Medford Steel Co.

National Labor Relations Board - Board Decisions

Feb 6, 1951

93 N.L.R.B. 21 (N.L.R.B. 1951)

MEDFORD STEEL COMPANY 21
thereafter, prepare and cause to be served upon the parties a supple-
mental tally of ballots.
CHAIRMAN HEIIZOG and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Direction.
MEDFORD STEEL COMPANY and LARRY TURNER. Case No. 36-CA-128.
February 6,1951
Decision and Order
On December 1, 1950, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the Act, 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
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the additions and modifications hereinafter
set forth.
1. The Respondent contends that it discharged Larry Turner be-
cause he wasted "too much time talking." On the basis of the facts
detailed in the Intermediate Report, the Trial Examiner concluded
that Turner was discharged because of his union activities. The Trial
Examiner made no finding, however, as to whether Turner had mis-
conducted himself as the Respondent asserts. The record does not
support the Respondent's defense. Manager Hawkins testified that
he received complaints of an unstated nature from Foreman C. D.
Hershiser about Turner, but Hawkins gave no testimony as to any mis-
conduct on the part of Turner, and Hawkins did not deny Turner's
credited testimony that he had never received any complaint from
Hawkins about talking excessively. Foreman Hershiser likewise ad-
mitted in his testimony that he did not complain to Turner about his
^ i'uisuant to the p rovisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Boaid has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds , and Styles].
93 NLRB No. 10.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged excessive talking. Hershiser merely gave general testimony
that he recommended Turner's discharge for "wasting too much time
talking" and because "he was not able to perform the amount of work
that should be performed." Thus the record contains no specific testi-
mony as to any misconduct by Turner, and we find it difficult to believe
that if, in fact, the Respondent had observed Turner in excessive talk-
ing, it would not have at least mentioned the matter to hin. More-
over, Samuel J. Davis, who preceded Hershiser as Turner's foreman,
credibly testified that he never observed Turner talking; that Turner
was as good a worker as the other employees ; and that Hawkins never
complained to Davis about Turner's work or conduct.,
On the basis of the foregoing, we find that Turner did not engage
in an excessive amount of talking during working hours. In any
event, we agree with the Trial Examiner for the reasons set forth in
the Intermediate Report that the Respondent discharged Turner be-
cause of his union activities and not because of any misconduct on his
part. Accordingly, we find that by discharging Turner on June 24,
1949, the Respondent discriminated in regard to hire and tenure of
employment to discourage membership in the Union in violation of
Section 8 (a) (3) of the Act, thereby interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) thereof.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Medford Steel
Company, Medford, Oregon, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 72, International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, or in any other labor organization of its employees, by discrimi-
natorily discharging any of them, or by discriminating in any other
manner in regard to their hire, tenure of employment, or any term or
condition of employment.
(b) In any other 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 Local 72, International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all of such activities except to the extent that such right may be
MEDFORD STEEL COMPANY 23
affected by an agreement requiring membership in a labor organiza-
tion 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) Offer to Larry Turner immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled,
"The Remedy," for any loss of pay which he may have suffered as a
result of the Respondent's 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, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of reinstatement antler the terms of this Order.
(c) Post immediately at its plant in Medford, Oregon, copies of
the notice attached to the Intermediate Report and marked Appendix
A.2 Copies of such notice, to be furnished by the Regional Director
for the Nineteenth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for 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 ResAndent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Intermediate Report
Mr. H. J. Merrick, for the General Counsel.
Mr. Larry Turner, of Central Point, Oreg., pro se.
Mr. Alfred P. Blair, of Eugene, Oreg., for the Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed by Larry Turner, an individual, the General Counsel
of the National Labor Relations Board, herein respectively called the General
Counsel and the Board, issued his complaint dated August 2, 1950, against
Medford Steel Company, Medford, Oregon, herein called the Respondent, al-
2 Said notice is hereby amended by deleting the words, "The recommendations of a Trial
Examiner ," and substituting in lieu thereof, the words, "A Decision and Order." In
the event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order," the words, "A Decree of the
United States Court of Appeals Enforcing."
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the charge, the complaint, and notice of hearing
were duly served upon the parties.
With respect to unfair labor practices the complaint alleges that the Re-
spondent discriminatorily discharged Larry Turner, an employee, on June 24,
1949, because of his activities on behalf of Local 72, International Brotherhood
of Boilermakers, Iron Shipbuilders and Helpers of America, AFL, herein called
the Union, and by said discharge interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held before the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner, in Medford, Oregon, on November
2 and 3, 1950. The General Counsel and the Respondent were represented by
counsel; Turner appeared in his own behalf. All parties participated in the
hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues At the
opening of the hearing counsel for the Respondent submitted a motion for dis-
missal which, by agreement of counsel, was allowed to serve as the Respondent's
answer, in which it denied the commission of any unfair labor practices. The
motion to dismiss was denied. At the conclusion of the hearing said motion
was renewed, and ruling upon it was reserved. Disposition of this motion is
made in the findings, conclusions, and recommendations appearing below. Op-
portunity to file briefs with the Trial Examiner was waived. Counsel for the
Respondent and the General Counsel argued orally, upon the record
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I TIIE BUSINESS OF THE RESPONDEAFr
Medford Steel Company is an Oregon corporation, engaging at Medford,
Oregon, in the business of steel warehousing and steel fabrication. In the course
of its business the Respondent annually purchases goods valued at more than
$260,000, 95 percent of which are shipped to the Respondent from points outside
the State of Oregon. Its annual sales total more than $375,000, more than 50
percent of which are to firms engaged in intei state commerce. The Respondent
concedes the Board's jurisdiction.
II. THE LABOR ORGANIZATION INVOl VED
Local 72, International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, is a labor organization admitting to membership em-
ployees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
For a period of several years before March 1949, employees of the Respondent
had been represented in collective bargaining by the International Association
of Machinists, herein called the Machinists According to the testimony of Fred
Hawkins, the Respondent's owner and manager, it was necessary that his em-
ployees be in some union, because his business dealt with concerns which them-
selves were "affiliated with building trades."
MEDFORD STEEL COMPANY 25
Early in 1949 it appears that Hawkins' interest, for some reason, shifted from
the Machinists to the Union. He requested a business agent of the Union to
locate a foreman for him, and as a result Samuel J. Davis, a member of the
Union, was hired for the supervisory position. Hawkins testified : "Well, it was
my own decision to have somebody in there, and at the time the Boilermakers
were there it seemd like a good idea to hear the Boilermakers and hear what they
had to offer." Hawkins sent to the Union for a copy of their contract. Having
received and examined the contract, however, Hawkins testified that he had
again changed his mind, because of certain provisions in it unfavorable from his
view, as to overtime and field pay.
In March of 1949 Larry Turner was hired as a welder. He worked under
Davis until the latter left the latter part of May. At the time Turner was hired
employees were discussing the relative merits of the Machinists and the Union,
the question having been formally raised by the filing of a petition for certifica-
tion with the Board by the Union on March 16, 1949. A consent election was
agreed upon in May, and a Board election was held on May 23, between the
Union and the Machinists.
Because of the close vote and a challenged ballot, a run-off election was held
June 9. This time the Union obtained a clear majority and on June 17 was
certified by the Regional Director.
Between the two elections Hawkins openly told employees that he wanted the
Machinists to win because he "couldn't see" the Union's field and overtime scale.
He further declared that if the Union won there would be no overtime.
Several days passed after the run-off election without a representative of the
Union, which had its office in Portland, Oregon, appearing at the plant to nego-
tiate a contract. Some of the employees, having voted for the Union, became
concerned at the delay, and selected Larry Turner as spokesman to communicate
with the Union. He telephoned to the union office on June 21, but was informed
that the business agent was absent The following day the business agent-sent
a telegram to Turner, addressing him at the Respondent's plant, to the effect that
he would not be able to come to Medford for a few days. This message was
received, over the telephone, by the Respondent's bookkeeper, and relayed to
Turner.
Two days later, on June 24, the telegraph company delivered a confirmation
of the telegram to the plant. It was addressed to Turner, but was opened in the
office and carne to the attention of Hawkins about 2 hours before the close of that
workday. Hawkins had Turner's pay check made out in full, and called him
to his office at the end of the shift. He told the employee : "Larry, there's rumors
around that you aren't happy here." Turner replied that he could be happier.
Hawkins then declared that it was not his custom to have anyone working for
him who was unhappy, handed the employee his pay check with the telegram
attached to it, and said, "By God, Larry, I can do my own negotiating with the
Boilermakers."
As to the foregoing facts the record contains no substantial dispute.
Hawkins testified, however, that he actually discharged Turner for reasons
other than his communication with the Union. He claimed that some time before
June 24 he had decided to fire Turner, as soon as he could obtain a replacement,
because he had received "several" complaints from Foreman C. D. Hershiser
about Turner. Hershiser succeeded Davis early in June. Hawkins did not
testify as to the nature of these complaints, nor did he deny Turner's testimony
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that no supervisor had ever criticized him either as to the quantity or quality
of his work.'
Foreman Hershiser, a member of the Machinists, testified that on "several"
occasions he had recommended Turner's discharge to Hawkins because the em-
ployee was "wasting too much time talking." He admitted that he could recall
no occasion, however, when he had ever approached Turner himself with a com-
plaint of any kind.
Upon this paucity of evidence the Respondent rests its defense The Trial
Examiner considers it insufficient to negate the reasonable inference, drawn from
the preponderance of undisputed evidence, that Hawkins actually discharged
Turner in resentment against the employee's communicating with the Union
representative.
His remark to Turner as he handed him his discharge pay, "By God, Larry,
I can do my own negotiating with the Boilermakers" plainly revealed the sub-
ject paramount in his mind Futhermore, it is undisputed that a few minutes
after discharging Turner, Hawkins told employee L. Q. Smith that while he
had "no business" seeing Turner's wire from the Union, it "kind of burned"
him up. Hawkins himself testified that the telegram first came to his atten-
tion "about two hours" before the close of the day-and that at about the
same time he had had the employee's pay check made out.
The Trial Examiner is convinced, and finds, that Turner was actually dis-
charged, on June 24, 1949, because of his activity on behalf of the Union, thereby
discouraging membership in the Union and interfering with, restraining, and
coercing employees in the exercise of rights guaranteed in, Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the hire
and tenure of employment of Larry Turner. It will be recommended that the
Respondent offer to him immediate and full reinstatement to his former or
1 Late in the hearing the Respondent introduced a document, purporting to be drawn up
from certain records, showing that the Respondent charged customers for fewer hours than
Turner actually put in on some jobs. The document is meaningless, absent more explana-
tion than appears in the record In any event, counsel for the Respondent offered it, not
as the basis for the discharge, but only to rebut certain testimony of Davis to the effect
that Turner "put out the same amount of work as everyone else."
MEDFORD STEEL COMPANY 27
substantially equivalent position' and make him whole for any loss of pay he
may have suffered as a result of the discrimination against him by payment to
him of a sum of money equal to that which he would have earned as wages from
June 24, 1949. to the date of the offer of reinstatement. Loss of pay shall be
computed on the basis of each separate calendar quarter or portion thereof dur-
ing the period from the Respondent's discriminatory action to the date of a
proper offer of reinstatement. The quarterly periods, herein called quarters,
shall begin with the first day of January, April, July and October. Loss of pay
shall be determined by deducting from a sum equal to that which he would
normally have earned.for each such quarter or portion thereof, his net earnings,'
if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter.'
In accordance with the Woolworth decision, it will be recommended that the
Respondent, upon reasonable request, make available to the Board and its agents
all records pertinent to an analysis of the amount clue as back pay.
The unfair labor practices found reveal on the part of the Respondent such
a fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is re-
quired to take some affirmative action to dispel the threat. It will be recom-
mended, therefore, that the Respondent cease and desist from in any manner
interfering with. restraining, or coercing its employees in the exercise of rights
guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the ease, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 72, International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, is 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 Larry
Turner, 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 such discrimination and by interfering with, restraining, and coercing
emplo3 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
2 The Chase National Bank of the City of New 'York, an Juan, Puerto Rico Branch,
65 NLRB 827
3 Crossett Lumber Company, 8 NLRB 440, 497-8
4 F TV. Woolworth Company, 90 NLRB 289