Vincennes Steel Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1939

17 N.L.R.B. 825 (N.L.R.B. 1939)

In the Matter Of VINCENNES STEEL CORPORATION and INTERNATIONAL
ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORK-
ERS, LOCAL No. 585, AFFILIATED WITH A. F. OF L.
Case No. C-1190.-Decided November 17, 1939
Structural Steel Manufacturing Industry-Interference , Restraint , and Coer-
cion: anti -union statements to employees ; stock-purchase plan providing that
employee -subscriber refrain from requesting wage increases ; ordered to notify
employees that above provision is void and that ownership of the respondent's
stock will in no way affect any term or condition of employment-Discrimina-
tion: lay-off of six employees 3 days after first union meeting, and subsequent
discharge of two other employees found discriminatory ; defense of weak eye-
sight as to one employee held to be without merit ; allegations of discrimination
in regard to assignment of duties dismissed-Reinstatement Ordered: two em-
ployees not previously reinstatedBack Pay: awarded.
Mr. Walter B. Chel f, for the Board.
Shake d Kimmell, by Mr. Gilbert Shake and Mr. Joseph W..Kim-
mell, and Kessinger, Hill c1 Arterburn, by Mr. W. H. Hill and Mr.
Norman Arterburn, all of Vincennes, Ind., for the respondent.
Mr. William P. Dennigan, of Vincennes, Ind., for the Union.
Mr. Frederick R. Levinstone , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Bridge, Structural and Ornamental Iron Workers,'
Local No. 585, herein called the Union, the National Labor Relations
Board, herein called the Board, by Robert H. Cowdrill, Regional
Director for the Eleventh Region (Indianapolis, Indiana), issued its
complaint dated November 9, 1938, against Vincennes Steel Corpora-
tion, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
' Incorrectly designated in the charge and complaint as International Association of
Bridge and Structural Iron Workers.
17 N. L. R. B., No. 72.
25
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Act. Copies of the complaint, accompanied by
notice of hearing, were duly served upon the respondent and the
Union.
The complaint alleged in substance that during the period from
April 6, 1938, through September 6, 1938, the respondent discharged
two of its employees and laid off seven others,' because they joined
and assisted the Union; that the respondent adopted and promulgated
a stock-purchase plan among its employees to discourage said em-
ployees from becoming or remaining members of the Union; that the
respondent by these and other acts interfered with, restrained, and
coerced its employees in the exercise of the right to self-organization
and to engage in concerted activities for their mutual aid and protec-
tion. On November 15, 1938, the respondent filed an answer denying
that it had engaged in any unfair labor practices, within the meaning
of the Act.
Pursuant to notice a hearing was held at Vincennes, Indiana, on
December 1, 2, 3, 5, 6, and 7, 1938, before Earl S. Bellman, the Trial
Examiner duly designated by the Board. The Board, the Union, and
the respondent were represented by counsel and participated in the
hearing. Upon amended charges filed by the Union and on motion
of counsel for the Board made at the beginning of the hearing, the
complaint was amended, and an answer was filed by the respondent
to the amended complaint. At the close of the Board's case, counsel
for the Board moved to dismiss the complaint without prejudice in
so far as it alleged that James Harness was discriminated against.
The motion was granted. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues, was afforded all parties. During the course of the hearing
the Trial Examiner ruled on various motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner at the hearing and finds that no prejudicial errors
were committed. The rulings are hereby affirmed. The Trial Exam-
iner also reserved ruling on several motions.
On February 3, 1939, the Trial Examiner filed an Intermediate
Report in which he found that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Act. He ruled
upon motions-as to which he had reserved ruling, and denied the
respondent's motion to dismiss the complaint made upon the ground
that the charges were signed "International Association of Bridge
and Structural Iron Workers, Local 585, by R. Virgil Wright, Finan-
cial Secretary and Treasurer," whereas the correct name of the Union
'The names of these employees are Levi Melvin. Julius Sievers. Andrew Eddleman. Ken-
neth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, Raymond Crawford, and
James Harness.
VINCENNES STEEL CORPORATION 827
was International Association of Bridge , Structural and Ornamental
Iron Workers, Local No. 585. In support of the motion the respond-
ent contended that the Board had authority to issue a complaint only
upon a charge filed by a labor organization or person , and since no
such labor organization existed under the exact name designated in
the charge the complaint should be dismissed . We find this conten-
tion without merit. A misnomer does not vitiate the existence of
the organization . The respondent was aware of the Union 's identity
and was not surprised or inconvenienced by the omission . The Trial
Examiner also recommended that the respondent cease and desist from
certain unfair labor practices ; offer reinstatement with back pay to
two employees found to have been discriminatorily discharged ; make
whole six other employees for any losses of pay resulting from their
discriminatory lay-offs; and notify employees who had signed a stock-
purchase agreement that a provision of the agreement purporting to
bar requests by such employees for changes in wages was no longer
operative and further that ownership or lack of ownership of the re-
spondent 's stock would in no way affect any term or condition of em-
ployment. Thereafter briefs were filed by the respondent and the
Union and the respondent filed exceptions to the Intermediate Report.
Pursuant to notice duly served on the parties , a hearing for the
purpose of oral argument was held on September 26, 1939, before the
Board in Washington , D. C. No one appeared on behalf of the
respondent and the Union appeared by a representative . The Board
has considered the exceptions to the Intermediate Report and , except
as they are consistent with the findings , conclusions , and order below,
we find them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Vincennes Steel Corporation , an Indiana corporation , is engaged
in the manufacture, processing , and distribution of fabricated steel
bridges and steel structures at Vincennes , Indiana. During 1937 the
respondent purchased 10,040 tons of raw steel at a cost of $473,600,
20 per cent of which was obtained from sources outside the State of
Indiana. During the same year , it shipped 9,087 tons of fabricated
steel , of which 90 per cent was shipped to destinations outside the
State of Indiana. The respondent maintains a railroad connection
with the Baltimore & Ohio railroad . The total value of processed
steel used by the respondent in the fabrication and building of the
bridges in 1937 was $1,100,000.
. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. THE ORGANIZATION INVOLVED
International Association of Bridge, Structural and Ornamental
Iron Workers, Local No. 585, is a labor organization affiliated with
the American Federation of Labor and admitting to membership pro-
duction employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
About the first of January 1938 R. Virgil Wright , an employee of
the respondent , discussed possible organization of the respondent's
employees with an A. F . of L. organizer . On January 3 Kenneth
Richardson , an employee subsequently elected chairman of the Union,
advised Aaron Uland , superintendent of the respondent's plant, that
the men were planning to organize the shop. Uland replied that he.
did not think it could be organized because the plant would close
down before any union would be recognized . The respondent's em-
ployees had never beela organized before and following Wright's
conference with the organizer , there was considerable discussion of
unions among the employees. The respondent was evidently aware
of this union activity and on February 17 Everett Frye, a supervisor
in the plant ,3 informed Burl Deem , an employee , that the respondent
was planning to issue shares of its stock to the employees in order
"to keep the boys from wanting to join the union."
Despite the above indications of the respondent 's antipathy toward
its activity , the Union held its first organizational meeting on April 4,
at which all ten employees attending signed membership applications.
Two days later, Raymond Crawford, who had been laid off on March
19, was rehired by Uland. According to Crawford , Uland explained
that he would be given steady work because there were certain em-
ployees who were not "loyal " to the Company and Uland believed
Crawford would be more "loyal" than they . As noted below, seven
men were laid off the following day. Crawford, 'a union member, was
among them . Uland categorically denied talking to Crawford that
day and asserted that the latter was hired for a temporary job.
Uland made no explanation of the manner in which Crawford received
his working instructions , nor could he recall any instance of hiring a
man for 1 day except in January when the plant was virtually shut
down. We deem it highly unlikely that Crawford would be recalled
for 1 day prior to a contemplated lay-off of approximately one-fifth
of the respondent 's then existing personnel , and we therefore find
that the conversation occurred as related by Crawford.
8 Frye is in charge of the lay -out department which is the center of activity of the
plant, and acts as superintendent when Uland is out of the plant.
VINCENNES STEEL CORPORATION 829
The same day Vincent Frye, an employee and son of Everett Frye,
told Wright that the respondent knew all about the Union and knew
the names of the officers. Later that day a member of the Union was
laid off and without warning seven more men, including Crawford,
were laid off before the commencement of work the following morn-
ing. Deem was the only non-union man included in the lay-off.
Deem, a former member of the United Mine Workers, was known
about the plant as a union man, however, and signed a union applica-
tion the day he was laid off. Two days after the lay-offs Uland was
seen stationed outside the union headquarters while the men were
arriving for a meeting.4 It is significant that although the Union
had enrolled only one-third of the respondent's employees at that time,
all of the men laid off were union members or sympathizers.
Coincidentally with the lay-offs, the respondent held a meeting of
the remaining 26 employees at which the stock-purchase plan, previ-
ously mentioned by Frye, was outlined by Hugh Q. Stevens, the re-
spondent's secretary and general manager. The meeting was held
during working hours in the basement which had been specially pre-
pared for that purpose. The plan, subsequently subscribed to by most
of the men, provided that :
each of said employees agree to work for said corporation at the
same hourly wage each is now receiving, as indicated by the
records of said corporation.
Considerable discussion was provoked by the plan among the em-
ployees in the plant, which the respondent made no effort to curtail.
On April 22 Deem, who had been previously laid off, was reinstated,
and that afternoon was called into Uland's office to be told about the
plan. After some discussion, Deem informed Uland that he, did
not care to subscribe, because the wage clause "did not appeal" to
him. The same day three other employees, Levi Melvin, Taylor
Vanwey, and James Stafford, went to Uland's office .during working
hours to have him "explain" the plan. During the discussion, Uland
stated, "This is the contract that the Steel Corporation is going to
operate under." Uland solicited both Vanwey and Melvin to sub-
scribe at this time, but only Vanwey acceded. Melvin refused,
explaining that he "had throwed in with a bunch of the boys who
was going with the Union." 5 Uland did not restrict his promo-
tional activities on April 22 to his office, however. After Crawford
had refused to go to the office when summoned by Clayton Snapp
'In view of the admissions of both Uland and Stevens that Uland informed Stevens,
the Monday morning following the meeting , of the Union ' s organizational activities, and
Frye's uncontroverted testimony that respondent knew all about the Union , we attach no
credence to Uland's assertion that be was in the vicinity on personal business.
"Subsequent to Melvin 's visit to his office , Uland came through the plant yard and told
Melvin that Alvin Spitz , another employee , had subscribed to the plan and that Melvin's
stock was ready for him if he wanted it . Melvin again refused to subscribe.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Stafford, Uland came to the plant yard and asked Crawford
whether he had decided to take some stock. Crawford stated that
he did not desire to do so, whereupon Uland replied, "You have
got from now until quitting time to make up your mind whether
you will take it or not." As a result Crawford signed the agree-
ment.
Uland admitted that the employees were free to come to his office
to talk about the plan 6 and, despite the general ban on conversation
during working hours, he never specifically forbade its discussion in
the plant. In contrast to this attitude, Uland promptly suppressed
any conversation relating to the Union. On one occasion Uland
warned Hall, an employee whom he accused of union solicitation,
that men had been fired for "talking." About June 1, he repri-
manded. Wright for discussing the desirability of extra pay for
overtime work, and censured him for "listening to these organizers
and to them labor board guys." The employee stockholders, who
had their meetings on company property, excluded Vanwey, the only
union member who purchased stock, from their meetings. During
this period, one of the union officers resigned to become a subscriber,
and the Union's membership dropped from 22 to 10.
The true purpose of the plan is indicated by the fact that after
a conference with union delegates requesting recognition on April
26, Stevens wrote to the union secretary as follows : "From infor-
mation that has come to us recently, it appears that our shop
employees are satisfied with existing conditions." Stevens testified
that he relied upon a petition presented by 22 employees, including
2 supervisors,? prior to April 20, requesting that the stock plan be
offered in accordance with the representations made at the meeting
of April 7. The respondent's attitude toward the Union, as con-
trasted with its attitude toward the plan, is illustrated in an event
occurring 2 weeks prior to the hearing. On this occasion Frye told
Hall that the respondent's president, Oliphant, had said he would
"shut the plant down" before recognizing the Union.8 We find that
the respondent, by the above-described acts and statements of its
supervisory employees, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
6 Uland denied most of the solicitation activities attributed to him. The Trial Examiner,
who observed the demeanor of the witnesses, found that the solicitation occurred as related
by the Board's witnesses. We have reviewed the evidence, and agree with the Trial
Examiner.
' The two supervisors were Everett Frye, whose capacity has been previously shown,
and Oscar Keith who according to Uland "is over all the men there in the plant, as far
as decisions is concerned in the workmanship."
8 Although Oliphant is not active, he owns the controlling Interest in the respondent.
VINCENNES STEEL CORPORATION 831
B. Stock-purchase plan
A plan was first suggested to the respondent's employees in 1932
during a period when wage cuts were made. Thereafter it was
discussed by the respondent's officers from time to time but no
specific plan was drawn until the emergence of the union organi-
zational drive. After it became aware of the union activity, and
about the time that Frye told Deem that the respondent was con-
templating the issuance of its stock to. forestall union organization,
the respondent requested its auditor to draft a plan. The final plan
was submitted to the respondent's officers early in March 1938 and
at that time benches for a meeting place were set up in the basement
of the plant. Arrangements were thus completed and the respondent
was ready to present the plan to the employees whenever it was
deemed expedient.
As noted above, the plan was outlined to the employees at a
meeting on April 7, the same day on which six union men and Deem
were laid off. After describing the plan, Stevens stated that a
formal agreement would be presented within a week. Another
meeting was not called, however, until April 20. The written agree-
ment was read to the men at that time by Stevens who told them
that its presentation had been delayed because "an attempt was
being made to unionize our shop." Stevens stated that because of
this the respondent wanted to be certain that the plan did not violate
the Act. He informed the men that the respondent had been ad-
vised by counsel that the terms of the plan were consistent with the
Act and it was therefore presenting the agreement at that time. .
Under the plan as adopted, each employee subscribed to ten shares
of the respondent's stock at the par value of $100. In payment
therefor he executed a promissory note and pledged his stock as
collateral. Whether or not the employee was obligated to pay the
note in cash is not clear from the record. To assist the employees
in paying the notes, provision was made for dividends and a sliding
scale bonus based upon the respondent's net earnings. The bonus,
however, was in no event payable unless the respondent's annual
income exceeded $25,000, a figure exceeded in only 1 year.since the
Company's formation in 1932. The Company's average annual
earnings over this period of 7 years were approximately $5,500.. In
this respect, it is significant that the respondent's auditor admitted
that by increasing salaries of its officers within bounds deemed rea-
sonable by the income-tax authorities, the respondent could defeat a
dividend or bonus.
As previously observed, an important provision of the plan re-
quired the subscribing employee to work at the same hourly wage
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was then receiving. The respondent, however, did not assume
any legally enforceable obligation, the agreement providing for ter-
mination at any time by either party.
It is evident from an examination of the agreement and the testi-
mony of the respondent's auditor that the plan was designed
primarily to induce its employees to forego the exercise of the rights
guaranteed to them in the Act. Although Stevens purported to
assure the men that they were free to join the Union irrespective
of participation in the plan, the circumstances surrounding its pres-
entation indicate clearly its use to discourage union membership.
The plan was presented contemporaneously with the lay-offs of union
members. The respondent's supervisory employees, while expressing
hostility toward the Union, carried on a vigorous campaign on
behalf of the plan and indicated that the stock-purchase agreement
was the "plan" under which the respondent intended to operate. As
a result of this activity 26 employees subscribed to the plan, many
of the subscribers being drawn from the union ranks, which declined
from 22 to 10. It is apparent that the respondent's employees were
not convinced of the bona fides of Stevens' assurance. The relation
between the plan and the Union as it appears from Stevens' rejec-
tion of the Union's request for recognition solely on the ground that
a majority of the employees had evinced a desire to subscribe for
the stock, reveals that the motives of the respondent in fostering the
plan were to defeat collective bargaining as defined in the Act.
Moreover, the plan's provision barring requests for wage increases
constituted an interference with rights guaranteed by the Act. The
individual agreements to refrain from requesting wage increases con-
stitute on their face, a limitation on the exercise of the right to
engage in concerted activities and to bargain collectively regarding
wages. Such a limitation also interferes with the right to self-
organization, since it narrows the scope of the organization in one
of its most important spheres of activity. The limitation may be
unobjectionable when reached as a result of collective bargaining
with the representatives of the employees; in such case, by hypothe-
sis, organization has been attained, and the conclusion of the agree-
ment is itself an exercise of the right of engaging in collective
activities. But imposition of such a limitation upon the individual
employee may constitute not only a, form of coercion resulting from
the inequality of bargaining position, but also an obstruction, at
the outset, to the development of effective organization, concerted
activity, and collective bargaining.
Section 9 (a) of the Act provides that the representatives desig-
nated by a majority of the employees shall be the exclusive repre-
sentatives of all the employees for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
VINCENNES STEEL CORPORATION 833..
or other conditions of employment. Deprived of the possibility
of bargaining as to these matters, the right to organize and bargain
as guaranteed by the Act becomes meaningless and its exercise futile.
The continued existence of the wage clause in the stock-purchase
plan would thwart any effort at collective bargaining and render
impotent any order restraining the unfair labor practices.°
From the foregoing facts and circumstances, we find that the stock-
purchase plan was adopted and promulgated by the respondent as
a device to circumvent the purposes of the Act, and that the re-
spondent by its promotion of the plan has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in.
Section 7 of the Act.
C. The, discriminatory discharges and lay-offs
1. Andrew Eddleman, Kenneth Richardson, R. Virgil Wright,
Russell Hall, Burl Deem, and Raymond Crawford
On April 6, the day that Crawford was rehired with the assurance
that he would be given steady work because of his "loyalty" and the
same day that Vincent Frye told Wright that the respondent was
aware of the Union's activity, Eddlemann was laid off. The next
morning, without any notice, Craec ford was laid off, together with
Richardson, Wright, Hall, Deem, and James Harness 10 As noted
above, Deem was the only non-union man laid off and he was known
as a union sympathizer. The others were all union men and attended
the organizational meeting on April 4.
The respondent asserts that the lay-offs resulted solely from a lack
of work. In support of this contention the respondent urges that
working plans under existing contracts had not yet been drafted
and thus work could not be instituted. Stevens in explaining why
the plan was presented on April 7, the day of the lay-offs, however,
stated that business prospects were bright. An examination of the
respondent's pay roll reveals that at least 30 men were steadily
employed for 2 months prior to the lay-offs, which reduced the staff
° Cf. Matter of The Stolle Corporation and Metal Polishers , Buffers , Platers and Helpers
International Union, 13 N. L. R. B. 370, where individual employment contracts were
discussed . It is there stated:
The intent of Congress to prevent such attempts to avoid the mandate of Section
11 (a) of the Act, requiring collective bargaining with the representative of a ma-
jority of the employees , was expressed by the Senate Committee on Education and
Labor in a report ( 74th Congress . 1st Session-Senate Report No. 573 ), accom-
panying its submission of the Act to the Senate . The Committee stated "Majority
rule carries the clear implication that employers shall not Interfere with the prac-
tical application of the right of employees to bargain collectively through chosen
representatives by bargaining with individuals or minority groups in their own
behalf , after representatives have been picked by the majority to represent all."
10 As noted above, the complaint was dismissed as to Harness without prejudice.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from 33 to 26. After the lay-offs the number of employees pro-
gressively increased until it reached 42 on August 2. Thereafter a
level in the forties was maintained until the date of the hearing in
December. There was a sudden drop on April 7, despite Stevens'
assertion that business prospects were good. Although the respond-
ent alleges it contemplated laying off one-fifth of its personnel,
Crawford was rehired on April 6 and urged to be "loyal." The
limitation of the men laid off to union members and sympathizers
bore no reasonable relation to the number of employees enrolled
in the Union at the time. From the foregoing facts and circum-
stances, it is evident that no legitimate business reason for the lay-
offs existed, and that the reason given by the respondent was spurious.
Explaining his choice of the men laid off, Uland gave various
reasons pertaining to the efficiency and interest of the men in their
respective duties. Uland asserted that Eddleman was not a "regular
employee"; that Richardson returned from an outside construction
job without Uland's consent; and that Deem was looking for another
job, made many errors, and "argued religion." Many of the events
relied upon by him occurred subsequent to the lay-off s and obviously
could have provided no justification for his choice. As to those
matters that were alleged to have occurred prior to the lay-offs, it
appears that Richardson, Wright, and Crawford were all in the
employ of the respondent and its predecessor company for more than
15 years as rivet driver, bolt-up man, and crane operator, respec-
tively; that Hall, during his 2 years in the respondent's bolt room,
was admitted to be a good workman.; and that Eddleman and Deem
had satisfactory service records of 8 and 11 years respectively. From
the long records of satisfactory service of the men, we are convinced
that the reasons given by Uland for picking them were not valid.
On April 7 the men laid off filed a charge with the Board. The
respondent had notice of the charge and subsequently three of the
men were reinstated. The other four were not reinstated until after
a conference between a Field Examiner of the Board and Stevens,
general manager of respondent. Richardson and Wright, the presi-
dent and secretary respectively of the Union, were among the last
four to be reinstated.
Despite the fact the Union had enrolled only one-third of the
respondent's employees, all of the men laid off were, as we have said,
union members or sympathizers. The lay-offs followed Uland's ex-
pressions of hostility toward the Union, were contemporaneous with
the presentation of the stock-purchase plan, and bore no relation to
the requirements of the respondent's business. We are convinced,
therefore, that by laying off these men, the respondent sought to
rid itself of the union members and thereby prevent further. union
VINCENNES STEEL CORPORATION 835
activity among its employees. We find that by laying off Andrew
Eddleman , Kenneth Richardson, R. Virgil Wright, Russell Hall,
Burl Deem, and Raymond Crawford the respondent discriminated
in regard to their hire and tenure of employment, thereby discour-
aging membership in the Union, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Levi Melvin. Melvin, a member of the Union, was in the employ
of the respondent and its predecessor from 1925 until his discharge
on August 12, 1938. He was in charge of the assembly yard and
operated a crane. Prior to his discharge Melvin had been solicited
by Uland to participate in the stock-purchase plan and had refused,
explaining that he "had throwed in with a bunch of the boys who was
going with the Union." Uland then warned him : "This is the con-
tract that the Steel Corporation is going to operate under." Sub-
sequently Uland came through the plant and told Melvin that Alvin
Spitz, another employee, had subscribed for the stock and that Mel-
vin's was ready for him if he wanted it, but Melvin did not take
any on that occasion or at any other time.
The respondent contends that Melvin's poor health and weak eye-
sight required his dismissal. Melvin was examined in July by the
respondent's plant physician whose report showed him to be sound
in all respects with the exception of bad teeth and trachoma of both
eyes. The report rated his vision as 20/3011 in the right eye and
20/70 in the left eye. The physician testified that he recommended
Melvin's dismissal because trachoma was contagious and he believed
him to be "industrially blind," a term which he considered applicable
to anyone whose vision rating for both eyes was inferior to 20/40.
He testified that this figure was arrived at by averaging the vision
of both eyes. He admitted that no definite method existed for de-
termining "industrial blindness," that to his knowledge no State law
established such a classification, and that determination of a vision
rating for a person blind in one eye would be entirely a matter of
the physician's personal judgment.
Subsequent to his discharge, Melvin was examined by an eye spe-
cialist, a dentist, and a physician. The dentist testified that Melvin's
bad teeth had been extracted during the last 5 years, the last one being
extracted during the summer Melvin was discharged. The dentist
testified further that the remaining teeth would not affect his health.
The physician testified that Melvin was in good physical condition
and that a cursory examination of his eyes revealed no infection.
The eye specialist testified that Melvin had been suffering from
11 The ratio indicates the relation of the actual eyesight to perfect vision , 20/30 meaning
that the eye sees at 20 feet what a perfect eye would be able to see at 30 feet.
836 DECISIONS Ol NATIONAL LABOR RELATIONS BOARD
ptosis (drooping eyelids) which had been substantially improved by
an operation 5 years ago. The specialist found no evidence of any
infectious condition nor any trace of such a condition. He stated that
Melvin's vision was 20/30 for both eyes, which was considered average
for a man of his age.
Reports of the respondent's physician revealed two other employees
with vision no better than Melvin's, one with 20/50 vision in both
eyes and the second with no vision in the right eye and 20/30 vision
in the left eye. Nevertheless, no recommendation for dismissal was
made in either case. The only instance of an accident recited by the
respondent to support its contention that Melvin was "Industrially
blind" was the turning over of a gravel hopper by Melvin's crane.
It is significant that Melvin was not reprimanded at the time, Uland
explaining that the hopper was top-heavy and that the accident may
have been caused by carelessness or poor judgment in adjusting the
chains. Uland admitted, moreover, that the respondent made it a
regular practice to shift an employee physically incapable of per-
forming his accustomed duties to other work which he could perform
and that this practice was not followed in Melvin's case.
At the close of the hearing the respondent's attorney offered to pay
for an examination of Melvin's eyes by a disinterested eye specialist
and to reinstate him if the specialist so recommended. The Board's
attorney refused the offer, stating he would rest Melvin's case upon
the record. The hearing, as to Melvin, was principally concerned
with the determination of whether or not he had been the subject
of discrimination. The offer of the respondent can, of course, have
no probative value. The respondent has been free to reinstate Melvin
at any time that it became satisfied that his vision was not defective.
No consent given or withheld by counsel for the Board or for the
Union could restrict the respondent's privilege in this respect. Fur-
ther, if Melvin was, in fact, the subject of discrimination he was
entitled to have his case determined by the Board and receive an
award of back pay to compensate him for his loss during the period
of discrimination.
We think it apparent from all of the evidence, and particularly
from the failure of the respondent's physician to recommend the dis-
missal of two employees with vision at least as bad as Melvin's, that
Melvin's discharge did not result from any supposed visual deficiency.
On the basis of all the facts, we are convinced that Melvin's dis-
charge was in fact predicated upon his union activity. We find,
therefore, that the respondent, by discharging Levi Melvin on August
12, discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the Union, and interfering with,
restraining, amid coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
VINCENNES STEEL CORPORATION 837
Julius Sievers. Sievers was one of the 10 employees who retained
union membership after promotion of the stock-purchase plan. As
noted above, 7 of these 10 had been discriminatorily laid off in April
and were reinstated after a charge was filed with the Board. An
eighth member, Vanwey, was the only union man to subscribe to the
plan after solicitation by Uland. The discharge of Melvin, the ninth
member, has been discussed above. Sievers, the tenth member, was
employed as a fireman from July 17, 1936, until April 30, 1938, when
he was transferred to various jobs in the plant yard. Several days
prior to his transfer on April 30, Sievers was solicited by Uland to
subscribe to the plan. He refused, stating that he did not want to
sign a note for $1,000, as he owned property and did not care to be
obligated on a note. Upon being solicited on other occasions, Sievers
persisted in his refusal to purchase the stock, and subsequent to his
refusal, Uland told both Sievers and Crawford to keep their auto-
mobiles out of the respondent's garage, as it was reserved for "com-
pany" men. Uland denied telling them that the garage was limited
to the "company" men, but claimed that he warned the men not to
put their cars in Uland's own stall. We do not credit this denial.
Uland asserted that he transferred Sievers on April 30 for being
asleep on the job. Prior thereto, Sievers' work as a fireman had been
satisfactory. The respondent also contends that Sievers talked too
much and that he was generally inefficient. Just prior to Sievers'
actual discharge on September 6, Uland asked Burl Deem, who was
then supervising Sievers' work, if Sievers had been loafing. Deem
replied that he found Sievers' work satisfactory and that Sievers talked
no more than the other men. It appears, moreover, that the stock-
purchase plan was widely discussed during working hours, without
anyone being disciplined as a result. From the foregoing facts and
circumstances, it is apparent that the respondent used Sievers' alleged
sleeping as a pretext for first transferring and later discharging him.
We find that the respondent by discharging Julius. Sievers on Sep-
tember 6, 1938, discriminated in regard to his hire and tenure of em-
ployment, thereby discouraging membership in the Union, and inter-
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
D. The alleged discriminatory transfers
The complaint alleged that union members laid off in April were
discriminated against in the allotment of duties and overtime work
after their reinstatement. The Trial Examiner concluded in his
Intermediate Report, however, that the respondent had not discrimi-
nated against these. employees in this respect. The Union filed no
exception to this finding. Having reviewed the evidence, we agree
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial Examiner that there is insufficient proof of discrimi-
nation against these men in regard to transfers and assignment of
overtime work . Accordingly, we will dismiss the complaint in so far
as it alleges `such discrimination.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
I above, occurring in connection with the operations of the respondent
described in Section III 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist from further
engaging therein . We shall also order the respondent to take cer-
tain affirmative action which we deem necessary to effectuate the
policies of the Act. We have found that the respondent induced its
employees to subscribe to a stock -purchase plan in order to interfere
with the exercise of their rights under the Act . The respondent con-
tends that the Board is without power to enter any order affecting
the stock-purchase plan for the reason that it would constitute an
interference with contractual rights of stockholders not parties to the
proceeding . The Trial Examiner, in his Intermediate Report,
recommended that the respondent notify its employees that the pro-
vision of the contract barring requests for increased wages was not
enforceable and that the' ownership or lack of ownership of the
respondent 's stock would in no way affect any term or condition of
employment with the respondent . The recommended order could not
constitute an interference with any rights of stockholders but would
result only in abrogation of an obligation unlawfully exacted from
the employee subscriber . Accordingly , we will enter an order similar
to that recommended by the Trial Examiner.
The respondent contends that on grounds of policy, the Board
should not interfere with the plan because it tends to create better
relations between employer and employee . While measures fairly
designed to minimize industrial strife must be regarded with favor,
in this case the plan was designed to defeat collective bargaining
which Congress protects as a means of minimizing strife. We are
unable to agree that the present stock-purchase plan is compatible
with the Act.
We have found that the respondent by discharging Levi Melvin and
Julius Sievers has discriminated in regard to hire and tenure of em-
VINCENNES STEEL CORPORATION 839
ployment. We shall therefore order the respondent to offer these
employees reinstatement to their former positions, and make them
whole for any loss of pay they may have suffered by reason of their
discharge by payment to each of them of a sum equal to the amount
he normally would have earned as wages from the date of his dis-
charge to the date of the offer of reinstatement, less his net earnings 12
during such period.
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Andrew Eddleman, Kenneth
Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Ray-
mond Crawford by laying them off. Subsequently these men were
reinstated. We shall order the respondent to make each of the men
whole for any losses of pay they may have suffered by reason of the
discrimination in regard to their hire or tenure of employment, by
payment to each of them a sum of money equal to that which he
would have earned as wages or salary during the period from the
date of such discrimination to the date of reinstatement, less his net
earnings during said period.
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Bridge, Structural and Ornamental
Iron Workers, Local No. 585, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Andrew Eddleman, Kenneth Richardson, R. Virgil Wright,
Russell Hall, Burl Deem, Raymond Crawford, Levi Melvin, and
Julius Sievers, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the
Act.
3. By inducing its employees to subscribe to a stock-purchase plan
and requiring such employees to agree to refrain from requesting
wage increases, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (1) of the Act.
4. By interfering with, restraining, and coercing the employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
n By "net earnin gs" is meant earnings less expenses , such as for transportation, room
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
lay-off and the consequent necessity of his seeking employment elsewhere . See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Worker s Union, Local 2590, 8 N. L. R . B. 440 . , Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects are
not considered as earnings, but as provided below in the Order, shall be deducted from
the sum due the employee. and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects.
247384-40-vol. 1 7 54
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act in regard to transfers of or
assignment of overtime work to Andrew Eddleman, Kenneth Rich-
ardson, R. Virgil Wright, Russell Hall, Burl Deem, and Raymond
Crawford.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Vincennes Steel Corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of
Bridge, Structural and Ornamental Iron Workers, Local No. 585, or
any other labor organization of its employees by discriminating in
regard to hire or tenure of employment or any term or condition of
their employment;
(b) In any manner continuing, enforcing, or attempting to enforce
the provision in its stock-purchase plan purporting to bar requests
by employees for wage increases;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Levi Melvin and Julius Sievers immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges;
(b) Make whole Levi Melvin and Julius Sievers for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion in regard to their hire and tenure of employment, by payment
to each of them'of a sum of money equal to that which each normally
would have earned as wages during the period from the date of such
discrimination against him to the date of the offer of reinstatement,
VINCENNES STEEL CORPORATION 841
less his net earnings during that period; deducting, however, from
the amount otherwise due to each of the said employees, monies
received- by said employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amount, so deducted, to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief
projects ;
(c) Make whole Andrew Eddleman, Kenneth Richardson, R. Vir-
gil Wright, Russell Hall, Burl Deem, and Raymond Crawford, for
any loss of pay they may have suffered by reason of the respondent's
discrimination in regard to their hire and tenure of employment, by
payment to each of them of a sum of money equal to that which he
normally would have earned as wages during the period of his respec-
tive discriminatory lay-off, less his net earnings during that period;
deducting, however, from the amount otherwise due to each of the
said employees, monies received by said employee during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(d) Notify each of its employees in writing that the provision of
the stock-purchase plan dated April 27, 1938, purporting to bar any
request by employees for changes in wages, is void and of no force
and effect, and that the ownership or lack of ownership of the
respondent's stock will in no way affect any term or condition of
employment with the respondent;
(e) Post immediately in conspicuous places in its plant in Vin-
cennes, Indiana, notices to its employees, and maintain such notices
for a period of at least sixty (60) days, stating (1) that it will cease
and desist as aforesaid; (2) that its employees are free to become or
remain members of International Association,of Bridge, Structural
.and Ornamental Iron Workers, Local No. 585, affiliated with the
A. F. of L. and that it will not discriminate against any employee
because of membership or activity in that organization; (3) that an
employee's ownership or lack of ownership of the respondent's stock
will in no way affect any term or condition of employment with the
respondent; (4) that the provision of the stock-purchase plan dated
April 27, 1938, purporting to bar requests by employees for changes
in wages is void and of no force and effect;
(f) Notify the Regional Director for the Eleventh Region in writ-
ing within ten (10) days from the date of this Order what steps it
has taken to comply herewith.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be dismissed in so far as
it alleges that the respondent has discriminated in the transfers of"
and the assignment of overtime work to Andrew Eddleman, Kenneth
Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Ray-
mond Crawford, and that the complaint be dismissed without preju-
dice in so far as it alleges discrimination against James Harness.