Lincoln Steel Works

National Labor Relations Board - Board Decisions

Feb 13, 1953

102 N.L.R.B. 1359 (N.L.R.B. 1953)

LINCOLN STEEL WORKS 1359
membership and activities. N. L. R. B. V. International Furniture Company,
199 F. 2d 648 (C. A. 5).
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection 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.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
I shall recommend that the Respondent offer immediate and full reinstatement
to Donald and Gilda Galvin to their former or substantially equivalent positions 6
without prejudice to their seniority or other rights and privileges and make them
whole for any loss of pay resulting from the discrimination against them, by pay-
ing them a sum of money equal to the amount they would have earned from the
dates of their discharge to the date of offer of reinstatement less their net earn-
ings 6 to be computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company/, 90 NLRB 289, 291-294. Earnings in one quarter
shall have no effect upon the back-pay liability for any other such period. It will
also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate checking the back pay due. F. W.
Woolworth Company, supra.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CoNcLusIoNs OF LAw
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
6 The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch,
65 NLRB 827.
6 Crossett Lumber Company , 8 NLRB 444 , 497-98.
LINCOLN STEEL WORKS and INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA , LOCAL No.
83, AFL. Case No. 17-CA-09. February 13,190
Decision and Order
On November 14, 1952, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in certain unfair labor practices alleged
102 NLRB No. 144.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the complaint, and recommending that it cease and desist there-
from 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.'
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
We agree with the Trial Examiner's conclusion that the Respond-
ent's conduct in polling its employees in the presence of top manage-
ment officials on the question of whether or not the Respondent should
consent to a Board-conducted election constituted a violation of Sec-
tion 8 (a) (1) of the Act. As the Board has frequently held, attempts
to determine union strength by interrogating employees, directly or
indirectly, unlawfully coerce employees in their exercise of the rights
guaranteed under Section 7 of the Act.'
Like the Trial Examiner, we reject the Respondent's contention
that the question put to the employees was not an interrogation re-
specting their union sentiments. Both the Respondent and those of
its employees who had signed union-authorization cards supporting
the representation petition already filed knew that the Union desired
the consent election. In his remarks announcing the poll, Luft, the
Respondent's president, told the employees that his investigation of a
nearby plant revealed poorer pay under a contract with the Union;
he also stressed the Respondent's policy of generosity towards its em-
ployees. Such antiunion campaigning, however proper, was certainly
inconsistent with the Respondent's professed indifference towards
the employees' union sentiments.
In commenting in the company newspaper a few days later, the
Respondent construed the results of the poll as evidence that the
employees were ". . . not interested in further union interference,"
and expressed gratification over the confidence which the employees
had shown in the company. On these facts, we can only conclude, as
did the Trial Examiner, that the poll was in fact intended as a test
of the Union's strength, and that the employees had reasonable cause
to believe that this was its purpose. In finding that the poll was
unlawful, we do not adopt or rely upon the Trial Examiner's findings
and conclusions in which he compared the results of the poll with the
1 The Respondent 's request for oral argument is hereby denied , as the record , including
the brief, adequately presents the issues and the positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Murdock].
8 Standard -Coosa-Thatcher Company, 85 NLRB 1358.
LINCOLN STEEL WORKS 1361
Union's administrative showing of interest at the time the petition
was filed, and also with the results of the election which the Board
conducted later. As the Board has frequently held, the test of the
coercive character of a respondent's conduct is not the extent to which
that conduct did or did not achieve its purpose, but whether the con-
duct is so calculated or tends to have such an effect .4
Order
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board hereby
orders that Respondent, Lincoln Steel Works, Lincoln, Nebraska, its
agents , successors , and assigns, shall :
1. Cease and desist from questioning its employees, by conducting
polls or otherwise, as to their union desires or wishes , or in any like or
related manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization; to form labor organi-
zations , to join or assist International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, Local No. 83, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Lincoln, Nebraska, copies of the notice at-
tached to the Intermediate Report and marked "Appendix." 5 Copies
of such notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by the Respondent's au=
thorized representative, be posted by the Respondent immediately
upon receipt thereof, in conspicuous places, including all places where
notices to employees are customarily posted, and maintained by it for
a period of sixty (60) consecutive days. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing, within ten (10) days
from the date of this Decision and Order, what steps the Respondent
has taken to comply herewith.
Somerset Classics , Inc., 90 NLRB 1676; Dixie Shirt Company, Inc., 79 NLRB 127.
5 This notice shall be amended by substituting for the words "The recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order." In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant
to a Decree of the United States Court of Appeals, Enforcing an Order."
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by the International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, Local No. 83, AFL, herein called the Union,
a complaint was issued against Lincoln Steel Works, herein called the Respond-
ent, alleging violation of Section 8 (a) (1) of the National Labor Relations Act
as amended. Specifically, the complaint alleges that the Respondent on about
April 7, 1952, interrogated employees by conducting a poll among them concern-
ing their selection of a collective-bargaining representative. In its answer the
Respondent denied the commission of any unfair labor practices. The answer
alleged that prior to April 7, 1952, a representative of the Union asked the
Respondent to consent to a Board-conducted election to determine a bargaining
representative; that said representative was requested to but made no showing
of employee interest ; that thereafter the Respondent by written ballot in which
there was no coercion, threat, or interference with or restraint placed upon any
employee, provided a means for any employees who cared to do so to vote by
secret ballot on whether or not the Respondent should consent to an election to
determine a bargaining representative.
At the hearing held in Lincoln, Nebraska, on July 8, 1952, the parties were duly
represented, and all were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issue. At the
conclusion of the hearing oral argument was waived by all parties, but they re-
quested and were granted time in which to file briefs. Briefs have been received
from the General Counsel and the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS Or FACT
1. THE BUSINESS OF THE RESPONDENT
Lincoln Steel Works is a Nebraska corporation engaged at its plant in Lincoln,
Nebraska, in the fabrication and processing of structural steel and steel products.
During the calendar year ending December 31, 1951, it purchased raw materials
valued in excess of $1,000,000, of which in excess of 90 percent was shipped
directly to the Respondent from points outside the State of Nebraska. During
the same period, Respondent manufactured and sold products valued in excess
of $1,000,000, of which more than 40 percent was shipped directly to points
outside the State of Nebraska. I find that the Respondent is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, Local No. 83, AFL, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
The evidence in this case is short and undisputed. It consists of some docu-
mentary evidence and stipulated facts and the testimony of Earl T. Luff, presi-
dent of the Respondent.
LINCOLN STEEL WORKS 1363
The Respondent employs approximately 60 production and maintenance
workers in its plant. In 1945 the United Steelworkers of America, CIO, filed
a petition with the National Labor Relations Board claiming to represent the
majority of the employees in an appropriate unit. Pursuant to this petition a
consent election followed on July 4, 1945, which the Union lost. The same
Union filed a second petition later in the year which, after a hearing on October
31, 1945, was dismissed by the Board on February 28, 1946.
The charging union herein apparently began organizing the Respondent's em-
ployees early in the year 1951, and on March 31, 1951, filed with the Board a
petition concerning the representation of the Respondent's employees. The
Regional Office of the Board officially advised the Respondent of pendency of
this petition on April 7, 1952. Prior to April 7 the Union requested the Re-
spondent to consent to an election under Board auspices . The Respondent took
the position that it would not consent to such election unless the Union made a
showing to the employer of its representation among the employees. This the
Union refused to do. The Respondent then decided that it would put the ques-
tion of whether it should consent to an election, or await the formal decision
of the Board (after a hearing) on the question concerning representation, to a
vote by its employees, as it had often previously done in matters involving the
interests of its workers. So on April 7, during working hours, all the employees
were assembled on company time in the large fabrication room of the plant
where they were addressed by President Luff in the presence of the plant super-
intendent and the general foreman. The following is a transcript of President
Luff's testimony as to what transpired at the meeting:
I was the only one who said anything , except for an occasional remark
from some of the employees which had no bearing on the matter . I told them
that the meeting was called to discuss the question of whether or not the
company should agree to, agree voluntarily, to an election to select a union
for the plant. I told them further that I had no idea what the union had
promised them, but that I had checked the only other contract that that
particular union had in force in the city at that particular time, and satisfied
myself that our employees were well ahead of the provisions of that con-
tract, that to the best of our calculations our employees were financially
better off by a figure of about seven hundred dollars per employee during the
year 1951 than they would have been had we operated strictly in accordance
with the contract that was in force. I followed that with a statement that
that by no means meant that if they had a union they would not have bene-
fited by that seven hundred dollars, because it had always been the policy
of our company to give every possible benefit to our employees and that
would continue to be the policy of our company.
I told them that we had had a telephone call from a union representative
a short time before , asking if we would consent to an election , at which time
I told him that the company would not consent to an election unless a show-
ing could be made that our employees wanted an election , that the union
representative was unwilling to make such a showing and had filed a petition
with the N. L. R. B. for an election, that sometime soon we would hear from
the N. L. R. B. and at that time we would have to make a choice. I told them
that it made very little difference to the company whether or not we operated
with or without a union , it would not affect our operations appreciably either
way, that in accordance with our past policies we were bringing a question
which principally affected the employees, to our employees, for their ideas on
what they would like to have us do.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told them that we had prepared a ballot which carried a yes and a no,
and the name of the company, on which we would appreciate it if they would
care to do so, if they would tell us whether or not they would like to have the
company's consent to an election, that by voting yes, they would be saying
"yes", and we would like to have the company agree", by voting no, they
would be saying "No, the company should maintain its present position, let
the matter take its regular course, through a hearing, with the rules of the
hearing being sent to Washington for a decision by the N. L. R. B. there."
I, at that time, told them that it was not necessary that they vote, they
were not required to vote, if they preferred to not vote, they should simply
hand in a blank ballot, but that if they feel that they could express an opinion,
it would be helpful to us in carrying out their wishes.
My final statement was that this balloting had nothing whatever to do
with whether or not the company would have a union , that that would have
to be decided when and if an election was ordered by the N. L. R. B., if they
voted no.
At the conclusion of Luff's talk, ballots previously prepared by the Respondent
were immediately distributed to the employees present including five subforemen.
Each ballot, on a small oblong piece of white paper, appeared as follows :
q No
q Yes
Lincoln Steel Works
The voting took place in the open fabrication room in the presence of the general
foreman, the superintendent, and the president of the Respondent Company.
After the votes had been cast they were collected and turned over to Superin-
tendent Yos and President Luff who counted and tallied them and reported
the results. Of the 50 ballots distributed 3 were blank, 43 voted "No" and 4
voted "Yes." President Luff then announced that, as a result of the vote of
the employees, the Respondent would maintain its previously stated position to
the Union, and not consent to an election.
Each week the Respondent publishes and distributes to its employees a news-
sheet called "Lincoln Steelworks News." On Monday following the election
this newssheet so distributed contained the following item :
UNION ELECTION BALLOT
The result of our voting last Monday on the matter of a union election
shows without question that Steelworks employees are not interested in
further union interference. The votes cast showed a majority of almost
11 to 1 against holding a union election. Under these circumstances, the
company will not agree voluntarily to a union election.
Your confidence in the company as expressed by this vote is most gratify-
ing. You may all be sure that every effort will be made to operate the
Steelworks in such a way as to continue to merit this confidence.
At the time a union files a petition concerning representation it must make
a showing at the Regional Office of the Board that it represents at least 30
percent of the employees in the claimed unit. This showing of interest is ad-
ministratively determined by the Board, and is not subject to attack at the
representation hearing.' The Respondent was not unfamiliar with Board prac-
i Crowleys Milk Co., 79 NLRB 602; The Viking Corp., 90 NLRB 1006; and White Con-
struction and Engineering Co., 94 NLRB 149.
LINCOLN STEEL WORKS 1365
tice and procedure in representation cases. I take judicial notice that in
17-RC-1313, the representation case based on the petition of the Union, the
Board conducted a hearing, after administratively ascertaining that the Union's
showing of interest was adequate, and ordered an election ; that in the election
held on July 22 (subsequent to the complaint hearing) out of 54 ballots cast, 47
employees in the unit voted against the Union and 7 voted for the Union, with
2 void ballots.
Conclusions
The Respondent contends that the burden is on the General Counsel of prov-
ing that the Respondent interfered with the rights of its employees as guaran-
teed by the Act, and that he has failed to establish that proof . I agree that the
burden of proof is on the General Counsel , and take no exception to the various
cases cited in Respondent 's brief to support that general principle . The evi-
dence in the instant hearing is uncontradicted . That credited evidence, together
with the Board 's decision and the representation case, above referred to, and
of which I must take judicial notice, establishes that a sufficient number of the
Respondent 's employees in the unit found appropriate had, at the time of the
filing of the petition , joined the Union , or at least signed union -authorization
cards, to convince the Board administratively of the Union's interest in the
claimed representation.
Having made its showing of interest the next step in a representation case is
a formal hearing wherein the Board passes on the various questions concerning
representation . If satisfied as to these questions , an election among the em-
ployees by secret ballot under Board auspices is ordered . However, under Board
practice , a formal hearing can be dispensed with if the employer and the union
waive the formality of a hearing and agree to a Board -conducted election. The
Respondent was familiar with this practice ; and when confronted with a choice
specified that it wanted a hearing wherein the various questions concerning
representation would be passed upon and decided by the Board , except, of course,
the matter of whether the Union actually represented a majority which in any
event Would have to be decided by a Board election.
It was therefore not necessary for the Respondent to ask the employees to
help Respondent make up its mind finally whether it would waive a formal
representation hearing . The question here is whether the Respondent , in ask-
ing its employees to vote on whether it should insist on the more formal proce-
dure, was impelled by a desire for helpful advice, or curiosity to ascertain what
strength the Union could display at the time, by polling its employees in the
presence of management . If the latter , it constituted interference with the
rights of the employees as guaranteed in Section 7 of the Act , because it con-
stituted a form of questioning to ascertain the employees ' wishes as to a union.
Furthermore it constituted an interference with the Board 's processes.
The Board and the courts have held that a poll of employees to ascertain their
desire relative to a union is violative of the Act a It is, of course , true that in this
instance the employees were not asked to indicate their preference or nonprefer-
ence for a union . However , I think it is fair to say , from President Luff's speech,
and the record in the two preceding representation cases some years before, that
the Respondent was asking the employees to go on record whether they wanted
the employer to cooperate in the proceeding , as it had once before in consenting
to an election , or to stand pat and force the Union to establish , by a formal
Board hearing and decision , that it was entitled to have an election.
2 Cf. F. C. Russell Co., 92 NLRB 206; E. B . Law and Son , 92 NLRB 826, enforced 192
F. 2d 236 (C. A. 10) ; and Somerville Buick Inc., 93 NLRB 1603.
250983-vol 102-53--87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees were asked to indicate this preference by a poll in the presence
of top management . They had no way of knowing but that Respondent would
consider their vote on the consent election as at least an indication of their pref-
erence for or against a union . The results of the poll imply that such was the
reaction of at least some of the employees . Although in March the Union had
satisfied the Board that it represented a minimum of 30 percent of the employees,
the April poll discloses that only about 8 percent were willing to admit to the
Employer that they would go along with the Union 's suggestion for a consent
election-and to which suggestion it was known that the Respondent had refused
to accede . The poll, therefore , indicated to the Respondent the apparent strength
of the Union at the time , something that the Respondent was not entitled to know
except through the processes established by the Board.
That the Respondent construed the poll as an expression by the employees of
their desire relative to a union in the plant clearly appears from its weekly
plant newssheet , the Monday following, when it stated that the poll showed
"without question that Steelworks employees are not interested in further
union interference " and thanked the employees for their "confidence in the com-
pany as expressed by this vote."
The Respondent cites the case of N. L. R. B. v. Brown -Brockmeyer Co., 143
F. 2d 537 ( C. A. 6), as a decision closely in point with their contention that the
complaint herein should be dismissed I do not find the case helpful . In that
ease a union admittedly represented the employees in an appropriate unit and in
fact had a contract with the employer . The employer bypassed the representa-
tive of the employees by taking individual polls of the employees on questions of
holidays and overtime . The Sixth Circuit Court of Appeals , disagreeing with
the Board , found that this did not constitute interference as the subjects polled
were not covered by the contract; and that the employer , as such , was entitled to
ascertain from the employees , without going through the union , whether they
were willing to work overtime and on holidays . In the instant case we have no
question of interference with the prerogatives and rights of an accredited and
acknowledged representative of the employees . The issue here is quite different.
It is whether the Respondent , by its acts , prevented , or attempted to prevent, its
employees from indicating their wishes with reference to such a representative °
without interference or restraint.
I find that the poll conducted by the Respondent on April 7, under the cir-
cumstances herein found , constituted a form of questioning of the employees for
the purpose of ascertaining the wishes and desires of the employees with refer-
ence to a union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations 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.
8 The fact that the Union lost the election conducted under Board auspices subsequent
to the close of the hearing in the complaint case has no bearing on the issues in this case.
The latter vote pretty well parallels the Company-conducted poll, and shows that the
Company's estimate of the Union's exposed strength on April 7 was fairly accurate. But
by that time the damage resulting from the Respondent's interference had been done. The
point is, to put it bluntly, the selection of a representative for the employees is none of
the employer's business If the employer interferes in any way in that respect he does so
at his peril.
LINCOLN STEEL WORKS
V. THE REMEDY
1367
Having found that the Respondent has interfered with, restrained, and coerced
its employees by polling them as to their union desires, it will be recommended
that the Respondent cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1 International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, Local No. 83, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2 By polling its employees with reference to a representation election, the
Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act and in violation of Section
8 (a) (1) of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations oinitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees, by polls or otherwise, concerning
their desires or wishes relative to the INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, LOCAL No. 83,
AFL, or any other labor organization, or in any other like or related manner
interfere with, restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist the above-
named union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other mutual aid
or protection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All of our employees are free to become or remain members of the above-named
union or any other labor organization.
LINCOLN STEEL WORKS,
Employer.
Dated--------------------------------
By-----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.