McCann Steel Cob., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1971

191 N.L.R.B. 299 (N.L.R.B. 1971)

MCCANN STEEL COMPANY, INC. 299
McCann Steel Company , Inc. and Russell J. Bently.
Case 26-CA-3842
June 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their right
to join or assist labor organizations or discriminating
against employees because they engaged in a strike or
other union or concerted activities."
2. Substitute the attached notice for the notice at-
tached to the Trial Examiner's decision.
APPENDIX
On March 5, 1971, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief. The General Counsel filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial 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 this case, and hereby adopts the
findings,' conclusions, and recommendations2 of the
Trial Examiner, with the modifications noted below.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that Respondent, McCann Steel Company, Inc.,
Nashville, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order:
1. Delete paragraph 1(b) and substitute therefor the
following:
' The Trial Examiner's findings are based , in large measure , upon credi-
bility resolutions , to which Respondent has excepted . It is the policy of the
Board not to overrule the credibility determinations made by a Trial Exam-
iner unless the record convinces us that they are contrary to the clear
preponderance of all the relevant evidence . After a careful review of the
record, we conclude that the Trial Examiner's credibility findings are not
contrary to the clear preponderance of all the relevant evidence . Accord-
ingly, we find no basis for disturbing those findings . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
t In light of Respondent 's demonstrated proclivity to violate the Act
(McCann Steel Company, Inc., 184 NLRB No. 90; 190 NLRB No. 2), we
shall grant General Counsel 's request to broaden the Trial Examiner's
recommended Order.
191 NLRB No. 64
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL pay vacation pay accruing during the
year 1970 to the following employees, together
with interest due thereon after July 1, 1970:
Russell Bently Thaxton Hale
Sherman Birdwell James A. Jones
Gordon Carver Lawrence Partain
Robert Ellis James Paul
Charles Hale Frank Sliger
WE WILL NOT withhold accrued vacation pay
from employees because they engaged in a lawful
strike.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to join or assist labor organizations
or discriminate against employees because they
engaged in a strike or other union or concerted
activities.
MCCANN STEEL
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1720 West End Building, Room 403, Nashville,
Tennessee 37203, Telephone 615-242-8321, Extension
5922.
TRIAL EXAMINER'S DECISION
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard in Nashville, Tennessee, on February 2, 1971, pursuant
to a charge filed the preceding November 6,' and a complaint
Except where otherwise indicated, all dates herein refer to the year
(Cont.)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued December 18, presents questions as to whether Re-
spondent, herein called the Company, unlawfully withheld
accrued vacation pay from certain employees because they
engaged in and did not abandon a strike.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
General Counsel and by the Company, I make the following:
FINDINGS OF FACT
I JURISDICTION AND BACKGROUND
Prior proceedings before the Board in cases involving the
Company establish, as do the pleadings before me, that it is
an employer engaged in commerce within the meaning of the
Act, and that on or about May 14, 1970, a number of its
employees went on strike at the call of their statutory bargain-
ing representative. See McCann Steel Co., 184 NLRB No. 90;
see also TXD-745-70, a decision of Trial Examiner Plaine,
dated December 10, 1970, in Cases 26-CA-3661, 3717, now
pending before the Board.
II THE UNFAIR LABOR PRACTICES
For a number of years the Company practice was to give
paid vacations to employees who had been in the Company's
employ for a full calendar year. At the time of the strike on
May 14, 1970, a number of the employees who went on strike
were entitled to paid vacations under this policy because they
had spent the entire calendar year of 1969 in the Company's
employ. Some of those employees had already received their
vacation money before the strike. Others abandoned the
strike and thereafter received their vacation pay. However,
eight employees who worked all of 1969 were still on strike
at the end of 1970 and never received their full accrued
vacation pay.' At least two of these employees asked for their
vacation pay during the course of the strike, and Company
Superintendent Hicks told them there was "nothing [he
could] do about it right now." The foregoing quotation is
from Hicks' own testimony adduced by the Company. Other
testimony by employee Lawrence Partain, which I credit,
establishes that Hicks told some picketing employees they
could not draw vacation pay until they abandoned the strike.
There is also uncontradicted testimony that when striker
Charles Hale asked the chairman of the board, John
McCann, about Hale's vacation pay, McCann replied that
Hale could not get his vacation pay "right now" and added,
"You boys cost me a lot of money." The Company on the
record expressly disclaimed financial inability to pay as a
defense to its failure to give the employees here involved their
vacation pay.
The violation of Section 8(a)(1) and (3) inherent in the
above-described conduct is patent. N.L.R.B. v. Great Dane
Trailers, 388 U.S. 26. See also N.L.R.B. v. Frick Co., 397
F.2d 956 (C.A. 3, 1968); N.L.R.B. v. Duncan Machine
Works, Inc., 75 LRRM 2781 (C.A. 7, 1970). The Company
suggests that several of the strikers made no demand for their
vacation pay, but after Hicks' statements they were under no
obligation to make an obviously futile request.
There remains for consideration the case of two employees,
Russell Bently and Gordon Carver, who were hired on April
28 and May 8, 1969, respectively, and who had therefore
worked over 1 full year, but not a full calendar year, at the
1970
' Sherman Birdwell, Robert Ellis, Charles Hale, Thaxton Hale, James A.
Jones, Lawrence Partain, James Paul, and Frank Sliger. Of this group, Jones
and Birdwell had received 1 week's vacation payment prior to the strike, but
as employees for over 5 years were entitled to 2 weeks, and never received
pay for the second week.
time of the strike. Under the Company practice prevailing
through 1969, these men would not have been entitled to
vacation pay until the end of 1970. The testimony of Bently
and of Union Representative Franklin is that at a bargaining
session on January 23, 1970, John McCann, chairman of the
Company's board, "stated that the Company's policy had
changed, and that they now paid the vacation after they had
been with the Company one year, meaning anniversary date."
John McCann was present in the hearing room but did not
take the stand to contradict this testimony. However, Logan
Hicks, Company superintendent, to whom the employees ap-
plied for vacation pay, testified that the change in vacation
policy to make the "anniversary date" rather than the "calen-
dar year" the test of eligibility, did not occur until after the
start of the strike, possibly in September.
I credit the testimony of Bently and Franklin. I do so, not
only because of the failure of McCann to testify (see Note, 5
ALR 2d 893, 896, 907-908, 909-9 11), but also because Com-
pany records introduced into evidence establish that at least
one employee, Wayne Mahaney, who had not worked the full
calendar year of 1969, received a year's vacation pay in
March 1970.' It follows that the failure to give vacation pay
to Bently and Carver in 1970, like the failure to pay the eight
employees discussed above, was the result of their having
participated in a strike after their right to vacation pay had
accrued. The violation of Section 8(a)(1) and (3) of the Act
is thus established with respect to each of the individuals
named in the complaint as amended.
CONCLUSION OF LAW
By withholding accrued vacation pay from employees be-
cause they participated in, and declined to abandon, a strike
called by a labor organization , the Company engaged in an
unfair labor practice affecting commerce within the meaning
of Section 8(a)(1) and (3) and 2(6) and (7) of the Act.
THE REMEDY
I shall , of course, recommend that the Company cease and
desist from its unfair labor practice , that it make the vacation
payments unlawfully withheld, and that it post appropriate
notices. Inasmuch as Hicks' statements to some of the em-
ployees that they would not get their vacation pay were made
on or about July 1 , 1970, I recommend that interest at 6
percent per annum run in favor of each of the employees from
that date. See Isis Plumbing & Heating Co., 138 NLRB 716.
Cf. J. J. Hagerty, Inc., 153 NLRB 1375 , 1377-78, 1380, enfd.
385 F.2d 874 (C.A. 2, 1967), and the Palmer case there cited.
Accordingly , upon the foregoing findings of fact, conclu-
sion of law, and the entire record , and pursuant to Section
10(c) of the Act , I hereby issue the following recommended:
' The records suggest similar payment to employee William Luther,
whose seniority date is shown as April 28, 1969 (the same as Bently's), and
who received vacation pay when he abandoned the strike on July 28, 1970.
The record on Luther shows that he also received vacation pay in 1968.
Apparently there was a break in his employment as he received no vacation
pay in 1969.
MCCANN STEEL COMPANY, INC. 301
ORDER'
Respondent, McCann Steel Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding accrued vacation payments to any em-
ployee because such employee has engaged in, or declined to
abandon, a lawful strike.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under the National Labor Relations Act or discriminating
against them for having engaged in activities protected by
that Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Make whole Russell Bently, Sherman Birdwell, Gordon
Carver, Robert Ellis, Charles Hale, Thaxton Hale, James A.
Jones, Lawrence Partain, James Paul, and Frank Sliger for
vacation pay withheld from them in 1970 together with inter-
est thereon as provided in the section of the Trial Examiner's
Decision captioned "The Remedy."
° In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
(b) Post at its plant at Nashville, Tennessee, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
6 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 26, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "