Steel Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1235 (N.L.R.B. 1962)

STEEL INDUSTRIES, INCORPORATED 1235
Steel Industries , Incorporated and International Union, Allied
Industrial Workers of America, AFL-CIO and Factory Com-
mittee (Safety and Grievance Committee ), Party of Interest.
Case No. 35-CA-1445. September 28, 1962
DECISION AND ORDER
On March 14, 1962, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices as alleged in the complaint and
recommended dismissal of these allegations. Thereafter, the General
Counsel and Respondent filed exceptions to the Intermediate Report
and supporting briefs.
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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case , and adopts the findings,' conclusions, and recommendations 2 of
the Trial Examiner with the additions and modifications noted herein.
We agree with the Trial Examiner's conclusion that Respondent
violated Section 8(a) (1) (2) and (3) of the Act. In concluding that
Respondent contributed support to and interfered with the adminis-
tration of the Factory Committee in violation of Section 8(a) (2), we
have considered for background purposes, elucidating events and cir-
cumstances antedating the 10(b) period, such as: The Factory Com-
mittee was organized as a successor to the Safety and Grievance Com-
mittee, which was formed and sponsored, and provided with financial
and other support, by Respondent. Concurrently with the Union's
efforts to organize Respondent's employees, the members of the Factory
Committee were told by Respondent's vice president that Respondent
did not need or want a union and that the Committee could help keep
7 We do not rely upon the remarks of the Trial Examiner at footnote 1 of the Inter-
mediate Report.
For the reasons given in Luis Plainbonq if Heatinq Co, 138 XLRB 716, and in the
manner therein described , we adopt the Trial Examiner's recommendation , as requested
by the General Counsel, that the Respondent 's backpay obligation herein include the pay-
ment of 6-percent interest on the backpay due White. Member Leedom, however, for
the reasons stated in the dissent in the aforementioned case, would not grant such interest
138 NLRB No. 119.
662353-63-vol. 13 8- 7 8
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it out. He instructed the Factory Committee as to how it should func-
tion, explaining that it could provide the services of a union if it col-
lected grievances from the employees and obtained answers for their
grievances. As found by the Trial Examiner, Factory Committee
members were paid by Respondent for time spent in committee work
and Foreman Hartle was designated by Respondent as its representa-
tive in the first step of grievance processing and he also served as a
member of the Factory Committee, which processed grievances with
Respondent.
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 :
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied In-
dustrial Workers of America, AFL-CIO, or in any other labor organ-
ization, by discriminatorily transferring any of its employees or
discriminating in any other manner in respect to their hire and tenure
of employment, or any term or condition of employment.
(b) Contributing support to or interfering with the administra-
tion of Factory Committee or any other labor organization of its
employees.
(c) Recognizing Factory Committee, or any successor thereto, as
the representative of its employees for the purpose of dealing with the
Company concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of employment,
unless and until such labor organization has been duly certified by
the National Labor Relations Board as the exclusive representative of
such employees.
(d) Coercively interrogating employees concerning their union
activities or desires.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ella Jean White immediate reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(b) Make said Ella Jean White whole for any loss of pay she may
have suffered by reason of the discrimination against her, in the man-
ner set forth in "The Remedy" section of the Intermediate Report
and in the decision above.
STEEL INDUSTRIES, INCORPORATED 1237
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, 'all payroll records, social se-
curity records, timecards, personnel records and reports, and all
records necessary to analyze the amounts of backpay due and the
rights of the aforesaid discriminatee under the terms of this Order.
(d) Withdraw and withhold recognition from Factory Committee
as the exclusive bargaining representative of its employees, unless
and until the said labor organization shall have been duly certified
by the National Labor Relations Board as the exclusive representative
of such employees.
(e) Post at its place of business in Crawfordsville, Indiana, copies
of the notice attached hereto marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for the Twenty-fifth
Region, shall, after being duly signed by the Company's representa-
tive, be posted by the Company immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Com-
pany to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3 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 "
APPENDIX
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 Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union,
Allied Industrial Workers of America, AFL-CIO, or any other
labor organization by discriminatorily transferring any of our
employees or discriminating in any other manner in respect to
their hire and tenure of employment, or any term or condition of
employment.
WE WILL NOT contribute support to or interfere with the admin-
istration of Factory Committee or any other labor organization
of our employees.
WE WILL NOT recognize Factory Committee, or any successor
thereto, as the representative of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages, rates
1238 DECISIONS Of, NATIONAL LABOR RELATIONS BOARD
of pay, hours of employment, or other terms or conditions of
employment, unless and until such labor organization has been
duly certified by the National Labor Relations Board as the
exclusive representative of our employees.
WE WILL NOT coercively interrogate employees concerning their
union activities or desires.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Inter-
national Union, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all of such activities.
WE WILL offer to Ella Jean White immediate reinstatement to
her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and make her whole
for any loss of pay suffered as a result of the interference, restraint,
coercion, and discrimination against her.
STEEL INDUSTRIES, INCORPORATED,
Employer.
Dated---------------- By--------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis 4,
Indiana, Telephone Number, Melrose 2-1551, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein ( issued November 3, 1961; charge filed September 6, 1961)
alleges that the Company has violated Section 8(a)(3) of the National Labor Rela-
tions Act, as amended , 73 Stat. 519, by downgrading AIW adherents , terminating
Georgia A. Wagner on or about August 4, 1961 , and constructively discharging
Ella Jean White on or about August 11, 1961 because said employees engaged in
concerted activities ; 1 Section 8 (a) (2) of the Act by said alleged acts, by permitting
'The analysis of the evidence , in addition to its overall aspects, is necessarily and
properly on a "fragment by fragment basis," particularly where testimony is in part re-
jected and in part credited , and where one cannot indulge in the luxury of total reliance.
See Dobbs Souses, Inc., 135 NLRB 885. Whatever might be said concerning an analysis,
there is and can be no proper charge of fragmentization of what has necessarily been
STEEL INDUSTRIES, INCORPORATED 1239
committee representatives to conduct committee business at the plant, paying such
representatives for time spent on committee business and meetings, furnishing sup-
plies and performing clerical services for the Committee, and by the additional acts
herein set forth; and Section 8(a) (1) of the Act by said alleged acts and by in-
terrogating employees concerning their union activities and desires, threatening
to discharge and otherwise discriminate against employees because of their member-
ship in or activities in support of the AIW, and by maintaining close surveillance
over the activities of union adherents. The allegation of discriminatory downgrading
was dismissed at the hearing on motion of the General Counsel. The Company's
answer admits the termination of Wagner and a notice of transfer to White, but
denies the allegations of violation. The Committee admitted company sponsorship
and support but in lay terms denied that the Committee is a labor organization and
that it has been interefered with or dominated.
A hearing was held before Trial Examiner Lloyd Buchanan at Crawfordsville,
Indiana, from January 16 to 19, 1962, inclusive. Pursuant to leave granted to all
parties, briefs have been filed by the General Counsel and the Company, the time
to do so having been extended. On March 1, 1962, there was filed with me a
stipulation to correct the record. The stipulation is received as Trial Examiner's
Exhibit No. 1, and the record is hereby corrected as noted in said stipulation.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that they Cbmpany, an Indiana corporation with place
of business at Crawfordsville, Indiana, is engaged in the manufacture of cold ex-
trusions, stampings, screw products, and brazed assemblies; that during the 12 months
preceding issuance of the complaint it manufactured, sold, and shipped from said
plant to points outside the State of Indiana products valued at more than $50,000;
and that the Company is engaged in commerce within the meaning of the Act.
It was stipulated and I find that the AIW is a labor organization within the mean-
ing of the Act.
It was stipulated and I find that the Factory Committee, hereinafter called Com-
mittee, deals with the Company concerning working conditions, safety matters,
wages, hours, holiday and vacation pay, personal grievances, housekeeping matters,
etc., of the Company's hourly paid employees. I find that the Committee is a labor
organization within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a) (1)
Wagner testified that on June 13, 1961, Phelps, the Company's manager of
quality control, personnel, and training, asked her what she wanted with the Union
and whether she would do the next year what she had been doing the year then
ending; and he explained thereafter that, because of her support of the AIW, he
deemed her a bad apple. Phelps testified that the conversation was at Wagner's
request and that she apparently just wanted to talk over her troubles. Phelps did
not remember details of the conversation, and his version was different from
Wagner's. But he did not deny the details which she related. I find that this in-
terrogation, with Phelps' characterization of Wagner, constituted interference,
especially in the context of the other violations found infra.
Wagner testified further that on or about June 29 Vice President Oshry told
her that because of what she had done he had been kept from his job too much
offered in fragments . It may be redundant to speak of a fragment -by-fragment analysis ;
no other is worthy of the designation "analysis" in these cases where statute and regula-
tions require that reasons be given. Cf. Funkhouser Mills, 135 NLRB 518 (Supp IR,
Appendix A) ; 132 NLRB 245 What cannot stand up under Immediate analysis cannot
properly be made a refuge for a general or overall conclusion so-called Received on a
fragment-by-fragment basis as properly offered by counsel for the parties , rather than in
the form of generalities and conclusions , the evidence has necessarily been considered in
similar detail to do justice to the parties . This is not to say that an overall view Is
not taken. the conclusions. infra, will indicate the generalizations Regardless of which
parties may be pleased or how reviewers may react, the findings and conclusions are based
on the evidence received , do not go beyond that evidence, and do not include any determi-
nation In favor of any party which is contrary to its position taken at the hearing.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the result that the Company had been compelled to reduce the workweek from
6 days to 5. This presumably relates to the allegation of threat to discriminate
unless an employee terminated her membership in or support of the AIW. Oshry
explained a reference to misunderstandings as being connected with an alleged con-
versation with a doctor, of which more infra. His statement that he would allow
her 2 or 3 misunderstandings, but not 10 or 12 is not violative. Nor is the allega-
tion of threat of discrimination supported by Oshry's reference to the shorter work-
week. Even as Wagner testified, it was clear that Oshry was referring to what had
already occurred, and was not calling for termination of Wagner's AIW activity.
He explained credibly that the effect or drop in sales was manifest sometime after the
election campaign and resulted from his inability to devote himself to sales, of which
he accounted for 95 percent, while he presented "the company' s side of the forth-
coming election." (There is no claim of interference in connection with such pres-
entation nor is the change to a 5-day week alleged as discriminatory.) This
remark to Wagner was made more than a month after the AIW lost the election.
Also alleged as interference is a watch or surveillance by the Company on the
intraplant movements of AIW adherents because of their concerted activities.
Wagner testified that about March 9 Lith, the night shift superintendent, told her that
Oshry and Production Manager Feldman had told him to speak to her about going
to the restroom too much, talking to others, and being away from her press; her
setup man , Remley, told her that he had been told to keep records on how long she,
White, and Wethington, another AIW supporter, were in the restroom and away
from their machines, and later that she and White were still going to the restroom
too much.
According to White, the orders to note these absences from the machine allegedly
came from Oshry, Feldman, and Phelps. Oshry explained that he thought it was
about February that he instructed Feldman to keep records of absences from the
machines, and the word was thereafter passed down the line so that the Company
could develop a rule to govern such time. According to Oshry, the records were
to be kept on 13 or 14 employees in various departments (Lith testified that there
were 11 or 12), and steps were taken to find out what was done at other plants in
the community. Whether employees other than Wagner, White, and Wethington
in their department were members or active in behalf of the AIW was not shown so
that selection of any others might have exposed the Company to the same charge of
interference; nor does it appear that any of the approximately 10 others in other
departments (5 of them were named by Lith) were AIW supporters. The fact that
the survey was initiated at about the time or shortly after the commencement of
organizational activities in February may arouse suspicion, but it does not warrant
a finding of unlawful interference in the attempt to develop a reasonable working
rule; and this is especially so in the absence of evidence of discriminatory selection
of employees to be observed.
Although the exact dates of the surveillance will not determine the issue before
us, it would appear to have begun in March, or as alleged in the complaint and
also testified, in March or April. Remley, although apparently honest, was mis-
taken 2 in several instances . In addition to the finding on the record with respect
to his error concerning the time of commencement of the alleged surveillance (it
would not have taken these employees a month or more to realize that such obser-
vation was taking place), we need cite here only Remley's departure from the uni-
form and credible testimony that only- two preliminary drafts were made of em-
ployees' ratings, and that Feldman's or the third and final rating was prepared
after consultation among the setup man, the shift supervisor. and Feldman.
Further on the question of credibility, a "background" incident cited by the
General Counsel, so far from supporting his case, serves to indicate Wagner's un-
reliability. Her testimony at first was that Oshry said early in February that he
would not push "any more" his attempts to obtain the release of a relative of Wag-
ner's from the penitentiary since he did not want to ask for favors "right now."
Pressed on this, Wagner modified it to Oshry's alleged statement that he would
not push it "right now." There was no basis in fact for Wagner's declaration to
the prisoner's mother-in-law that Oshry had dropped the case; and Wagner was
less than frank in her failure to confess this last declaration when she was asked
and she denied that she had so informed the father-in-law. Characterized by Oshry
2 The testimony throughout the hearing indicates not so much willful contradictions or
contrary statements of fact by the various witnesses as claims for different Interpreta-
tions In several cases where contradictions occur they appear, considering the overall
impression given by a given witness, to be the result of honest error rather than inten-
tional falsehood.
STEEL INDUSTRIES, INCORPORATED 1241
as malicious , such a statement might have warranted Wagner's discharge. Oshry
spoke to her about that case in April , but at that time apparently did not know
that the statement had been hers.
Also reflecting on Wagner's credibility is her testimony that two doctors who
had treated her and recommended that she take some time off from work told
her that the Company had suggested such absence. It is clear from the testimony of
both doctors that the idea was not the Company 's but that they had themselves
made the recommendation , and further that they had not told Wagner that the
Company had suggested it to them.
In this connection , and without undertaking to cite all such instances indicated
with respect to various witnesses on the record , we can note White 's careless but
hardly crucial (with respect to either the principal issues or her credibility ) state-
ment that she remembered writing "nights " on her job application form in 1958;
she did not so indicate on the form . Also reflecting on White's credibility is the
credited and uncontradicted testimony of a former employee that she had spoken
to him in the first aid room concerning the Union , but that she noted his visit
as due to headache . But this does not sufficiently affect the credible testimony and
the facts in connection with her discriminatory transfer, infra.
White testified that, when Lith told her that she was to work on the day shift
thereafter and she remarked that he had worked hard to get rid of her, he replied that
she had worked hard for the Union and that they were now even . According to
Lith, his reply was , "1 never worked hard at anything ." I do not believe that he
would have or that he did here declare an antiunion purpose. But in any event
if this testimony was offered to prove the allegation that Lith threatened to discharge
employees because of their union activities , it does not.
B. The alleged violation of Section 8(a)(3)
1. Wagner
Whether Wagner and White were female counterparts of Boanerges need not
be considered : no issue has been raised , and it is clear , that the Company had
knowledge that both Wagner and White actively supported the AIW throughout this
period. Neither is there any issue concerning the general termination of employees
on August 4, 1961, or the economic need therefor ; what is in issue in that connection
is whether the selection of Wagner for termination was discriminatory.
No more than with respect to rating reports of AIW adherents generally, the
allegation with respect to which was dismissed on the General Counsel's motion,
does it appear that Wagner's report or her performance was discriminatorily down-
graded Furthermore there is no proof nor are we warranted in assuming that the
system adopted by the Company for rating the employees , and Wagner 's position
very near the bottom of the list of 59, were discriminatorily contrived to eliminate
her. As for absences , whatever may be argued concerning consistency , fairness,
or any other angle from which the General Counsel may approach the question as
he points to a different method in dealing with absences according to the Company's
rules , our concern is whether the method and overall formula for rating employees
were discriminatorily adopted to terminate Wagner, she being the only one of the
13 terminated on August 4 with respect to whom discrimination is claimed; and
there being no suggestion of improper motivation with respect to the other 12. I
find no discrimination in adoption or execution of the three-factor comparative
rating plan . If any would complain that the plan reflects an engineer's or mathe-
matician 's predilection , it is still not shown to be discriminatory
I have not overlooked the variance between Personnel Supervisor Runge's and
Remley's oral appraisal of White's work stated to her immediately before the rating
interview of March 1961 , and the score which she received at that time. Whether
this reflected error in their general impression , the very factor against which the
Company warned those who made ratings , that they be not swayed by last minute
improvement to the exclusion of the record throughout the rating period; or whatever
the reason , only error at that time but no discrimination could at most be found. I
cannot base a finding that those who prepared the ratings acted discriminatorily
on a comparison with their contemporary oral statements . In any event , the rating
list which was used for termination of the 13 lowest employees on August 4 shows
White at approximately the middle of the list, many places removed from termina-
tion possibility.
In Wagner's case , it was her high absentee factor , as in the case of others at
the bottom of the list, which most caused her low overall rating and determined
her selection for layoff . While the element of "attitude " was repeatedly referred
to with the suggestion that a subjective , nebulous, and pretextual basis was relied
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on in making these ratings, it became clear that attitude is one of the factors listed
on the National Metal Trades Association rating sheets which were here used to
construct each employee's rating; such rating in turn being one of the three factors
noted, and the third being seniority. The attitude to be rated is not the employee's
attitude with respect to concerted activities, but his attitude and cooperation with
respect to his work; and it does not appear that the rating factors were improperly
applied. Neither does it appear that the NMTA rating system was adopted or applied
discriminatorily.
The factors employed are not nearly so involved as some of the discussion con-
cerning them on the record; it may be helpful to explain the factor of ab-
senteeism somewhat. Absences which the Company here considered were those
which had not been approved in advance generally on a leave of absence form.
For this purpose no distinction was made in the case of absences not so approved
whether they were for so-called good reasons or not although such distinction was
considered in the shop rules and procedures . While the rules applied for purposes
of discipline are thus different from the consideration given to absences and the
computation based thereon for rating purposes (as specifically noted on the June
15, 1961 , notice for inclusion in its Procedure Manual ), such latter consideration
and computation are without discrimination among the employees. Precise mathe-
matical details of the various items and the formula employed appear on the record
but need not now be described. Suffice it to say that there is no showing that
differences in rules and differences in application of data for different purposes
are themselves discriminatory. If repetition will clarify, one can repeat that there
is no evidence of discriminatory application of the formula with respect to absences
or of any portion of the three-factor formula which was employed in making the
reductions of August 4. (In the case of new employees, a modification was made
in the absenteeism factor, but this was nondiscriminatory and did not affect Wagner.)
Wagner's discharge was based on the nondiscriminatory application of a nonviola-
tive formula , and was not in violation of the Act.
2. White
Since her employment in 1958, White had worked on the night shift with very
occasional exceptions when she asked to exchange places with a day shift employee
because of her special and immediate need. Without accepting Lith's obviously
too opportune admission that he knew that White could not work on the day shift,
we can reconstruct the conversation between them on August 11, 1961. He told
her that word had come from Feldman that she was to work on the day shift, the
prder effective Monday, August 14; she replied that she could not and would not work
.days, and she thereupon telephoned her husband and then punched her card out,
handed it to Lith, and left the plant although her shift had not yet ended. White
-went to where her husband was working , then to Wagner's home and, although
it was approximately 11 p.m., she telephoned Feldman at home, waking him, and
.checked on his order that she be transferred. He told her that it was necessary,
that she had no choice; and she replied that she had always worked nights and could
not work on the day shift.
White then called Phelps, who also told her that she would have to work on the
day shift. White told him that that was "impossible" since she had illness in the
family, and also pointed to three women who had just been transferred from the day
shift to nights, indicating that she could replace or trade places with one of these.
But, as Feldman had, Phelps told her that she had better come in on the day shift
on the 14th.
Despite her apparent "quitting" earlier , Feldman testified that White now asked
him whether she would be fired if she did not appear on Monday for work on the
day shift, and he told her that he wanted her there on Monday. Then, after this
was repeated, she said, "I quit," and hung up. Phelps testified that White informed
him that she had turned in her card and "quit," and then asked whether she would
be fired if she did not report for work; and that he then told her to come in and
they would talk. It is clear that to this point the Company did not regard White as
having quit.
The Company points out that before she handed her card to Lith and left on
August 11, White did not speak to any supervisor with authority to retain her on
the night shift. It is not clear that an employee must personally appeal beyond the
representative whom the employer has designated to deal with her. But she did
thereafter call both Feldman and Phelps as we have just seen; the matter was not
yet closed at least as far as her continued employment was concerned, and these
pfficials had full opportunity to inform her that she would not have to work on
STEEL INDUSTRIES, INCORPORATED 1243
the day shift . In this connection we should note White's uncontradicted testimony
that she remonstrated with Feldman on August 11 that she had always worked nights
and could not work days. Further and without reliance on any statement made by
White in 1958 to a former personnel supervisor , she had more recently told Feldman,
who was the man who now directed her transfer , that she had to work nights. This
had occurred when she applied for a leave of absence and Feldman asked whether
she preferred days or nights when she returned . Feldman denied generally that he
had before August 11 ever discussed with White her alleged availability for the night
shift only. But without denying any specific prior discussion , he testified only that
he did not recall speaking with her concerning the shift on which she wanted to work.
Not overlooking the reflections noted on White's credibility , I credit her testimony
of several such talks with Feldman during the previous fall or winter . Her continued
employment on the night shift through the years except for occasional changes, noted
supra, which were made to suit her immediate and temporary convenience , is con-
sistent with her testimony that her limited availabiilty had been discussed and recog-
nized by the Company . These conversations and White 's long-standing employment
on the night shift are not to be ignored for a claim that the Company , before the
announcement of White's transfer and the refusal to put employee Brady to work on
the day shift , did not know that White would not work on the day shift . Certainly
both earlier and on August 11 the Company and its responsible officials knew that
White would work on the night shift only.
There were three elements in White's transfer , only ,two of which were explained,
leaving the third and the most salient one before us. The change from large presses
to small was dictated by economic need ; White had worked satisfactorily on small
presses before , and she would suffer no loss in pay; but there is no explanation
for. the decision to change her shift and the insistence thereon in the face of her
explanations and protest . We have not even an attempt to explain why the Com-
pany, with less upheaval or change , would not retain on the day shift one of the
three ( there was reference to a fourth ) women whom it was now transferring to
the night shift, thus making one change fewer to the night shift and also making
unnecessary any shift transfer for White even if her work assignment were justifiably
changed.
Beyond this we have the evidence concerning Brady. The latter had been away
from work on medical leave for 3 weeks , and called Runge on August 11 to return
on the following Monday. According to Brady whose work experience was similar
to White's but shorter ( she was ranked just below White on the overall rating chart),
she spoke with Runge three times on August 11 and before 5 p.m. on that day
the latter informed her that Feldman had said that she was to work nights. Brady
had worked on the day shift . Circumstances at home required her presence at night,
and she asked Runge to speak with Feldman so that she might continue on the
day shift . Supporting this version is Brady's testimony that she saw Runge at a store
in town that evening and asked whether he had spoken to Feldman about her shift
request, Runge replying that he had been too busy. On Saturday morning Runge
told her that he had spoken with Feldman who said that there was no room on the
day shift for her and that she would have to work nights . Brady later became con-
fused as to "which telephone conversation was which ," and finally maintained that a
previous statement in which she declared that she called Runge in the afternoon
before 2 o'clock recalled to her that she had called him in the morning!
According to Runge, he spoke with Brady only once on the 11th and it was not
until the next day that he spoke with Feldman , who then assigned Brady to the
night shift ; during a later conversation Brady asked Runge to intercede with Feld-
man so that she Could work on the day shift , and then in another call, but still on
August 12 , Runge informed her that Feldman had said she would have to be on
the night shift although he would be glad to try to effect a change in the future
Whether or not Feldman knew on August 11 and before White's call to him that
night that Brady wanted to return on the 14th and that she wanted to continue on
the day shift depends on the credibility of these two witnesses . Feldman did not
himself testify with respect to any conversations with Runge concerning White.
Runge did not at first testify to or deny the meeting with Brady in town . Pressed
as to this , he did deny seeing her; but both his expression and his manner indicated
that this was more a denial of recollection than an outright denial . Despite Brady's
apparent confusion , I do not believe that she made this up out of the whole cloth.
I find that Runge's recollection was understandably not as clear as Brady's, and I
find that Feldman knew before his conversation with White that Brady wanted
to work on the day shift.
Here it should be noted that even if Feldman had not known of Brady's avail-
ability and preference until August 12, he did by that time know how important
7244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was to White to remain on the night shift; and a discriminatory motive against
the latter might be inferred in the refusal to accede to Brady's request and at the
same time to avoid disturbing White. There is neither explanation nor attempt
to explain why the former was not permitted to continue on the day shift, the latter
at night, aside from the earlier decision to transfer White, which Feldman made
-after she had told him that she had to work nights, as we have seen.
White had turned in her card and left the plant in pique or anger. Having ob-
served her, I can understand her splenetic reaction. But if not to be applauded,
it was not an irrevocable quitting, nor was it so regarded by the Company. We
have seen that she did in fact call top supervisors immediately afterward, and was
told to report on the day shift. Were it held that White had lost her status by
quitting, the Company clearly condoned her walking off the job. In fact, she was
not regarded as having quit, being told that she was expected on Monday. In any
event, the question before us is whether her quitting in the plant or by a later
statement to Feldman was discriminatorily provoked by the Company.
With other employees being shifted from the day to the night shift, we have no
explanation for reversing the direction with respect to White. If most employees
prefer the day shift, no reason has been offered for forcing that "benefit" on White.
I find that it was because of her union activities 3 that the Company transferred
White to the day shift and insisted on such transfer although it knew earlier of
her unwillingness to accept it and then of Brady's plea for day work; and that 'the
Company thereby discharged her. The inference is indeed warranted that, with
knowledge of her leadership in AIW activities, the Company had been aware of
the possibility that she would refuse to work on the day shift, the prospect becoming
more fascinating when she left the plant and telephoned Feldman. In the light of
the Company's opposition to unionization and its knowledge of White's adherence
and leading support, we may properly infer that the real reason for discharging
her was to discourage union activities and adherence; the reasons given for the
transfer and insistence on it being pretextual.4
Union activities do not immunize against discharge any employees so engaged.
The Company had reasonable basis for terminating Wagner and, I find, acted
thereon. With respect to White, however, it had no reasonable basis and I find
that its transfer of her to the day shift was unreasonable, discriminatory, and pro-
vocative, and that the alleged need for such transfer was a mere pretext.
The lapse of 21/2 months between the election and White's transfer might be
cited as making too remote any antiunion motive on the part of the Company. But
union activity and the possibility of repetition of the problems which it entailed
remained in Phelps' mind after the election, evidence of this appearing in his
question of June 13 to Wagner whether she would be doing next year as she had
been doing; and Oshry's earlier accusation that White was an agitator on the union
payroll indicated his impression of an active and lasting role. That the union ac-
tivities were not remote is further evidenced by Oshry's reference at the end of
June to the union activities and their effect on the Company's sales. While not
violative, the latter comment does indicate the seriousness with which those activities
were regarded by the Company. The omission of any previous action against White
does not bar recognition of what was now done when the necessity arose to make
various changes, this one being wholly unnecessary.
In making the finding of discrimination against White, I have not relied on an
alleged admission by the setup man, Remley. Even if his statement shortly after
August 11 that the Company had gotten rid of another troublemaker is to be con-
strued as meaning that the Company got rid of her because she was a troublemaker,
there is no evidence that Remley's authority was such (even if he were found to be
a supervisor) that he could bind the Company by such an admission. Nor does it
even appear that Remley knew the circumstances surrounding White's quitting and
the Company's alleged causation. This statement by Remley is not alleged as a viola-
tion of Section 8(a)(1). (Like other items adverted to as not alleged, this was not
"fully litigated" or even claimed in the General Counsel's brief as violative.)
No more do I rely on such testimony as that, when an employee charged Oshry
with weeding out the ones he wanted to get rid of, he replied, "Since [she] had
worded it that way, that he could say that." The witness admittedly took this out
of context, it being only part of what Oshry had said. This manner of expression
in reply to her remark and at a meeting sought by her was quickly set straight as she
testified further that she told Oshry that she was unalterably opposed to the union
(she had been among those laid off), and that he replied that union activities or
See The American Tool Works Company , 116 NLRB 1681, 1690
Cf N.L R B v The Bendy Corporation, 299 F 2d 308 (C A 6)
STEEL INDUSTRIES, INCORPORATED 1245
support had nothing to do with the layoffs, and that he had been charged with other
irrelevancies in making the selections.
C. The alleged violation of Section 8(a)(2)
It was stipulated that a Safety and Grievance Committee was organized in July
1957 and disbanded about July 1, 1960, when the Factory Committee was formed.
In issue is whether or not the Factory Committee since March 6, 1961, the beginning
of the statutory period herein, has included supervisory personnel in its membership.
With this stipulation, it is clear that our concern is with the existing Factory
Committee, and not at all with the Safety and Grievance Committee. The allegation
concerning the latter is hereby dismissed.
Speaking more in sorrow than in flippancy, it will serve no useful purpose to add,
by analysis of that testimony, to the time wasted in receiving testimony concerning
supplies and clerical services furnished by the Company to the Factory Committee.5
The hopeful attempt to show that the Company by clerical employees was to some
extent involved in drafting or preparation of committee papers, as distinguished
from mere typing, failed; and the typing indicated was a trifle. It is the insub-
stantial amount of assistance which here supports the Company's denial, not the
argument that, because the typing was done by an employee who was represented
by the Committee, it could not constitute unlawful support.
Nor does the submission to Oshry of the Committee's minutes, taken up as they
are with grievances and suggestions concerning working conditions, indicate com-
pany domination or support. Grievances are intended for the Company's attention
and action; the Committee to that extent functions for the employees, not for the
Company. As for the inclusion of other matters (there is no evidence that anything
is improperly included) in the minutes which are submitted to Oshry, it does not
appear that the Company controls or interferes in such. Further testimony indicates
that company decisions on grievances are communicated to the Committee or its
representatives, so-called personal matters being handled confidentially with the
employees involved. Oshry follows the Committee's recommendations most of the
time; when he does not, he gives reasons. Finally, in this connection, the Committee
raises a large variety of subjects or questions; it has never felt limited on the matters
to be taken up, and it has not been told that some subjects were "off bounds." Such
testimony does not support the allegation of violation.
On the other hand, it does appear that the Company pays committee members
for time which they spend at committee meetings before or after their usual working
hours. Such payment constitutes unlawful support.°
Beyond this, much testimony was received concerning Remley's status, most of it
indicating no more than that he set work up for employees without having or exer-
cising supervisory authority. Supervisory status might be spelled out from the fact
that the various operations performed required the exercise of such functions; and
reliance can hardly be placed on the testimony that there are no supervisors within
the meaning of the Act on the night shift subordinate to Lith, the night shift super-
intendent, who has or has had 60 to 65 employees under him in the various depart-
ments.7 Despite the AIW's inclusion of Remley as an eligible voter, further light
on his status and his relationship with rank-and-file employees is cast by his par-
ticipation in the rating process, where his evaluations were not merely advisory but
were an integral part of a give-and-take discussion and constituted a basis for the
final ratings issued. All of this appears to be unimportant for present purposes,
however, since the only allegation which involves Remley is that of surveillance,
supra, which has not been found It appears further that, whatever his authority
otherwise, Remley together with Foreman Hartle was among those listed to receive
employee grievances. Here we can leave Remley and fix our attention on Hartle.
While the procedure with respect to grievances was not alleged in the complaint
as a violation, that the Committee is a labor organization was alleged and fully
litigated. Also litigated and noted as an addition to the list of supervisors alleged
was Hartle's status as a supervisor. Thus even if Hartle was not in all respects a
supervisor, his authority to represent the Company in the first step of the grievance
procedure by receiving grievances and submitting an answer or decision on behalf
of the Company was indicated in detail and spread on the record by a company
memorandum and its procedural manual, both dated in February 1961 and there-
after in effect and kept by the personnel manager, each department manager, and
all supervisory personnel. The assumption that the situation or status as it existed
B See Signal Oil and Gas Company, 131 NLRB 1427
See Coppus Engineering Corporation, 115 NLRB 1387
1 Cf The Hamilton Plastic Molding Company, 135 NLRB 371.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February 24, was thereafter continued was specifically noted on the record. But
Hartle was also a member of the Committee from January to July 1961, and one
of the Committee's functions, as we have seen, is to process grievances on behalf
of the hourly paid employees.
Company interference with the Committee's administration exists where a person
sits on both sides of the table, i.e., is held out as functioning for both the employer
and the labor organization in the processing of grievances.8 This is violative of
Section 8(a)(2) of the Act. On the other hand, it has not been shown that the
Company so controls the Committee or that the latter is so dependent on the former
as to warrant a finding of domination .9 Thus when the Committee's minutes sub-
mitted to Oshry referred to committee business or procedures, he replied that such
matters were strictly within the Committee's jurisdiction.
The complaint alleges generally that the other violations claimed constitute
violation of Section 8(a)(2) also. The discrimination against White is derivatively
interference within the meaning of Section 8(a)(1). Whether it may also be
found to constitute support of the Committee and violative of Section 8(a) (2) is
doubtful; and such a finding, based on the discrimination found or on the independent
interference, is quite unnecessary as it would add nothing to the remedy.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and-the free
flow of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
It has been found that the Company, by transferring White from the night to the
day shift thereby causing her to quit and constructively discharging her, discriminated
against her in respect to her hire and tenure of employment in violation of Section
8(a)(3) of the Act. I shall therefore recommend that it cease and desist therefrom
and from infringing in any other manner upon the rights guaranteed in Section 7
of the Act. I shall further recommend that the Company offer to White immediate
reinstatement to her former or substantially equivalent position on the night shift
without prejudice to her seniority and other rights and privileges, and make her
whole for any loss of pay sustained by reason of the discrimination against her,
computation to be made in the customary manner 10 I shall further recommend that
the Board order the Company to preserve and make available to the Board upon
request payroll and other records to facilitate the checking of the amount of backpay
due.
While it lies within the General Counsel's discretion to frame and to issue a com-
plaint,ti the remedy is the Board's.12 The Board is not dependent on a request by the
General Counsel for interest on backpay but may award or add interest sua sponte
where, as here, no request has been made. The General Counsel's recent announce-
ment of intention to seek interest is persuasivbly reasonable, and the reasons can
be here applied. I shall therefore recommend that, as part of the remedy, interest
at the rate of 6 percent be added to the backpay due to White.
"Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, 1294, 1319, 1324 Cf
Employing Bricklayers' Association of Delaware Valley, 134 NLRB 1535, and cases cited
0 As noted, our concern is not with sponsorship of the Safety and Grievance Committee.
Nor in the absence of evidence of company sponsorship of the Factory Committee, do I rely
on the latter's naive admission in its answer's apparent reference to sponsorship of its
predecessor.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v
N.L R B, 311 U S. 7; F W. Woolworth Company, 90 NLRB 289, 291-294.
11 N L.R A, section 3(d) ; International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO v NLRB (NECO Electrical Products Corporation), 289 F 2d 757
(C.4 D.C ).
la NLRA, section 10(c) ; Florida Steel Corporation, 131 NLRB 1179; N L R B. v.
Local 294, International Union of Teamsters, etc (K-C Refrigeration Transport Com-
pany ), 284 F. 2d 887, 893 (C.A. 2).
CHARLEY TOPPINO AND SONS, INC. 1247
It has been further found that the Company, by payment to committee members
for time spent at meetings , and by directing that a member of the Committee, which
processes grievances for employees , handle such grievances on behalf of the Com-
pany, contributed support to and interfered with the administration of the Com-
mittee in violation of Section 8(a)(2) of the Act. I shall therefore recommend
that it cease and desist therefrom . In the absence of evidence that the Committee
has been freely selected by the employees as their collective bargaining representa-
tive,13 I shall further recommend that the Company withdraw recognition from the
Committee , unless and until that labor organization shall have been certified by the
Board.
It has been further found that the Company , by interrogation of an employee
concerning her union activities and desires , interfered with , restrained , and coerced
its employees in violation of Section 8 (a)( 1 ) of the Act. I shall therefore recom-
mend that the Company cease and desist therefrom.
For reasons stated in the subsection entitled "Wagner ," I shall recommend that
the complaint be dismissed insofar as it alleges the discriminatory termination and
failure and refusal to reemploy Wagner.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union , Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Factory Committee is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ella
Jean White , thereby discouraging membership in a labor organization , the Company
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By payment to committee members for time spent at meetings , and by direct-
ing that a member of the Committee handle employee grievances on behalf of the
Company, thereby contributing support to and interfering with the administration
of the Committee , the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (2) of the Act.
5. By such discrimination , support, and interference , and by interrogation concern-
ing an employee's union activities and desires , thereby interfering with , restraining,
and coercing employees in the rights guaranteed in Section 7 of the Act, the
Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning
of the Act by terminating the employment of and failing to reemploy Georgia A.
Wagner.
[Recommendations omitted from publication.]
13 Cf . M. Eakin t Son , 135 NLRB 666 , at footnote 15.
Charley Toppino and Sons, Inc. and Freight Drivers, Warehouse-
men and Helpers Local Union No. 390, an affiliate of Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case No. 12-CA-2147. September
28,1962
DECISION AND ORDER
On June 7, 1962, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
138 NLRB No. 133.