McCann Steel Co.

National Labor Relations Board - Board Decisions

Jul 9, 1953

106 N.L.R.B. 41 (N.L.R.B. 1953)

McCANN STEEL COMPANY 41
JOHN H. McCANN AND HAZEL E. McCANN D/B/A McCANN
STEEL COMPANY and SHOPMEN'S LOCAL UNION NO. 733,
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
& ORNAMENTAL IRON WORKERS, A. F. of L. Case No.
10-CA-1259. July 9, 1953
DECISION AND ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Shopmen's
Local Union No. 733, International Association of Bridge,
Structural & Ornamental Iron Workers, A. F. of L., herein
called the Union, the General Counsel of the National Labor
Relations Board, respectively herein called the General Coun-
sel' and the Board, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued a complaint, dated June 5,
1952, against John H. McCann and Hazel E. McCann d/b/a
McCann Steel Company, 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 (a) (1), (2), (3), (4), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. Copies of the complaint, the charge and
amended charges upon which the complaint was based, and
notice of hearing, were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint as
amended alleged in substance that the Respondent: (1) On or
about May 24, 1951, discharged Vernon Clardy and thereafter
failed and refused to reinstate him because of his membership
in and activities on behalf of the Union and because he appeared
as a witness and testified ina Board proceeding ; ( 2) on or about
January 26, 1951, and at all times thereafter, refused to bargain
collectively with the Union as the exclusive representative of its
employees in an appropriate unit; (3) in and around February
1951 and on or about May 9 and May 30, 1951, bargained directly
and individually with its employees in the aforesaid unit and
unilaterally granted them wage increases; (4) on or about
November 17, 1950, initiated, formed, sponsored, and promoted
a labor organization, herein called the Grievance Committee,
and at all times since that date has assisted, dominated,
contributed to the support of, and interfered with, the admin-
istration of this Committee; (5) on different dates from January
15, 1951, through June 5, 1951, through its officers and agents,
(a) threatened its employees with discharge and other reprisals
because of their union membership; (b) interrogated its em-
ployees concerning their union membership, activities, and
desires; and ( c) conducted a poll or election among its em-
ployees to determine whether they desiredtobe represented by
the Union.
IThe term specifically includes the counsel for the General Counsel appearing at the
hearing.
106 NLRB No 6.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent ' s amended answer denied the commission of
the alleged unfair labor practices , and admitted certain other
allegations of the complaint . In addition , the answer averred
that Section 10 (b) of the Act barred the allegations of the
complaint because they had allegedly occurred more than 6
months before any charges specifically alleging them were filed
and served.
Pursuant to notice , a hearing was held at Nashville , Tennes-
see, on November 12, 13, and 19, 1952, before the late J. J.
Fitzpatrick, the Trial Examiner duly designated by the Chief
Trial Examiner. ' The General Counsel and the Respondent were
represented by counsel and the Union by representatives. All
parties were afforded full opportunity to be heard , to examine
and cross -examine witnesses , to introduce evidence bearing on
the case , to argue orally upon the record , and to file briefs and
proposed findings of fact and conclusions of law. Briefs were
received by the Trial Examiner from the General Counsel and
the Respondent , and have been duly considered.
During the course of the hearing , the Trial Examiner made
rulings on motions and on objections to the admissibility of
evidence. The Boards has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed. At the conclusion of the
hearing , counsel for the Respondent moved to dismiss the
complaint because the allegations therein were barred by
Section 10 (b) of the Act. ' The Respondent contended , in sub-
stance , that Section 10 (b) required the dismissal of the com-
plaint because the alleged violations occurred more than 6
months before the filing and service of a charge specifically
alleging these violations . The Trial Examiner reserved ruling
on this motion. It is hereby denied.5
On January 30, 1953, the Board, acting pursuant to Section
102.36 of its Rules and Regulations , Series 6 as amended,
2 After the hearing had been concluded and before the filing of the intermediate Report
became possible, Trial Examiner Fitzpatrick died.
3 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
Houston, Murdock, and Peterson]
4 The Respondent had urged this contention in its answer and had renewed it in its brief to
the Trial Examiner.
5 The original charge, filed on May 4, 1951, and served upon the Respondent on May 10,
1951, charged violations of Section 8 (a) (1), (3), and (4) of the Act Later amendments added
charges of violations of Section 8 (a) (2) and (5). The complaint, based on all these charges,
alleged violations occurring on or after January 1, 1951 Without considering the individual
charges or the specific allegations of the complaint, we note that the earliest conduct alleged
in the complaint as an unfair labor practice occurred during January 1951. well within 6
months of the service of the original charge on May 10, 1951. We have frequently held that
"the filing and service of a charge stops the running of the 6-month limitation provisions of
Section 10 (b), as to any unfair labor practice committed within the 6-month period preceding
the filing and service of the charge and/or any period subsequent thereto, whether or not the
charge particularly mentions the acts involved." Waterfront Employers of Washington, 98
NLRB 284. Accordingly, as there appears to be no persuasive reason for departing from this
salutary rule, we have denied the Respondent's motion Cathey Lumber Company, 86 NLRB
157; Ferro Stamping Company, 93 NLRB 1459; Olin Industries, Inc., 97 NLRB 130; see also
N.L.R B. v. Westex Boot and Shoe Co., 190 F 2d 12 (C.A. 5)
McCANN STEEL COMPANY 43
issued an order providing that the case be transferred to and
continued before the Board , that no Trial Examiner's Inter-
mediate Report be is sued in the case , and that proposed findings
of fact, proposed conclusions of law , and a proposed order be
issued.
On June 2, 1953, the Board issued its proposed findings of
fact, proposed conclusions of law, and proposed order in this
proceeding . Thereafter, the General Counsel filed exceptions
thereto and a supporting brief.
The Board has considered the proposed findings of fact,
proposed conclusions of law, and proposed order , the exceptions
and brief,' and the entire record in the case, and hereby makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
John H. McCann and Hazel E. McCann d /b/a McCann Steel
Company have their principal office and place of business at
Nashville , Tennessee , where they are engaged in the fabrication
and installation of structural steel and miscellaneous orna-
mental ironwork . During the 12-month period ending April 1,
1952 , they purchased raw materials , equipment , and supplies
valued in excess $ 400,000, of which more than 75 percent in
value was purchased outside the State of Tennessee and shipped
in interstate commerce to the Nashville plant. During the same
period , they sold finished products valuedinexcess of $800,000,
of which more than 40 percent in value was sold and shipped to
customers outside the State of Tennessee.
We find that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Shopmen's Local Union No. 733 , International Association of
Bridge , Structural & Ornamental Iron Workers , A. F. of L., is,
and the Grievance Committee was, a labor organization as
defined in Section 2 ( 5) of the Act, admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of main events
On or about September 15, 1950 , the Respondenthired George
J. Hearn , a business counselor , to assist it out of its financial
difficulties . As part of his plan of rehabilitation , Hearn in
October proposed to the employees the formation of a grievance
committee. Following his suggestions the employees named a
6 In view of our determination herein, we deny the Respondent 's request for special leave to
file a reply brief.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee of five with Hearn as chairman . This committee
processed grievances on behalf of employees.
In the early part of November, Pat Williams, special repre-
sentative and organizer for the Union , contacted employees
Vernon W. Clardy and others with reference to organizing the
employees .on behalf of the Union. Active organization started
December 15 , when the Union began holding weekly meetings.
By January 23, 1951, the Union succeeded in signing up a
majority of the employees in the shop. On January 26 it so
notified the Respondent.
On January 31 the Union filed a petition for certification of
representatives (Case No. 10-RC-1262). On May 9, the Board
issued its Decision and Direction of Election in part finding
the appropriate unit.' An election was accordingly scheduled
for June 5.
Before June 5, however , the Respondent, as hereinafter found,
engaged in various unfair labor practices within the meaning of
Section 8 (a) (1), (2), and (3) of the Act.
At the Union's request, the election of June 5 was canceled,
and on June 22 the Union withdrew its petition for certification
of representatives.
B. The formation and domination of the
Grievance Committee
For the most part, the facts with respect to the Grievance
Committee are uncontradicted and undisputed. On or about
September 15, 1950, the Respondent , finding itself in financial
difficulties, hired Hearn to rehabilitate it. A week later Hearn
advised the employees of his mission and informed them that
he would submit a program for their approval at the next
regular monthly meeting of employees . At the October meeting,
Hearn, among other things , suggested the formation of a
grievance or shop committee because the Respondent was
going to institute safety and efficiency measures and "wanted
somebody that they [the employees ] felt was going to represent
them properly." As he admitted:
I said to them, "Now, my suggestion to you is that you have
a committee of five and then you make as many nominations
as you want from the floor and then everybody you nominate
we will send out of the room and then we will take a vote and
the first five that is elected will be the committee to repre-
sent you people, and then anything that you don't like in
connection with McCann Steel Company you can present to
them and the chairman then will calla meeting and we will
work it out."
John H. McCann,8 who was also present at the meeting,
corroborated Hearn, testifying:
794 NLRB No. 65.
8 The reporter erroneously designated the witness as Charles H McCann
McCANN STEEL COMPANY 45
Mr. Hearn suggested that they appoint this committee to
take up any grievance the men had. In other words, they
would have to go to somebody with a grievance. In other
words, anything that they wanted to take up with the man-
agement it would be taken up, handled through this com-
mittee.
The employees followed Hearn ' s recommendation and elected
a Grievance Committee of five, including Clardy, with Hearn as
chairman. According to Clardy, the function of the Committee
was "to take up just general grievances of the men and to pro-
vide safety rules for the shop, and just anything that come to
hand, any question that might arise , it was to come before us
and we were suppose to work it out."
At Chairman Hearn's call , the Committee met weekly in
McCann's office to hear and settle the grievances. Generally,
they dealt with pay increases for employees, although one in-
volved the recommendation that Superintendent Hicks be dis-
charged.
The Committee continued to function with its original mem-
bership until the May 15, 1951, monthly meeting, when Hearn
had a new slate elected .' Except for Clardy, there was no
change in the new personnel of the Committee . Hearn continued
as chairman.
Although in its answer the Respondent denied that the
Grievance Committee was a labor organization within the
meaning of Section 2 ( b) of the Act, it made no effort in its
brief to support this position. As indicated above, this Com-
mittee represented employees with respect to their grievances.
To the extent that the Grievance Committee thus represented
the employees with management and functioned as a vehicle for
the discussion, consideration, and improvement of the em-
ployees ' working conditions , we find that it was a labor organi-
zation within the meaning of the Act."
The Respondent, however, contends that an 8 (a)(2) violation
cannot be found against it, because the Grievance Committee
(1) had been created before union activity began and(2) had not
been served with the complaint herein. We disagree. While it
is true that the Committee was created in October 1950, before
union activity began, the fact remains that the Respondent
initiated and sponsored the Committee and dominated it during
9Hearn testified that he took this action because Clardy had offered to resign from the
Committee and perhaps others might also want to do so, and that he so told the employees
Clardy denied that he had offered to resign and testified that Hearn "fired" the Committee.
Clardy's testimony was corroborated by employee Dallas F Brown. Significantly, McCann
admitted that the election of a new Committee was Hearn's idea and that Hearn did not
discuss the reasons for his idea. In these circumstances, and upon the entire record, we
credit Clardy's and Brown's version of what occurred at the May 15 meeting.
It See Indiana Metal Products Corp., 100 NLRB 1040, enforced as modified on other
grounds, 202 F. 2d 613 (C. A. 7).
46 DECISIONS OF NATIONAL LABOR RELATIONS BO'1RD
its entire existence ." As indicated above, the Committee was
suggested by the Respondent ' s business counselor , Hearn; the
committee chairman was Hearn; the weekly committee meet-
ings were called by Hearn and held in McCann' s office; and
Hearn had the original officers terminated and new ones
elected, with himself continuing as chairman . The activities
which Section 8 (a) (2) proscribes are nonetheless violative of
the Act whether or not there is a rival union in the picture. In
these circumstances and upon the entire record, we believe and
find that the Respondent ' s domination of and interference with
the formation and administration of the Grievance Committee
constituted a violation of Section 8 (a) (2) and (1) of the Act.12
With respect to the contention that no 8 ( a) (2) finding or order
based thereon can be made because of the failure to serve the
Grievance Committee in accordance with Section 102.8 and
102.15 of our Rules and Regulations , we note the Committee is
no longer in existence . The Board ' s proposed order hereinafter
entered is limited to the Respondent only, and does not order
withdrawal of recognition from, or disestablishment of, the
Grievance Committee. In these circumstances and upon the
entire record , we find no merit in the Respondent's position.
In cases involving labor organizations found by the Board to be
dominated by an employer, the Board customarily orders
withdrawal of recognition and disestablishment .' However,
because of the failure to serve the Committee in accordance
with the Rules , and because the Committee is no longer func-
tioning,14 we find it unnecessary to order withdrawal of recog-
nition and disestablishment in this case.
C. The alleged refusal to bargain
On January 25, 1951, the Union wrote the following letter
which the Respondent received the next day:
Shopmen's Local Union #733 of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers
affiliated with the American Federation of Labor hereby
submit notice that by authorization of your employees at
400 South 2nd Street , Nashville , Tennessee , we are desired
by a vast majority for the purpose of collective bargaining
when certified by,the National Labor Relations Board.
Will you kindly consent by return mail to a consent
election and/or acknowledge receipt of aforementioned
notice.
"To the extent that the Respondent's activity in connection with the Comniittee occurred
more than 6 months before the filing and service of the original charge Section 10 (b) of the
Act prevents such activity from being utilized as a basis for an unfair labor practice finding
However, such conduct may be, and has been. considered as background evidence to assist
us in evaluating the Respondent's conduct which occurred after the 6-month period. See
Sharples Chemicals Inc , 100 NLRB 20.
12 Aerovox Corp , 102 NLRB 1526; Globe Products Incorporated, 102 NLRB 278; Indiana
Metal Products Corporation supr; Rehrig-Pacific Company, 99 NLRB 163
13See cases cited in footnote 12, supra.
14 Both the Respondent and the General Counsel conceded in their briefs that the Conimttee
is no longer functioning and has been dissolved
McCANN STEEL COMPANY 47
McCann admitted having received this letter and making no
reply thereto . He asserted that he made no reply because a few
days later he received notice of the Union ' s representation
petition filed on January 31.
Williams, the union representative , credibly testified thathe
had no dealings with the Respondent until early in March, when
he discussed with McCann the layoff of employee Dale. With
respect to this conversation , Williams testified as follows on
direct examination:
Q. (By Mr. Patton ) Did you have any conference with
the Company after the layoff, discharge of Mr. Dale?
A. Yes , I talked to Mr . McCann about that and we dis-
cussed that problem quite thoroughly too. However, there
was no one present but Mr . McCann and myself.
Q. Well, now, aside from the merits of the case of Mr.
Dale, the thing I am trying to get to is whether you or the
Company, either one, said anything about the obligation to
discuss the matter to bargain?
A. Yes.
Trial Examiner Fitzpatrick:
Q. At this conference?
The witness:
A. Yes. I brought out the fact that we had the majority
of people signed on cards and asked him to bargain on the
fact that this man ' s seniority and he refused . ( Sic) Said he
did not have to bargainwithme because of the fact we were
not certified and that he would not bargain.
McCann was not asked and did not testify concerning this
conversation with Williams . However , he testified generally
that at no time before June 5, 1951, did the Union request the
Respondent to bargain collectively.
Thereafter , on May 28 Williams againmet with McCann. This
meeting concerned the reinstatement of Clardy , who had been
discharged on May 24 . Also present at this meeting were Clardy
and Union Representative Rutherford . Concerning this conver-
sation Williams testified on direct examination:
Q. . . . After the discharge of Mr . Vernon Clardy did
you have any conferences with the Company?
A. Yes. Mr. Rutherford and Mr. Clardy and myself
went to Mr. McCann' s office.
Q. I see.
A. And we discussed the matter . And Mr . McCann was
very antagonistic toward the fact that we wanted to put back
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work . We asked Mr. McCann if he would consider putting
Mr. Clardy back to work and we discussed the matter quite
thoroughly even though Mr. McCann was quite unreasonable
a time or two about it. . . . He also made the statement
when Brother Clardy told him that he had been told by
Mr. Charles McCann to unload that car if at all possible,
he told him whoever said that was a damn liar . And it was
very-- the meeting was very uncomfortable. (sic)
Q. Did Mr . McCann say anything about his obligation to
discuss the matter with you, bargain with you, anything of
that kind?
A. Yes , he very emphatically brought that point out.
Q. What .,did he say?
A. He said we had no bargaining rights within the Com-
pany, within the plant , that we had not been certified , which,
of course was true. We agreed with him we had not. But I
brought the point forward that we did represent the people
even though we had not been certified due to the fact these
people had signed authorization cards for our representa-
tion and I felt that due to that fact we could discuss the
matter as gentlemen . And he said he did not have to sit
there and talk to me or to Mr. Rutherford or any of the
rest of us for that matter about the thing at all, that he
had no reason to, and he didn't intend to discuss it as a
matter of settling it.
Clardy testified as follows:
Q. Do you recall whether or not Mr. McCann said any-
thing about his obligation to bargain at that time?
A. I am afraid I don ' t get you clear on that someway.
Q. Well , do you know whether Mr. McCann said anything
about whether he was obligated to bargain with the Union,
or wasn't obligated to bargain with the Union, do you
remember anything along that line happening?
A. Well , I remember him saying that the Union wasn't
going to tell him how to runhis business . I remember that.
And he didn't have to negotiate and ask the Union anything.
McCann confirmed Clardy's testimony respecting his refusal
to let the Union runhis business . He further testified as follows:
Q. When Mr. Williams came back with Mr. Clardy on
Monday after Mr. Clardy had been discharged , didhe make
any suggestion at that time that you engage in collective
bargaining with him as representative of the Union?
A. No, sir.
Q. Did you state to him at that time in words or in
substance that you didn ' t have to bargain with the Union?
A. I can ' t recall just exactly the statement, but--
Q. Have you ever stated to anybody anytime that if the
Union was certified that you didn ' t have to bargain with
them?
A. No, sir.
McCANN STEEL COMPANY 49
The General Counsel contends that the Union requested the
Respondent to bargain on three occasions : to wit, on January
26, sometime in March, and on May 28, and that the Respondent
refused to do so . The Respondent denies that the record supports
the General Counsel ' s position . For the reasons hereinafter set
forth, we agree with the Respondent . " Before an employer
normally can be found to have refused to bargain in violation of
Section 8 ( a) (5) of the Act, the statutory representative of the
employees in an appropriate unit must request the employer to
recognize or bargain with it. While the request to bargain need
not be formal, nor made in any particular manner , a union must
clearly convey to the employer its desire to negotiate with
him.16 We therefore proceed to examine whether this Union
made a sufficiently clear request to the Respondent on any of
the three occasions.
The Union' s letter of January 25 recites that a majority of
the employees desired to be represented by the Union when it
was certified . This letter does not make apresent , clear demand
for bargaining , but at mostasks the Respondentto consent to an
election to ascertain the Union' s representative status. It is
clear that the Union was not attempting to bargain collectively
at this time, but was simply endeavoring to expedite the deter-
mination of its majority status through normal Board channels.
That this was the Union' s position is patently clear from
Williams' admission on cross-examination:
Q. . . . I am talking about January 25, 1951.
A. No, I was asking for consent election or acknowledge
receipt of this letter . That is all I was asking.
Q. So, what you were asking [ them] to do was either
consent to an election so you could have an election or
in the alternative just acknowledge receipt of your letter.
A. That's right.
Further, the General Counsel, in oral argument before the
Trial Examiner, admitted that "there may be some doubt as
to the letter which was writtenbyMr. Williams to the Company
constituting an inequivable ( sic) request to bargain ." Under
all these circumstances , we find that the Union had not re-
quested the Respondent to recognize or to bargain with it in
its letter of January 25.
Nor does the record establish a request to bargain collec-
tively in March or on May 28. At most, it shows a request to
bargain with respect to the discharges of Dale and Clardy--a
ss In view of our determination herein, we deem it unnecessary to consider Respondent's
other arguments that it had a bona fide doubt as to the Union's majority status or the appro-
priate unit and therefore could not be found to have refused to bargain in good faith
16N.L R.B v. The Columbian Stamping & Enameling Co., 306 U. S. 292; The Solomon
Company, 84 NLRB 226.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request that we find the Redpondent, in fact, honored--and not
a request to bargain about anything else. As indicated above,
Williams on direct examination testified that on the earlier
occasion he asked McCann to bargain with respect to Dale's
seniority. He confirmed this on cross-examination when he
admitted:
Q. So, you were not asking to engage in collective
bargaining right at that time?
A. I was asking him to bargain on that particular man
(Dale) at that time, yes sir.
This testimony clearly reveals that Williams was interested
in bargaining only with respect to Dale. Similarly, Williams'
testimony that on the later occasion he suggested to McCann
that "we could discuss the matter as gentlemen" is much
more susceptible, in the light of all the evidence, to an inter-
pretation that he wanted to discuss Clardy's discharge and
not any other subject of collective bargaining. It thus appears
that Williams' and Clardy's testimony, upon which the General
Counsel relies, does not spell out such a clear and unequivocal
demand for collective bargaining as to support a finding of a
violation of Section 8 (a) (5) of the Act. In the Solomon case 17
the Board refused to find a violation of Section (a) (5) of the
Act where a union's request was not clearly and unequivocally
for recognition and was susceptible of another reasonable
interpretation. We believe that the principle in the Solomon
case is applicable. Accordingly, we find that the Union made
no request of the Respondent for recognition or for collective
bargaining in March or on May 28.18
The General Counsel also argues that a specific request to
bargain collectively would have been futile, and was therefore
unnecessary, because the Respondent made it plain to the
Union, by its actions and words, that it would not bargain with
the Union even if duly requested. To support his position, the
General Counsel relies upon our decision in the Old Town
Shoe case.'9 In that case, the Board found a violation of
Section 8 (a) (5) of the Act despite the absence of a request
to bargain. However, the Board clearly indicated that "specific
circumstances" took that case out of the general rule that
a request to bargain is a condition precedent to a finding of a
refusal to bargain. In the Old Town Shoe case, after an impasse
resulted in a strike, the employer publicly stated its policy
of not bargaining during a strike, and thus made it unequivo-
cally clear to the union that a bargaining request would be
futile during the strike. In the present proceeding, however,
17 The Solomon Company, 84 NLRB 226
i8See also Glass Fiber Moulding Company, 104 NLRB 383, in which Member Houston dis-
sented. However, he now considers himself bound by that decision Nor can any violation be
predicated on the Union's specific request to bargain about the Dale or Clardy discharges.
As appears from Williams' admissions the Respondent did, in fact, thoroughly discuss these
matters with Williams
19 91 NLRB 240.
McCANN STEEL COMPANY 51
we find that there are no such specific circumstances which
warrant removing the case from the general rule . We find
no publicly stated policy or clearly evinced determination by
the Respondent not to bargain with the Union . On the contrary,
the two conversations on which the General Counsel relies
disprove such a policy . In these conversations , the Union
admits that the subject matter of its specific requests to
bargain concerning Dale and Clardy was throughly discussed.
While it may be true that the Respondent ' s representative,
McCann, was antagonistic and resented the Union , this is not
sufficient to sustain the General Counsel's burden of proof
that a request to bargain would have been futile. In these
circumstances we believe and find that the principle of the
Old Town Shoe case is not applicable to this proceeding.
In these circumstances and upon the entire record, we
believe and find that the Respondent has not engaged in unfair
labor practices within the meaning of Section 8 (a) (5) of the
Act, and shall dismiss those allegations of the complaint."
D. Interference , restraint , and coercion; the
discriminatory discharge of Clardy
1. Summary of evidence
As indicated above, in. the early part of November 1950,
Union Organizer Pat Williams contacted employee Vernon W.
Clardy with reference to organizing the Respondent's shop
employees on behalf of the Union . Clardy spoke with the em-
ployees , found they were interested in union organization, and
reported such interest to Williams . Active union organization
started December 15, when the Union began holding weekly
meetings . Clardy attended practically all the meetings. He
openly contacted Williams , who was organizing employees on
the sidewalk in front of the plant . McCann admitted that he
saw Williams standing on the sidewalk and "rather opposed
the idea of his being out there ." Hearn first discovered the
identity of Williams shortly after the 1950 Christmas party.
He testified:
Q. About how often did you see him ( Clardy ) out there
talking to Mr. Williams?
A. I went over there every week, every Tuesday from
3:00 until 5:00 and he was there sometime before I even
knew who he was and I finally asked Mr. McCann who
that fellow was and then he told me. I had no information,
had no reason to believe that they were being organized.
Didn ' t know a thing about it.
Q. That is when you found out when you inquired as to
who Williams was?
20 The General Counsel contends that , even if an 8 (a) (5) finding is not made, an affirma-
tive order to bargain upon request should be entered against the Respondent under the
authority of International Broadcasting Corporation , 99 NLRB 130 . We find no merit in this
contention , as that principle of the International Broadcasting case is not apposite here.
322615 0 - 54 - 5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That's right . That was after the little Christmas
party that we had. I can nail it by that date.
Clardy signed a union-application card on January 19, 1951,
and testified on behalf of the Union at the representation
hearing on March 29, 1951 .. McCann and Superintendent Hicks
also testified at this hearing , and Hearn was present.
On April 2 and 3, shortly after the close of the representa-
tion hearing, Superintendent Hicks and McCann admittedly spoke
to Clardy concerning his apparent dissatisfaction with his
position . A similar conversation also took place between
Clardy and Hicks on or about May 10, the day after the Board
has issued its Decision and Direction of Election in the repre-
sentation proceeding . According to Clardy , both Hicks and
McCann questioned him inter alia concerning his interest in
the Union , and McCann asked about his talks with Union Repre -
sentative Williams.
Concerning his conversation with Hicks on April 2 Clardy
testified :
Q. Just describe what was said in that conversation.
A. He called me into his office and wanted to know what
it was that I wasn't satisfied with around the plant or why
it was that I wasn't satisfied . I told him I didn't know
anything that I wasn't satisfied with . I asked him if he
had heard any complaints out of me . He said he hadn't, but
he said I seemed to be the only one that was very interested
in a union , the only one that wanted a union. He wanted to
know why I wanted a union. .. .
And so he went on to say that he could tell I wasn't
satisfied , that I seemed like I was the only one that was
interested in a union and he felt -I ought to go back on the
job or resign.
Q. Do you remember anything that was said one way or
the other about the representation hearing that had been
held?
A. He said he didn ' t appreciate me volunteer to testify
in that hearing for the election . . . . According to him
McCann is the one that made that statement.
As to his conversation with McCann on April 3 , Clardy stated
that he "asked me pretty much the same questions Mr. Hicks
did"; but in addition "he wanted to know why it was I had to go
out and talk to Mr. Williams every afternoon after working
hours." McCann also asked Clardy at that time to resign.
Clardy's conversation on May 10 with Hicks was "pretty
much the same conversation there as we had had before."
However, according to Clardy , Hicks also " wanted to know
why it was I had to go out and talk to Mr . Williams every
afternoon after work ," and offered to find Clardy a new job
McCANN STEEL COMPANY 53
and give him $ 100 if he would resign. In reply to Clardy's
refusal to leave his job and thereby lose his seniority, Hicks
said "it would be better that way than it would the other" and
that "McCann said he would personally see that I never got
any further with the Company."
Although both Hicks and McCann denied questioning Clardy
concerning his union interest , both admitted they had spoken to
him about his apparent dissatisfaction and suggested that he
look for a job elsewhere . On direct examination Hicks testified:
Q. Prior to that time had you had a conversation with
Mr. Clardy relating to whether or not he was dissatisfied
with his position there?
A. Yes sir, I talked to him.
Q. Why did you talk to him?
A. Well, it just looked like he wasn't satisfied, he was
doing a lot of standing around . . . he just wouldn't go on
with his job and try to do it right for a while . . . he just
didn't get his work out like he should for a while there
and he was letting his men stand around too much.
Q. When you asked him about whether or not he was
satisfied what did he reply?
A. He said "Oh, I am satisfied."
Q. Did you ask him why he was trying to organize the
Union?
A. No sir.
0. Did you ask him to resign or quit his job?
A. I didn't ask him to resign . I told him I would help
him to get him another job if he wasn' t satisfied there
and, that I would be glad to help him , recommend him.
Hicks also denied that he offered Clardy $100 to quit and that
he told Clardy that he or McCann "didn't appreciate him testi-
fying as a witness in the representation hearing for the Labor
Board." Hicks admitted that Clardy was a " good worker" and
for that reason Hicks did not want to fire him or get rid of
him.
McCann testified concerning the conversation of April 3 as
follows:
Q. Did you ever attempt to get Mr. Clardy to quit his
job or resign , did you ever talk to him about it?
A. Yes, sir, I talked to him once . In fact, I called him
in my office and asked him why he was dissatisfied.
Q. Had you heard he was dissatisfied with the way the
shop was being run?
A. Yes; the way he was conducting his work and conduct-
ing hisself it was very obvious he was dissatisfied ...
and it has always been my policy if any of my employees
want to . . . talk with me, they have full right to come to
me ... so, in this instance I called him in and asked why
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was dissatisfied. I said "we don't want anybody working
for us that is dissatisfied. If you are dissatisfied, I think
the best thing to do is to find you another job some place."
In addition, McCann denied that his conversation had any con-
nection with Clardy's union activities. However, he admitted
that he could not recall calling in other employees to discuss
their work and that as of May 28 Clardy's work was satisfac-
tory and McCann had not received any complaint about Clardy.
According to the undisputed testimony," on May 23 Charles
H. McCann, the regular assistant general manager who was
also acting as plant superintendent due to the absence of Hicks,
instructed Clardy to unload a carload of steel before quitting
time so as to avoid paying demurrage . As it was near quitting
time, Clardy told McCann that he expected to leave "when the
whistle blew," but the latter insisted that the car be unloaded
"if anyway possible." With the assistance of employee Dallas
F. Brown and a 5-ton crane operated by Henry Manson, Clardy
began unloading the steel. The crane, which traveled on over-
head tracks, would drop a cable with a hook at the end of it.
Clardy and Brown would attach the hook to another cable binding
a bundle of steel, and signal Mansontolift the steel. The crane
operator would lift the steel, carry it approximately 65 to 80
feet over the top of the shop, and then lower it in the proper
storage spot. In this manner steel bars and beams weighing
approximately 2 to 5 tons were unloaded. There remained 2
bundles of angle irons which, as indicated by the shipping notice
that Clardy had, weighed approximately 9 tons each. Because of
the position of the angle irons it would have been impossible
to divide them into smaller loads and still complete unloading
the car by closing time. Accordingly, Clardy and Brown, in
order to finish the job before the end of the workday, attached
the crane cable to the first 9-ton bundle. At the signal, Manson
lifted the bundle and carried it away successfully. The second
9-ton bundle was also successfully lifted and carried to the
spot where it was to be deposited, but then the crane's motor
began smoking. Manson shouted to Clardy, "The motor is
smoking, getting hot." Clardy said "Let's get it down as
quick as we can," and immediately began placing timbers in
position upon which Manson was able to lower the angle irons.
The next day, May 24, Manson again used the 5-ton crane,
this time to unload a truck of steel roof trusses. He spent
approximately 1 hour unloading the trusses with the crane,
which was not operating properly because "the motor would
smoke ." Upon completion of the truss job, Manson reported
to Hicks that the crane motor had been burned up the night
before. According to Hicks, Manson reportedtohimas follows:
21 The findings as to what occurred on May 23 are based on the testimony of Clardy and
Brown. Charles H. McCann and Manson, the only other persons involved in this incident, did
not testify.
22 In addition to the 5-ton crane, the Respondent had a 10-ton crane which was being re-
paired and therefore not in use on May 23 and 24
McCANN STEEL COMPANY 55
A. . . . (Manson) said "I just barely did get the trusses
off. The crane motor, there is something the matter with
it. . . . I unloaded some angles last night and I told Mr.
Clardy that the motor was smoking and he said 'Oh, to
hell with it, we have got to get these angles off'." That
is exactly what he told me.
Q. So he didn't report it to you until after he had used
it some the next morning?
A. Get that truck off, yes, sir.
Hicks then called the electrician to repair the crane," and
reported to McCann that the crane was burned out. Hicks was
instructed to investigate and find out whose fault it was that the
motor on the crane burned out. Hicks testified that he talked to
the electrician and then reported to McCann what Manson had
previously told him concerning the unloading of the angle irons.
Hicks did not talk to Clardy. According to McCann, Hicks re-
ported that after the crane operator had told Clardy that the
load was too heavy and that the motor was smoking, Clardy
replied, "To hell, let it burn up, we have got to get the steel
loaded." Hicks and McCann then discussed the incident as well
as the safety of men working underneath the overloaded crane.
McCann decided that if Clardy " wasn't more interested in the
welfare of the business than to do such a thing as that, we felt
like he ought to be discharged." Following instructions from
McCann, Hicks called Clardy to his office and discharged him.
He accused Clardy of overloading and thereby burning out the
crane, although Clardy blamed the operator for burning it out.
According to Clardy, Hicks at that time again questioned him
about the reasons why he wanted the Union, why he was dis-
satisfied, and why he was the only man going out to talk with
Union Organizer Williams.
At the time of the May 24 discharge, Hicks gave Clardy 3
checks, 2 dated May 24 representing paychecks, and the third,
dated May 23, representing a payment for vacation. McCann
admitted that there would have been no occasion to give Clardy
a vacation check under normal circumstances, and that it had
been given at that time only because Clardy was being dis-
charged. But the Respondent did not explain why the vacation
check was dated May 23, in view of the fact that it did not learn
until the next day of the overloading incident which allegedly
motivated the decision to discharge Clardy.
As indicated above , Manson , despite his knowledge of the
defective condition of the crane, proceeded to unload the truck
of steel trusses before reporting to Hicks. Both McCann and
Hicks admitted that they would have stopped operations if they
had known that the crane's motor had been burned. However,
when asked on cross-examination why Manson had not been
23The repairs cost $263.56.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplined , McCann attempted to justify the Respondent's
inaction on the ground that "he is just the operator" who
"evidently" was following Hicks ' instructions ; while Hicks
explained that Manson " thought he was doing his duty " despite
his failure to report the crane ' s condition before unloading the
trusses.
On Monday , May 28, Williams sought to have McCann reinstate
Clardy. He argued that Clardy had been therefor several years,
that this was his first offense , and that he should be given
another chance . McCann admitted that Clardy ' s work up until
then "had been satisfactory ," but he refused to reinstate Clardy
on the ground that the statement Clardy allegedly made to
Manson about letting the crane "burn up " indicated an improper
attitude towards his work.
The record is replete withtestimony of the General Counsel's
witnesses that overloading of the Respondent ' s two cranes was
a commonplace occurrence ( frequently causing fuses to blow),
that none of the employees involved were ever criticized or
reprimanded , and that Hicks himself had overloaded the cranes.
Both Hicks and McCann categorically denied they knew about
any overloading . However, McCann admitted that railroad
girders weighing 20 tons hadbeenmoved . u As the Respondent's
2 cranes had a total rated capacity of only 15 tons , McCann
must have been aware that on at least that occasion the cranes
had been overloaded.
2. Concluding findings
a. Discrimination
The evidence summarized above discloses that the Respondent
was well aware of Clardy ' s leadership in the organizational
activities on behalf of the Union . Clardy not only was frequently
observed conversing with Union Organizer Williams , but was
one of the Union ' s witnesses at the representation proceeding
and participated in a conference between the Union and the
Respondent to arrange for the Board-directed election . Further,
both McCann and Superintendent Hicks not only interrogated
Clardy about the Union but also tried to get him to resign and
threatened him with loss of advancement with the Respondent
because of his interest in the Union . In these circumstances
and upon the entire record, we are satisfied that the General
Counsel has made out a .Prima facie case that the Respondent's
action in discharging Clardy on May 24 was rooted in its desire
to discourage his union membership and activities.
There remains for consideration the question as to whether
the Respondent ' s evidence refuted the General Counsel's prima
facie case and established its defense that Clardy was dis-
charged for cause. The Respondent contended that Clardy was
responsible for overloading the crane and thereby created a
U After hearing the testimony as to overloading by the numerous General Counsel wit-
nesses, McCann offered to reinstate Clardy fully as of November 17, 1952.
McCANN STEEL COMPANY 57
situation that was dangerous to other employees.25 However,
although Clardy had overloaded the crane, we believe that, upon
the entire record, the conclusion is inevitable that the Re-
spondent merely seized upon this incident as a pretext to dis-
charge Clardy for his union activities and interest. We base our
conclusion on the record as a whole and particularly on the
following significant facts, which are substantially undis-
puted:
1. Both McCann and Hicks admitted that Clardy was a
satisfactory employee and a good worker.
2. Although the 5- and 10-ton cranes were frequently over-
loaded, Hicks and McCann denied knowing that fact. Yet McCann
himself admitted that railroad girders weighing 20 tons had
been moved and, therefore, he must have been aware of over-
loading on at least that occasion. Accordingly, the denial of
Hicks and McCann that they did not know about any overloading
is not credited.
3. No employee was criticized or reprimanded for overload-
ing.
4. Hicks' investigation of the May 23 incident was limited to
Manson's version--a version that Manson in fact volunteered.
Significantly, neither Clardy nor Brown, the other employee
involved, was questioned by Hicks in his investigation.
5. No disciplinary action was taken against Manson even
though it admittedly was his duty to report the condition of the
crane and even though he had failed in that duty until after he
again operated the crane the next day.
6. Finally, although McCann and Hicks testified that they
were unaware of this incident until May 24, when they for the
first time determined to discharge Clardy, itis significant that
the vacation check given to Clardy was dated May 23. Such
vacation check would have been given to Clardy only if he were
about to be separated from his employ with the Respondent.
This latter determination, according to the Respondent's offi-
cials , was not made until May 24. Yet no plausible explana-
tion was offered as to why this check was dated May 23,
the day before the Respondent allegedly decided to discharge
Clardy.
In these circumstances, and upon the evidence in its entirety,
we conclude and find that Clardy's discharge was unrelated to
the crane incident but was, on the contrary, motivated by the
Respondent's desire todiscourage Clardy's interestinthe Union
and to forestall organization of its employees by the Union, and
u In addition, the Respondent apparently argued that Clardy's alleged supervisory status
afforded a defense to his discharge. In its earlier Decision and Direction of Election (Case
No. 10-RC-1262) the Board found that Clardy was a nonsupervisory employee. The record
in that proceeding was made part of the record herein, by stipulation of the parties The
Board has considered the evidence in both the representation and present proceedings and
concludes, as it did earlier, that Clardy was not a supervisor within the meaning of the Act.
Accordingly, we adopt and reaffirm our earlier determination, and find no merit in the
Respondent's argument.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent thereby engaged in unfair labor practices
proscribed by Section 8 (a) (3) and ( 1) of the Act. 26
b. Interference , restraint , and coercion
It is concluded and found that by the following conduct, the
Respondent engaged in interference, restraint , and coercion
within the meaning of Section 8 (a) (1) of the Act:
1. Interrogation of Clardy concerning his interest in the
Union, including why he wanted the Union, why he often spoke
to Union Organizer Williams, n and why he was dissatisfied.
Hicks and McCann admitted that they asked Clardy about his
apparent dissatisfaction but denied they questioned him about
his union activities . They explained that Clardy's attitude
towards his work and his fellow employees appeared to have
changed. Yet , both also admitted that Clardy was a satisfactory
employee and a good worker, and offered no reason to explain
Clardy's alleged dissatisfaction , which appears to have coin-
cided with his'well-known union activities and interests. Fur-
ther, McCann went so far as to call Clardy into his office and
speak with him in this connection , although he could recall no
other occasion when he called in an employee and discussed
his work. Thus, in the eyes of the Respondent ' s responsible
officials , Clardy's so- called dissatisfaction was, in effect,
equivalent to his interest in the Union. If Clardy had not
engaged in union activities, the Respondent would not have
discovered any "dissatisfaction ." This view is also supported
by Hearn' s testimony that Clardy "was against everything I
was trying to do" because he was the only employee who would
talk to Union Organizer Williams. Accordingly, we do not credit
the denials of McCann and Hicks.
2. The suggestion by dicks and McCann that Clardy resign
because it would be better that way and because he had no future
with the Respondent . As with the interrogation covering Clardy's
alleged dissatisfaction , so, too , here , there does not appear to
be any other reasonable explanation for the Respondent ' s attempt
to get rid of Clardy except his union activities and interest.
Clardy admittedly was a good worker, and the Respondent,
absent a discriminatory motive , would normally want to retain
him in its employ rather than encourage him to leave.
3. The statement made by Superintendent Hicks to employee
Brown that there "wouldn' t be no raise until this union business
was settled ." According to Brown , this statement was made to
him after he was promoted to Clardy' s leadman job and had
requested to be paid what Clardy had been paid . Hicks denied
making this statement . In view of our previous findings, we do
26 In view of our Decision and Order herein, we find it would serve no useful purpose to
consider the General Counsel's contention that Clardy's discharge also violated Section 8
(a) (4) of the Act. Accordingly, we shall dismiss that allegation of the complaint See Apex
Toledo Corporation, 101 NLRB 316.
27 Hearn admitted that he frequently saw Clardy talking to Williams, and that that caused
him to inquire from McCann about Williams At that time, McCann told Hearn that Williams
was a union organizer.
McCANN STEEL COMPANY 59
not credit Hick's denial. As this statement clearly indicates
that the benefits of the increased salary incident to the lead-
man's job to which Brown had been promoted was not available
to Brown because of the Union , it is coercive and violative of
the Act. 28
4. Hearn ' s statement to employees at the May 15 meeting
that McCann and he would leave if the Union came into the shop.
According to Clardy , Hearn stated that " there wasn't going to
be any union around there . . . and if the union come in he would
just pack up his bag and leave and if McCann was smart he would
do the same thing which he thought he was ." Employees Brown
and Gafford corroborated Clardy's testimony . Brown testified
that Hearn had said "he [Hearn] had to fight and get out of it"
if Williams the union organizer "had anything to do with it";
while Gafford testified that Hearn said that " if the Union came
in . . . he [Hearn ] would just have to packup and leave ." Hearn
denied making such a statement at anytime. However, upon the
entire record and particularly in view of the corroborated
testimony of Clardy , as well as Hearn ' s equating union activities
with opposition to his program for rehabilitating the Respondent,
we do not credit Hearn ' s denial . We find that Hearn threatened
the employees that he and McCann would leave if the Union was
successful . This amounted to a threat to close the plant or at
best to continue under the old financial difficulties , and thus
constituted not only a threat of loss of benefits but also of
employment to all employees.
5. Hearn ' s oral polling of the employees at the May 15
meeting as to whether they wanted Union Organizer Williams
to speak, and his oral polling of the employees as to whether
they wished to proceed with the election of June 5 that the
Board has previously canceled . 19 In these circumstances, the
pollings of employees amounted to seeking, perhaps indirectly
but no less in practical effect , to require the employees to
reveal their prounion and antiunion sentiments.
We find , however , that the Respondent did not violate the Act
in two alleged respects:
(1) According to employee Bush , a union member, Hearn
threatened to deprive the employees of the established credit
union (called the McCann Bank ) if the Union organized the
Company. Bush stated that Hearn allegedly made this statement
at the company meeting of employees he attended after he first
came back to work sometime between November 1 and 15, 1950.
Hearn denied making such statement . We credit Hearn ' s denial,
as no other witness was produced to corroborate or support
Bush ' s testimony , although the statement was alleged to have
been made where it would been heard by as many as 35 to 50
employees . Under these circumstances , we believe and find
that the General Counsel failed to gstablish , by a preponderance
of the evidence , that Hearn made such threat."
28 See Allen Fruit Company , Inc., 101 NLRB 761; Western Cottonoil Company, 95 NLRB
1433
29 The facts of these pollings are not in dispute.
30Because of our determination herein, we deem it unnecessary to consider the impact of
Section 10 ( b) of the Act on this allegation.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The complaint alleges that the Respondent unilaterally
granted wage increases to employees while the Union was their
statutory representative . However, the Union was not recog-
nized by the Respondent as such representative , and had not
even made any request for recognition . Moreover , we are not
satisfied that in granting the increases the Respondent intended
to undermine unionization particularly in view of other evidence
that it had granted similar increases before the advent of the
Union. Accordingly, we find that the General Counsel has not
sustained his burden of proof in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the Respondent set forth in
section III , 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 com-
merce 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 engaged in certain unfair
labor practices , we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act.
We have found that the Respondent discharged Vernon W.
Clardy because of his union membership and activities, and
offered him reinstatement on November 17, 1952. It will
therefore be ordered that the Respondent make him whole for
any loss of pay which he may have suffered by reason of the
Respondent' s discrimination against him , by payment to him
of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to November
17, 1952, less his net earnings 31 during said period . The back
pay shall be computed in quarterly periods in the manner
established by the Board in F . W. Woolworth Company , and the
Respondent shall make such reports available to the agents of
the Board as are provided therein.'s
It has been found that the Respondent initiated , sponsored,
interfered with, and dominated the Grievance Committee. As
the Grievance Committee no longer exists , it will serve no
purpose to enter our customary order directing the Respondent
to withdraw recognition from andtodisestablishthe Committee
as the representative of employees with respect to terms and
conditions of employment . Accordingly , no such order shall be
entered . However, we shall order the Respondent to cease and
desist from granting recognition to the Grievance Committee,
31Crossett Lumber Company, 8 NLRB 440 , 497; Republic Steel Corporation v. N.L.R.B.,
311 U.S 7.
32 See F W . Woolworth Company, 90 NLRB 289.
McCANN STEEL COMPANY 61
if it revives , or to any successor thereto, as such representa-
tive.
Since the unfair labor practices found to have been committed
by the Respondent go to the ve ry heart of the Act and indicate an
intent to interfere generally with the rights of employees guar-
anteed by the Act, the preventive purposes of the Act will be
thwarted unless the order is coextensive with the threat. There-
fore, in order to make more effective the interdependent
guarantees of Section 7 and to prevent a recurrence of unfair
labor practices which burden and obstruct commerce, we shall
order the Respondent to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the Act.
On the basis of the above finding of fact and upon the entire
record in the case, we make the following:
CONCLUSIONS OF LAW
1. Shopmen's Local Union No. 733, International Association
of Bridge , Structural & Ornamental Iron Workers , A. F. of L.,
is, and the Grievance Committee was , a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Vernon W. Clardy, thereby discouraging mem-
bership in the Union , the Respondent has engaged in and is
engaging in unfair labor practices , within the meaning of
Section 8 ( a) (3) of the Act.
3. By initiating , sponsoring , interfering with, and dominating
the Grievance Committee, the Respondent has engaged in and is
engaging in unfair labor practices , within the meaning of Section
8 (a) (2) of the Act.
4. By interfering with, restraining , and coercing its employ-
ees 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.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Section
2 (6) and ( 7) of the Act.
6. The Respondent has not violated Section 8 (a) (4) and (5)
of the Act.
ORDER
Upon the basis of the above findings of fact, conclusions of
law, and the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, John H.
McCann and Hazel E. McCann d/b/a McCann Steel Company,
Nashville, Tennessee , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Shopmen's Local Union No.
733, International Association of Bridge, Structural & Orna-
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental Iron Workers , A. F. of L., or in any other labor organi-
zation of its employees , by discharging any of its employees, or
by discriminating in any other manner in regard to their hire or
- tenure of employment or any term or condition of employment.
(b) Dominating or interfering with the formation or admin-
istration of, or contributing financial or other support to, the
Grievance Committee , or any other labor organization , includ-
ing any successor to the Grievance Committee.
(c) Recognizing the Grievance Committee, if it revives, or
any successor thereto , as a bargaining representative unless
certified.
(d) In any manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist - Shopmen's Local
Union No. 733, International Association of Bridge , Structural
& Ornamental Iron Workers , A. F. of L., or any other labor
organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or pro-
tection , 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 condition
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) Make whole Vernon W. Clardy in the manner set forth in
the section entitled "The Remedy," for any loss of pay he may
have suffered because of the discrimination against him.
(b) Upon request, make available to the Board or its agents
for examination and copying , all payroll records , social -security
payment records, timecards , personnel records and reports,
and all other records necessary to analyze the amount of back
pay under the terms of this Order.
(c) Post at its plant at Nashville , Tennessee, copies of the
notice attached hereto marked "Appendix A." 33 Copies of said
notice , to be furnished by the Regional Director for the Tenth
Region , shall, after being duly signed by the Respondent ' s repre-
sentative , be posted by it immediately upon the receipt thereof
and be maintained by it for a period of sixty (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 covered by any other
material.
(d) Notify the Regional Director for the Tenth Region, in
writing , within ten ( 10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that the Respondent violated Section 8 (a)
(4) and (5) of the Act.
33 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."
McCANN STEEL COMPANY 63
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations i.ct, we hereby notify our employees
that:
WE WILL NOT discourage membership in Shopmen's
Local Union No. 733, International Association of Bridge,
Structural & Ornamental Iron Workers, A. F. of L., or any
other labor organization , by discharging any of our em-
ployees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT dominate or interfere with the formation
or administration of, or contribute financial or other sup-
port to, the Grievance Committee, or any other labor
organization, including any successor to the Grievance
Committee.
WE WILL NOT recognize the Grievance Committee, if it
revives, or any successor thereto, as a bargaining repre-
sentative, unless certified.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist Shopmen's Local Union No. 733, International Asso-
ciation of Bridge, Structural & Ornamental Iron Workers,
A. F. of L., or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and 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.
WE WILL make Vernon W. Clardy whole for any loss of
pay he may have suffered as a result of the discrimination
against him.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of Shopmen's Local
Union No. 733, International Association of Bridge, Structural
& Ornamental Iron Workers, A. F. of L., or any other labor
organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the Act.
We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee because of membership in or nonmembership in any
such labor organization.
McCANN STEEL COMPANY,
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.
LATE CHEVROLET COMPANY, INC . and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL. Case No. 32-CA-285.
July 9, 1953
DECISION AND ORDER
On April 23, 1953, Trial Examiner Richard N. Ivins issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent, Late Chevrolet Company, Inc., had
engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom, and
take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting
brief.
The Board' 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 Inter-
mediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, 2 conclusions, 3 and
recommendations of the Trial Examiner, with the exceptions,
modifications, and additions noted below.
1. While we find, in agreement with the Trial Examiner,
that because the Respondent operates as an integral part of a
multistate enterprise, the Board should assert jurisdiction in
this proceeding , we find as an additional reason for asserting
jurisdiction the fact that the Respondent's purchases and sales
in commerce, respectively, together represent in excess of
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [Members Houston, Murdock, and
Peterson].
2 We correct the following misstatement of fact in the Trial Examiner's findings, which
does not affect the validity of his ultimate conclusions nor our concurrence therein. It ap-
pears from the record that Owen, not Cook as found by the Trial Examiner, spoke with
Barnes on June 28 as certain of the employees were leaving work at noon. (IR p. 70).
3 We find no merit in the Respondent's contentions (1) that the charging party is not a labor
organization within the meaning of the Act and (2) that its Local, Lodge 924, has not complied
with the filing requirements of the Act.
106 NLRB No. 9.