Scullin Steel Co.

National Labor Relations Board - Board Decisions

Feb 21, 1946

65 N.L.R.B. 1294 (N.L.R.B. 1946)

In the Matter of SCULLIN STEEL COMPANY and AMERICAN FEDERATION
OF LABOR AND ITS AFFILIATED INTERNATIONAL UNIONS
In the Matter of SCULLIN STEEL COMPANY and UNITED STEELWORKERS
OF AMERICA, DISTRICT 34, C. I. O.
Cases Nos. 14-C-856 and 144C-943, respectively. Decided February
21, 1946
Messrs. Keith W. Blinn and Hugh D. McNees, for the Board.
Messrs. James E. Garstang and George A. McNulty, of Carter, Bull
c>; Garstang, of St. Louis, Mo., for the respondent.
Mr. Joseph A. Padway, by [Messrs. I. B. Padway and Robert A.
Wilson, of Washington, D. C., and Mr. J. H. Skaggs, of St. Louis,
Mo., for the A. F. of L.
Messrs. Victor P. Harris, Blair Furman, and James Brown, of
St. Louis, Mo., and Mr. Frank Donner, of Washington, D. C., for
the C. 1. 0.
Mr: Robert W. Hall, of St. Louis, Mo., for the Independent.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TI IR CASE
Upon charges duly filed by American Federation of Labor and
its Affiliated International Unions, herein called the A. F. of L., in
Case No. 14-C-856, and by United Steelworkers of America, District
34, C. I. 0., herein called the C. I. 0., in Case No. 14-C-943, and pur-
suant to an Order Consolidating Cases, issued on October 11, 1944, by
the National Labor Relations Board, herein called the Board, the
Board, by its Regional Director for the Fourteenth Region (St. Louis,
Missouri), issued its complaint, dated October 13, 1944, against
Scullin Steel Company, St. Louis, Missouri, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1), (2), and (3) and Section 2 (6) and (7) of the National
65 N. L. R B., No. 219.
1294
SCULLIN STEEL COMPANY 1295
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, together with notice of consolidated hearing thereon,
were duly served upon the respondent, the A. F. of 1 ., the C. I. 0., and
Independent Steel Workers Organization, herein called the Inde-
pendent.
With respect to the unfair labor practices, the complaint, as amended
during the hearing, alleged in substance that : (1) the respondent,
in 1933, initiated, formed, and sponsored a labor organization known
as Scullin Employees Association, herein called the S. E. A., and there-
after, until in or about October 1937, dominated and interfered with
the administration of the S. E. A. and contributed support to it; (2)
in or about October 1937, the S. E. A. changed its name to, and con-
tinued to function as, 'Scullin Steel Company Employees' Mutual Aid
Association, Inc., herein called the M. A. A., which succeeded to the
S. E. A. without any line of fracture and with the active support and
assistance of the respondent and the officers, representatives, and
agents of the S. E. A.; (3) in or about September 1937, the respondent
fostered, encouraged, and interfered with the formation and adminis-
tration of the M. A. A., and thereafter, until in or about November
1941, dominated and interfered with the administration of the M. A. A.
and contributed financial and other support to it; (4) in or about
November 1941, the M. A. A. changed its name to, and continued to
function as, Independent Steel Workers Organization, herein called
the Independent, which succeeded to the M. A. A. without any line
of fracture and with the active support and assistance of the respondent
and the officers, representatives, and agents of the M. A. A.; (5) in or
about November 1941, the respondent fostered, encouraged, and inter-
fered -%3 ith the formation of the Independent, and thereafter domi-
nated and interfered with the administration of the Independent and
contributed financial and other support to it; (6) the respondent, since
July 5, 1935, has urged, persuaded, and warned its employees to join
or assist the S. E. A. and its successors, the M. A. A. and the Inde-
pendent, has threatened its employees with loss of employment if they
refused or failed to join or assist said organizations, has recognized
said organizations as the exclusive representatives of its employees
for the purposes of collective bargaining, has entered into collective
bargaining agreements with them relating to terms and conditions of
employment of its employees, and has deducted dues and assessments
from the wages of its employees on behalf of said organizations; (7)
on or about June 3, 1943, certain of the respondent's employees, listed
in Appendix A, attached hereto, ceased work concertedly and went
on strike, and on the same day the respondent discharged and there-
after refused or failed to reinstate said employees because they partici-
pated in the strike and engaged in concerted activities for the purposes
679100-46--vol 65-83
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or protection; (8) the
respondent dischai ged the following named employees on or about the
dates set opposite their names, because they joined and remained
members of the A. F. of L.:
Isom Houston, June 21, 1943.
Needham Whittaker, August 31, 1943.
Gennie Melton, September 10, 1943.
Modie Shaw, September 27, 1943.
(9) on or about June 23, 1943, the respondent discharged Wenzel
Hendricks, and thereafter refused or failed to reinstate him, because,
as a supervisor, he refused to discriminate against employees because
of their membership in or assistance to the A. F. of L.; (10) on or
about July 7, 1944, the respondent discharged Charles H. Starks, and
thereafter refused or failed to reinstate him, because of his activities
in opposition to the Independent; (11) on or about May 10, 1944, the
respondent demoted James Smith, and thereafter refused or failed to
reinstate him, because he refused to join, aid, or assist the Independent;
(12) on or about August 28, 1944, the respondent discharged James
Troupe, and thereafter, until August 29, 1944, refused or failed to
reinstate him, because he refused to join, aid, or assist the Independent ;
(13) the respondent, since July 5, 1935, has urged, persuaded, and
warned its employees to join or assist the S. E. A. and its successors,
the M. A. A. and the Independent, and not to become or remain mem-
bers of any outside labor organization, has threatened its employees
with discharge or other reprisals if they became or remained members
of the A. F. of L. or the C. I. 0., has made disparaging and derogatory
remarks to its employees about the A. F. of L. or the C. I. 0., and has
questioned its employees concerning the activities of employees on
behalf of the A. F. of L. or the C. I. 0.
Thereafter, the respondent filed its answer, in which it admitted
certain allegations of the complaint, but denied that it had engaged
in the unfair labor practices alleged,' and affirmatively alleged, inter
alia, by way of defense : (1) that all matters alleged in the complaint
concerning the S. E. A. and the M. A. A. had been fully adjudicated
and disposed of in Case No. 14-C-514, by stipulation of the parties,
order of the Board, and decree of the U. S. Circuit Court of Appeals
for the Eighth Circuit, dated February 14, 1942; and (2) that the
Independent had been certified by the Board as the exclusive bargain-
ing representative of the respondent's employees within an agreed unit
following a consent election conducted by the Board on April 30, 1942.
The Independent also filed an answer, in which it denied, in substance.
1 During the hearing, the answer was amended to deny that the respondent had engaged
in the additional unfair labor practices alleged in the amended complaint
SCULLIN STEEL COMPANY 1297
(1) that it had at any time changed its name or tha0it had any con-
nection with the M. A. A. or any other labor organization; and (2)
that the respondent has at any time dominated or interfered with its
formation or administration or contributed support to it.
Pursuant to notice duly served upon the parties, a hearing was 'held
in St. Louis, Missouri, from November 8 to 28, 1944, before C. W.
Whittemore, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondent, the A. F. of L., the C. I. 0.,
and the Independent were represented by counsel. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner granted a motion
of the Independent to intervene in the proceedings. Also at the open-
ing of the hearing, counsel for the respondent moved for the dismissal
of certain allegations of the complaint, urging as grounds for his
motion his contention that the refusal to reinstate the strikers named
in the complaint did not constitute an unfair labor practice, within
the meaning of the Act. The motion was denied.
At the close of the hearing, the Trial Examiner granted, without
objection, a motion of counsel for the Board that the complaint be
dismissed as to Isom Houston and Wenzel Hendricks. He also
granted a joint motion of the parties to conform the pleadings to the
proof in minor particulars. Ruling was reserved on a motion by
counsel for the respondent to dismiss the complaint in its entirety
and on a motion by counsel for the Independent to dismiss all allega-
tions relating to that organization; both motions were thereafter
denied by the Trial Examiner in his Intermediate Report. During the
course of the hearing, the Trial Examiner made rulings on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial error was committed. The rulings are hereby affirmed
except insofar as they are inconsistent with our findings of fact, con-
clusions of law, and order hereinafter set forth. At the close of the
hearing, counsel for all parties except the A. F. of L. argued orally
before the Trial Examiner.
Thereafter, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon the respondent, the Independ-
ent, the A. F. of L., and the C. I. 0. In the Intermediate Report, the
Trial Examiner found that the respondent had engaged in, and was
engaging in, unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), and (3) of the Act, and recommended
that it cease and desist therefrom and take certain affirmative action
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designed to effectuate the policies of the Act.2 Exceptions to the In-
termediate Report, and briefs in -support of the exceptions, were
thereafter filed by the respondent and the Independent.
Upon request of the parties, and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on July 31, 1945, for the
purpose of oral argument. The respondent, the Independent, the
A. F. of L., and the C. I. O. were represented by counsel and partici-
pated in the hearing.
The Board has considered the exceptions filed by the parties and,
insofar as they are inconsistent 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:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Scullin Steel Company is a Missouri corporation with its principal
office and place of business at St. Louis, Missouri. At its St. Louis
plant, it is engaged in the manufacture, sale, and distribution of under
carriages for railroad cars, steel castings, and other miscellaneous
products.
The principal raw materials used in the operation of its St. Louis
plant are natural gas, pig iron, scrap iron, ferromanganese, limestone,
and alloys essential to the production of steel. During the first 6
months of 1944, the respondent each month used raw materials val-
ued at more than $300,000, of which more than 50 percent was pur-
chased and shipped to its St. Louis plant from points outside Missouri.
During the same period, the respondent each month sold and distrib-
uted finished products valued at more than $700,000, of which more
than 70 percent was shipped to points outside Missouri.
The respondent concedes that its operations affect commerce within
the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
American Federation of Labor and its Affiliated International
Unions, United, Steelworkers of America; District No. 34, C. I. 0.,
and Independent Steel Workers Organization are labor organiza-
tions admitting to membership employees of the respondent at its
St. Louis plant. Scullin Employees Association and Scullin Steel
Company Employees' Mutual Aid Association, Inc., were labor or-
ganizations admitting to membership such employees.
2In the Intermediate Report, the Trial Examiner also ordered the transcript of the
hearing corrected in accordance with a stipulation of the parties, entered into after the
hearing, and made the stipulation a part of the record herein . The order is hereby
affirmed.
SCULLIN STEEL COMPANY
III. THE UNFAIR LABOR PRACTICES
1299
A. Alleged domination of and interference with the formation and
administration of the S. E. A., the H. A. A., and the Independents;
interference, restraint, and coercion
1. Scullin Employees Association
The S. E. A. was organized among the respondent's employees in
1933 on the basis of "Principles of Representation," drawn up by the
respondent's officials. Its purpose, according to this document, was
"to give the employees of the Company a voice in regard to the con-
ditions under which they labor." Employee representatives were
elected annually on company property and time. All employees on
the pay roll for 60 days were entitled to vote for representatives, but
only employees having at least 1 year's service with the respondent
Could become representatives. By the terms of the "principles" laid
down by the respondent, management was entitled to assist in the
elections. The representatives met on company time and property
and were paid by the respondent for time spent in meetings.
The S. E. A. collected no dues from its members, but received finan-
cial support from an industrial group insurance plan installed among
the employees in 1934, under the sponsorship of the S. E. A., by the
Benefit Association of Railway Employees, a Chicago insurance com-
pany, herein called the B. A. R. E. The master policy issued 'under
this plan named the respondent as the "assured" and the participating
employees as the "insured." The B. A. R. E. refunded to the S. E. A.,
for a welfare fund to be used for relief benefits for participants in
the plan, 10 percent of all premiums collected from the respondent's
employees. Such funds, deposited in the S. E. A.'s bank account,
constituted the only revenue received by the S. E. A. during its exist-
ence under that name, and were used in part to defray operating ex-
penses, including legal fees.
Henry Graf, who had been employed as a pattern maker by the
respondent for many years, was president and treasurer of the S. E. A.
from 1934 until a new organization, the M. A. A., became its admitted
successor in 1937. When the B. A. R. E. was installed, Graf was ap-
pointed its plant agent, a position which he still held at the time of the
hearing in these proceedings, and Charles Porter, secretary of the
S. E. A., was appointed deputy agent. In soliciting employee partici-
pation in the insurance plan, Porter and a Chicago representative of
the B. A. R. E. spent several weeks interviewing employees in the
plant during working hours. Graf and Porter each received 25 cents
from the B. A. R. E. for each new policy taken by employees.
s The insurance premiums were, and still are, deducted by the respondent from the
employees ' wages.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the latter part of 1936, after the passage of the Act, a local
of the Steel Workers Organizing Committee (C. 1.0.), herein called
the S. W. O. C.,4 began organizational efforts among the respondent's
employees, and by early 1937 had obtained a substantial membership
among them. On April 20, 1937, Graf requested in writing that the
respondent grant formal recognition to the S. E. A. as the "sole collec-
tive bargaining agents [sic] for the employees." The respondent's
president, in reply, suggested that in view of the recent Supreme
Court decision an election be conducted by the Board. A local at-
torney, Robert W. Hall, was thereupon retained by the S. E. A. for
the purpose of filing with the Board a petition for investigation and
certification of representatives. The petition was filed, but no elec-
tion was held, and the petition was subsequently withdrawn at the
request of the S. E. A.5 In May 1937, the respondent entered into a
tentative agreement with the S. W. O. C., recognizing it for its mem-
bers only. This agreement expired on February 23, 1938, and was
not thereafter renewed. The respondent never entered into formal
contractual relations with the S. E. A. and never granted it exclusive
bargaining recognition, but occasionally, from 1933 to 1937, represent-
atives of management and of the S. E. A. met to discuss conditions of
employment and grievances.
The S. E. A. was never formally disbanded, but in September 1937,
its officers and representatives began soliciting signatures on "de-
tached" pieces of paper, bearing no text. Such solicitation continued
for about a month, and the signatures were then submitted to the re-
spondent as evidence to support representation claims of a new or-
ganization, the M. A. A.
2. Mutual Aid Association
In October 1937, the M. A. A. was set up in accordance with a
constitution prepared by its attorney, Hall, who had previously been
attorney for the S. E. A., and who later became attorney for the In-
dependent. According to this constitution, the M. A. A. was formed
by the respondent's employees for the following purposes, among
others:
To form a mutual benefit association,
To bargain collectively through representatives of their own
choosing .. .
4 The S. W. O. C. was the predecessor of United Steelworkers of America, one of the
charging unions in the present proceedings.
5 From correspondence in evidence as part of a stipulation of the parties , it appears
that charges had been filed by the S. W. 0 C., alleging company domination of the S. E. A.
SCULLIN STEEL COMPANY 1301
The constitution also stated, "This Association shall be the successor
of the organization of employees heretofore existing." 6 [Italics
supplied.] Qualifications of representatives and voters, as set out in
the constitution, were the same as provided in the S. E. A. plan, pre-
viously installed by the respondent.
The first meeting of representatives of the M. A. A. was held on
October 28, 1937. Graf was immediately elected president and treas-
urer by acclamation, and continued in these offices throughout the
existence of the M. A. A., as he had in the S. E. A. He also continued
as the paid agent of the B. A. R. E. The M. A. A. took over the funds
of the S. E. A. by the simple procedure of having the latter's bank ac-
count changed in title. Shortly after its formation, the M. A. A.
was incorporated.
On November 5, 1937, the firm of accountants to which the re-
spondent had submitted the list of signatures which had been turned
over to it by the officers and representatives of the S. E. A. reported
to the respondent the result of its check of the signatures with the
names appearing on the respondent's pay roll. Although there is no
evidence as to what the employees intended to indicate by their signa-
tures on otherwise blank sheets of paper, and although the report stated
that all the signatures had been made before October 18, 10 days before
the first formal meeting of the M. A. A., the respondent, as set forth
below, later accepted the signatures as evidence of membership in the
M. A. A.
In February 1938, Hall formally sought recognition of the M. A. A.
by the respondent, claiming, as proof of majority representation, that
the signatures referred to above had been "signatures to the constitution
and bylaws of the employees who had joined this Association [the
M. A. A.]."
On April 1, the respondent replied to the effect that, while its tenta-
tive agreement with the S. W. O. C. had expired, and while "it appears
that your Association has as members the overwhelming majority of
the employees," it preferred not to grant recognition until the M. A. A.
was certified by the Board. In May, the M. A. A. filed with the Board
a petition for investigation and certification of representatives.?
Thereafter, although no election was held, and although the S. W. O. C.,
on July 1, 1938, filed charges alleging that the M. A. A. was company
dominated,8 the respondent, in October or November 1938, entered into
bargaining negotiations with the M. A. A., and in December entered
8 There is no evidence that any organization of employees except the S. E. A. had pre-
viously existed
7 Case No 14-R-87 On May 13, 1940, the petition was dismissed by the Board
8 Case No .' 14-C-204 . A request to withdraw the charges in this case was granted on
May 15, 1940.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a contract, by the terns of which it recognized the M. A. A. as
the exclusive bargaining agent for its production employees. Although
the respondent had previously expressed doubt as to the validity of
the accountants' report as the basis for granting recognition to the
M. A. A., the same list of employees served as the basis for such recog-
nition. The contract, which contained an automatic renewal clause,
appears to have continued in effect throughout the existence of the
M. A. A.
Thereafter, in October 1941, the S. W. O. C. filed amended charges
with the Board, alleging company domination of both the S. E. A.
and the M. A. A.. The Board issued a complaint and an amended
complaint. Pursuant to notice, a hearing was held on November 3
and 4, 1941; before a Trial Examiner. On November 15, before an
Intermediate Report had been issued, the parties entered into a stip-
ulation and agreement, by the terms of which the respondent agreed
to cease and desist from certain conduct and to take certain affirmative
action.e An order approving the stipulation was entered by the Board
9 This part of the settlement agreement reads as follows :
Respondent , Scullin Steel Company , its officers , agents , successors and 'assigns , shall :
1. Cease and desist from :
a Dominating or interfering in any manner with the administration of Scullin 'Steel
Company Employees ' Mutual Aid Association , or the formation or administration of any
other labor organization of its employees , or contributing financial or other support to the
Scullin Steel Company Employees ' Mutual Aid Association or to any other labor organ-
ization ;,
b Recognizing Scullin Steel Company Employees ' Mutual Aid Association as the rep-
resentative of any of its employees for the purpose of dealing with respondent concerning
grievances , labor disputes , wages, rates of pay, hours of employment , or other conditions
of employment ;
c. Giving effect to the contract entered into with Scullin Steel Company Employees'
Mutual Aid Association on December 19, 1938, or to any supplement , extension, or
renewal thereof ;
d Permitting the use of its facilities for the promotion and transaction of business of
mutual aid , welfare, or insurance societies or plans, in order to assist, encourage member-
ship in, or lend financial or other support to Scullin Steel Company Employees ' Mutual
Aid Association or to any other labor organization
2 Take the following affirmative action to effectuate the policies of the National Labor
Relations Act :
a. Withdraw all recognition from Scullin Steel Company Employees ' Mutual Aid Asso-
ciation as the representatives of any of its employees for the purpose of dealing with
respondent concerning grievances , labor disputes , wages, rates of pay, hours of employ-
ment, or other conditions of employment , and completely disestablish said labor organ-
ization as such representative ;
b Notify Scullin Steel Company Employees' Mutual Aid Association in writing that
the contract with respondent is void and of no effect , and that respondent 's facilities
shall not be used for the promotion and transaction of business of mutual aid, welfare
or insurance societies or plans in order to assist , encourage membership in, or lend finan-
cial or other support to Scullin Steel Company Employees ' Mutual Aid Association ;
c Post immediately upon the entry of this Order by the National Labor Relations
Board and maintain for a period of at least thirty ( 30) consecutive days from the date
of posting , in conspicuous places at respondent ' s plant at St. Louis , Missouri , notices
stating :
(1) That respondent will not engage in the conduct from which it is ordered to cease
and desist in 1 (a ) to (d) inclusive of this Order;
(2) That respondent will take the affirmative action set forth in 2 ' ( a) and (b) of
this Order ;
(3) That respondent 's employees are free to become or remain members of Steel
Workers Organizing Committee , Local No 1062 , affiliated with the C . I. 0., or any other
SCULLIN STEEL COMPANY 1303
on November 19, 1941. On December 11, 1941, the Board issued its
Decision and Order, embodying the stipulation and agreement 10 On
February 14, 1942, a decree was entered in the U. S. Circuit Court of
Appeals for the Eighth Circuit, enforcing the Order of the Board.
On November 21, the respondent served on the M. A. A. the written
notice required by the Board's Order, and on the following day, in
accordance with the same Order, posted notices in the plant. The
notices remained posted for the prescribed period of 30 days.
On Sunday afternoon, November 30, the M. A. A. held its final
meeting at the American Legion Hall, at which it was voted to donate
the funds in its treasury to a local hospital.
3. The Independent
(a) Formation , certification by the Board; contractual relations with
the respondent
Early in 1941, while the M. A. A. was still in existence , certain of
the respondent's employees, under the leadership of employee McDuff
McCrary, planned to forma new organization, the Independent 11 On
November 30, immediately after the meeting of the M. A. A., and in
the same hall, this group held its first formal meeting, which members
of the M. A. A., as they left their meeting, were invited to attend.
Officers were elected, none of whom, so far as the record shows, had
been officers of either the S. E. A. or the M. A. A. At the request of
McCrary, who acted as temporary chairman of the meeting, and was
elected vice president, Hall agreed to serve as attorney for the Inde-
pendent, as he had for the S. E. A. and the M. A. A. Graf, who had
been president of the S. E. A. and the M. A. A., was elected to mem-
bership on the Advisory Board of the Independent, and on the follow-
ing Sunday became chairman of that Board, an office which he con-
tinued to hold until he became president of the Independent in May
194412
labor organization of their own choosing and that respondent will not discriminate against
any employee because of membership in or activity on behalf of Steel Workers Organ-
izing Committee , Local No 1062, affiliated with the C . I. 0., or any other labor organiza-
titon of their own choosing.
i037 N. L. R. B. 473 (Case No. C-2010, 14-C-514).
"McCrary, although now a foreman, was not a supervisory employee in 1941. Accord-
ing to his uncontradicted testimony , which we credit , for some time before November,
he and other employees who were dissatisfied with conditions in the plant and the organ-
ization then in existence had discussed the formation of the Independent at meetings in
various houses , on the streets , and in automobiles . He denied having had any connec-
tion with the M. A A. and there is no evidence to the contrary. Employee Levert White
also testified that the organization of the Independent was begun in May or June 1941.
32 Although it appears that Graf knew that the Independent was planning to hold a
meeting on November 30, there is no evidence that he had taken any part in the prelimi-
nary discussions of that organization , nor do we find any support in the record for the
Trial Examiner 's finding that McCrary placed Graf in charge of the policies of the
Independent.
i304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, a constitution and bylaws for the new organization were
drawn up with Hall's assistance, and members were solicited. The
Independent unlike the M. A. A., was not incorporated, and there is
no evidence that M. A. A. funds were transferred to it.
On December 10, 1941, the respondent was advised by letter from
the Regional Director that the S. W. 0. C. had filed a charge alleging
company domination of the Independent. Thereafter, a Board
agent made some investigation of the charges, but on January 29, 1942,
the S. W. 0. C. requested their withdrawal 13 and filed a petition for
investigation and certification of representatives. On February 3,
a consent election agreement was entered into, pursuant to which an
election was held by the Board on February 12, with both the Inde-
pendent and the S. W. 0. C. on the ballot. The S. W. 0. C. thereafter
filed objections to the election. On April 20, the Regional Director
sustained the objections and ordered that another election be held on
April 30. Following the second election, in which only the Inde-
pendent appeared on the ballot,14 the Regional Director, on May 6,
issued his report finding that the Independent had been selected by a
majority of the employees in the agreed unit.15
Thereafter, following negotiations, the respondent and the Inde-
pendent entered into a contract covering wages and working condi-
tions, effective for 1 year beginning August 2, 1942. The contract
contained an automatic renewal clause, and was still in eff ect at the
time of the hearing.
In August 1944, the respondent began deducting Independent dues
from the wages of Independent members who signed voluntary
authorization cards for such deductions. According to the respond-
ent's president, this arrangement followed a request by the Inde-
pendent for such deductions.
(b) The respondent's opposition to outside unions; its interference
with and support of the Independent
Prior to the settlement agreement in November 1941, the respondent,
through its supervisory employees, clearly indicated its opposition to
outside labor organizations. Thus, the record shows, as the Trial
Examiner has found, that in the summer of 1941, while the M. A. A.
was still functioning, Foreman John M. Hofman warned Benjamin
Ricker, then an employee under Hofman's supervision,'G that he was
"sticking his neck out," explaining this remark by saying that he had
heard that Ricker was soliciting members for the C. I. 0., and when
'3 This request was subsequently granted, without prejudice.
14 The S W . 0 C , at its request , had been permitted to withdraw from the ballot.
w According to this report , 868 votes were cast for, and 285 against, the Independent.
30 Ricker left the respondent's employ in 1942.
SCULLIN STEEL COMPANY 1305
Ricker admitted being a C. I. O. member, told hinm, "I was figuring
on making a lead man out of you, but now you are shot"; 17 and late in
1941, Open Hearth Superintendent Daniel Murphy instructed em-
ployee Thomas Cooney to poll the employees on his shift as to whether
they would "stick with . . . the Mutual Aid or go for the C. I.0.,"
and after the end of the shift, went to Cooney's home to obtain the
result of the poll 18
On November 17, 1941, the respondent posted in its plant a notice
addressed "to all employees of the company occupying the positions
of works manager, assistant works manager, foremen, assistant fore-
men, or positions in any supervisory capacity," in which it stated,
as one of the rules of the Company, that "no person occupying a super-
visory position over employees can in any way interfere with the free-
dom of action of any employee as to his right *to become affiliated with
any labor organization of any kind, or make any suggestion or partici-
pate in any conversation with any employee as to whether he shall join
or not join any labor organization." This notice remained posted
until April 1943, when new rules were put into effect, which provided,
in part, that "Employees occupying supervisory positions are pro-
hibited from interfering in any manner with the freedom of action
and choice of employees in joining or not joining labor organizations
or collective bargaining groups." However, despite this expressed
policy of non-interference in union matters, some of the respondent's
higher supervisory employees, after the formation of the Independ-
ent, engaged in conduct which constituted illegal assistance to that
organization. Thus it appears, as the Trial Examiner has found,
that during 1943 and 1944 the following incidents occurred :
In June 1943, Personnel Manager Simmons told employee Gennie
Melton, whose discriminatory discharge is discussed below, that there
was "a union there in the company" which he could join, and shortly
thereafter General Foreman Cain warned him that if he did not "get
that [A. F. of L.] button off," he would be discharged.
During the summer of 1943, although Independent stewards, in
violation of a plant rule, were openly soliciting memberships during
working hours,19 Works Manager Joseph Walsh sent for employee
Jim Austin and told him that he would be discharged if he did not stop
being "active around here in the A. F. of L., signing up cards on the
17 This finding rests upon Ricker ' s credible testimony . Although Hofman in effect denied
having had any such conversation with Ricker , his denial is unconvincing in view of his
admission , on cioss-examination , that he had no definite recollection of Ricker.
i8 Murphy admitted having asked Cooney to take a poll of the employees, but explained
his conduct by saying that there had been rumors of strikes , and that he had asked Cooney
to find out how many employees would walk out Although Cooney admitted that he was
testifying because of a "grudge" against Murphy , on the record as a whole we credit his
testimony with respect to the above incident.
11 The record shows that in many instances such solicitation was carried on by, or in the
presence of, the minor supervisory employees discussed below.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job." 20 At about the same time, as hereinafter set forth, employees
Whittaker and Shaw were also warned against carrying on activities
on behalf of the A. F. of L.
In November 1943, General Foreman William Britt, when transfer-
ring employee James Swanagan to another job, told him that if he
wanted "to get along with the boys," he should join the Independent .21
In June 1944, Assistant Works Manager Otto Hacker assembled a
large group of employees under him and informed them that the Inde-
pendent was putting through a raise for them .12
The Trial Examiner has also found that at the time of the Inde-
pendent's election of officers in May 1944, after plans had been made
by some of the employees to elect Benjamin Will president, the re-
spondent, through Personnel Manager Harry Simmons, issued instruc-
tions to Leroy Magrew and William Mickens, respectively acting pres-
ident and shop steward of the Independent, which led to the election
of Graf. We note, however, that this finding is based solely on the
testimony of employee Charles Starks 23 that on the day of the election
Mickens and Magrew were summoned to Simmons' office and that
Mickens later told Starks, in effect, that because of their conversation
with Simmons they would not be able to elect Wills, as they were
supposed to elect Graf. Although, on the record as a whole, Starks
appears to have been a credible witness, and his testimony was not
contradicted, we are of the opinion that such hearsay evidence is in-
sufficient, in the absence of corroborating circumstances, to warrant
the finding in question. The Trial Examiner's finding on this point
is accordingly reversed.
(c) Activities of minor supervisors and other employees on behalf of
the Independent; the respondent's responsibility for such activities
Various other employees of the respondent, in addition to the super-
visors discussed above, were active in support of the Independent and
in opposition to outside unions. Among them were instructors Abe
Phillips and Frederick Thompson and lead burners John Scott and
Robert Williams.24 On the following evidence, the Trial Examiner
20 This finding is based on the credible testimony of Austin. Walsh admitted that such
an incident had occurred , but denied mentioning any particular labor organization to
Austin. On the record as a whole, we do not credit his denial.
21 Britt admitted that the transfer took place, but denied that he had any conversation
with Swanagan about the Independent . We credit Swanagan 's testimony with respect
thereto, as against Britt's denial.
22 This finding is based on the testimony of employees Mansfield Wilrich and Jesse Bell.
Hacker admitted that he had called the men together and informed them of the proposed
raise, but denied having mentioned the Independent. We do not credit his denial.
One of the discriminatorily discharged employees hereinafter discussed.
23 As stated in the Intermediate Report, counsel for the Board also adduced evidence
concerning the duties and pro-Independent activities of Richard Young, a yard switchman,
and Alexander Knuckles, a lead laborer. On the record as a whole, we agree with the
Trial Examiner that the evidence is insufficient to support a finding that the respondent is
responsible for their activities.
SCULLIN STEEL COMPANY 1307
has found, and we agree, that these four individuals are supervisory
employees for whose anti-union and pro-Independent activities the
respondent is responsible 25
Abe Phillips, according to his own testimony, has been employed
by the respondent for 32 years and has been, since September 1943, a
"core maker instructor," engaged in "learning young core makers how
to make cores . . . going out on the floor to see that the cores are made
right." He reports to higher supervision the progress being made
by new core makers. Phillips admitted that he has the "right to
recommend to the boss" whether a new man "stays on the job or
whether he doesn't stay on the job." He has from 30 to 35 men under
him. Works Manager Walsh corroborated Phillips' description of
his duties, explaining that when a new plant was opened in 1943,
Phillips was assigned to it as an instructor. His exact status before
this assignment is not defined by the record, but no persuasive evidence
was adduced to refute the testimony of both Phillips and Walsh that,
before his transfer to the new plant in 1943, Phillips was only a core
maker, or to establish that before this time he exercised any supervisory
powers over other employees. For this reason the Trial Examiner
made no findings as to the respondent's responsibility for remarks
made by Phillips before September 1943. However, it is plain from
the testimony of Walsh and Phillips, that the latter's position since
his transfer to the new plant has been supervisory, and one wherein
employees generally may reasonably expect him to reflect and interpret
management policies.
Phillips was an alternate representative of the M. A. A.,26 and
admittedly took a "real active part" in campaigning for the Inde-
pendent at the election conducted by the Board in 1942 .27 In the
spring of 1943, he accused employee Clint Mays of obtaining A. F.
of L. applications for membership, and threatened him with dis-
charge. Mays complained to Personnel Manager Simmons, who told
him that Phillips had no authority to discharge him 28 In September
1943, as set forth below, he warned employee Modie Shaw that he
would be discharged for being in the A. F. of L.
"We find no merit in the respondent 's contention that it is not responsible for the
activities of these employees because of the fact that only supervisory employees "above
the rank of leader" were excluded from the unit by the consent election agreement of
February 3, 1942 As we have previously held, the agreement of the pasties to include
supervisory employees within a unit of non-supervisory employees for the purpose of a
consent election does not relieve the respondent of liability for unfair labor practices
committed by such supervisory employees, especially where, as in the present case, the
employees in question were carrying out the policies of the respondent, as shown by the
conduct of its acknowledged representatives See Matter of Emerson Radio it Phonograph
Corporation, 43 N L R B. 613 ; of. Matter of C. A. Reed Company, 53 N L. R. B 279.
See also International Association of Machinists, etc v N. L. R B, 311 U. S 72.
26 Phillips denied holding this office , but his denial is refuted by M. A. A. minutes,
placed in evidence by stipulation of all parties
21
Although these activities took place before Phillips became a supervisor , they are
relevant in determining whether he later engaged in similar conduct.
2e Phillips denied having had any conversation with Mays about the A. F. of L. We
credit Mays ' testimony as to this incident.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the spring or early summer of 1944, after he became an instructor,
Phillips was, approached by Independent steward Mickens and em-
ployee James Swanagan. Mickens accused Swanagan,of signing up
employees in the C. I. O. Phillips declared that he did not believe
Swanagan was "fool enough" to be so engaged. Thereupon, Mickens
demanded that Swanagan join the Independent, and the latter
promptly signed an application card for that organization.29 In July
or August 1944, employee John White, who had previously left the
Independent, was asked to rejoin by Phillips.30
John Scott, although classified as a lead burner, clearly occupies a
supervisory position which is recognized as such both by employees
and management. When asked by counsel for the respondent to list
the foremen under his general supervision, General Foreman Britt
included Scott. Britt also testified that Scott has charge of certain
burning equipment and that it is his duty to "educate the burners in
better ways of burning." Scott testified that he had been a burner
for about 5 years. Undisputed testimony of other witnesses estab-
lishes that Scott has supervision over more than 30 burners and chip-
pers on his shift, that he gives them orders as to what they are to do,
and that he issues passes to employees, honored by the guards, per-
mitting employees to pass through the plant gates. Scott admitted,
as a witness, that he shares a locker room with Abe Phillips, previously
identified as a supervisory instructor, and one or two others, apart
from the room used by employees generally. Of further bearing upon
his supervisory powers is the uncontradicted testimony of employee
James Glee that Scott held up pay vouchers, during the hearing, for
Glee and two other employees who were witnesses. We are convinced
and we find, as did the Trial Examiner, that Scott's duties, functions,
and supervisory authority define his position as one wherein employees
generally look to him to reflect and interpret management policies,
and that the respondent is therefore responsible for any interference,
restraint, or coercion in which he has engaged.
Shortly after being employed by the respondent late in 1943, em-
ployee Swanagan was transferred by Britt to the plant where Scott
works. While accompanying the employee to his new assignment,
as noted heretofore, Britt advised him that if he "wanted to get along
with the boys," he should join the Independent. He thereupon took
hire to Scott, who gave him an Independent ' application card. In
March or April 1944, as set forth below, Scott accused employee James
29 This finding is based on the testimony of Swanagan . Phillips admitted that an
incident of this nature occurred , but claimed that Mickens accused Swanagan of signing
up C I 0 members on company time. Mickens admitted having spoken to Swanagan
about "trying to get C I O. cards signed up in the plant during working hours," but
denied having signed him up in the Independent at that time
i9 Phillips denied having talked with White about any organization . We agree with
the Trial Examiner in refusing to accept his denial as true.
SCULLIN STEEL COMPANY 1309
Troupe of "boosting the C. I. 0.," and in July of the same year, warned
him, that "they are after you and say they will get you * * * you
do not belong to [the Independent] and are having too much to say."
In July 1944, Scott asked employee Robert Mingo and others, "Why
don't you boys join the Independent?" Soon after this, following a '
decision of the National War Labor Board granting certain wage in-
creases, Scott distributed Independent buttons among several em-
ployees in his department, telling them to wear them whether they
belonged or not 31
Robert Williams, although classified as a lead man , was included
in the list of subordinate supervisors named by General Foreman
Britt when asked to identify foremen under him. He is assigned to
the night shift, over about eight burners. Britt remains on duty for
about 3 hours of the night shift, and then leaves instructions with
Williams as to What work is to be done during the remainder of the
shift. According to his own testimony, Williams assigns burners to
various jobs in the department, is responsible for deciding as to the
length of lunch periods during his shift, and is also responsible for
seeing that the work assigned to that shift is completed before the
men leave to go home. When employee Mingo was transferred to the
night shift by Britt, the latter told him that Williams would be his
foreman and Instructed him to follow Williams' orders. It is plain
that Williams occupies a supervisory position similar to that of
Scott. We conclude and find, as did the Trial Examiner , that the
respondent is responsible for any interference, restraint, or coercion
engaged in by Williams. He readily admitted as a witness that he
has been as active as he "knows how" on behalf of the Independent,
and has gained many members for it, and that, from August 1943
to August 1944, he was a steward of that organization.
Frederick Thompson, according to his own testimony, has been an
instructor of chippers since 1942. As such, he occupies a supervisory
position similar to that of Abe Phillips. According to other undis-
puted testimony, he instructs 15 to 20 employees. William Whitmire,
assistant to the general foreman, testified that Thompson reports to
him as to whether or not the employees under him are "progressing"
in their work. We conclude and find, as did the Trial Examiner,
that Thompson's supervisory position is such that employees reason-
31 Scott denied giving Swanagan an Independent application or other employees Inde-
pendent buttons We agree with the Trial Examiner in finding that Scott was an unreli-
able witness , and in refusing to accept his denial as true. He denied that the signature
"George Scott ," appearing upon a document drawn up by the A. P. of L . in 1943 and intro-
duced into evidence, was his signature He admitted, however, having signed such a
document , but stated that he used his real name, "John Henry Scott ," although other
testimony establishes that he actually signed as "George Scott" in the presence of other
employees Scott further admitted that he was not permitted to attend A P. of L meet-
ings after a number of employees accused hum of "taking news back to the company "
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably look to him, and his conduct, as interpretative of management
policies.
Thompson admitted, as a witness, that until 1944 he had served as
a member of the Advisory Board of the Independent and that he
had distributed application cards for this organization among the
employees. Soon after Clarence Young, a new employee, was as-
signed to him in April 1942, Thompson told him and others, "we
have a company union and I want you fellows, as many of you as
work for me, to join." He,further told them that the war "isn't going
on always," and that employees who joined the Independent would
be retained after the war.32
The Trial Examiner has also found that the respondent is re-
sponsible for the anti-union and pro-Independent activities of three
non-supervisory employees : Henry Graf, chairman of the Advisory
Committee of the Independent from 1941 to May 1944, and there-
after president of the Independent; Benjamin L. Will, chief steward
of the Independent from the time of its formation and chairman
of the Advisory Committee after Graf became president; and William
A. Mickens, shop steward of the Independent since 1943. We do
not agree.
Henry Graf, a pattern maker, was, as stated above, president of both
the S. E. A. and its successor, the M. A. A., and has been, since 1934,
agent for the B. A. R. E., from which both the S. E. A. and the M. A. A.
received financial benefits. Pursuant to the settlement agreement of
November 15, 1941, however, the respondent posted notices in the
plant, disestablishing the M. A. A. and stating, inter alia, that it would
not "permit the use of its facilities for the promotion or transaction
of business of mutual aid, welfare or insurance societies or plans for
the purpose of assisting, encouraging membership in, or lending finan-
cial or other support to [the M. A. A.] or to any other labor organi-
zation." There is no evidence that the Independent has received any
assistance from the B. A. R. E. Graf has continued to act as plant
agent for the B. A. R. E., receiving $80 a month for his services, but in
our opinion, he is not, by virtue of that fact, the agent of the respond-
ent. Under all the circumstances, we disagree with the Trial
Examiner's finding that Graf's position is one of special privilege-
and one in which the employees reasonably look to him to reflect the
respondent's policies.
Benjamin Will; a heat treater, is a cousin of Dr. L. A. Will, the com-
pany physician, and the record shows that on at least one occasion, in
the summer of 1944, he went on a cruise on Dr. Will's yacht with some
of the respondent's highest officials, including its president, vice presi-
dent, secretary-treasurer, personnel manager, and various assistant
-12 Thompson denied thus soliciting Young. We agree with the Trial Examiner in placing
no reliance upon his denial.
SCULLIN STEEL COMPANY 1311
works managers . In his work at the plant , it is his duty , according
to the testimony of Works Manager Walsh, to "look after the heat
treating ' furnaces and get the temperatures that are required to heat
treat this particular steel," to "look after" the proper loading of the
trucks, and "to see that these castings are properly heat treated." He
checks temperatures and operations on about 50 furnaces , at which
about 80 employees actually work . He is the only individual on the
day shift who has this responsibility and function ; he makes reports
to the department foreman in writing; and unlike the other employees,
he is paid a regular semi-monthly salary. On the evidence as a whole,
however, and particularly in the absence of any showing that he has
any authority over any of the employees actually operating the fur-
naces under his supervision , we do not agree with the Trial Examiner
that his position is one in which his interests are more closely aligned
with those of management than with the production and maintenance
employees, and that the employees so understand the situation , or that
he has served as the agent of the respondent in furthering its anti-
union policies.
William A. Mickens, a molder, had been employed by the respondent
for about a year at the time of the hearing. During that time, although
he had never before worked in a steel plant, he was rapidly promoted
from laborer to craneman and then to A-grade molder . Although his
activities on behalf of the Independent at the plant, and the respond-
ent's quick yielding to his requests for the reinstatement and transfer
of employees lend some support to the Trial Examiner 's inference that
he frequently served as liaison between management and the employees,
we regard the evidence as insufficient to warrant a finding that he has
served as an agent of the respondent in furthering the respondent's
anti-union policies.
The Trial, Examiner's findings as to the respondent's responsibility
for the anti-union and pro-Independent activities of Henry Graf,
Benjamin Will, and William A . Mickens are accordingly reversed.
4. Conclusions with respect to the S. E. A ., the M. A. A., and
the Independent
The complaint alleges, and the Trial Examiner has found, that
the respondent has dominated and interfered with the formation and
administration of the S. E. A., the M. A. A., and the Independent,
and has contributed financial and other support to them, thereby en-
gaging in unfair labor practices within the meaning of Section 8 (1)
and (2) of the Act. As noted above, however, on November 15, 1941,
charges of company domination of the S. E. A . and the M. A. A.,
filed by the predecessor of one of the charging unions in the present
proceeding , were settled by agreement of the parties ; the Board
thereafter issued its order in accordance with the agreement; and
679100-46-vol. 65-84
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said order was enforced by the Circuit Court of Appeals for the
Eighth Circuit. In view of these circumstances, we make no find-
ing herein with respect to the alleged domination of and interference
with the S. E. A. and the M. A. A. However, we have considered the
evidence relating to these organizations as background material
against which to evaluate the respondent's subsequent conduct with
respect to the Independent.33
The Trial Examiner's finding of company domination of the Inde-
pendent is based in part upon his conclusion that it was a successor
to the M. A. A. The record shows, however, that the Independent
was not formed until after the settlement agreement, referred to
above, and after the respondent, pursuant to the agreement, had posted
notices in its plant, informing the employees of the disestablishment
of the M. A. A. and stating that the respondent would not "in any
manner interfere with the formation or domination [sic] of any
other labor organization of its employees." Under these circum-
stances, although the meeting at which the Independent was formed
immediately followed the meeting at which the M. A. A. disbanded,
and although Graf and Hall, who had been active on behalf of the
M. A. A., were also active on behalf of the Independent, we are not
convinced that the respondent's employees had reasonable ground
for viewing the Independent as the M. A. A. under a different name
or for believing that it had inherited the favored position of the
M. A. A. Rather, we are of the opinion that the respondent had,
by its action, wiped the slate clean, thus permitting its employees to
act with the complete freedom of choice contemplated by the Act.
Moreover, the break between the M. A. A. and the Independent is
further indicated by the following circumstances : McCrary, who was
instrumental in organizing the Independent, had had no connection
with the M. A. A.; none of the officers of the M. A. A. became officers
of the Independent; the Independent did not take over the funds
of the M. A. A.; the form of organization was different in that the
Independent, unlike the M. A. A., was not incorporated; and the con-
stitution of the Independent did not, in itself, indicate that the or-
ganization was the creature of the respondent or subject to its control.
We further note that the respondent did not recognize the Independ-
ent or enter into bargaining relations with it until the Regional Di-
rector, after investigating charges of company domination filed by
the S. W. 0. C., and after conducting a consent election, notified the
respondent that the Independent had been selected as the bargaining
agent of the respondent's employees.
Following the formation and certification of the Independent, how-
ever, the respondent clearly gave illegal assistance to that organization
31 See Matter of The Logan Clay Products Company, 59 N L R. B. 819.
SCULLIN STEEL COMPANY 1313
by remarks of its supervisory employees in opposition to the C. I. O.
and the A. F. of L. and in favor of the Independent , by permitting
solicitation of Independent memberships during working hours while
strictly enforcing its no-solicitation rule where outside unions were in-
volved, , and, as hereinafter found, by discriminating against employees
who were active on behalf of outside unions or who opposed the In-
dependent , thereby discouraging membership in the outside unions and
encouraging membership in the Independent . Although we are of the
opinion that the respondent 's conduct in these respects is insufficient
to constitute domination of the Independent , within the meaning of
Section 8 (2) of the Act , we are satisfied , and we find ,' that by such
conduct the respondent unlawfully assisted the Independent and in-
terfered with , restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. We further find that
because of the illegal assistance by the respondent , the contract be-
tween it and the Independent was invalid.3h '
B. The alleged discriminatory refusal to reinstate strikers on
June 31 194-3
1. Events involved in the refusal
In June 1943 , 24 ladlemen , helpers, and liners ( 8 on each of the 3
shifts ) were engaged in operating certain furnaces in 2 foundries un-
der the supervision of Open -Hearth Superintendent Daniel J.
Murphy. On the morning of June 3, all but one of these employees,
including those assigned to the 7 a. in. to 3 p. in. shift, gathered by
prearrangement near Murphy 's office to await his arrival. At about
9 o'clock Murphy approached and asked what the trouble was. They
told him that they wanted more money. He declined to confer with
them in a group , but agreed to talk to one of them, and went on to his
office. The group thereupon appointed George Hilderbrand to repre-
sent the ladlemen of one foundry and Clarence Routh to represent
those of the other. As these representatives went to the superin-
tendent's office, the watchman told the group to "break it up," and sent
them outside the plant. That Murphy knew that the watchman thus
instructed them, is clear from his own testimony. The men went out-
side the plant gate, and awaited a report from Routh and Hilderbrand.
Routh, the first to reach Murphy's office, told him that "they" (by
which Murphy "assumed" that Routh meant "the ladlemen down-
stairs") wanted more money. Murphy agreed to submit the request to
"management," but told Routh and Hilderbrand that he did not know
u Elastic Stop Nut Corp. v . N. L R B, 142 F ( 2d) 371 ( C C A 8 ), enf'g Matter of
Elastic Stop Nut Corporation , 51 N L R. B 694 ; see also N . L. R. B. v. Electric Vacuum
Cleaner Co ., 315 U. S 685.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how long it would take to get an answer.36 Both Routh and Hilder-
brand then joined the other employees outside the plant.
By using foremen and other employees already at work, the tasks
of the day-shift ladlemen and helpers were performed.86 There is no
evidence that any "heat" was lost due to the "walk-out" of the day-shift
employees, and counsel for the respondent conceded during the hearing
that there was no loss in production.
At about 2: 30 that afternoon, John H. Skaggs, local A. F. of L.
general representative, went to the plant, observed the group outside
the gate, and inquired as to the trouble. Upon hearing of the dispute,
he urged the men to return to work. They agreed, and asked him,
on their behalf, to interview Personnel Manager Simmons and obtain
his permission for their return. Skaggs and another A. F. of L.
organizer, John Barr, went to Simmons' office.
Skaggs told Simmons, in substance, that the men wanted to return
to work. Simmons refused to give his permission, stating, according
to his own testimony, that the men on the day shift "had deliberately
walked out from their jobs." Skaggs and Barr urged him to change
his mind, but Simmons was adamant. It -was after 3 o'clock before the
conference ended. Simmons telephoned to Murphy and was informed
that none of the ladlemen and helpers on the 3: 00 to 11: 00 p. m.
shift had reported for work. Simmons then told Skaggs, also accord-
ing to Simmons' testimony, that these men were "considered in the
same category as these other men who had walked out that morning,"
but that he would permit the men on the 11 p. in. to 7 a. m. shift to
come ill.37 Skaggs reported • Simmons' decision to the men outside
the plant, and promised to submit the controversy to the U. S. Concili-
ation Service.
Shortly after Skaggs had reported to them, the ladlemen and help-
ers appointed three of their own number to interview Simmons. They
returned with the same report, and added that they had been told they
could get their money the following day.38
^ The findings as to the interview with Murphy rest upon his testimony and that of
Routh According to Murphy , he also told Hilderbrand , in Routh's presence, that so far
as he knew , the "wage scale was frozen " and that the matter "would have to be taken up
,with the Government and it would take time, but how long , I could not tell him," where-
upon Hilderbrand said , "That would take too long we are going fishing."
30 Murphy testified that the day -shift ladlemen took care of the early morning "heats"
before leaving , and that later " heats" were poured by supervisors and other employees who
had had some experience in the work.
31 In most respects , the testimony of Simmons and Skaggs is in agreement as to this
Interview Simmons stated , however , and Skaggs denied, that the latter asked for
"releases" for the men whom Simmons refused to reinstate . On the record as a whole, we
agree with the Trial Examiner that Simmons' unsupported testimony is not trustworthy.
Furthermore . Simmons admitted that within the next day or two a representative of the
U S Conciliation Service intervened on behalf of the men It seems unlikely , therefore,
that on the afternoon of June 3, Skaggs, on behalf of the men , accepted Simmons' statement
of position as final and asked for work releases
' Simmons testified that the three men asked reinstatement only for themselves. Al-
though none of the three was a witness, Simmons' version of the interview is not accepted
SCULLIN STEEL COMPANY 1315
Simmons admitted, in his testimony, that he was informed by
watchmen during the day that maintenance men were planning to
strike in sympathy with the ladlemen. At about 6 o'clock that after-
noon, 23 such maintenance employees left their work on the 3: 00 p. in.
to 11 p. m..shift, rang out their time cards, and congregated near the
machine shop.
Their supervisor, Master Mechanic John W. Buck, went to the group
and asked what the trouble was. One of the men replied that they
wanted more money, and that they desired to know by morning
whether they would get it. Buck told them that he had no authority
to decide the matter, but agreed to submit the question to Works
Manager Walsh. Buck then telephoned to Walsh and to Simmons,
and proceeded to round up spare maintenance men in other depart-
ments to do the necessary work. According to Simmons' testimony,
he learned of the dispute at about 6 o'clock from another foreman,
and at once went to the machine shop. Before reaching it, he passed
the group of maintenance men on their way out of the plant. He made
no effort to stop them, but continued on his way to talk with Buck.
By the time Walsh had arrived, in response to Buck's call, all but two
of the men had left 39 Shortly thereafter, according to Simmons' testi-
mony, two employees of the electrical department came to him and
informed him that the group outside had asked them to see him "about
the proposition of bargaining with them." He refused, stating that
he would bargain only with the Independent. One of the electricians
told him he doubted that the men would "accept the Independent to
bargain for them."
Early that evening, Murphy sent word by Foreman Wade Hancock
to two ladlemen 40 scheduled for the 11 p. in. to 7 a. m. shift, that they
were not discharged and that their jobs were open if they came in
at 11 o'clock. Neither of the two reported for work, however.
Between 10: 30 and 11: 00 o'clock that night, Walsh and other super-
visors approached the men gathered near the plant gate. They urged
the employees of the 11 to 7 shift to go to work, and added that if
they did not, it would be considered that they had quit. Walsh
further told them that, as in the case of those who had walked out
earlier, they "could not come back to work" if they did not report
as true in this respect. According to Simmons ' testimony , the three employees told him
that "they realized they had made darned fools of themselves by walking out," whereupon
be told them that "they had walked out of their job and were considered as quitting."
According to the respondent 's records , and noted upon the face of one of the documents
in evidence , all three were on the 3 p. m . to 11 p. m shift. The interview occurred , accord-
ing to Simmons ' testimony , shortly after 3 p. m. None of the three had "walked out of
their job ," but simply had not reported in, and they were, at most , only a few minutes
late. Furthermore , the report of the interview as given by the three men to others outside
the plant was consistent with the position Simmons had previously made clear to Skaggs.
39 Walsh testified that he located two maintenance men of this shift, Frank Schultz and
Gene Strogher, getting ready to leave, but that he prevailed upon them to stay.
4° Floyd Hancock ( Wade Hancock 's brother ) and Morris Hedley.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 11 o'clock 41 Some of the maintenance mei turned to ladlemen
in the same group and declared, "We came out in sympathy with
you and we will stay out until we get a better understanding of this
thing." They further resolved that "if you fellows don't get to go
back we won't go back to work."
Four of the eight ladlemen and helpers on the 11 to 7 shift did
not report. The record does not show how many maintenance men
were scheduled for that shift. Appendix A, attached hereto, lists
the names of the employees who walked out or did not report for work
on June 3. The listing is arranged according to shifts and bears
notations as to the type of work performed'by each employee, such
information having been furnished during the hearing by the re-
spondent from its records.
On the morning of June 4, two of the maintenance workers on the
7 a. in. to 3 p. m. shift, employees of which had reported for work
as usual, interceded for the men on the other two shifts and asked if
they could return to work. According to Walsh's testimony, "We told
them no." At the same interview, also according to Walsh's testi-
mony, Simmons told them that he would not "receive complaints or
grievances" from any group but the Independent.
During the afternoon of June 4, ladleman Floyd Hancock, who
had not reported for work on his shift the night before, came into
the plant and, at the request of his brother, a foreman, provided the
latter with certain information concerning equipment. While they
were in Murphy's office, Murphy told Floyd Hancock that he regretted
losing him, since he was a good man, and that, as far as he was con-
cerned, he still had a job with the company. About this time Simmons
came into the office. Floyd Hancock asked for reinstatement, de-
claring that he did not believe his failure to report for one shift
warranted his discharge. Simmons declared, "There is no exception
to be made to any of you guys," and told him that he could get his
money at the office.
Within the next day or two, a representative of the U. S. Concilia-
tion Service consulted with Simmons by telephone, and thereafter
reported to a meeting of the "strikers," called by Skaggs, that Simmons
refused to permit them to return to work "under any consideration."
On the following Monday, Simmons, according to his own testimony,
refused to meet with the Conciliator and Skaggs.
The testimony of both Murphy and Buck establishes the fact that
no new employees were hired to replace the strikers named in Appendix
A until after the latter group had applied for and had been refused
reemployment.
In oral argument before the Trial Examiner. counsel for the re-
spondent conceded that all the strikers (with the exception of B. F.
11 The quotation is from Walsh 's testimony.
SCULLIN STEEL COMPANY 1317
Walker and J. George Campbell, who returned to work on the evening
of June 3) were denied the right to go back to work on June 3.
During the hearing, counsel for the Board conceded that the strikers
were not refused reinstatement because, of their membership in either
of the charging unions.
2. Conclusions as to the respondent's refusal to reinstate the strikers
At the hearing, counsel for the Board conceded that the strike,
described above, was not caused by any unfair labor practices on the
part of the respondent, but was a strike to obtain a wage increase.
The only question at issue is , therefore, whether the respondent's
refusal to reinstate the strikers was violative of Section 8 (1) and (3)
of the Act.
The respondent contends, among other things, that it was justified
in refusing to reinstate the strikers because they had ceased work in
violation of the collective agreement between it and the Independent,
the exclusive bargaining representative of the employees. We find
merit in this contention.42 Although we have found above that the
respondent assisted the Independent by conduct violative of the Act,
substantially all the unlawful acts of assistance occurred after the
contract of August 2, 1942, had been executed, and after the cessation
of the strike of June 3, 1943.1'- Accordingly, we are of the opinion that
when the employees ceased work on June 3 the contract as yet was a
valid and subsisting agreement governing the terms and conditions of
employment of the striking employees 44 This agreement provided
for recognition of the Independent as the exclusive representative of
the respondent's employees within a bargaining unit which included
"In view of this holding , it is unnecessary to discuss the other contentions of the
respondent with respect to the strike of June 3
41 It is true that Thompson , an instructor of chippers, had served as a member of the
Independent 's Advisory Board, had distributed application cards for this organization
among the employees , and in April 1942 had urged certain of his subordinates to loin the
Independent . We do not, however, regard this conduct as sufficient evidence of assistance
to warrant a finding that the contract of the Independent was invalid at the time of the
strike of June 3, 1943 . As we have previously found , the respondent had posted a notice
to its employees in compliance with the settlement agreement of November 15, 1941 , it
had also posted and thereafter maintained notices that its supervisory employees were
prohibited from interfering with the employees' choice of a bargaining representative, and
no higher supervisory employees as yet had engaged in conduct which constituted illegal
assistance to the Independent In these circumstances , and in view of the fact that only
supervisory employees "above the rank of leader " were excluded from the unit by the
consent election agreement of February 3, 1942, we are'of the opinion that, at the time
of the strike of June 3, 1943 , the employees did not have reasonable grounds for a belief
that Thompson was acting for or on behalf of management See Matter of Mississippi
Valley Structural Steel Company , 64 N. L R B 78 . As we have stated previously, how-
ever, the subsequent conduct of higher supervisory employees was such as to indicate to
the employees that Thompson and others possessing similar authority were carrying out
the policies of the respondent
" We are convinced , however , that the respondent's subsequent conduct , described else-
where in this Decision , was such as to invalidate the contract , as renewed , between the
respondent and the Independent and to require us to order the respondent to cease giving
effect to the contract in the manner set forth in our Order.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the striking employees; it contained provisions with respect to wages
and other conditions of employment applicable to these employees; it
provided orderly methods for settling grievances and other disputes
through the recognized representative; and it further provided that
The Union agrees that there shall be no strikes, walkouts, stop-
page or slow-down of work, boycotts, secondary boycotts, refusal
to handle any merchandise, picketing, sit-down strikes of any
kind, sympathetic or general strikes, or any other interference
with any of the operations of the Company during the term of
this agreement, so long as the grievance procedure, for which
provision is made herein, is followed by the Company.
It is plain that the employees who ceased work on June 3 did so in
disregard of the provisions of the contract set forth above 45 In these
circumstances, in the absence of any showing that the respondent had
breached its contract, and in view of the admitted facts that the strike
was not caused by any unfair labor practice and that the striking em-
ployees were not refused reinstatement because of their membership
in either of the charging unions, we shall dismiss the complaint with
respect to the employees listed in Appendix A.
C. The discriminatory, discharges of Needham Whittaker, Gennie
Melton, Modie Shaw, Charles Starks, and James Troupe; the al-
leged discriminatory demotion of James Smith
Needham Whittaker was employed by the respondent in August
1942 as a chain man. His employment continued for about a year,
without complaint as to his workmanship.
Whittaker was solicited for membership in the Independent while
on the job by George St. Clair, a steward in that "organization 46
He joined and thereafter attended meetings. At an Independent
meeting in June 1943, Whittaker demanded that chain men be given
a raise. Shortly thereafter, Abe Phillips, previously identified as an
employee active on behalf of the Independent, went to Whittaker in
the plant and promised to try to get a raise for the chain men. The
next day, he told Whittaker that he had been unsuccessful in doing
so, but that he would endeavor to get Whittaker himself an increase47
e
45 See N. L R. B v. Sands Mfg. Co., 306 U. S. 332 , Hazel-Atlas Glass Co. v. N. L. R B.,
127 F. (2d) 109 (C. C A 4) ; United Biscuit Co v. N. L R B., 128 F. (2d) 771 (C. C A 7). .
40 This finding is based on the testimony of Whittaker, who appears to have been a
credible witness. St Clair, who had been vice president of, and had held various other
offices in, the Al A A, and who has been a steward in the Independent since its organiza-
tion, admitted having solicited Whittaker's.membership, but denied having done so during
Whittaker's working hours On the record as a whole, we credit Whittaker's testimony
regarding this incident as against St. Clair's denial, as (lid the Trial Examiner
44 Phillips denied having made the above statements, which were attributed to him by
Whittaker. The Trial Examiner did not credit this denial, nor (lo we. Phillips first denied
knowing Whittaker, but later admitted that he knew him. He then admitted having had
a conversation with him about a raise, but said that it took place in a saloon. Later, he
stated that it was not in a saloon, but on a street corner.
SCULLIN STEEL COMPANY 1319
Whittaker attended no more Independent meetings, joined the A. F. of
L., and wore a button of that organization while at work. On two
occasions thereafter, he was warned by Foreman Alphonse Struel not
to solicit A. F. of L. memberships on company time.48 On one of
these occasions, Struel took Whittaker first to General Foreman An-
thony Ohnemus and then to Personnel Manager Simmons. Simmons,
according to Struel's testimony, warned Whittaker "not to do it" any
more, mnd permitted him to return to work. We find, as did the
Trial Examiner, that Simmons and other supervisors were aware of
Whittaker's activity on behalf of the A. F. of L 49
On or about July 18, 1943, Whittaker became ill as a result of having
a tooth pulled. He continued to work, however, until July 20, when
his jaw became so swollen that he informed Ollie Merrill, the lead
chain man, that he had'to go home. Merrill told him to go along, and
that he had an extra man to put in his place.50 On the same day,
Whittaker went to the Veterans Hospital, from which he was not
released until August 25. He did not, during this time, report to the
respondent the reason for his absence.
On Saturday, August 28, he returned to the plant, where he saw
General Foreman Ohnemus, who asked him when he would be in to
work. Whittaker replied that he would be in the following Monday.51
He reported for work on Monday. During his absence, Struel and
his gang had been transferred to another plant, and Whittaker went
there to see Struel. Struel sent him to see Simmons. Simmons told
him that before he could go back to work he must get a statement from
the doctor at the hospital that he was able to work. Whittaker went
to the hospital, but Dr. Clayton, who had been in charge of his case,
would give him a statement only as to the dates of his admission and
release from the hospital. The doctor told him to have Simmons call
him if he desired other information. Whittaker returned to Simmons
and reported what the doctor had said. Simmons refused to call Dr.
Clayton, and told Whittaker that he must obtain the statement before
he would be permitted to work.
Whittaker submitted his problem to J. H. Skaggs, general repre-
sentative of the A. F. of L. Skaggs telephoned to Simmons, who
again insisted that Whittaker get a statement from the hospital
48 Whittaker , at the hearing, denied having solicited memberships during working hours.
We credit his testimony.
4° Simmons denied having any knowledge of Whittaker ' s "connection with the A. F of L'*
We agree with the Trial Examiner that Struel ' s credible account of Simmons' warning to
Whittaker plainly refutes Simmons' testimony on this point
51 Our findings as to this incident rest upon Whittaker ' s credible testimony . Although
Merrill denied having told Whittaker to go hone, he admitted that Whittaker had com-
plained to him of having "a toothache" and added that Whittaker "ought to have sense
enough to go home if he is in that much misery ." According to his testimony , Whittaker
worked the clay out, but did not report for work the next day.
11 Whittaker ' s testimony , on which our findings as to this conversation is based, was
uncontradicted . Ohnemus testified only that he did not remember the conversation.
1320 DECISIONS OF NATIONAL LABOR RELATIONS*BOARD
doctor. Although Whittaker offered to obtain a statement from his
family physician or to submit to examination by the company doctor,
Simmons refused to accept the offer. Whittaker then obtained-a
work release and promptly obtained work elsewhere.
In its answer to the Board's complaint and during the hearing
before the Trial Examiner, the respondent advanced various reasons
for the failure to reinstate Whittaker.52 In its brief before the Board,
however, it states that the real reason was because he remained away,
from his employment for an unreasonable length of time without
notifying the respondent. We regard this reason as unconvincing in
view of Simmons' request that Whittaker obtain a statement from the
doctor at the hospital that he was able to work, and his confused testi-
mony as to his reason for the request.53
Simmons testified that he requested the statement because the re-
spondent had no way of knowing where Whittaker was prior to August
28, when he returned to work, and because "we thought we were within
our rights to have some history as to what he was being treated for
that would take the period of over a month for treatment." The
record shows, however, that he had, on August 26, received and signed
a "certificate of claim" for hospitalization benefits filed by Whittaker,
which bore a statement signed by the Veterans Hospital doctor to
the effect that Whittaker had been hospitalized from July 20 to
August 25 because of "cellulitis resulting.from impact, submax. due
to ext. of tooth,". and that in his opinion Whittaker would be able to
resume work by August 30. On being questioned as to why he insisted
on Whittaker's procuring another statement from the doctor when
he had already seen this one, Simmons first claimed that the state-
ment on the insurance claim "did not make sense" to him as an ex-
planation for Whittaker's failure to notify the respondent that he
was in the hospital, but later admitted that he was satisfied that Whit-
taker had been in the hospital for the period of time stated. He then
said, however, that "the reason for the man being fired is the fact
that we had to replace him with another man." This latter conten-
tion is clearly without merit in view of Foreman Struel's testimony
that he would have put' Whittaker to work on his return if he had
been properly transferred, and Simmons' own testimony that he told
6= In its answer, the respondent alleged that Whittaker , "when asked by respondent's
Personnel Director to supply proof of his absence and reasons therefor, and his capability
of returning to work, threw his badge down upon the Personnel Director ' s desk and quit
his employment [ and] requested of the Personnel Director a statement of availability
under the War Manpower Rules and Regulations , which statement was furnished him "
The record clearly fails to support the implication contained in this allegation, that
Whittaker quit immediately after being asked for "proof of his absence "
68 Clearly , if the real reason had been merely to ascertain whether Whittaker was able
to return to work, Simmons could have telephoned to the doctor at the hospital, as the
latter had suggested , after Whittaker reported his inability to obtain the statement, or
could have permitted Whittaker to obtain a statement from his family physician or submit
to examination by the company doctor, as Whittaker offered to do.
SCULLIN STEEL COMPANY 1321
Whittaker that "if he was released from the doctor who was treating
him, he could go back to work."
In view of the conflicting reasons given by the respondent for its
failure to reinstate Whittaker, Simmons' contradictory, confused, and
evasive testimony on the subject, and the fact that Whittaker had
previously been warned against soliciting for the A. F. of L., we are
convinced, and we find, as did the Trial Examiner, that the real
reason for the respondent's action was Whittaker's activity on behalf
of that organization. We therefore find that the respondent, by
refusing to reinstate Whittaker on August 31, 1943, discriminated in
regard to his hire and tenure of employment, thereby discouraging
membership in the A. F. of L., encouraging membership in the Inde-
pendent, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Gennie Melton
Gennie Melton was hired by the respondent in February 1943 as a
chipper. In June he was promoted to burner, a position which he
held until September 10, 1943, when his employment was terminated.
General Foreman Britt testified, with respect to him, that Melton was
a "good worker" and that "I talked to Melton almost every day. He
was a man I was interested in . . ."
Melton refused to join the Independent when solicited soon after
being hired, but in June joined the A. F. of L., became a steward and
committeeman of that organization, and wore a membership button
while at the plant. Shortly after joining the A. F. of L., he was sent
by Britt to Personnel Manager Simmons' office. Simmons said that he
understood Melton was having "a little [union] difficulty" in the plant.
When Melton denied any knowledge of such difficulties, and asked why
he had been sent to the office, Simmons told him to go back to work and
stop arguing, and informed him that they "had a union there in the
company" which, he could join.54
Shortly after this incident, General Foreman Harold Cain told
Melton that he had heard of his being called to see Simmons. Melton
protested to Cain, in effect, that he did not understand why he had
been sent for. Cain replied that it could be "summed up" in the
A. F. of L. button Melton was wearing. On another occasion, Cain told
' Our findings as to the above incident are based on the credible testimony of Melton.
Britt, when questioned about it, stated that he had had no "difficulty:' with Melton, but
did not deny having sent Melton to Simmons' office Simmons admitted that the inter-
view took place, but claimed that Melton went to him voluntarily and reported that he
was "getting into arguments" out in the plant about unions He further testified that
Melton mentioned no one with whom he had been "arguing ," and when asked why Melton
went to him, stated that he "supposed" the employee wanted to talk to him He denied
having referred Melton to the Independent As previously stated „ we regard Simmons'
unsupported testimony as untrustworthy and we agree with the Trial Examiner that
his version of the above interview is not credible.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melton that he was sorry Melton had joined the. A. F. of L., and warned
him that, if he did not "get that button off," he would be ordered "out
on Manchester Avenue." 55 Under the circumstances, we find, as did
the Trial Examiner, that management had knowledge of Melton's
activity on behalf of the A. F. of L.
During the summer of 1943, according to the testimony of Works
-Manager Walsh, it became necessary to lay off a number of burners
because of a slackening in the'production of armor plate. Between
September 1 and 10, Britt selected for lay-off 6 of the 20 to 30 burners
in his department.
On September 10, Britt gave Melton a lay-off slip, to be turned in
at the personnel office for the money due him. When Melton asked
why he was being let go, Britt told him that it was at the "Big Shot's"
orders. Melton protested that, Cain had told him that he had work
for him in his department and had suggested that Britt take him to
Cain's office. Britt did so. Cain told Britt that he could use Melton,
since he was a good hand, and telephoned to Simmons. After explain-
ing his wishes to Simmons, Cain handed the telephone to Britt, saying
that Simmons wanted to speak to him. Britt said to Simmons, ".. .
this is 3051 that I got . . . remember 3051, Melton?" 5E Britt then
turned to Cain and said that Simmons had given orders to let Melton
go.57 Melton was paid off that day and has not since been rehired.
On the basis of the evidence set forth above, and in the absence of
any showing by the respondent that General Foreman Cain did not
actually have work for Melton on September 10, or that he did not
want him in his department, we agree with the Trial Examiner's
finding that such work was actually available and that Cain requested
Melton's services. We therefore find, as did the Trial Examiner, that
on September 10, Melton was not merely laid off due to a reduction in
force, as claimed by the respondent, but was discharged.
, That the reason for the discharge was discriminatory is indicated
not only by the fact that Melton had previously been warned about his
LS The respondent ' s plant faces Manchester Avenue. The expression "out on Manchester"
was commonly used among employees when referring to being discharged . Cain denied
having made the above statements , which were attributed to him by Melton. On the
record as a whole , we reject Cain ' s denial as untrue , as did the Trial Examiner.
as Number 3051 was Melton's pay -roll number
64 Our findings as to the above -described occurrence, like those of the Trial Examiner,
rest mainly upon Melton's testimony . Although he stated that the job Cain had for him
was in the core room , and the record indicates , and Melton admitted , that there was no
core room in the plant over which Cain had supervision , we do not regard this as sufficient
to discredit Melton's testimony as a whole Britt denied having told - Melton that he was
being laid off at the "Big Shot ' s" orders, and that he had had any conversation with Cain
or with Simmons about Melton's lay-off, and Simmons denied having had any conversation
with Cain about Melton . On the record as a whole , we do not credit their denials. Cain
testified that he did not remember that incident described by Melton , but admitted that
Melton had worked for him and that it was customary for him to call on Britt for burners
when needed , and stated that "Melton and I always got along all right." The respondent
introduced no affirmative evidence to show that Cain did not have work , available for
Melton on September 10.
SCULLIN STEEL COMPANY 1323
A. F. of L. activities, but by General Foreman Britt's repeated refer-
ences to Melton's pay-roll number in his telephone conversation with
Personnel Manager Simmons, which plainly denote some special sig-
nificance having been attached to it so far as the personnel manager
and general foreman were concerned. Although Britt, as a witness,
was asked to give the pay-roll numbers of several other employees
under his supervision, he could cite but one other, and he admitted
that he was not certain of that. Furthermore, the importance attached
to Melton's case is shown by the fact that in May 1944, Britt wrote a
memorandum to Simmons, stating that he had met Melton on the street
a few days before and had asked him whether he was looking for
work, and that Melton said that he was employed at another plant 55
Although Britt claimed to have written "a good many" similar letters
to Simmons, he failed to recall the name or subject matter of a single
other letter.
Under the circumstances, we are convinced, and we find, as did the
Trial Examiner, that Melton's failure to withdraw from the A. F. of L.
was the real reason for his discharge. We therefore find that the re-
spondent, by discharging Melton on September 10, 1943, discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the A. F. of L., encouraging membership in the Inde-
pendent, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
3. Modie Shaw
At the time of his discharge on September 27, 1943, Modie Shaw
had been employed by the respondent for over 25 years, serving most
of that long period as a crane operator. According to the testimony
of his immediate foreman, Peter Fagan, "Shaw was a good crane man."
Shaw had never received complaints about his work, and had trained
other men to operate cranes.
Shaw joined the A. F. of L. in dune 1943, and solicited memberships
in that organization among other employees.59 Early in September,
employee Alvie Byrd, a steward in the Independent, urged Shaw dur-
ing working hours to leave the A. F. of L. and join the Independent,
or he would be "kicked out." s° At about the same time, Shaw was
Is Although Melton denied that he had talked to Britt at any time after leaving the
respondent's employ, Britt's testimony that such a conversation took place was corroborated
by the testimony of employee Randolph Anderson. The respondent does not claim that
Britt 's questioning of Melton as to whether he was working constitutes an offer of rein-
statement
6' Shaw, at the hearing, denied having solicited for the A. F. of L. on company time
or property. We credit his denial.
60 This finding is based on the credible testimony of Shaw. Byrd was assistant secre-
tary of the M A. A. for a period of 2 years , and has been a steward in the Independent since
its organization He admitted having obtained perhaps as many as 50 members for the
Independent, but denied having solicited Shaw or having made the above remarks, which
were attributed to him by Shaw. We agree with the Trial Examiner in rejecting his
denial as untrue.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warned by Core Instructor Phillips that he would be discharged for
being in the A. F. of L.51 Also, at about the same time, Works Manager
Walsh sent for Shaw and asked why "the men out in the shop" were
dissatisfied. About 2 weeks later, Walsh again sent for him, told him
that he had heard that he was engaging in union activities in the shop,
and warned him that if he heard of it again, he would be discharged 62
On these facts, it is clear, and we find, that the respondent had knowl-
edge of Shaw's activities on behalf of the A. F. of L.
On Saturday morning, September 25, Lead Chainman Ezell Jones
assigned Shaw to operate a "gantry" crane, a small crane for the opera-
tion of which the rate of pay is lower, if a regular assignment, than for
the running of the larger cranes which Shaw usually operated. Shaw
became angry. According to his credible testimony, he recalled advice
previously given him by Personnel Manager Simmons, and walked
out of the plant to cool of.33 On Monday morning, he returned to the
plant, but was not permitted by General Foreman Theodore Padkins
to resume work. Padkins sent him to Walsh. Shaw admitted to Walsh
that he had made ."a little mistake" on Saturday, but said that he was
ready to correct it and go back to work. Walsh told him that he would
have to settle the matter with Al Byrd" and Foreman Fagan. Shaw
asked whether he should ask them to come to Walsh's office, but Walsh
would not agree to this. Shaw then went to Simmons' office, where
he was given a "pink slip" and paid off.s5
61 As previously found , Phillips became a supervisor during September 1943 . He denied
having made the above statement, which was attributed to him by Shaw, but we agree
with the Trial Examiner that his denial is unconvincing During the course of his t9sti-
mony, he stated, "I care less about the A F of L than anything on earth " His confused
and contradictory testimony as to Whittaker has been noted in the section devoted to the
latter ' s discriminatory discharge.
62 Walsh admitted having warned Shaw, but testified that he did so at the request of
Foreman Fagan, who had complained about his soliciting His testimony on this latter
point is wholly unsupported by Fagan, whom we find to be a credible witness, as did the
Trial Examiner . Fagan corroborated Shaw ' s testinionv to the effect that Shaw was upset
because someone had unjustly accused him of soliciting When asked whether he knew
anything about Shaw's union connections or had seen him wearing any "button," Fagan
stated that he had "never seen him with anything , never discussed unionism or anything "
On the record as a whole , we agree with the Trial Examiner in rejecting as untrue Walsh's
testimony that Fagan complained about Shaw's union activities, and we find, as did the
Trial Examiner , that Walsh 's unwarianted accusation of Shaw was violative of Section
8 (1) of the Act.
11 Simmons admitted having told Shaw, after Shaw had had a quarrel with his son,
that "the thing for him to do when he got in the heat of a dispute or something like
that was to come in the office if it happened around the place anywhere "
02 Although Shaw originally testified, as the Trial Examiner has found, that Walsh told
him that the matter would have to be settled with Byrd and Fagan, we note that, later
in Shaw's testimony, lie quoted Walsh as having said that it would have to be settled
with Jones ( the lead charnman ) and Fagan . However, no exception has been filed to the
Trial Examiner ' s finding on this point.
Si Walsh testified that he told Shaw that he "did not have all the details" about the
Saturday incident and instructed him to come back in a day or two Padkins , however,
testified that he gave Walsh full details on Saturday morning, and Simmons corroborated
Shaw's testimony that he was paid off on Monday morning, after leaving Walsh's office
Under the circumstances , we agree with the Trial Examiner that no reliance can be placed
upon Walsh ' s testimony on this matter.
SCULLIN STEEL COMPANY 1325
Shaw reported his discharge to Skaggs, general representative of
the A. F. of L., who telephoned to Simmons and asked for Shaw's
reinstatement. Simmons refused, claiming that Shaw had walked
off the job and quit, but agreed that if Shaw would submit an appli-
cation, he would hire him as a new employee. A day or so later, in
Skaggs' office, Shaw telephoned to Sinlxnons and was given the same
answer. Shaw thereafter went to the plant and made out an appli-
cation, but he has never been called to work.6°
The respondent offered no evidence to show that it has hired no
new employees since September 1943 for jobs which Shaw is qualified
to fill. Oil the contrary, Simmons admitted that the respondent had
been on a preferred status with the Ti. S. Employment Service since
"the War Manpower Commission" took over, in the latter part of 1943.
Upon the above facts it is clear, and we find, as did the Trial Exam-
iner, that Shaw did not quit his job, as claimed by the respondent, but
was discharged. The respondent further contends, however, that since
Shaw had refused to do the work which he was requested to do, and
since General Foreman Padkills did not want him back on that account.
it was justified in refusing to permit him to return to work.67
That Shaw made a "mistake" in walking out angry when assigned
to the gantry crane was admitted by the employee himself. The record
indicates, however, that discharge would have been an unusually
severe punishment for an offense of this nature. Thus, it appears
that during the latter part of 1942, another crane man, Roy Elridge,
had walked off his job and remained away for 3 days when ordered
by a chain boss to perform an assignment other than his usual
work, but that on his return he was promptly reinstated without dis-
cipline, and that a few months later, when he physically assaulted
Foundry Superintendent Ohnemus in the plant, he was not discharged'
but only laid off for a few hours. We are, therefore, convinced that
16 Simmons admitted that these conversations took place, but claimed that he said only
that he would give "consideration" to Shaw's application as a new employee In any
event . Shaw has not been reemployed by the respondent
s' According to Padkins ' testimony , he saw Shaw walking out of the plant on Saturday
morning, called to hint and asked where lie was going and when he received no reply,
called Walsh and told him that lie did not want Shaw back in his department. Later
in his testimony, he stated that, "Modie Shaw quit. I don't think Modie Shaw was dis-
charged" Foreman Fagan also testified that he saw Shaw walking out of the door on
Saturday and called to him and asked where he was going and that Shaw "threw his hands
down and gave me that sign that he was going out, that was all there was to it." He
was not consulted as to Shaw ' s discharge or reemployment When asked if he had any-
thing to do with Shaw 's not returning to work he testified : "No sir, I did not. He was
a good crane man in my estimation ." His only part in the discharge was to follow
Padkins' instructions that Shaw, on Monday morning, be sent either to him or to Walsh.
Although Leadman Jones testified that Shaw , before walking out of the plant, used
vulgar language , this was denied by Shaw , and we credit his denial , as did the Trial
Examiner In any event , Padkins admitted that he did not talk with Jones until after
he had told Walsh that he did not want Shaw in his department , Walsh testified that
he did not have the details on Monday a few minutes before Shaw was paid off ; and Sim-
mons did not claim that Shaw ' s alleged use of bad language was a reason for discharging
him or refusing him reinstatement
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that Shaw had walked off his job and remained away for part
of 1 day was not the real reason for the respondent's action in his
case.
In view of the inadequacy of the reason assigned by the respondent,
and under all the circumstances shown by the record, including the
respondent's discriminatory treatment of other A. F. of L. members,
as found above, and the fact that Shaw had been warned that he would
be discharged if he continued his activities on behalf of that organiza-
tion, we are convinced, and we find, as did the Trial Examiner, that
the real reason for Shaw's discharge was his union activity. We,
therefore, find that the respondent, by discharging Shaw on Septem-
ber 27, 1943, and thereafter refusing him reinstatement, discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the A. F. of L., encouraging membership in the Inde-
pendent, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
4. Charles Starks
Charles Starks, a crane operator, was employed by the respondent
in November 1939. He joined the Independent, and through that
organization submitted a written request to the respondent for a raise
for employees operating a certain type of crane. Later, at a meeting
of the Independent, chief steward Will announced that Works Man-
ager Walsh had refused to grant the request. Starks openly chal-
lenged Walsh's reasons, as reported by Will, for denying the request.
As previously stated in connection with the Independent, Starks
testified without contradiction that at a meeting for the election of
officers in May 1944, shop steward Mickens reported to him that Per-
sonnel Manager Simmons had told Mickens and Magrew that Graf
should be elected president of the Independent. During the meeting,
Starks took the floor and vigorously protested against Simmons' inva-
sion of the employees' right of free choice in selecting officers. Starks'
account of his protest, which was uncontradicted, was as follows :
I said a bunch of men that were working for their families, I
could not understand why they would stoop so low to let com-
pany officials tell them who they wanted for president in the
Union when it was supposed to be an independent union amongst
the workers. I told them that I thought they were less than men.
Mickens endeavored to restrain Starks, warning him that he would
get into trouble.
During the following month, Starks asked his foreman, Ariel King,
for two and a half weeks' leave of absence, beginning July 5, which
was granted. On Monday, July 3, Starks reported to Simmons that
King had given him permission to be off beginning the following
SCULLIN STEEL COMPANY 1327
Wednesday, and asked whether it would be possible for him to draw
his pay for the previous week's work, although it was not due until
the following Friday. Simmons told him to ask King, who had
authority to give him an order for such payment. Starks reported
this interview to King, who agreed to see the timekeeper for him.
Later in the day, King reported back that the timekeeper would not
accept his order and advised Starks to see Assistant Works Manager
Ransford Grenshaw. Starks went to the latter's office. After some
discussion, Grenshaw told him to bring in his time card on Wednesday,
and instructed his assistant that when Starks did so, he should be paid
in full, not only for his previous week's work but also for July 3, 4,
and 5. When Starks returned to his job, he told King that he could
not understand why Grenshaw insisted on his being paid in full on
Wednesday. King admitted that he did not understand it either,
and advised Starks to draw only his pay for the previous week.
Starks did not draw any of his pay on July 5, but went on leave
as scheduled. He returned from his trip earlier than expected, and
on July 14 went to the plant and drew his pay. While there he talked
with King, who told him, in effect, that his job would be awaiting him
on July 24. On July 21, however, having been informed by his brother
that his card had been "pulled" in his absence, Starks went to see
Simmons. Simmons admitted that he had the time card and said
that Grenshaw had reported Starks as having left without permission.
He instructed Starks to see Walsh and report back to him the result
of his interview. Starks went to Walsh, who questioned him as to
whether or not King actually had given him permission to be away.
Starks assured him that he had received such permission. Walsh de-
clared that he would have to discuss the matter with Grenshaw and
King, and that he would then notify Simmons. Starks returned to
Simmons and related what Walsh had said. Simmons advised Starks
to go home and telephone him the next day, and expressed the opinion
that in the meantime Walsh would get in touch with him.
When Starks called Simmons the next day, he was informed that
Walsh had made no report on his case. Starks went to the plant,
where Simmons insisted on his seeing Walsh again. Starks tried but
failed to reach Walsh by telephone.
On Monday, July 24, Starks reported for work on the day shift,
but his card was not in the rack. King told him to report to Gren-
shaw. Starks suggested that they both see Grenshaw, and King
agreed to go with him in a few minutes. Starks waited until about
9 o'clock when King appeared, and the two started for Grenshaw's
office. En route, they noticed Grenshaw talking with a number of
men near the gate. King told Starks to wait there while he went for
a cup of coffee. Starks waited for an hour or more, but King did not
return. Finally, Starks went to Simmons and told him that he was
674100-46-vol 65-85
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tired of waiting. Simmons told him to see Walsh. Starks protested
that he had seen Walsh, King , and Grenshaw , and that he could not
"afford to be running around out here going from one official to an-
other and not receiving any consideration," and that he was not going
to "be humiliated" by doing so again . He thereupon gave Simmons
his badge and went home.
Later, Starks registered with the U. S. Employment Service. Its
representative , Harding, after communicating with Simmons, told
Starks that he understood they had been having 'him run around from
one official to another, but urged him to return to the plant, saying
that Simmons had assured him that Starks would be put to work if
he saw Walsh.
Starks returned to the plant, and was taken to Walsh's office by a
plant guard. He asked Al Mann, Walsh's assistant , whether he could
see Walsh. Mann, after consulting Walsh, told Starks that he would
have to see Grenshaw, and that Walsh said that he had nothing more
to do with the case . Starks proceeded to Grenshaw's office . Gren-'
shaw told him that he would talk to Walsh and King, and to get in
touch with him later. The next day, Starks called Grenshaw by tele-
phone and was told that Grenshaw had seen neither Walsh nor King
and could do nothing about it just then . Starks reported back to the
U. S. Employment Service and told Harding what had happened.
Harding declared , "Well ... we won't fool with them any more," and
sent for Starks' release. Shortly thereafter, Starks went to work
elsewhere.
Starks, upon whose testimony the foregoing findings are based, ap-
pears to have been a credible witness, and his testimony was neither
challenged by cross-examination nor disputed by any witness for the
respondent. The respondent offered no explanation for its conduct
toward him and in its brief before the Board states that the situation
was merely the result of a dispute between a foreman and his superior
as to the propriety of the foreman's granting Starks a leave of ab-
sence. At the hearing, counsel for the respondent admitted that after
personally investigating the circumstances, he felt that the manage-
men had been "shunting [Starks] around," that he should not have been
"treated that way," and that he had recommended his reinstatement.
On the above facts, we find, as did the Trial Examiner, that Starks
was, in effect, discharged on July 24, the date of his scheduled return
to work after his leave of absence. In the absence of any explanation
by the respondent for the discharge, and in view of the respondent's
other conduct with respect to the Independent, as found herein, we
infer that the reason for the discharge was Starks' open criticism of
the Independent. We accordingly find that the respondent, by dis-
charging Starks on July 24, 1944, discriminated in regard to his hire
and tenure, of employment, thereby encouraging membership in the
SCULLIN STEEL COMPANY 1329
Independent, and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
5. James Troupe
James Troupe was employed by the respondent in May 1943 as a
burner. In November 1943, he was solicited for membership in the
Independent by shop steward William Mickens. Troupe declined
to join, stating that he did not like unions. Mickens warned him that
membership in the Independent would be beneficial to him in that
employees who were not members would °be the first to be laid off
when the working force was reduced.
In March or April 1944, Lead Burner Scott, under whom Troupe
worked, informed him that Leroy Magrew, previously identified as an
Independent officer, had asked that Troupe be put on a night shift
so that he would quit one of his jobs,911 and accused him of "boosting
the CIO." When Troupe protested that he had the "right of free
speech," Scott agreed, but cautioned him to be careful as to whom he
talked to around there. In view of Scott's statements, we find, as did
the Trial Examiner, that the respondent believed that Troupe was
active on behalf of the C. I. 0.119
In July 1944, after certain pay raises had been approved by the
National War Labor Board, Scott suggested to Troupe that he attend
an Independent meeting. Troupe did so. Apparently some of the
employees were dissatisfied with the raises which had been granted,
and at least one openly accused the Independent representatives of
"working with the company." Troupe asked to speak, and permission
was granted after he had been asked to state his name and clock
number. He questioned, as being undemocratic, the Independent's
method of selecting its officers. The next morning a group of burners
and welders declined to go to work until they received information
from the management concerning the wage increase. Troupe, whom
they appointed as their spokesman, explained the dispute to General
Foreman Britt. Simmons thereafter talked to the men and they re-
turned to work. After his return to the job, Troupe was warned
by Scott, ". . . they are after you and say they will get you . . . you
do not belong to the union [the Independent] and are having too
much to say."
Early in August, chief steward Will assembled a number of burners
during working hours and in Scott's presence urged them to join the
sa Troupe had bought a taxicab before being employed by the respondent , and continued
to operate it when not working at the plant.
The findings in this section with respect to Scott's remarks and conduct are based on
Troupe's credible testimony . Scott either denied or stated that he did not recall most of
the incidents . As previously stated , however, we agree with the Trial Examiner that
Scott was an unreliable witness
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent. Troupe spoke up and said, "When I get that raise in
my hand, I will see you and talk with you."
On or about August 12, Troupe obtained from General Foreman
Britt permission to take a leave of absence until August 28. When he
returned to the plant on that date, he found his time card gone from
the rack and was sent by Britt to Simmons' office. Simmons sent him
back to Britt with the statement that he knew nothing about his card
but had no objection to his working When Troupe reported again
to Britt, the latter declared, "Well, I object," and walked away.70
Troupe told Scott of Britt'$ refusal to let him work and remarked that
since there was too much work available on the outside to "beg for a
job," he would leave. Scott urged him to see Simmons again, and
Troupe did so. Simmons promised to investigate and told Troupe
to go home for a few days. Troupe protested that he had done nothing
wrong and that his family was too large to permit his laying off for
an indefinite period. He informed Simmons that if he left the plant,
it would be with the understanding that the company had refused to
permit him to work. Simmons made no effort to hold him, and Troupe
went back to his department, turned in his equipment, and told Scott
that he was going home. Before he left, however, Scott took Mickens
to him. Mickens told Troupe, "I told you a long time ago to sign one
of these cards. That is what it is all about." He promised Troupe
that if he would sign an Independent card, dating it back to August 11,
the day before he went on leave, he would be put back to work. Troupe
signed. He and Mickens then went to the telephone and Mickens
called Works Manager Walsh. After talking with Walsh, Mickens
instructed Troupe to return to the burning floor, stating that Britt
would be over shortly to put him back to work.71 Britt arrived a few
minutes later, told Troupe to report for work the next day, and said
that he was glad that the Independent had "made an issue of it." He
further declared:
I am for you men in the Independent deal. You stick with the
boys and the Independent, and I am sure there will be no trouble.72
40 The findings as to Troupe 's leave of absence and Britt's refusal to permit him to work
on August 28 rest upon Troupe's credible testimony , which was in large part undisputed or
corroborated by witnesses for the respondent . Britt claimed that, although Troupe had
asked for leave , it was his understanding that he was to bring in a letter showing why
the leave was required, and that Troupe left without doing so. Troupe denied having
been asked to submit a letter. Since Britt admitted that he did not doubt the validity of
Troupe's request, we credit Troupe's denial, as did the Trial Examiner.
71 Walsh admitted that Mickens interceded for Troupe by telephone on August 28, and
that he told Britt to "straighten out the matter ." Mickens also admitted having inter-
ceded for Troupe but stated that he did so in his capacity as shop steward . He claimed
that Troupe had been an Independent member for several weeks at that time , stating that
he had seen Troupe sign an application card . The card, which was produced at the re-
quest of counsel for the Board , bears the date of August 11, which Mickens admitted was
placed on it by Troupe.
72 Although Britt ' s account of this conversation differs in some respects from that of
Troupe, he did not specifically deny having told Troupe that there would be no further
trouble if he "stuck with " the Independent.
SCT LLIN STEEL COMPANY 1331
Troupe was still employed by the respondent at the time of the
hearing, but had received no pay for August 28, the day on which he
was scheduled to return to work after his leave of absence.
On the above facts, we agree with the Trial Examiner's finding that
Troupe was in effect discharged on August 28, and with his inference,
based on the fact that Troupe was promptly reinstated upon joining
the Independent, and was then advised by General Foreman Britt to
"stick with" that organization, that the real reasons for the discharge
were Troupe's previous failure to join the Independent and the re-
spondent's belief that he had been active in the C. I. O. We accord-
ingly find that the respondent, by discharging Troupe on August 28,
1944, discriminated in regard to his hire and tenure of employment,
thereby encouraging membership in the Independent and discouraging
membership in the C. I. 0., and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
6. James Smith
The complaint, as amended during the hearing, alleged that the
respondent, on or about May 10, 1944, demoted James Smith, and
thereafter refused or failed to reinstate him to his former or a sub-
'stantially equivalent position, because he refused to join, aid, and assist
the Independent, and that it thereby encouraged membership in the
Independent. The Trial Examiner found that the evidence did not
sustain these allegations, and recommended that the complaint be dis-
missed as to Smith. No exceptions have been filed to said finding and
recommendation. Having examined the record with respect to Smith,
we agree with the Trial Examiner. We therefore find, as did the Trial
Examiner, that the respondent has not discriminated with respect to
Smith's hire and tenure of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, 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.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and, for
reasons which follow, from in any manner interfering with, restrain-
ing, and coercing its employees in the exercise of their rights guar-
anteed in Section 7 of the Act. The respondent has unlawfully assisted
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Independent and has discharged five employees in violation of Sec-
tion 8 (1) and (3) of the Act. We are convinced and find that the
respondent's illegal activities, which include discriminatory dis-
charges, conduct going "to the very heart of the Act," 73 disclose a
purpose to defeat self-organization and its objects and an attitude of
opposition to the purposes of the Act. The fact that we have had occa-
sion in two previous cases 74 to issue orders against the respondent
pursuant to alleged violations of Section 8 (1) or Section 8 (2) of
the Act lends additional force to our conclusion as to the respondent's
purpose and attitude.7' Because of the respondent's unlawful conduct
and its underlying purpose, we are convinced that the unfair labor
practices found are persuasively related to the other unfair labor
-practices proscribed and that danger of their commission in the future
is to be anticipated from the respondent's conduct in the past.76 The
preventive purposes of the Act will be thwarted unless our order is
coextensive with the threat. In order therefore to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of un-
fair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the
Act, we shall order the respondent to cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the Act.
We shall also order the respondent to take certain affirmative action
designed to effectuate the policies of the Act. We have found that
the respondent has unlawfully assisted the Independent in violation
of Section 8 (1) of the Act. In order to restore the status quo and
to free the employees from this restraint upon their freedom in self-
organization, we shall order the respondent to withdraw and withhold
all recognition from the Independent as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until we certify said
organization as their representative. Since we have found that the
respondent's contract with the Independent is invalid and since the
existence of the contract perpetuates the effects of the respondent's
unlawful assistance to it, we shall further order the respondent to cease
and desist from giving effect to its contract of August 2, 1942, with
the Independent, or to any extension, renewal, or modification thereof,
or to any other contract it may have made with the Independent.
73 N L. R. B. v Entwistle Mfg. Co, 120 F. ( 2d) 532, 536 (C. C. A. 4). See also, N. L.
R. B v Automotive Maintenance Machinery Co, 116 F (2d) 350, 353 (C. C. A. 7), where
the Court observed : "No more effective form of intimidation nor one more violative of the
N. L R Act can be conceived than discharge of an employee because he joined a
union . . .
74 Matter of Scullin Steel Company, 37 N. L. R. B . 473; Matter of Scullin Steel Com-
pany, a Corporation , 49 N. L. R. B. 405
75 N. L. R. B v. Bradley Lumber Co., 128 F. ( 2d) 768 (C. C. A. 8).
79 See N. L. R . B. v. Express Publishing Company, 312 U. S. 426; May Department Stores
v. N. L. R. B., 66 S. Ct. 203.
SCULLIN STEEL COMPANY 1333
Nothing in this order, however, shall be deemed to require the re-
spondent to vary or abandon those wage, hour, and other substantive
features of its relations with the employees themselves which the
respondent may have established in performance of the contract as
extended, renewed, modified, supplemented, or superseded.
We have also found that the respondent discriminated in regard to
the hire and tenure of employment of the following named employees
on the dates set opposite their names :
Needham Whittaker, August 31, 1943.
Gennie Melton, September 10, 1943.
Modie Shaw, September 27, 1943.
Charles Starks, July 24, 1944.
James Troupe, August 28, 1944.
We shall therefore order the respondent to offer Needham Whit-
taker, Gennie Melton, Modie Shaw, and Charles Starks, immediate
and full reinstatement to their former or substantially equivalent
positions. We shall also order the respondent to make said employees
and James Troupe whole for any loss of pay they may have suffered
by reason of the respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which he nor-
mally would have earned as wages from the date of the respondent's
discrimination against him to the date of the respondent's offer of
reinstatement, less his net earnings 17 during said period.
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. American Federation of Labor and its Affiliated International
Unions, United Steelworkers of America, District No. 34, C. I. 0., and
Independent Steel Workers Organization are labor organizations, and
Scullin Employees Association and Scullin Steel Company Employees'
Mutual Aid Association, Inc., Were labor organizations, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Needham Whittaker, Gennie Melton, Modie Shaw, Charles Starks,
and James Troupe, thereby encouraging membership in Independent
Steel Workers Organization and discouraging membership in Ameri-
can Federation of Labor and its Affiliated International Union, and
United Steelworkers of America, District No. 34, C. 1. 0.1 the respond-
?'By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L R. B 440 Monies received for work performed upon
Federal, State. county, municipal, or other work-relief projects shall be considered as
earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of the employees named in Appendix A, at-
tached hereto, or of James Smith.
6. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (2) 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
Act, the National Labor Relations Board hereby orders that the re-
spondent, Scullin Steel Company, St. Louis, Missouri. and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Labor
and its Affiliated International Unions, United Steelworkers of
America, District No. 34, C. I. 0., or any other labor organization, or
encouraging membership in Independent Steel Workers Organization
or any other labor organization, by discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of their
employment;
(b) Recognizing Independent Steel Workers Organization, or any
successor thereto, as the representative of any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until, said organization shall have been cer-
tified by the Board as such representative;
(c) Giving effect to its contract of August 2, 1942, with Independent
Steel Workers Organization , or to any extension, renewal , or modifica-
tion thereof, or to any other contract or agreement between the re-
spondent and said labor organization, unless and until said organiza-
tion shall have been certified by the Board as the representatives of its
employees ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
SCULLIN STEEL COMPANY 1335
labor organizations, to join or assist American Federation of Labor
and its Affiliated International Unions, United Steelworkers of
America, District No. 34, C. I. O.; or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the-policies of the Act :
(a) Withdraw and withhold all recognition from Independent Steel
Workers Organization, or any successor thereto, as the representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the Board as such represent-
ative;
(b) Offer to Needham Whittaker, Gennie Melton, Modie Shaw,
and Charles Starks immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges;
(c) Make whole Needham Whittaker, Gennie Melton, Modie Shaw,
Charles Starks, and James Troupe for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages from the date of the respond-
ent's discrimination against him to the date of the respondent's offer
of reinstatement, less his net earnings during said period;
(d) Post at its plant at St. Louis, Missouri, copies of the notice
attached hereto, marked "Appendix B." Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including 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;
(e) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith. °
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent has discriminated in regard to the hire and tenure
of employment of the employees named in Appendix A, attached
hereto, and of James Smith, and that it has engaged in unfair labor
practices within the meaning of Section 8 (2) of the Act, be, and it
hereby is, dismissed.
1336 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
I. LADLEMEN
APPENDIX A
7: 00 a. m. to 3: 00 p. m. shift
Clarence Routh_______________________ Ladleman
John Koechling_______________________ Ladleman
George Hilderbrand------------------- Ladleman
Charles Hilderbrand__________________ Ladleman
Charles Schmerund___________________ Ladle Helper
Jesse Worth__________________________ Ladle Helper
John Blair___________________________ Ladle Liner
3: 00 p. m. to 11: 00 p. m. shift
William Privett----------------------- Ladleman
Richard Humphrey ___________________ Ladleman
Garret Burgess_______________________ Ladle Helper
Carroll Hancock______________________ Ladleman
Howard Shehorn _____________________ Ladleman
Joseph Anderson_____________________ Ladle Helper
Henry Busick________________________ Ladle Liner
11:00 p. m. to 7: 00a. m. shift
Clarence Pond________________________ Ladleman
Morris Hedley________________________ Ladleman
Floyd Hancock_______________________ Ladlenian
Harold Schafer_______________________ Ladle Helper
II. MECHANICAL AND ELECTRICAL DEPARTMENTS
3: 00 p. m. to 11:00 p. m. shift
B. F. Walker_________________________ Electrican (returned at 11: 00 p. m.)
Urban H. Drieseward_________________ Electrician
Hardy Thebeau_______________________ Blacksmith Helper
Edward Willman--------------------- Maintenance
Henry Schultz________________________ Maintenance
Earl R. Ward________________________ Pipefitter Helper
Patrick J. Coleman___________________ Blacksmith Helper
Eldrid C. Frakes_____________________- Maintenance
James Branham______________________ Maintenance
James Lester Branham_______________ Maintenance
James Conley________________________ Pipefitter Helper
Jess B. Meade ----------------------- Maintenance
Clyde Al. Buckley____'________________ Maintenance
Eli A King__________________________ Maintenance
J. George Campbell___________________ Tool Room (returned about 9: 00 p. m.)
Harry Ford__________________________ Pipefitter Helper
Oliver Burns_________________________ Maintenance
Neal Holloway------------------------ Tool room
Gen. Holder__________________________ Tool room
Sam D. Whittle______________________ Maintenance
SCULLIN STEEL COMPANY 1337
Edward Leebolt______________________ Pipefitter Helper
Geo. McNaught_______________________ Electrician
Stanley Hoelter__________________°___ Tool room
11: 00 p. in. to 7: 00 a. in. shift
Jos. Lurtz____________________________ Maintenance
Alvin J. Light________________________ Maintenance
Archie Tungate_______________________ Maintenance
Lowe C. Williams--------------------- Pipefitter Helper
Virgil Current________________________ Pipefitter Helper
Thomas McIntyre---------------------- Maintenance
Elzy McKinley Dunn__________________ Maintenance
Henry E. Domian_____________________ Pipefitter Helper
John Mitchel Wiltshire- ______________ Pipefitter Helper
Harry J. Vierling_____________________ Maintenance
William Eckstein_____________________ Maintenance
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We hereby withdraw recognition from Independent Steelwork-
ers Organization as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and we will withhold recognition from it or
any successor thereto for any of the above purposes, unless and
until it shall have been certified by the Board as the representative
of our employees.
We will offer to the employees named below immediate and full
reinstament to their former or substantially equivalent positions
without prejudice to any seniority or other rights or privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them.
Needham Whittaker
Gennie Melton
Modie Shaw
Charles Starks
We will make James Troupe whole for any loss of pay suffered
as a result of the discrimination against him.
We will not give effect to our contract of August 2, 1942, with
Independent Steel Workers Organization, or to any extension,
renewal, or modification thereof, or to any other contract or agree-
ment with said labor organization, unless and until said organiza-
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion shall have been certified by the Board as the representative of
our employees. o
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist American Federation
of Labor and its Affiliated International Unions, United Steel-
workers of America, District No. 34, C. I. 0., or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion. All our employees are free to become or remain members
of said unions, or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organi-
zation.
SCULLIN STEEL COMPANY,
Employer.
Dated----------------------- By------------------------------
(Representative ) (Title)
NOTE.-Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.