Steel Builders, Inc.

STEEL BUILDERS, INC. 405 Examiner believes and finds that Brooks and Butler were discriminatorily denied employment by Respondent Company, that Respondent Union caused Respondent Company to engage in said discriminations and that by said conduct Respondent Company violated Section 8(a)(3) and (1) of the Act and Respondent Union violated 8(b) (2) and (1) (A) of the Act. See Schenley Distillers, Inc., 112 NLRB 613. Ultimate Findings and Conclusions In summary, the Trial Examiner finds and concludes that: (1) by the afore- mentioned hiring-hall arrangement understanding or practice between Respondents, Respondent Company violated Section 8(a) (3) and (1) of the Act and Respondent Union violated Section 8(b) (2) and (1) (A) of the Act; (2) by conditioning employment upon clearance from Respondent Union and denying employment to Kenneth R. Brooks and Franklin C. Butler because they did not obtain such clearance, Respondent Company violated Section 8(a)(3) and (1) of the Act; (3) by denying clearance to Kenneth R. Brooks and Franklin C. Butler thereby causing Respondent Company to deny employment to Kenneth R. Brooks and Franklin C. Butler Respondent Union violated Section 8(b)(2) and (1)(A) of the Act; and (4) these unfair labor practices occurring in connection with the operation of the business involved herein 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. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of the Act, the Trial Examiner recommends that Respondents, to effectuate the policies of the Act, cease and desist therefrom and take the affirmative action herein- after specified. At the hearing in this matter the Trial Examiner dismissed allegations of the complaint to the effect that moneys had been unlawfully exacted. Thereafter, the Trial Examiner notified the parties that perhaps this ruling was in conflict with Local 138, International Union of Operating Engineers, AFL-CIO, etc., 123 NLRB 1393, and requested their comments concerning this matter. Counsel for the General Counsel asserts that the above-named case is controlling and that under that decision the aforementioned ruling should be reversed and that the Brown-Olds 8 remedy should be applied herein. Counsel for Respondent Company asserts that the ruling was appropriate when made, as there is no evidence that moneys were exacted, and that the Trial Examiner should adhere to the ruling. Counsel for Respondent Union takes the same position as counsel for Respondent Company and asserts further that under the decided cases a Brown-Olds remedy is not appropriate herein and that, in any event, the Trial Examiner cannot now reverse the ruling without reopening the hearing and affording Respondents an opportunity to adduce evidence that no moneys were exacted. On the basis of the case cited above and Gay Engineering Corporation, supra, the Trial Examiner hereby rejects the conten- tions of Respondents, reverses the ruling made and recommends the application of the Brown-Olds remedy to expunge the effect of the illegal conditions of employ- ment imposed upon employees of Respondent Company. [Recommendations omitted from publication.] 8 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (J. S. Brown-E. F. Olds Plumbing and Heating Corporation ), 115 NLRB 594, 597-602. Steel Builders, Inc. and United Steelworkers of America, AFL- CIO. Case No. 10-CA-3970. April 25, 1960 DECISION AND ORDER On September 16, 1959, Trial Examiner Ralph Winkler, issued his Intermediate Report in the above-entitled proceeding, finding that the 127 NLRB No. 59. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had not engaged in any unfair labor practices and rec- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a reply brief to the brief of the General Counsel in opposition to the exceptions of the General Counsel. 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 [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case,l and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] 1 The Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard on June 9, 1959, before the duly designated Trial Examiner in Columbus, Georgia, on complaint (dated March 19, 1959) of the General Counsel and answer of Steel Builders, Inc., herein called Respondent The issues were whether Respondent violated Section 8(a) (1) of the Act. Waiving oral argument, the General Counsel and Respondent have filed briefs. Upon the entire record 1 and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a Georgia corporation having its principal place of business at Columbus, Georgia, where it is engaged in the manufacture of steel products. Re- spondent's interstate purchases and sales during the past calendar year respectively exceeded $50,000. I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steel Workers of America, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In a letter received by Respondent President Willard Joy on January 5 or 6, 1959, the Union claimed to represent a majority of Respondent's employees and requested recognition. Joy testified in effect that this was his first information concerning the Union. During the morning of January 6, and after Joy had received the Union's letter, employee Reginald Batts requested and obtained an interview with Joy. Batts informed Joy that there was considerable unrest in the plant, that some 12- named employees who had signed union cards now desired to withdraw, and that 1 The transcript, page 25, line 3, is hereby ordered corrected to read "immaterial" rather than "material." STEEL BUILDERS, INC. 407 these employees had requested Batts to seek Joy's guidance respecting how to withdraw from the Union. Batts also told Joy that the employees desired Joy to talk to them regarding "the union, working conditions, seniority, and so forth." Joy agreed to address the employees later that day. During working time later that day (January 6) Joy accordingly convened and addressed all employees as follows: Men, I have been asked to talk with you today regarding the Union. I want it understood that I am here at your request. If this is not so, please say so now. I have a letter from the U.S. Steelworkers stating that a majority of you desire to be represented by them. You have appointed them as your agents. As long as they are your agents I cannot negotiate with you. The law provides this. If you do not now desire them to represent you, you may cancel or revoke your request for membership simply by writing United Steelworkers of America, 99 Merritts Avenue, N.E., Atlanta, Georgia. This may be done in a simple statement such as "Please cancel my request for membership" and sign it. A copy should be kept by you. I assure you that your problems are my problems. It is my desire that our company be run as a model company with fairness to all. I respect each of you as an individual; and as soon as I am free to talk with you regarding your problems, I will do so. You are the ones that will determine that. I leave this thought with you. Membership in the Union will cost you $60.00 a year. What will you get for it? As you know, we make Dixisteel Buildings for the Atlantic Steel Company of Atlanta. The Steelworkers have had them on strike since November-now about eight weeks. Due to our association with Atlantic, I feel that had you belonged to this Union two months ago you would have been on strike with them and therefore out of work. There is as yet no indication as to when they will return to work. There are approximately 1,200 steelworkers fabricating plants in this country representing about 200,000 employees. It is the stated intention to call these men out on strike sometime this summer so as to make the Union contracts coincide with those of the big steel producers, the mills that make the steel. All of you know how long the big national strikes can last. Consider if you will risk this chance of being called away from work for possibly a long period. I am not allowed by law to threaten you regarding the Union. I wouldn't do so if I could. I merely want you to have the full story before you act and it becomes too late to turn back. But as the law (Federal, State, County, City) prevents me from threatening you, the same law protects you from threats from each other. I know there have been some wild statements and threats made. I assure you I will not tolerate threats or violence. There is no place for that in America. Such tactics belong to Russia and China-not in a free America. You are responsible men and all that you desire honestly can be accomplished peacefully. If your desires are not accomplished peacefully, your gains will be even as those of a thief-and in the case of threats you may steal a man's soul. I will be glad to discuss your problems with you personally as an individual or as a group whenever you give me that privilege. If anyone has anything to say at this time or a question, please feel free to talk-I wish you good luck and peace of mind. In delivering this speech Joy paused after the first paragraph in order, he testified, to give employees an opportunity to object to the proceeding, which none did. On January 16, 1959, Respondent distributed to all personnel, except the clerical staff, a new application form with request that employees fill out and return the form. This form is a two-page document and contains questions, among other things, as to name, age, marital status, education, physical condition, military record, former employment, references, and the like. One of the items, and the only item under consideration, reads as follows: Activities other than religious (civic, athletic, fraternal, etc.) Exclude organizations, the name or character of which indicates the race, creed, color, or national origin of its members. A tabulation of all forms which were returned shows that 45 employees did not answer the mentioned question, 12 stated "none" in reply, 2 stated "American Legion," and 2 stated "baseball, hunting, and fishing." Eleven employees did not hand in their completed forms, and Respondent has never insisted that they do so. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent began revamping its operational and personnel procedures in 1958, long before any suggestion of organizational activities, and revision of application forms was merely one of a series of recommendations made to it by a firm of cost accountants in such connection. In August 1958 Respondent purchased the forms containing the disputed item; the parties agree that this particular form is in standard commercial use. Respondent distributed the new form among its clerical staff in or about August 1958, and did not get around to the other employees until January 16, as already indicated. Contentions and Conclusions The General Counsel contends that Joy's speech constituted unlawful inducement to withdraw from the Union and that the mentioned item on the application form constituted unlawful interrogation concerning union membership; the General Counsel further asserts, in effect, that the unlawful consequence of both incidents is heightened by their chronological relationship. Devoid, as this case is, of any coercion or promissory benefit or even the suggestion thereof which might result from employees' union membership or their failure to withdraw from such mem- bership, and absent a showing as I also find, that employees were required to disclose their union membership, I am unable to sustain the allegations of unfair labor practices made here. I accordingly conclude that Respondent has not violated Section &(a) (1) of the Act as alleged. [Recommendations omitted from publication.] Midwest Piping Co., Inc., The Fluor Corp ., and Leslie Miller, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, Local Union No. 185. Case No. AO-7. April 26, 1960 ADVISORY OPINION This case is before the Board upon a petition, pursuant to Section 102.98 of its Rules and Regulations, for an advisory opinion as to whether it would assert jurisdiction "over the matters involved" in a State court proceeding. That petition was filed by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (herein called United), its Local Union No. 185 (herein called Local 185), and Richard E. Skinner (herein called Skinner), the business representa- tive of said Local 185. All three collectively are referred to as petitioners. A. In substance, said petition alleges the following : 1. One Fred Gossett (herein called Gossett) brought an action against petitioners in the State District Court for a Judicial District of Nueces County, Texas, for damages resulting from conduct of petitioners depriving him "of his right to work at his trade" of pipe- fitter by discriminatorily refusing to send or refer him to jobs, and in causing him to be laid off on one job. Gossett complains that Skin- ner (a) "did not allow him to work on" a so-called Naval Air Station job and the Lon C. Hill job, and (b) caused him to be laid off from a job where he was employed by Fluor Corporation. 127 NLRB No. 60.