Mississippi Valley Structural Steel Co.

National Labor Relations Board - Board Decisions

Oct 12, 1945

64 N.L.R.B. 78 (N.L.R.B. 1945)

I
In the Mattel' Of MISSISSIPPI VALLEY STRUCTURAL STEEL COMPANY,
MAPLEWOOD PLANT and INTERNATIONAL ASSOCIATION' OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 518, A'. F.L.
Case No. 14-C-885
AMENDED DECISION AND ORDER
AND
RECOMMENDATION
October 1211,91P5
On May 13, 1944, the National Labor Relations Board, herein called
the Board, issued 'a Decision and Order in this case, in which it found
that Mississippi Valley Structural Steel Company, Maplewood Plant,
Maplewood, Missouri, herein called the respondent, had engaged in
and was engaging in certain unfair labor practices affecting com-
merce and ordered that the respondent cease and desist therefrom and
take certain affirmative action.,
On December 11, 1944, the United States Circuit Court of Appeals,
for the Eighth Circuit, upon the respondent's petition to review the
Board's Order, remanded the case to the Board with directions to
afford the respondent an opportunity to adduce additional evidence
relevant to the issues, to make the evidence so adduced a part of the
transcript in the proceeding, and, if it be so advised, to make and
file new or additional findings of fact, together with its recommenda-
tions, if any, for the modification, setting aside, or enforcement of its
'Order .2
Pursuant to notice and in accordance with the remand of the Court,-
a hearing was held at St. Louis, Missouri', on January 16 and 17, 1945,
before Gustaf B. Erickson, the Trial Examiner duly designated by
the Acting• Chief Trial Examiner. The Board, the respondent, and
International Association of Bridge, Structural and Ornamental Iron
Workers, Local 518, A. F. L., herein called the Union, were repre,
sented by counsel, participated'in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
1.56 N L R B 485 In substance , the Board found that the respondent had engaged
in and was engaging in conduct interfering ,iith restraining , and coercing its employees
in the exercise of their statutory rights
2 145 F (2d) 664
64N L.R B.,No 16
78
MISSISSIPPI VALLEY STRUCTURAL STEEL COMPANY 79
to' introduce evidence bearing on the issues. * During the course of the
hearing, the Trial Examiner made rulings on motions and on the,
admission of evidence. The Board has reviewed all the rulings of
the Trial Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
On June 25, 1945, the Trial Examiner issued his Second Inter-
mediate Report, copies of which were duly served' on all the parties.
Inithe Second, Intermediate Report the Trial Examiner found that the
respondent had engaged in and was engaging in certain unfair- labor
practices affecting commerce, 'and recommended that it cease and
desist therefrom and take certain _affirmative action. Thereafter, the
respondent duly filed exceptions to the Second Intermediate Report.
On August 30, 1945, the respondent and the Union participated in
oral argument before the Board in Washington, D. C.
The Board has considered the Second Intermediate Report, the
exceptions, and the entire record' in the case, and finds that the excep-
tions have merit insofar as they are consistent with the supplemental
findings,of fact and order set forth below.
Upon the entire record in the case, the' Board makes the' following :
- SUPPLEMENTAL FINDINGS OF FACT
In its Decision and Order herein, and on the basis of the evidence
then before it, the Board found the respondent chargeable with cer-
tain coercive anti-union statements made in August 1943 by employees
Davis, Heck, and Gabris, on the ground that they were supervisory
employees. However, according to undisputed evidence adduced by
the respondent at the further hearing directed by the Court, Davis,
Heck, and Gabris were included with the rank and file employees in
the collective bargaining unit claimed by the Union, as is shown- by
the following facts: (1) In 1937 the Union accepted Davis, Heck, and
Gabris for membership although their positions were substantially
the same as in August 1943, and obtained their signatures along with
those of rank and file employees on a petition transmitted to the
respondent, designating the Union as the collective bargaining repre-
sentative; (2) the Union specifically solicited Davis' membership in
the summer of 1943; and (3) the Union agreed to the list of eligible
voters to be used in the consent election of August 1943 and this list
included the names of Davis, Heck, and Gabris.
Under these circumstances, Davis, Heck, and Gabris, as members
of the claimed bargaining unit, had the same right as rank and file
employees to express their views as to the undesirability of representa-
tion by the Union. Liability for such statements and activities may
be attributed to the respondent only upon a showing that the respond=
ent "encouraged, authorized;' 'or ratified their' activities or acted in
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such' manner as to lead the employees reasonably to believe that the
foremen [supervisors] were acting for and on behalf of manage
ment." 3 No such showing has been made in the instant case. The
Union's representative at the oral argument before the- Board con-
tended, however, that Davis, Heck, and Gabris improperly used their
position to "browbeat" the employees, into voting against the Union
and to bribe them into doing 'so by promises of a wage increase. We
find that, there is no evidence' in this .case to-support such an argu-
ment.' Under all the circumstances, we are satisfied that the -state-
ments of Davis, Heck, and Gabris are not attributable Ito the re-
spondent. ' '
In its Decision and Order the Board, further found that shortly
before the consent election of, August, 1943, the respondent granted
certain wage increases as. part of its campaign against the Union.
However, according to undisputed evidence adduced by the respondent
at the further hearing directed by the Court, such wage increases were
granted in'accordance with a plan pursuant to which the respondent
had-granted the-same number of wage increases in the preceding month
of July 1943, when the plan first went into effect, and a greater number
of -wage increases in each of the next 6 succeeding months. Under
these circumstances and in the absence of evidence that the August
1943 wage increases had "any relation to union activity, we are satis-
fied that the granting of the wage increases did not constitute an
unfair labor practice.
In its Decision and Order the Board also found that the respondent
had engaged in interference, restraint, and coercion by distributing
to its employees two letters, one dated August 10, 1943, and' the other
dated August 12, 1943, discussing the pending consent election, assur-
ing the employees that they were free to join or to refrain froni join-
ing a union, indicating the respondent's unfavorable attitude toward
the Union in this case, and risking those employees who were not on
the pay roll at the time of the Union's strike in 1937 to talk to em-
ployees who remembered that event in order to find out what, if any-
thing, the Union had accomplished for the employees. The Board
further held the respondent chargeable for the anti-union statements
of such "old-time" employees. However, according to undisputed evi-
dence adduced by,the respondent at the further* hearing directed by,
the Court, the Union had engaged in a strike in 1937 which both the
respondent and many of its employees considered contrary to the in-
terests of the employees; and the respondent accordingly suggested to
the employees who did not know of the Union's conduct in 1937 that
they find out about it before voting in the consent election. Under
these circumstances and in the absence of evidence that the respondent'
s Matter of R R. Donnelley and Sons Company, 60 N. L. R B. 635. '
MISSISSIPPI VALLEY STRUCTURAL STEEL COMPANY 81
employed any threats of economic reprisal or otherwise coerced its
employees into opposing. the Union, we are satisfied that the letters
and the anti-union statements of the "old-time" employees do not con-
stitute unfair labor practices.
In its Decision and Order the Board ifound that the respondent had
engaged in a background of anti-union conduct prior to the events
alleged in the complaint. Since we find below, on the basis of the
evidence now 'before us,. that the unfair labor practice allegations of
the complaint are unsupportecl,by the evidence, we consider it unnec-
e99ar5 to make a finding tis to tlie'backgFound conduct of the respondent.
Upon considering the case in the light of the entire r'ec'ord', includ-
ing the evidence adduced by the ` ss ondent ' at the dither hearing
directed by the Court, we are no `loiiger of the vie*'which we an-
nounced in our original 'Decisi'on aiid Order herein, but now con
clude that the respondent dld;,not engage in any of the alleged unfair
labor practices. Accordingly, we shall vacate and set aside our origi-
nal Decision and Order insofar as it is inconsistent with this Amended
Decision and Order,' aiidsliall' di'sm'iss the coinphiint herein.
' ORDER '
Upon the basis of the, foregoing supplemental findings of fact, and
the entire record 'in the case, and pursuant to Section 10 (c) of the'
National Libor Relations Act; the -National Labor Relations Board
hereby orders that its, Decision and Order of May i3,'1944',, be, -and
it hereby is, vacated and set aside insofar as the said Decision and
Order is inconsistent with the supplemental findings of fact and order
herein.
AND IT Is FU11TIIER om)i iED that the complaint against the respond-
ent, Mississippi.Valley°Structural Steel Company, Maplewood PlanL,
Maplewood, Missouri, be; and it hereby is, dismissed.
RECOMMENDATION
Upon the basis of the foregoing Order, and pursuant to the remand
of the United States Circuit Court of Appeals for the Eighth Circuit,
the National Labor Relations Board hereby respectfully recommends
that the Court dismiss the petition of the Mississippi Valley Struc-
tural Steel Company to review, and the' Board's answer requesting
enforcement of, the Order of May 13, 1944, in this case.
Cl1AI1tlIAN HERZOG took no part in the consideration of the above
Amended Decision and Order and Recommendation.
670417-46-vol. 64-7