Scullin Steel Co.

National Labor Relations Board - Board Decisions

May 4, 1943

49 N.L.R.B. 405 (N.L.R.B. 1943)

In the', Matter of SctiLLIN STEEL COMPANY, A CORPORATION' . and,
AMERICAN FEDERATION OF LABOR
Case No. C-2556.-Decided May 4, k943
DECISION
AND
ORDER
. On, March _ 22, ;1943, .the Trial -Examiner issued his Intermediate
RE port in the above-entitled proceeding, finding that the respondent
had 'engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom, and that it take
certain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the Union filed exceptions to the
Intermediate Report. ' The' Board has considered 'the'rulings made
by the'Trial Examiner at the hearing and finds that,no prejudicial
error was committed. The rulings are hereby affirmed.
The -Board has considered the Intermediate Report, the Union's
exceptions, and the entire -record in the case and 'hereby adopts' the'
findings, conclusions, and recommendations of the Trial Examiner.
ORDER.
Upon the entire record in the case,,and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Scullin Steel Company;
St. Louis,' Missouri, its officers, agents, successors and assigns, shall
1. Cease and desist from :
(a) In any manner interfering with," restraining, or coercing its
employees-in the exercise of the right to self-organization, to form,
join,- or assist labor organizations, 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') Rescind immediately 'the 'rule imposed on July 2, 1937, and
November 17, 1941, insofar as it extends to the employees' own time ;
49 N. L; R. B., No. 54.
405
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post immediately in conspicuous places throughout its plant
at St.Louis, Missouri, and maintain for a period of at least sixty (60)-
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraph 1 of this Order;
and (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a) of this Order; ,
(c) 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.
INTERMEDIATE REPORT
Mr. Lawrence H. Whitlow, for the Board.
Carter, Bull d Garstang,' by Mr. James E. Garstang, of St . Louis, Mo., for the_
respondent.
Bartley d Mayfield, by Mr. Waldo C. Mayfield, of St. Louis, Mo., for the A. F: L.
STATEMENT OF THE CASE
Upon an amended charge dul y filed by American Federation of Labor, herein
called the A. F. L, the National Labor Relations Board , herein called the Board,
by the.Regional Director for the Fourteenth Region (St. Louis, Missouri), issued
its complaint , dated January 21, 1943, against Scullin Steel Company, St . Louis,
Missouri , herein called the respondent , alleging that the respondent had engaged
and was engaging in unfair labor practices affecting commerce , within the meaning
of Section 8 (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together
With notice of hearing , were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance:
(1) that the respondent discharged` Thomas Stark on or about June 29, 1942,
and Patrick Stephens on or about June 30, 1942, and thereafter refused to reinstate
them because they joined and assisted the A . F. L. and affiliated labor organiza-
tions, thereby discriminating in regard to their hire and tenure 'of employment
and discouraging membership in the A. F. L. and affiliated labor organizations ;
and (2 ) that by the foregoing conduct, by promulgating and posting ' a rule pro-
hibiting oral of written solicitation of membership in any labor organization on
the respondent's time or property and providing that violation thereof would be
grounds for disciplinary action; and by urging , warning and persuading em-
ployees to refrain from aiding, becoming , or remaining members of the A. F. L.
and affiliated labor organizations and urging employees to join and aid Inde-
pendent Steel Workers Organization , herein called the Independent , the respond-
ent-interfered with , restrained , and coerced its employees in the exercise of the'
rights guaranteed in' Section 7 of the Act.
Thereafter, the respondent filed its an to the complaint, denying that it had
engaged in unfair labor practices, and raising certain affirmative defenses.
Pursuant to notice , a hearing was held at St. Louis, Missouri , on February 8,
9, and 10,, 1943, before Robert F. Koretz , the undersigned Trial Examiner duly
designated by the Chief Trial Exaniiner. The Board, the respondent, and the
A. F`. L. were represented by counsel ' and participated in the healing: Full oppor-
tunity to be heard, to examine and cross-examine witnesses , and to, introduce
evidence bearing on the issues was afforded all parties . At the opening of the
SCULLION STEEL COMPANY 407
hearing, the respondent moved to dismiss the, allegations of the amended charge
and the complaint regarding the promulgation and posting of a rule prohibiting
solicitation of membership in. any labor organization . The motion was denied
by the undersigned . At the close of the hearing the undersigned , without objec-
tion, granted a motion by counsel for the Board to conform the pleadings to the
proof respecting formal matters . At this time the undersigned reserved ruling
on a motion by the respondent to dismiss the complaint . The motion is denied
to the extent that it is inconsistent with the findings and conclusions set forth
below. At the conclusion of the hearing , counsel for the Board and for the
respondent argued orally before the undersigned . Subsequent to the hearing, the
respondent filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Scullin Steel Company, is a Missouri corporation having its
principal office and place of business at St Louis, Missouri. It is engaged in the
manufacture, sale, and distribution of iron and steel products, consisting, among
other things, of undertrucks for railroad cars, steel castings, and shell casings.
Approximately $300,000 worth of raw materials, including iron, manganese, lime-
stone, various alloys, and natural gas, are shipped each month to the respondent's
plant. Over 50 percent of these raw materials are shipped to the plant from
points outside Missouri. Each month the respondent sells and distributes
finished products valued at approximately $700,000, of which about 70 percent is
shipped from the respondent's plant to points outside Missouri. The respondent
employs approximately 3100 persons at its plant. -
The respondent admits that it is engaged in commerce, within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
American Federation of Labor and Independent Steel Workers Organization
are labor. organizations. They admit to membership employees of the respondent.
A. Background; interference, restraint, and coercion
III. THE UNFAIR LABOR PRACTICES
For several years, various labor organizations have engaged in organizational-
activity among the respondent's employees In the fall of 1936 the C. I. O.'
started a membership campaign. Thereafter, the respondent and the C. I. O.
entered into a "tentative agreement", which contained a provision that the re-
spondent would recognize the C. I. O. as exclusive representatives of the em-
ployees when the C. I. O. secured the designation of over 50 percent of the
employees. The C. I. O. did not obtain such designation ; the :agreement expired
in February 1938; and the C. I. O.'s. organizational effort was abandoned. In the
latter part of 1937 a labor organization named Scullin Steel Company Employees'
Mutual Aid Association, hereinafter called the Association, was formed among
the respondent's employees In 1939 the C. I. 0 renewed its organizational
efforts. Upon an amended charge filed by the C. I. 0., the Regional DirectorI
1 Steel Workers Organizing Committee, Local No 1062, affiliated with Congress of
Industrial Organizations, was referred to in the record and is referred to herein as the
C. I. O. .
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued'a complaint against the respondent in Case No. XIV: C-514 on bctober'25,
'1911, and 'a hearing was held thereon. Pursuant'to a stipulation dated November
:'15, 1941, between the respondent, the 'C: I. 0., and counsel for the Board, the
Board issued a Decision and Order on December 11,,1941, providing, `inter ilia,
that•the respondent withdraw recognition from and disestablish the Association,
cease and desist from giving effect to a contract previously entered into with the
Association, and post certain notices to its employees.' On November 22, 1941,
the respondent' posted a notice in' compliance with the Board's Order.' There-
,hfter,'the Independent was formed,'and following a consent election in 'April 1942
the respondent and the Independent entered into a exclusive bargaining contract
on July 28, 1942. As set forth more particularly hereinafter, the A. F. L. started
to organize employees' in the latter. part of'June 1942.
On July 2, 1937, the respondent posted and has since maintained in conspicuous
places throughout its plant the following notice:
JULY 2, 1937.
NOTICE To ALL FOREMEN
ON AND AFTER THIS DATE, ANY EMPLOYEE OF SCULLIN STEEL dO. WHO DURING
WORKING HOURS, OR AT ANY TIME ON THE. PROPERTY OF THE,COMPANY, SHALL
SOLICIT AND OTHER EMPLOYEE TO rJOIN ANY UNION. OR OTHER ASSOCIATION, OR
SHALL ABSENT HIMSELF FROM ' THE WORK ASSIGNED HIM, UNLESS FOR A REASON
eONNECTED WITH SAID WORK OR UNDER INSTRUCTIONS FROM HIS FOREMAN-OR
SOMEONE IN AUTHORITY" OR FOR A REASON IMPOSED BY NATURE ,- SHALL BE
LIABLE TO DISCHARGE .
r. (S) J: D. WALSH,
Works Manager.
On November 18, 1941, the respondent posted and thereafter maintained in
conspicuous places throughout its plant the following notice`
November 17, 1941.
To all employees of the Company, occupying the positions of Works Manager,
Assistant Works Manager, Foremen, Asst. Foremen, or Positions in any
-, , ,Supervisory Capacity: - , . , • - , , f
Take. Notice that it is a-positive rule of this Company that•no person
occupying a supervisory position over employees can in any, way interfere
with the freedom of action of ,any employee as to his right to become affili-
ated with any labor organization of any kind, or make any suggestion or
or participate in any conversation with ariy'employee as to whether he shall
join or not join any labor organization NO EMPLOYEE OF TIITS COMPANY
SHALL BE PERMITTED TO SOLICIT MEMBERSHIP OF ANY OF THE EMPLOYEES IN ANY
LABOR ORGANIZATION ON COMPANiY TIME OR PREMISES, OR TO CRITICIZE, OR TOti
ARGUE WITH, THEM ON COMPANY TIME OR PREMISES IN REGARD TO THEIR BECOM-
ING MEMBERS OF SUCH ORGANIZATIONS.
This rule shall be strictly enforced. *It* is understood that any, employee
who does not obey this order shall be subject to 'discharge.
(S) HARRY SCULLIN,
Harry Scullin,
President.
2 Matter -of Scullin Steel Company, a Corporation and Steel Workers Organizing Com-
mittee, Local, No. 1062, affiliated with the 0. 1. 0. and Scullin Steel Company Employees'
Mutual Aid Association, party to the contract , 37 N. L. R. B. 473. A consent decree en-
forcing this Order was entered in the Circuit Court of Appeals for the Eighth Circuit on
February 14, 1942. '
I In January 1943, the last five words of this notice were deleted and the following
words substituted: "SHALL BE SUBJECT TO DISCIPLINARY MEASURES."
4A copy of this notice was delivered to all supervisory employees.
:SCULLION STEEL-COMPANY 409
In its contract with the respondent dated July 28, 1942, the Independent agreed
"that there will be no solicitation of any employee for membership on company
time or premises."
The complaint alleges that' the respondent, by promulgating and posting the
,rule against' solicitation, ,interfered with, restrained and coerced its employees.
In its answer • to the complaint, the respondent averred that "such rule was
,adopted and such notices posted in absolute good faith, and. with the under-
standing that-such rule was clearly reasonable, and that respondent, as-an em-
ployer had the right on its premises to demand' the :single-mincled attention of
.its employees to their work, and that the performance of work with efficiency
,and, without physical danger' depended not only upon 'the' devotion' of the em-
ployees to their work, but also upon the amity with which they cooperated, and
that said rule was established at a time when different labor organizations were
.contending for bargaining rights-for the purpose of securing efficiency; harmony
and safety." '
James Walsh, works manager of the respondeht, testified that the rule was
'promulgated primarily to avoid "dissension among the men," since in the various
efforts to organize '.'men get into arguments about a choice of their own."
According to his further testimony,'the notice dated July 2, 1937, was' posted at
.that time because there was "too much running around in various departments."
As to *the notice dated November 17,, 1941,".counsel for the respondent stated'
that this notice was composed :by him and posted upon his advice, following the
hearing in ' Case No. XIV-C-514,' wherein there was evidence that competing
-labor organizations were causing contention among the employees, that super-
visory employees were permitting solicitation for union membership on 'company
time and property, and that supervisory employees spoke to employees regarding
-these organizational matters? Counsel for the respondent further stated that
each of 'the competing -labor organizations had lodged complaints with the re-
spondent' regarding -solicitation by its rival. The foregoing explanations for
the probiulgatioh and posting of the rules- set forth above are supported by
uncontradicted evidence of some three specific instances of disorderly conduct
in the plant arising from union solicitation and discussion,' and by the testimony
of Thomas Stark, a witness called by the Board, that there had been bitter
.contention and argument among the employees regarding union matters. How-
. ever, 'there ' is no evidence that union solicitation and discussion, which has
It was 'stipulated that his statements should be considered as if given under oath.
s See p. 3, supra:
The statements of counsel for the respondent are supported by the record in Case No.
XIV-C-514, which was made a part of-the record in the instant case In this connection.
SThese incidents, according to the uncontradicted testimony of Walsh and Harry
Simmons , personnel director , were as follows : ( 1) In 1937 or 1938, an unnamed employee,
who 'was an officer of the C. I. 0., became involved in'an argument with other employees
t"about )oining,the union" and threatened that "he would not let them get on the crane,
and if they got on the crane he would knock them down." In July or August 1941 one
Taylor, an employee, "came in pretty well loaded one pay day" and went "up and down
the pay line with C. I. 0. cards asking them [ employees ] to loin, pulling fellows by the
'sleeves and by the arm." On the following morning, Taylor and two other employees,
all of whom had been drinking , sought "to prevent five or six chippers from going to
work in No. 2 plant because they would not join the C. I. 0." This incident started
before the time these employees were scheduled to start work , but it extended into their
working hours . At about the same time , one Ferguson , an employee , "was constantly
jabbing and gibing at various men in the plant because they did not join this union, or
because they belonged , to another union, and it got pretty hot. They got to calling one
,another vile names and we had to break it up." There Is testimony concerning other
'instances of union solicitation within the plant, -none of which , however, was attended
by any disorder.
410 ,DECISIONS OF NAT'LONAL LABOR RELATIONS BOARD
continued despite the respondent's rule, has affected production Walsh testified
that the respondent'' had a good production record and that he had not, observed
any decrease in production.
Although the notices, by their terms, prescribe only union solicitation, criti-
cisln or argument, the respondent has, in practice, prohibited other types of solici-
tation. Works Manager Walsh testified that the no-solicitation, rule "takes in
everything" and, to illustrate, testified without contradiction that the respondent
has prevented solicitation in an organization called the Mantle Club, "some sort
of good fellowship club"; and that the respondent also stopped the selling of
"chances" by employees. Harry Simmons, personnel director of the respondent,
testified without contradiction that the respondent consistently has refused to
permit various organizations to come into the plant for the purpose of soliciting
memberships or making collections. According to the testimony of Walsh and
Simmons, the only 'solicitation which is permitted in the plant is the following:
(1) When an employee is ill and needs financial, assistance, or when an em-`
ployee dies and his fellow workers desire to purchase flowers, solicitation of
funds is permitted within the department where the ill or decreased employee
worked, provided that permission is first obtained from Walsh's office. (2)
Charles Porter, pneumatic tool repair man, has been, permitted since 1934 to
solicit new employees, at the time of their physical examination in the plant .
dispensary, to sign pay-roll deduction cards for health and accident benefits, pro-
vided by Benefit Association of Railroad Employees.9 (3) New lymployees, after
completing their physical examination, are sent to the respondent's personnel
office, where they are offered the opportunity to take a group life insurance
policy and a group hospitalization insurance policy issued by certain insurance
companies.
There was also testimony by three employees that solicitation for "weather
tickets", the "numbers game", and "lottery tickets" occurred within the plant.
One of these employees testified that his supervisor witnessed such solicitations.
However, he did not specify when or where this occurred. Walsh testified with-
out contradiction that on one occasion the bead of the department concerned
stopped such solicitations." - Despite the specific prohibition against union solici-
tation, there was, according .to the testimony, both of witnesses for the Board
and witnesses for the respondent, considerable union solicitation: in the plant.
However, this solicitation, according to the testimony, was engaged in at various
times by adherents of the C I. 0, the Independent, and the A. F. L. There is
no evidence that supervisory employees were present on these occasions, and
it was conceded that such solicitation often was done surreptitiously. The
respondent's plant is composed of many buildings, which are spread over' 90
acres. Where such solicitation is shown to have come to the respondent's atten-
tion, the employees involved have been reprimanded or disciplined by lay-off
or discharge for such conduct. Under all the circumstances, the undersigned
.finds that the evidence fails to establish that the respondent has permitted
any solicitation on company time- or property except in the three particulars
mentioned above
Although. the rule by its terms prohibits argument or criticism regarding
unions, employees were permitted, while at work, to discuss other subjects, such
G Porter engages in this solicitation before he starts his regular hours of work. He
is paid for this solicitation by Benefit Association of Railroad Employees.
"Walsh testified that these was but one occasion on which "weather tickets" were
sold and' that "as soon as we found out we stopped it " As to the "numbers game," Walsh
testified' "The only thing about the numbers game might be the colored fellows like to
play policy ... We would like to stop it."
I
SCULLION STEEL COMPANY 411
as baseball and politics. There is no showing, however, that discussion of such
subjects has led to any controversy or disorder tending to disturb plant discipline.
The record shows that at least some of the employees have leisure periods
during which they discuss various subjects, as mentioned above. Thus, Patrick
Stephens, an electrician, testified without contradiction that at times during
working hours , when there is no specific task for him to perform , he could "talk
or walk around among the fellows." (And Personnel Director Simmons testi-
fied that "most of the employees" who work from 7 a. in to 3 p. in. have no fixed
lunch period, but that "They do eat lunch at intervals when they are not working
and do not have something to do " However, it is plain that employees are com-
pensated at their regular wage for leisure,periods during working hours.
The undersigned is convinced and finds from the foregoing facts that, in pro-
mulgating and enforcing the rule against union solicitation, criticism, and argu-
ment, the respondent was motivated by a desire to preserve plant discipline, and
that, to the extent that the provisions of the rule comport with that objective,'
the promulgation and enforcement of the rule was not violative of the Act. Rival
unions have vied for several years to obtain the adherence of employees. So
far as the record shows, the rule has been enforced without discrimination against
anS particular organization, and, in practice, the rule has been enforced against
all types of solicitation, except in three particulars to which the undersigned
does not attach importance. While the rule by its terms proscribes only union
discussion and activity, as distinguished from other types of employee conversa-
tion and conduct, the evidence establishes that union activity alone has given
rise to disorders which, though minor in nature, tend to disturb plant discipline.
The undersigned also is convinced, however, that the prescriptions embodied
in the rule extend beyond the bounds of reasonable necessity in seeking to prevent
the mischief for which the rule was designed, and that, to that extent, such pro-
unduly fetter the employees in the exercise of their right to self-
organization. As set forth above, the respondent averred in its answer that the
respondent "had the right on its premises to demand the single 'minded attention
of its employees to their work, and that the performance of work with efficiency
and without physical danger depended not only upon the devotion of the employees
to their work, but also upon the amity with which they cooperated . .' The
undersigned is of the opinion that it is neither necessary nor reasonably calcu-
lated fo ensure plant discipline that employees be required to refrain from orderly
union discussion and activity when they are on plant property on their own
time" Sections 8 (1) of the Act forbids an employer to interfere with the right
"gee the case of General Chemical Company, 11 L. R R. 95, 97, where the National
War Labor Board, speaking through Public Member Morse, said
It is the opinion of the [National War Labor] Board that the recommendation
of the panel on union activity should be modified to read that no soliciting of mem-
bers or other union activities shall be carried on by any employee or by any repre-
sentative of the union during working hours. The Board has observed the workings
of the pioiisiont on union activity of many collective-bargaining agreemelits which
attempt in vailous language to prevent the soliciting of new union members on com-
pany property It is the opinion of the Boaid that any such restriction does not
represent a very realistic approach to,the problem, nor is it conducive to industrial
harmony
It is most natural that when a group of employees sit down together during the
lunch hour or meet in the locker room prior to going on duty or meet together at
other times A nd places, even though on company propeity , one topic of conversa-
tion is likely to be the activities of the union- To provide ' that a union member shall
be dismissed from employment or disciplined in some other way if he discusses union
affairs with a non -union -fellow employee Aulule on company piopeity tends only to
412 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
of employees to self-organization and'other rights guaranteed in Section 7. While,
in the opinion:of the undersigned, an employer may nevertheless promulgate and
enforce non-discriminatory reasonable rules designed to maintain plant discipline,
and to that extent limit the exercise of the employees' statutory rights, he may
not further encroach upon these rights by outlawing union activity under cir-
cumstances which present no clear or convincing expectancy that such activity
will affect discipline of-employees in the performance of their work.. The under-
signed is convinced and finds that the extension to the employees' own time of the
prohibition, against union solicitation, criticism, and argument contained in the
rule of July 2, 1937, and of November 17, 1941, constituted an unreasonable impedi-
ment to self-organization which interfered with, restrained, and coerced the
respondent's employees in the'exercise of the rights guaranteed in Section 7 of
the Act 12
B. The alleged discrimination in. regard to hire and tenure of employment
Thomas Stark was employed by the respondent on June 30, 1936, as a mainte-
nance helper. In September 1936 Stark became a leader in general repair work."
Stark was laid off in December 1937, returned to work about October 1939, and
was discharged on July 3, 1942.,
Stark joined the C. I. 0 in the latter part of 1936 He became president of
this organization in the fall of 1940, and continued in this capacity until about
April 1942, when the C. I. 0 was abandoned. Stark, as an officer of the C. I O.,
attended several meetings with representatives of the respondent
As set forth hereinafter, in the latter part of June 1942, Patrick Stephens
initiated a campaign to organize employees in the A. F. L Shortly after 3 p. in.
on Friday, June 26, Stephens, who was preparing to start work, asked Stark,
while the latter was working, what Stark thought of the A F L. Stark answered,
"It is all right with me " Stephens then gave Stark 10 or 12 A., F L authoriza-
tion cards. Shortly after 4 p in., when Stark finished work, he signed an
authorization card in the Waldemar Cafe, which is located near the main gate
of the respondent's plant and where employees frequently gather" Thereafter,
drive such activity "underground" and fosters suspicion, distrust, and devices of
subterfuge.
The non-union member, in turn, is entitled to protection from coercion and
threats on the part of union members who may seek to impose upon him union
discussions to which he does not care to listen. But in a free society neither he
nor the company is entitled to a ruling that denies union members the right to dis-
cuss union affairs and the benefits of membership in the union with employees dur-
ing leisure time periods, provided that they do so in a legitimate and proper manner.
However, management is entitled to insist that no so-called union activity be
carried on within its plant while men are at work ...
",See Matter of United States Cartridge Company and International Brotherhood of
Firemen d Oilers, Local No. 6, affiliated with the American Federation of Labor, et at,
47 'N L. R. B, 896; Matter of The Denver Tent and Awning Company and Ware-
house and Distribution Workers Union, No. 217, I. L. W. U., 47 N. L R. B., 586.
23 A leader is assigned by the master mechanic or by his foreman to perform par-
ticular maintenance jobs. His superior may assign one or more helpers to assist him.
14 The findings regarding Stephens' solicitation of Stark are based upon the testimony
of both these employees. Their testimony contains inconsistencies. Stark at first testi-
fied that Stephens approached him on Thursday, June 25. At a later point in his testi-
mony, he stated that lie had signed the authorization card, which was introduced in
evidence, on Friday, June 26, the date appearing on the card. He further testified that
Stephens was present at the Waldemar Cafe when he signed. Stephens testified that
he approached Stark on a Wednesday and .that he and Stark signed their cards "to-
gether" on Friday, June 26, at the Waldemar Cafe. Stephens immediately changed his
testimony, stating that he signed his card before 3 p. in., when he started work ; and
that he was not present when Stark signed.
SCULLION STEEL COMPANY 413
Stark solicited some 75 employees to sign such cards, and secured the signatures
of about 12 employees. According to Stark's testimony, most of this organiza-
tional activity occurred in the Waldemar Cafe. This cafe is about 40 feet long
and 22 feet wide ; food is served at a counter and at tables. Stark and Stephens
testified that supervisory employees .come into this cafe on several occasions.
They named Paddy Herbert, assistant open hearth superintendent, Claude Null,
a working foreman, Ed Eoff, a shift foreman, and William J. Davis, chief elec-
trician. While Stark and Stephens testified generally that these persons were
in the cafe during the period in which,they engaged in solicitation, they, were
unable to specify an occasion on which any of said supervisors were present
When they were soliciting employees. Charles Tinsley, an employee who signed
an authorization card on the same occasion on which Stark signed, testified
that he saw no foremen in the cafe at this time. Stark admitted that he had
never seen Walsh,,the works manager, Buck, the head of his department, or
Eisenhart, his immediate superior, in this cafe. Davis denied that he had ever
seen Stark soliciting employees in the cafe. While it is clear from the testimony
of Stark and other employees that he engaged in solicitation at the cafe at
various'times,during a period of about two months after he signed an autlioriza-
tion card on June 26, Stark's testimony was indefinite as to whether he solicited
employees between June 26 and his lay-off' on June 29, mentioned below, or
between June 26 and his discharge on July 3.16
In April 1942, the respondent's charging machine or charger, which is used
to load furnaces in which' 'steel ' is melted, was damaged16 The machine was
temporarily repaired, and a new part was thereafter prepared for the permanent
repair of the machine. Sunday, June 14, was the day designated for periorining
the permanent repair job Stark, who had "laid out" the job, was assigned
to this work as leader. However, due to certain production requirements, the
job could not be done on this day. Stark reported for work that Sunday; a'
regular working day, but when he ascertained that the charger could not be
repaired, decided to leave the plant. He told Strausser, another leader, to tell
this to Foreman Eisenhart. As Stark was leaving the' plant, he met Eisenhart.
Stark told Eisenhart that the charger could not be repaired that day and that
he was going to leave According to Staik's testimony, Eisenhart said, "That
is all right, we'are not crowded." Eisenhart testified that he told Staik that
16 Stark testified on re-cross examination :
Q. About what month did all this [solicitation] occur?
A. I don't know
Q. Can't you give me some judgment as to that?
A It was in June.
Q. It was in June? All of this took place in June?
A. In July. This is July and the first part of August
Q. July and the first part of August'
A. Yes sir.
Q. Of 1942? '
A. Yes, sir. • '
Q. That is when you say these men ,supervisors] saw you in there? •
A. Yes, sir '
Stark testified on further ic-direct examination.
Q. ... You did solicit some in June
A. Yes, sir ; I did.
Q. And some in July?
A. Yes, sir., ,
Q. And you also solicited some after you were discharged?
A. Yes, sir. '
"Walsh testified without contradiction that the- charging machine "is a very important
piece of equipment", since "if the machine is down it means there is no production and
the furnaces are down."
r
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was other work to be done and that Stark replied, in substance, that he
did not care and departed Eisenhart admitted that he did not state specifically
that Stark should remain, and that he was not perturbed about Stark's depar-
ture since, inasmuch as the charger could not be repaired that day, -he ','could
get along all right with the other men." And Strausser testified that when he
delivered Stark's message to Eisenhart the latter showed no sign of displeasure
and stated that he had met Stark outside the gate. Upon all the evidence, the
undersigned finds that when Stark told Eisenhart that he was leaving the plant,
Eisenhart indicated that he did not object to Stark's action.
It was subsequently decided that the charger would be repaired on Sunday,
June 28. Stark did not report for work on this day He testified that nearly
two weeks before, he had told his foreman, Eisenhart, in the presence of em-
ployees Strausser, Gaskill, Tinsley, and Mitchell, that he was invited to attend
Tinsley's silver wedding anniversary celebration on- the night of June 27, and
that he had asked permission to be absent the next day, since "when going to
something like that a man would not be worth much coming into the plant on
Sunday." According to Stark, Eisenhart replied, "That is all right I might
go myself." Eisenhart testified that the first time Stark asked for permis-
sion to be absent was on Friday, June 26. According to Eisenhart, he told
Stark that the latter was needed, since "the charger was going in " Strausser
testified that about a week or a week and a half before June 28 he heard
Stark ask Eisenhart, in the presence of some 4 to 6 employees, for permission
to be absent that day. He further testified that he "did not catch" Eisenhart's
reply. Tinsley testified that lie heard Eisenhart give Stark permission to be
absent. Gaskill testified that on this occasion Stark asked for permission to
be absent, and that Eisenhart replied that he also had an invitation and might
attend the party. Gaskill further testified that he could not recall the re-
mainder of the conversatipn Mitchell testified that he heard Stark ask and
receive permission from Eisenhart to be absent but testified that this occurred on
June 26. On cross-examination Eisenhart's testimony reflected lack of recollec-
tion as to whether Stark had requested permission to be absent prior to
June 26.17 Consideration of all the testimony persuades the undersigned that
Eisenhart did indicate approximately ten days before June 28 that Stark could
be absent on that day. However, the undersigned is also,satisfied and finds
that the subject was again discussed by Stark and Eisenhart on June 26 and
that on this occasion Eisenhart told Stark, as testified by the former, that
Stark would be needed on June 28 since "the charger was going in." In thus
finding, the undersigned is persuaded by the following circumstances : the
repair of the charger was considered an important job and had been set for
this day; Stark had planned the job to some extent and had been assigned to
17 Eisenhart's testimony was as follows
Q Did be [Stark] ever mention it [permission to be absent] prior to that time
[June 261?
A Not on that particular job but before that time they used to come to me a week
or ten days or more before the work soliciting to be off If I seen fit that there weren't
too many men off that Sunday, I let them off.
s • s a • n e
Q In the same group-you do not recall any group of thiee or four or five fellows
asking you about the same party? I
A I was in the group, and the bunch around me on the furnace^fioor at that time
they had a conveisation about the parry.
Q D d any of them at that time ask permission to be offa
A. Who do you mean?
Q. Any'of the fellows going-to the party.
A No. not in paiticular, that I remember.
SCULLION STEEL COMPANY 415,
do it; Strausser, the other leader under Eisenhart's supervision, had been
granted permission some 3 weeks prior thereto to be absent to attend his son's
marriage.
Despite Stark's absence, the charger was repaired on June 28. According to
the testimony of Eisenhart, he- had "figured"that the job would take about, 8
hours. He further testified that the repair job could have been started at
'7 a. in., the start of the working day, but that the job was not started at that
time because he waited for Stark. -After waiting about an hour Eisenhart in-
formed Master Mechanic Buck that Stark had failed to "show up " Buck
stated that notwithstanding Stark's absence, they should proceed. According
to Buck and Eisenhart, the repair job was not started until about 9 a. in. and
was not finished until -about 10 p. m. However, Gaskill, who worked on the
job, testified that it took from 7 a. ni until nearly 8 a. M. to gather tools and
otherwise prepare to start the job and that the repair crew was unable to start
until 9 or 9:30 a. in because the charger, was used until that time to load
furnaces. Gaskill further testified that he finished work at 7 p. m. Walsh
testified that the respondent was unable to pour its "night heat", amounting
to 27 tons, because the charger was not repaired Upon all the testimony, the
undersigned finds that Stark's absence resulted in some delay in the repair of
the charging machine
About 6 employees other than Stark were absent in this department that day.
However, all but one of the others, Francis 'Walters, had permission to, he
absent. Walters was not discharged, nor, so far as appears, otherwise disci-
plined. However, on Sunday, May 3, 1942, Walters, Stark, and one Waldman
had been absent without permission. Walters was laid off, as a disciplinary
measure, but Stark and Waldman were not disciplined. Walters had registered
a complaint with Eisenhart because of this
At about 10 a. in. on June 28 Buck told Works Manager Walsh that Stark
had not reported for work and that he, Buck, "did not like it." Walsh told
Buck to tell Stark to come to Walsh's office the next morning before starting
work. Buck relayed the instructions to Eisenhart, who in turn conveyed this
message, to Stark the following morning. According to Stark's testimony, be
asked Eisenhart whether lie was instructed to report to Walsh because of his
failure to report for work the previous day, whereupon Eisenhart said, "Oh, no,
you had permission to be off that Sunday " Eisenhart testified that Stark asked
why he was sent to Walsh and that he, Eisenhart, replied that he did not know.
The undersigned credits Eisenhart's testimony.
Stark testified that in his conversation with Walsh that morning the latter
said , "Tom,. reports come to me from the Waldemar Cafe you are trying to
organize-the A. F. of L. in the plant. We are not going to stand for rhat";
that he, Stark, replied; "You have the wrong man, and I am not going to, stand
for that."; and that Walsh then said, "If you•are not guilty you will not have
to worry You go on home and I will let you know" According to Stork's
further testimony, he asked Walsh whether he should come in the next day and
Walsh replied in the negative Walsh denied that he referred to the Waldemar
Cafe. His version of the conversation was as follows:.
I told him I had heard some bad things about him yesterday and
wanted to talk to him. It was things we had to do something about. The
first thing he did not show up yesterday on the charger, and the next thing
I heard he was running all around the plant. Of course, he denied right
away he done any running around the plant. I told hint, "Tom, you are
going to have to take off today for I am going to have to make an investi-
gation. I will have.to see Mr. Buck and Mr. Eisenhart , for they did not
416 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have time yesterday. If you come back tomorrow morning we will make
some decision about your activities and whatever may be." He seemed
highly indignant because I was laying him off for the day, and he got up
and walked out and said, "I will be God Damned if, I lose any time out
of this," and he walked-out.
When asked at the • hearing what he meant by "running around the, plant,"
Walsh explained that he had learned by "hearsay" from "various foremen and
others in the plant" that Stark frequently had left "his place of 'work" and had
gone "where he did not belong."
The undersigned credits Walsh's version of his conversation with Stark. In
the first place,'the fact'that Stark was called to Walsh's office the day after his
absence on June 28, which was reported by Buck to Walsh, persuades the under-
signed that Walsh spoke to Stark about this matter. And the subsequent course
of events mentioned below tends to corroborate this conclusion. Secondly, since
Stark had not commenced his organizational activity in the' Waldemar Cafe
until the afternoon of the previous Friday, June 26, 'since Stark did not work
on' Saturday or Sunday, and since the testimony mentioned above is indefinite
as to whether supervisory employees were present during Stark' s organizational
activity, the undersigned considers it unlikely that Walsh had been informed-
at least at this time-of such -activity. Moreover, Stark's testimony regarding
Walsh's statement about his union activity- is ambiguous: He testified, as set
forth above, that Walsh stated- that reports had come from the cafe that Stark
was trying "to organize the A. F. L. in the plant." (Italics supplied.) 'It is
not clear from this whether, according to Stark's testimony, Walsh referred
to organizational activity""in the plant" or to organizational activity In the cafe
for the purpose of establishing the A. F. L. as a bargaining representative "in
the plant." The undersigned considers it ,significant, however, that the further
testimony of Stark, who attributed this statement to Walsh, plainly indicated
that -Stark understood that Walsh had reference to organizational activity
within the plant.18 While Walsh's assertion, as testified by him, that Stark
"was-running all around the plant" was admittedly based -upon'hearsay, and
was not corroborated by the testimony of any supervisory employee,i9 in view
of the ambiguous nature of Stark's testimony and the improbability that Stark's
activities in the Waldemar Cafe then had come to Walsh's attention, the under-
signed gives more credence to the testimony of Walsh than that of Stark in this
regard. '
Stark testified that after leaving Walsh's office on June 29, he asked Buck
whether he had been laid off because he was absent on the previous day and
18 On direct examination, after testifying that Walsh had stated that reports had come
from the cafe that Stark was trying "to organize the A. F. L in the plant", Stark testified
as follows : '
Q. You denied organizing , or denied organizing , in the plant?
A. In the, plant.
Q. You denied organizing in the plant?
A. Yes, sir. He said , "If you are not guilty you will not have to worry.' You go
on home and I will let you know."
39 Buck, the head of Stark's department, testified that during the last two weeks of
Stark's• employment Stark, while in the plant, "Ni as on the job, whatever job he was sup.
posed to be on, so far as I know ;" and that he, Buck ; had had no conversations with any
representatives of management concerning Stark except with reference to Stark' s absence
from work on June 28. While Eisenhart, Stark's foreman, testified that he had mentioned
to Buck "several times" that on occasion Stark "wasn't on the job", Eisenhart could not
remember any specific instances, other than in connection with Stark's absences on June 14
and 28, when - he thus had spoken to Buck, nor was he 'able to recall ' whether - this had
occurred during the last month of Stark 's employment.
SCULLION STEEL COMPANY 417
that Buck replied, "Oh, no, you had permission to be off." Buck denied that he
made this statementtto Stark. Buck impressed the undersigned as an honest
witness. Inasmuch as Buck previously had reported to Walsh that Stark had
failed to report to ' work, the undersigned considers it unlikely, in the circum-
stances, that Buck would make such a remark. The undersigned credits Buck's
denial.
According to Walsh's uncontradicted testimony, on June 30, the day after his
conversation with Stark, he "got in touch with Mr. Buck and Mr. Eisenhart to
get all the details." Stark did not follow Walsh's direction to appear at the
plant on this day. When Stark also failed to come in the following day, Walsh
instructed Buck to have Stark report to Personnel Director Simmons. At the
hearing, Walsh-explained his action as follows :
I discussed with Mr. ,Buck and Mr. Eisenhart why he [Stark] wasn't
there that Sunday. They also told me on Sunday, June 14, he, walked off
the job and on Sunday, June 28, he did not show up when he was ordered
out. It took those two occasions along with the importance of that job and
felt as though he should be discharged.
On Wednesday, July 1, Walsh told Simmons that Stark had failed to report for
work on June 14 and 28, and that he, Walsh, had spoken to Stark and to Buck
and Eisenhart, who were "put out" about Stark's failure to appear on June 28
because "some of the men had to worl?' over and this charging machine was held
up." Simmons then conferred with Buck and Eisenhart. Buck stated that, Stark
failed to "show up" on June 28 to repair the charger ; that he, Buck, had asked
Eisenhart why Stark was absent ; that Eisenhart replied that he did not know,
adding that Stark has asked for permission to be absent, but that it had been
refused ; and that he, Buck felt that Stark should not be in his department.,,
Eisenhart told Simmons that on June 14 Stark had left the plant despite Eisen-
hart's statement that there was work other than the' repair of the charger to
perform on that day ; that Stark had failed to "show up" on June 28 notwith-
standing Eisenhart's refusal to permit him to be absent; and that because Stark
was-causing trouble in the department and was refusing to obey instructions, he
would prefer not- to have Stark in his department. Both Buck and Eisenhart
gave Simmons notarized, statements of the above matters, which Simmons showed
to Walsh later that day. Walsh stated that he was of the opinion that Stark
had been "around there long enough" to know "the rules of the plant" and that,
in view of • his violations thereof, he should be -discharged. Simmons ordered
that Stark's pay check be sent to his office." '
When Stark came to the plant-on Friday, July 3, to obtain his pay, he was told
that his voucher was in Simmons' office. Stark then approached Simmons, who
told Stark that he was discharged for failing to "show up" on the previous Sun-
day. Although Stark stated that he had permission to be absent, Simmons asked
Stark to turn in, his badge" and paid Stark the money which was due him.
Although the matter is•not entirely free from doubt, the undersigned is of the
opinion that the evidence fails to establish that Stark was discharged because of
his union membership or activity. His discharge was immediately preceded by
his failure to report for work on a day on which he was assigned to perform an
important repair job, in which Stark, by virtue of,his position-as a leader and
his previous planning, was to play a prominent role. On the day, after his failure
to appear, his dereliction immediately was called'to his attention by Works Man-
ager, Walsh, who laid him off pending investigation. % While the undersigned
20 The findings in the above paragraph ate based upon the uncontiadicted and credible
testimony of Simmons. ' ' '
11 See footnotes 25 , infra.
418 DEOIiSJONS OF NATIONAL LABOR RELATIONS BOARD
considers Walsh's statement on this occasion that Stark had been "running all
around the plant", a suspicions circumstance in the absence of convincing evi-
dence that Stark frequently had left his place of work, the undersigned never-
theless believes that his statement cannot be construed as referring to Stark's
legitimate union activity, inasmuch as Stark had not become interested in the
A. F. L. until three (lays before and had been absent from the plant on the two
preceding days, and in view of the lack of clear and definite evidence from which
It otherwise could be inferred that his activity on behalf of the A F. L. at the
Waldemar Cafe was known'to management. In the-period between Stark's dis
cussion with Walsh on June 29 and his discharge on July 3, his failure to report
for work on June 28 was investigated by the respondent ; and Simmons told
Stark on July 3 that he was discharged for this reason. Although the respondent
did not discharge or otherwise discipline Walters, who also was absent without
permission on June 28, Walters did not, like Stark, occupy a, key position in the
job to be done that day; and Walters had been disciplined on May 3 for an unex-
cused absence on a clay on which Stark was similarly absent, but not disciplined
therefor. Moreover, Simmons testified without contradiction that numerous em-
ployees had been discharged by the respondent for "failure to report to work."
The undersigned finds that Thomas Stark was not discharged or refused re-
instatement because he joined and assisted the A. F. L. or engaged in concerted
activities for the purpose of collective bargaining and other mutual aid and
protection. ,
Patrick Stephens was employed by the respondent in June 1941 as a mainte-
nance electrician. On the morning of June 16, 1942, a "committee" of four -
electricians, comprising Bernard Riesenbeck, who acted as spokesman for the
committee, Stephens and two others, complained to Works Manager Walsh that
'certain other electricians were paid an higher hourly rate than they received,
and requested a raise in pay In,.the course of the discussion Stephens said, "at
the present pay we cannot buy bonds and we can't meet the present condi-
tions . . " - Walsh invited the employees to his office, where he demonstrated,
by the respondent's records, that the other employees who had been mentioned
were receiving the same hourly wage as the members of the "committee". 23 That
afternoon Walsh told Stephens that there was "nothing doing" regarding a pay
raise. After finishing work, Stephens went to the Waldemar Cafe, where he
stated to other electricians that some other means must be devised to obtain wage
increases. It was decided to communicate with International Brotherhood of
Electrical Workers, affiliated with the'A F. L. Stephens agreed that he would
stop at the union office that afternoon, since it was on his way home. He did so
and informed a union representative that the electricians desired to make appli-
cation for membership Stephens was then given authorization cards. On the
following morning, Stephens left the cards at the Waldemar Cafe, and there-
after solicited employees to sign such cards. According to Stephens, he engaged
in "most" of his organizational activity at the cafe. Although Stephens named
certain supervisory employees as having been present in the cafe during the
period in which he was engaged in solicitation, he was unable to indicate any
p' Simmons testified • "They ieprimand them to start with, if it is a constant thing they
are discharged " Although it is not shown that Stai k was warned prior to his absence on
June 28, which iesulted in his discharge, in view of, his absence without permission on
May 3, the reports of his supervisors to Walsh and Simmons regarding his absence on
June 14, the circumstanceis of his absence on June 28, and'hls failure to heed Wnlsh's in-
structions to report for work on June 30 , the undersigned does not consider significant the
absence of such prior warning,
11 ctephens did not go to Walsh's office since he'was on duty.
SCULLION STEEL COMPANY - 419,
specific occasion on which any of said supervisors was present when he was
soliciting employees.
Stephens testified that between 1 and 2 p. m. on Tuesday, June 30, George
Decker,' an assistant of Chief Electrician Davis, told him that Davis desired to
see hini before he rang'out; that after work Davis told him that he'was laid off
until the following Monday because Davis did not have "the kind of work, for
.
[himt] to do"; and that although he, Stephens, protested that there were em-
ployees with less seniority in the department, Davis reiterated that Stephens was
laid off until the following , Monday Davis testified that at about 10:30 a. in.
on June 27, Works Manager Walsh summoned him to his office, where he told
Davis that he had received several complaints that Stephens had been "inter.
faring with other men, talking to them in different parts of the plant" ; that
Walsh told limn to speak to Stephens about this; and that he, Davis, then spoke
to Stephens , telling the latter that he was laid off to afford the respondent an
opportunity to investigate "why he [Stephens] was going around the different
parts of the plant." Davis further testified that Stephens asked whether he
could come to work on the following Tuesday ; that he gave Stephens permission
to do so ; that he was unable to "get ahold" of Stephens while the latter was at
work on Tuesday; and that Stephens did not "show up" until the following
hriday, July 3 Although Stephens testified without contradiction that he worked
on the shift which started at 11 p. in on June 27, Davis testified that he spoke
to Stephens that morning. Moreover, on cross-examination, Davis' testimony
reflected considerable confusion as to the date on which he spoke to Stephens.
And Walsh testified that he thought it was on the morning of June 26 when he
spoke, to Davis regarding Stephens. Upon all the testimony, the undersigned
finds, as testified by Stephens, that Davis told Stephens on June 30 that the
latter was laid off until the following Monday because of lack of work.
Stephens came to the plant on Friday, July 3, which was a pay day, to obtain
the wages which were due to him. In accordance with the usual practice of
employees in this department, Stephens asked Davis for his voucher in order
that he might present it to the paymaster for his wages. Davis told Stephens
that Simmons, the personnel director, had his pay check Stephens then went
to Simmons ' office 2' According to Stephens' testimony, Simmons asked him for
his badge and a disc on which Stephens' pay-roll number appeared.- After Sim,-
coons had received Stephens' badge and the latter signed his pay voucher,
,Simmons gave Stephens the pay which was due to him and, at Stephens' request,
gave him a statement to enable him to obtain at the main office money which
Stephens had paid for, war bonds. Stephens asked for permission to leave his
tools in the plant until the following Monday, but Simmons told him to take
them on this day and sent a guard with Stephens to get his tools. According
to Simmons ' testimony, when Stephens carne into his office, he asked Stephens,
"What is the matter with you?", whereupon Stephens laid his badge on the
table and he, Simmons , then wrote out Stephens' termination slip, which states :
"Turned in his badge." At the hearing, Simmons testified that at some time
prior to July 2, Works Manager Walsh had told him that he, Walsh, had been
informed by Edward Bartley, the night superintendent, that Stephens had been
"out of his department on several occasions"; that on July 2 employees Edward
Becker and John Hopmeir had come to his office and complained that Stephens
u While Stephens was waiting to see Simmons outside the latter ' s office , Stark , who had
just been discharged, dame out of the office
^- When an employee is discharged by the respondent , he is sent to Simmons ' office in
order that the employee's badge. which admits him to the plant, may be obtained by the
respondent
531647-43-vol 49-23
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been bothering them by soliciting their membership in "the union" ; that
Simmons then told Walsh that he thought Stephens should be sent to 'his office
in order "to find out whether he [Stephens] was going to be out there to organize
in that plant during his eight hours of shift, or whether he was there to work ;"
that Walsh agreed that Simmons should talk to Stephens ; and that Simmons then,
ordered that Stephens' pay check be sent to his office. Simmons' testimony as to
what occurred prior to his meeting with Stephens on July 3 is uncontradicted.
It is supported by the testimony of Walsh, who stated without contradiction that
Bartley reported to him on June 26 that Stephens had been-out of his depart-
nient and that Bartley had seen Stephens speaking to several employees, one of
whom had told Bartley that Stephens "was trying to sign him up." Simmons'
testimony is also- supported by that of Becker and Hopmeir, both of whom
testified that Stephens had solicited their membership in the A. F. L. during
working hours in the "trouble shooters' shantyf26 and that they had reported
this to Simmons on July 2; and by that of Davis, who testified that he had
'sent Stephens' check to Simmons. The testimony and demeanor of Simmons
impressed the undersigned that he was an honest witness. Stephens was an
excitable and argumentative witness whose testimony in certain respects did not
impress the undersigned as reliable. The undersigned credits Simmons' testi-
mony as to his conversation with Stephens on July 3, as well as his testimony
concerning the events preceding the conversation.
Although Stephens denied that he had solicited membership' in the A. F. L. on
company time or property, the undersigned does not accept his testimony in view
of the credible testimony to the contrary. In addition to the testimony of
Becker, Hopmeir and Walsh mentioned above, employees Carl Robertson and
Paul Kaelin testified that Stephens had solicited them to join the A. F. L. during
their- working hours," and Chief Electrician Davis testified that he • had ascer-
tained, upon investigation, that Stephens had solicited an employee named Grivers.
Furthermore, as found above, Stephens asked Stark on June 26, while the latter
was at work, what Stark thought of the A. F. L. and when Stark stated that it
was "all right," gave Stark several A. F. L authorization cards. Upon the entire
record, the undersigned finds that Stephens solicited the membership of several
employees in the plant during his or their working hours and, at least in some
instances, at times when these employees were performing work or were pro-
ceeding to perform their work.
The undersigned is satisfied and finds that Stephens' employment was terminated
as the result of his solicitation of union membership on the respondent's time and
21 The trouble shooters' shanty is used by employees as a place in which to keep their
tools and "spare material." Becker testified that Stephens approached him shortly after
the beginning of Becker's shift on the night of June 27, while Becker was "getting [his]
tools ready to go to work;" and that Stephens approached him again the following morn-
ing when Becker was "Just about ready to put [his] tools away and clean up." Hopmeir
testified that'Stephens approached him on June 30 shortly before the finish of his shift, at
which time Stephens distributed A F. L. application cards to "each of the electricians,"
and that on at least one previous occasion he was solicited by Stephens.
n Robertson testified that Stephens approached him in front of the door of the- store
room after he had punched in and as he, was "going on shift." gaelin testified that
Stephens approached .him while he was at work in the power house. While neither Robert-
son nor Kaelin reported tbese-incidents to representatives of the respondent until after
Stephens' discharge, the undersigned considers their testimony relevant as tending to dis-
credit Stephens and as tending to support the testimony of Walsh and Simmons that they
had received reports that Stephens had been engaging in solicitation on company time and
property.
SCULLION STEEL COMPANY 421
property. It has heretofore- been- found that the respondent's rule against
solicitation was violative of the Act only insofar as it extends to the employees'
own time. From the facts set forth above, the undersigned is convinced that the
rule was applied in Stephens' case to union solicitation which the respondent's
representatives who discharged Stephens reasonably regarded as having occurred
during working hours.
The undersigned finds that Patrick Stephens was not discharged or refused
reinstatement because he joined and assisted the A. F. L. or engaged in concerted
activities for the purpose of collective bargaining and other mutual aid and
protection.
rV. THE EFFECT OF THE UNFAIR LABOR PRACTICES, UPON COMMERCE
The'activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent described 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. 1
V. THE REMEDY
`Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the extension of the prohibition against union solicita-
tion, criticism, and argument contained in the rule of July 2, 1937, and November
17, 1941, to the employees' own time, was violative of the Act. It will therefore
be recommended that the respondent be ordered to rescind the rule to that extent
and to post notices to that effect.
It has been found that the respondent has not discriminated in regard to the
hire and tenure of employment of Thomas Stark or Patrick Stephens. It will
therefore be recommended that the allegations of the complaint in this regard be
dismissed.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS of LAw
1. American Federation ofLabor and Independent Steel Workers Organization
are labor organizations, within,the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair, practices, within the meaning of Section 8 (1)
of tile Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not discriminated in regard to the hire or tenure of
employment of Thomas Stark or Patrick Stephens, within the meaning of Sec-
tion 8 (3) of the Act. .
" The undersigned deems it unnecessary to determine whether Stephens , by handing his
badge to Simmons on June 3, voluntarily quit the respondent's employ or whether his action
was induced by a reasonable belief that the respondent , by summoning him to Simmons'
office, had determined to discharge him.
I
0
,422 -DE 'CISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis,of the above findings of fact and conclusion of law, the under-
signed recommends that the respondent, Scullin Steel Company, St. Louis, Mis-
souri, and its officers, agents, successors, and assigns; shall:
1. Cease and desist from :
In any manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form, join, or assist labor organiza-
tions, 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 undersigned finds will
effectuate the policies of the Act :
(a) Rescind immediately the rule imposed on July 2, 1937, and November 17,
1941, insofar as it extends to the employees ' own time:
(b) Post immediately in conspicuous places throughout its plant , at St. Louis,
Missouri , and maintain for a period of at least sixty ( 60) consecutive days from
the date of posting, notices to its employees stating: ( 1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 of these recommendations ; and (2 ) that the respondent
will take the affirmative action set forth in paragraph 2 (a) of these
recommendations ; ,
(c) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of,the receipt of his Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
inIwriting that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
And it is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has discriminated in regard to the hire and tenure
of employment of Thomas Stark and Patrick Stephens
As provided in Section 33 of Article 1I of the Rules and Regulations of th'e
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board,,Shoreham Building, Wash-
ington, D C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
ROBERT F. KORETZ
Trial Eirantiner.
Dated March 22, 1943.
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