Bersted Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 22, 1940

27 N.L.R.B. 1040 (N.L.R.B. 1940)

In the Matter of BERSTED MANUFACTURING COMPANY and INTER-
NATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERIOA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-1651.Decided October 000, 1940
Jurisdiction : electrical appliance manufacturing industry.
Unfair Labor Practices
-Discrimination : discharge for union membership and activities.
Remedial Orders : reinstatement and back pay. '
Mr. Max W. Johnstone, for the Board.
Witherspoon, Stewart & Harry, by Mr. Walter M. Witherspoon,
.of Fostoria, Ohio; Welles, Kelsey, Cobourn c Harrington, by Mr.
Earl F. Boxell, of Toledo, Ohio ; and Fyffe & Clarke, by Mr. Albert
Smith, of Chicago, Ill., for the respondent.
Mr. Edward Lamb, by Mr. Lowell Goerlich, of Toledo, Ohio, and
Mr. Charles Rigby, for the Union.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed on January 19, 1940, by International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial Organizations, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint, dated June 4, 1940, against Bersted Manufacturing
Company, Fostoria, Ohio, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing were duly served on the respondent
and the Union.
27 N. L. R. B , No. 170.
1040
BERSTED MANUFACTURING COMPANY 1041
The complaint alleged, in substance. that on or about November
21, 1939, the respondent discharged Wilfred Frisch because he had
joined or assisted the Union or had engaged in concerted activities
with other employees of the respondent, and that by reason of the
discharge of Frisch the respondent has discouraged membership in
the Union and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in the Act.
By its answer, verified June 13, 1940, the respondent denied that
it had engaged in the alleged unfair labor practices, and averred that
it discharged Frisch on November 22, 1939, because he refused to do
his work and went about the plant distributing union literature,
soliciting union membership, engaging in arguments, and interfering
with other employees after he had been warned repeatedly to attend
to his work.
Pursuant to notice, a hearing was held on July 1, 2, and 3, 1940,
at Fostoria, Ohio, before James C. Paradise, 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 bearing on the issues was afforded all_"parties.
At the close of the hearing the Trial Examiner granted a motion
by counsel for the Board to amend the complaint to conform to "the
proof adduced at the hearing. Counsel for the respondent moved
that the complaint be dismissed for failure of proof. Ruling on this
motion was reserved, and was later denied by the Trial Examiner in
his Intermediate Report. During the course of the hearing the Trial
Examiner made several rulings on other motions and on objections
to the admission 'of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed.- The rulings are hereby affirmed.
In his Intermediate Report, dated July 31, 1940, copies of which
were duly served upon the parties, the Trial Examiner found that
the respondent had engaged in and was engaging in, unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from engaging in such unfair
labor practices, and, by way of affirmative action, reinstate, with back
pay, Wilfred Frisch.
Thereafter the respondent filed a brief and exceptions to the Inter-
mediate Report. Following due notice to all parties, counsel for
the respondent -and -for the Union presented oral argument before
the Board -in Washington, D. C., on September 17, 1940. The Board
has considered the respondent's brief and exceptions to the Inter-
mediate Report and, in so far as the exceptions are inconsistent with
323428-42-vol. 27-67
1042 DECISIONS OF NAT1014AL LABOR RELATIONS BOARD
the findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation. It maintains a plant in
Fostoria, Ohio, where it manufactures household electrical appliances
suchras electric fans, electric irons, waffle irons, and similar products.
The total value of the products manufactured at said plant exceeds
$150,030 per year, of which more than 50 per cent are shipped by
the respondent to points outside the State of Ohio. The materials
- used by the respondent in-its manufacturing operations include steel,
wire, brass, and insulating materials. ' The value of such materials
purchased annually by the respondent exceeds $100,000, of -which
over 50 per cent are shipped to the respondent from points outside
the State of Ohio. The respondent stipulated for the purpose of
this proceeding that it is engaged in interstate commerce within
the meaning of the Act.
Al Bersted is president of the respondent, and Arthur E. Kaubisch
is its secretary-treasurer.
IL THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization which admits to its, membership employees of the re-
spondent and of other manufacturing establishments in or about the
city of Fostoria, Ohio. Employees in said plants are organized under
Local 446.
III. THE UNFAIR LABOR PRACTICES
The discharge of Wilfred Frisch
Wilfred Frisch was employed by the respondent as a maintenance
man from November 1936 until November 22, 1939, when he was dis-
charged. His principal duties were the repair and maintenance of
machinery and electrical wiring. '
As has been noted above, the respondent contends that Frisch was
discharged for carrying on union activities during working hours
and interfering with the work of other employees, after he had been
warned repeatedly to desist from such conduct. The discharge slip
which Frisch received on November 22 stated that the reason for his
discharge was solicitation of union members in the plant.
BERSTED MANUFACTURING COMPANY 1043
The Union commenced its organizational activities among the em-
ployees of the respondent in October 1939, and Frisch became a member
on about November 3. He became vice president of the Bersted Manu-
facturing Company unit of Local 446 of the Union about 2 weeks before
he was discharged. He and Dolan Dull, who was president of the unit,
were the two most active union members among the respondent's em-
ployees.1 Frisch and Dull testified that it was generally known that
they were officers of the Union and, as is shown by the findings below,
the respondent was fully aware of their union membership and activi-
ties. Shortly after the Union started to organize the respondent's
employees, an inside union or employee representation plan was
formed, for the purpose of forestalling the Union's organizational
efforts. Whether this resulted from the initiative of the respondent
or from that of its employees is not shown by the record, but there
is no doubt that the respondent permitted the inside union sympa-
thizers-to carry on their activities during working hours in the plant
with the knowledge, consent, and assistance of supervisory employees.
The'scheme of the inside union was for each department in the plant
to elect representatives to meet with the- management concerning
grievances, wages, hours, and working.conditions.2
Mike Aman, a witness for the Board, testified that in or about "the
first week in November 1939, during working hours, he was told by a
fellow employee to vote for a representative to handle grievances in
his department by marking a ballot and depositing it in a box which
had been placed on a platform in front of one of the nickel tanks. He
also testified that the balloting was carried on while Harold Peterson,
the foreman, was present in the department .3 The same witness also
stated that at about the same time he was approached by Peterson,
who asked Aman whether he had been solicited to join the Union and
advised him not to join. Aman's testimony was undenied. Frisch
also testified that on the day following a meeting of the Union around
the-middle of November, Peterson questioned him about his attendance.
Homer McC'arley was employed in the buffing and polishing room
under Foreman Porter DeLine. He testified that he attended a meet-
ing in the locker room in the plant during the first or second week in
November 1939, at which meeting representatives were elected to take
1 Dull quit the respondent's employ on January 24, 1940.
2 The record shows that, the departmental representatives did, in fact , meet with the
management on several occasions commencing in November 1939 up to February 1940, for
the purpose of discussing grievances , wages, hours , and working conditions
3 A similar ballot box was placed in the assembly department in front of Foreman
Faber's desk Faber testified that lie ordered two employees in the department to remove
the box as soon as he saw it Though he knew the presence of the box was "illegal," and
though lie assumed that the two employees who were ordered to remove it had placed it'
there, Faber did not question them about it or reprimand them for their action.
l
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances to the management.4 He also testified that he attended a'
meeting of about 36, employees in the buffing room during working
hours on about November 15, 1939; that the machinery was shut down
during the meeting; that the meeting was addressed by DeLine, who
stated that he did not think that the employees needed an outside
union and that the plant would be closed down if the Union succeeded
in organizing -the employees. While DeLine was present Clarence
Morrison, one of the polishers, spoke in the same vein, and added that
some of the employees who had bought homes would lose them. Mc-
Carley also testified that DeLine spoke to him during working hours
on about November 1, 1939, saying that he hoped McCarley would not
permit himself to be "talked into" joining the Union, that if the Union
``came in" he would quit, and concluded his remarks by saying that
he would not tell McCarley to join or not to join the Union. -McCarley's
testimony was undenied.
Oscar Harris testified that Peterson asked him early in November
1939, during working hours, whether he was "fooling around" with
the C. I. 0., and advised him not to do so, calling his attention-to the
then current strike at the Chrysler Corporation plant in Toledo; that
on another occasion,' on about November 15, 1939, during working
hours, Peterson asked him if he wanted to be a departmental repre-
sentative for the purpose of discussing grievances with the
management. His testimony was uncontradicted.
Dolan Dull testified that on November 3, 1939, Jordon, foreman of
the maintenance department and Dull's immediate superior, questioned
him about the Union, told him he had better think it over before he
joined, and cautioned him that if he did become a member he would
probably be unable to get another job in town, and that he would
more than likely lose the home he was buying. Jordon's version of
this conversation was that he knew Dull was dissatisfied-at the time
and was interested in joining a labor organization, that Jordon was
trying to give Dull what he thought was the "benefit" of his experience,
and that he told Dull, "Well, you want to make sure you know what
you are doing."
Robert Tarris; a witness called by the respondent, testified that the
C. I. O. was a "continuous issue" with Peterson from the time of the
first rumors of union organization until Frisch was discharged; that
Peterson stated that if the C. I. O. succeeded in organizing the em-
ployees he would quit his job; that on or about November 6 Peterson
stated to him while he was at work that "if the boys who had joined
the C. I. O. dropped out, nothing would be held against them, but if
4 Although this meeting was not held during working hours, it was held on the respond-
ent's prqperty It is„therefore, material to the issues, since one of the acts of solicitation,
which was the basis for the discharge of Frisch, is said to have occurred in the plant during
the noon hour.
BERSTED MANUFACTURING COMPANY 1045
they did not, it would be held against them." Tarris also testified that
at about this time Peterson proposed that the employees in each de-
partment vote for representatives to meet with the management and
discuss departmental problems, and asked Tarris if he would drop
out of the C. I. 0. if such a system were inaugurated. Tarris was
chosen as a representative from his department at an election held in
the Department during working hours, the ballot box being placed
near the nickel tank. Peterson was fully aware that the election was
being held, and in fact told the employees, "You fellows are supposed
to hold an election for representatives. You know what it is' for."
The foregoing testimony of Tarris is uncontradicted. He also testified
that at a meeting with Kaubisch on about November 1, 1939, Kaubisch
stated that the respondent "does not want the C. I. 0. in the plant,"
that the Christmas bonus of the employees would be doubled that year
if there was no labor trouble, and that he reserved the right to run
the plant or shut it down., Kaubisch denied that he ever discussed the
C. I.0., or stated that he reserved the right to close the plant, or offered
a double bonus 5 to the employees. The Trial Examiner, having seen
and heard the witnesses, credited the `testimony of Tarris, who, as
noted above, was, like Kaubisch, a witness called by the respondent.
We find-that Kaubisch made the statements attributed to him by Tarris
substantially as recited above. V
It is also established by uncontradicted testimony that during the
second or third week in November 1939, a meeting was held during
working hours in the pressroom. Frisch-was instructed to attend by
5 According to the uncontradicted testimony of Frisch, Kinshaw, a timekeeper in the
plant , who the respondent asserts has no authority to speak for the management , advised
Frisch about the middle, of November that he would get'his Christmas bonus and would
not be discharged if he withdrew charges which had been filed against the respondent, and
warned him that if he failed to do so the respondent would file a countersuit requiring
the payment of costs. It is not clear whether this statement of Kinshaw referred to
charges of unfair labor practices filed with the Board on November 15, 1939 , part of which
were subsequently withdrawn and the remainder settled ( see infra, footnote 12), or
whether , instead, the statement referred to a suit under the wage and Hour Act instituted
in the Federal District Court on November 18, 1939, by Frisch and several other employees
of the respondent
Although there is no direct evidence of a connection between the statements of Kaubisch
and Kinshaw with respect to the Christmas bonus, it is a striking coincidence that both
men should have made similar statements to different employees at approximately the
same period of time It is unreasonable to believe that it would have occurred to an em-
ployee such its Kmshaw to have brought up the matter of a bonus which involved a
decision as to policy and intention on the part of management , unless he was aware that
the matter had previously been raised by someone in a position of superior authority.
Aside from the question of the respondent 's responsibility for the declaration of Kinshaw,
the very fact that he had so expressed himself with respect to the Christmas bonus mili-
tates against the denial of Kaubisch that lie had ever made such a statement . Nor are we
impressed by the respondent's aiguinent in its brief that it would be strange for Kaubisch,
as but one executive officer of the respondent, to have offered a double bonus ; or that,
smce a bonus depended upon profits , it could not have been known at the time whether
any bonus would be given The authority of Kaubisch to have made such an offer, or his
lack of information which might have prevented the offer from being fulfilled , neither
proves nor disproves the fact that the statement was actually made.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
his foreman, Rudolph Jordon. About 25 pressroom employees were
-present, together with Jordon, DeLine, and Frank Kreske, the latter
a foreman in the pressroom. At this -meeting one of the employees
spoke in opposition to the Union and in favor of the inside union.
On November 13,, 1939, a committee representing the Union, includ-
ing Frisch, the other members of the union shop committee, and the
officers of the Union, conferred with Kaubisch. There is considerable
conflict in the testimony concerning what occurred at this conference.
Thus, witnesses Dull, Frisch, and Aman testified that the two matters
discussed at the conference were the Union's requests for, collective bar-
gaining and for the use of the bulletin board. On the other hand,
Charles Clemons, vice president of Local 446, testified that in addition
to these matters the Union also asked Kaubisch to see that activities
on behalf of the inside union were discontinued; and Charles Rigby,
international representative of the'Union, stated that a fourth request
was made by Kaubisch, namely, that he stop the intimidation which
was being practiced by the foremen. Kaubisch testified that collective
bargaining was discussed, and also that the Union's complaint that
foremen were intimidating the employees, and that the Union requested
that the respondent post a notice to prevent further intimidation ; that
in response to a question by Kaubisch, one of the union committeemen
stated that nobody had intimidated him, while Dull replied in vague
and general terms, and others simply mentioned the name of Peterson
as one who had intimidated employees. Kaubisch further testified that
the Union did not request the use of the bulletin board, but did ask
that a notice be posted with respect to intimidation, and that he refused
to post such a notice because he was not aware of any intimidation.
He denied that the Union had complained about the promotion of an
inside union by the foremen. A leaflet distributed to the employees
by the Union a few days later stated that the union representatives
had, called upon Kaubisch to stop the inside union which was being
promoted by the foremen and also the intimidation of union men-by
foremen. Kaubisch was characterized by the Trial Examiner as an
unimpressive witness. The disparity between his testimony and that
of the respondent's, witness Tarris has been noted above. In addition,
Kaubisch was most unconvincing in his testimony concerning the cir-
cumstances under which he allegedly advised his foremen in October
1939 that they should not participate in • union activities. Like the
Trial Examiner, we credit the testimony of the Board's witnesses as to
what took place at the conference of November 13, 1939, and find that
the Union then requested the use of the bulletin board, complained
about anti-union activities of the foremen and their promotion of the
inside union. It appears that Kaubisch made no attempt to investigate
the truth of the complaints made to him by the Union and did nothing
BERSTED MANUFACTURING COMPANY- 1047
to counteract the continuing conduct of the foremen along the lines
complained of by the Union.
Each department in the respondent's plant has a bulletin board.
The assembly room is apparently the largest department. In this room
are located the two time clocks, and, adjacent to them, the main bulletin
board for the posting of company notices. The bulletin board in the
pressroom is located above the desk of Foreman Kreske. Dolan Dull
and his wife both,testified that for a period of about a week prior to
November 13 the bulletin board in the assembly room bore a notice
announcing a "new vote" to be taken on the following Monday for the
election of representatives. Dull also testified that a day or two before
November 13 he saw two articles posted on the bulletin board in the
pressroom. One, was a tally sheet showing the result of a' vote for
representatives in that department; the other was a newspaper edi-
torial decrying a strike called by the Union in the plant of the Chrysler
Corporation. Dull and Rigby declared that the latter had informed
Kaubisch of the presence of the election notice on the assembly room
bulletin board at the meeting on November 13, and that Kaubisch
said he knew nothing about it. Kaubisch in effect denied this. On
the morning of November 14 Dull removed the election notice, the tally
sheet, and the editorial from the two bulletin boards. Jordon was
informed that Dull had taken a card from the bulletin board in the
assembly room, and on the following day ordered Dull to return it.
Dull denied that he had it. During the interim he had given the
notices to Rigby. Kaubisch and other witnesses testified that they had
not seen any of the notices. The evidence indicates, however, that their
view of the bulletin board in the assembly room may have been ob-
structed by merchandise piled in front of it. It is not surprising that
the employees who appeared as witnesses testified that they had not
seen the notices on the bulletin board in the pressroom, since none of
them was a pressroom employee and normally there would be no reason
for them to be in that department. Though the duties of Frisch and
DeVore would take them into any department in the plant, it does not
appear that they were in the pressroom at any time during this period.
Both stated they had not seen the notices, but Frisch testified that he
had been told by Dull that they were posted..
We find, as did the Trial Examiner, that the election notice was
posted on the bulletin board in the assembly room, - and remained
there about a week, as testified by Dull. Although the evidence
clearly establishes the fact that the election notice, was posted, we do
not.feel that it is sufficiently clear to place responsibility for the
posting upon the respondent.
The tally sheet and the editorial which appeared on the bulletin
board in the pressroom fall in a different category, however.. As noted
I
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously, the bulletii'i board in that department is located 'above the
desk of Foreman Kreske. Kreske was not' called' as a witness by the
respondent. It is obvious that these notices could not have remained
in his department without his knowledge and consent. As a repre-
sentative of management, his tacit'acquiescence in the use of the re-
spondent's property for such' a purpose is attributable to the
respondent.
Kaubisch testified that in the latter part of October 1939 he in-
structed the foremen for the first time that they were not to partici-
pate in any union activities. He stated that these instructions were
entirely unrelated to any union - activities then current, among the
respondent's employees., If that were true, it would mean that the
coincidence between these instructions and the announcement of the
Union's, organizational drive was merely fortuitous, a theory which
is most improbable. It is, however, significant that, Kaubisch's in-
structions were ignored by the foremen who, as above found, openly
promoted the organization of an inside union and interfered with and
coerced the employees in their efforts to organize the Union.
Kaubisch made no effort to curb these activities even after they had
been complained of by the Union. Since Kaubisch admitted that his
work required that he keep in close contact with production activities
throughout the plant and that he visited every department in the
plant several times each day, it is doubtful that he could have been
ignorant of the activities that were being carried on in the plant one
behalf of the inside union.
Consideration of the foregoing facts is essential to a proper ap-
praisal of the circumstances surrounding the discharge of Frisch for
soliciting union members during working hours. In view of the facts
above set forth, showing activities by supervisory employees and
others during working hours on behalf of an inside union, and meet-
ings held during working hours to promote the inside union, with the
consent and assistance of foremen, it is doubtful that the discharge of
a union man for soliciting members during working hours could be
justified in any but the most extreme case, if at all. By comparison
with the activities of those seeking to promote the inside union, the
conduct for which Frisch was discharged appears mild, indeed.
Jordon, who was Frisch's foreman, testified that in November 1939,
with the first rumors of union activity, Kaubisch told him that the
employees were not to be permitted to solicit union members in the
plant. This was prior to the organization of the inside union and
was the only statement ever made to Jordon by Kaubisch on that sub-
ject. Kaubisch testified that he spoke to his foremen shortly before
November 14 and instructed them to caution employees who solicited
during working hours, and, if the warnings were ignored,'to dismiss
BERSTED MANUFACTURING COMPANY 1049
them. Another foreman, Vincent W. Faber, testified that he received
instructions substantially to this effect at various times, starting in
October 1939, as "talk would go around about a union" or "some talk
about a committee," and also that Kaubisch had so instructed him on
November 14, 1939, in a conversation outside the plant between him
and Kaubisch. Six of the seven employees who testified, including
Robert Tarris, who was called as a witness by the respondent, stated
that they were first warned against soliciting union members in the
plant only after Frisch had been discharged, or that they were never
warned at all. ' The remaining employee who testified stated that he
'had once been warned not to engage in solicitation by Foreman Peter-
son at a time prior to the discharge of Frisch ; and on a later occa-
sion, the time of which he was not certain, he had overheard Foreman
DeLine similarly warn an unnamed employee. Frisch himself testi-
fied, as appears below, that the only time he was cautioned against
such activities was on the day he was discharged.
There was no formal rule regarding solicitation of union members
or discussion of union matters in the plant which had' ever been
called to the attention of the employees generally, either by written
notice or oral announcement: We find that whatever rule may have
existed concerning the carrying on of union activities during' working
hours had been stated to the foremen at about the time when the
organizational drive of the Union commenced. As has been found
above, the rule, to the extent that it existed at all, was wholly disre-
garded by, the' respondent in so far as the inside union was con-
cerned. We conclude, therefore, that the alleged rule was not a bona
fide requirement of the respondent, but, on the contrary, was only a
pretext which the respondent adopted in an attempt to conceal its
true motives for,Frisch's discharge.6
Jordon testified that about a week before November 22, 1939, he
saw Frisch and Harold DeVore, it member of the union shop com-
mittee, in conversation with two unidentified employees whose ma-
chine they were repairing and that he then warned Frisch for the
first time that solicitation of union members was forbidden. Jordon
admitted that he did not know what Frisch and DeVore were talking
about on this occasion and there is no evidence.whatever that union
membership or activity was the subject of their conversation or that
their conversation interfered with the work that any of the employees
was doing.' Jordon testified that later the same day he saw Frisch
and it number of buffing-room employees "congregated around there",
6 Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L.
R B 292, 301, enf'd as nod , Botany Worsted Mills v. National Labor Relations Board,
106F (2d) 263 (C C A 3)
Jordon admitted that there was no rule forbidding Frisch to talk to other employees
as he went about his work in various parts of the plant.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking.' Again Jordon admitted that he did not, know what' they
were talking about, nor does it appear that Frisch had started the
discussion . - Nevertheless, he reprimanded Frisch, who denied that he
had been soliciting union members. Jordon testified that as "a pretty
good friend" he reminded Frisch several times during the week
preceding his discharge to "cut it out."'
On the afternoon of November 22, 1939, Jordon saw Frisch talking
to Aman, and again, although he did not know what the conversation
was about, told Frisch that he had received sufficient warnings and
that he was "getting tired of it." According to Jordon, Aman was
working at the time and Jordon admitted that he did not know whether
Frisch or Aman had started the -conversation. On the same afternoon
Carl Beidelscheis came to Frisch-to'have his buffing holder repaired,
and while the work was being done Frisch and DeVore asked Biedel-
scheis to join the Union. Jordon did not observe this incident. He
testified that Clarence Morrison, the employee who had,spoken against
the Union at the meeting in the buffing room on November 15, reported
to him that Frisch was annoying Beidelscheis. There was no inter-
ruption of work during the conversation. , Jordon could not name
any employees whose work had been interfered with by Frisch. This
is important, since Jordon stated that the alleged rule against union
solicitation during working hours, was directed mainly against dis-
cussions which kept employees from performing their work.
Frisch testified that the only warning he had ever received against
solicitation of union members occurred on the morning of his discharge
when Jordon observed him speaking to another employee. - Accord-
ing to Frisch, he told Jordon at the time that he had not been engaged
in solicitation. Frisch further testified.that about a week prior to this
incident Jordon told him that "the C. 1. 0. was out" and that "I should
not stick my neck out." '
At about 4 o'clock on the afternoon of November 22 Jordon was
called to the office by Al Bersted, who was in charge of the plant in
the absence of Kaubisch. When Jordon entered the office there were
present six employees, including R. F. Kirian, Herman Huss, Earl
Gruss, Clarence Morrison, and Beidelscheis. Jordon testified- that
these persons complained to Bersted that while working they had been
annoyed by Frisch. Thereupon Bersted caused to be prepared in his
office typewritten statements , one of which, reading as follows, was
signed by Huss and.Gruss:
On Wednesday, November 22,1939, at noon on company property;
Wilfred Frisch solicited the memberships of the following signers.
and one reading as follows , by Beidelscheis :
BERSTED MANUFACTURING COMPANY 1051
At 2: 30 P. M. on November 22, 1939, Wilfred Frisch and Harold
DeVore, on company time and company property, solicited my
membership in a Union.
This statement was witnessed by Morrison. A third statement
signed by Kirian also appears in the record alleging that Frisch
solicited him to join the Union on company time and property on
November 16, 1939. However Jordon testified that he had no recol-
lection of having seen Kirian's statement on November 22. After
having first testified to the contrary, Jordon stated that Kirian had
previously complained to him about Frisch's alleged- solicitation. In
none of these statements is it said that Frisch interfered with the work
of any employees or that he neglected his own work.
It is significant that the respondent offered no explanation for the
simultaneous appearance of the six employees in Bersted 's office.
Neither Bersted nor any of the employees in question was called as a
witness by the respondent . Jordon testified that he, did not know who
had sent them to the office and volunteered the belief that'they had
come of their own accord . In addition to reporting that Frisch had
annoyed Beidelscheis , Morrison , according to the testimony of Jordon,
had previously complained of solicitation by Frisch. It'was not ex-
plained- why Morrison did not sign a statement of his own instead of
merely witnessing the complaint of Beidelscheis , nor why he was there
at all under those circumstances . Nor does a reason appear for the
presence at that time of Kirian , whose statement complained of solici-
tation which had occurred a week before. Further, it was not shown
why the complaints were limited to Frisch, with the exception of the
statement of Beidelscheis , which also named DeVore, when the re-
spondent had knowledge of the fact that DeVore, and perhaps other
employees , had engaged in solicitation ; nor was any reason offered to
explain why dismissal , the severest disciplinary measure at the disposal
of the respondent , was resorted to in the case of Frisch when it does not
appear that'DeVore or any other employee was disciplined at all.
The identity of the complainants against Frisch Iis also noteworthy.
Morrison , as stated above, was active in the organization of the inside
union and was strongly opposed to the C. I. O. Both Huss and Gruss
were departmental representatives for the inside union.
On the basis of the foregoing evidence , and on the basis of the entire
record, we find that these six employees were called to the office of
Bersted on the afternoon of November 22, and that the coincidence
of their simultaneous ,appearance was not the result of a spontaneous
and voluntary desire on their part to protest against the alleged activ-
ities of Frisch, but was rather a maneuver on the part of the respondent
to, provide an ostensible - excuse for the contemplated discharge of
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frisch, an employee whose union activities and leadership were re-
pugnant to it.
Jordon gave three different versions of, the manner in which the
decision to discharge Frisch was arrived at; on direct examination
he testified that he was called to the office by Bersted, who showed him
two "affidavits" and told him to "get his [Frisch's] time." On cross-
examination he testified that Bersted called him in "when he got them
[the signed statements]," whereupon Bersted asked Jordon for his
opinion, and Jordon stated, "Well, let's let him [Frisch] go." In an
affidavit made by Jordon on April 16, 1940, he stated, "the complaints
were reduced to writing and signed. I thereupon told him [Frisch]
that he was discharged and notified the General Manager. The latter
concurred in the discharge." Jordon also testified on direct examina-
tion that when he came to the office Bersted showed him two affidavits
which "he had received from some one," but on cross-examination he
stated that he believed the statements were signed after he had entered
the office. We are unable to determine from this contradictory testi-
mony what the facts were. In any event, Jordon told Frisch that he
was .discharged and Frisch assumed that the discharge was related to
the warnings which he had received concerning solicitation of union
members in the plant. Frisch was not confronted with the charges
made against him, was given no opportunity to answer them, and no
investigation was made either by Jordon or by Bersted to determine
their,truth or falsity. Jordon's explanation of his failure to give
Frisch an opportunity of refuting the charges against him was that he,
Jordon, "took it for granted" that they were true, and that Frisch
"denied it whenever I did caution him about talking." Jordon ad-
mitted, however, that Frisch's denials might have been true.
Frisch admitted that on the day of his discharge he had par-
ticipated in a discussion among six or seven employees concerning the
Union during the noon hour, and that Huss and Gruss were probably
in the group. The statements signed by them specifies the noon hour
as the time when the alleged solicitation- took place. Even Jordon
admitted that union talk during the noon hour was not objectionable.,
That Frisch was discharged, in part, for,having done this clearly
shows that the respondent's motive was to discourage union activity
and not merely to curb solicitation of union members during working
s Jordon testified on cross-examination by the attorney for the Board :
Q Was the rule just directed to solicitation of union membership?
A. Yes ; that particular one, yes
Q. Or did it also include talking in favor or against a union on company time and
property? - -
A. Well, any kind of discussions that way If it was done dui ing the noon hour,
or something like that, you know what I mean. There was always a gang that con-
gregates there and discusses various things , and nobody bothers them, but it is just
during working hours.
BERSTED MANUFACTURING COMPANY 1053
hours. Frisch also admitted that he and Harold DeVore asked
Beidelscheis to-join the Union on the afternoon of November 22. As
noted above, Jordon did not observe this conversation, but testified
that it was reported- to him by Morrison. However, since Jordon,
failed to investigate the truth of any of- the charges, he could not
have known at the time of Frisch's discharge whether Beidelscheis,
any more than the other employees, had actually been solicited for
union membership by Frisch.
Following the discharge of Frisch, various active union members,
were warned by foremen that they would suffer the same fate as
he had if they continued union activities in the plant. Martha Dull,
Dolan Dull, Aman, and Tarris testified to having been first warned
against solicitation after the discharge of Frisch. Following his dis-
charge, the interest of the respondent's employees in the Union waned.
In summary, we find that with the first efforts of the Union to
organize its employees, the respondent, in order to counteract said
efforts, promoted an inside union; that foremen openly assisted in the
organization of the inside union during working hours; that the
respondent granted the use of its bulletin boards to the inside union
while denying it to the Union; that, although no efforts were made
to curb inside union activities- during working hours in the plant,
such as the holding of meetings and elections, active members of the
Union were warned and threatened against solicitation of members
during working hours; that, although groups of employees,habitually
congregated in various parts of the plant to discuss the pros and cons
of union organization, Frisch was the only one disciplined for joining
in these discussions-; that Frisch was repeatedly warned against
soliciting union members in the plant on occasions when the respond-
ent had no evidence that he was doing so; that the circumstances
immediately surrounding the discharge of Frisch are indicative of
a carefully planned effort on the part of those interested in defeat-
ing the Union to get rid of him; and finally, that there is no sub-
stantial evidence that Frisch interfered with the work of any of the
employees in the plant.
- The respondent has no ground for complaint by reason of the fact
that its activities are "viewed in the light of manifest interest and
purpose." "Motive," the Supreme Court has said, "is a persuasive
interpreter of equivocal conduct." 9 We find that Frisch was dis-
charged because of his union membership and activities.
We find that the respondent, by discharging Wilfred Frisch on
November 22, 1939, discriminated in -regard to his hire and tenure
of employment, thereby discouraging membership in the Union and
sTexas & New Orleans Railroad Company, et at. v. Brotherhood of Railway & Steamship
Clerks et al ., 281 U. S. 548, 559.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act 1° -
At the time of his,discharge Frisch was earning $26 a week. About
8 weeks prior to the hearing, he secured a position as bartender at a
restaurant in Fostoria, Ohio. As bartender, he was paid $15 a week,
but later received a raise, the extent of which is not shown in the
record. Frisch desires reinstatement to his former position with the
respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a. close, intimate, and substantial
relation to trade, traffic, and 'commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. ,
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices , we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act 11
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Wilfred Frisch because of his union
membership and activity . We shall , therefore , order the respondent
to offer Wilfred Frisch immediate and, full reihstatement to his former
position without prejudice to his seniority and other rights and priv-
10 See Matter of S. Blechman & Sons, Inc. and United Wholesale Employees of New York,
Local No . 65, U. R E . A -C. 1. O , 20 N L. R B. 495 ; Matter of Chicago Apparatus Com-
pany and Federation of Architects , Engineers, Chemists and Technicians, Local 107, 12
N. L,R B 1002, 1020
"On November 15, 1939 , prior to the discharge of Frisch , the Union filed charges with
the Board alleging violation by the respondent of Section 8 (1), (2), and ( 3) of the Act.
The 8 ( 3) portion of the charges stated , " Said company has discriminated in regard to
hire and tenure of employment in order to encourage membership in the aforesaid (inside)
union , by showing preference to those belonging to said association or company union,
11and has discouraged membership in the United Automobile Workers of America . . .
Thereafter , on December 1, 1939, the Union withdrew , without prejudice , all of the charges
save the first paragraph thereof alleging violation of Section 8 (1). On December 14, 1939,
the 8 ( 1) charge was settled by stipulation between the respondent and the Union with
the approval of the Regional Director . Pursuant to said stipulation , the respondent posted
a notice stating that it recognized the rights guaranteed its employees under Section 7 of
the Act, that it would not interfere with the exercise of said rights , and that it would not
discourage union membership or discriminate against any of its. employees by reason
thereof. Neither in its answer nor at the hearing did the respondent contend that this
settlement forecloses consideration of the instant case, nor could such a contention be
validly made The Board has fully respected the settlement by refraining from the in-
clusion of an allegation in this case of violation of Section 8 (1), except to the extent
that said section was violated by the discharge of Frisch . Nothing in the settlement
affects the propiiety of the prescription in this case of the remedy customarily provided
in 8 (3 ) cases. i
BERSTED MANUFACTURING COMPANY 1055
ileges, and make him whole for any loss of pay he may have suffered
by,reason of his discharge by payment to him of a sum equal to the
amount he normally would have -earned as wages from the date of the
discrimination to the date of the offer of reinstatement, less his net
earnings 12 during said period.
Upon the above findings of fact, and upon the entire record in the
case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization within the meaning of Section 2.(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Wilfred Frisch, thereby discouraging membership in International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial Organizations, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of /
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its'employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging- in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing 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, Bersted Manufacturing Company, Fostoria, Ohio, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United Auto-
mobile Workers of America, affiliated with the Congress of Industrial
12 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board . incurred by an employee in connection - with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 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, shall be deducted
from the sum due the employee , and the amount thereof shall be paid over to the appro-
priate fiscal agency of the Federal , State, counly, municipal , or other government or gov-
ernments which supplied the funds for said work -relief protects Matter of Republic Steel
Corporation and Steel Workers Organizing Committee, 9 N L. R B 219 , enf'd , as mod.
on other grounds, Republic Steel Corporation v. N. L. R B, 107 F. (2d) 472 (C. C. A. 3),
cert . granted as to this issue , 60 S. Ct. 1072.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Organizations, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure of
employment, or any terms, or conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the, Board finds will
effectuate the policies of the Act:
''I '(a)' Offer to Wilfred Frisch immediate and full reinstatement to his
former' bi substantially equivalent position, without prejudice to his,
seniority and other rights and privileges;
(b) Make whole the said Wilfred Frisch for any loss of pay he may
have suffered by reason of the respondent's discrimination in regard
to his hire and tenure of employment by payment to him of a sum
equal to that which he would have earned as wages during the period
from the date' of the discrimination to the date of the offer of reinstate-
ment, less his net earnings 13 during said period; deducting, however,
from the amount otherwise due him, monies received by him during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects; and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(c) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the date '
of posting, notices to its employees stating : (1) that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a) and (b) of this Order; (2) that the respond-
ent will take the affirmative action set forth in paragraphs 2 (a) and
(b) of this Order; and (3)- that the employees of the respondent are
free to become or remain members of International Union, United
Automobile Workers of America, affiliated, with the Congress of Indus-
trial Organizations, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization ;
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
13 See footnote' 12, supra.