Paper, Calmenson and Co.

In the Matter Of PAPER, CALMENSON AND COMPANY and LODGE 1425, AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, THROUGH STEEL, WORKERS ORGANIZING COM- MITTEE, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-1425.-Decided August 14, 1940 Jurisdiction : scrap iron buying and selling industry. Unfair Labor Practices Dsscraminatzon • charges of, dismissed. Practice and Procedure : complaint dismissed. Mr. Lee Loevinger, for the Board. Doherty, Rumble, Butler, Sullivan ct Mitchell, by Mr. W. E. Rumble and Mr. Irving Clark, of St. Paul, Minn., for the respondent. Mr. Frederick R. Levinstone, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Lodge 1425, Amalgamated Association of Iron, Steel & Tin Workers of North America, through Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, herein called S. W. O. C., the National Labor Relations Board, herein called the Board, by Robert J. Wiener, Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its--complaint dated August 24, 1939, against Paper, Calmenson and Company, 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 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint, as amended, alleged in substance that on or about May 21, 1938, the respondent refused employment to 27 of its employees t because they joined the I The names of these employees are Gilbert Lindholm, R R Zech, Joseph A Lewandowski, Joseph S De Chambeau, Webster Harris, Anton Panyan, Tony Mistkowski, Mike Jamrock, George Samuels, Joseph Knezevich , Edward Nesgoda, Mike W. Kobus, Rudolph Oesterreich , Lawrence Westholm, Ray Nesgoda, Dick Marion, Fred Carlson, Waltei Norrell , Alex Le Blanc, Dave Holmberg, John Ness, Wallace Greiner, Roman Patrich, Arnie Johnson, John Groshel, Frank Leustek, and Stanley Lewandowski. 26 N. L. R. B., No. 59. 553 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and pro- tection, thereby discriminating in regard to their hire and tenure of employment and discouraging membership in the S. W. O. C.; and that by these and other acts the respondent interfered with, restrained,. and eoerced its' employees in' the exercise of the rights guaranteed in Section 7, of the Act. On September 5, 1939, the respondent filed its answer denying that it had engaged in any unfair labor practices within-the meaning-of the Act. Pursuant to notice a hearing was held in Duluth, Minnesota, on September 25 and 26, 1939, before Webster Powell, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. During the hearing counsel for the Board moved to dismiss the complaint in so far as it alleged that Lawrence Westholm, Fred Carlson, Walter Nor- rell, John Ness, and Roman Patrich were discriminated against. The motion was granted. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner, ruled on various motions and on objections to the admission of evidence. The Board.has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 8, 1940, after the :close of the hearing, the Board issued an order reopening the record and authorizing the Regional Director to conduct a further hearing for the purpose of allowing the International Longshoremen's Association, herein called the I. L. A., to file ran answer and introduce evidence relating to the issues. On May .1,7; .1940, the I. L: A. filed 'a notice waiving its right to file an answer. or to introduce evidence relating to the issues. The hearing ordered in the, afore-mentioned order of May 8, 1940, is therefore unnecessary and the record is hereby closed. On, November 16, 1939, the Trial Examiner filed an Intermediate Report,in which he granted the motion made by 'the respondent at the conclusion of the hearing to dismiss the complaint. . . The Trial Examiner also found that the respondent had not engaged in unfair labor,practices within the meaning of Section 8 (1) and (3) of-the Act and accordingly recommended ' that the complaint be dismissed. Thereafter the S. W. O. C. filed exceptions to the,Intermediate Report. The Board has considered the exceptions to the Intermediate Report and; except as they are consistent with the findings, conclusions, and order set,forth below, finds them to be without merit. Upon the entire record in the case the Board makes the following; PAPER, CALMENSON AND COMPANY FINDINGS OF FACT 555' t ^ t, t I. THE BUSINESS OF THE RESPONDENT Paper, Calmenson and Company, ' a Minnesota corporation, is engaged in the business of buying, preparing, sorting and selling scrap iron at St. Paul and Duluth, Minnesota. The respondent buys and ships to its Duluth plant approximately -125,000 gross tons, of scrap iron annually, approximately 60 per cent of which is purchased out- side the State of Minnesota. It normally ships approximately 125,- 000 • gross tons of scrap iron from its Duluth plant annually,' 95 • p'er cent of which is shipped to States other than the State of Minnesota: II. THE ORGANIZATIONS INVOLVED Lodge 1425, Amalgamated Association of Iron', Steel &' Tin Work- ers of North America, through Steel Workers Organizing 'Committee, affiliated with the Congress of Industrial Organizations," is a • labor organization admitting to membership hourly paid employees of the respondent. International Longshoremen's Association,: Local No., 1562',• Steel and Scrap Iron Employees of Paper, Calmenson and Company, is a labor organization affiliated with the American Federation of Labor, admitting to membership hourly paid employees of the respondent, III. THE UNFAIR LABOR PRACTICES , A. The alleged discriminatory refusal to'rein* state During the latter part of November and-early December 1937, the respondent laid off most of its employees, including the complainants, because of the normal slack season in its business. Shortly afterward the S. W. O. C. and the respondent entered into negotiations looking toward the renewal of a contract between the parties which expired,, on March 1,, 1938. The negotiations • reached, an impasse early, in , March and members of the S. W. O. •C. commenced picketing the respondent's Duluth plant in an attempt to force the,respondent to, enter into a new contract. During the period of the picketing and while the plant was still closed, representatives of the I. L. A: pre sented to the respondent signed authorizations of a majority-of the respondent's employees authorizing I. L. A. to act as exclusive bar- gaining representative in the respondent's Duluth plant. On May 10, 1938, the respondent executed a contract with the I. L. A. recog- nizing the I. L. A. as the exclusive representative of all the employees - in the respondent's Duluth plant. The agreement provided that, in the event of a lay-off, men having the least seniority should be laid off first and that upon resumption of business activity'those men having 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the greatest seniority should be reemployed first. It further provided in Section 10 that * * * If a laid-off employee does not report for work at the time specified in such notice, another may be called temporarily in his stead, if such laid-off employee does not report for work with- in three (3) days after recalled as above stated . The Grievance Committee acting jointly with the Company shall determine whether or not he shall retain any seniority rights or whether his connection with the Company ' shall be considered terminated. On May 10, the same day the contract was executed , the respondent sent to its employees having the greatest seniority , letters reading substantially as follows: Dear Sir: On receipt of this letter please report to Dr. N. J. Braverman, 400 New Jersey Bldg., Duluth for physical examination. After examination you are to report for work. This is in line with your seniority standing . Failure ' to report to this office by person, phone or letter, later than May 14th, 1938 will mean loss of all seniority standings in this company. At the time that the letters were received the S. W. O. C. was still engaged in picketing the respondent's plant and the complainants, all of whom received letters from ' the respondent to report for work, were either engaged in picketing on behalf of the S. W. O. C. or refused to cross the 'picket line. On or about May 21, soon after the picket line had been withdrawn , substantially all of the complainants re- ported to the respondent's plant superintendent , Maurice Rose, requesting that they be reinstated . Rose advised them that before he could offer them reinstatement he would have to consult with' the I. L. A. Grievance Committee., the next morning when the men returned to ascertain the decision Rose informed them that he had discussed the matter of their reinstatement with the committee and that he could not offer them reinstatement because "it , stood as the letter read." 'Subsequent to the application by the complainants for reinstatement, the respondent rehired employees 'with less seniority than those who were refused reinstatement on May 21, 1938 . While, under the application of the contract by the respondent , the complain- ants lost all seniority standing, they were retained on the respondent's employee list and thus were entitled to employment before any new persons were hired. B. The conclusions with respect to the alleged discriminatory refusal to reinstate The first issue to be determined in this case is whether or not the respondent, aside from its right to replace strikers in order to continue PAPER, CALMENSON AND COMPANY 557 normal. business activities, may deprive strikers of 'certain rights as employees-in this case seniority rights-as a penalty for not reporting to, work during the course of a strike. If this, issue is determined in the negative, it, then becomes necessary to determine whether such action may assume legality when performed under the terms, of a contract between the respondent and a union representing a majority of its employees. With respect to the first issue, Section 13 of the Act provides that "Nothing in this Act shall be construed so as to interfere with, impede, or diminish in any way the right to strike," and Section 2 (3) defines the term "employee" as including "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and " who has . not obtained any other regular and substantially equivalent employment." It is clear that on May 12 the complainants herein were'engaged in a labor dispute with the respondent and that their failure to report for work thereafter constituted a strike. The Supreme Court of the United States, construing the above quoted provisions of the Act in National Labor Relations Board v. Mackay Radio & Telegraph Co.,' has stated: The plain meaning of the Act is that if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employees for the remedial purposes specified in the Act. The Court, after enunciating the principle that "an employer guilty of no act denounced by the statute, has . . the right to protect and continue his business by supplying places left vacant by strikers," declared that the strikers retained under the Act, the status of employees. Any such discrimination in putting them back to work (rein- stating striking employees but keeping out certain of them. for the sole reason that they had been active in the union) is, there- fore, prohibited by Section 8. It would seem, therefore, that although the respondent here had'a right to replace strikers in order to resume normal business activity, it had no right after the strike was terminated and the complainants applied for reinstatement on May 21, 1938, to discriminate against them by refusing to accord them seniority rights, otherwise accruing to them, for the reason that they had refused to return to work during the course of the strike, unless the contract with the I. L. A. afforded a proper basis for the respondent's action. 2 304 U. S 333, 334, rev'g 92 F. (2d) 761 (C. C. A. 9) and aff'g 1 N. L. R. B. 201. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • During, the course of the hearing, however, the Board attorney stated that: the contract, which has been received over the objection in -evidence, has not been attacked in the pleadings and both according to what I believe to be sound practice and Labor Board' practice and the decisions of the courts no attack can be made on the contract since it has not been attacked in the com- plaint and I may state that no attack is being made or is con- templated to be made upon this contract in this proceeding. Since the respondent relied upon the contract to justify its refusal 't'o ' reinstate the complainants, and the Board attorney has in effect withdrawn the contract as an issue in the case, we are precluded from determining the issues set forth above. We shall accordingly dismiss the complaint. IOil the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAw 1. The operations of the respondent, Paper, Calmenson and Com- pany, Duluth, Minnesota, occur in commerce within the meaning of Section 2 (6)' of the Act. 2. Lodge 1425, Amalgamated Association of Iron, Steel & Tin Workers of North America, through Steel Workers Organizing Com- mittee, and International Longshoremen's Association, Local No. 1562, Steel. and Scrap Iron Employees of Paper, Calmenson and Company, are labor organizations within the meaning of Section 2 (5) of the Act... , , 3. By refusing to reemploy Gilbert Lindholm,' R. R. Zech, Joseph A. Lewandowski, Joseph S. De Chambeau, Webster Harris, Anton Panyaii,'Tony Mistkowski; Mike Jamrock, George Samuels, Joseph Knezevich,' Edward Nesgoda, Mike W. Kobus, Rudolph Oesterreich, L'awrenc'e ' Westholin, Ray Nesgoda, Dick Marion, Fred Carlson, Walter Norrell, Alex Le Blanc, Dave Holmberg, John Ness, Wallace Grenier, Roman Patrich, Arnie Johnson, John' Groshel, Frank Leustek, and-Stanley Lewandowski,,the respondent has not discriminated in regard ,to hire or; tenure of employment or conditions of employment within, the meaning of Section 8 (3) of the Act. 4. The. respondent has not interfered with, restrained, or coerced its,employees in; the exercise of,the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. ORDER , , Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations PAPER, CALMENSON AND COMPANY 559 Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Paper, Calmenson and Company, Duluth, Minnesota, be and the same hereby is, dismissed. EDWIN S. SMITH, dissenting: I do not agree with the majority that the contract was withdrawn by,the Board attorney as an issue in this proceeding. , It, is not neces- sary for the contract to be attacked in the complaint since it is properly the subject of an affirmative defense. The Board attorney's statement on the record immediately followed a statement by the respondent's counsel that the I. L. A. represented a majority of the employees,at the time that the contract was executed. It would seem, :therefore; that the statement was designed to limit proof with respect'to the I. L. A. majority and to assure the respondent that no charge of,bad faith or support of the I. L. A. within the meaning of, Section 8 1(2) was being pressed by the Board. It is apparent from the respondent's brief that it was not misled in this. respect and that the respondent construed the statement of the Board attorney as a, mere ,withdrawal of the majority and support issues. Under the circumstances I would decide the case upon the merits and- would find that the respondent had violated the Act.