Vulcan Steel Tank Corp.

National Labor Relations Board - Board Decisions

Oct 22, 1953

106 N.L.R.B. 1278 (N.L.R.B. 1953)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Member Murdock , concurring:
I agree with my colleagues that the Intervenor ' s contract is
a bar and that the petition should therefore be dismissed. I
find that the contract ' s union - security clause is not unlawful
because all employees in the unit were members of the Inter-
venor when the contract was made, and therefore , under the
Board ' s holding in Charles A. Krause Milling Company, 97
NLRB 536 , it was unnecessary to refer in the agreement to a
nonexistent category of employees . As I find that the contract
contains a valid union-security clause and is therefore a bar,
I concur in the decision of my colleagues to dismiss the pe-
tition in this case . However , I do not thereby necessarily
concur in the pronouncement made by the Board in the recent
Regal Shoe case, in which I did not participate, that in repre-
sentation cases the Board should not examine contracts with
the same judicial preciseness as may be required in other
proceedings.
Member Rodgers took no part in the consideration of the
above Decision and Order.
VULCAN STEEL TANK CORPORATION and INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS
AND HELPERS OF AMERICA , LOCAL 592, AFL . Case No.
16-CA-432. October 22, 1953
DECISION AND ORDER
On June 18 , 1953 , the Board issued its Proposed Findings of
Fact , Proposed Conclusions of Law, and Proposed Order in the
above-entitled proceeding , a copy of which is attached hereto.
Thereafter , the Respondents filed exceptions and a supporting
brief . In addition , the Respondent requested oral argument,
contending , inter alia , that such oral argument is necessitated
because of the transfer of the proceeding to the Board without
analysis of the cases and evaluation of the testimony by the
Trial Examiner . However, because the record and the Re-
spondent ' s exceptions and supporting brief , in our opinion,
adequately present the issues and positions of the parties and
because proposed findings of fact , proposed conclusions of law,
and a proposed order issued herein in lieu of a Trial Ex-
aminer's Intermediate Report, the Respondent ' s request is
hereby denied.
The Board has considered the proposed findings of fact,
proposed conclusions of law , and proposed order , the excep-
tions and brief filed by the Respondent , and the entire record
in the case . The Respondent specifically excepted tothe trans-
fer of this case from the Trial Examiner to the Board rather
than requiring a new hearing . As the Trial Examiner who
heard the testimony in this proceeding was not available to
106 NLRB No. 222
VULCAN STEEL TANK CORPORATION 1279
prepare an Intermediate Report , we find no merit in this
contention.'
In its proposed findings , conclusions , and order, the Board
concluded that the Respondent had violated Section 8 (a) (5)
and (1 ) of the amended Act by refusal to bargain in good faith
with the Union as the collective -bargaining representative of
its employees . This finding was based upon a number of
specific acts of the Respondent, i.e., its reversal of position
on August 7, 1951 , as to inclusion of union - security provisions
in the contract , its refusal to sign a contract for a term longer
than the certification year, and its refusal to negotiate with the
Union expressed in July 1952 . The Respondent filed exceptions
to this finding and , upon consideration of the entire record, we
find that the Respondent ' s exceptions are well taken.
The Respondent and the Union commenced negotiations con-
cerning a collective -bargaining contract on April 4, 1951.
Between that date and August 7, 1951 , the parties held a number
of meetings and succeeded in reaching tentative agreement as
to a major portion of the issues before them , including a
union - security clause . Prior to August 7, however , the Re-
spondent received information that a number of its employees
no longer supported the Union , and, on that date , the Respondent
indicated that it no longer would agree to the inclusion of
union - security provisions in the contract . In its proposed de-
cision , the Board found that this change of position on the part
of the Respondent was motivated by an intent to prevent signing
of an agreement and encourage the dissipation of the union
membership.
The Respondent , in its exceptions , contends that the August
7 change of position was, instead , based upon a legitimate
reaction to a change in the conditions which existed at the time
it gave tentative approval to the union - security clause of the
proposed contract . Thus, the Respondent argues that its re-
ceipt of reports of growing opposition to the Union among its
employees and its knowledge that pending amendments to the
Act would remove the requirement of a referendum among the
employees before a union - security clause could take effect
were the reasons for the change in position rather than any
intent to interfere with the status of the bargaining represen-
tative or to block a successful agreement. In this regard, the
Board notes the absence of any independent evidence of bad
faith on the part of the Respondent and the fact that the parties
met and negotiated with apparent success for a period of 4
months prior to the August 7 meeting . Accordingly, under
these circumstances , contrary to the findings and conclusions
of the Board ' s proposed decision, we find that the record fails
to establish a violation of the Act by the Respondent as regards
its rejection of the tentative agreement upon theunion - security
'See National Shirt Shops of Florida , Inc., et al., 105 NLRB 116, and cases cited therein
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clause .' In view of this conclusion , we find it unnecessary to
rule upon the Respondent ' s motion to reopen the record.
We also find merit in the Respondent ' s exceptions to the
remaining findings of violations of Section 8 (a) (5) and (1) as
made in the proposed decision . While the Respondent, on
January 2, 1952 , limited the term of any contract which it
would sign to a period ending with the certification year, the
Board has previously held that such a refusal is not a violation
of the Act in the absence of an intent to avoid good-faith
bargaining .' In the present case, we have found that the Re-
spondent did not , previous to the date of this particular action,
commit any violation of the Act, and the record does not con-
tain any other basis for attributing bad faith to the Respondent
as regards the limitation of the contract term. Likewise, it is
clear that the Respondent did not violate the Act by refusing to
negotiate with the Union in July 1952 , inasmuch as the certifi-
cation year had , at that time , expired and as the Respondent
had valid basis for good-faith doubts as to the Union's con-
tinuing majority representation.
Accordingly , as we have found that the Respondent did not
violate Section 8 (a) (5) and ( 1) of the amended Act, we shall
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
Member Murdock took no part in the consideration of the
above Decision and Order.
2Cf. Mason & Hughes , Inc , 86 NLRB 848, at 851.
3 The Hinde & Dauch Paper Company , 104 NLRB 847.
PROPOSED FINDINGS OF FACT, PROPOSED CONCLUSIONS
OF LAW, AND PROPOSED ORDER
STATEMENT OF THE CASE
Upon charges filed by the International Brotherhood of
Boilermakers , Iron Ship Builders and Helpers of America,
Local 592 , AFL, herein called the Union, the General Counsel
of the National Labor Relations Board , herein called the
General Counsel ' and the Board , respectively , through the
Regional Director for the Sixteenth Region ( Fort Worth,
Texas ), issued his complaint dated June 26 , 1952 , against
Vulcan Steel Tank Corporation , herein called the Respondent,
alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and ( 5) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. Copies of the charge and the
1 This term specifically includes the counsel for the General Counsel appearing at the
hearing.
VULCAN STEEL TANK CORPORATION 1281
complaint, and a notice of hearing, and order postponing the
date of hearing, were duly served upon the parties.
With respect to the unfair labor practices, the complaint
alleged in substance that on or about May 31, 1951, and at
all times thereafter, the Respondent did refuse and continues
to refuse to bargain collectively with the Union in violation of
Section 8 (a) (5) of the Act and that by the foregoing, the
Respondents have interfered with, restrained, and coerced
employees in violation of Section 8 (a) (1) of the Act. Re-
spondents duly filed their answer admitting certain allega-
tions of the complaint but denying the commission of any un-
fair labor practices and asserting, affirmatively, that the
Union at all times pertinent herein insisted upon the inclusion
of illegal and irregular clauses in a contract between the
parties, refused to countenance the Respondent's requests for
retention of normal management functions, and filed the
instant charges as a gesture of retribution and to prevent
the procedural steps requisite to decertification of the Union
at the Respondent's plant.
Pursuant to notice, a hearing was held in Tulsa, Oklahoma,
on December 16, 17, 19, and 20, 1952, before Peter F. Ward,
a Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel and the Respondent were represented by
counsel and the Union by a representative. All parties had full
opportunity to be heard, to examine and cross-examine
witnesses , to introduce relevant evidence, to argue orally,
and to file briefs. A brief has been received from the Re-
spondent.
At the hearing, counsel for Respondents moved to strike
all testimony and evidence admitted in the record concerning
any incidents or events occurring prior to May 31, 1951, or
occurring more than 6 months prior to the date of filing of
the charge. The motion was denied without prejudice to its
renewal. During the course of the hearing, the Trial Examiner
made rulings on objections to the admission of evidence and
on other motions, including the denial of Respondent's motion
at the conclusion of the General Counsel's case to dismiss the
complaint for lack of evidence.
In January, 1953, Trial Examiner Ward became seriously
ill. Thereafter, on February 11, 1953, the Board, acting
pursuant to Section 102.36 of National Labor Relations Board
Rules and Regulations, Series 6, as amended, issued an order
that the case be transferred and continued before the Board;
that no Trial Examiner's Intermediate Report be issued in the
case ; and that proposed findings of fact, proposed conclusions
of law, and a proposed order be issued. Pursuant to said Rules
and Regulations, any party may, within 20 days from the date of
these proposed findings of fact, proposed conclusions of law,
and proposed order, file exceptions,. with a supporting brief,
thereto. Should any party desire to argue orally before the
Board, request therefor must be made in writing to the Board
simultaneously with the statement of any exceptions filed.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board' has reviewed the rulings of the Trial Examiner
made during the course of the hearing and finds that no prej-
udicial error was committed . The rulings are hereby affirmed.
At the conclusion of the hearing, counsel for Respondent
renewed several motions as to admission of evidence and to
strike certain evidence . At the same time, the General Counsel
moved to strike certain exhibits of Respondent previously
admitted into evidence . The Trial Examiner reserved ruling
on these motions . These motions are now disposed of in
accordance with the findings of fact and conclusions of law
made below.'
Upon the entire record in the case, the Board makes the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Vulcan Steel Tank Corporation , an Oklahoma corporation,
has its principal office and place of business at Tulsa,
Oklahoma , where it is engaged in the fabrication of absorber
towers, heat exchangers , pressure vessels, stock tanks,
treaters , and similar equipment . During the year ending
December 31, 1951, the Respondent purchased raw materials
consisting principally of sheet steel valued in excess of
$ 250,000, all of which raw materials were shipped to the
Respondent from points located outside the State of Oklahoma.
During the same period of time, the Respondent sold finished
manufactured products in a total sum exceeding $ 250,000, all
of which were shipped to points located outside the State of
Oklahoma . The Respondent admits, and we find, that it is
engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Ship
Builders and Helpers of America, Local 592, AFL, is a labor
organization admitting to membership employees of the Re-
spondent.
2 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 Houston, Murdock, and
Styles]
3 The Respondent's motion to strike all testimony and evidence admitted in the record con-
cerning any incidents or events occurring prior to May 31, 1951, or occurring more than 6
months prior to the date of the filing of the charge in this proceeding is denied. Such testi-
mony and evidence admitted herein has been considered only in the nature of background
information tending to throw light upon the Respondent's activities during the 6-month
period antedating the filing and service of the charge See Luzerne I Tide and Tallow Com-
pany, 89 NLRB 989.
VULCAN STEEL TANK CORPORATION 1283
III. THE UNFAIR LABOR PRACTICES
A. Sequence of material events
1. The appropriate unit and selection of the Union as
representative by a majority of the employees therein
On February 28, 1951, the Respondent and the Union signed
a consent - election agreement in Case No . 16-RC-698, which,
as approved by the Regional Director for the Sixteenth
Region, covered a unit of all production and maintenance
employees at the Respondent's Tulsa plant , excluding clerical
employees , janitors , watchmen, and all other employees and
supervisors as defined in the Act . The parties stipulated at
the instant hearing and we find, as alleged in the complaint,
that the above-described unit is appropriate for purposes of
collective bargaining within the meaning of Section 9 (b)
of the Act.
On March 22, 1951, an election was held pursuant to the
consent agreement in Case No . 16-RC-698 noted above, and
under the direction and supervision of the Regional Director
for the Sixteenth Region . The employees voting in said elec-
tion designated the Union as their bargaining agent and
thereafter on March 30 , 1951, the Regional Director for the
Sixteenth Region duly issued the Board ' s certification of
representatives , certifying that the Union, pursuant to Section
9 (a) of the Act, was the exclusive representative for the
appropriate unit.4
The Respondent admits that the Union was selected as
representative of its employees on March 22, 1951, but, in its
answer, contends that the Union thereafter lost its status as
exclusive representative . The Respondent bases this conten-
tion on an asserted repudiation of the Union by the employees
through a decertification petition filed prior to the end of the
year following the Union ' s certification .5 We find no merit
in this contention . The Board , with the approval of the courts,
has consistently held that , in the absence of special circum-
stances, a certification of representatives must be honored
for a reasonable period, usually 1 year . An asserted repu-
diation of the Union during this period does not constitute
"special circumstances" sufficient to destroy the Union's
representative status 6
Accordingly , we find, as alleged in the complaint , that on
March 27, 1951 , and at all times material herein thereafter, the
Union was andhas since continued to be the representative of the
4 The tally of ballots showed that of the 34 eligible voters, 33 cast ballots Of these ballots
20 were for the Union and 13 against. No objections were filed to the conduct of the election
5 The Trial Examiner correctly excluded , as evidence, letters to the Respondent from
counsel for the decertification petitioners notifying the former of the existence of the petition
and the appeal from the Regional Director's dismissal thereof
6See Mid-Continent Petroleum Corporation, 99 NLRB 182; S H Kress & Company, 88
NLRB 292, and cases cited therein.
322615 0 - 54 - 82
1 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said employees in the above - described unit forthepurposesof
collective bargaining within the meaning of Section 9 (a) of the Act
2. The bargaining meetings
a. The first bargaining meeting on April 4, 1951
On April 4, 1951, Jefferson Johnson, the assistant business
manager of Local 592 of the Union, and a shop committee
consisting of employees Jack Smith, V. L. Grubbs, and Rupert
O'Kelley met with Charles A. McNamar, the president of
Respondent. At this time Johnson presented the Respondent
with a copy of a proposed contract. The contract contained
no proposal as to wages . McNamar told the union representa-
tives that he would study the agreement . According to the
undenied and credited testimony of Johnson,' it was agreed to
keep negotiations at a local level with both parties reserving
the right to bring in an attorney or an international represen-
tative at some later date, if necessary.
b. Bargaining meeting of April 6
According to McNamar, the second meeting between the
parties was set, on April 4, to occur on April 11. In the mean-
time, however, he read the union proposal and requested Johnson
to come to his office for an informal discussion of the provisions
of that proposal. This meeting occurred on April6 and resulted
in a section-by-section review of the contract with McNamar
noting which sections were unacceptable to management , in par-
ticular, the union proposal for hiring through its offices.8Upon
completion of the discussion, McNamar indicated that the Re-
spondent would submit a counterproposal at the April 11 meeting
with some provision for union security which he hoped would be
acceptable to both parties.
Johnson, however, while agreeing thata meeting took place on
April 6, testified that it was a formal meeting with the shop com-
mittee present. According to Johnson, at this meeting McNamar
presented a counterproposal in contract form which the group
discussed in detail. This counterproposal also did not contain
any wage provisions and the discussion centered around vacation
pay, holidays, and the sections on the shop committee and griev-
ance procedure. Upon full consideration of the record the Board
is of the opinion that the testimony of Johnson, in conflict with
IThe members of the shop committee did not testify at the hearing. McNamar and Johnson
were in general agreement as to the content of the April 4 meeting although McNamar did
not specifically affirm or deny portions of Johnson's more complete testimony concerning
the content of the conversation on April 4.
8 The original union proposal was somewhat ambiguous as to union security but proposed
that "The Union agrees to furnish competent Mechanics and Helpers to the Employer. Em-
ployer shall have the right to determine the competency and qualifications of his Employes
and the right to discharge any Employee for any just and sufficient cause...." and that
"When the Employer has requested Union to furnish men and the required number of men
are not furnished within forty-eight hours, the Employer may assign such other workmen
who may be available to perform the required work. Such other workmen shall be replaced
by competent Mechanics and helpers when available and upon reporting to the Employer."
VULCAN STEEL TANK CORPORATION 1285
that of McNamar as to this point , is in error , and that the meet-
ing of April 6 occurredas related by McNamar whose testimony
we credit as to this incident.'
c. Bargaining meeting of April 11
On April 11, Johnson and the shop committee again met with
McNamar, and , at this time, according to McNamar' s credited
testimony , " a counterproposal of the Respondent was presented
to the Union and discussed in detail . A number of clauses were
agreed upon and changes , additions , and deletions were proposed
for other portions of the agreement . The counterproposal con-
tained a union -security clause providing that employees of the
Respondent should become and remain members in good standing
of the Union and that new employees would be required to be-
come members within the first 30 days of their employment. "
Effectiveness of the clause was made contingent upon authoriza-
tion of the Union to make a union -security agreement under the
Labor Management Relations Act of 1947.'2 Attached to the
counterproposal , again according to the credited testimony of
McNamar, was a notation addressed to Johnson stating that
"Articles covering wages, seniority and classifications were
omitted so as to be discussed later."13
d. Bargaining meetings of April 21 and May 3
On April 21, McNamar presented a revised version of the
Respondent 's April 11 counterproposal intended to reflect the
9In this respect, we note that the time interval between the April 4 and 6 meetings seems
somewhat short for preparation of the counterproposal.
10 As noted previously , Johnson, while agreeing as to the submission of the counterpro-
posal, stated that it was presented to the Union on April 6.
11 The proposal read , in its entirety,
Article 6. Union Shop
A If and when the Union has been authorized, under the provisions of the Labor
Management Relations Act, 1947 , or other applicable laws, to make an agreement with
the Company requiring membership in such union as a condition of employment, then
the following provisions shall automatically become effective.
B All present employees of the Company covered by this agreement be members of
the Union and in good standing.
C. All new employees employed after date of this Agreement shall be required as a
condition of employment to become a member of the Union within the first thirty (30)
days of his employment . At the end of thirty ( 30) days such employee must become a
member of the Union and remain a member of the Union in good standing during the
life of this Agreement Good standing means payment of dues and application fees and
the Company will discharge for non-payment of dues and application fees only as part
of terms of this paragraph.
12 This was , of course , prior to the amendments to the Act, Public Law No 189, 82nd
Congress , 1st Sess., Sec (c) (Oct. 22, 1951 ), removing the requirement of Board-conducted
elections for union authorization to enter into union- security agreements
i3Johnson testified that this attachment was tendered as a part of the second revised
counterproposal of the Respondent when, according to him , that revised text was submitted
to the Union on April 11. It is apparent that the attachment would logically accompany the
first submission of the first counterproposal and as it is dated April 11, we credit the
testimony of McNamar.
1 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussions of the later date . 14 On this occasion and at a sub-
sequent meeting on May 3, Johnson , the shop committee and
McNamar discussed the revised counterproposal at length.
The revised proposal contained a slightly revised union-
security section and a section setting forth work classifica-
tions .is Nothing was discussed as to wage scales for such
classifications , however . It was then agreed that Respondent
would prepare another revision of the proposals advanced to
that date.
e. Bargaining meeting of May 9
On May 9, McNamar , according to his credited testimony,
presented a further revised version of the original counterpro-
posal of Respondent . This proposal contained revisions sug-
gested in the previous discussions of April 21 and May 3, but
was in substance the same agreement . The proposal and the re-
visions were discussed by Johnson and the shop committee with
McNamar . McNamar testified that, at the conclusion of this
meeting, he made notes as to the "few remaining matters which
I was to discuss with them, and it was my understanding that
when these changes reflected by this memorandum was incor-
porated in a rewritten version, that we were in substantial
agreement upon all items contained therein , which had been dis-
cussed, tentative to the completion of the discussions concerning
seniority , classifications and wages."
It had been previously agreed, although the exact date of the
agreement is in dispute , that seniority , classifications, and
wages would be discussed following agreement on the remainder
of the contract and that the executive vice president of Respon-
dent, L. N. McKelvey, would negotiate those provisions with the
Union . The Respondent's classification outline, however, as
noted above , was incorporated in the last revisions of the Re-
spondent ' s original counterproposal and was apparently agreed
upon. At the close of the May 9 meeting, according to the
credited testimony of both McNamar and McKelvey, McNamar
introduced McKelvey to Johnson and the shop committee.'
s4Johnson, in his testimony, did not refer to any meetings between April 11 and May 21.
He further testified that the revised counterproposal was submitted on April 11 and that the
union representatives objected to it as not reflecting the conclusions of the parties made at
the previous meeting. We consider that Johnson, through the original error as to the events
of the meeting of April 6, confused the meeting of April 11 with that of April 21
15 Section B of article 6 on union security was revised to provide that "all present em-
ployees to be accepted by the Union within thirty days from the signing of this contract, at
regular membership rates and dues, without penalty." A new section was added to provide
that "The Union agrees that they will file no charges against any employee for non payment
of dues until that employee is 30 days delinquent and no more than two such charges shall
be filed in any one calendar month " Another new section of article 6 provided for use of
janitors to make minor building repairs and optional use by the Respondent of the plant work
force or outside contract labor for alterations and expansion of the plant facilities. The
article, so revised, remained substantially in this form in the further revised contract as
presented on May 9.
16Johnson at one point testified that he was introduced to McKelvey and told the latter
would negotiate the wage sections , during a visit to the plant by Johnson on May 11. At
another point in his testimony, he stated that this incident occurred on April 11.
VULCAN STEEL TANK CORPORATION 1287
McKelvey briefly discussed the Respondent ' s classification sys-
tem and asked Johnson if the Union had a wage proposal . Johnson
stated that he would submit one in a few days.
On May 16,1951, the Respondent hired Charles W. Gay as plant
superintendent . Gay was assigned " complete charge of the plant,
the personnel , the wage structure , the production schedules, the
inventories andall the maintenance . Among these duties was that
of initiating changes in classifications and promotions for em-
ployees in the bargaining unit . Gay was also assigned a part in
the wage negotiations then under way.
f. Bargaining meeting of May 21
On May 21,Johnsonandthe shop committee met with McKelvey
and Gay . Johnson presented a set of proposed minimum wages
for the job classifications previously established as standards in
the plant and included in the last revised contract proposal of the
Respondent . ' McKelvey remarked that the rates did not "look
too far out of line" and informed the union representatives that
they would be takenunder consideration . 18 The proposal as pre-
sented by the Union also included a proviso that
None of the rates quoted above shall serve to reduce any ex-
cess rate now paid to present employees and shall not pre-
vent the employer paying excess rates when in its judgment
it will serve its best interests.
McKelvey testified , without contradiction , that the Union did not,
at this meeting or at any subsequent meeting, propose the grant-
ing of an across-the-board increase inwage rates . The Respond-
ent's position at all conferences was that no such broad raise
would be given.
g. Bargaining meeting of May 29
On May 29, the parties again met and Gay, for the Respondent,
submitted a survey of Respondent's wages as compared to its
competitors . The negotiators then discussed wage scales and Mc-
Kelvey stated that an overall increase in plant wages was out of
the question but that the Respondent would consider making ad-
justments for 5 or 6 mento correct inequities . McKelvey listed
the classifications involved inthese inequities andthe rates that
were being paid . 19 According to Johnson ' s uncontradictedtesti-
mony, McKelvey also stated at this meeting that the work was
slowing down and that the plant might have to close.
17 In 1947 the Respondent, after a survey, established an evaluation and wage adjustment
scheme based upon 10 classifications. This system was incorporated into a 1948 collective-
bargaining contract with the union which was then representing the employees at the plant
These classifications were also set forth in the revised counterproposal of the Respondent
previously submitted to the Union in these negotiations and had been used by the Union as a
basis for its proposed wage rates. The record is barren of any indication that the parties
ever disagreed as to the continuance of this classification structure
18 McKelvey's comment is based on the credited testimony of Gay not otherwise denied.
Although the record does not show precisely how the rates set forth in the union wage
proposal compared to those currently being paid by the Respondent, there was apparently
little difference McKelvey and Gay testified that the Respondent was, in fact, paying more
in some classifications than the Union proposed.
19 Johnson testified that he then requested the names of the men involved in the inequities
but was unsuccessful at this or subsequent meetings in obtaining the names McKelvey
testified that Johnson at no time requested the names of the men. Gay placed the inequities
question as arising in the May 21 meeting and stated that he did not recall the question of
the names aricmv at any time during the negotiations.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the discussion of wage rates and inequities , Johnson
asked McKelvey to explain a statement which he said McKelvey
had made at the previous meeting to the effect that the Union had
prevented the Respondent from previously granting a wage in-
crease. McKelvey denied that he had made that precise comment
but stated that the Respondent, by virtue of the Union's position
as bargaining representative , was prevented from giving con-
sideration to the inequities in the wage structure "until we come
to an understanding maybe with the Union".' It is clear from
this exchange that the Respondent, at this time, took the position
that the "inequities" in the wage structure were matters for
bargaining with the Union. The Respondent, on the other hand, con-
sidered that they retained the right to make promotions and re-
classification on their own with the advice of the shop com-
mittee.21
The meeting closed with McKelvey stating that Gay would have
authority to bargain further for the Respondent on the wage ques-
tion and that he, McKelvey, probably would not be at all future
meetings.
h. The meetings between the Union and Gay
The next bargaining session took place on May 31 with Gay
representing the Respondent . ' This session was short and incon-
clusive but there is some dispute as to what was said. Johnson
testified that at this meeting, as at succeeding ones, he attempted
to find out the names of the individuals concerned in the "in-
equities" cases but that Gay replied that he didn't have authority
to release the names. Gay testified that the question of the in-
equities did not come up during this particular meeting and that
the conversation was limited to a discussion of what competing
companies were paying. According to Gay, Johnson expressed
unconcern as to comparisons of this type and asked if Respond-
ent had a wage proposal to make and if he, Gay, had authority to
negotiate a contract. Gay stated he had such authority.
In the month of June, and thereafter, the Respondent received
information from "any number of employees" that they were no
longer interested in the Union. According to the uncontradicted
20 The conversation is related as given in the testimony of McKelvey and Gay, who are in
general agreement as to what was said and whose testimony is consistent, to a large extent,
with that of Johnson. Johnson, however, testified that, while McKelvey denied making the
prior statement, he then stated "the union was preventing me from giving an increase "
Johnson's testimony was somewhat vague and inconclusive as to this meeting. We credit
McKelvey and Gay, therefore, insofar as the testimony as given in the test differs from
that of Johnson.
2i In this connection, Gay testified that at the May 29 meeting he told Johnson that it might
be necessary to promote some employees or change their classifications and that the shop
committee and Gay had been discussing such situations. Johnson replied, according to Gay,
that he would not stand in the way of any of the employees getting more money. McKelvey
testified that at the same meeting he asked Johnson for permission to deal with the shop
committee in Johnson's absence, but later qualified this comment uniting it to matters of
reclassification and promotions. Johnson made a general denial that he had ever authorized
any of the shop committee to bargain on his behalf or "o. k. any wage rate."
22 Another management representative by the name of Haughton was present in the capacity
of reporter-secretary for the Respondent. Naughton did not testify at the hearing in this
case
VULCAN STEEL TANK CORPORATION 1289
testimony of McNamar, this information was received by Gay at
times between June and September, and relayed to him. Mc-
Kelvey also testified as to having heard "rumors" to the same
effect. That this information played a considerable role in in-
fluencing the Respondent's actions in its negotiations with the
Union thereafter, is admitted by the Respondent as will appear
later.
For several weeks following the May 31 meeting, Johnson was
unsuccessful in a number of attempts to arrange for further bar-
gaining sessions . However, a meeting was finally set for June 19,
at which time Gay and Haughton, for the Respondent, met with
Johnson and the shop committee. Again the results were incon-
clusive. Johnson testified that he again asked Gay whether he had
authority to make a wage proposal. Gay replied, according to
Johnson, that the Respondent was willing to make some adjust-
ments to men who earned them but would not give an overall in-
crease . Gay also informed Johnson that the Respondenthad re-
classified a number of employees to higher wage-rate classifi-
cations. Gay testified only that Johnson challenged his authority
and that Johnson continued to comment about an overall wage in-
crease without making any specific demand.
On June 26, Johnson wrote McKelvey protesting that "We have
had two meetings with Mr. Gay, your shop foreman ,23 and he has
told us both times that there was nothing he could offer or any
proposal he could make. He has told us that he has not been with
the company long enough to know what could be done in the way
of a wage increase . Understand , we will continue to meet with
Mr. Gay, but would like to meet with someone with authority. "24
Later, on the same day, Gay and Johnson had a telephone conver-
sation in which Gay remarked that they were "stymied" and
suggested that he, Gay, talk to McKelvey and McNamar to "find
out what their opinions are" and the wage situation and "see
exactly what can be done." Gay was to get in touch with the
Union when he had done so. On July 1 or 2, Gay consulted with
McNamar and McKelvey and was told by them to determine if
there were any classifications in the plant whichwere low and,
if so, to determine what increase Respondent could offer. Gay
then received approval of a recommendation to adjust the rates
in 5 classifications. He called Johnson to reportthis result but
the latter was on vacation. At the end of July, Johnson called Gay
and requested a meeting for July 31. Gay was unable to meet on
that day and a meeting was arranged for August 7.
On August 7, Gay and Haughton met with Johnson and two mem-
bers of the shopcommittee.25 Gay announced that the Respondent
23Gay's title was actually that of plant superintendent.
24 When questioned concerning this letter, Gay admitted that he had made statements that
as far as some of the promotions or reclassifications, I wasn't familiar or wasn't acquainted
with a lot of the talents or skill of the men out in the-plant" but stated that he did not need
such information to negotiate an overall wage increase.
25 The absent member of the shop committee was O'Kelley who had apparently left the plant
for other employment. He did not participate in this or any of the succeeding conferences
between the parties.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was prepared to increase the wage rates in 5 classifications.26
The remaining wage rates would not be increased. Johnson asked
Gay if the Respondent would sign a contract if the men accepted
that offer. Gay replied that the Respondent would do so if the
union-security clause was dropped and an open-shop provision
substituted for it. As explanation for this position, Gay stated
that "You don't represent a majority of the men any more. The
company stands to lose by signing a contract with the union be-
cause the majority of the key personnel don't want union." John-
son asked why Gay thought that the Union's majority had been
lost. Gay replied, "I made it my business to know." Johnson re-
torted that the men would not tell Gay whether or not they wanted
a union as they would be afraid and Gay stated, "I think they told
me the truth."n The meeting then closed.
i. The meeting of September 21
The next meeting between the parties did not take place until
September 21 when one was arranged ona request made to Re-
spondent by Johnson. C. E. Alexander, Jr., an international rep-
resentative of the Union, attended with Johnson and the shop
committee . McNamar,McKelvey, Gay, and Haughton represented
the Respondent. After the general discussion which opened the
meeting, Alexander asked if the Respondent would sign a con-
tract. McNamar stated that the Respondent was willing to enter
into a contract providing that the union-security clause was
eliminated in favor of a provision for an open shop and that the
other matters of wages, classifications , and seniority were re-
solved. During the discussion on this issue that followed, ac-
cording to Johnson's credited testimony, Johnson commented
that the Respondent was not supposed to be interested in whether
or not its employees joined a union. McNamar rejoined that the
Respondent was definitely interested and added, in this regard,
"A man made us an offer for this shop. When he found out the
union was inhere, he cut his price one hundred thousand dollars.
We just the same as lost that hundred thousand dollars."28
The parties were unable to reach agreement with the Respond-
ent remaining firm in the position taken by McNamar and the
Union, through Alexander, insisting that the union- security clause
agreed upon in May remain in the contract. Alexander further
stated that the Union would file unfair labor practice charges if
the Respondent persisted in its position. After an exchange be-
tween Alexander and McNamar as to whether the Union was
26 Johnson testified that he was told only 5 or 6 employees were to receive the raises and
that more than that number of employees were in the affected classifications. According to
Gay, on the other hand, the increases were to apply to all men in the classifications rather
than to specific individuals but that there were only 5 to 6 men in the classifications covered.
27 We credit the testimony of Johnson as to the incidents and statements of the August 7
meeting as related above. Gay did not, in the main, controvert this testimony and either
did not deny the statements attributed to him or admitted making them in substance.
28McNamar substantially confirmed Johnson's testimony concerning this incident although
he testified that, in reality, the offer was merely a remark made to him by a friend.
VULCAN STEEL TANK CORPORATION 1291
threatening the Respondent , the union representatives left. The
charges in the instant case were thereafter filed on September
26, 1951.
j. The meeting of November 19
On November 14, Johnson wrote McKelvey asking for another
meeting, which was subsequently held on November 19. Johnson,
on this occasion, submitted a contract draft which he thought
incorporated the prior discussion results and which McNamar
said he would look over . This contract draft was basically the
same in content as the last previous draft submitted by the
Respondent and discussed at the May 9 meeting . The contracts
differed , however, in a number of minor matters, as well as
with respect to the union - security clause and the termination
provisions . The union - security clause in the draft submitted by
the Union on November 19 provided that "All present em-
ployees of the Company covered by this agreement be [come]
members of the Union and in good standing " while the previous
draft of the Respondent had provided that "All present
employees [ are] to be accepted by the Union within thirty days
from the signing of this contract , at regular membership rates
and dues, without penalty ." The termination clause of the union
draft of November 19, unlike that of the previous draft of the
Respondent , provided that the wage agreement would be retro-
active to a date to be selected by the parties . The union draft
also omitted the clauses on seniority and classifications con-
tained in the Respondent proposal of May 9.29
On November 27, McNamar informed the Union by mail that
the draft submitted by Johnson was unsatisfactory because of
`numerous changes , omissions and additions differing from the
general text of the provisions which were under discussion at
all previous conferences ." The letter also stated that the
Respondent would prepare a written counterproposal and sub-
mit it at the next meeting . Johnson replied by letter that he had
left out some of the "originally agreed upon contract" in an
attempt to compromise with the Respondent ' s wishes . Johnson
added, "If you wish that we rewrite the contract as your com-
pany presented and the employees of your plant accepted, then
we are in accord ." To this the Respondent replied that it
would advise the Union and arrange for a meeting when its
counterproposal was prepared . On December 10, Johnson wrote
Respondent to acknowledge receipt of this note and added,
"Now, Mr. McNamar, we agreed to accept the first proposed
contract that you presented which has been some months back.
We will certainly be willing to study another proposal from
you. If you are interested in a contract that will be satisfactory
to all parties concerned why not just sign the already agreed
29Despite this omission , there is no evidence at any point in the record which would
indicate that either seniority or the classification system was ever a matter of controversy
between the two parties.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to contract ." On December 29, the Respondent wrote the
Union that its counterproposal was ready.
k. Final meetings between the parties
On January 2, 1952, Johnson and the shop committee were
given a copy of the Respondent ' s counterproposal by McNamar.
This draft was the last to be considered by the parties and,
like the Union' s November draft ,. was based to a large extent
upon the Respondent ' s proposal discussed in May 1951. In a
number of matters , however, the January 2 proposal differed
from the May document . The union - security clause of the
latter was deleted and , in its stead , the contract provided that
The Company recognizes the right of its employees to
be members of the Union, and it agrees that it will not
discriminate against , interfere with, restrain , or coerce
any employee because of his membership or non -member-
ship in the Union. No employee shall be required to join,
or remain a member of the Union.
The January draft also contained a termination date of March
30, 1952 , a date 3 months after its submission and the first
anniversary of the Union ' s certification . Previous drafts had
left the termination date blank . The draft also altered other
sections of the previous proposal including those on overtime
premium rate rules, work stoppages unauthorized by the Union,
composition and compensation of the shop committee, and
pro-rata pay for unused vacation time. These changes each
involved less favorable terms for the Union.
The discussion at the January 2 meeting was brief and
Johnson informed the Respondent that he would look over the
proposal . He testified , however, that he was immediately
aware the agreement was unsatisfactory . On January 14,
Johnson wrote McNamar requesting permission to circulate
in the shop "as did the attorney who recently circulated the
shop with a petition ." McKelvey replied , by mail, that he
could not give such permission for production reasons and
that "an attorney , employed by some of the men in this plant"
did come to the premises during a lunch hour when McKelvey,
Gay, and McNamar were not at the plant but that permission
had not been granted for such a visit . The letter stated,
however, that a visit during the lunch period might be allowed
and informed the Union that the Respondent would discuss this
or "any other appropriate subjects " with the Union on request.
On January 23 Johnson wrote stating that it was his under-
standing that the Respondent would contact the Union for
another meeting when McNamar returned from out of town. 30
No meeting , however, took place for the next 6 months.
30 McNamar, in his testimony , referred to being out of town shortly after the January 2
meeting He also made reference to a meeting being set for January 4, which was not held
for reasons undisclosed in the record.
VULCAN STEEL TANK CORPORATION 1293
On July 17, Charles Trepagnier, a district representative
of the Union, called McNamar and asked for a meeting. On the
following day, Trepagnier and another union representative
named Moulder, met with McNamar. According to Trepagnier,
after this meeting began with some general remarks, McNamar
asked him the purpose of his visit and added "If you are in
here to negotiate, I am not in a position to negotiate." When
asked why, McNamar cited the existence of a petition for
decertification, the fact that unfair labor practices charges
were pending and that he was "pretty well burned up" about
the latter. McNamar asked Trepagnier why the Union didn't
withdraw the charges and Trepagnier replied that if the
Respondent would negotiate a contract he would see that the
charges were withdrawn. McNamar rejected this stating that
the Respondent, because of the filing of the decertification
petition , had a moral obligation not to sign a contract when the
majority of the men did not want the Union. He added that the
decertification petition and the pending charges had prevented
sale of the plant with a hundred thousand dollars. si
At this same meeting Trepagnier also requested permission
to visit the employees during their lunch period but was
refused.5 Permission was granted , however, to post notices
of union meetings in the plant and two such notices were later
mailed to the Respondent and posted by it. The parties did
not, thereafter , meet again.
3. The wage increases
In February and early March 1951, the Respondent adjusted
the pay rates of some 34 employees. These adjustments took
the form of increases of from 5 to 25 cents in their hourly
rates with the average increase about 10 cents ari hour. The
Respondent testified that these adjustments were made in the
expectation of a wage freeze order by the Government, and
the bulk of the increases were made in the first 2 weeks of
February. In the period between the certification of the Union
as bargaining representative and the end of 1951, the Re-
spondent also made increases in the hourly rates of at least
25 employees with a number of these individuals receiving
several increases during this period . These increases also
averaged approximately 10 cents an hour. Witnesses for the
31 This account of the meeting of July 17 is based on the credited testimony of Trepagnier
who gave a detailed, consistent, and convincing description thereof. McNamar's account of
the same meeting agreed, in general, .with that of Trepagnier. McNamar admitted stating
that the Respondent had a moral obligation not to execute a contract with the Union but
testified that he told Trepagnier that he would meet with the Union nonetheless. McNamar
was not called, in rebuttal, to deny or confirm the statement he was quoted as making
concerning the $100,000 loss at this meeting. On the whole, we find McNamar's testimony
to be vague and inconsistent as to this meeting and we shall, accordingly, credit that of
Trepagnier where they are in conflict.
32 Trepagnier testified that the requests for permission to meet in the plant and to post
notices were made at the July 17 meeting. McNamar testified that they occurred at a sepa-
rate meeting sometime thereafter. We credit Trepagnier.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent testified at the hearing that each of these increases
in pay represented either a promotion to a higher grade in the
Respondent's classification scheme, a promotion to fill a
vacancy in a higher classification, or to compensate for
additional duties where jobs were combined as a result of the
manpower shortage. Gay, who made the initial recommenda-
tions for these increases subject to the approval of McKelvey,
testified that after the election of the Union and until negotia-
tions broke down, he consulted with one of the members of the
shop committee prior to making any of the increases , but that
none of the individual raises was presented to Johnson for
approval. Gay further testified that the Respondent' s personnel
turnover was extremely high with approximately 100 individ-
uals being employed at the plant during 1951 to maintain an
average monthly work force of 40 employees. This turnover,
according to Gay, necessitated a continual inplant training
program with continual movements between classifications.
4. The Christmas bonus
In the week of December 21, 1951, the Respondent distrib-
uted a Christmas bonus to its employees amounting to the
equivalent of 80 hours pay for each employee without dif-
ferentiation as to length of service. Proportionate gifts were
made to office clerical employees. The Respondent has
awarded a Christmas bonus of varying amounts each year
since its establishment in 1927. In 1951, the bonus was first
considered by the Respondent's officers in September although
final determination as to the amounts to be distributed was
not made until shortly before Christmas. The Union was not
informed as to the bonus or its computation and made no
request to bargain concerning it either before or after its
distribution.
B. Contentions and concluding findings
The General Counsel contends that the Respondent violated
Section 8 (a) (5) of the Act by refusing to bargain in good faith
with the Union following the latter's certification as bargaining
representative of these employees. Specifically, the General
Counsel asserts that the Respondent violated the Act by (1)
rejection of the union-security clause on August 7 and there-
after, in direct reversal of the Respondent's prior position;
(2) unilateral wage increases to individual employees during
the course of negotiations; (3) refusal to submit requested data
to the Union on the wage increases ; (4) unilateral granting of
the Christmas bonus; and (5) evasion of good-faith bargaining
by use of a negotiator, Gay, with insufficient authority to
bargain. The Respondent denies that its conduct during the
negotiations or in any of the specified instances constituted a
refusal to bargain collectively.
It is clear from the foregoing recital of the facts in this
case, and we find, that the Respondent violated the Act by
refusal to bargain in good faith on August 7 and thereafter.
VULCAN STEEL TANK CORPORATION 1295
The parties, in their initial negotiations , succeeded in reaching
agreement , except for minor details, on all portions of the
proposed contract except for wages, classifications, and
seniority provisions. No controversy was thereafter raised as
to seniority or classifications. The Union, during the negotia-
tions, adopted the classification system in existence at the
plant and raised no objections to the senority proposals con-
tained in the Respondent's counterproposals. On August 7, the
Union stated that it would accept the Respondent's limited
wage proposal if the Respondent would then sign a contract.
On that date, accordingly, no issue remained on which agree-
ment had not been reached previously. It was at this point,
however, that the Respondent, because of doubts as to the
Union's retention of membership and in flat contradiction of
its prior stand, introduced abandonment of the union-security
clause as a condition precedent to its acceptance of the agree-
ment. On that issue the bargaining foundered.
Prior to the receipt of information by the Respondent in
June that the Union was losing strength in the plant, no diffi-
culty had arisen as to what form the union-security provisions
of the contract should take. The original union proposal had
been modified by the Respondent in its counterproposals and
the parties agreed upon a version apparently satisfactory to
both. By May 9, it is admitted, substantial agreement had been
reached on that point subject only to minor alterations. On
August 7, however, without any prior indication to the Union,
the Respondent abruptly and completely reversed its stand
and made acceptance of an open-shop clause the sine qua non
for acceptance of an agreement , On September 21, the Re-
spondent amplified and reinforced this position in the meeting
of that date with the Union. Thereafter, the Respondent further
retreated from its previous proposals despite the fact that
the Union, on several occasions , stated that they would accept
the contract as originally proposed by the Respondent in May.
The Respondent, of course, was entitled to take any position
in negotiations with the Union with respect to the inclusion or
exclusion of lawful union-security provisions. The vice of its
actions in the instant situation is not that the Respondent
opposed the inclusion of suchprovisionsbutthatthe Respondent
made an abrupt change of position on that subject grounded on
the conclusion that the Union had commenced losing its
membership and could thus be successfully removed from the
plant. The Respondent's president summarized the situation
accurately when he stated, in his testimony, that the "real
reason" no agreement was reached thereafter was because of
the "changed conditions" in the shop, i.e., the growing
defection from the union membership. As is clear from other
statements of the Respondent's president, the Respondent
viewed the presence of the Union as a matter of possible
financial loss . Once in possession of information showing the
possibility of removal of the certified representative, the
Respondent, although it had previously accepted a union-
security provision of its own free will, changed its position.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the entire record, that the Respondent
made this reversal of position with the intent of encouraging
the dissipation of support for the Union among its employees
by effectively preventing the signing of a contract . The success
of the maneuver was complete and the negotiations which, up
to this time, had been successful thereafter foundered.
The Respondent asserts, however, that its change of position
was influenced and based upon the fact that the Labor Manage-
ment Relations Act was to be amended , at that time , to delete
requirement of an election as precedent to establishment of
a union shop . This amendment , of course , did not become law
until October 22, 1951, a date considerably after the August 7
reversal of position . 33 Moreover , the record is devoid of any
indication that this factor actively influenced the Respondent's
negotiations during this period.
The Respondent ' s refusal to sign a contract incorporating
the previously agreed upon union-security provisions was
followed by other actions of the Respondent also constituting
failure to bargain in good faith . On January 2, 1952, the
Respondent limited the term of any contract which it would
sign to a period ending on the first anniversary of the Union's
certification . It is clear from the record that this action was
in accord with, and subject to the same motivation, as the
August 7 reversal of position, and was a further effort to
avoid performance of Respondent 's duty to bargain in good
faith with the certified representative during this period. 3t
Thereafter , in the July meeting with Trepagnier , the Respondent
discarded any pretense of negotiations and declared flatly
that it would not sign a contract with the Union.
We find , accordingly, that the Respondent through its
reversal of position on union-security on August 7, its refusal
to sign a contract for a term longer than the certification year,
and its refusal to bargain expressed in July 1952, failed to
bargain in good faith with the Union as certified representative
of its employees and thereby violated Section 8 (a) (5) of the
Act.96
On the entire record , however, we do not believe that the
evidence substantiates a finding that the Respondent violated
Section 8 (a) (5) of the Act in the remaining specifications
urged by the General Counsel . We accept the Respondent's
contention , supported by evidence , that , because of the high
personnel turnover of the plant , a continuous inplant training
program was necessary which resulted in the periodical
promotion of a number of employees in the period in question.
Moreover, the advancement of these employees was, according
to the undenied testimony of Gay, preceded by consultation with
33See footnote 12, supra.
%Cf. The Hinde & Dauch Paper Company, 104 NLRB 847, where a majority of the Board
found that a refusal to sign a contract for a term longer than the certification year was not
a violation of the Act because of an absence of the intent to avoid good-faith bargaining
found to exist herein
35 See Atlanta Broadcasting Company , 90 NLRB 808, and cases cited therein.
VULCAN STEEL TANK CORPORATION 1297
members of the shop committee . Johnson, himself , during the
negotiations was aware of the fact that advancements had been
made by the Respondent , but took no action to negotiate there-
on. There is no evidence in the record to show that the
Respondent , in promoting these employees , did not conform to
its established wage rates . ' Nor do we believe that the record
supports a conclusion that the Respondent refused , in violation
of the Act, to submit requested wage data . The General Counsel
contends that this data was requested by Johnson with respect
to the inequities adjustments and that he was refused the data
by the Respondent . Johnson, however , admits that he was fur-
nished the names of the classifications concerned , and the
Respondent ' s average wage rates for its classifications. While
Johnson also testified that he was refused information as to the
names of individual concerned inthe adjustments , his testimony
as to this was confused and vague . Thirdly, as to the alleged
refusal to bargain concerning the Christmas bonus of 1951, we
do not believe that the preponderance of the evidence, on the
entire record , establishes in this respect a refusal to bargain
on the part of the Respondent.37
Finally, we do not believe that the evidence supports a find-
ing that the Respondent violated the Act by use of a negotiator,
Gay, with insufficient authority. While Gay was somewhat
ambiguous and evasive in his testimony as to the extent of his
authority , we find no indication here that the claimed lack of
any authority on his part played any role in the failure of the
Respondent to bargain in good faith. On the other hand, agree-
ment was reached on the specific issue, wage increases, on
which Gay was used as a negotiator . Although the Respondent's
reversal of its prior position on the union - security clause was
communicated to the Union through Gay at the August 7 meeting,
that action was not connected or concerned with any lack of
requisite authority to bargain on the part of Gay.
On the entire record , we find that the Respondent , since on
or about August 7, 1951, has refused to bargain collectively with
the Union as the exclusive bargaining representative of em-
ployees of the Respondent in an appropriate unit , in violation of
Section 8 (a) (5) of the Act, and has thereby interfered with,
restrained , and coerced employees in the exercise of their
statutory rights in violation of Section 8 (a) (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the Respondents set forth in
section III , above, occurring in connection with the operations of
the Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes bur-
dening or obstructing commerce and the free flow thereof.
96 We deny the General Counsel's motion to strike Respondent 's exhibits admitted into
evidence consisting of memoranda authorizing the individual raises Ruling on this motion
was reserved by the Trial Examiner at the conclusion of the hearing.
37 Cf. N. L. R. B. v. Niles-Bement-Pond Company, 199 F. 2d 713(C.A.2), enforcing
97 NLRB 165.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices , we shall order it to cease and desist
therefrom and to take certain affirmative action which will
effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the
entire record in this case , the Board makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers , Iron Ship
Builders and Helpers of America, Local 592, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Re-
spondent ' s Tulsa, Oklahoma, plant , excluding clerical em-
ployees, janitors , watchmen , and all other employees and
supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. International Brotherhood of Boilermakers , Iron Ship
Builders and Helpers of America, Local 592, AFL, was on
March 30, 1951, certified as, and has at all times thereafter
been , the exclusive representative of all employees in the
aforesaid unit for the purposes of collective bargaining , within
the meaning of Section 9 (a) of the Act.
4. By refusing on or about August 7, 1951 , and at all times
thereafter , to bargain collectively with International Brother-
hood of Boilermakers, Iron Ship Builders and Helpers of
America, Local 592, AFL, as the exclusive representative of
all employees in the aforesaid appropriate unit , the Respondent
has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining , and coercing its em-
ployees in the exercise of their rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices - affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
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, as amended, the National Labor Relations Board
hereby orders that the Respondent , Vulcan Steel Tank Corpora-
tion, Tulsa , Oklahoma, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Bortherhood of Boilermakers , Iron Ship Builders and Helpers
of America , Local 592, AFL, as the exclusive representative
of all production and maintenance employees at the Respondent's
VULCAN STEEL TANK CORPORATION 1299
Tulsa plant, excluding clerical employees, janitors, watchmen,
and all other employees and supervisors as defined in the Act.
(b) In any other manner interfering with the efforts of In-
ternational Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, Local 592, AFL, to negotiate for, or
to represent, the employees in the aforesaid bargaining unit as
their exclusive bargaining agent.
2. Take the following affirmative action; which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Brotherhood of Boilermakers, Iron Ship Builders and Helpers
of America, Local 592, AFL, as the exclusive representative
of the employees in the above-described unit, with respect to
rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its plant in Tulsa, Oklahoma, copies of the notice
attached hereto, marked "Appendix A." Copies of such notice,
to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by Respondent's repre-
sentative, be posted for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps Respondents have taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to proposed findings of fact , proposed conclusions
of law , and proposed order of the National Labor Relations
Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL bargain collectively with International
Brotherhood of Boilermakers , Iron Ship Builders and
Helpers of America, Local 592, AFL, as the exclusive
representative of all employees in the bargaining unit
described herein , with respect to wages, rates of pay,
hours of employment , and other conditions of employment
and, if an understanding is reached , embody such under-
standing in a signed agreement . The bargaining unit is:
All production and maintenance employees at our
Tulsa, Oklahoma, plant, excluding clerical employees,
janitors, watchmen, and all other employees and
supervisors as defined in the Act.
322615 0 - 54 - 83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in any acts in any manner in-
terfering with efforts of International Brotherhood of
Boilermakers , Iron Ship Builders and Helpers of America,
Local 592, AFL, to negotiate for, or represent , the em-
ployees in the bargaining unit described above.
VULCAN STEEL TANK CORPORATION,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced, or covered by any
other material..
NATIONAL FURNITURE MANUFACTURING COMPANY, INC.
and LOCAL 312, UNITED FURNITURE WORKERS OF
AMERICA, CIO. Case No . 35-RC-740. October 22, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION
OF RESULTS
On August 8, 1952 , pursuant to a Decision and Direction of
Election issued in this case ,' an election by secret ballot was
conducted , under the direction and supervision of the Regional
Director for the Ninth Region, among employees at the Em-
ployer's Evansville , Indiana, plants in the appropriate unit. z
Upon the completion of the election , the Regional Director
duly issued and served on the parties a tally of ballots, which
showed that , of approximately 213 eligible voters, 92 voted
for Petitioner , 107 voted against the Petitioner, and 9 ballots
were challenged . The challenged ballots were not sufficient
in number to affect the results of the election.
On August 13, 1952, the Petitioner filed 9 objections to
conduct affecting the results of the election . On February
11, 1953, the Regional Director issued his report on objec-
tions recommending that objection No. 3 be overruled and
that a hearing be ordered on all issues raised by the remain-
ing 6 objections . On March 9 , 1953, the Board issued an
order adopting these recommendations and directing that
the hearing officer designated for the purpose of conducting
the hearing prepare and cause to be served upon the parties
a report containing resolutions of credibility of witnesses,'
findings of fact, and recommendations to the Board as to
the disposition of the objections.
On April 8 and 9 , 1953, and pursuant to the order of the
Board, a hearing was held before Charles Y . Latimer,
hearing officer.
I Issued July 16, 1952. Not reported in printed volumes of Board Decisions.
2 The unit consists of all production and maintenance employees at the Employer' s plants
at Evansville, Indiana , including receiving room employees, shipping room employees,
truckdrivers, and watchmen- firemen, but excluding office and clerical employees, pro-
fessional employees, guards , and supervisors as defined in the Act.
106 NLRB No. 228.