hearing room. During the course of the hearing,
the respondent offered in evidence two letters dated December 8 and
9,,19,41, respectively, which it had received from the American Mutual
Liability, Insurance Company relative to, the abnormal accident rate
existing, at. the respondent,'s plant and the corresponding increase in
the premium rates necessitated thereby. The Trial Examiner rejected
these exhibits, but in his Intermediate Report reversed his prior-ruling
and admitted them in evidence. The ruling is hereby, affirmed. At
the conclusion of the hearing, the Trial Examiner, granted a motion
by counsel for the Board to conformthe pleadings; to the proof with
respect to names and dates, and other matters, not related to the funda-
mental issues involved in the controversy. During the course of the
hearing, the Trial Examiner ruled upon other motions and upon ob-
jections 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. At the close of the
hearing, oral argument before the Trial Examiner was waived by
all parties. The respondent submitted a brief to the Trial Examiner.
The Trial Examiner thereafter filed his Intermediate Report dated
February 20, 1942, copies- of which were duly served upon the parties,
in which he found that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act.
He accordingly recommended that the respondent cease and desist
from engaging in the unfair labor practices and that it take certain
affirmative action to effectuate the policies of the Act. The ,Trial
Examiner further recommended that the complaint be dismissed
insofar as it alleged that the respondent,' by attempting to inter-
fere with the strike, by spying on union meetings and questioning
employees concerning them, and by discriminating in regard to the
hire or tenure of its employees, had engaged in unfair labor prac-
tices. On March 19 and 27,, 1942, respectively, the respondent and
the Union filed exceptions to the Intermediate Report together with
briefs in support of their exceptions. Neither the respondent nor
the Union requested oral argument before the Board. The Board
has considered the briefs and the exceptions to the Intermediate Re-
port and, insofar as the exceptions are inconsistent with the findings,
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions, and order set' forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
American Sheet Metal Works is a corporation having its office
and plant in New Orleans, Louisiana. It is engaged in the fabrica=
tion, sale, and distribution of sheet metal products. The principal
raw materials used in connection with the operations of the respond-
ent are steel, copper, aluminum, lumber, paint, and hardware. The
respondent uses annually raw materials to the value of $75,000, 95
percent of which are shipped to the respondent's plant from points
outside the State of Louisiana. It produces annually finished prod-
ucts valued in excess of $175,000, approximately 75' percent of which
are shipped outside the State of Louisiana:
II. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee, Local 2179, is a labor organ-
ization affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
For several years the sheet metal workers employed by the respond-
ent on the outside installation of metal covered doors and windows,
guttering, down-spouts, ventilators, and other similar sheet metal
materials ordinarily used in building construction, have operated
under an industry-wide closed-shop agreement applicable throughout
the city of New Orleans, with Sheet Metal Workers' International
Association, Local No. 11, affiliated with the New Orleans Building
and Construction Trades Council, American Federation of Labor.
This agreement applies only to the outside workers. Until the early
part of 1941, the production and maintenance employees working
inside the plant, about 140 in number, had not been organized.
The Union commenced its organizing activities among the inside
employees of the respondent in March 1941, and on April 14, 1941,
petitioned the Board for an investigation and certification of repre-
sentatives. On July 23, 1941, following a hearing on the petition,
the Board directed an election among the respondent's production
AMERICAN SHEET METAL WORKS 1387
&nd maintenance -employees.' The election was conducted by the
Board on August 1, 1941, the Union receiving a substantial majority
of the votes cast therein.
On July 31, 1941, the day before the election, the respondent dis-
charged Alberta Smith, the only colored member of the Union's
organizing committee.' On August 11, 1941, Bouche, the Union's
representative, met with officials of the respondent in an effort to
obtain Smith's reinstatement.' , The discharge was discussed in de--
ail, with the respondent refusing to reinstate Smith on the ground
that her conduct had been such as would create a hazardous condition
in the plant if allowed to persist and constituted ample cause for her-
discharge. Because of the respondent's, refusal to reinstate, Smith,
the Union voted to strike, and on the morning of August 29, a
picket line was formed at the respondent's plant. The entire union
membership, consisting of approximately 80 employees, together with
some non-member employees, participated in the strike, which con
tinued for about 7 weeks.
On August 22, 1941, the Board certified the Union as the exclusive
bargaining representative of all the inside production and mainte-
nance employees of the respondent.' On September 3, while the strike
was still in progress, the Union and the respondent entered into nego-
tiations for a working agreement. On October 15, prior to a ter-
mination of the negotiations, the Union voted to end the strike and
to return to work, notifying the respondent to that effect.5 The bar
gaining conferences continued until October 31, at which time they'
terminated, no agreement having been reached as to the terms of the,
proposed contract. -
B. Interference, restraint, and coercion
According to the testimony of Victoria O'Cause, a colored em-
ployee, she was approached by Ned J. Falgoust, her foreman," in
'Matter of American Sheet Metal Works and Steel Workers Organizing Committee,
Local 2179, affiliated with the Congr ess of Industrial Organizations, 33 N L R B. 750 The
appropriate unit, as defined by , the Board , embraced approximately 140 inside employees,.
including about 30 colored female employees
2 The oigamzational committee was composed of four white male employees and
Albeita Smith . Smith ' s discharge is hereinafter discussed
'At this meeting, the respondent called attention to the fact that the Union had won
the election and offered to engage immediately in bargaining conferences with the Union
without awaiting the issuance of it formal certification by the Boaid Bouche declined,
stating that he felt that he had no authority to enter into negotiations until Smith had
been reinstated
41d footnote 1, 34 N L R B 758
"On October 20, 1941 , the stiikeis who had not already returned to work began to,
report at the plant . Some were put to work immediately , and by November 10, 1941,
all the strikers had been reinstated oi•offered reinstatement. -
- "Falgoust was foreman over the department that employed approximately 30 colored-
women , all of whom were engaged principally in the manufacture of mail boxes and
similar metal products -
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 1941 at about the time the Union commenced its organizing
campaign, and questioned as to whether she knew about the Union
and whether Alberta Smith was a member of the organizing commit-
tee. Falgoust denied that he had questioned O'Cause concerning the
Union or Smith's union activities, but admitted that he had ques-
tioned Mary Rowan, another colored employee, as to whether she had,
attended a meeting of the Union. Falgoust testified that in April
he had found a union circular on his, desk announcing a meeting of
the respondent's employees, and that on the day following the meet-
ing, he had asked Rowan how she "made out," at the meeting, to
which Rowan replied that she had not attended because she had been
working that night. Rowan likewise testified that she had been ques-
tioned by Falgoust concerning her attendance at a union meeting,
and that she had replied that she had been working that night and
did not attend. Rowan further testified, however, that on that occa-
sion Falgoust had taken her into the first-aid room during working
hours and spent 45 minutes talking to her about the Union, and that
he -told her not to join the Union but to "stick with the company."
According to Rowan, Falgoust also asked her whether Smith was
on the organizing committee, andfinally requested her to let him know
when the Union was going to hold another meeting. Falgoust denied
that he took Rowan to the first-aid room other than to administer
first aid, or that he.-had questioned her concerning the Union other
than as he testified -above. From the corroborative nature of their
testimony with respect to Rowan's attendance at the union meeting,
it is evident that Falgoust and Rowan were referring to the same con-
versation. While Rowan placed the time of the conversation as July
1941, it is evident from the nature of the conversation and the fact that
Falgoust was well aware of the extent of union activity among,the
colored women by July, that Rowan was merely mistaken as to the
date. In view of the fact that Falgoust admittedly questioned
Rowan in April concerning the Union, we credit the testimony of
both O'Cause and Rowan, and find that their conversations with Fal-
goust occurred in April substantially as they testified to above.
Stella Guidry, one of the colored women working under Falgoust,
testified that on the day after the strike started, she returned to the
plant to get the wages due her. As she stood in line at the pay win-
dow, some irregularity was discovered in her pay account and she
was asked to step aside. Guidry further testified that while she was
waiting Falgoust spoke to her, saying, "Well, I hope you all know
what you are doing, but I don't think you do know what you are
doing," and that about this time, Sam Centanni, foreman of the win-
dow department, who was nearby, said, "Yes, you will all be back
when you get hungry." Although Falgoust and Centanni denied
AMERICAN SHEET METAL WORKS 1389
'having made these statements, we find, as did the Trial Examiner,
that they were made substantially as testified to by Guidry.
Joseph J. Gendusa, one of the strikers, testified that after the strike
had been in existence for about 6 weeks, he' returned to the plant to
remove his old clothing and had a conversation with Falgoust con-
cerning which lie testified as follows :
Q. Will you tell us what Ned Falgoust said to you on that
occasion?
A. He came into the dressing room with me, and he asked me
what I was going to do. You see, he didn't ask me to go back
in just so many words, but he threw a hint out to me.
Q. Tell us what he said. What did he say?
A. He said the place would be filled up pretty soon with
these men and that I would be left out in the cold and wouldn't
be able to go back to work.
Falgoust recalled this incident. His version was that when Gendusa
came for his clothes, he let him into the dressing room, and that
while Gendusa was gathering his belongings, he inquired, "What are
you going to do, Joe?", to which Gendusa replied that he did not
know. According to Falgoust, there was no further conversation.
We find, as did the Trial Examiner, that Falgoust warned Gendusa
that if he did not return to work soon his position would be filled
by a new employee.
While the respondent maintains that it had instructed its foremen
to maintain a position of neutrality with respect to the union activ-
ities of its employees, it is obvious that such injunction was violated
by Falgoust. We do not agree with the finding of the Trial Exam-
iner that Falgoust's questioning of Rowan and O'Cause and his warn-
ing to Gendusa were merely, personal expressions of opinion and,
standing alone, not inherently coercive. Clearly, the questioning of
employees with respect to-their union activities permits no possible
interpretation of being merely an "expression of opinion," and that
such questioning is inherently coercive is apparent. The coercion in-
herent in the warning of employees with respect to their union activ-
ity is likewise obvious. While isolated anti-union statements and
expressions of opinion unaccompanied by any, other conduct on the
part of an employer indicative of hostility towards the union activ-
ities of its employees, might not be deemed coercive under certain
circumstances, such is not the case where, as here,-an employer not
only does nothing to dispel the hostility evinced by the statements
of his supervisory employees, but also engages in conduct consistent
'1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with such statements.7 The respondent not only failed to advise
its employees of the neutral position which it allegedly had instructed
its foremen to adopt but, as hereinafter found, refused to bargain
in good faith with the Union. It is thus apparent that the re-
spondent pursued a course of conduct consistent with that initiated
by Falgoust at the very beginning of the Union's organizing cam-
paign. Moreover, the particular disfavor initially shown by the
respondent toward the union activities of its colored women em-
ployees, is enhanced by the adamant position it subsequently adopted
in refusing to consider the Union's demand that such employees be
included in the proposed wage increase." Although the women em-
ployees joined the'Union notwithstanding Falgoust's coercive activ-
ities, this fact does not make the respondent's conduct any less viola-
tive of the Act.9
We find that by the activities of Falgoust in disparaging the Union
and in warning and questioning employees with respect to their
union activities, above set forth, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The complaint also alleged that the respondent had engaged in
surveillance of meetings of the Union. In this connection, Alberta
Smith testified that on the evening of July 22, she saw Falgoust
standing on the street corner about one-half block from the union
meeting hall, and that she spoke to him as she passed on her way
from the hall, but received no reply. Falgoust denied that he had
been anywhere near the union hall on the day in question, and sub-
stantial and credible evidence was introduced in support of his
denial. Upon all the evidence pertaining to this incident, we find,
as did the Trial Examiner, that the respondent did not subject meet-
ings of the Union to surveillance. We shall accordingly dismiss this
allegation of the complaint.
7 Cf. N. L R B. v. Virginia Electric and Power Coinpany , 314 U. 'S. 469 , rev. and
_rem N L R B v . Virginia Electiio and Power Company , 115 F ( 2d) 414 (C. C A. 4),
setting aside Matter of Virginia Electric it Power Company and Transport Workers Union
of America, et al ., 20 N L R. B 911. -
8 Louis P Durand , president of the respondent , testified that during negotiations he
"made it very clear " that he would not increase the pay of any woman emplo3 ee be-
cause "they veie part of the machine, they didn ' t advance at all, they were there,'and
that is all, and they were a part of that machine, they could not progress."
9 Matter of Montgomery Ward and Company and Warehouse Employees' Union, No.
20,297, affiliated with the A F of L, 17 N. L. R. B. 191 , enforced Montgomery Ward &
Co v N L. R B ., 115 F. (2d) 700 (C C A 8),
AMERICAN SHEET METAL WORKS, '1391
C. The discharge of Alberta Smith
Alberta Smith had been employed by the respondent at irregular
intervals from 1930 to 1935, thereafter receiving regular employment
until discharged on July 31, 1941. Smith, together with the other
colored women employees, was employed in the production of sheet
metal mail boxes and other pressed metal products. As previously
stated, Smith was the only colored member of the Union's organizing
committee.
On July 23, 1941, Smith was working on the split shift.'0 - Prior
to quitting time that afternoon, the timekeeper came to her with
her time card for the previous Sunday which had been punched at
4: 01 p. m. and asked her to sign a slip certifying that she had failed
properly to punch the card and that it should have been punched
at 2: 30 p. m. Smith protested that she had worked 91/2 hours but,
on the timekeeper's insistence, signed the slip and announced that she
would talk to Falgoust about it. Smith testified that shortly there-
after she punched out at 2: 30 p. m., saw Falgoust coming in her
direction, stopped him and asked why her card had been changed
so as to deprive her of 11/2 hours of overtime, and- was told by Fal-
goust that the women could not put in overtime."' She further tes-
tified that she then started toward the dressing room at the rear of
the shop, but stopped to wait for Viola Jones, another colored em-
ployee just quitting the split shift; that when Jones reached her, they
spoke a few words which caused Smith to laugh 'loudly and that just
then Durand, the respondent's president, appeared; that Jones ex-
claimed that Durand was coming and started to walk away; that
Durand approached her (Smith) and said "go' upstairs and get
your time"; and that when she protested that it was 2: 40 p. m. and
that she was off duty, Durand merely reiterated his order that she
get her "time." In explanation of his discharge of,Smith, Durand
testified that while he was in the adjoining shipping room, he heard
loud shouts and screams above the noise of the factory and immedi-
ately went into the factory proper where he saw Smith and Jones
in the immediate vicinity of the presses where they work; 2 that just
as he saw them, Smith pushed Jones, who gave a shout and leaped
away in a frog-like manner; that he considered such conduct to be
dangerous "horseplay" and walked over toward the women; that as
10 The regular shift at the respondent 's plant is from 8 a in . to 5 p in. with an
hour for lunch . A few of the colored women , however, are called upon to work a
"split" shift whereby they go to work at 5.30 a. in. and quit at 2:30 p in. When
the employees on the split shift quit work , the rest of the employees continue to work
as usual without any interruption in operations.
"The laws of the State of Louisiana make it a criminal offense for an employer to
permit female employees to work more than 8 hours in any 24 -hour period
"The presses on which Smith worked were located near the side wall at the rear
of the plant , approximately 12 feet from two heavy shearing machines employed in the
cutting of sheet metal. -
1392 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
he did so, Jones walked 'away, Smith remaining where she was; and
that he thereupon discharged Smith without comment or explanation.
He further 'testified that if Jones had remained with -Smith, he
probably would have discharged her also.
`The manufacturing 'division of the respondent's plant covers 'a
ground floor space about 150 feet square, most of which is occupied
by presses, shears, and other admittedly dangerous machinery. In
,recent years, the accident rate among the respondent's employees
has-been high, resulting in a corresponding increase in the premiums
paid by the respondent for workmen's, compensation insurance.'?
For a -consiclera`ble time, the accident rate and consequent high insur
ance 'cost have `been -of material 'concern'to the respondent, and con-
tinuous efforts have been made to eliminate any unnecessarily haz-
'a`rdous conditions in the plant. Safety posters 'are prominently
•diephiyed and frequently 'changed. Considerable stress is placed by
the respondent upon the danger of engaging in "horseplay" in the
plant, and 'the rule 'against it is well known to the'employees. Run-
fling in The 'aisles,is likewise forbidden. While a certain amount of
boisterbu's•conduct is permitted 'to take place at-quitting time, it-occurs
only in front- of the 'dressing room where "the colored women `custom-
arily congregate while waiting for someone to 'bring the 'key and
open the'd-oor for't'heln.
- The testimony is in conflict as to where `Smith and Jones were
standing when Durand {first saw -them and also 'as 'to whether -Smith
pushed -Jones. 'Smith 'and Jones testified they 'were standing 'iii an
-open space 'at the -rear of the factory, and that whil'e Smith was
laughing, `there was no pushing or 'shoving. Smith 'did 'admit, how-
ever, '-that she 3h'ad -hold of Jones' arm land 'was 'leaning over her.
William Bergeron,'a'lay-out man and a member 'df'the Union,testi'Cied
'that he was attracted 'by 'tlie loud l'aughter which 'he -heard above the
n`orm'al noises-of•the pl'an't, and looked 'u'p just'as 'Durand 'approached
Smith. Bergeron's 'description of the location -of Smith and Jones
places `them intthe aisle that is -flanked on'one'side `by'the presses and
on the 'other 'by the shearing machines, (approximately 5 or 10 feet
from the nearest machine. Pearl Manchester, -one -of the women
workers, likewise did not see 'Smith and Jones prior 'to 'Durand's
arrival; but she also placed them in close proximity to the machinery
and 'not out in 'the open space 'where 'Smith and Jones alleged the
incident occurred. If Smith and Jones had been doing -no more
than they 'described, it is 'doubtful if Bergeron, despite the clatter
of the machinery, would -have been attracted by the noise they were
making. Further doubt is cast upon the propriety of their conduct
by the fact that Jones upon seeing Durand immediately warned
13 In 1939 , the accident i ate was •19 2 percent above average ; in 1940 , 10.4 percent
above average , and in 1941 , 19 9 percent above average.
AMERICAN SHEET METAL WORKS 1393
Smith and then walked away, obviously to avoid an encounter with
Durand.
In view of all the circumstances surrounding the incident, we
credit, as did the Trial Examiner, Durand's testimony that Smith was,
in fact, engaging in conduct contrary to that normally indulged in
by employees coming off the split shift. Although Falgoust admitted
that he knew Smith was a member of the Union, it does not appear
that either he or Durand harbored any particular antipathy towards
Smith because of her union activities. 'WTe are convinced; as was the
Trial Examiner, that Durand discharged Smith because she had en-
gaged in conduct which he reasonably believed to be hazardous and
in violation of well known safety rules.14
We find that the respondent has not discriminated in regard to
the hire or tenure of employment of Alberta Smith, thereby dis-
couraging membership in a labor organization.
D. The sty°ike
As previously stated, the Union called its strike on August 29,
1941, in protest against the respondent's discharge of Alberta Smith.
Although a substantial number of the strikers returned to work
before the strike was officially terminated by the Union, it was nec-
essary for the respondent to employ additional personnel to keep
the plant in operation. The strike continued without incident until
October 15, 1941, when as heretofore noted, the Union voted to ter-
minate the strike, effective as of October 18, and advised all the
strikers to report for work on October '20 and, in no event, later
than 7 a. in. on October 23.15 All the strikers who had not pre-
viously returned to work or obtained satisfactory employment else-
where reported at the plant and were sent by their respective foremen
to the office to register. Those who were not immediately put to
work were advised that they would be reinstated as soon as positions
could be made available for them. There were 28 in this latter
category, all of whom were reinstated or offered reinstatement by
November 10, 1941. One other employee, Joseph Gendusa, reported
to his foreman, but when told that he was required to make applica-
tion at the office, he refused to do so, stating, as he testified, that
he had a better job which paid almost twice as much as he had
received from the respondent, and that he did not care to return to
14 In 1940, Smith was 'away from work for several months because of an injury to
her hand while working on the presses , and from July 9 to 24 , 1941 , she was again
incapacltated , b.v injuries accidentally received at the plant
"Notwithstanding the fact that during the progress of the strike the Union and the
respondent initiated a series of bargaining conferences , no mention was made of Snuth's
discharge at any of these conferences and no effort was made by the Union - to effect
a settlement with respect to rts prior demand for her reinstatement.
463892-42-vol. 41-88
1394 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his former position unless he was paid the higher rate which he was
receiving in his new employment. Gendusa wilfully refused to apply
for reinstatement in conformity with a reasonable procedure pro-
vided for by the respondent, and accordingly we find, as did the Trial
Examiner, that the respondent did not refuse to reinstate him to his
former position.
Since. the discharge of Alberta Smith was the cause of the strike,
and since we have found above that such discharge was for cause
and not because of Smith's union activities, it follows, and we find,
that the strike was not the result of any unfair labor practices of the
respondent. Accordingly, the respondent was under no obligation to
discharge any newly hired employees to make jobs available for the
returning strikers. The respondent, nevertheless, took steps to facil-
itate the reinstatement of all the strikers as soon as possible by insti-
tuting a second work shift. The time necessitated by such increase
in operations, together with the short notice given by the Union with
respect to terminating the strike, was apparently responsible for the
several weeks' delay in the reinstatement of the remaining strikers
who had not received reemployment immediately upon application.
In view of the foregoing, we find that the failure of the respondent
to reinstate all or any of the strikers to their former positions imme-
diately upon application was not discriminatory or designed to dis-
courage membership in the Union.
E. The refusal to bargain
1. The appropriate unit
In its Decision and Direction of Election issued on July 23, 1941,16
the Board found that all inside production and maintenance em-
ployees of the respondent, excluding foremen, supervisory and office
personnel, Robert Schuler, a journeyman, and L. Boettner, an appren-
tice, constitute a unit appropriate for the purposes of collective
bargaining. The respondent admits that the foregoing unit is
appropriate.
We find that all inside production and maintenance employees of
the respondent, excluding foremen, supervisory and office personnel,
-Robert Schuler, a journeyman, and L. Boettner, an apprentice, at
all times material herein constituted, and they now . constitute, a
unit appropriate for the purposes of collective bargaining, and that
said unit insures to employees of the respondent the full benefit of
their right to self-organization and to-collective bargaining and
otherwise effectuates the policies of the Act.
11 See footnote 1, 8upraa.-
AMERICAN SHEET METAL WORKS 1395
2. Representation by the Union of a majority in the appropriate unit
On August 22, 1941, the Board, following an election by secret
ballot, certified that the Union had been duly chosen as the exclusive
bargaining representative by a majority of the employees in the
-unit above found to be appropriate." The respondent likewise ad-
mits that the Union is the duly designated representative of its inside
production and maintenance employees.
We find that on August 22, 1941, the Union was, and at all times
thereafter has been, the duly designated representative of a majority
of the employees in the appropriate unit and that it was and is there-
fore the exclusive representative of all the employees in such unit
for the purposes of collective bargaining.
3. The refusal to bargain
On September 8, 1941, following the Board's certification of the
Union as the exclusive bargaining representative, the-Union and the
respondent held their first bargaining conference. At this meeting,
the Union presented a proposed contract which provided, inter alia,
for a blanket increase of 20 cents per hour, and a minimum basic
wage of 50 cents per hour for employees who had been on the pay
roll 60 days; a 40-hour, 5-day week, double time for Saturdays, Sun-
days, and 7 stated holidays; a closed shop and check-off; plant-wide
seniority; a grievance procedure including arbitration; vacations
with pay; and the abandonment of strikes and lock-outs. The con-
ference was then adjourned upon request of the respondent that it
be granted time in which to study the proposed contract.
On September 15, 1941, the Union and the respondent again met
to discuss the terms of the proposed contract. The respondent took
the position that while it could not subscribe to the closed shop and
the check-off, it would leave the subject open for further discussion;
that it could not operate on a 5-day week basis; that it would con-
sider extra pay for work on Sundays and the 7 stated holidays but
would not pay overtime for Saturday work unless it brought the total
for the week to more than 40 hours, in which event it would pay time
and one-half. The demand for a blanket wage increase of 20 cents
per hour and the proposal to raise the minimum basic wage from 30
cents to 50 cents per hour were refused on the ground that the re-
spondent.could not afford .wage increases. This position was not
challenged by the Union, and no request was made to review the
respondent's operating costs. The respondent offered to increase
the minimum basic rate for the men by 1 cent per hour, which
17 See footnote 4, supra.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was admittedly proffered only as a "token" and not as a substantial_
wage increase. At the same time, the respondent took the position
that 30 cents per hour represented the most it could pay the colored
women and refused to consider any increase for' them.18 On the_
subject of vacations with pay, the respondent kept the discussion
open but was generally disinclined to allow them. Arbitration of
grievances was another provision to which the respondent stated that
it could not agree. While there was considerable discussion on the
subject of seniority, the respondent and the Union were unable to
agree upon the extent to which the rule of seniority should apply.
On September 26, the respondent submitted to,the Union a written
memorandum, setting forth its position seriatim to the provisions of
the proposed contract. In this memorandum, the respondent agreed
to the payment of double time for holidays and time and one-half
for Sundays, and compromised its refusal to accede to the arbitra-
tion of grievances by agreeing to the elimination of the "no strike"
restriction. While the respondent expressed a willingness to discuss,
further some of the Union's proposals, it stated that with reference
to seniority it was "not disposed to go into this matter with the
union." In all other respects, the position of the respondent as set
forth in the memorandum was substantially the same as that main-
tained at the second conference on September 15. It remained un-
changed throughout the ensuing conferences on October 3, 7, 15, 20,
and 31. At the October 20 conference, the Union stressed its request
that the respondent consider further the 8-hour day proposal and
some form of general wage increase. At the last meeting on October
31, the respondent advised the Union that it could do nothing with
reference to either of these proposals.
On or about November 20, 1941, the respondent granted wage
increases of from 3 to 10 cents per hour to 60 of its 102 male em--
ployees. Durand, president of the respondent, testified that at the
time negotiations with the Union were initiated, a number of employ-
ees had already made individual demands upon him for pay increases,
and that the competitive conditions in the local labor market were
such that he knew he would be compelled to meet them by granting
some pay increases in order to retain his more experienced and
skilled employees. Durand further testified that he had refrained
from granting the contemplated wage increases until after negotia-
tions with the Union had terminated because of his fear that the
respondent would be charged with discrimination. During the bar-
gaining conferences, the respondent had made no mention of an inten-
tion to raise the wages of any of its employees, and while voicing its
'See footnote 8, supra
AMERICAN SHEET METAL WORKS 1397
'opposition to any general increase, had confined its discussion on,
the subject of wages almost entirely to the natter of an increase in
the basic minimum as proposed by the Union.
The respondent contends in its brief that it had no "preconceived
-plan of a general pay increase," and that the increases which it
granted on November 20 were the result of the respondent's "study
'of the individual applications for pay increases," and were effected
in each instance because of "some particular reason," and not' with
reference to the general wage structure existing in the plant. The
record discloses, however, that the wage increases were not isolated
instances, such as might develop from special circumstances. requir-
ing individual administrative treatment, but were part of a general
readjustment of wages among the respondent's employees. Of the
102 male employees in the employ of the respondent on November 20,
74 were being paid the basic minimum rate of 30 cents per hour,
the remaining 28 receiving various rates between 35 cents and $1 per
hour. Of the 74 being paid the minimum rate, 6 were classified as
porters, 24 were new employees hired during the strike, 28 were
new employees hired since the termination of the strike, and 16 were
old employees who had participated in the strike and returned to
work either while the strike was in progress or following its official
termination. When the respondent instituted the wage increases on
or about November 20, all the employees receiving more than 30,
cents per hour, with the exception of 1 truck driver,"' were granted
a wage increase. Of the 74 employees receiving-the basic minimum
of 30 cents per hour, all the 16 old employees, and 15 of the 24
persons newly employed during the strike, were likewise, granted an
increase in wages. Only 2' of the 28 persons employed subsequent to
the strike received wage increases. None of the porters received a
raise and, in accordance with the respondent's position, during nego-
tiations with the Union, no wage increases were granted' to any of
the colored female employees. Thus it appears that the porters, the
colored female employees, and a majority of the new employees, were
selected by the respondent for exclusion from wage increases. There
is nothing to indicate that, as the respondent contends, individual
merit dominated its selection. On the contrary, the grouping re-
vealed by the foregoing analysis belies any, such contention. While
the fact that some new employees received pay increases. raises a possi-
ble inference that merit played a part in their selection, we find,
as did the Trial Examiner, -that the, number of new, employees thus,
singled out was too few to affect the character of what otherwise
18 On March 16, 1942 , the parties entered into a stipulation correcting the designation
of Feltus Tillie , listed as a porter on the respondent 's pay roll , to that of truck
driver.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a general plant-wide wage readjustment, subject only to the,
exclusion of more or less definite- employee classifications.
The request for an increase in the basic minimum wage rate and
for an increase in wages generally, together with the related pro-
posal for an 8-hour day with time and one-half for overtime, consti-
tuted the crux of the Union's demands, as is evidenced by the emphasis
placed upon them at the bargaining conferences and the fact that
the respondent's ultimate refusal thereof resulted in a termination
of negotiations. The respondent was undoubtedly aware, therefore,
that the success of the negotiations depended primarily upon its
acceding to some form of wage betterment that would be satisfactory
to the Union. Under these circumstances, the respondent was under
an obligation, if it would fulfill the requirements of bargaining in good
faith, to advance its theory of wage determination for the Union's
consideration.20 The respondent, in its brief, gainsays the existence
of any obligation in this regard, pointing out that the Union had
never requested individual increases upon a merit basis, and that it
had reason to assume that the Union would not be "interested in the
least" in a discussion of pay increases for some of the men, when
it was aware that "the women who formed the backbone of the Union,
would be left out." The respondent, however, cannot justify its fail-
ure to submit such a counterproposal upon the mere assumption that
its submission would have been futile. The respondent's knowledge
that the Union was endeavoring to better the wage structure in the
respondent's plant prevented any reasonable belief on its part that a
proposal tending to effect such a betterment, at least in part, would
be of no interest to the Union. If the respondent had suggested the
possibility of granting individual wage increases, there is nothing
to indicate that the Union might not have elected to recede from its
demand for a uniform plant-wide wage readjustment. Moreover,-
the respondent's assumption that the Union would have no interest in
securing individual pay increases is admittedly predicated upon the
respondent's own reluctance to'permit effective representation of the,
women employees by the Union. In this regard, the rspondent's
adamant position during negotiations in refusing to consider wage,
increases for its colored women employees,21 coupled with its belief,
as expressed above,- that the latter constituted the "backbone" of the
Union's membership, is more indicative of a determination to pre-
vent the Union from successfully representing such employees than
of a bona fide effort to reach- an agreement with respect to their
20 Cf. Matter of Whither Mills Company, et at and Textile Workers O)gan?zing Com-
mittee, 15 N L R B 457 , enf'd N • L R B. v Whittie) Mills Company , 111 F. (2d)
474 (C C. A 5), ,ehearing den June 11, 1940
21 See footnote 8, supra.
AMERICAN SHEET METAL WORKS 1399
working conditions. Furthermore, the granting of a general raise of
from 3 to 10 cents an hour among its male employees casts consider-
able doubt upon the good faith of the respondent's assertion during'
negotiations that it could not afford to grant more than the 1-cent
"token" increase which it then offered. In view of the foregoing,
we conclude, as did the Trial Examiner, that by not proposing to the
Union that the general wage increase, such as the respondent was then
contemplating, might afford a possible, basis of agreement; the re-
spondent failed to bargain in good faith.
We find that on September 8, 1941, and at all times thereafter,
the respondent refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of -the. Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, B and E above,` occurring in connection with the operations
of the respondent described in Section I, above, have a close, inti-
mate, 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 certain unfair
labor practices, we shall order it to cease and desist from such prac-
tices and to take certain affirmative action designed to effectuate the
policies of the Act. We have found that the respondent refused to
bargain collectively with the Union as the exclusive representative
of its employees within an appropriate unit. Accordingly, we shall
order the respondent, upon request, to bargain with the Union as
such representative.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, Local 2179, affiliated with
Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All inside production and maintenance employees of the re-
spondent, excluding foremen, supervisory and office personnel, Rob-
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ert Schuler, a journeyman, and L. Boettner, an apprentice, at all
times material herein constituted, and now constitute, a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. Steel Workers Organizing Committee, Local 2179, affiliated
with Congress of Industrial Organizations, was, on August 22, 1941,
and, at all times thereafter has been, the exclusive representative of
all the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on September 8, 1941, and at all times thereafter
to bargain collectively with Steel Workers Organizing Committee,
Local 2179, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of the employees in the appropriate
unit, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. -
7. The respondent has not interfered with or attempted to dis-
courage and to lessen the effectiveness' of the strike or spied upon
meetings of the Union, and has not thereby engaged in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
8. The respondent has not, by discharging and refusing to reinstate
Alberta Smith, by not reinstating Joseph Gendusa on October 22,
1941, or thereafter, or by failing to reinstate immediately upon appli-
cation its striking employees, engaged in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, American Sheet Metal Works, New Orleans, Louisiana,
and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Steel Workers Organiz-
ing'Committee, Local 2179, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all of its inside
production and maintenance employees, excluding foremen, super-
AMERICAN SHEET METAL WORKS 1401
visory and office personnel, Robert Schuler, a journeyman, and L.
Boettner, an apprentice;
(b) In any other manner interfering with, restraining, or 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, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Steel Workers Organ-
izing Committee, Local 2179, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all of its inside
production and maintenance employees, excluding foremen, super-
visory and official personnel, Robert Schuler, a journeyman, and
L. Boettner, an apprentice;
(b) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraph 1 (a) and (b) hereof; and (2)
that the respondent will take the affirmative action set forth in
paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Fifteenth Region in
writing within ten, (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent, by interfering with and attempting to discourage
and to lessen the effectiveness of the strike and by spying upon meet-
ings of the Union, has engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act, and by discriminating against
its employees in regard to their hire or tenure of employment or
terms or conditions of employment, has engaged- in unfair labor
practices within the meaning of Section 8' (3) of the Act, be, and it
hereby is, dismissed.