Aluminum Goods Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 27, 1940

25 N.L.R.B. 1004 (N.L.R.B. 1940)

In the Matter of ALUMINUM GOODS MANUFACTURING COMPANY and
ALUMINUM WORKERS UNION, LOCAL 19649, and ALUMINUM WORKERS
UNION, LOCAL 19489, AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR
Case No. C-1096.-Decided July 27, 1940
Jurisdiction : aluminum goods manufacturing industry.
Unfair Labor Practices
In general: responsibility of employer for acts of supervisory employees.
Interference, Restraint, and Coercion: anti-union statements; solicitations of in-
formation concerning union activities; back-to-work movement; declarations of
union preference ; threats of interference with tenure and conditions of em-
ployment ; interference with right of collective bargaining.
Company-Dominated Union: back-to-work movement as forerunner of-employer
participation in formation of : attendance of management representatives at
meetings ; solicitation of members-employer participation in administration of:
management representatives becoming members and serving as officers of-per-
mission to employees to solicit members on company time.
Disci zmniation: lay-offs and refusals to reinstate certain employees for union
activity ; charges of discrimination as to certain employees, dismissed.
Where an employer, during annual shut-down in the past, had habitually
used for plant clean-up work men experienced in such work, the employer's
use of non-union, inexperienced men in place of experienced active union men
held violation of 8 (3).
Remedial Orders : reinstatement and back pay awarded; company-dominated
union disestablished.
Evidence
Agreement between respondent and union, which was not formally offered
as an exhibit through inadvertence, but was incorporated in respondent's
answer and continually referred to by all parties, considered as part of record.
Practice and Procedure
Union found to be company-dominated denied right to intervene.
Respondent's application for leave to adduce evidence that persons alleged
to have been discriminated against had engaged in unlawful conduct during
a strike which terminated several months prior to the alleged discrimination,
denied because employees in question were reinstated after the strike and
before the alleged discrimination occurred and because respondent made no
claim that their alleged unlawful conduct had been unknown to it or that it
had been a factor in the acts alleged to have been discriminatory.
Respondent's application, made after issuance of Intermediate Report,
for leave to adduce additional testimony on ground that Trial Examiner in
off-the-record colloquy had indicated that he would find in favor of respond-
ent's contention and had thus induced respondent to refrain from introducing
further testimony on issue, denied since respondent knew or should have
known that final decision lay with the Board, since Trial Examiner indicated
that "he was not taking any definite position," and since respondent subse-
quent to Trial Examiner's statement examined witnesses on issue in question.
25 N L It. B., No. 106.
1004
ALUMINUM GOODS MANUFACTURING COMPANY 1005
Mr. Morris L. Forer, for the Board.
Nash cC Nash, by Mr. W. J., Clark and Mr. J. P. Nash, of Manitowoc,
Wis., for the respondent.
Padway, Goldberg cPc Tarrell , by Mr. David Previant , of Milwaukee,
Wis., for the Union.
Mr. William Stix, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by Aluminum Workers Union,
Locals 19649 and 19489 , affiliated with the American Federation of
Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twelfth
Region ( Milwaukee , Wisconsin ), on or about August 8, 1938, issued
its complaint and on August 12, 1938, upon a second amended charge
duly filed by the Union , issued its amended complaint ,' alleging that
Aluminum Goods Manufacturing Company, Manitowoc and Two
Rivers, Wisconsin , herein called the respondent , had engaged in and
was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( 1), (2), and (3) and Section 2,(6) and (7)
of the National Labor Relations Act, 49 Stat . 449, herein called the
Act. The complaint , amended complaint, and notices of hearing
thereon were duly served upon the respondent and the Union.
The amended complaint , as further amended without objection dur-
ing the hearing , alleged in substance ( 1) that since the spring of 1936
the respondent had interfered with, restrained , and coerced its em-
ployees in the exercise of the rights guaranteed them by Section 7 of
the Act by making anti -union statements and by attempting to obtain
information concerning activities of labor organizations to which its
employees belonged ; ( 2) that during the autumn of 1937 the respond-
ent, in the course of a strike called by the Union, gave assistance to a
back-to-work movement and thereafter dominated , interfered- with,
and contributed support to the formation and administration of a labor
organization known as the A. G. M. Workers ' Association , herein
called the Association , by aiding in the transformation of the back-to-
work movement into the Association , by encouraging and advising
employees to join the Association , by permitting and encouraging
solicitation of members for the Association on company property, by
helping publicize the Association , by disparaging the Union and other
' The amended complaint was issued by the Acting Regional Director
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations in comparison with the Association, and by other
means; and (3) that in order to discourage membership in the Union
and encourage membership in the Association the-respondent, during
the Christmas holidays of 1937, discriminatorily refused to assign 18
employees 2 to maintenance work which they had performed in previous
years; that for the same purpose the respondent transferred Josephine
and Ruth Peronto from one position to another 3 and discriminatorily
discharged or laid off the Perontos and Rene Schwalbe; that to'the
same end the respondent discriminatorily laid off and refused to rein-
state 11 other employees ; & and that to discourage membership in the
Union and in Locals 516 and 1191 of International Association of
Machinists, herein called the Machinists, also affiliated with the Amer-
ican Federation of Labor, the respondent in laying of and reinstating
employees, including those afore-mentioned, construed a "Memo-
randum of Agreement" (herein called the Agreement) between the
respondent, the Union, and the Machinists, so as to deprive members of
those organizations of their seniority rights under the Agreement.
The respondent, on August 22, 1938, filed an answer to the amended
complaint 5 in which it admitted certain allegations as to its business,
admitted that the Union and the Association were labor organiza-
tions, and denied all other allegations of the complaint. The answer
affirmatively averred that in laying off, reinstating, and hiring em-
ployees the respondent had complied with the Agreement and that in
1938 it had twice rejected the Association's requests for recognition
as sole collective bargaining agent of the respondent's employees.
After issuance of the complaint herein the Association filed with
the Regional Director a motion to intervene in the present proceeding
and to consolidate it with a representation case arising upon a peti-
tion theretofore filed by the Association requesting that it be certified
as the exclusive collective bargaining representative of the respond-
2 Albert Birr , Roland Brunner , Sylvester Copiskey , Edward Domnitz , Herbert Heil!,
Edmund Hetue, Tom Hetue, Arthur Illndt, Frank Hoida, George Karl, Martin Kloss, Jerry
Konop , Peter Landusky , George Laque , LeRoy LeMere, Aithur M Schroeder , Henry Stelzer,
and Earl Strean The names of Kloss and Heili were added to the complaint during the
hearing upon motion of the Board ' s attorney , and the parties agreed that with respect
to them the complaint would be construed to allege unfair labor practices only within the
meaning of Section 8 (1) of the Act . Upon motion of the attorney for the Board, the
allegations as to Schroeder , LeMere, and Konop were dismissed during the hearing.
In the pleadings , transcript of hearing , and exhibits there are variations in the spelling
of the above names and of the names of other persons referred to herein . However, since
these variations do not give rise to any doubt as to the identity of the persons referred
to, we have adopted a uniform spelling for each name.
3 A similar allegation as to Elmer Barnes was dismissed during the hearing upon motion
of the attorney for the Board
4 From the plants at Two Rivers' Frank P. Brull, Ralph Gustafson, Lloyd G Hansen,
George Harrop, Ambrose Martell, and Joseph Wilson
From the plants at Manitowoc : Blanche R . Forst, Clarence G Krueger , Adolph J.
Marquardt , Felix J. Tadych, and John P Vnuk
6 An answer to the original complaint was filed on August 13, 1938.
ALUMINUM GOODS MANUFACTURING COMPANY 1007
tent's employees.s The motion to intervene was denied by the Acting
Regional Director on August 17, 1938, and by the Trial Examiner
when it was renewed at the opening of the hearing; the motion for
consolidation was denied by order of the Board on August 24, 1938.
. Pursuant to notice, a hearing was held in Manitowoc, Wisconsin,
from- August 22 through September 20, 1938, before Whitley P.
McCoy, the Trial Examiner duly designated by the Board. The
Board, the respondent, and the Union were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties.
At the close of the Board's case and at the end of the hearing the
respondent made various motions to dismiss the complaint in whole
or in part and to strike or, upon previously made objections, to ex-
clude certain testimony: All these motions were denied by the Trial
Examiner, either at the hearing or in his Intermediate Report. At
the close of the hearing the Board's attorney made a motion to con-
form the pleadings to proof, which the Trial Examiner granted with-
out objection. During the hearing the Trial Examiner made various
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the rulings made by the Trial
Examiner at the hearing and in his Intermediate Report and finds
that no prejudicial error was committed.' The rulings are hereby
affirmed. -
After the hearing the respondent and the Union each filed a brief
with the Trial Examiner and the respondent a reply brief. On or
about December 21, 1938, the Trial Examiner submitted his Inter-
mediate Report, copies of which were duly served upon the respond-
ent and the Union.
In his Intermediate Report the Trial Examiner found that the
respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the Act and recommended that the respondent cease and
desist therefrom; that it reinstate to their former positions with back
pay and full restoration of seniority rights 13 persons found to have
been discriminatorily laid off or discharged; 7 and that it take certain
other affirmative action to effectuate the purposes of the Act. The
Trial Examiner further found that the evidence did not substantiate
6 Case No XII-R-160. The Association had filed its petition on July 1, 1938. While
this was prior to the issuance of complaint herein, it was subsequent to the filing by the
Union of the charge and amended charge alleging, inter alia, that the respondent had engaged
in unfair labor practices within the meaning of Section 8 (2) of the Act with respect to the
Association.
' Frank P. Brun, Blanche It. Forst, Ralph Gustafson, Lloyd G. Hansen, George Harrop,
Clarence G Krueger, Adolph J. Marquardt, Ambrose Martell, Josephine Peronto, Ruth
Peronto, Felix J. Tadych, John P. Vnuk, and Joseph Wilson.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the allegation of the complaint that Rene Schwalbe had been, dis-
criminatorily discharged or laid off, and, accordingly, recommended
that this allegation of the complaint be dismissed.
Exceptions to the Intermediate Report were duly filed, by the
respondent on January 16 and by the Union on January 18, 1939.
Leave having been granted, briefs were thereafter filed by. the
respondent and by the Union.
Pursuant to notice, oral argument was had on August 10, 1939,
before the Board in Washington, D. C. The respondent and the
Union appeared by counsel and participated in the argument. Pur-
suant to permission granted at the hearing, the respondent filed 'a
copy of its oral argument. Leave was also granted to the respondent
to file a supplementary brief, but it subsequently informed the Board
that it would not avail itself thereof.
Applications for leave to take additional testimony were filed by
the respondent on March 4 and 15, 1939, and both were denied by the
Board on March 28, 1939. At the oral argument the respondent
renewed these applications and we have again considered them.
In the application originally made on March 4, 1939, the respondent
asked leave to 'introduce testimony to establish that the seniority
provisions of the Agreement contemplated that departmental seniority
should be followed in making lay-offs, rather than, as found by the
Trial Examiner in his Intermediate Report, plant-wide seniority. In
its original application the respondent alleged, and averred its readi-,
ness to, prove, that in an off-the-record colloquy during the hearing
the Trial Examiner indicated that in his opinion the Agreement con-
templated departmental seniority and that this statement was in-
tended to, and did, induce the respondent to refrain from presenting
material testimony upon this issue. Inasmuch as the respondent
knew or should have known that the ultimate decision upon the issue
was, one to be made by the Board and not by the Trial Examiner,
it cannot claim to have been lulled into a false sense of security by
the Trial Examiner's alleged off-the-record statement. In its brief,
which was filed on the same day as the application of March 4, 1939,
the respondent purported to set forth a privately prepared steno-
graphic transcript of the afore-mentioned off-the-record colloquy.,
An examination thereof discloses that the Trial Examiner declared
that he "was not taking any definite position" and that he did not
commit himself as to the finding he would eventually make. More-
over, the record shows that after the Trial Examiner allegedly made
the statement by which the respondent claims to have -been misled,
the respondent'examined witnesses upon the issue of the proper in-
terpretation of the seniority provisions of the Agreement. Accord-
ALUMINUM GOODS MANUFACTURING COMPANY 1009
ingly, and for the further reason that we find upon the record that,
as contended by the respondent, the Agreement contemplated depart-
mental seniority," we deny the renewed application to reopen the
record upon this issue.
In the application originally made on March 15, 1939, the re-
spondent asked leave to show that certain of the employees, found by
the Trial Examiner in his Intermediate Report to have been discrimi-
nated against had conducted themselves unlawfully during a strike
in 1937. 'Such evidence, the respondent urged, would be relevant to
the question of whether these employees should be reinstated. We
find no merit in this contention. These employees resumed their
employment after the strike and thereafter continued in such em-
ployment for substantial periods before the occurrence of the discrim-
ination found by the Trial Examiner. The respondent made no
claim that their alleged conduct during the strike was unknown to
it during their subsequent employment or that such conduct was in
any measure responsible for its acts toward them which the Trial
Examiner found to have been discriminatory. The application to
reopen the record is, therefore, again denied.
The Board has considered the exceptions, briefs, and arguments
of the respondent and the Union. Except in so far as they are con-
sistent with the findings, conclusions, and order set forth below, we
find the exceptions 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
The respondent, Aluminum Goods Manufacturing Company, a New
Jersey corporation with its general offices at Manitowoc, Wisconsin,
is engaged in the manufacture and sale of cooking utensils, small
wares, toys, and special goods, including clock dials, lamp reflectors,
fan blades, outboard motor tanks, canteens, and parts for automobiles,
washing machines, radios, vacuum cleaners, and kitchen mixers. The
respondent normally employs approximately 3000 employees, of
whom 1300 to 1500 are employed at plant 2 and 150 at plant 3, in
Manitowoc; and 750 at plant 1 and 500 at plant 4, in Two Rivers.9
In the calendar year 1937 the respondent purchased for use at its
Manitowoc and Two Rivers plants raw materials amounting in value
to.$3,207,207.14, of which 941/2 per cent were from sources outside
a See Section III E 2 a, infra
The respondent maintains branch offices and sales agencies in Chicago , Illinois, and in
New York City It owns a substantial interest in Aluminum Goods , Ltd , of Toronto,
Canada, which manufactures cooking utensils.
1010 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin.10 During the same year it shipped and sold outside Wis-
consin finished goods worth $10,321,770.70, constituting approximately
95 per cent of the commodities manufactured at those plants.
H. THE LABOR ORGANIZATIONS INVOLVED
Locals 19489 and 19649, Aluminum Workers Union, affiliated with
the American Federation of Labor, are labor organizations admitting
to membership employees of the respondent at its plants in Manito-
woc and at Two Rivers, respectively.
Locals 516 and 1181, International Association of Machinists, affili-
ated with the American Federation of Labor, are labor organizations
admitting to membership machinists at the respondent's plants in
Manitowoc and Two Rivers, respectively.
A. G. M. Workers' Association is an unaffiliated labor organization
which admits to membership employees of the respondent, including
office employees, who have been employed continuously for at least
30 days.
III. TIIE UNFAIR LABOR PRACTICES
A. Chronology of events
Before discussing the unfair labor practices alleged in the com-
plaint, we shall give a brief chronological narrative of them and of
events related to them.
In 1936 the Union, which had been established in April 1934, held
a few meetings and engaged in some "canvassing" in an effort to
obtain additional members. Its membership began to decline, how-
ever, in July 1936 and at the beginning of the following year re-
newed efforts were made to secure members. The progress of- this
membership campaign and the ensuing activities of the Union evoked
numerous anti-union statements from persons claimed to be
representatives of the respondent.
In June 1937 the Union presented to the respondent a proposed
collective agreement and two conferences were held for the purpose
of negotiations. On August 15 and 16, 1937, after a month's post-
ponement, a consent election, which was held under Board auspices,
resulted in the designation of the Union and of the Machinists as
the exclusive collective bargaining agents of the respondent's em-
"The "essential raw materials " used by the respondent are aluminum ingot and sheet,
tin ingot and plate , steel sheet and wire , stainless steel , tool steel , copper sheet, chromium,
cadmium , bakelite products , acids , nickel anodes and salts , buffs , small wood articles, wire
baskets, cartons and containers, and wood cases As of March, 15, 1938 , the respondent
purchased in Wisconsin all its requirements of buffs and copper sheet, 99 per cent of its
requirements of wire baskets, 70 per cent of its requirements of cartons and containers,
and 16 per cent of its requirements of wood cases. Its remaining raw material requirements
were purchased outside Wisconsin.
ALUMINUM GOODS MANUFACTURING COMPANY 1011
ployees.ll . Thereafter further negotiations between the respondent
and the Union took place, but no agreement was-reached.
On September 21, 1937, the Union called a strike of the respondent's
employees and, by picketing, caused all the plants to shut down.
In the course of the strike certain employees organized a back-to-
work movement, which the complaint alleges to have been assisted
and dominated by the respondent. The strike was settled by the
Agreement, signed on October 23, and the plants reopened on Monday,
October 25.. On November 6, allegedly as an outgrowth of the back-
to-work movement, the Association was formally established.
On October 29 the respondent addressed a letter to its employees
stating that it would not discriminate between members and non-
inembers of labor organizations. On November 10 Rene Schwalbe,
whose employment is alleged in the complaint to have been discrimi-
natorily terminated, was suspended and on November 17 he was dis-
charged. Josephine and Ruth Peronto, concerning whom a similar
allegation is made in the complaint, were discharged on January 11,
1938.
Lay-offs for lack of work, which began within a week after the
end of the strike, became markedly heavy from November 1937 to
January 1938. The 11 lay-offs which are alleged to have been dis-
criminatory occurred on dates ranging from December 22, 1937, to
January 28, 1938, and thereafter the respondent discriminatorily re-
fused or failed to reinstate certain of the employees affected thereby.
It is claimed, moreover, that during the Christmas holidays in 1937
the respondent discriminated against union members in selecting em-
ployees for clean-up work.
In April and May 1938, the respondent rejected requests made by
the Association for recognition as sole collective bargaining agency.
Due to increased production activity, numerous employees previously
laid off were reemployed in August and September 1938.
B. The respondent's managerial and supervisory staff
1. Executives, plant managers, and plant superintendents
The respondent's principal executives are A. J. Vits, president,
H. L. Vits, vice president, and Earl O. Vits, vice president and pro-
duction manager." Next in rank to these executives are Albert L.
Vits and Herman Wentorf, the plant managers at Manitowoc and at
Two Rivers, respectively, both of whom have the authority to hire,
discharge, and lay off employees. Each of the four plants has a
The Union and the Machinists appeared jointly on the ballot At Manitowoc 808 votes
were cast for and 484 against these organizations ; at Two Rivers the vote was 864 in favor
of and 276 a^_ainst them
'a There is also a secretary-treasurer, who is not involved in any of the matters related
herein -
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent who is chiefly concerned with production problems
but who, in conjunction with the foremen, recommends lay-offs to
the plant manager. 0. H. Becker is superintendent of plant 2 and
A. C. Kummerow of plant 4.13
The Trial Examiner by implication made a finding, to which no
exception was taken, that the respondent was accountable for the
acts of these employees, and (in accordance with the principle of
respondent superior) we find that the respondent is responsible for
the acts of its officers, plant managers, and plant superintendents here-
inafter related.
2. Factory office managers
Edwin Nemetz is manager of the plant 2 office which constitutes,
we infer, the respondent's "general offices" and has a staff of 300
persons. Among other activities, this office orders raw materials,
issues production orders, and prepares the plant 2 pay roll.
John Mezera and Fred Laubenstein are the factory office managers
at plants 1 and 4, where the office staffs comprise 14 and 12 employees,
respectively. Laubenstein supervises the preparation of the plant
pay roll, as presumably does Mezera.
From the foregoing We find that the factory office managers exer-
cise supervisory authority over their respective office staffs. The
respondent contends, however, that the acts of the office managers in
connection with the back-to-work movement and the Association are
not chargeable to it.14 In support of this contention the respondent
claims that these men have no contact with, and consequently are
"not in a position to exert any pressure" upon, production employees.
This claim, however, does not meet the issue of whether or not the re-
spondent is accountable for the acts of the factory office managers.15
In the first place, the record discloses that office as well as pro-
duction employees are eligible for membership in the Association and
that certain of them participated in the back-to-work movement.16
"We shall have no occasion to refer by name to the other two plant superintendents
14 For the reasons stated below , we bold that by participating in the back -to-work move-
ment the respondent interfered with , restrained , and coerced its employees in the exercise
of the iights guaranteed them by Section 7 of the Act . See Section III C 2, infra
15 Indeed the claim that the factory office managers have no contact with the production
employees is not supported by the record There is no evidence upon the point except in
the case of Nemetz , and as to him the following appears • Nemetz is occasionally required
to go into the production departments in connection with the distribution of production
orders Factory--employees , moreover, after obtaining the plant manager 's approval, must
come to Nemetz to obtain wage advances or to make arrangements to defer installment pay-
ments on home -building loans made to them by the respondent Similarly, factory employees
who for income -tax purposes need information about their earnings address themselves
to Nemetz
16 A list of employees ' names, which was used by the back-to-work movement in distributing
letters, was obtained by Nemetz through paymaster Oscar W Engelbrecht and Harvey Tread-
well, an office employee A number of meetings of the back -to-work committee were held
at the home of John Stiefvater of the office sales division The record also discloses that
"various men from the office" helped prepare newspaper advertisements and were among
those who authorized their publication See Section III C 2 , infra-
ALUMINUM GOODS MANUFACTURING COMPANY- 1013
Secondly, the respondent's assertion implicitly assumes that the
question crucial to the issue of responsibility is whether the factory
office managers are in a position directly to affect the employment of
production employees '17 whereas the decisive factor is whether they
act, or appear to act, as representatives of the management. In their
day-to-day relations not only with office but also with plant em-
ployees, the factory office managers act and appear as representatives
of the management. Moreover, Nemetz, Mezera, and Laubenstein
served as tellers representing the respondent in the consent election
held by the Board in August 1937, a circumstance which unquestion-
ably identified them to the production employees as agents of the
management. Reasonably, therefore, employees were entitled to
assume-in the absence of clear indications to the contrary-that the
factory office managers, as participants in the back-to-work movement
and the Association, were acting on behalf of the respondent.
The record, moreover, discloses facts from which we infer that
the participation of the office managers in the back-to-work movement
was known to the respondent.1s The respondent was, therefore, under
a duty to disavow the Unlawful conduct of the factory office managers
and to prevent them from persisting in it10 By failing to take any
such measures the respondent ratified the participation of the factory
office managers in the back-to-work movement.
For the foregoing reasons, we hold that the respondent is charge-
able with the activities of the factory office managers in connection
with the back-to-work movement and the participation of one of
them, Mezera, in the formation of the Association which, as we point
out below'20 was intimately related to the back-to-work movement,
both in origin and purpose.
3. Production clerks
At plant 4 Clarence Gesell, and at plants 1 and 2 other men not
herein involved, are employed as production clerks. The record dis-
17 On the same basis the respondent might argue with equal logic and with as little plausi-
bility that employees are not affected by the acts and statements of foremen other than the
foremen immediately in charge of the department in which they are employed
11 The record shows that the factory office managers attended numerous meetings of the
back -to-work committee ; that Mezera collaborated with Herman Wentorf , plant manager
at Two Rivers , in collecting back-to-work cards which had been signed ; that Nemetz signed
and mailed letters soliciting signatures to back -to-work cards , and that at one time during
the strike Nemetz 's house was picketed by the Union , apparently because of his activity in
the back-to-work movement Upon these facts and upon the entire record, it is our opinion
that the respondent cannot have remained in ignorance of the activity of the factory office
managers , in the back -to-work movement , especially since Wentorf , the plant manager at
Two Rivers , certainly knew of Mezera 's participation therein and , we infer, was also
cognizant of Laubenstein 's and Nemetz ' s activity
19 See Matter of The North Electric Manufacturing and International Association of
Machinists, Local 1151, 24 N L R B . 547, and cases cited in footnote 26 therein
30 See Section III D, infra
253036-42-vol. 25-65
1014 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
closes that it is Gesell's duty to guide work through the factory and
to see that it is completed promptly. On redirect examination Gesell,
who was called as a witness by the Board, testified that he tells the
foremen what to do. On recross-examination, after repeating this
statement, he stated that he meant to say that he distributes produc-
tion orders to foremen. Gesell's attempt to minimize his earlier
testimony is not persuasive. The transcript reveals that as a witness
he was extremely hostile to the Board and this is confirmed by the
Trial Examiner's observations. Gesell conceded, moreover, that on
occasion he instructs foremen to "get . . . out" orders "at a certain
time." . The record also shows that he attends foremen's meetings and
receives _a salary of $230 a month. We conclude that Gesell is not
simply an "order chaser," as contended by the respondent, but that
he has the authority to oversee the work of foremen. This conclusion
is corroborated by the fact that Peter Rysticken, a foreman in plant
2, on direct examination by the respondent's counsel testified that the
plant manager, the plant superintendent, and the production clerk
are the persons from whom he "take (s) . . . orders." 21 We find
that Gesell is a supervisory employee; that employees view him as a
representative of the , management; and that the respondent is
accountable for his acts hereinafter related.
4. Foreman and assistant foremen
Each department is under the immediate supervision of a foreman.
It is not controverted that the foremen have authority to recommend
hiring, discharging, and laying off of employees. The machine shop
and shipping departments of plant 2 each have, in addition to a
foreman, a number of assistant foremen.22 The respondent does
not deny that foremen and assistant foremen exercise supervisory
authority, but it seeks to avoid responsibility for certain anti-union
statements made by them 23 which, it claims, were unauthorized and
were made without its knowledge.
Whether or not the foremen and assistant foremen were authorized
to make anti-union ' statements, employees commonly assume-and
in the absence of indications to the contrary reasonably assume-
that such supervisors represent the management and act with its
authority. Furthermore, as we point out below, similar statements
were made to employees by company executives and plant managers.24
From the foregoing we conclude that foremen and assistant fore-
men are supervisory employees, that they are regarded by employees
21 There is nothing to indicate that Gesell's authority differs from that of the production
clerk in plant 2 -
22 We do not here refer to die -setters who are frequently called assistant foremen, and
who are separately considered below. See Section III B 5, infra.
22 See Section III C 1, infra.
24 See Section III C 1, infra.
ALUMINUM. GOODS MANUFACTURING COMPANY 1015
as representatives of the management, and that the respondent is ac-
countable for their acts hereinafter related.
5. Die-setters
Throughout its plants the respondent employs skilled workers
known as die-setters.25 These men do not perform ordinary production
work but are engaged in preparing machines and presses for opera-
tion by production employees. The Union maintains that certain
of these die-setters exercise supervisory authority and act as assistants
to the foremen. On the other hand, the respondent in its brief and
exceptions contends that, aside from the two departments previously
mentioned in which "assistant foremen" are employed, every depart-
ment is supervised solely by a ' foreman without the help of any
assistants. We believe that the evidence sustains the Union's posi-
tion, for as appears more fully below : many foremen have supervisory
duties which it would be impracticable for them to discharge without
assistance ; in 1936 the respondent took the position, which it has
since maintained, that its die-setters are part of the management
and that they should not belong to a labor organization; Earl O.
Vits, the respondent's vice president and production manager, ad-
mitted that some die-setters exercise supervisory authority and de-
scribed one of them as an "assistant foreman"; and finally, the record
contains detailed proof that in the operation of the respondent's
plants die-setters perform supervisory functions.
Aside from those departments which admittedly have assistant
foremen, two departments employ more than 100 workers and 10 em-
ploy more than 50; in a few instances one foreman has charge of
several departments; some departments occupy two or more floors;
at times departments operate on more than one shift; and not in-
frequently different types of work are carried on within a single
department. Manifestly, the foremen in these departments are un-
able to supervise alone the work of the production employees.
In June 1936 Delmar Hansen, a die-setter, joined the Machinists.
At that time, according to Hansen, Earl O. Vits demoted him to a
press hand's job until he withdrew from the Machinists. Hansen
testified, and we find, that in demoting him Vits said that "he didn't
think it was right or necessary for a foreman or a die-setter to belong"
to a union.26 Thereafter the Union and the Machinists lodged a-
protest against the position and action taken by- the respondent.
25 At the oral argument counsel for the respondent stated that there were 100-odd persons
employed as die-setters
21 Earl Vits admitted having told Hansen that the respondent "felt that he was not
eligible . . . to belong to the union -" While there is thus no substantial difference between
the versions of this conversation given by Hansen and Vits , the former 's account, in our
opinion, is entitled to credit because, although called by the Board , he was manifestly
a reluctant and hostile witness.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ernst A. Luebke, president of the Manitowoc local of the Union,
testified, and we find, that at this meeting A. L. Vits, plant manager
at Manitowoc, replied that " in so far as Hansen was a die-setter,
he didn't feel that he could, or should belong to [the Machinists]
... because he considered him too close to the management, a part
of the management." 27
Both Earl and A. L. Vits claimed that shortly after Hansen's
demotion the respondent had changed its position toward die- setters
because it wished to avoid being held responsible for their acts.
This change of position, they asserted , was communicated to Hansen.
In our opinion, the Vitses' testimony upon this issue is wholly un-
worthy of credit. While A. L. Vits purported to recall the Hansen
incident in considerable detail when, near the close of the hearing,
he gave the above testimony, his recollection of it when he was
called as a Board witness several weeks earlier had been so "hazy"
that he was unable to give any account of it. Furthermore, although
Hansen, who was called by the Board, was a reluctant and hostile
witness, the respondent 'did not seek to prove through him that he
had been informed of the change in its attitude. Nor did it claim
that it had notified the Union thereof. We are convinced, further-
more, that the reason given by the Vitses for the respondent's alleged
change of position is a fabrication, since, so far as the record dis-
closes,,the respondent had no cause in 1936 to seek escape from re-
sponsibility for the acts of its die-setters. Finally, it is uncon-
troverted that in June 1937 and February 1938 the respondent
informed representatives of the Union that it continued to regard
die-setters as part of the management.
Further proof of the supervisory status of die-setters is afforded
by the testimony of Earl 0. Vits. In the first place, Vits expressly
admitted that die-setters who take charge of night shifts (herein
called night die-setters) exercise supervisory authority. Upon the
basis of that admission and upon the entire record'28 we find that
John Buss, Roy Karkow, and Tom Riggs-all of whom are night
die-setters are supervisory employees, that employees regard them as
24 A L Vita denied that he had on this occasion referred to die -setters as "part of the
management" but admitted that he had termed them "a very important part of our organ-
isation ." We credit Luebke' s version of this conference because, previous to his denial,
Vits, in an earlier appearance as a witness, professed to have only a "hazy" recollection of
the entire Hansen incident, and was unable to give any account of it See infra
28 On one occasion A b Vits , manager of the Manitowoc plants, told a group of em-
ployees that a night die-setter was their "night foreman " The same designation was
applied to night die -setters by a number of employee witnesses Furthermore , foreman
John Mrozinski testified that Roy Karkow , the die-setter who works in his department at
night, "tells [the men] what to do and what not to do" and "is supposed to explain things to
a man, if he isn't doing things right " Karkow himself testified that lie observes the work
of employees in his department to see that they do not produce scrap. It is the die -setter,
moreover, who, when work is completed before the end of a night shift, tells the workers that
they may leave the plant.
ALUMINUM GOODS MANUFACTURING COMPANY 1017
representatives of the management, and that the respondent is ac-
countable for their acts hereinafter related. Secondly, after assert-
ing that Rene Schwalbe, one of the employees named in the complaint,
had been discharged for using offensive language, Vits declared that
he had received a report of Schwalbe's misconduct from Goethke,
a die-setter, whom Vits referred to as "the assistant foreman in the
buffing department." 29 When questioned as to the extent of Goethke's
authority Vits further testified as follows :
Q. What are Mr. Goethke's duties? You say he is assistant
foreman ?
A. To help the foremen.
Q. He is one of the die-setters also, is he?
A. I imagine he helps set dies. He takes charge when Mr.
Hempel is gone, and helps with the running of the department.
Q. And you consider it was his duty to tell higher officials about
it, inasmuch as he was part of the management?
A. Well, . . . he felt it was his duty.
Q. Did you think it was the duty of an assistant foreman?
A. Yes, I do.
Q. Of a die-setter?
A. I certainly do think it was his duty.
In addition to "night" die-setters, there is another well-defined group
known as "head" or "number 1" die-setters. These are the men with
the most seniority at die-setting in departments where more than one
man is employed at that type of work. They convey instructions from
the foreman to the junior die-setters and to production employees, and
take charge of the department when the foreman is absent, subject,
according to two foremen, to the instruction to see the plant superin-
tendent if anything "goes wrong." One foreman, the record discloses,
told an employee newly assigned to his department that he should take
orders from the head die-setter, whom he described as the "assistant
foreman," and numerous employees similarly characterized the head
die-setters in their departments. In view of the foregoing and upon
the entire record, we find that Jacob Budnik, Louis Engelbrecht, and
George Pilger, who are head die-setters, are supervisory employees,
that the employees regard them as representatives of the management,
and that the respondent is responsible for their acts hereinafter related.
There remains for consideration certain evidence pertaining to die-
setters who are not shown to be either "night" or "head" die-setters.
John Backus, Jr., and John B. Spinker, die-setters who work on
different floors of foreman Rysticken's department, give instructions
v Schwalbe's discharge is discussed in Section III E 3 a, infra. Goethke was working on
a day shift at the time of the Schwalbe incident and there is nothing in the record to indi-
cate that he is a night die-setter.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees concerning their work and caution them about faulty
production. When the foreman is not in the department, they take
charge of their respective floors. Employee witnesses referred to
Backus and Spinker as assistant foremen.
William Kromforst, a die-setter, is the man in foreman Nocker's
department who customarily "does the ordering" and to whom em-
ployees go when they want to know what jobs to work on. When the
day's production is completed, Kromforst_communicates that fact to
the foreman. If Nocker is absent because of sickness or is on vaca-
tion, Kromforst takes his place. According to George Rathsack, an
employee, everybody in the department refers to Kromforst as the
assistant foreman.30
From the testimony of foreman Paul Sibenhorn, whose department
occupies two floors, it appears that one of the floors is supervised by
Walter Moore, a die-setter.31 If employees are assigned by Siben-
horn to work on Moore's floor, they are directed to report to Moore.
Subject to instructions to see the plant superintendent if "anything
goes wrong," Moore takes charge of his floor when Sibenhorn is
absent.
We have found that night die-setters and head die-setters are super-
visory employees. From the foregoing it appears that Goethke,
Backus, Spinker, Kromforst, and Moore also perform various super-
visory functions such as giving orders, instructing employees con-
cerning their jobs, reporting faulty work, and substituting for the
foreman in his absence. From all of our findings concerning die-
setters and upon the entire record we conclude that Goethke, Backus,
Spinker, Kromforst, and Moore are supervisory employees, that em-
ployees regard them as representatives of the management, and that
the respondent is accountable for their acts hereinafter related.
In concluding that the afore-mentioned die-setters are super-
visory employees for whoso acts the respondent is responsible, we
have considered the respondent's contention that such a finding is
precluded because the die-setters have no authority to hire, discharge,
or lay off employees or to recommend such action; because two die-
setters at one time joined the Union; 32 because die-setters were eligi-
ble to vote in a consent election held by the Board in August 1937;
is Kromforst sometimes requests the foreman to send men to work with him, and, on
occasion-possibly with the foreman 's approval-instructs employees to report for work
prior to the beginning of the shift to help him on a die -setting job
81 While Sibenhorn testified that Moore is in "partial charge" of the floor , we infer from
his testimony that when the department is working on a one -shift basis , Moore is in charge
of the floor, subiect only to Sibenhorn's supervision, but that when operations are being con-
ducted on a three -shift basis two other men take charge of the floor on the second and
third shifts.
32 One a head die-setter and the other an employee not herein found to be a representative
of the management
1
ALUMINUM GOODS MANUFACTURING COMPANY 1019
and because die-setters are paid hourly wages, whereas foremen are
paid on a monthly basis.
The claim that die-setters do not have authority to recommend,
hire, discharge, or lay off is not supported by the record. As we
have seen, they are under a duty to make reports to their superiors
concerning the work and behavior of employees subordinate to them.
It would be unreasonable to assume that these reports are limited
to bare statements of fact, for at times they must inevitably comprise
opinions as to whether disciplinary action should be taken. In any
event, whether or not they make such recommendations, the die-
setters occupy a position of immediate supervision over the work of
production employees and it is their duty to report as to the work
and conduct of such employees. Hence, we conclude that, as the
employees know, they may affect for good or evil the welfare of
employees subject to their supervision.
The absence of authority on the part of die-setters to hire, dis-
charge, or lay off employees; the membership of certain die-setters
in the Union; the eligibility of die-setters to participate in the choice
of representatives for the purposes of collective bargaining; and the
asserted difference between the basis of their compensation and that
of foremen. are not, as we have recently pointed out, determinative
of the supervisory status of these employees nor of the employer's
responsibility for their activities 33
C. Interference, restraint, and coercion
1. Anti-union statements and other activity
As stated above, the complaint alleges that in 1936 and thereafter
the respondent by various means interfered with the right of em-
ployees to join labor organizations of their own choosing.
Gustave Heyduk, an employee, testified that in June 1936, when
he lodged a protest after having been laid off, A. L. Vits, plant man-
ager at Manitowoc, told him, "You union fellows are getting too
smart; . . . you stuck your necks out until you got them cut off."
According to Thomas Felber, another employee, Vits told him on
February 1, 1938, that in making promotions the respondent would
give first consideration to those employees who were "the most loyal" 34
to it; asked him whether he still belonged to the Union; and advised
him "to tell [his] father that he knows what happened to him before
and he should drop the union." Vits admitted that he had talked
to employees "about how much it cost to belong to the union, and
83 See Matter of The North Electrio Manufacturing Company and International Association
of Machinists , Local 1151, 24 N L R B 547, and cases cited theiein.
81 Prom the context we infer that by "loyal" Vits meant non-union.
(I
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how much a waste of money that was," but claimed that his remarks
about the costliness of union membership were made to only one or
two employees and denied that he had made the statements attrib-
uted to him by Heyduk and Felber. We have seen, however, in con-
nection with the Hansen incident that Vits was not a wholly reliable
witness. Moreover, the Trial Examiner, who had an opportunity to
observe the demeanor of the witnesses, credited Felber's and Hey-
duk's testimony. Upon the entire record we find that Vits sought to
dissuade a number of employees from joining or remaining members
of the Union.
In March 1937, Luebke, president of the Manitowoc local of the
Union, learned from George Karl, shop steward in foreman Walter
Jance's department, that several men in the department had com-
plained of anti-union statements assertedly made to them by Jance.
On March 28 Herman Collins, Norbert Neuser, Ed Wagner, and
Norman Korinek, some or all of whom were reported to have made
such complaints, attended a small meeting at Luebke's house. Ac-
cording to Luebke, Korinek reported that Jance had told him that
he was foolish to join the Union, that the respondent had given him
a job when he was out of work, and that it would not like "the idea
of him joining." Collins, Luebke testified, complained that Jance
had advised him that membership in the Union would be detrimental
to his interests on the ground that the Union took insufficient account
of wage differentials. Immediately following this meeting letters
signed by Luebke, as president of the Union, were delivered to Jance
and another foreman. The letter to Jance read in part as follows :
We kindly request you to retract statements you have made to
your men regards labor unionism on March 15, 1937 and give
them your assurance that there shall be no discrimination or
discharges for union affiliations. If this request is not complied
with before four o'clock Monday, March 29 we will seek such
further action as we deem necessary .. .
Early the next morning, after Jance had shown Luebke's letter to
the management, Luebke was summoned to the office. According to
Luebke, H. L., Earl 0., and A. L. Vits were also present but Jance
was not. Luebke asserted that Earl Vits, after, asking him "just what
[he] meant" by sending the letter to Jance, declared that he had
investigated the statement allegedly made by Jance and that he
"considered the matter closed." Luebke further testified that he im-
mediately requested leave to bring another union representative to
the conference but that Vits made no reply. In the course, of the
meeting, according to Luebke, Vits declared that Luebke had been
so active in soliciting union memberships during working hours that
I
ALUMINUM GOODS MANUFACTURING COMPANY 1021
the respondent could, if it chose, discharge him; commented that
Luebke "didn't seem . . . to appreciate" the fact that the respond-
ent had given him a job when he came to Manitowoc "a long time
ago"; and, finally, described in detail what had occurred at Luebke's
house the previous evening, explaining that the information had
been brought to him by Collins.
Earl O. Vits, the respondent's vice president and production man-
ager, when called as a witness by the Board early in the hearing,
professed to be unable to recall the above-described incident, ev6n
upon being shown a copy of Luebke's letter to Jance. At the close
of the hearing and after Luebke had testified, Vits was called to the
stand as a witness for the respondent. While he did not deny any
of Luebke's testimony, Vits on this occasion claimed that at the time
when the Union made its complaint he had investigated the matter
and that "we couldn't see where [Jance] had violated or done any-
thing that was wrong," but that Jance had been warned-not to do
anything that "might be interpreted by the union as wrong."
A. L. Vits testified that Jance was present at the office meeting but
that H. L. and Earl Vits were not. He further testified that at this
conference he told Jance that if he had made the statements coin-
plained of he should discontinue doing so. This testimony differs
from Luebke's in that the latter expressly stated that H. L. and Earl
Vits were present at the meeting and that Jance was not. This con-
flict of evidence is, however, not difficult to resolve. On the one hand,
we have already had occasion to observe that A. L. Vits was not a
credible witness.- On the other hand, Luebke's testimony on this
issue was clear and persuasive : the incident was one, he quite reason-
ably asserted, which it would have been impossible for him to forget.
Significantly, moreover, neither H. L. Vits nor Jance was called to
the stand.
Herman Collins, who appeared as a witness for the respondent,
denied that any complaint against Jance had been discussed at
Luebke's house and that Jance had ever made anti-union statements
to him. Collins did not deny that there had been a meeting at
Luebke's house "to find out if there was a grievance or something like
that," and, indeed, admitted that immediately upon leaving this
meeting, Wagner, Korinek, Neuser, and lie decided to withdraw from
the Union'36 and that on the morning after the conference at Luebke's
house he reported to Jance that he had withdrawn from the Union.
At that time, Collins testified, Jance said that he had nothing "to
do with that" and advised him to "go down to see" A. L. Vits, who
listened to his account of what had occurred at Luebke's house.
See the discussion of the Hansen incident , Section III B 5, supra
88 Luebke testified that Wagner had not been a member of the Union.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collins ' denial that Jance made anti -union statements to him is
not persuasive . The letter to Jance, containing a protest against the
statements assertedly made by Jance, was written during or shortly
after the meeting at Luebke's house . Despite this fact, Collins
claims that at this meeting no complaint was voiced against Jance.
The falsity of his assertion is evident . Collins, furthermore , failed
to give a plausible explanation either for having attended the meet-
ing at Luebke's house or for having immediately thereafter with-
drawn from the Union , and we conclude that both actions were due
to the fact that Jance had made anti -union statements to Collins. 37
On the basis of the foregoing and of the entire record , we accept
Luebke 's testimony concerning his interview with the management
and concerning Jance's anti -union statements to Collins ,38 and we do
not credit the testimony of the Vitses that Jance was warned to
refrain from anti-union conduct.
When the respondent learned of the Union 's protest against Jance,
it should have assured its employees, or at least those immediately
affected, that they, were free to join labor organizations of their own
choosing , and that Jance's activities were disapproved . 39 Instead,
one of the respondent 's executives , in the presence of another and of
a plant manager , upbraided Luebke, president of the Manitowoc local
of the Union, for lodging a protest against Jai-ice's conduct and en-
deavored to intimidate him into abandoning his union activity. By
its conduct toward Luebke the respondent clearly violated the provi-
sions of the Act and condoned Jance's interference with the rights
of employees guaranteed by the Act.
Another aspect of the Luebke incident requires consideration. It
would seem clear , under all of the circumstances related above, that
Collins gave Jance a report of the meeting at Luebke 's house either
at Jance's solicitation or as the result of the intimidation resulting
from Jance 's prior statements . In any event it was Jance who
prompted Collins' report to A. L. Vits. The respondent 's acceptance
and, a fortiori , its solicitation of such information concerning union
activities unquestionably constituted conduct prohibited by the Act.
Moreover , the information was immediately utilized in an unlawful
attempt to discourage Luebke from continuing his union activities.
As appears from the foregoing the respondent 's executives openly
87 Luebke's testimony is also strengthened by another aspect of Collins ' testimony . Luebke,
who testified before Collins did , stated that Earl 0 Vits had attributed to Collins his
knowledge of what had occurred at Luebke 's house Since Collins had withdrawn from
the Union it is unlikely that he would have told Luebke of his report to A Vits, to which
he testified as a witness
88 While the direct evidence as to Jance 's anti-union statement is hearsay, it is ade-
quately corroborated by other evidence which we have set forth
89 See Matter of The North Electric Manufacturing Company and International Association
of Macleenists, Local 1151 , 24 N L R B 547, and cases cited in footnote 26 therein.
ALUMINUM GOODS MANUFACTURING COMPANY 1023
manifested a hostile attitude toward the Union. This attitude doubt-
less was known to and not without effect upon the conduct of other
representatives of management from superintendents to die-setters.
As we point out below, they, as well as their superiors, made numerous
anti-union statements.
In July 1937 Gertrude Geerdts, an employee, joined the Union.
According to her testimony, when she appeared in the shop wearing a
union button, A. C. Kummerow, superintendent of plant 4, asked her
whether he or the Union had given her a job and inquired whether
her father belonged to the Union. Geerdts also testified that until this
conversation Kummerow's attitude toward her had been a friendly
one but that thereafter he neither talked to nor looked at her. Kum-
merow flatly denied Geerdts' testimony. The Trial Examiner did not,
credit his denials. In view of the Trial' Examiner's finding and upon
the entire record, we find that Kummerow made the remarks con-
cerning which Geerdts testified and that subsequently he became less
friendly to her.
In February 1938, Clarence Krueger, a shop steward who had been
'laid off ,40 asked 0. H. Becker, superintendent of plant 2, how soon the
respondent would reinstate the employees whom it had .released for
lack of work. Becker replied, "If [you] didn't listen to that son of a
bitch kike Sigman last fall, you fellows would have a lot of work
now." 41 Whether or not the strike in the fall of 1937 caused a decline
in business is not shown by the record. Manifestly, however, Becker's
vilification of Sigman, an organizer for the Union, constituted an
unlawful effort to discourage membership and activity in that
organization.
Blanche Forst and Estelle Novak testified that on June 19, 1937;
when the former first appeared in the shop with a union button, fore-
man Nicholas Holly said to her, "So you are wearing one of those things
... after I give you a, job, you take this and throw it back in my face."
Holly claimed that on this occasion he had, in joking fashion, said:
I see you, are all decorated up this morning . . . Gee, after giv-
ing you jobs when you needed one, why, you sent me bouquets of
flowers, like you did at Christmas, but now I suppose it will be
just the opposite, that if you go on strike you will throw rotten
eggs at me.
That this conversation was of a jocular nature seems unlikely, for
Forst reported it to Luebke who in turn complained about it to Holly.
The Trial Examiner, moveover, after observing the demeanor of the
witnesses, accepted the testimony of Forst and Novak and rejected
90 Krueger is one of the'employces alleged to have been unlawfully discriminated against.
His case is discussed in Section III E 2 b 1, infra
41 The testimony concerning this incident was uncontroverted.
1024 DECISIONS Or' NATIONAL LABOR RELATIONS BOARD
that of Holly. For the foregoing reasons, and upon the entire record,
we find that Holly made the statement attributed to him by Forst and
Novak.
Another anti-union thesis advanced by the respondent's foremen
was that employees would find it detrimental to their interests to be-
long to an outside union. Thus in April 1936, when a number of men
in the machine shop refused to do overtime work unless paid additional
compensation, Albert Henricks, an assistant foreman, told them that
they "would never get any place if [they] belonged" to the Machinists.
Otto Simonis, another foreman, in 1936 told Elphie Kuchenbecker, an
employee, "Anyone that joins the union is a damn fool." 42 In two
instances employees were more specifically told that membership in the
Union had been or would be prejudicial to them. In January 1938
when Ervin Zarn, an employee, asked foreman Emil Nagle why he
had not been given certain work during the preceding holiday period,-
Nagle replied, "Well . . . you wore two buttons, . . . union buttons."
In answer to Zarn's further inquiry whether he would have been em-
ployed if he had not worn the buttons, Nagle responded, "Well .. .
maybe," and then suggested that Zarn "join up with the rest of the
gang, . . . with the Independents." Nagle did not deny having made
the statements quoted above, but asserted that he had 'employed for
the holiday work a shop steward and another man whom he knew to
be a union member. The fact remains, however, that Nagle conveyed
to Zarn the impression, or at least confirmed the latter's apprehension,
that he had been discriminated against because of his union member=
ship.41 During the same month Roy Karkow, a night die-setter, told
Clement Weier, an employee who believed that he had broken a die,
"It is kind of bad that you are in the A. F. of L. . . . If you would
join the A. G. M., . . . the Association could hush it up." Karkow
remembered the die incident, but denied that he had made the above
remarks. He conceded, however, that it was at his solicitation that
Weier joined the Association,-a fact which is significant in view of
Weier's testimony that he joined on the evening of the above conver-
sation because of the fear which it had inspired. Moreover, the Trial
Examiner, who had an opportunity to observe the witnesses, credited
Weier's testimony. From the foregoing and upon the entire record,
we find that Karkow made the statement attributed to him by Weier.
A more direct statement to discourage union membership was made
by foreman Joseph Swoboda, who about June 1937 told one of his
4a Henricks did not testify ; Simonis, who was called as a witness by the respondent,
did not deny having made the statement quoted in the text.
49 The work in question was not the Christmas clean -up work discussed in Section III E 1,
infra
44Cf Matter of Vaal-Ballou Press Inc and Binghamton Printsng Pressmen's and Assist-
ants' Union, No. 57, I. P P and A U., of Binghamton, N. Y et al , 15 N. L R. B 378, 395.
ALUMINUM GOODS MANUFACTURING COMPANY 1025
men, If I were you . .. I would not join the union, now . . . wait
about five years."
On two occasions foremen expressed resentment at resort by em-
ployees to collective representation in connection with grievances.
Kuchenbecker, who was a steward, testified that when he requested
a wage increase for several of the employees in his department,
Simonis, his foreman, replied, "Why don't they come to me them-
selves? . . . If they can't come to me themselves, they can go to
hell." Simonis did not controvert Kuchenbecker's testimony, and
we find that he made the statement set forth above. A similar effort
to discourage collective activity is revealed in the following incident.
Anna Rezek, another steward, testified that when on one occasion
after the strike she presented a grievance to her foreman, Bill Law-
rence, he replied, "When [you] were out on the street . . . [you]
did not care so [you] shouldn't holler now . . . [If you] were satis-
fied while [you] were out on the street on strike, [you] shouldn't
complain now." Lawrence denied having made these remarks to
Rezek. The irritation evinced by Lawrence in the statement attrib-
uted to him is similar to that displayed by Simonis and to the be-
havior of Earl O. Vits upon the occasion when Luebke protested
against certain anti-union statements made by Jance.41 Moreover,
the Trial Examiner, who had an opportunity to observe the witnesses,
resolved the conflict of testimony in favor of Rezek. Upon the entire
record we find that Lawrence made the statements attributed to him
by Rezek.
As appears from the statements made by Nagle and Karkow, re-
ferred to above, and as will further appear in our discussion of
the Association '413 numerous supervisory employees by solicitation
and otherwise encouraged employees to join that organization.
We find that by the statements and acts recounted above, and by
each of them, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. The back-to-work movement
Ten days or 2 weeks after the beginning of the 1937 strike, Tom
Riggs, a night die-setter and Knight Hallock, an employee, called
on Edwin Nemetz, the factory office manager of plant 2. According
to Nemetz a suggestion was made by these men that "we ought to
try to do something to get back to work." Nemetz testified that
he recommended that, if any activity were undertaken, it should
comprise employees of the factory at Two Rivers as well as at Mani-
See supra
so See Section III D, infra
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
towoc, and that thereupon he, Riggs, and Hallock selected several
Manitowoc employees who, in their estimation , "would be good
workers." In order to reach employees at Two Rivers, Nemetz en-
listed the aid of John Mezera and Fred Laubenstein, the factory
office managers at the Two Rivers plants , and the former , in turn,
informed Clarence Gesell , production clerk at plant 4, of the back-
to-work project and asked him to help "push it along ." Within
a day or so 15 or 25 persons including Laubenstein , Mezera, Gesell,
John Buss ( a night die -setter ), and 2 employees , Joseph L. Klein
and Peter Beitzel, met at the Community Building in Two Rivers
to discuss how a reopening of the plants could be effected . There-
after a group of approximately 20 persons met at Nemetz' home
in Manitowoc to make further arrangements . This meeting, which
took place 3 or 4 days after Nemetz 's conversation with Riggs and
Hallock, was attended by those three men and also by, Mezera,
Laubenstein , Gesell, Klein, Beitzel , and Joseph Stehlik (an em-
ployee ). During the course of the strike this "committee" held
approximately a half dozen meetings, including one at the house
of Richard Groll, a foreman at one of the Manitowoc plants. A
Two Rivers employee was elected general chairman, Richard Bodwin
was elected chairman for Manitowoc , and Riggs , a night die-setter,
was elected secretary of the movement.
The "main aim" of the movement was " to go back to those shops
regardless of their lines ." At the first meeting held at Nemetz's house
it was decided "to go ahead and canvass employees , as many as
possible , and find out whether they wanted to return to work."
Although sheets of paper for use in 'solicitation of signatures were
distributed at the meeting , they were subsequently replaced by
mimeographed cards addressed to the "officials" of the respondent
and bearing the following text :
I, the undersigned employee of the Aluminum Goods Co., deeply
deplore the situation brought about by the strike. I feel that
working condtions [sic], hours and wages have been most satis-
factory and earnestly desire to go back to work. I hereby pledge
my full support to the Company.
About October 18 a substantial number of these cards were distributed
by mail , along with the following mimeographed letter:
FELLOW EMPLOYEE : You and I and other loyal employees of
the Aluminum Goods Mfg. Co. havo been barred from our work
and wages for the past weeks by a strike which we feel has been
promoted and carried out by a small minority and an outsider
who has no real interest in us or the Company.
Over half of the Aluminum Goods employees have expressed
their desire to return to work by signing cards like the attached.
ALUMINUM GOODS MANUFACTURING COMPANY 1027
I believe you are as anxious to get back to work and receive your
wages regularly as I, am ; and with this idea in mind I am at-
taching a card which I will appreciate your signing and return-
ing to me. -
With dies being taken out of the plants, with business going
to other manufacturers, with the heavy buying season passing
rapidly,,with general business conditions falling off, and with
the plants closed now for nearly a month, it goes without saying
that the longer it takes us to get, back to work, the less work
there will be when the plants do open.
If you want to go back to work will you please sign the at-
tached card and return in the enclosed self addressed envelope?
YOUR SIGNATURE WILL BE KEPT STRICTLY
CONFIDENTIAL.
Knowing that the office staff had recently prepared a list giving
the names and addresses of the respondent's employees," Nemetz
asked Harvey Treadwell, an office employee, to procure this- list for
him. Treadwell apparently communicated Nemetz's request to Oscar
W. Engelbrecht, the respondent's paymaster, for the latter brought
the list to Nemetz, saying. "Here is the list you want." Nemetz and
another employee, Charles Peterik, made use of this list in distribut-
ing the back-to-work letters. Assertedly selecting names from the
list alphabetically, Nemetz admittedly signed and sent out approxi-
mately 30 letters, while Peterik dispatched considerably more. On
one occasion, moreover, Nemetz offered a card to an employee sent
to him by A. L. Vits to obtain an advance against his wages. Ulti-
mately Nemetz delivered to ,Riggs, who was secretary of the move-
ment, all the cards to which he had obtained signatures.
Gesell, production clerk at one of the Two Rivers plants, testified
that Mezera, factory office manager at the other Two Rivers plant,
gave him approximately 100 cards and letters to distribute. Gesell
testified that he personally signed and mailed out 15 sets `of the cards
and letters and that he gave all or most of the remainder, to Oscar
Debus and Joseph Stehlik, both employees. Elphie Kuchenbecker,
an employee, testified that immediately after the strike he heard
Mezera say to Carl Bloomquist, an employee who had been active
in the back-to-work movement,
We had those strikers fooled during the strike ... they always
wondered how we got the cards around ... the guys would bring
them to my house and I take them to Herman's, and Herman
takes them to Manitowoc.
"The record does not disclose whether this list comprised employees of plant 2 alone"
or of all,the plants:
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In examining Kuchenbecker, the Board attorney made it clear that
this testimony was intended to implicate Herman Wentorf, plant
manager at Two Rivers, in the back-to-work movement. While Me-
zera testified as a witness for the Board in order to identify certain
exhibits unrelated to the back-to-work movement, neither he nor
Wentorf was called to the stand by the respondent. In the absence
of any attempt by the respondent to explain the remark made by
Mezera to Bloomquist, we conclude from it and from the entire
record that Wentorf, as well as Mezera, was active in the back-to-work
movement.
The record also discloses that other representatives of the manage-
ment participated in this movement at Two Rivers. According to
their own testimony, Paul Sibenhorn, a foreman, twice asked Joseph
Wilson, an employee,4S to, sign a back-to-work card, and George
Beaton, another foreman, questioned Edwin Jasper, an employee,
as to "what he thought" about the movement.
About Friday, October 22, an advertisement, in the preparation
of which "various men from the office" had participated, was pub-
lished by the back-to-work movement in Manitowoc newspapers and
in another in Two Rivers. In these advertisements the following
appeal was addressed to the community at large :
We have a clear majority NOW willing to go back to work to
plants that have been illegally closed for a month. (Picketing
under any Federal or State Laws does not give the picketers
the right to close plants to those who are satisfied and desire
to work.)
The Majority of employees who have signed indicating their
desire to go back to work are looking to Manitowoc and Two
Rivers Business, Professional, Civic, and Governmental leaders
to take the necessary steps to open the plants immediately and
protect the workers who want to work under the rights guaran-
teed by our State and Federal Government.
Unless immediate action is taken we stand to lose further
wages and
MANITOWOC AND TWO RIVERS STAND TO LOSE
MILLIONS OF DOLLARS WHICH WILL AFFECT THE
FUTURE PROSPERITY OF MANITOWOC COUNTY FOR
MANY, MANY YEARS.
WE ARE ALL LOSING NOW. HOW MUCH THAT
LOSS WILL AMOUNT TO AND HOW LONG THE UN-
LAWFUL IDLENESS WILL CONTINUE DEPENDS
48 Allegations of discrimination against Wilson are discussed in Section III E c 1, infra.
ALUMINUM GOODS MANUFACTURING COMPANY 1029
UPON THE CITIZENS OF MANITOWOC COUNTY
WHETHER CONNECTED WITH THE ALUMINUM
GOODS OR NOT.
A. G. M. CO . EMPLOYEES
BACK TO WORK COMMITTEE
The record does not disclose how much money was expended by
the movement , "9 although it shows that fluids were disbursed for
publication of the newspaper advertisements , one of which cost
$25.20, and we infer, for stationery , mimeographing , and postage.50
According to Nemetz , however, only a single collection was made
among the members of the "committee ." This collection , to which
Nemetz contributed approximately $5, was taken up at one of the
meetings by Riggs, secretary of the movement and a night die-setter.
From this account it is clear that managerial and supervisory
employees played a leading role in the back -to-work movement. The
foregoing findings reveal that Wentorf, a plant manager , was among
the moving spirits in the organization ; that Nemetz , a factory office
manager, was one of the initiators of the movement , personally ob-
tained the aid of factory office managers at Two Rivers, obtained
and furnished a list of names and addresses of employees- to be
solicited , provided a meeting place for the committee , distributed
cards and solicited signatures , and contributed financial support to
the movement ; and that both Mezera and Laubenstein , the factory
office managers at Two Rivers, attended numerous meetings of the
sponsoring group and that the former was active in distributing and
collecting signature cards. It also appears that three foremen were
participants in the movement and that several die-setters with super-
visory authority played an active part in it . From these facts it
is clear that the respondent formed, assisted , and dominated the
back-to -work movement.
In its brief the respondent maintains that "the Act does not forbid
an employer to urge his striking employees to go back to work"
and that, consequently , "even if it had itself actively promoted a
back -to-work movement . . . there still would have been no violation
of the . . . Act."
Through the back-to-work movement, which it formed and assisted.
the respondent sought to affect the actions of its employees as indi-
viduals rather than as the collective group which they had constituted
themselves by joining the Union and by striking at its call . The pur-
pose of this approach by the respondent was, we find , to destroy the
In presenting evidence concerning the back-to-work movement, the attorney for the
Board was compelled to rely almost entirely upon the testimony of hostile witnesses The
respondent called no witnesses to explain the financing of the back-to-work movement
"Gesell personally bore the cost of the envelopes which he used in marling out the
mimeographed letters
283036-42-vol 25-66
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unity of the striking employees, to cause them to abandon the Union's
leadership, and to deprive them of the advantages of acting in con-
cert. In fact, since the cards distributed for signature stated that
they would be submitted to "officials" of the respondent, the move-
ment also constituted an inquisition calculated to impress employees
with the fact that the respondent would thus learn which employees
were sympathetic with the strike and which ones were not.51 More-
over, the respondent, by initiating and assisting the back-to-work
movement, which purported to have originated with and to be admin-
istered by its employees, made the false representation that certain
of its'employees had upon their own initiative determined to return
to work and that they were by themselves carrying out a plan to
reopen the plant. Since the resumption of work might have led to
permanent displacement of such employees as would remain on strike,
the respondent's misrepresentation undoubtedly had the effect of
undermining the morale of all its striking employees by making them
doubt the solidarity of their ranks. Furthermore, because of this
misrepresentation of the back-to-work movement as a purely employee-
conceived and executed program, the declaration issued in the name
of the movement that the strikers were preventing the resumption of
work contrary to the will of other employees was obviously calculated
to mislead the public, to develop antagonism to the strikers, and to
deprive them of the sympathy and support of the community, factors
which are important to the outcome of a labor dispute.52
Under these circumstances, and upon the entire record, we find that
the respondent by its formation of and assistance to the back-to-work
movement interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Section 7 of the Act i3
D. Domination , interference with, and support of A. G. M. Workers'
Association
Several days after the end of the strike, an informal meeting was
held at the home of Richard Bodwin, who had been the Manitowoc
chairman of the back-to-work movement, to lay plans for the forina-
51 We have frequently held that by thus interrogating employees concerning their attitude
toward collective action an employer interferes with, restrains, and coerces its employes in
the exercise of the rights guaranteed them by Section 7 of the Act. See Matter of The North
Electric Manufacturing Company and International Association of Machinists, Local 1131,
24 N L R B 547 See also cases cited in footnotes 17 and 36 therein
52 Obviously, moreover, in so far as the mimeographed letter distributed by the back-to-
work movement sought to discredit the Union by describing the strike as an action promoted
by an "outsider," the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Section 7 of the Act
" Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N L R B 219, enf'd as mod Republic Steel Corporation et al v N L R B, 107 F (2d)
472 (C C A 3), cert granted, but limited to another issue , 60 S Ct 1072; Matter of Rein-
ington, Rand Inc and Remington Rand Joint Protective Board of the District Council Office
Equipment Workers, 2 N L R B 626, enf'd as mod N L R. B. v. Renvington Rand, Inc.,
94 F (2d) 862 (C C. A. 2), cert denied 304 U 8 576, 585.
ALUMINUM GOODS MANUFACTURING COMPANY 1031
tion of an unaffiliated union of the respondent 's employees. Among
those attending this meeting , in addition to Bodwin , were Mezera, a
factory office manager ; Buss, a night die-setter ; and three employees,'
Klein , Beitzel , and Stehlik . All of these men had played prominent
parts in the back-to-work movement.54
The persons at the gathering described above decided to investi-
gate "independent associations ." To this end some or all of them
took a trip to Kohler , Wisconsin, to obtain information about an un-
affiliated union of "Kohler employees ." Having learned that A. L.
Hougen, a Manitowoc attorney , had acted as counsel to the Kohler
organization , Buss, accompanied by Stehlik , Hansen, '5 Beitzel, and
Klein, called upon Hougen and authorized him to draft a constitution
for an unaffiliated union.
On November 6 at a public hall in Manitowoc the organization held
its first open lneeting , with night die-setter Buss presiding . At this
gathering-which had been publicized for about 3 days-a constitu-
tion and bylaws, were adopted . The Association 's "charter" was
signed by 77 persons , Stehlik and Klein were chosen temporary chair-
man and secretary for Two Rivers , and two other employees tempo-
rary chairman and secretary for Manitowoc.
On November 6, if not earlier , solicitation of members was initi-
ated.55 Thereafer , recruiting was carried on with a success due in
substantial measure to the assistance and participation of supervisory
employees. -
Among the supervisors who gave such assistance were a number
of foremen . About the time the Association was organized , foreman
Joseph Wizner , in response to a question , told an employee that the
dues of that organization were "cheaper " than the Union 's but that it
would afford employees the same benefits . Late in November, ac-
cording to Gertrude Geerdts , foreman George Beaton told her that
b+ Vernon Hansen, an employee in the drafting department at Manitowoc, was also present
at the meeting at Bodwin's house Stehlik , a receiving clerk at plant 4 in Two Rivers,
testified that "a day or so" before the end of the strike Hansen had called on him at his
home and inqunted what he "thought of the idea" of forming an unaffiliated organization
Stelilik claimed that in response lie volunteered to take an active part and that he there-
upon discussed with Hansen the names of employees whom they could "depend upon "
While there is no evidence of any earlier events directly related to the formation of the
Association, we are not persuaded that the conversation between Hansen and Stehlik rep-
resents the true genesis of that organization Stehlik and Hansen apparently were not well
acquainted with one another : the former had known the latter "around on the streets" but
neither of them had over visited the other before Furthermore, according to Stehlik, Ilan-
sen had not been a participant in the back-to-work movement. Consequently, we are certain
that the explanation for the formation of the Association is not to be found in the visit
paid by Hansen , a drafting room employee at Manitowoc, to Stehlik, a receiving clerk at
Two Rivers
cs See footnote 54, supra
51 Stehlik testified that the Association decided on November 15 to print ' membership cards
and that a committee consisting of Buss, Hansen , Beitzel , and Carl Bloomquist (an em-
ployee - who had been active in the back-to-work movement) was appointed to make the
necessary arrangements It is clear , however , that a great deal of solicitation had been
carried on prior to that time
1032 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"it would be better if (she) joined the A. G. M., because that it
would be the best union after all anyway." Edwin Jasper testified
that shortly after December 20, 1937, Beaton, having told him that
he was laid off, said, "You better sign an independent card and you
will have a better chance of getting back." Beaton denied having
made these statements. However, the Trial Examiner, who had an
opportunity to observe the demeanor of the witnesses, rejected his
denials. For this reason, and upon the entire record, we find that
Beaton made the remarks attributed to him by Geerdts and Jasper.
On January 1, 1938, according to Mrs. Paul Schepper, the wife of
an employee, foreman Reuben DeFoe told her that "she should coax
[her] man to join the Independent" and said, "If you think Paul
should get laid off, he should join the Independent Union and then
he would be sure to hold his job." Mrs. Schepper's testimony was
corroborated in part by that of her husband. DeFoe denied that
he had made the statements in question and his assertions are sup-
ported in part by the testimony of another foreman. The Trial Ex-
aminer, who observed the witnesses, found, and upon the entire record
we also find. that DeFoe made the remarks quoted above.
As we have found above, foreman Nagle, in January, 1938, after
intimating to an employee that the latter had failed to receive certain
work because of his membership in the Union, suggested that he
become a member of the Association. 57
We have also found above that Karkow, a night die-setter, solicited
an employee to join the Association and stated that, if he did, the
Association would "hush . . . up" a work mishap.-'s
Three die-setters with supervisory authority were among the em-
ployees who joined the Association in November, 59 and five others
joined at dates not disclosed by the record. 6° Nine of the die-set-
ters, 61 whom we have found to be supervisory employees,'constitut-
ing approximately the same, group as those shown to have joined
the Association,, solicited members for the organization during work-
ing hours, and another, who carried blank membership cards in his
pocket for 5 or 6 months, admittedly signed up five or six members.
Some of this solicitation by die-setters was shown to have been ac-
companied by threats or attractive inducements. Thus Labinski, an
employee, was warned by-Karkow that if he did not join he would
be "fired" ; 6' another employee was told by Budnik that he would
57 See Section III C 1. supra
sa See Section III C 1 supra
51 Engelbrecht Goethke. and Karkow.
go Backus Budnik Pilger Riggs. and Spinker
e Backus Budnik. Engelbrecht . Goethke Karkow Kromforst Moore Riggs . and Spinker
62 Iiarkow , denied making this statement The Trial Exammei. however did not credit
his denial nor do we We have found above that Karkow solicited Weier . another employee.
to join the Association and in that connection stated that if he did so. the Association
"could hush . . up' the damage which Karkow had done to a die
ALUMINUM GOODS MANUFACTURING COMPANY 1033
be "better off" if he became a member; and a third, who had been
laid off, was given assurance by Budnik that if he signed a card he
would be reinstated.
We have found above that Debus, a non-supervisory employee,
was given cards and letters by production clerk Gesell for distribu-
tion in connection with the back -to-work movement . Debus was
also one of the persons most active in soliciting members for the
Association.
Meetings to which the public had been invited by advertisements
appearing in Manitowoc and Two Rivers newspapers were held in
the former city on December 3 and the latter on December 4, 1937.
Buss, a night die-setter, presided during at least ' a portion of the
Manitowoc meeting. Subsequently meetings for members only were
held in the two cities on February 8 and 9 and May 10 and 11 .1'
Pursuant to the Association 's bylaws , elections of regular officers
were held between January and March 1938. The bylaws and con-
stitution divide members of the Association into 11 groups, each
comprising persons employed in several departments . Each of these
groups elects 3 representatives and the 33 persons so chosen consti-
tute a general committee , which elects a general chairman , general
secretary , and vice chairman . The 3 representatives of each group
also elect a chairman and the 11 group chairmen constitute an execu-
tive committee . In the 1938 elections Stehlik was chosen general
chairman ; Buss and Spinker , both supervisory employees, were
chosen to be group chairmen and members of the executive commit-
tee; and Riggs, likewise a supervisor , was elected a group represent-
ative.
On March 4, assertedly because members had heard rumors that
there would be another strike, the officers and group representatives
of the Association , together with its counsel , presented to the re-
spondent a letter declaring that the organization was opposed to a
strike at that time. This communication requested the respondent,
in the event of a strike , to continue its operations and pledged the
Association , if the plants remained open , to "use its best efforts to
maintain peaceful conditions in and about [ the] plants and to secure
such protection for its members in going to and returning from
work as may be necessary ." Recognition as exclusive bargaining
representative of the respondent 's employees was sought by the
Association in April and again in May 1938. On both occasions the
respondent refused the Association 's demand, asserting that it had
a subsisting contract with the organizations which had been desig-
"The Union 's initial ' charge , alleging that the Association was company -dominated, was
filed with the Board on February 19, 1938.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated as bargaining representative by a majority of the respondent's
employees.64
Our findings show that a substantial number of supervisory em-
ployees joined the Association, solicited members, attended meetings,
and became officers. Moreover, as a result of these activities of per-
sons with supervisory authority, the respondent's other employees
indubitably must have regarded the Association as the creature and
favorite of the respondent. For it is apparent from the facts set
forth above that the Association was an outgrowth of the company-
dominated back-to-work movement. Of the persons who played
important roles in the formation of the Association, factory office
manager Mezera and night die-setters Buss and Riggs, as well as
Stehlik, Beitzel, Klein, Bodwin, Debus, and Bloomquist, had pre-
viously been participants in the back-to-work movement. Through
the activities of these persons and through the impression thereby
communicated to employees of a continuity between the two organi-
zations, the impetus given to the back-to-work movement by the
respondent was effectively transferred to the Association.
On the basis of the foregoing facts and upon the entire record, we
find that the respondent dominated, interfered with, and contributed
support to the formation and administration of the Association, and
that it thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
The respondent urges that it may not be held to have engaged in
unfair labor practices within the meaning of Section 8 (2) of the
Act, since, by letters dated June 16 and October 29, 1937, it had de-
clared to employees that they would not be discriminated against
because of membership in or activity on behalf of a labor organiza-
tion; and because, allegedly, by its refusal to recognize the Associa-
tion as the bargaining agency of its employees, the respondent had
indicated its indifference toward that organization. Further, the
respondent contends, it could not without violating the Act have pre-
vented its employees from organizing the Association. We find no
merit in these claims. The declarations that the respondent would
not discriminate against employees exercising their right of self-
organization were discredited by various acts of interference, restraint,
and coercion recited above, which both preceded and followed the June
and October 1937 letters. Nor can it be said that the respondent's
Ui In July 1938 the Association filed with the Board a petition for investigation and certi-
fication of representatives Stehlik, Klein, and Buss were members of the delegation which
went to the Regional Office for this purpose Prior to the second request for recognition,
the Association held a referenaum in which, it claimed, 1329 of an asserted inemberslup of
1774 employees voted to designate it as bargaining representative These figures probably
included office employees, who were eligible for the Association but who customarily are not
included in bargaining units of production employees; and while 1329 may have represented
a majority of the persons actually employed by the respondent at the time of the referendum,
that number clearly did not constitute a majority of the respondent' s normal personnel.
ALUM1NUM GOODS MANUFACTURING- COMPANY 1035
refusal to grant recognition demonstrated to its employees the re-
spondent's indifference toward the Association. Prior to any request
for recognition the Union had filed charges alleging that the Associ-
ation was a company-dominated labor organization. More important,
by its participation in the back-to-work movement and the formation
of the Association the respondent had already evidenced its opposition
to the Union and had successively created devices calculated to ob-
struct and undermine that organization. While in such a situation
recognition of the Association would have been a logical step, there is
no reason to believe that in the eyes of its employees the respondent,
by the refusal to grant recognition, appeared to have transformed its
previously manifested partiality for the Association into an- attitude
of indifference towards it. In any event, by taking a position of in-
difference at that time, the respondent certainly could not have re-
paired the effects of its prior illegal conduct. Finally, while the
respondent was under no obligation to prevent the formation of
another labor organization among its employees, the record establishes
that it did not, as claimed by its brief, "keep its hands off" such activ-
ity. On the contrary, the record shows that the respondent in many
`ways sought to prevent employees from becoming or remaining mem-
bers of the Union and sponsored and assisted the formation of the,
Association.
E. Discrimination in regard to hire, tenure, and conditions of
employment
1. The Christmas holiday work
Annually at Christmas time the respondent curtails its operations
or shuts down its plants for a short period during which electrical
equipment, motors, and starter panel boxes are cleaned and oiled.
At plants 1 and 4, respectively, production employees who assist in
this cleaning and oiling are selected by and work under the super-
vision of two electricians, Urban Lonzo and Harold Eberhardt. Al-
though Eberhardt and -Lonzo testified that they were simply elec-
tricians and not supervisory employees, each of them normally has
three or four men working under him. Without determining whether
they are under all circumstances representatives of the management,
we think it clear that, in so far as they select employees for and super-
vise the Christmas holiday work, Eberhardt and Lonzo exercise super-
visory authority and that their conduct in this connection is to be
attributed to the respondent. -
Eberhardt and Lonzo, the record discloses, were both members of
the Association. Eberhardt had attended "a couple meetings" of
the Association and testified that he preferred it to the Union "for a
reason or two."
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At plant 4 approximately 19 employees were engaged for clean-up
work in 1937. Five men, however, failed to receive holiday assign-
ments, although they had worked on clean-up jobs during the Christmas
period for from 2 to 10 consecutive years immediately prior to 1937 .11
One of these men, Strean, was a shop steward and all of them were
members of the Union in good standing, wore their union buttons, and
had picketed during the strike. Of the 19 selected for the clean-up
work, at least 5 were members of the Association. Of those five, two
were definitely shown to have been members of the Association in
December 1937 66 and the remaining three '17 as well as a sixth man who
was later elected an Association group representative,''" became mem-
bers of the Association at a time not disclosed by the record.
On direct examination by the respondent, Eberhardt expressed the
belief that all the men who worked on the clean-up job in 1937 had
previously performed that type of work. On cross-examination, how-
ever, he was forced to admit that two or possibly three of the men had
never before done the work. By thus contradicting his prior testi-
mony, as well as by a similar inconsistency presently to be demon-
strated, Eberhardt showed himself to be an untrustworthy witness.
His testimony, moreover, is squarely controverted by a stipulation of
the parties that the five union men who failed to receive work would
have testified, if called to the stand, that the five non-union men who
did receive work in 1937 had never before been employed on the clean-
up job. Because Eberhardt's testimony is manifestly unreliable and
because the non-union men were not called as witnesses by the respond-
ent, we credit the stipulated testimony and find that the five non-union
men assigned to Christmas work in 1937 had not previously done such
work. Hence it appears that Eberhardt failed to select for the holi-
day work five active union members with previous experience on the
job while, on the other hand, he chose five inexperienced non-union
employees, including at least two persons who were members of the
Association. The foregoing facts establish a prima facie case of dis-
crimination. Evidence introduced by the respondent did not in any
way controvert the proof outlined above. Indeed in his efforts to
explain the manner in which he had selected men for the holiday work
Eberhardt gave such self-contradictory and internally inconsistent
a The names of these men and the years in which they performed cleanup work are as
follows :
Albert Birr------------------------------------------------- 1933-1936
Arthur Hindt------------------------------------------------ 1020-36
Martin Kloss----------------------------------------------- 1927-1936
Henry Stelzer------------------------------- 1922 or 1923-1930; 1932-36
Earl Strean------------------------------------------------ 1935, 1936
Oscar Debus and Fred Fink, Jr
07 George Hatopp , Vilas Hoffman , and James Konop.
63 Ervin Waskow.
ALUMINUM, GOODS MANUFACTURING COMPANY 1037
testimony that he supplied substantial corroboration for the Board's
evidence.
The flaws in Eberhardt's testimony are patent. On direct exami-
nation by the respondent he was asked how he had selected the men
in 1937. To this question he responded :
Well, my usual procedure is to see the foremen and . . . I usually
follow the same procedure, to see a foreman and find out whether
or not the department is working, and if it isn't working, I ask
him if they have any available men that I can get, and I select
the men, that they tell me, as many as I need, that are not working.
When the question was reiterated, he replied :
Well, I got some of the men that worked for me previous years,
if I could get them, and filled in with new men if it was necessary
I know most of the men around the shop, and if I needed
an extra man I would ask him if he wanted to work. If he didn't
want to work, I would pick somebody else. [Italics supplied]
Eberhardt, however, did not claim and there is no evidence that the
five union men whom he failed to select were unavailable for work at
Christmas 1937. We conclude, therefore, that it was not necessary for
Eberhardt to "fill in" with new men, as our findings show he did.
Moreover, at a later stage in his direct examination, Eberhardt as-
serted that the only reason why he had not selected the union men
named in the complaint was that he had "picked somebody else before
[he] come to them." This statement, however, is wholly at variance
with his prior assertion that he chose men who had worked for-him in
previous years "if [he] could get them" and merely "filled in" with new
men "if it was necessary." On cross-examination Eberhardt offered
another explanation, namely that "usually fellows asked ... for a
job" and that, unlike those whom he selected, the five union members
made-no such request.
We have already seen that upon another issue Eberhardt's testimony
upon cross-examination differed substantially from that given by him
on direct. Taken in conjunction with that fact, the multiplicity and
inconsistency of his assertions concerning the manner in which he
chose helpers for' the holiday work lead us to discredit his explanation
entirely. We have previously noted that Eberhardt was a member
of the Association and that he preferred that organization to the
Union. Upon the entire record we conclude that, as shown by the
prima facie proof previously set forth, the respondent, by failing to
hire five union members at plant 4 for the 1937 holiday clean-up work,
discriminated in regard to hire, tenure, and conditions of employ-
ment in order to discourage membership and activity in the Union
and to encourage membership and activity in the Association, and that
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed. them by Section 7 of the Act.
At plant 1, where approximately 18 men were employed in holiday
clean-up work in 1937, Lonzo failed to hire 9 men who had done the
work for at least 2 consecutive years immediately prior to 1937.11,
Karl, one of these men, was a shop steward and all of them had worn
their union buttons, had participated in the strike, and had served on
the picket line. Among the men whom Lonzo hired in their stead
were Carl Bloomquist, who had,been active in the back-to-work move-
ment and in the Association '70 and Frank Hascheck, who had solicited
employees to join the Association.,'
Lonzo claimed that in 1937, as well as in previous years, he chose
men who asked him for the work. However, Edmund Hetue, one of
the union men who failed to receive an assignment to the clean-up
work, asserted that in prior years he and other men were given this
work by Lonzo without having to ask for it. Since the Trial Examiner,
who had an opportunity to observe the witnesses and judge of their
credibility, rejected Lonzo's'explanation, we credit Hetue's testimony.
Bearing in mind, moreover, that Lonzo was a member of the Associa-
tion, we find from the foregoing and upon the entire record that by
failing to give 1937 clean-up employment to nine employees at plant 1,
the respondent discriminated in regard to hire and tenure of employ-
ment in order to discourage membership and activity in the Union and
to encourage membership and activity in the Association and that it
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
A tenth employee, Roland Brunner, is alleged by the complaint to
have been similarly discriminated against with regard to holiday
work. The record discloses, however, that he had not done this work
in 1936 but only in 1935. We cannot say, therefore, that the failure
to assign Brunner to this work in 1937 was due to his union mem-
bership or activity. In our opinion, the evidence fails to support,
and we shall dismiss, the complaint in so far as it pertains to him.
"The names of these men and the years in which they had done clean -up work are as
follows :
Sylvester Copiskey ------------------------------------------ 1935,1936
Edward Domnitz-------------------------------------- 1933, 1935, 1936
Herbert IIeili---------------------------------------------- 1935,1936
Edmund Hetue------------------------------ 1928, 1929, 1933,19-5,1936
Thomas Hetue---------------------------------------------- 1934-1936
Frank IIoida--------------------------------------- -------- 1935,1936
George M Karl_____________________________________________ 1935, 1916
Peter Landusky--------------------------------------------- 1935,1936
George Laque-------- ---------------------------------- 1932,1934-1936
70 See Sections III C and D , supra . Lonzo denied having had knowledge , of these
activities
71 Five other men were identified as having been assigned to clean -up work in 1937 at
plant 1 Lonzo claimed that three of them had previously performed this work and that one
of the three was an exceptionally rapid worker.
ALUMINUM GOODS MANUFACTURING COMPANY 1039
2. The 1937-38 lay-offs
a. Preliminary
The complaint alleges that 11 employees were discriminatorily laid
off in December 1937 and January 1938 and that thereafter they were
discriminatorily refused reinstatement. The claim of discrimination
is based upon the alleged disregard by the respondent of the seniority
provisions of the Agreement,72 which read as follows : 73
(1) DISTRIBUTION OF AVAILABLE WORK
Any available work (whether overtime, part-time or otherwise)
will be divided equitably amongst the employees of any depart-
ment; provided, however, that during slack periods such lay-offs
will be effected as to assure senior employees not less than (30)
thirty hours of work per week; provided, further, that the re-
duction of hours shall not drop below (40) forty hours until
those employees with less than 9 months seniority shall have
been laid off.
(2) SENIORITY
As a general rule, the principle of "seniority" will prevail in
the plant. It will be measured by the length of latest employ-
ment with the Company. Employees on the waiting list for not
more than 6 months and employees who are carried on the leave-
of-absence list will not lose their seniority rights.
The records of employment- for all employees of the Company
are at the factory office and are available to the Union represent-
atives at any reasonable time.
(3)-LAY-OFFS, PROMOTIONS
In case of lay-offs, return to work, filling of vacancies of pro-
motions [sic], seniority shall be given first consideration, but skill
and ability will also be considered. In case any such action is
decided upon which does not follow strict seniority the Company
will notify the affected employee not less than 3 working days in
advance. Should any employee feel that such action is discrimi-
natory, the case may be presented as a grievance.
72 The Agreement was never formally introduced into evidence A copy of it , however, is
incorporated in the respondent ' s answer to the amended complaint which was marked and,
received' as an exhibit Constant reference was made to the Agreement during the hearing
The Trial Examiner, with only the copy attached to the answer before him, made findings
concerning the interpretations to be given to certain portions of the Agreement For these
reasons, and since the respondent prepared the copy of the Agreement attached to its answer
and the Union did not except to the Tnal Ex,iminer's findings concerning it, we believe
that we may with propriety assume that the original Agreement is accurately reflected in
the copy contained in the respondent 's answer.
71 For the sake of convenience in referring to them below, we have supplied numbers for
these sections. -
1040 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
(4) TRANSFERS
When any employee because of lack of work accepts temporary
transfer from his regular job to some other job, he will receive
the wage rate provided for the job to which he is transferred.
When such transfer is temporary, and at the instance of the
Company, the employee will receive the new job's rate if higher
but will retain his old rate if the new job rate is lower.
The complaint alleges that the respondent made use of "self-
serving" interpretations of the Agreement in order to discriminate
against union members. The Agreement expressly provides, and it
was not disputed by the Union or the respondent, that the seniority of
an individual employee should be measured by the length of his last
continuous employment with the respondent. The Union, however,
contends that seniority should have been applied on a plant-wide basis,
whereas the respondent, adopting `a contrary interpretation of the
Agreement, in fact applied seniority on a departmental basis.
In our opinion the Agreement on its face shows the propriety of the
interpretation adopted by the respondent. The declaration in section
(2) that "as a general rule, the principle of `seniority' will prevail
in the plant" might, if it stood alone, admit of the construction for
which the Union contends. However, that clause must be interpreted
in the light of the remaining provisions of the Agreement. Among
those provisions, section (1), which declares that available work
should be "divided equitably amongst the employees of any depart-
ment," 74 shows that no interpretation other than that applied by the
respondent is possible. While section (3) provides that "in case of
lay-offs" seniority is to be given first consideration, this clause, if con-
strued to require plant-wide seniority., would establish a procedure in
manifest conflict with that called for by section (1). Accordingly, we
find that the respondent properly construed the Agreement to require
departmental rather than plant-wide seniority. This conclusion is sup-
ported by the absence of any proof that the parties intended the con-
tract to embody a contrary meaning and by the fact that the Union
did not seasonably protest against the construction adopted and ap-
plied by the respondent.
In a number of instances the respondent retained or reinstated cer-
tain employees classified as "boys" 75 in disregard of the greater
seniority of certain of the men named in the complaint. The Union
74 Italics supplied This declaration is not altered but only limited in its effect by, the
proviso which follows it.
75 The respondent classifies as "boys" its male employees under the age of 21. "Boys,"
it appears , are paid at a lower rate than men , and, for the most part , do work which requires
less skill and training However , the record does not clearly show the time when a "boy"
is promoted to a man's status • in one department the transition is effected as soon as he
reaches the age of 21, whereas in another he is not given a man's pay until , having reached
the age of 21 , he is assigned to a man ' s job A L Vits testified, perhaps in jest, that it was
not impossible that a 30-year old employee might be classified as a boy.
11
ALUMINUM GOODS MANUFACTURING COMPANY 1041
contends that such actions not only violated the Agreement, which
contains no express authority for excluding "boys" from the operations
of its seniority provisions, but were also discriminatory. The Union's
position is buttressed by the fact that the Agreement provides that upon
transfer for lack of work an employee shall receive the wage rate of
the position to which he is transferred, whether or not it is lower than
his previous rate.. Consequently, although "boys" receive lower wages
`than men, men assigned to their jobs because of lack of other work are
compelled to accept those wages. Despite these circumstances we are
not persuaded that the Agreement was intended to require uniform
application of its seniority provisions to men and "boys." There is no
evidence that it was ever the respondent's practice-either before or
after the Agreement was executed-to substitute for "boys" men who
would otherwise be laid off. Moreover, when the 1937-38 lay-offs oc-
curred the Union lodged no protests against the retention of "boys."
Indeed, when Brull, a shop steward who had been laid off, was told
that "two boys" with less seniority had been reinstated, he took no
exception to the foreman's intimation that "it was a different thing" if
an employee was a "boy." 's The record shows, moreover, that the
Union acquiesced in the retention of women who had less seniority than
certain men who were laid off. Thus the Board's attorney, in seeking
to prove that the respondent had discriminated against certain em-
ployees in foreman Weyenberg's department and against another in
foreman Simonis', did not advert to the fact that several women with
less seniority were retained. Furthermore the Union took no exception
to the Trial Examiner's failure to mention the retention of a number
of women as a ground for his finding that Vnuk and Tadych had been
discriminatorily laid off. For the foregoing reasons we are unable to
say, upon the present record, that the respondent should have applied
the seniority provisions of the Agreement uniformly to "boys" and
men. Nor would we be warranted in finding that it `vas the respondent's
practice to reclassify "boys" immediately upon their reaching the age
of 21. Consequently the record fails to show that the respondent, in
giving certain preferences to "boys" in disregard of men with greater
seniority, violated any contractual obligation or that it departed from
any established practice. Hence there is no basis for an inference that
by failing to include "boys" in the application of its seniority system
the respondent discriminated against the union members who were
prejudiced thereby.
b. Plant 2
i. The spinning department
Clarence G. Krueger and Adolph J. Marquardt, employees in the
spinning department who had, worked for the respondent since 1922
71 See Section III E c 1 , infra.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 1924, respectively, were laid off on January 27 or 28, 1938. Both
had done spinning, trimming, and beading; Marquardt was also,
quallified to do rolling, but Krueger had had only a day's experience
at such work. Neither was given any notice in advance of his lay-off
that persons junior in status would be retained.
Krueger and Marquardt originally joined the Union in 1934, with-
drew from it in 1936, rejoined in March and May 1937, and were mem-
bers in good standing when laid off. Krueger had worn his union
button in the shop, had picketed, had served on the lunch committee
during the strike, and had signed up "quite a few" members at union
meetings. Both men were shop stewards," and Marquardt was chair-
man of all the shop stewards 78 and a member of the Union's grievance
and bargaining committees. From the foregoing it is apparent not only
that Krueger and Marquardt were active union sympathizers, but that
they must have been known to the respondent as such. That this was
the case is also evidenced by the following incidents. On October 27,
1937, after A. L. Vits had assertedly received a report that a union
member had been told by Marquardt that he would lose his job if he
did not wear his union button in the shop, Vits declared to both
Marquardt and Luebke, president of the Manitowoc local, that Mar-
quardt would be discharged if he persisted in such conduct. As we have
already found, in February 1938 Becker, the plant superintendent, told
Krueger that there would have been more work "if we didn't listen
to that son of a bitch kike Sigman (the union organizer) last fall."
At the time they were laid off Krueger and Marquardt protested to
Weyenberg, foreman of the department, that because of their seniority
they should have been retained in preference to Joseph E. Nemetz and
John Tichansky.79 Weyenberg replied to the protest by declaring,
"Them fellows are working on the grave yard shift. We are not mak-
ing any exception now .:. I ain't putting anybody else on there ...
them fellows worked that." A week later Krueger-and Marquardt
renewed their protest, but to no avail.
Tichansky, who was junior to Kreuger but senior to Marquardt, was
doing rolling at at the time the lay-offs occurred. Since Kreuger had
had only a day's experience at that work which, due to an old injury,110
had proved to be painful to him, we believe that the respondent was
justified in retaining Tichansky in preference to him. There was no
such justification, however, for the retention of Nemetz.
77 There were 35 employees and 4 stewards in the spinning department.
"The record does not disclose whether Marquardt was chairman of the plant 2 stewards
only or of the stewards in all four plants.
" At the same time a protest was made by Krueger, Marquardt, and others against the
retention of a third employee, Nelson W. Madenwald. We do not understand, however, that
it was claimed that his job should have been given to Krueger or Marquardt.
10 See infra.
ALUMINUM GOODS MANUFACTURING COMPANY 1043
The respondent maintains that neither Krueger nor Marquardt was
technically qualified to do Nemetz's work; that Krueger suffered from
a physical disability which made him a less desirable workman than
Nemetz; and that it had reason to assume that Marquardt did not
care to do night work. Not only are these contentions unsupported
by the record, but, as we shall presently point out, they are patently
a fterthoughts.
At the time of the lay-offs Nemetz was working on a mechanical
spinner. Rhile Weyenberg claimed that this work required "a fairly
alert fellow" and declared that he would not "risk" Krueger on it,
Marquardt testified that the "later" mechanical spinners were almost
wholly automatic and therefore simple to operate. Weyenberg ad-
mitted, moreover, that Marquardt was "a fairly alert fellow." The
Trial Examiner rejected Weyenberg's testimony that Kreuger and
Marquardt were unqualified to perform 'Nemetz's work. From the
foregoing, and upon the entire record, we conclude that Krueger and
Marquardt were both able to operate the mechanical spinner.
The respondent adverts to the fact that, as a consequence of an indus-
trial accident in 1932, Kreuger had received compensation for 30 per
cent "loss of use of his left arm at the shoulder." However, the record
shows that for a substantial period of time prior to his lay-off in 1938
Kreuger had been able to perform every job assigned to him except
rolling. Moreover, it appears from Marquardt's testimony that oper-
ation of the mechanical spinner was easier than the type of spinning
which Kreuger customarily performed. In view of these facts we
find no merit in the claim Kreuger's asserted disability was the
cause of his lay-off. Furthermore, there are additional reasons why
we do not credit this contention or the claim that Kreuger and Mar-
quardt were laid off because they were unable to operate the me-
chanical spinners. Neither Krueger nor Marquardt was notified prior
to being laid off that Nemetz would be retained on a skill and ability
basis. In answering their protest, furthermore, Weyenberg attributed
the retention of Nemetz solely to the fact that he was working on the
night shift.
As a further reason for not replacing Nemetz with Marquardt,
the respondent points out that the latter, while working on the night
shift in another department, had complained of an inability to sleep
during the daytime. Consequently, the respondent maintains, it had
cause to assume that he was not interested in night work. This
argument disregards the. fact that Marquardt by twice protesting
against Nemetz's retention apprised the respondent that he was will-
ing to work on the "grave yard" shift.
The retention of Nemetz is not the only evidence of discrimination
against Krueger and Marquardt. In or about March 1938, ,Harry
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Rosinsky, who regularly worked in another department, and who,
as the respondent knew, was an active member of the Association,
was transferred to the spinning department to do rolling, a type
of work for which Marquardt was admittedly qualified. The re-
spondent made no attempt to explain why it transferred Rosinsky
into the spinning department instead of reinstating Marquardt, al-
though under the Agreement it was clearly obli*ated, when addi-
tional work became available in the spinning department, to reinstate
pursuant to seniority one of the employees who had been laid off
for less than 6 months. Obviously the Agreement was intended to
preclude the respondent, under such circumstances, from transfer-
ring employees from other departments. It expressly requires that
seniority shall govern in the assignment of all available work,
"whether overtime, part-time or otherwise" and this inclusive pro-
vision manifestly applied to the work performed by Rosinsky. Fur-
thermore, the Agreement provides that employees shall retaintheir
seniority rights for 6 months and, as we have seen, the respondent
contended, and Nye have found, that the seniority contemplated by
the Agreement was departmental rather than plant-wide. If the
Agreement were construed to permit interdepartmental transfers
prior to the reinstatement of those employees of a given depart-
ment laid off within 6 months,. the seniority rights of such employees
would be rendered largely nugatory and their status would be almost
indistinguishable from that of employees laid off longer than 6
months. We conclude, therefore, that in transferring Rosinsky to
the spinning department in place of reinstating Marquardt, who
was qualified to do the former's work, the respondent deliberately
acted in violation of its contractual obligation.
In its brief the respondent contends that, if it had had "any desire
to get rid of Adolph Marquardt or to discriminate against him,
it would have been easy to refuse" to transfer him, pursuant to re-
quests made by him on several occasions. The record shows, how-
ever, that Marquardt's transfers occurred in 1936 and that he was
not then a union member.
From the foregoing it appears that Krueger and Marquardt were
both conspicuously active in the Union. At the time they were laid
off Nemetz, who was junior to them, was retained on a job which
they were capable of performing. Weyenberg sought to justify this
action on the completely untenable ground that Nemetz was working
on the "grave yard" shift. This was obviously a mere subterfuge:
the Agreement did not contemplate, nor has the respondent claimed
that it provided, for shift rather than departmental seniority. Also
significant is the respondent's unexplained transfer of Rosinsky, an
ALUMINUM GOODS MANUFACTURING COMPANY 1045
active proponent of the Association, from another department to a
job in the spinning department for which Marquardt was qualified.
We find that by laying off and failing to reinstate Krueger and
Marquardt the respondent discriminated against them in regard to
hire and tenure of employment to discourage membership and, ac-
tivity in the Union and to encourage membership and activity in
the Association and that it thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
Neither Krueger nor Marquardt has had any employment other
than by the W. P. A. since his lay-off.
ii. The shipping department
Blan.clie Forst, who was first employed by the respondent on April
19, 1937, worked in the wrapping division of the shipping depart-
ment and was laid off about January 15, 1938. She had joined'the
Union about June 18, 1937, and was one of three shop stewards in
the division. We have previously found that Holly, her foreman,
made several anti-union statements to Forst.
The claim that Forst was discriminated against is rested in part
upon the fact that immediately prior to her lay-off Leona E. Wensing,
Bernadine E. Garber, and Margaret M. Marx were transferred into
the wrapping division from other sections of the shipping depart-
ment and also upon the ground that Hattie J. Wolfgram was trans-
ferred from the wrapping division to the office. Wensing, however,
was senior to Forst, had previously worked in the wrapping division,
.and had been given to understand, when she was transferred to
another section for its busy season, that she would later be retrans-
ferred to the wrapping division. Garber and Marx, the record
discloses, were brought into the wrapping division only for 2 or 3'
days of work on a special order and, we infer, their employment in
that division terminated at approximately the same time as Forst
was laid off. Wolfgram, the respondent contends, was laid off at
the same time as Forst. Assuming, however, that Forst was correct
in stating that Wolfgram was transferred to the office, we think this
fact of no significance, for the record contains no suggestion that
Forst was capable of doing office work. Perhaps under the skill and
ability clause Forst should have been given advance notice of the
respondent's intention to retain Wolfgram, but the failure to give
such notice, even if constituting a breach of contract, is not in this
instance persuasive evidence that Forst was discriminatorily laid off.
We conclude that the respondent did not discriminate against Forst
by making the transfers of which she complained.
283036-42-vol 25-67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forst 's charge of discrimination is further grounded upon the fact
that approximately a dozen employees junior to her were retained
in other divisions of the shipping department . In seeking to justify
the retention of these workers the respondent maintained that each
of the seven or more subdepartments or divisions 81 of the shipping
department constituted , for seniority purposes , a separate depart-
ment; the Union, on the other hand , contends that the shipping
department constituted a single department for seniority purposes.
In weighing these conflicting claims it is helpful to consider the work
performed in each of the divisions.
In the toy -set division sets of toy dishes and utensils are assembled
and boxed . Articles such as icebox trays, radio shields, and auto-
mobile wheels are inspected , wiped, wrapped, packed , and made ready
for shipping in the special -goods division . The reserve -stock divi-
sion, which handles cooking utensils, stores articles in excess of those
currently needed for filling orders . Orders for such utensils are
filled in three different divisions , of which one is devoted to the
respondent 's "Mirro" and another to the "Viko" brand of articles.
Two or possibly all of these order-filling sections are also engaged
in relabeling and renumbering of articles and cartons to conform to
customers ' specifications. Similar work is performed in the wrapping
division , where certain articles are unwrapped , imprinted with the
purchaser 's mark, labeled, wiped , inspected, and rewrapped . There-
after certain articles pass through the packing division and ulti-
mately all articles handled by the department are placed on trucks
or freight cars by the freight division.
From the above description it is apparent that the operations
carried on by the shipping department are sufficiently homogeneous
so that the entire section could be regarded as a unit for the pur-
poses of seniority . However, it is equally possible to view each
division as an entity in itself, distinguished from others by the na-
ture of its work but performing a function similar or at least related
to that of the other divisions. There is, indeed , considerable evi-
dence to support this latter view . The shipping department, with
approximately 290 employees , is larger than any other department
in any of the four plants . Furthermore, the work performed by
each of the order-filling divisions requires a thorough familiarity
with from several , hundred to more than a thousand articles and
therefore calls for specialized experience and training . Finally, ex-
cept for the special goods and assortment divisions which together
are supervised by a single assistant foreman, each of the divisions has
its own assistant foreman.
91 These subdivisions of the shipping department are referred to in the record both as
"departments" and as "divisions " For convenience we shall use the latter term.
ALUMINUM GOODS MANUFACTURING COMPANY 1047
From the foregoing it is, apparent that the divisions constitute
well-defined sections of the shipping department. The record affords
no basis for determining whether for seniority purposes these divi-
sions should have been treated as separate units or as a single unit.
It is significant, however, that at the time Forst was laid off neither -
she nor the ,Union lodged a protest against the retention in other
divisions of employees junior to her, whence we infer that at that
time the retention of those employees was not regarded as improper.
Under the circumstances, therefore, we conclude that the record
does not establish that the respondent discriminated against Forst
by retaining employees in other divisions of the shipping department.
On the basis of the foregoing and of the entire record, we shall dis-
miss the complaint in so far as it alleges that the respondent dis-
criminatorily laid off and refused to reinstate Blanche Forst.
iii. The drawing department
John P. Vnuk and Felix J. Tadych, employees in the drawing
department whose continuous service with the respondent began in
1922 and 1924,' respectively, were laid off about January 12, 1938.
Each of them was conceded to be experienced upon and qualified to
do all the operations in the department except blanking. Vnuk
claimed that he had done blanking on "big stuff" and Tadych that
he had performed that operation during an earlier period of em-
ployment; Mrozinski, their foreman, controverted Vnuk's assertion
but stated that he had no information concerning • Tadych's
experience.
Vnuk and Tadych both became members of the Union during the
spring of 1937, wore their union buttons, picketed during the strike,
and were shop stewards.82 Vnuk had presented three grievances to
the foreman and the latter admittedly knew that Tadych was a
steward. It appears from uncontroverted testimony that on several
occasions prior to Tadych's lay-off, Budnik, the head die-setter of •
the department, asked Tadych to join the Association-and said that
it would be "just too bad" for him if he did not.83
At the time that Vnuk and Tadych were laid off approximately
20 or 21 employees were retained in the department. No claim is
made that the lay-offs were not in accordance with seniority. How-
ever, on February 8, less than a month later, the respondent reinstated
five men who had been laid off at the same time as Vnuk and
az Normally there are approximately 60 employees in the drawing department . Of that
total, five are identified as shop , stewards.
83 Karkow, the night die -setter of the department , also solicited Tadych to join the
Association ' The latter became a member on February 4, 1938, but continued to maintain
his membership in the Union. '
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tadych,84 all of -whole were junior to Vnuk and three of whom85
were also junior to Tadych.8°'
Mrozinski attempted to explain the February 8 reinstatements on
the ground that the department was "short of blankers" and that,
whereas Vnuk and Tadych were unqualified to do blanking, the five
men who were reemployed could perform that operation in addition
to the jobs which Vnuk and Tadych were capable of doing. He
admitted, however, that of the 20 odd employees who had not been
laid off, 3 or 4,8' in addition to several die-setters,88 had had blanking
experience and could be used upon that operation "in a pinch," but
claimed that all of these men were out of practice at blanking. In
particular he stated that one of them, Adolph Fallier, had not blanked
for 15 or 20 years and, in response to a direct inquiry, he declared
that Joseph J. Tadych,' Jr., another employee in the department, did
not do blanking.
The unreliability of Mrozinski's attempted explanation` became
apparent when he was cross-examined. Under questioning by the
Board's attorney he conceded that while the five "blankers" rein-
stated in February allegedly did blanking on some days, there were
``a lot of days" when they were assigned to work which Vnuk and
Tadych were qualified to perform ; and, although he claimed that
these five men worked "mostly" on blanking, Mrozinski was unwilling
to estimate whether they spent a "little more" or a "lot more" than
half of their time on that work.
Two days after Mrozinski testified, the respondent called as its
witness Karkow, the night die-setter in the drawing department.
While Karkow was on the stand the Trial Examiner asked him how
many blankers would be required in the department if, as during
the period immediately preceding the February 8 reinstatements, the
department were to operate with 20 or 21 employees and on a single
shift. To this question Karkow replied :
Well, that has a lot to do with the form of work that is being
run. Possibly we would only need one and possibly not any at
the time in the department.
The respondent next called Benjamin Kohlmeier, another die-setter,
who testified on direct examination that there were then 30 men
84 Chester J. Bonk, Theodore E Nitka, Eugene Peters, Alois Rozmanoski, and Adam A.
Tychanski
85 Bonk, Peters, and Rozmanoski
so Three of the five, Bonk, Nitka, and Peters, had joined the Association in November ;
the other two became members the day before they were reinstated by the respondent
8z Adolph Fallier, Paul F. Gapinsky, and Frank T. Korolesky. Mrozinski admitted that
a fourth employee, Edward J. Rugowski, Jr , who was a die-setter prior to January 14, 1938,
but who became a production employee thereafter, had also had blanking experience
88 Mrozinski contended, and we find, that it would not have been economical to assign
die-setters to production work on a blanking press
ALUMINUM GOODS MANUFACTURING COMPANY 1049
working in the department; that only 2 or 3 and certainly not 4 or 5
of them were doing blanking; and that 2 of the men who had been
recalled on February 8 were working on drawing presses rather than
on blanking operations. On.the same day Edward J. Rugowski, Jr.,
was called as a witness by the, respondent. In answer to a question
addressed to him upon cross-examination, Rugowski declared that
between January 13 and February 8, 1938=the period during which
the five "blinkers" were laid off-blanking was performed by Frank
T. Korolesky, Adolph Fallier, and Joseph J. Tadych, 'Jr. As stated
above, to explain the reinstatement of five "blinkers" on February 8
Mrozinski testified that Korolesky and Fallier were out of practice
at blanking; that Fallier had not blanked for "years"; and that
Joseph Tadych did not do blanking.
It is apparent from the foregoing that Mrozinski's attempted expla-
nation of the February reinstatements was completely discredited by
his own testimony on cross-examination and by the testimony of Kar-
kow, Kohlmeier, and Rugowski, who were the respondent's witnesses.
We conclude that prior to February 8 there were three men in the de-
partment, other than die-setters, fully capable of doing blanking; that,
since there were then 20-odd employees in the department, only a single
blanker was required; and that the 5 men reinstated on, February 8
were recalled not for blanking but for other operations which Vnuk
and Tadych were qualified to perform.
As proof that it did not discriminate against Vnuk and.Tadych, the
respondent argues that three of the men reinstated on February 8 were
members of the Union. To support this argument the respondent
refers to Mrozinski's testimony that he had seen these three men wear-
ing union buttons. However, Mrozinski did not state when he had
allegedly seen them do so and his testimony is minimized and at least
in part discredited by other evidence. Rozmanoski, one of the three,
had withdrawn from the Union prior to the lay-offs and we infer that
after his withdrawal he did not wear a union button. Bonk, another
of the three, had joined the Association in November 1937 and, we in-
fer, also had not thereafter worn a union button. The name of Ty-
chanski, the third employee named by Mrozinski, is not listed on an
exhibit showing which of the persons laid off were or had been affiliated
with the Union and Tychanski was not called as a witness to corrobo-
rate Mrozinski's testimony that he had worn a union button. In view
of the foregoing, and of the entire record, we are satisfied that Mrozin-
ski did not at the time they were reinstated believe any of these three
employees to be a member of the Union.
The five "blankers" were not the only employees given work in dis-
regard of Vnuk's and Tadych's seniority. In April 1938 Henry Wagner
and Arthur J. Meister were transferred from another department to the
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drawing department, where they worked an aggregate-of 21/z months
between that time and September. Mrozinski testified that Meister and
Wagner had been assigned to operations which Vnuk and Tadych had
never performed and were too old to learn. However, the record dis-
closes that Meister and Wagner were assigned to trucking, trimming
and beading, and helping on blanking work; at an earlier point in, his
testimony, Mrozinski admitted that Vnuk and Tadych had done every
job in the department except blanking; and, as we have found above,
Mrozinski had more blankers in his department than he needed.
Moreover, Mrozinski upon cross-examination conceded that Meister
and Wagner were not experienced on the type of blanking which he
assigned to them and that the work given them was such that, even if
their production had lagged, subsequent operations would not have
been retarded. Under these circumstances we are unable to credit the
explanation that Vnuk and Tadych, who were respectively 35 and 36
years old, were not reinstated because of any belief that they could not
have performed or been trained to do the work assigned to Meister
and Wagner. In its brief the respondent, for the first time, urges that
Meister and Wagner were only temporarily transferred to the drawing
department. This circumstance, however, is without significance, for
the seniority provisions of the Agreement apply to "any available work
[whether overtime, part-time or otherwise]." 89
The respondent also contends that Vnuk "admitted acts of insolence
and insubordination toward his foreman" and that it was entitled to
t ake such conduct into consideration in determining whether he should
have been laid off or rehired. We are satisfied, however, that this was
not the reason the respondent failed to reinstate Vnuk. No such claim
was advanced by the respondent except in its brief. On the contrary
Mrozinski testified that in 'laying off Vnuk he was not motivated by
any personal "grudge or quarrel," and sought to justify the February
8 reinstatements solely on the ground that he was "short" of blankers.
Consequently, we are of the opinion that Vnuk's claimed insolence was
not the reason why the respondent failed to reinstate him.
From the foregoing it appears that Vnuk and Tadych were active
union members, that the respondent was aware of their union activity,
that in February and in April several men with less seniority were
reinstated or transferred to perform work which they were able to
perform, and that the respondent gave demonstrably false excuses
to justify those reinstatements. The record discloses, in addition to
these circumstances, that Foreman Mrozinski was and that he believed
the respondent to be inimically disposed toward the Union.9° Upon
as Cf . our discussion of the transfer of Rosinsky into the spinning department to do work
for which Marquardt was qualified, Section III E 2 b i, supra
00 When Andrew Labinski, an employee and Mrozinski's nephew, first appeared in the shop
wearing a union button , Mrozinski said to him , "Alhe [A L ] Vits knows you have been
ALUMINUM GOODS MANUFACTURING COMPANY 1051
the above findings and the entire record we conclude that by failing
to reinstate Vnuk and Tadych the respondent discriminated against
them in regard to hire and tenure of employment in order to dis-
courage membership and activity in the Union and that it thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.,".
Following his lay-off Vnuk was employed for a short time as a
salesman and at the time of the hearing was doing construction work.
On the former job Vnuk's expenses, which he had to bear himself,
amounted to more than the $24 he earned; on the latter he had earned
$90.
In July 1938 Tadych secured employment which in approximately 2
months yielded earnings of $150 or $175, but he had only 2 "good
weeks" and during other weeks earned only $12' to $14. His other
earnings since his lay-off aggregated less than $5.
c. Plant 4
i. Department 7-A (Blanking Press)
Frank P. Brull, Ambrose Martell, and Joseph Wilson, each of
whom had worked for the respondent for 4 years or more, were laid
off from department 7-A on January 15, 1938. -
Martell was one of three shop stewards in the department and
in that capacity had presented several grievances to Sibenhorn, fore-
man of the department. Brull and Wilson were also members of the
Union. Wilson had twice rejected requests by Sibenhorn that he
sign a back-to-work card and in January 1938 turned down solicita-
tion by Walter Moore, a die-setter in the department, to join the
Association.
willing to work for $1.50 or $2 00, and he knows you are making three times more than
what you asked for, and how will he feel towards me if he, finds out you ain't satisfied
with what you have been making?" Labinski testified, moreover, that on subsequent occa-
sions Mrozmski asked him to quit the Union and otherwise attempted to discourage him from
remaining a member. While Mrozinskl denied these latter statements , we discredit his
denials because , as we have seen above , he was not a reliable witness.
91 According to the respondent, a finding that the department's actual need at the time of
the February reinstatement was for drawing pressmen rather than blankers "trespasses
upon respondent's legitimate managerial functions " The contention is without merit.
Our finding does not interfere with the respondent's managerial functions but is simply one
of a series of findings which compel us to conclude that the respondent mfunged upon the
rights of employees guaranteed by the Act See National Labor Relations Board v Jones &
Laughlin Steel Corporation, 301 U S. 1, reversing 83 F (2d) 998 (C C. A 5) and enf'g Matter
of Jones & Laughlin Steel Corporation and Amalgamated Association of Iron, Steel & Ten
Workers of North America, Beaver Valley Lodge, No. 200, in which the Court said :
The Act does not interfere with the normal exercise of the right of the employer to select
its employees or to discharge them The employer may not, under cover of that right,
intimidate or coerce its employees-with respect td their self-organization and representation,
and, on the other hand, the Board is not entitled to make its authority a pretext for inter-
ference with the right of discharge when that right is exercised for other reasons than such
intimidation and coercion . The true purpose is the subject of the investigation with full
opportunity to show the facts.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In March 1938 the respondent reinstated John Walesh, who had
been laid off in November 1937. Upon his reinstatement Walesh,
who was junior in seniority to Brull, Martell, and Wilson, was as-
signed to work on the slitter, the molding machine, and small
presses,-jobs which the latter three could have performed. Shortly
afterwards Brull' inquired of Foreman Sibenhorn whether there was
"any work coming up" and commented that "some fellows" had been
reinstated. Sibenhorn replied to Brull that two persons had been
rehired but that they were "just . . . boys." In fact, however, 'while
one of them was a. "boy," Walesh was 21 or 22 years old and was
drawing a man's rate of pay. Although Walesh had been a union
member when he was laid off in November 1937, he joined the Asso-
ciation the same month. In view of Sibenhorn's active role in the
organization of the back-to-work movement we believe that he was
aware of this change in Walesh's affiliation, particularly since he
advanced a false explanation for reinstating Walesh instead of Brull,
an employee with greater seniority, and further because no valid
reason appears for the failure to reinstate Brull, Martell, whom he
knew to be a shop steward, or Wilson, whose firm opposition to the
back-to-work movement was known to him. From the foregoing,
and upon the entire record, we find that by reinstating Walesh
the respondent discriminated against Brull, Martell, and Wil-
son in regard to hire and tenure of employment, to discourage
membership and activity in the Union and to encourage membership
and activity in the Association and that it thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
Following their lay-offs, Brull and Wilson were not employed
except on W. P. A. work, but Martell earned $87 in a month's em-
ployment on a steamboat.
ii. Department 3 (Spinning and Sanding)
Ralph Gustafson, who had worked for the respondent since 1933,
was laid off from department 3 about January 6, 1938. He was a
member of the Union, wore a union button, served as a "strike cap-
tain," picketed throughout the strike, was a shop steward, and had
presented grievances to Foreman Eli Gauthier.92
Gustafson testified that 5 days after he had been laid off three
men 13 were transferred or shifted into his department from other
departments and asserted that they remained there at least until
12 Gustafson was one of two stewards in the department Prior to the hearing the other
withdrew from the Union and joined the Association
93 Walter Schinke , Norman Kromforst, and Edward DeRoche The last name appears in
the transcript as "Edward Durocher ," but no such person is shown on a list of the em-
ployees introduced in evidence.
ALUMINUM GOODS MANUFACTURING COMPANY 1053
the latter part of March. On cross-examination the respondent elic-
ited from Gustafson the admission that his knowledge concerning
the transfer of two of the men, Schinke and DeRoche, was limited
to having seen each of them working in the department on a single
occasion. However, the respondent did not cross-examine Gustafson
concerning the third man, Kromforst. Moreover, although informa-
tion as to whether or not these three men had been assigned to the
spinning department was peculiarly within its knowledge, the re-
spondent failed to adduce any evidence on this issue. It is reason-
able to infer from Gustafson's testimony, and in view of the above
circumstances we find, that Schmke, Kromforst, and DeRoche were
transferred or temporarily shifted from their departments to the
spinning department. Gustafson on three occasions subsequent to
his lay-off protested to Gauthier concerning these transfers. Gau-
thier, on the first two occasions, replied. that "he couldn't do any-
thing about it, that orders came from the office." 94
As we have previously stated that the seniority provisions of the
Agreement were intended to apply to temporary as well as to other
work,95 we find that the transfers here in question violated both the
spirit and the letter of the Agreement.96
From the foregoing it appears that Gustafson was known as an
active proponent of the Union; that after he was laid off three em-
ployees from other departments were assigned to work in the spin-
ning department for which he was qualified; that when Gustafson per-
sistently complained about the transfer of these employees, the only
explanation advanced by his foreman was that "orders came from the
office"; and that the respondent made no attempt to explain why it
made these transfers which, as we have found, constituted a departure
from the agreed seniority procedure. Upon the entire record we con-
clude that by failing to reinstate Gustafson the respondent discrim-
inated against him in regard to hire and tenure of employment to
discourage membership and activity in the Union and that it thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
Gustafson has had no employment, other than W. P. A. work, since
his lay-off.
iii. Department 6 (Buffing and Polishing)
George Harrop, an employee in department 6 who had been em-
ployed by the respondent since 1926, was laid off on December 22,
° On the"third'occasion Gauthier. instructed Gustafson not to come directly to the depart-
ment, but, if he wanted an interview, to call him from the "vestibule "
15 See Section III E 2 b iii, supra
66 Moreover, not only were DeRoche and Kromforst employees of another department, -but
Gustafson had a longer record of continuous service with the respondent than they
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1937.07 Harrop had performed buffing , and polishing-by hand and
by machine, grinding, sanding, and all kinds of rework, and had more
seniority than any of the other employees laid off from the depart-
ment. He became a member of the Union in 1934, picketed during the
strike, was a shop steward, and had presented some six grievances to
Foreman Beaton.
In January 1938, after Harrop had been laid off, Joseph Kvitek, who
apparently continued to keep his time card in another department,
was shifted to department 6 to repolish certain goods which had been
returned from another plant. When that work was concluded, Kvitek
was retained in the department to buff roasters. Although thereafter
sent back to the department where he had previously worked, Kvitek
was later reassigned to department 6. The respondent made no at-
tempt to explain why it had not reinstated Harrop to do the work
given to Kvitek.
Walter Bohlman, who was also laid off from department 6, although
junior to Harrop in service, was reemployed in January 1938 for 2
days and again in August 1938. Beaton asserted that Bohlman was
reinstated on the former occasion to buff some reflectors, which he
described as "kind of a particular job." In August Bohlman was as-
signed to work on automobile moldings. Beaton did not offer any
reason for selecting Bohlman in preference to Harrop and in view
of the latter's experience we infer that the latter was fully qualified
to do both jobs.
In September 1938, when Beaton found that he needed two addi-
tional men in the department, he communicated that fact to Kum-
merow, the plant superintendent, who authorized him to obtain the
additional help. Beaton told Kummerow that he intended to employ
Malfroid and Gauthier, who had been laid off in December, 2 days
before Harrop. Kummerow said that the choice of men was "up to"
Beaton, who then reemployed these two men. In explaining his
reason for selecting them, Beaton said that Malfroid was "a pretty
good polisher" and that he had chosen Gauthier because he needed a
grinder. He admitted, however, that neither of them performed any
operations which Harrop was not capable of doing.98
As appears from the foregoing Harrop was known as an active
figure in the Union, was entitled under the Agreement to be given
the first work available in the department after his lay-off, and was
qualified for the jobs given an employee transferred from another
K The respondent continued to employ Harrop , after he was laid off , to umpire baseball
games, which was work that be had previously performed in addition to his job in the
factory
08 Since Bohlman , Malfroid, and Gauthier were reinstated more than 6 months after De-
cember 1937 , the respondent was no longer under a contractual obligation to follow seniority
in reinstating the men who had been laid off at that time. It failed , however , to show any
reason for departing from seniority in making those reinstatements.
ALUMINUM GOODS MANUFACTURING COMPANY 1055
department and to employees reinstated despite their lesser seniority
and without any plausible explanation. In view of these facts, and
upon the entire record, we find that 'by failing to reinstate Harrop
the respondent discriminated against him in regard to hire and
tenure of employment in order to discourage membership and activity
in the Union, and that it thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
d. Plant 1
Lloyd George Hansen, who had been employed as a shipping clerk-,
for 10 years, was laid off from the shipping department on January
12, 1938. He joined the Union in May 1937, wore a union button,
and picketed during the strike.99
It is evident from the record that Simonis, foreman of the ship-
ping department, who admittedly knew that Hansen was a member
of the Union, was hostile to that organization. As we have pre-
viously found,100 in 1936 Simonis told Kuchenbecker that "anyone that
joins the union is a damn fool"; and subsequently, when as shop
steward Kuchenbecker sought a raise for several men in the depart-
ment, Simonis replied- to his demand by saying, "Why don't they
come to me themselves? . . . If they can't come to me themselves,
they can go to hell." Simonis' antagonism to the Union was also
manifested in his behavior toward Hansen after the latter became
a member. Until that time, Hansen claimed, his work was super-
vised almost entirely by an assistant foreman or strawboss, Orme
Voshardt. Thereafter, however, Simonis "wanted to show he was
still foreman," "took more pains," "watched the work more closely,"
and "every little thing he could pick up, well, he would jump on me."
In August, for example, Simonis "flew off the handle" and told
Hansen, If you can't handle the job why don't you come and tell
me?" 101 On other occasions, Simonis criticized the way in which
Hansen, in loading freight cars, had placed certain articles in inac-
cessible position. This criticism, Hansen testified,. was unjust, be-
cause only a,few items in each carload could be placed in accessible
positions and in loading the cars he had followed Voshardt's instruc-
tions to use his own judgment as to the placement of articles.
Simonis did not expressly deny that there was a change in his
treatment of Hansen after the latter joined the Union.102 However,
90 Hansen testified , but without giving any details, that he was active in the Union at
Two Rivers
100 See Section III C 1, supra.
101 Subsequently when Hansen told Simonis that he had been offended by this remark, the
latter told him, "I didn 't mean it that way . I meant , if you need any help, why don't
you come and see me."
102 Simonis denied that his treatment of Hansen "after the strike" differed from his earlier
behavior toward him and also asserted that Hansen was not laid off because of his union
membership or activity.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if we were to credit Simonis with having made such a denial,
we would find, in accordance with Hansen's assertion, that such a
change- did occur. In the first place; Simonis failed to cite any in-
stances in which he had criticized -Hansen's work prior to the time
when the latter joined the Union. Simonis admittedly knew, more-
over, that Hansen belonged to the Union and, as we have found, was
not well-disposed toward that organization. From the foregoing and
upon the entire record we conclude, as did the Trial Examiner, that
Simonis' attitude toward Hansen became critical and hostile after
the latter joined the Union.
When Hansen was laid off Franklin Oestreich and Lenus Stehle, em-
ployees with less seniority, were retained and on January 30 Hilary
Short, a junior employee who had been laid off a day before Hansen,
was reinstated for 2 months' work. Oestreich is customarily oc-
cupied with clerical work, approximately two-thirds of which con-
sists of transferring stock reports into a book and making out rework
orders for percolators.703 The work of Stehle, his assistant, similarly
consists of copying information from labels onto an order sheet.
Simonis had informed Hansen several days before he was laid off
that Oestreich and Stehle would be retained out of seniority order.
When Hansen protested, Simonis and Wentorf, the plant manager,
declared that these men were clerical workers and asserted that Han-
sen was not qualified to do their jobs.104 The latter assertion Hansen
vigorously denied.
In our opinion Hansen was entirely capable of performing the
work of Stehle and Oestreich. The latter two, the record discloses,
were chiefly engaged in copying information onto order or ledger
sheets. There is no question that Hansen, who had been a shipping
clerk for 10 years, was qualified to do work of this nature. At
the hearing, to prove Hansen's lack of qualification for the work of
Oestreich and Stehle, Simonis declared that Hansen would need 5 to
6 months to acquire the knowledge of 240 types of percolators which,
he asserted, was requisite to performance of their job. ,At the time
of Hansen's lay-off, however, neither Simonis nor Wentorf mentioned
this as a justification for retaining Oestreich and Stehle. Hence,
we conclude, it was a mere afterthought: Moreover Simonis' testi-
103 Rework consists of marking utensils with a special label or imprint pursuant to a
customer 's specifications ,
104 Hansen also protested that on a semonty basis he should be retained in preference to
Milton Tess and that , if the skill and ability provision of the Agreement were being invoked
to justify disregard of seniority , the respondent should not , as was planned , replace him
with Kenneth Nash, an employee with greater seniority while Tess spends approximately
90 per cent of his time doing trucking , which calls for no skill or training , there is uncon-
troverted evidence that he had been trained as an "understudy " for a strawboss in the
department In 1928 , because of unsatisfactory work , Nash was replaced by Hansen as
shipping clerk However , this occurred so long before the date of the lay-off here dis-
cussed that it does not, in our opinion , establish that at the latter time Nash was still
inferior in skill or ability to Hansen
ALUMINUM GOODS' MANUFACTURING COMPANY' 1057
mony concerning the assertedly requisite knowledge of percolators
is wholly lacking in persuasiveness. In the first place, Hansen must
have had some' familiarity with those utensils, for he had worked
in the shipping department for 10 or 11 years and, among other jobs,
had labeled percolators. Secondly, Hansen himself asserted that he
was capable of doing the work of Oestreich and Stehle. Finally,
although on the one hand, as we have seen, Simonis estimated that
Hansen would need 5 or 6 months to learn the work performed by
Oestreich and Stehle, on the other hand he expressed the view that
a man could be trained for Hansen's own job in a few days. Yet
the record shows that Hansen was the highest paid hourly worker "on
the floor." The above considerations fully support the Trial Exam-
iner's finding that "Simonis failed to impress with his effort to show
that the work of Oestrich (sic) and Stehle required either skill or
ability." From the foregoing we conclude that Hansen was fully
capable of performing the work of either Oestreich or Steble.
The respondent disregarded Hansen's seniority not only by retaining
Oestreich and Stehle but also by reemploying Hilary Short. Short's
job was labeling percolators, in which,.as we noted above, Hansen was
experienced. No attempt was made by the respondent to explain why
it reinstated Short in preference to Hansen.105 '
Upon the entire record we conclude that by retaining Oestreich and
Stehle and by reinstating Short the respondent discriminated against
Hansen in regard to hire and tenure of employment in order to dis-
courage membership and activity in the Union, and that it thereby
interfered with, restrained, and coerced its employees in the- exercise
of the rights guaranteed them by Section 7 of the Act.
Hansen has not been employed, except by W. P. A., since his lay-off.
3. The discharges
a. Rene Schwalbe
Rene Schwalbe, who had been employed by the respondent for 18
or 19 years and was considered a good worker, was discharged on
November 17, 1937.
On November 10, 1937, William Goethke, a die-setter in the buffing
department where Schwalbe worked, had come to the plant before
the regular starting time to supervise two men who had been instructed
to do some work prior to shift time. On this occasion, Goethke heard
Schwalbe say to Felber, another employee, that the two men then at
work did' not require Goethke's supervision and that, whereas the
latter was being paid "for doing' nothing," any request "we" might
115 While Short had once belonged to the Union, he withdrew from that organization about
January 11 , 1938, having joined the Association a few days earlier.
1058 DECISIONS OF NATIONAL LABOR„ RELATIONS BOARD
make "for more money" would be rejected. In the course of his state-
ment Schwalbe used the vilest of terms in apparent reference to those
who were responsible for Goethke's presence and who would be ad-
dressed in connection with any demand for a wage increase. Goethke
reported this conversation to Foreman,Hempel, and Schwalbe and
Felber were called to the plant office for a conference with Earl 0. and
A. L. Vits. At this meeting, after at first denying that he had done
so, Schwalbe admitted that he had used the offensive phrase attributed
to him by Goethke. At the conclusion of the interview Schwalbe was
instructed to, return to work, but a short while later A. L. Vits re-
called him for further questioning concerning the remark he was said
to have made. After a brief interview, Vits told Schwalbe that the
management would require, some time to determine what action it
would take. Several days later A. L. Vits again questioned Felber
about the incident. Thereafter, on November 17, Schwalbe was
discharged.
, The respondent contends that Schwalbe was discharged for using
abusive language. Although profanity. was commonly used in the
shop, the epithet used by Schwalbe was a particularly vile one and
the Vitses from the very first appear to have, felt that in his use of
it Schwalbe had referred to them personally. Moreover, in the inter-
views by the Vitses, Schwalbe did not conduct himself in such a
manner as to persuade them that he had not intended the inference
to be a personal one or that he was desirous of apologizing for the
affront which they obviously felt. Under these circumstances, and
in view of the manifest hesitancy of the respondent to discharge him,
we conclude, as did the Trial Examiner, that Schwalbe was not dis-
missed because of his membership in the Union, but rather for using
offensive language. Accordingly, we shall dismiss the allegations of
the complaint pertaining to him.
b. The Perontos'
According to the complaint, Josephine and Ruth Peronto were
discriminatorily transferred from, department to department and
were thereafter discriminatorily discharged. With respect to the
former allegation the record show's that in'June 1937 the two Peron-
tos were transferred from Foreman Jance's' press-riveting department
to the toy-set division of the shipping department and that in Sep-
tember 1937 they were thence transferred to the foot-press depart-
ment. While Josephine had joined the Union before the `earlier
transfer occurred, the record does not disclose whether Ruth had also
become a member prior'to'that time. In any event, however, there
is no evidence that employees other than union members were not
similarly transferred from Jance's department in June.- Moreover,
.ALUMINUM GOODS MANUFACTURING COMPANY 1059
the record affirmatively shows that the September transfer was both
advantageous and satisfactory to the Perontos.
During several weeks between September 1937, when they were
first assigned to the foot-press department, and January 11, 1938,
the date of their discharge, the Perontos earned considerably less
than other employees doing similar work. Furthermore, Rysticken,
foreman of that department, asserted, and we find, that the Perontos
were less "handy" and that they produced more scrap than other
girls under his supervision. On the day before their discharge, while
they were working for the first time on a tea-kettle job, the Perontos'
hourly earnings averaged less than half their "day" rate.-- At the
close of the day Rysticken, having warned the Perontos that he would
have to lay them off unless their earnings improved, made a report
to that effect to A. L. Vits, the plant manager. After receiving
Rysticken's report, Vits consulted Jance and Holly, in whose depart-
ments the Perontos had previously worked. According to Vits,
Jance said that the Perontos were inclined to be stubborn and Holly
said that they "did not come up to the standard that he felt that
they should." The latter statement is confirmed by the Perontos'
own testimony that when they were working in Holly's department
he criticized them for not having a higher rate of production. Act-
ing on the basis of Rysticken's report and his conversations with the
other two foremen, Vits ordered the Perontos to be dismissed.
The Perontos were members of the Union, but neither was promi-
nent in the organization . Ruth "very seldom" attended union meet-
ings and although Josephine was a shop steward, she, had, never
presented any grievances to Rysticken and he was unaware of her
stewardship.. So far as the record discloses they were not trans-
ferred or discharged because of their membership or activity in the
Union. Accordingly, we shall dismiss the complaint in so far as it
alleges that the respondent unlawfully discriminated against them.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UNPON COMMERCE
The activities of the respondent set forth in Section III C, D, and
E above, occurring in connection with its operations described in Sec-
tion 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.
100 Each employee has a guaranteed hourly or "day" -rate of pay, the amount of which
depends on his qualifications and experience ., Most workers , however, are paid on a piece-
work basis . If an employee 's piece-work earnings equal or exceed his hourly rate, he is
said to have "made out." The tea-kettle job, as assigned to the Perontos, included a step
not previously comprised in it. Rysticken, asserted ,, without contradiction , that after the
Perontos were discharged - other persons without any prior experience "made out" on the
job even though it included the new step.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It is essential, in order to effectuate the purposes of the Act, that
the respondent be ordered to cease and desist from certain activities
and practices in which we have found it to have engaged and, in aid
of such order and as a means for removing and avoiding the conse-
quences of such activities and practices, that it be directed to take
certain affirmative action, more particularly described below.
Since we have found that the respondent unlawfully discriminated
against the persons named in Appendix A by failing to employ them
for Christmas clean-up work in 1937, we shall require the respondent
to, make each of them whole for any loss of pay he may have suffered
therefrom by payment to him of a sum of money equal to the amount
which he normally would have earned as wages on such clean-up work,
le's's his net earnings107 on the dates when it was performed 10`
We have found that the respondent has discriminatorily laid off
and/or refused to reinstate the persons named in Appendix B. We
shall, therefore, order the respondent to offer to all these employees, if
it has not already done so, immediate and full reinstatement to their
former positions,109 or, if these are not available, to substantially
equivalent positions, and to restore to them the seniority rights which
they would have but for the respondent's unlawful discrimination
against themll' Where necessary, We shall require the respondent to
displace employees who have succeeded to the former position of any
of these employees or who have succeeded to positions which either
because of seniority or the practice of the 'respondent should have
been offered to any of them. We shall also, order the respondent to
107 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 elsewhere
than for the respondent, which would not have been incuued but for the respondent ' s unlawful
discrimination and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2390 , 8 N L R B 440 Monies received
for work performed upon Federal , State , county , municipal , or other work-relief projects
are not considered as earnings , but as provided below in the Order , shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or govern-
ments which supplied the funds for said work -relief projects
108 Appendix A does not include the names of Martin Bross and Herbert I4eili who are
among the emplo3ees against whom the respondent also discriminated in regard to Christ-
mas work Their names were added to the complaint , however , upon motion of the Board's
attorney with the understanding that the complaint should be so construed as to allege,
with respect to them , unfair labor practices only within the meaning of Section 8 (1) of the
Act See footnote 2, supra We are of the opinion that , in entering into this understanding,
the Board 's attorney in substance agreed that no affirmative relief would be sought for
these men , and accordingly we shall provide none
11p By former positions we refer to the positions held by these employees at or most recently
before the time when the discrimination occurred
110 At the heal mg the respondent's attoi ney offered to prove that during the hearing
Frank P . Brull and Joseph Wilson , two of the persons named in Appendix B, were reem-
ployed It does not appear whether such reemployment was to their former positions and,
in any event , it obviously was not reinstatement with seniority rights unaffected by the
period during which the respondent unlawfully discriminated against them.
ALUMINUM GOODS MANUFACTURING COMPANY 1061
make-whole each of the employees named in Appendix B for any loss
of pay he may have suffered by reason of the respondent's unlawful
discrimination against him by payment to him of'a sum of money
equal to the amount which he normally would have earned as wages
from the date of the discrimination to the date of the offer of rein-
statement, less his net earnings ill during said period.
We have found that the respondent dominated and interfered with
the formation and administration of the Association and contributed
support Wit. The effects and consequences of the respondent's domi-
nation, interference with, and support of the Association constitute a
continuing obstacle to the free exercise by its employees of their rights
to self-organization and to bargain collectively through representa-
tives of their own choosing. The Association has been utilized by
the respondent as an instrumentality to, defeat the rights of its em-
ployees under the Act. Because of the respondent's illegal conduct
with relation to the Association, that organization is incapable of
serving the respondent's employees as a genuine collective bargaining
agency. Accordingly, we will order the respondent not to recognize
the Association as collective bargaining representative of its
employees.
By engaging in unfair labor practices the respondent has made
serious incursions upon the rights guaranteed to its employees by the
Act. In order to insure the full freedom of the respondent's employees
to exercise those rights, they should be informed that the respondent
will no longer engage in unfair labor practices and that it will act in
conformity with the provisions of our Order. We shall, therefore,
direct the respondent to post notices in conspicuous places throughout
its plants stating that it will not engage in the unfair labor practices
from which it is ordered to cease and desist and that it will take the
affirmative action required by our Order; and to notify the Regional
Director within ten (10) days of the steps which it must take to comply
with our Order.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case; the Board makes the following :
CONCLUSIONS OF LAW
1. Aluminum Workers Union, Locals 19489 and 19649, and Inter-
national Association of Machinists, Locals 516 and 1181, all affiliated
with the American Federation of Labor, and A. G. M. Workers'
Association are labor organizations within the meaning of -Section
2 (5) of the Act. -
2. The respondent, by discriminating in regard to the hire and
tenure of employment of the persons named in Appendices A and B
See footnote 107, supra
283036-42-yo] 25-68
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discourage membership in the Union and/or'to encourage mem-
bership in the Association, has engaged in and is engaging in unfair
labor practices within the. meaning of Section 8 (3) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of A. G. M. Workers' Association and by
contributing support to it, has engaged iii-and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed them by Section
7 of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act. '
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not engaged in any unfair labor practices,
within the meaning of Section 8 (1) and -(3) of the Act, by laying
off and failing to reinstate` Blanche Forst, by failing to employ
Roland Brunner, by discharging Rene Schwalbe, or by transferring
and discharging Josephine and Ruth Peronto.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10, (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Aluminum Goods Manufacturing Company, Manitowoc
and Two Rivers, Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Aluminum Workers Union,
Locals 19489 and 19649, or International Association of Machinists,
Locals 516 and 1181, all affiliated with the American Federation.of
Labor, or any other labor organization, by refusing to employ for
holiday clean-up work, laying off, or failing, or refusing to reinstate
any of its employees, or by otherwise discriminating in regard to
hire and tenure of employment or any term or condition of em-
ployment;
(b) Dominating or interfering with the formation and adminis-
tration of A. G. M. Workers' Association or any other labor organi-
zation of its employees, or from contributing support to said
Association or any other labor organization.of its employees;
,(c) In any, other manner interfering with, restraining,'or coercing
its employees in the exercise of their, rights 'to self-organization, to
form, join, or assist labor organizations, 'to bargain collectively
ALUMINUM GOODS MANUFACTURING COMPANY 1063
through representatives of their own choosing, and to engage, in
concerted activities for the purposes of collective bargaining or other
mutual aid and 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) Offer to the employees named in Appendix B, if it has not
already done so, immediate and full reinstatement to their former
positions in accordance with Section V of the above findings, or,
if such positions are not available, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and, where necessary, displace any employee who may have
succeeded to the former position of said employees or to any other
position which, because of seniority or the practice of the plant,
should have been offered to any of said employees, and restore to
said employees the seniority rights which they would have but for
the respondent's unlawful discrimination against them;
(b) Make whole each of the employees named in Appendix A for
any loss of pay he may have suffered by reason of the respondent's
failure to employ him for clean-up work during the Christmas holi-
days of 1937 by payment to him of a'sum of money equal to the
amount which he normally would have earned as wages on the clean-up
work less his net earnings on the days when such clean-up work was
performed; and make whole each of the employees named in Ap-
pendix B for any loss of pay he may. have suffered as the result of
the respondent's unlawful discrimination by payment to him of a
sum of money equal to that which but for such discrimination he
would normally have earned as wages during the period between the
date of the respondent's unlawful discrimination against him and
the date of the offer of reinstatement herein required, less his net
earnings during such period; deducting, however, from the amount
otherwise due to each of these persons, monies earned by him during'
the designated period for'work performed on Federal, State, county,
municipal, or other work-relief projects, and pay over the amount so
deducted to the appropriate fiscal agency of the Federal, State; county,
municipal, or other government or ,governments which supplied the
funds for those work-relief projects ;
(c) Refuse to recognize A. G. M. Workers' Association 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 work;
(d) Post immediately in conspicuous places throughout its plants
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
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of
this Order; (2) that the respondent will take the affirmative , action
set -forth in paragraphs - 2 (a), (b), and ( c) of this Order; and (3)
that the respondent 's employees are free to become or remain mem-
bers of Aluminum Workers Union, Locals 19489 and 19649, and of
International Association of Machinists , Locals 576 and 1181, all
affiliated with the American Federation of Labor, and that the re-
spondent will not discriminate against any employees because of
membership or activity in those organizations;
(e) Notify the Regional Director in writing within ten (10) days
from the date of this Order what steps the respondent has taken to
comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent unlawfully dis-
criminated against Roland Brunner, Rene Schwalbe , Josephine
Peronto, Ruth Peronto, and Blanche Forst.
APPENDIX A
Albert Birr
Sylvester Copiskey
Edward Domnitz
Edmund Hetue
Thomas Hetue
Arthur Hindt
Frank P. Brull
Ralph Gustafson
Lloyd George Hansen
George Harrop
Clarence G . Krueger
Frank Hoida
George Karl
Peter Landusky
George Laque
Henry Stelzer
Earl Strean
APPENDIX B
Adolph J. Marquardt
Ambrose Martell
Felix J. Tadych
John P. Vnuk
Joseph Wilson
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.