McCann Steel Co., Inc.

McCANN STEEL COMPANY, INC. McCann Steel Company , Inc. and Shopmen's Local Union No. 733 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 26-CA-3557 July 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On April 14, 1970, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respon- dent filed exceptions, and the General Counsel filed cross-exceptions, to the Trial Examiner's Decision, and both filed supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the modifications noted below. We find, contrary to the Trial Examiner, that President Charles McCann's interrogation of em- ployees Charles Hale, Thomas Hale, and James Jones, 2 or 3 days before the election, as to why they wanted a union, constitutes unlawful conduct violative of Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Amend Conclusion of Law 3 by deleting the words "unilaterally granting" and substituting therefor the words "unilaterally reducing." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, McCann Steel Com- pany, Inc., Nashville, Tennessee, its officers, agents, 779 successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. [Amended Conclusion of Law incorrectly placed in the Order has been inserted above.] 2. Amend paragraph 1(a) by inserting after the words "union activity" the words "or why they want a union." 3. Amend the second indented paragraph of the notice attached to the Trial Examiner's Decision by inserting after the words " union meeting" the words "or why he wanted a union." i The Trial Examiner inadvertently stated that "The erection crew had rejected Local 492, Teamsters , in the election held December 19 and were unrepresented " In accord with the General Counsel 's exceptions , we cor- rect the statement by substituting for the name " Local 492, Teamsters" the correct name " Iron Workers Local 492, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO " In further accord with the General Counsel, and contrary to the Trial Examiner, we find that Supervisors Horace Carmack and Logan Hicks did receive Christ- mas bonuses in 1969 The Trial Examiner 's findings and conclusions are based , in large mea- sure, upon credibility resolutions , to which the Respondent has excepted It is the policy of the Board not to overrule the credibility determinations made by the Trial Examiner unless the record convinces us that they are contrary to the clear preponderance of all the relevant evidence After a careful review of the record , we conclude that the Trial Examiner's credi- bility findings are not contrary to the clear preponderance of all the rele- vant evidence Accordingly , we find no basis for disturbing those findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed January 10, 1970, by Shopmen's Local Union No. 733 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein the Union, against McCann Steel Company, Inc., herein the Respondent, the General Counsel issued complaint alleging Respondent vio- lated Section 8(a)(1), (3), and (5) of the Act. The Respondent's answer denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at Nashville, Tennessee, on March 3 and 4, 1970. The parties were granted leave to file briefs, which were received from the General Counsel and Respondent. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS 1. THE BUSINESS OF RESPONDENT Respondent is a corporation having its principal place of business at Nashville, Tennessee, where it is engaged in the fabrication and erection of struc- tural steel. During the past 12 months Respondent 184 NLRB No. 90 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sold and shipped products valued in excess of $50,000 to places outside the State of Tennessee. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Violations of Section 8(a)(1) The complaint alleges, in substance, that Respon- dent, through its officers and agents, (a) unlawfully interrogated its employees concerning their union activity, (b) threatened its employees with reduced wages if they selected the Union as their bargaining agent, (c) threatened it would make them work harder if they selected the Union, and (d) threatened them with loss of Christmas bonus if they selected the Union.' Ivey Smith, employed as a clerk by Respondent,2 testified that he shared an office with Logan Hicks, shop superintendent. Smith testified that about a week prior to the election he was in his office with Hicks when John McCann, chairman of the board of Respondent, made the remark that if the Union came in the employees would not get any Christmas bonus and that he would make it hard on them, "hard as hell on them." The remark was directed to Hicks but was heard by Smith. Smith testified that about 1 week after the elec- tion McCann was again in the office and told Hicks that salaries would be brought in accord with the union scale and that he was paying more than the union scale. Smith testified to another conversation, again in the shipping and receiving office, about 2 weeks be- fore the election, in which McCann asked Brady Kelly, a cleanup man, about his attendance at a union meeting and also asked him who else had at- tended. Kelly said he could not remember the names but that if he had a copy of the list of em- ployees (presumably the flower fund list) he could point them out. According to Smith, Kelly got the list and was starting to check off the names when he (Smith) was called to check a truck. Kelly was not called as a witness. Still another remark was overheard by Smith while he was working in his office. About 15 or 20 minutes after the election results were announced, Smith, testified that he heard Hicks tell Walther 'On July 10, 1969, the Union filed a petition for an election in Case 26-RC-3543 , in a unit of production and maintenance employees includ- ing truckdrivers The Union won the election held December 19 and on December 31 was duly certified 2 Smith acted as observer for the Respondent at the election and later served on the Union 's negotiating committee ' Testimony was received , over Respondent's objection , that on or about February 12, McCann prepared a notice to his employees (this notice was Cook, a mechanic, "there goes the Christmas bonus." Logan Hicks, called by Respondent, could recall no conversations in his office in which John Mc- Cann told him that if the Union got in there would be no Christmas bonus, the men would have to work harder, and their wages would be cut. Neither could he recall a statement made by McCann in the presence of Smith after the election in which Mc- Cann stated that the salaries of employees would be brought down to union scale.3 Consistently, Hicks could not recall that McCann asked Brady Kelly what employees had attended a union meeting, or that Kelly had procured a list of employees so that he could identify the employees who had attended. He denied that McCann had ever talked to him about the 1969 Christmas bonus or that he had ever told Ivy Smith or anyone else that there would be no Christmas bonus as a result of the election. Hicks did not impress me favorably as a witness. His denials were for the most part based on a professed lack of recollection, although the conver- sations took place only a few motnths before the hearing and were of sufficient importance to make a more lasting impression. McCann denied making either of the above comments to Hicks.4 I credit the testimony of Smith as to the remarks made by Mc- Cann and overheard by Smith. Charles Hale, Thomas Hale, and James Jones all testified to a conversation with Charles McCann, president of the Respondent and son of John Mc- Cann, which took place in McCann's office 2 or 3 days before the election. McCann, according to all three, asked them why they wanted a union. Ac- cording to Charles Hale, Thaxton Hale, who was also present, asked him why they should not want it. He further testified that McCann told them the selection of the Union could mean as much as 40 cents per hour to them. On cross-examination Hale testified that McCann told them that if the Com- pany negotiated with the Union and paid the union scale it might result in a wage reduction of 40 cents per hour. Thomas Hale testified that when they were called to McCann's office and asked why they wanted a Union, Thaxton Hale told McCann that his son Thomas had been mistreated by the Respondent. McCann then told them the other steel companies were paying less than the Respondent was paying and that a reduction to union scale could mean as much as 40 cents an hour. McCann, according to Thomas Hale, mentioned Englehart Engineering and Volunteer Structures as companies paying the union scale and paying less than Respondent was not offered , presumably because it was not available at the time of hearing) advising them their wages would be reduced to the union scale in the Nash- ville area The notice was posted by Hicks but never became effective The testimony was received to corraborate Smith's testimony ' McCann admitted, however, that he prepared the notice to employees advising them that their wages could or would be reduced to the union scale McCANN STEEL COMPANY, INC. 781 paying. While Hale testified that McCann men- tioned 40 cents an hour he did not understand what McCann meant. He did not, according to Hale, state the men's wages would be reduced. James Jones, a punch operator, was also present at the meeting. He testified that Thaxton Hale told McCann he thought the men needed a union and that his son had been mistreated. There was discus- sion of the flower fund (this was testified to by other witnesses) but Jones could recall no discus- sion of a 40-cent-per-hour pay differential. Charles McCann testified that at the meeting he told the employees if they did elect union represen- tation and Respondent bargained with the Union there was a good possibility that some of the people in the bargaining unit might have to accept cuts in their pay rates because the pay rates at some of Respondent's competitors in the area were lower under their contracts with the Union.5 B. Violations of Section 8(a)(3) and (5) The violations of Section 8(a)(3) and (5) relate solely to the Christmas bonus paid employees im- mediately prior to Christmas 1969, and immediate- ly following the election held December 19, 1969. I have already credited the testimony of Ivy Smith that he heard McCann remark to Hicks that the Christmas bonus would be eliminated if the em- ployees selected the Union and that he heard Hicks tell another employee, when the results were an- nounced, "There goes the Christmas bonus." These remarks establish, to my mind, that Respondent's motive in effecting any change in the bonus detri- mental to the interest of the employees was in retaliation for their selection of the Union as their bargaining agent. It was, therefore, discriminatory within the meaning of the Act. The Respondent's records with respect to the payment of a Christmas bonus for the years 1963 through 1969 (G.C. Exhs 3 and 4 ) have been at- tached hereto as Appendix A.6 These records in- dicate that members of the supervisory erection crew had been promised a bonus on an ever-in- creasing scale from 1964 through 1968. Only one of the three supervisors received a bonus in 1969. Of the five members of the erection crew only one had been employed in 1963 and he had received an increasing bonus each Christmas. Two members employed in October 1969 received token bonuses. The two other members received substantial bonuses ($150 and $100, respectively) but which were less than the bonuses paid them in 1968. Their bonuses do, however, reflect substantial in- creases from 1965. The erection crew had rejected Local 492, Teamsters, in the election held December 19 and were unrepresented. Of the ap- proximately 50 employees in the production unit, all employed for the full year received a bonus amounting to approxmately 1 day's pay. The others received either a $5 token or no bonus. The 1 day's bonus stands in sharp contrast to the bonuses of 1968 when all regularly employed employees received bonuses in excess of $100, and with the preceding years which showed bonuses in excess of $100 for 1967 and 1968. The general pattern shows a steadily increasing scale of payments since 1963. John McCann testified that toward the close of the year the Respondent figured on a lump sum basis what it could afford to pay the employees as a bonus. This sum was then split into individual pay- ments on the basis of individual earnings. McCann's explanation for the substantial reduction in the 1969 bonus is not free from ambiguity. Testifying that he took a percentage of Respondent's earnings for 1969 available for bonus it was his computation that it would amount to about 1 day's pay per em- ployee. As to the disparity in payment with that of the erection crew, McCann stated he paid them more because their work was outside work and time was lost due to weather. The decisional process was entirely McCann's and, apart from the fact that he received "figures" from Russell Nash, Respondent's secretary-treasurer, he alone made the decision.' McCann did not assert any claim that the Respondent could not afford to pay more than it paid in 1969. He did state that he took into con- sideration higher interest rates in the building in- dustry and that both building and employment were falling off. Profits for 1969 had not yet been com- puted but were estimated although no comparative figures for the estimate for 1969 as against 1968 were given.8 The date on which the Respondent decided to fix the bonus payment amounts for 1969 has not been fixed in the record but McCann testified that it was usually fixed about 1 week or 10 days prior to Christmas. Nash testified that the bonus checks were made out on the Saturday, the day after the election, and based on Smith's previously credited testimony I find that the decision as to the amounts to be paid was not made until after the results of the election were made known. "A great deal of testimony was taken with respect to rates paid by Volunteer, Englehart Steel, and Nashville Bridge Neither the union con- tracts nor the pay rates at these companies were introduced, so the testimony is inconclusive No finding has been made on the basis of this testimony e The testimony of James and John McCann establishes that Respondent had paid a Christmas bonus for some 25 years , although one year it amounted to only a ham ' Nash testified that the Christmas bonus for 1969 was computed on the basis of I day's pay, for 1968 it was based on 2-1/2 percent of the em- ployees's annual salary Asked to explain the reason for the difference in computation Nash could not He stated he was told by McCann in 1969 to pay I day's wages McCann did not give his reasons ' Nash testified that he could not explain why the bonus for 1969 was based on I day's pay whereas the bonus for 1968 was based on a percent- age of the annual salary of the employees He did not question nor did he participate in the decision 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions as to Section 8(a)(1) Violations Based on the credited testimony of Ivey Smith,9 I find that Respondent violated Section 8(a)(1) of the Act by McCann's statement, made in the presence of Smith, that if the Union came in the employees would not get any bonus and that he would make it hard on them. Again on Smith's testimony I find Respondent violated Section 8(a)(4) by interrogating Brady Kelly as to his at- tendance at a union meeting and by asking him to identify other employees who had attended.10 I would also find Hick's remarks to Cook, after the election, that the Christmas bonus was gone, another violation. It was a clear statement that the Respondent was exercising reprisal against the em- ployees for having selected the Union and, coupled with Respondent's reduction in the bonus, was coercive. Based on Charles McCann's own testimony, that he told the employees he called to the meeting held 2 or 3 days before the election, if they selected a union and Respondent had to bargain there was good possibility some of the people in the unit would have to accept cuts in pay, I find Respondent further violated Section 8(a)(1). This was more than a prediction as to "the precise effects unionization might have on his company." Here the prediction was not based on his belief as to "demonstrably probable consequences beyond his, control" but a clear statement that unionization would adversely affect the wage rates of certain employees and would be based not on union de- mands but on the Respondent's own response to the selection of the Union. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). I do not find it necessary to decide whether unlawful interrogation was also involved in this episode, since unlawful in- terrogation has already been found. D. Conclusions as to Section 8(3) and (5) Violations Seldom is a violation established by clearer evidence than that found here. I have already found that McCann threatened to abolish the Christmas bonus if the employees selected the Union and that Hicks remarked the bonus was gone as soon as the election results were announced. This testimony has been disputed but there is no dispute concern- ing' the Respondent's own figures establishing a drastic cut in the bonus in 1969. The cut is so drastic compared with the immediately preceding years that it closely approaches elimination. While John McCann testified that the bonus was related to profits he gave no basis for the relationship' between profits and bonus and no formula for com- putation if, in fact, any formula existed. McCann did state that he was not claiming Respondent could not afford to pay a bonus and that at the time it was granted he did not know what Respondent's profits would be. This leaves Respondent's defense to action so presumptively discriminatory that it might well be classified as threadbare. Despite Mc- Cann's own ambiguous testimony that the bonus might have been determined before the election results were known (Nash was equally ambiguous) there is evidence to support the far more probable conclusion that decision was reached on the day after the election, the day the checks were made out. It could be that the decision to grant only 1 day's pay if the Union won the election was made prior to the election but this would serve Respon- dent's cause no better. The facts require no further exposition. By reducing the Christmas bonus in 1969 because its employees in the bargaining unit selected the Union as their bargaining representative, Respondent dis- criminated against them in violation of Section 8(a)(3) and (1) of the Act, and by taking such ac- tion without notice to or consultation with the Union, Respondent violated Section 8(a)(5) and (1) of the Act.it IV. THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist from the same and take certain affirmative action necessary to ef- fectuate the policies of the Act. ,Haying found that the Respondent reduced its bonus payments for 1969 for discrimatory reasons and that it made such reductions without notice to or consultation with the Union, it is recommended that Respondent bargain with the Union concerning such payments and make its employees whole for any loss they may have suffered by reason of said reduction in payments. If Respondent and the Union cannot agree on the amount of such pay- ments it shall be left to the compliance stage of these proceedings to determine such amounts or, if agreement cannot there be reached, to a backpay proceeding. Interest on such amounts found due shall be fixed at 6 percent per annum from December 24, 1969. Upon the above findings and conclusions and upon the entire record in this case, I make the fol- lowing: 9 This resolution of credibility is based largely on the impression made by Smith on the stand as contrasted with the demeanor of McCann and Hicks It is fortified , to some extent , by the fact that at the time of the hearing Smith was still in Respondent 's employ and was testifying adversely to the interests of his employer 10 Brady Kelly, the key witness to this incident, was not called by either party, although the record does not reveal that he was unavailable This leaves the General Counsel in no worse position, as to inferences to be drawn, than Respondent [i I know of no case to support Respondent 's theory, if that is its theory, that Respondent was free to take unilateral action with respect to mandato- ry subjects of collective bargaining between the day of the election and the date of certification McCANN STEEL COMPANY, INC. 783 CONCLUSIONS OF LAW 1. By threatening its employees that if they selected the Union as their bargaining representa- tive they would not get any Christmas bonus, would suffer a possible reduction in wages, and would have to work harder; and by asking an employee if he had attended a union meeting and to identify the employees who had attended a union meeting, Respondent violated Section 8(a)(1) of the Act. 2. By reducing the amounts of the Christmas bonuses paid its employees in 1969 because they had selected the Union as their bargaining agent Respondent discriminated against its employees to discourage membership in violation of Section 8(a)(3) and (1) of the Act. 3. -By unilaterally granting a Christmas bonus and reducing the amounts paid its employees without notice to or consultation with the Union selected as their collective-bargaining agent, Respondent violated Section 8(a)(5) and (1) of the Act. 4. The unit appropriate for the purposes of col- lective bargaining is: All production and maintenance employees and truckdrivers employed by Respondent at its Nashville, Tennessee, location, excluding office clerical, drafting and engineering em- ployees, watchmen, guards, and supervisors as defined in the Act, and field erection em- ployees. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby recommended that Respondent Mc- Cann Steel Company, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that if they selected the Union as their bargaining representa- tive they would not get any Christmas bonus, would suffer a possible reduction in wages, and would have to work harder, and from interrogating any employee as to his union activity and asking any employee to identify other employees who had at- tended a union meeting. (b) Reducing the sums of money paid as a Christ- mas bonus because its employees had selected the Union as their bargaining agent. (c) Unilaterally reducing the sums of money paid its employees as a Christmas bonus without notice to or consultation with the Union selected as the exclusive bargaining agent in the unit found ap- propriate herein. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Make its employees whole for any loss of pay they may have suffered by reason of the discrimina- tion practiced against them by reducing the Christ- mas bonus for 1969. (b) Upon request, bargain collectively with the Union respecting the amounts to be paid employees for their Christmas bonus for 1969. (c) Post at its plant at Nashville, Tennessee, co- pies of the attached notice marked "Appendix B".12 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by a duly authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. is It is further recommended that the complaint as to all matters not specifically found to be in viola- tion of the Act shall be dismissed. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that if they select Shopmen's Local Union No. 733, as their bargaining representative they will not get any Christmas bonus or that they would suffer any reduction in wages or have to work harder. WE WILL NOT ask any employee whether he attended a union meeting or ask any employee to tell us the names of other employees who at- tended. WE WILL NOT reduce the amount of any Christmas bonus because our employees have joined any union. 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "4 NLRB No 90 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT reduce or fix the amount of any Christmas bonus without bargaining with Shopmen 's Local Union No. 733 or any other union selected by them as their exclusive representative in an appropriate bargaining unit. The appropriate bargaining unit in this case is: All production and maintenance em- ployees and truckdrivers, employed by McCann Steel Company, Inc., at its Nash- ville, Tennessee , location , excluding office clerical, drafting, and engineering em- ployees, watchmen , guards, and super- visors as defined in the Act, and field erection employees. WE WILL make our employees whole for any loss of money they may have suffered because we reduced the 1969 Christmas bonus. Said sums shall draw interest at 6 percent per annum from December 24, 1969. WE WILL bargain with Shopmen 's Local Union No. 733 respecting the sums of money to be paid our employees for their 1969 Christ- mas bonus. MCCANN STEEL COMPANY, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office , 746 Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Telephone 9001-534-3161.