Wagner Iron Works

National Labor Relations Board - Board Decisions

Jun 7, 1954

108 N.L.R.B. 1236 (N.L.R.B. 1954)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, transferred from the unit B list, voted in unit A
without challenge. The Petitioner admits that it was apprised
of this change in the eligibility lists by the Employer's attorney
on the evening before the election , and that no steps were
taken during the voting to challenge the ballots of the 12 em-
ployees.
The investigation discloses that the 12 employees added to
the maintenance list in unit A work under the supervision of
the general maintenance superintendent , and are stationed in
the craft shop where other maintenance employees included
in unit A are headquartered. Although these 12 employees
are classified as mechanics and mechanics' helpers on both
lists, 6 of them are truckdrivers working with and servicing
the maintenance group removed from central facilities and
which was included in unit A in our Decision and Direction
of Election . The other 6 employees in dispute are riggers,
bulldozer operators , and crane operators working in and with
the same general maintenance group.
We find that those 12 employees are part of the maintenance
group in unit A and therefore properly voted in that unit. In
accord with the Regional Director ' s recommendation, we
find that the Petitioner's objections are without merit and
they are hereby overruled.
As the Intervenor won the election in unit A and the Peti-
tioner won the election in unit B, we shall certify each of
them as the representative of the employees in units A and
B, respectively.
[The Board certified the Oil Workers International Union,
CIO, as the designated collective -bargaining representative
of the employees at the Employer' s operations at the Atomic
Energy Project near Arco, Idaho, in unit A, heretofore found
appropriate, and the Eastern Idaho Metal Trades Council,
AFL, as the designated collective-bargaining representative of
the employees at the Employer's operations at the Atomic
Energy Project near Arco, Idaho, in unit B, heretofore found
appropriate.]
WAGNER IRON WORKS, a corporation and INTERNATIONAL
UNION, UNITED AUTOMOBILE AIRCRAFT AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, CIO
WAGNER IRON WORKS, a corporation and INTERNATIONAL
UNION, UNITED AUTOMOBILE AIRCRAFT AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, CIO and
BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS
SHOPMEN'S LOCAL 471 (AFL), Party to the Contract and
THE "TEMPORARY COMMITTEE," Interested Party and
THE EMPLOYEE'S INDEPENDENT UNION OF WAGNER
IRON WORKS, Interested Party
108 NLRB No. 173.
WAGNER IRON WORKS 1237
BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS
SHOPMEN'S LOCAL 471 (AFL), a labor organization and
INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS
AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Cases Nos. 13-CA-849, 13-CA-864, and
13-CB-148. June 7, 1954
ORDER DENYING PETITION FOR RECONSIDERATION
On April 28, 1953, the National Labor Relations Board
issued its Decision and Order in this proceeding,' finding
that the Respondent, Wagner Iron Works, violated Section
8 (a) (1), (2 ), and (3) of the Act. More specifically, the Board
found that the Respondent engaged in various acts of inter-
ference, including threats, bribes, surveillance, andinterroga-
tion, assisted the AFL in an AFL-CIO rivalry situation, laid
off 22 employees, and discharged 4 employees to discourage
activity on behalf of the CIO. The Board further found that the
Respondent unlawfully discharged and refused to reinstate 57
employees who participated in an unfair labor practice strike.
In connection with the last-mentioned finding, the Board
rejected the Respondent's defense that the strike was in breach
of a contract containing a no-strike clause and that the strikers
had lost their employee status because the strike took place
under circumstances which did not meet the requirements of
Section 8 (d) of the Act. In so doing, the Board held, among
other things not pertinent now, that such defenses were not
available to an employer where he provoked the strike by
his own flagrant unfair labor practices.
Thereafter, on June 25, 1953, the Respondent filed a "Motion
to Reopen Record and to Remand Proceedings to Trial
Examiner," with respect to 2 employees found in the Board's
decision to have been discharged on May 26, 1951, not for
drunkenness as alleged by the Respondent, but for union ac-
tivities. In that motion, the Respondent sought to show that
1 of the 2 employees had a long police record of convictions
on charges of drunkenness, the last conviction having occurred
on February 18, 1951, and that the other employee was con-
victed on a charge of drunkenness on August 9, 1951. The
motion did not attack any other portion of the Board's Decision
and Order.
On August 10, 1953, the Board denied the Respondent's
motion to reopen the record on the stated grounds (1) that the
employees' convictions for drunkenness on other remote
occasions had little, if any, probative weight to establish their
condition at or about the time of their discharge; and (2) that,
in any event, the Board's original decision was based on the
finding that the two employees were discharged because of
their CIO activity and not because of their condition as to
1104 NLRB 445
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sobriety, whatever it might have been at the time of their
discharge.2
On March 29, 1954, approximately 11 months after issuance
of the Board's Decision and Order in this case, the Respondent
filed its "Petition for Reconsideration and Reversal of Board's
Decision of April 28, 1953." 6 The General Counsel and the
UAW-CIO, the charging Union in this case, object to the grant-
ing of the Respondent's petition on certain procedural grounds. `
In its petition, the Respondent contends, principally, that
the Board ' s Decision is erroneous because it conflicts with a
recent opinion of the Court of Appeals for the Eighth Circuit
in Local 3, United Packinghouse Workers of America v.
N. L. R. B.;5'and, the Respondent urges the Board, in view of
the changed composition of the membership of the Board since
issuance of the decision in this case, to reconsider the decision
and set aside its order.
In the United Packinghouse Workers case, the court held
that economic strikers lost their status as employees by
engaging in a strike before the expiration date of an existing
contract even though the strike did not occur until 60 days
after the giving of notice required by Section 8 (d) of the Act.
There, the employees struck to obtain a change in the con-
tract, the very situation Congress had in mind in enacting
Section 8 (d). Clearly, that case is not controlling here for,
among other things, unlike the situation in the United Packing-
house Workers case , the Respondent's unfair labor practices
caused the strike. The issue as to the applicability of Section
8 (d) to an unfair labor practice strike was not presented in
the United Packinghouse Workers case, and the court did not
pass upon that question.
For the reasons stated in Mastro Plastics Corp. and French-
American Reeds Manufacturino., Inc., 103 NLRB 511, the
Board, some time ago, decided that Section 8 (d) has no
applicability to an unfair labor practice strike.6 Since that
2 106 NLRB 675. In finding that the discharge of these 2 employees, who had attempted to
have other employees switch their allegiance from the AFL to the CIO, was discriminatory
although the 2 employees had lust concluded a 3-day tour of local taverns during their
campaign for CIO solicitation, the Board relied on the following factors: (1) It was not
uncommon for employees to report for work with liquor on their breath, (2) the 2 employees
were not sufficiently under the influence of liquor to affect the performance or quality of
their work or to suggest to their supervisors that they be sent home; (3) neither employee
had previously been warned of inebriation on the job; and (4) their supervisor subsequently
stated to them and to another employee that they were discharged because of their activity
on behalf of the CIO.
3 The Board now has pending, in the Court of Appeals for the Seventh Circuit, its petition
for enforcement of its Decision and Order in this case. However, the transcript of the Board
proceedings has not yet been certified to the court.
4In view of our decision herein, we need not and do not pass on the validity of the procedural
grounds urged by the General Counsel and the charging Union for denial of the petition.
5210 F. 2d 325.
6 The Mastro Plastics case is now before the Court of Appeals for the Second Circuit,
pending decision , on the Board' s petition for enforcement.
WAGNER IRON WORKS 1239
time the composition of the membership of the Board has
changed . But, changes in the membership of an agency do not
constitute a ground for reopening and reconsidering matters
previously adjudicated., The Board is an independent, con-
tinuing statutory agency of a quasi-judicial nature . The terms
of its members were arranged by Congress in a manner to
prevent any abrupt dislocation in the discharge of its func-
tions . The Board , like the courts , operates prospectively,
not retroactively . As Chairman Howrey stated , in delivering
the opinion of the Federal Trade Commission in the Chain
Institute case:
While the views of individual commissioners may differ,
each is like a member of the judiciary in the sense that
he customarily makes decisions on upcoming issues on a
case-by-case basis . A judge appointed to fill a vacancy
on the bench does not set about to reopen and retry pre-
viously adjudicated cases simply because he is a new
member.
The machinery of the quasi -judicial agency , like the
courts, contemplates a continuing process; it looks to
current litigation , not past litigation . If our procedures
were otherwise , delay and inaction would surround en-
forcement of the statutes committed to the Commission's
jurisdiction . To grant the present motion would be to
require a third review of a voluminous record made
many years ago.
The principal question presented by the motion, as we
see it, is whether the Commission , in prescribing a
remedy ... can require respondents [ etc.] .. This is
an important question and if it were not for the over-
riding considerations already stated, the motion might be
well grounded. However , since the question of the remedy
is one of law , the respondents will notbe prejudiced. They
will, we are certain , receive a full hearing on this ques-
tion in the court of appeals.
We think that these considerations , in substance , apply with
equal force in the instant case. For the reasons indicated,
this Board will not entertain any request for reconsideration
of Board action based solely on the ground of a change in
composition of the Agency ' s membership.
The Respondent also asserts in its petition that Board
personnel , who participated in this case in the field, engaged
in "outrageous conduct"; that the Trial Examiner refused to
permit proof of such misconduct ; and that such "misconduct
denied the Company due process of law." However, the Re-
spondent ' s petition does not specify the nature of the alleged
' Chain Institute , Inc., Federal Trade Commission , January 6, 1954.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misconduct and, we know of none. These allegations are not
borne out by the record in this case.
Finally, the Respondent asserts that "one of the trail[ sic]
examiners in this case later became an attorney for the
UAW-CIO--the very Union in this case in whose favor the
Order of April 28, 1953, was granted." Even if true, standing
alone, we see no reason why this affords a basis for recon-
sideration of the case.
As portions of the Respondent's petition for reconsideration
raise no matter not previously considered by the Board and
the remainder is without merit, the petition is hereby denied.
Chairman Farmer, dissenting:
This is a motion for reconsideration in which one of the
parties contends that the issue of law, involving the construc-
tion of a section of the Act, was incorrectly decided. Although
enforcement proceedings have been instituted in the court of
appeals, the transcript of the Board proceedings has not yet
been certified to the court, and the motion therefore may law-
fully be considered by the Boardatthis time. Without consider-
ing the merits of the question of law raised by the motion, the
majority denies it as being without merit. I disagree with the
majority conclusion that the merits of the motion ought not be
considered.
I agree with my colleagues that changes in the membership
of this Board are insufficient ground for reopening and re-
considering cases previously adjudicated. I doubt that this
wholesome principle, however, can extend to issues involving
direct construction and interpretation of the statutory language
itself. Certainly, I agree that previous adjudications which
ought not be disturbed include such issues as question of fact,
sufficiency of evidence, or matters of Board policy, which
from time to time may be altered by the Board. But, I am
unable to go all the way with my colleagues although I appre-
ciate fully the reasons for their position. The difficulty is that
the Board's function does not end with the decision of a case.
If it did, I would be perfectly willing and in fact desirous of
allowing decisions to stand on their own merits in the review-
ing courts. But the Board also has the continuing responsibility
through the agency of the General Counsel to enforce its
decisions in the appellate courts, which places us in the
position of having to reaffirm, before the courts, legal inter-
pretations made by our predecessors in cases in which we
did not participate and therefore had no opportunity to con-
sider them or to form a considered judgment.
This places the Board in an awkard position vis a vis those
cases which were decided by our predecessors and are now
at the court enforcement stage . Ordinarily, I would not wish
to reconsider substantial issue questions already decided,
but where there are presented important questions of statu-
MILLS-MORRIS COMPANY 1241
tory interpretation , I feel that we cannot avoid the respon-
sibility.
There are important issues of law raised by the motion in
this case . As the majority has decided to deny this motion
without considering the legal questions raised , I find no occa-
sion here to express any opinion upon them . Indeed, I have
arrived at none . I hold only that it is proper for the Board
to consider those questions as raised by the motion at this
stage in this proceeding , and I would grant the motion to
that extent.
Member Murdock took no part in the consideration of the
above Order Denying Petition for Reconsideration.
MILLS-MORRIS COMPANY and RADIO AND TELEVISION
ENGINEERS LOCAL 1275, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL. Case No. 32-
CA-344. June 8, 1954
DECISION AND ORDER
On January 15, 1954, Trial Examiner Eugene E. Dixon issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices , and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter , the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing , and finds that no prejudicial error
was committed . The rulings are hereby affirmed. ' The Board
has considered the Intermediate Report ,' the exceptions and
briefs , and the entire record in this case , and hereby adopts
1 The Respondent excepted to the Trial Examiner's ruling permitting the General Counsel
to amend the complaint to allege that Foreman O'Kelly threatened employees on July 10,
1953, that the Respondent's plant would be closed down if the Union's organizational campaign
was successful. The Trial Examiner assured the Respondent that he would favorably consider
any request by the Respondent at the end of the hearing for additional time in order to pre-
pare to meet this allegation. No such request was made and the issue was fully litigated.
Under the circumstances, we find that the Respondent was not prejudiced by the Trial
Examiner's ruling. We shall therefore overrule this exception. See Coca-Cola Bottling Com-
pany of St. Louis, 95 NLRB 284.
2 The Intermediate Report contains certain inadvertences, none of which affects the Trial
Examiner's ultimate conclusions or our concurrence therein. Accordingly, we make the
following corrections: (a) page 1247, par. 3, the date "April 25" should read "April 27;"
(b) page 1250, par. 4, the date "April 23" should read "April 22."
108 NLRB No. 169.