M & S Steel Co., Inc.

National Labor Relations Board - Board Decisions

Sep 1, 1964

148 N.L.R.B. 789 (N.L.R.B. 1964)

1\Z & S STEEL COMPANY; INC. 789
Upon all of the foregoing, I conclude and find that Respondent Local 38 induced
employees of Mike Galan and Charles Jones to refuse to perform services for their
employers, with an object of forcing Galan and Jones to cease doing business with
Herb Jones Construction Company and to force Herb Jones Construction Company
to cease doing business with Edwin A. Wells d.b.a. E. Wells Electrical Construction
Company, and thereby engaged in conduct violative of Section 8(b) (4) (i) and
(11)(B) of the Act.52
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth. above, occurring in connection with the
operations of the E. Wells Electrical Construction Company as set forth 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, it will
be recommended that the Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Herb Jones Construction Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Michael Galan, Charles Jones Construction Company, and Edwin A. Wells,
d.b.a. E. Wells Electrical Construction Company, are engaged in commerce or in an
industry affecting commerce within the meaning of Section 8(b)(4) of the Act.
3. Local 38, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
4. By inducing and encouraging individuals employed by Galan and Charles Jones
to engage in a strike or a refusal in the course of their employment to perform serv-
ices, and thereby coercing and restraining the foregoing employers, with an object
of (1) forcing or requiring them to cease doing business with Herb Jones Construc-
tion Company, and (2) forcing Herb Jones Construction Company to cease doing
business with Edwin A. Wells, d.b.a. E. Wells Electrical Construction Company, the
Respondent has violated Section 8(b)(4)(i) and (ii) (B) of the Act.
5. By threatening Michael Galan and Charles Jones Construction Company with
a strike of its members with an object of forcing Galan and Jones to cease doing
business with Herb Jones, and Herb Jones to cease doing business with Edwin A.
Wells, d.b.a. E. Wells Electrical Construction Company, the Respondent has violated
Section 8(b) (4) (ii) (B) of the Act.
[Recommended Order omitted from publication.]
ea See Local 38, International Brotherhood of Electrical Workers, AFL-CIO (S. Simon
Construction Company), 141 NLRB 983.
M & S Steel Company, Inc. and International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and
Helpers, AFL-CIO, Local 583. Case No. 10-CA-5489. Septem-
ber 1, 1964
DECISION AND ORDER
On June 12, 1964, Trial Examiner Robert E. Mullin issued his Deci-
sion 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
148 NLRB No. 84.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
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 [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, M & S
Steel Company, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order.'
'The following shall be added to the notice attached to the Trial Examiner ' s Decision,
immediately below the signature line
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 applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 8, 1963, by International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths , Forgers and Helpers, AFL-CIO, Local 583,
herein called Boilermakers or Union , the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 10 (Atlanta, Georgia ), issued
a complaint dated January 17, 1964, against M & S Steel Company , Inc., herein
called Respondent or Company . The complaint sets forth the specific respects in
which it is alleged that the Respondent violated Section 8 ( a)(1), (3), and (4) of
the National Labor Relations Act, as amended , herein called the Act. The Respond-
ent duly filed an answer in which it conceded certain facts with respect to its business
operations , but denied all alleged unfair labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin
at Fort Payne , Alabama, on February 27, 1964. All parties appeared at the hearing
and were given full opportunity to examine and cross -examine witnesses , to introduce
relevant evidence , to argue orally at the close of the hearing, and to file briefs. The
parties waived oral argument . On April 1, 1964, the General Counsel and the Re-
spondent filed briefs which have been fully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent herein , an Alabama corporation, maintains its office and plant in
Fort Payne, Alabama, where it is engaged in the manufacture , sale, and distribution
M & S STEEL COMPANY, INC. 791
of steel joists . In the course and conduct of its operations during the past calendar
year, a representative period, the Respondent sold and shipped products valued in
excess of $50,000 directly to customers located outside the State of Alabama. Upon
the foregoing facts the Respondent concedes, and the Trial Examiner finds, that
M & S Steel Company , Inc., is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and the Trial Examiner finds that the Union is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
In March 1963 , the Boilermakers initiated an organizational campaign at the Re-
spondent's plant. Several months thereafter the Union filed charges with the Board
in Cases Nos. 10-CA-5402 and 10-CA-5420 wherein it alleged that the Company
had engaged in various unfair labor practices. On August 15, 1963, the Company
and the Union entered into a settlement stipulation wherein the Respondent agreed to
cease and desist from engaging in certain unlawful activity and also agreed to offer
reinstatement to employee Tommie Williams and make him whole for a loss of wages
in the amount of $172. On September 18, the Board issued a Decision and Order in
which it adopted the terms of the settlement. Thereafter, on December 11, 1963,
the United States Court of Appeals for the Fifth Circuit entered a decree enforcing
the aforesaid Order of the Board.
In the meantime, the Union filed a representation petition in Case No. 10-RC-5727.
On November 13, 1963, a Board election held at the Respondent's plant resulted in
the defeat of the Boilermakers. On the basis of objections filed subsequent to the
election by the losing party, the Acting Regional Director for Region 10 conducted
an investigation. On December 20, 1963, he issued a report on objections in which
he set aside the election on the ground that the Company had in effect an invalid no-
distribution rule. At the same time the Acting Regional Director directed that a
second election be held at the Respondent's plant.
On August 10, 1963, and prior to the actual execution of the settlement stipulation,
the Respondent wrote to Tommie Williams and offered him reinstatement. On
August 13, Williams was reemployed. Five days later, on August 19, Williams was
discharged, allegedly because a creditor had garnisheed his wages. It is this termina-
tion which forms the principal subject matter of this proceeding.
B. The evidence; contentions of the parties; findings and conclusions
with respect thereto
1. The no-distribution rule
Clare D. Loudenslager, presently vice president and general manager of the M & S
plant, was first employed by the Respondent in September 1963 as a manufacturing
consultant. Soon thereafter he published a plant bulletin setting forth a new set of
work rules for employees. This bulletin read, in pertinent part, as follows:
Violation of any of the following shop regulations will be sufficient grounds
for disciplinary action ranging from warning to immediate discharge, depend-
ing upon the seriousness of the offense in the judgment of Management.
20. Distributing literature, written or printed matter of any description on Com-
pany premises without Company permission (Warning to two weeks).
The General Counsel alleges that by posting, maintaining, and enforcing the afore-
said rule the Respondent has violated Section 8(a)(1) of the Act by restraining its
employees from distributing union pamphlets and literature during nonworking time
in nonworking areas of the Respondent's plant.
The Respondent conceded the existence of rule 20 and its promulgation, as found
above. As an affirmative defense the Respondent offered the testimony of General
Manager Loudenslager, according to whom the rule was rescinded on or about Janu-
ary 17, 1964, when the complaint was issued in the present proceeding. Loudenslager
further testified that the rule was originally formulated because of his experience at
another plant some years ago when such a prohibition was enforced to prevent the
distribution of Communist literature. He denied that its promulgation at the Re-
spondent's plant was prompted by antiunion motives. In further support of this
792
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thesis the Respondent offered in evidence the affidavits of 67 employees which were
to the effect that rule 20 had never- been enforced by the Company and that since its
promulgation union literature had been distributed on the plant premises during
working hours.
' In- fact, The record contains no evidence that an attempt was made by the sup-
porters of any labor organization to distribute pamphlets or campaign literature dur-
ing nonworking time in nonworking areas at the Respondent 's plant. Nevertheless,
the terms of the rule are plainly broad enough to encompass such activity within the
reach of its prohibition . Further, notwithstanding the testimony of Loudenslager
that the rule had been rescinded , there was no evidence that this action had been
publicized or that any employees had been notified to this effect. Under the circum-
stances present here and in view of the broad character of the rule in question,
the Trial Examiner concludes and finds that by its promulgation the Respondent
violated Section 8(a)(1) of the Act. NL.R.B. v. United Aircraft Corp. and
Whitney Aircraft Div., 324 F. 2d 128, 130-132 (C.A. 2), cert. denied 376 U.S.
951; Southwire Company, 145 NLRB 1329; Stoddard-Quirk Manufacturing Co.,
138 NLRB 615, 616-623; Walton Manufacturing Company, 126 NLRB 697, 698,
699, enfd. 289 F. 2d 177 (C.A. 5); Gale Products Div. of Outboard Marine Corp.,
142 NLRB 1246, footnote 7.
2. The discharge of Williams
Tommie Williams was hired by the M & S Steel Company in 1956 and was em-
ployed by it continuously until the time of his dismissal in July 1963. During all
but 8 months of this period he worked as a welder . At the time of his discharge,
only four or five other employees of M & S were senior to Williams in years of serv-
ice. Throughout the period of his employment there was no criticism of his ability
as a welder.
In July 1963, the Respondent terminated Williams. Thereafter, the Union filed
charges alleging that he had been discriminatorily dismissed . On August 13, pursu-
ant to an agreement settling the unfair labor practice case, the Respondent reinstated
him. The same day that he returned to work, Williams was directed to report to the
office of Paul Crow, the Respondent 's labor relations consultant.'
The following day Williams reported to Crow at his office , some 5 miles from the
plant . According to Williams , the following occurred at this meeting : Crow asked
whether the employee had filed an unfair labor practice charge against the Company
and the latter told him that although he had filed no charge he had given a statement
to the Board. Crow then asked him how he felt about the Union and Williams stated
that he was for organized labor. Crow then asked the employee why he had changed
his mind and when Williams indicated that he did not comprehend the question,
Crow told him that he was referring to a representation election held at the plant in
1956 which the Union had lost. Thereafter Crow questioned Williams as to the
circumstances which resulted in the employee 's termination and the subsequent un-
fair labor practice case. Later, Crow asked him whether he owed any bills and when
the employee conceded that he did, Crow asked him to name his creditors. When
the employee gave a noncommittal response to the last question , Crow volunteered
the comment, "I know one you had better pay, or there is going to be some trouble."
Crow denied that he had discussed union activities with Williams while he had the
latter at his office . On the other hand, he conceded that he "possibly did" ask
Williams if he had filed the unfair labor practice charge. Crow also stated that he
questioned the employee as to what he thought had been the reason for his earlier
termination . According to Crow: "I asked him what he honestly thought was the
reason he was so-called fired . . . . And Tommy said to me that he thought he was
fired for union activities." Crow conceded that he mentioned the 1956 union election
to Williams . He also conceded that he told the employee that he had "better take
care of" his debts and that if he did not "he would have troubles." He denied, how-
ever, questioning Williams as to the specific names of those whom he owed, and he
denied having told the employee that there was one debt, in particular, that he had
better pay.
It is apparent that Crow greatly resented the Respondent 's having to rehire Williams
and that he made this apparent to the employee during the course of their meeting.
1 Crow was the original founder of M & S Steel In October 1962 , he sold most of his
interest to the Stevens Corporation , but he retained about 4 percent of the stock in
M & S. He also retained ownership of the building and the land which houses the pres-
ent operations of the latter company . At the hearing he described himself as a "volun-
tary labor consultant" for DI & S. In its answer, the Respondent conceded that Crow
was its agent.
M & S STEEL COMPANY, INC. 793
He testified that on this occasion he discussed with Williams the problem that the
employee would encounter on coming back to work. According to Crow:
I referred to the forcing by the Labor Relations Board of forcing his employ-
ment back on the company; the supervisor that he worked under, the superin-
tendent at the plant both denied that the man was fired. It was my contention
that the man was never fired the first time . In my mind, the boy was
never fired to begin with, and I was talking with him on the problems that the
supervisors possibly would resent his coming back, and that he would have to
tread pretty good water.
Q. You resented his coming back, didn't you?
A. Personally, I thought we were overruled, yes, sir.
In view of the concessions by Crow as to the extent of his remarks to the return-
ing employee and his obvious distaste for compliance with the requirement that
Williams be rehired, a bitterness that was plain throughout the course of his appear-
ance as a witness, it is the conclusion of the Trial Examiner that, as testified by
Williams, Crow did ask the employee to name his creditors and also stated that he
knew of one that Williams had "better pay or there would be some trouble."
Williams was discharged on Monday, August 19, when he reported for work on the
night shift. At that time, Shop Superintendent Gerald McKinney informed him that
the Company had been served wih a garnishment action and that the plant rule on
garnishments required that he be discharged immediately. According to Williams,
he asked the superintendent if this was a new rule and the latter replied in the affirma-
tive. Williams further testified that at that point he did not realize that his wages had
been garnisheed and that at no time while he was in the presence of the shop super-
intendent did McKinney show him any garnishment pleadings which had been served
on the Company. McKinney testified that he felt certain that he had shown a copy
of the garnishment summons to Williams because he recalled having had them on his
desk at the time he informed the employee of his termination. His recollection in
this particular, however, was obviously very hazy.2 For this reason, it is the con-
clusion of the Trial Examiner that, when informing the employee that the Company
had received notice of the garnishment, McKinney did not show him a copy of the
summons. In fact, Williams himself was not served with a copy until August 21,
2 days after his discharge .3
The General Counsel offered testimony as to a generally lenient policy which the
Respondent had shown toward the debt problems of its employees. On cross-
examination McKinney was asked why no such leniency had been demonstrated in
Williams' case. The shop superintendent replied that the employee had not asked for
any such consideration. According to McKinney, "[If he] Had . came [sic] in
and sat down and talked about it, I probably would have talked the situation over
and see [sic] what I could have done." It is evident, however, from other testimony
by this same witness that Williams was given no opportunity to discuss his debt prob-
lems and that McKinney made it clear to the employee that he was not interested in
hearing about them. Thus, on direct examination, McKinney testified that immedi-
ately after Williams reported for work on August 19 he informed him of the garnish-
ment action and then, "I just gave Tommy his check and discharged him."
In its answer, the Respondent averred that Williams was terminated not only be-
cause of the garnishment, but also because he had been guilty of insubordination,
malingering on the job, continual inciting of the employees, and failing to carry out
the orders of his superiors. At the hearing, however, McKinney testified that Williams
was discharged solely because of the garnishment action, that that was the reason
given to Williams at the time of his dismissal, and that nothing was said to him about
insubordination, inciting employees, malingering, or failure to carry out the orders of
superiors. In view of this testimony on the part of the shop superintendent, these
last-mentioned grounds, alluded to in the Respondent's answer, must be considered
as no more than afterthoughts.
Williams conceded that he owed the debt which gave rise to the garnishment pro-
ceeding. It was for household items which he had purchased on installment credit
from the Purdy Furniture Company in Fort Payne. The amount which Williams
owed and the subject of the collection suit was the sum of $175.58. Interestingly, at
the time of his discharge on August 19, the Respondent itself owed Williams $172
9 Thus, McKinney testified as to this particular matter: "I told Tommy I had it [the
summons] and I believe I showed him the garnishment papers, and then I dismissed him
3 The parties stipulated at the hearing that Williams was not served until that date
they further stipulated that the Company was served on August 17.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the backpay settlement of his earlier unfair labor practice case .4 Of equal inter-
est is the fact that Paul Crow, who described himself as the Respondent's labor re-
lations consultant, is a brother-in-law of one of the partners in the Purdy Furniture
Company. It was Crow who, in his conference with Williams on August 14, in-
quired about the names of the employee's creditors and then warned him that he
"knew one [Williams] better pay or there would be some trouble." At the hearing
Crow denied that it was he who had instigated the collection suit by the Purdy Com-
pany. In explanation of this denial, he testified:
I am sure that the information of Tommie Williams coming back when he was
reemployed-this is a small town-and I am sure that the information was avail-
able to Purdy through 100 employees down there. It was practically public
information that he would be getting a hundred and seventy some odd dollars
back pay, and I am sure, as businessmen, they were trying to protect their inter-
est. As far as me having direct contact with the Purdy Furniture Company to
specifically garnishee Tommie Williams, that is certainly not true.
It may be, as Crow testified, that with widespread public knowledge in the com-
munity as to Williams' pending backpay recovery in the earlier Board case, the Purdy
Company acted on its own information and solely out of a prudent business interest
in liquidating a long overdue debt.5 In any event, it is clear from the testimony in
the record that, in this instance, once served with the summons in the garnishment
action, the Respondent acted with unusual dispatch.
The Respondent contends that at the time in question it had a longstanding rule
which required immediate discharge in the event an employee's wages were garnisheed.
The evidence which it offered in support of this contention, however, was not con-
vincing. Shop Superintendent McKinney conceded that in his 3 years with M & S
Steel he could recall no discharge for a garnishment other than that of Williams. In
addition, he testified that the Company had always been lenient in allowing its em-
ployees an opportunity to work out their debts. At the hearing, Respondent's attor-
ney, Beck, conceded that this had always been true of the Employer's practice in
this regard and that Tommie Williams had been "liberally assisted" in time past as
to his personal financial problems. Moreover, it was undenied that in April 1962,
Williams' wages had been garnisheed by the Hall Auto Company in Collinsville,
Alabama, and Crow, then active in the management of the Respondent, arranged to
pay off the debt by deducting $25 a week from Williams' pay. In addition, there
were other instances in the year preceding his dismissal that the Respondent had co-
operated with Williams in helping him pay his financial obligations through the with-
holding of various amounts from his weekly check. Nor was this unusual in the
Respondent's experience for, at the hearing, Crow testified that from the time Williams
was employed in 1956 his reputation with reference to paying debts had "always been
poor .
The Respondent conceded that at the time of Williams' discharge it had no posted
or written rule on garnishments. As found earlier, about September 23, 1963,
Loudenslager, then a consultant for the Company, established a new set of working
rules for the plant. These are listed in an exhibit which was received at the hearing.
The pertinent provisions appear in this exhibit precisely as set out below:
Violations of any of the following shop regulations will be sufficient grounds for
disciplinary action ranging from warning to immediate discharge, depending
upon the seriousness of the offense in the judgment of Management.
32. Assignment of wages or frequent garnishments. (discharge)
From the foregoing, it is obvious that rule 32 originally read: "Assignment of wages
or frequent garnishments. (Warning to discharge.)" Mr. Loudenslager conceded
that this was true. According to the latter, in September 1963 and prior to the issu-
ance of the new rules, Crow, the labor relations consultant, advised him to change
rule 32 so that it would provide a penalty only of discharge. Hence, according to
Loudenslager, the proposed rule was changed by striking out the words "warning to,"
so that it now provides a punishment only of discharge. However, since the rule still
reads ". . frequent garnishments. (. . . discharge)," some of the company wit-
nesses testified that since the publication of this rule on September 23, 1963, the Re-
spondent's practice on garnishments has been more lenient and that it no longer
imposes immediate discharge as the penalty for one garnishment.
4 This amount was eventually paid to Williams sometime after the Board approved the
settlement in Cases Nos 10-CA-5402 and 10-CA-5420
5 The complaint in the debt action alleged that Williams had been in default since
January 7, 1963.
- I t '& S STEEL COMPANY, INC. 795
In support of this alleged changer to 'a more lenient policy as to 'garnishments,
McKinney testified that the old rule in effect at the time of Williams' dismissal was
more severe than the one now in effect. To establish that the unwritten rule, al-
legedly in effect in August 1963, had actually been promulgated, Crow testified that
at some unspecified date in the past he had called in all of the employees and told
them that in the future a single garnishment would result in inmmediate dismissal.
Several of the employees followed him to the stand to corroborate this testimony.
Apart from the fact that Crow himself had no distinct recollection as to the date or
dates when he told the employees of this version of the rule on garnishments, the
testimony of the employees that was elicited to corroborate him was confused and
contradictory. For this reason, it is the conclusion of the Trial Examiner that, con-
trary to the contention of the Respondent, in August 1963, the Company did not have
in effect a rule on garnishments that required the immediate discharge of an employee
whose wages were attached in a creditor's action.
Concluding Findings
From the evidence in the record it is clear that over a long period of time the
policy of M & S Steel toward its employees' financial problems was one of tolerant
leniency. Prior to August 1963, it had, in the words of its counsel, "liberally assisted"
many employees, including Williams, in paying off their debts. When the Respond-
ent, however, was compelled to reemploy Williams as a result of its commitment to
settle the unfair labor practice case, the employee was sent to Crow's office for a
conference. There, Crow reviewed the circumstances of Williams' original termina-
tion, made clear his resentment at the Respondent's having to reemploy him, and
predicted that thereafter Williams "would have to tread pretty good water." During
this interview, he also questioned Williams about the debts the employee owed and
declared that he "knew one [Williams] better pay or there would be some trouble."
Promptly thereafter, when a local business firm, operated by a relative of Crow, sued
Williams on a debt for $175, and at a time when the Respondent still owed him $172
in backpay, the employee was terminated abruptly and without warning. At the
hearing, Crow testified that from the time Williams was employed in 1956 his repu-
tation with reference to paying debts had "always been poor." Notwithstanding this
fact, Williams' financial problems did not become a matter of concern to the Re-
spondent until after it had been compelled to reemploy him pursuant to the terms of
the settlement in the unfair labor practice case. On the basis of the findings set forth
above, it is the conclusion of the Trial Examiner that the reason offered by the Re-
spondent for the discharge of Williams was a pretext and that the moving cause for
the dismissal of this employee was his union activities and the fact that he had re-
sorted to the Board for assistance in the original case. The action of the Respondent,
therefore, violated Section 8(a)(4), (3), and (1) of the Act, and the Trial Examiner
so finds. Further, it was a violation of Section 8 (a) (1) of the Act for the Respond-
ent's agent, Paul Crow, to interrogate Williams on August 14, 1963, about the charges
in the original case, to suggest that Williams' return to the plant would be resented
by his supervisors, and to question the employee as to whether he was still interested
in unions 6
6 In January 1964, and after the complaint was issued in the present case, General
Manager Loudenslager called Williams to his office and asked him why he thought he had
been discharged According to Loudenslager, Williams told him "he had been discharged
because of union activities." At the hearing, the plant manager explained that he him-
self had not been in the employ of the Company at the time of Williams' dismissal, so
that he felt an interview with the latter was essential before making a decision as to
whether the Respondent should endeavor to settle the case in order to avoid the expense
of litigation According to the plant manager, after discussing the matter with Williams
he concluded that the Company should proceed to hearing
There was no allegation as to this incident in the complaint. Nor was the complaint
at any time amended to include such an allegation. Williams did not testify about the
matter. It was mentioned for the first time when Loudenslager took the stand in the
Respondent's presentation of its defense. In his brief, the General Counsel contends that
the question which Loudenslager asked Williams was coercive While conceding that no
allegation to that effect appears in the complaint, the General Counsel describes the issue
as having been "fully litigated" and urges that the Trial Examiner should find that
Loudenslager's conduct at this time constituted an additional violation of Section 8(a) (1).
Apart from the question of procedural due process and whether, in fact, the Respondent
ever had any inkling that it would be charged with such a violation of the Act as the
General Counsel now alleges, the Trial Examiner concludes and finds that the facts as to
the incident in question do not support the General Counsel's belated allegation
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, the Trial Examiner will recommend that the Respondent be ordered
to cease and desist therefrom and take certain affirmative action of the type below,
which is necessary to remedy and to remove the effects of the unfair labor practices
and to effectuate the policies of the Act. For the reasons set forth in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited, a broad cease-and-desist
order will be recommended.
Having found that the Respondent discriminatorily discharged Tommie Williams
on August 19, 1963, the Trial Examiner will recommend that the Respondent offer
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 discrimina-
tion against him, by payment to him of a sum of money equal to that which he nor-
mally would have earned from the aforesaid date of discharge to the date of the
Respondent's offer of reinstatement. Backpay will be computed in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest as
directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Tommie
Williams, thereby discouraging membership in the Union, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Tommie
Williams because of his resort to the processes of the Board, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(4) of the Act.
4. 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(a)(1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant to
Section 10 ( c) of the Act , the Trial Examiner hereby recommends that the Respond-
ent, M & S Steel Company, Inc., its officers , agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO, Local 583, or in any
other labor organization of its employees, by discriminating in regard to their hire,
tenure, or any other terms or conditions of employment.
(b) Interrogating employees concerning union affiliation or activities in a manner
constituting interference , restraint, or coercion in violation of Section 8(a)(1).
(c) Discharging or otherwise discriminating against any employee because of
charges filed or testimony given under the Act.
(d) Promulgating , maintaining, enforcing, or applying any rule or regulation pro-
hibiting its employees , when they are on nonworking time, from distributing hand-
bills or similar literature on behalf of any labor organization in nonworking areas of
Respondent 's property.
(e) In any manner prohibiting its employees , during nonworking time, from other-
wise soliciting their fellow employees to join or support the aforesaid Union, or any
other labor organization.
(f) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form , join, or assist International
Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and Helpers,
AFL-CIO, Local 583, or any labor organization , to bargain collectively through rep-
M & S STEEL COMPANY, INC. 797
resentatives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Tommie 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 in the manner set forth in the section of the Decision
entitled "The Remedy."
(b) In-the event the above-named employee is presently serving in the Armed
Forces of the United States, notify him of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces?
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due.
(d) Post at its plant in Fort Payne, Alabama, copies of the attached notice marked
"Appendix." 8 Copies of such notice, to be furnished by the Regional Director for
Region 10, shall, after being duly signed by an authorized representative of the afore-
said Respondent, be posted immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 10, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply herewith .9
7 See Melrose Processing Compannj, 146 NLRB 979, where the Board adopted the Trial
Examiner's recommendation that this language should appear as a provision of the Order
rather than as a footnote to the notice
8 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Exam-
iner" in the notice. If the Board's Order is enforced by a decree of the United States
Court of Appeals, the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals, Enforcing an order" for the words "a Deci-
sion and Order."
"If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 10, 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, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee be-
cause of membership or activity in support of International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Local 583, or any other labor organization.
WE WILL NOT discharge or otherwise discriminate against any employee be-
cause of charges filed or testimony given under the Act.
WE WILL NOT, coercively or otherwise unlawfully, interrogate our employees
concerning their union activities or sympathies.
WE WILL offer Tommie Williams immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority or
other rights previously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
WE WILL NOT promulgate, maintain, enforce, or apply any rule or regulation
prohibiting our employees, when they are on nonworking time, from distributing
handbills or other literature in behalf of any labor organization in nonworking
areas of our property. Insofar as rule 20 of our shop rules and regulations so
restricts the rights of employees, it is hereby rescinded.
WE WILL NOT prohibit our employees, during nonworking time, from other-
wise soliciting their fellow employees to join or support the aforesaid Union or
any other labor organization.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to join or assist the
aforesaid Union or any other labor organization , 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, or to
refrain from any or all such activities.
M & S STEEL COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the 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, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
Trinity 6-3311, Extension 5357, if they have any question concerning this notice or
compliance with its provisions.
Lamb-Weston, Inc. and F . G. Lamb Co. and Teamsters, Chauf-
feurs, Warehousemen & Helpers Union, Local No. 983, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Case No. 19-CA-2762. September
3,1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
within the meaning of the Act and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Decision and a supporting brief.
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 [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed, The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exception noted below.'
i We do not adopt that portion of the Trial Examiner's Decision wherein he analogizes
the required standard of diligence in bargaining to that relationship expected between a
buyer and seller engaged in a commercial transaction . Nevertheless , we are of the opin-
ion that, on the basis of standards set forth in the Act and customarily applied by the
Board in such cases, the Respondent violated Section 8(a) (5) and (1) of the Act.
We also note that the Trial Examiner has omitted from paragraph No. 4 of the Con-
clusions of Law reference to the unilateral wage increase imposed by the Respondents
which he also found to be a separate violation of Section 8(a) (1) and (5) in the body
of his Decision. We hereby amend paragraph No. 4 of the Conclusions of Law to correct
this omission.
148 NLRB No. 85.