Flambeau Plastics Corp.

National Labor Relations Board - Board Decisions

Mar 12, 1965

151 N.L.R.B. 591 (N.L.R.B. 1965)

FLAMBEAU PLASTICS CORPORATION 591
Diamond Jim's Nevada Club
This Employer engages in the operation of slot machines only,
and has no pit gaming department. At issue are the slot mechanics
and keymen who are engaged in servicing the machines. Petitioner
requests a unit including both categories while the Employer would
exclude keymen. It appears that a keyman corrects jams which
may occur in the machines and also makes minor repairs on them.
The keyman is supervised by the floorman, and confines his work
to the main floor area. Although the slot mechanic may also
occasionally work on the floor, he is primarily engaged in more
difficult repair work in an adjoining repair shop. He is supervised
by the slot machine supervisor. The slot mechanic generally has
the requisite mechanical ability when he is hired, whereas the key-
man recieves on-the-job training in the repair of the machines.
However, when an applicant applies for a keyman position he is
given a test to determine whether he has sufficient mechanical
aptitude for machine work. The training of a keyman is the
responsibility of the slot machine supervisor. Keymen also are
promoted to be slot mechanics. All these factors reveal a sub-
stantial community of interest between keymen and slot mechanics
requiring the inclusion of both positions in the appropriate unit.
Accordingly, we find the following employees of Diamond Jim's
Nevada Club constitute a unit appropriate for collective bargaining :
All casino employees, including slot mechanics and keymen, but
excluding change girls, cashiers, floormen, office clerical employees,
guards, and supervisors, as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Flambeau Plastics Corporation and Local 380, International
Union , Allied Industrial Workers of America , AFL-CIO. Case
No. 30-CA-27.1 March 12, 1965
DECISION AND ORDER
On October 9, 1964, Trial Examiner Eugene E. Dixon issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner further found that
1 Formerly Case No. 18-CA-1737; changed by Order of the Board , dated October 9, 1964..
151 NLRB No. 70.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint. Thereafter, all parties filed exceptions
or cross-exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the entire record in this case, including the Trial Examiner's
Decision, the exceptions and cross-exceptions, and the briefs, and
hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner as amended herein, and orders that
Respondent, Flambeau Plastics Corporation, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following changes and
additions :
1. A new subparagraph (b) is added to paragraph 2, reading
as follows :
"(b) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all records necessary for the determination of the amount of back-
pay due under the terms of this Order. Backpay shall be com-
puted with interest on a quarterly basis in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-
294, and Isis Plumbing cC Heating Co., 138 NLRB 716."
2. Present subparagraphs (b), (c), and (d) of paragraph 2 are
relettered accordingly.
3. The words "Eighteenth Region" in present subparagraphs (c)
and (d) of paragraph 2 and in footnote 38 are changed to "Thirtieth
Region."
4. The last paragraph of the "Notice To All Employees" attached
to the Recommended Order is changed to read as follows :
"Employees may communicate directly with the Board's Regional
Office, Room 230, Commerce Building, 744 North Fourth Street,
Milwaukee, Wisconsin, Telephone No. 272-8600, Extension 3860, if
they have any questions concerning this notice or compliance with its
provisions."
FLAMBEAU PLASTICS CORPORATION 593
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed with respect to violations alleged in the complaint
but not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Baraboo, Wisconsin, from March 10 through 16, 1964. The
complaint, dated January 24, 1964, and based upon charges filed and served Octo-
ber 24, 1963, and January 22, 1964, was issued by the Regional Director for Region 18
(Minneapolis, Minnesota) on behalf of the General Counsel of the National Labor
Relations Board (herein called the General Counsel and the Board). It alleged that
Respondent had engaged in and was engaging in unfair labor practices by failing to
bargain in good faith with Local 380, International Union, Allied Industrial Workers
of America, AFL-CIO (herein called the Union) as the certified bargaining agent of
its employees, and by giving discriminatory layoffs to Frank Reidhauser and Edwin
Zimmerly and by discrimmatorily discharging Reidhauser thus violating Section
8(a) (1), (3), and (5) of the Act.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
Upon the entire record and from my observation of the witnesses, I make the
following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
At all times material herein Respondent has been a corporation organized and
existing pursuant to the laws of the State of Wisconsin, having its principal office
and place of business at Baraboo, Wisconsin, where it is engaged in the manufacture
and molding of plastic products. During the year preceding the issuance of the com-
plaint Respondent, in the course and conduct of its business operations, sold and
distributed to points outside the State of Wisconsin products valued in excess of
$500,000. Respondent is, and at all times material herein has been, engaged in
commerce within the meaning of Section 2(6) of the Act.
II. TIIE LABOR ORGANIZATION
Local 380, International Union, Allied Industrial Workers of America, AFL-CIO,
at all times material herein has been a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
In August 1962 the Union began a campaign to organize Respondent's employees.
On March 5, 1963, the Union was certified by the Board as the collective-bargaining
agent of all Respondent's production and maintenance employees and warehouse and
shipping employees, including truckdriver and janitor, in its Baraboo, Wisconsin, plant,
but excluding office employees, engineering employees, guards, professional employ-
ees, and supervisors as defined in the Act. On Tuesday, March 19, a local newspaper,
The Baraboo News-Republic, carried a news item naming the newly elected union
officers including the members of the Union's negotiating committee. Baraboo's
population is given as 7,264 in Hammond's Ambassador World Atlas published in
1954. Thereafter, beginning on March 28, 1963, and continuing through February 27,
1964, negotiation meetings were carried on between the Company and the Union.'
On the negotiating committee for the Union was its president, Virgil Hatfield, and its
vice president, Frank Reidhauser, an alleged discriminatee herein 2 by way of a
'Meetings were held on March 28, May 10, June 17, June 25, July 10, July 22,
August 1, August 14, August 21, September 6, October 14, October 25, and February 27,
1964. The last three meetings were sessions in which a representative of the Federal
Mediation Service participated.
2 Another union officer , Edwin Zimmerly , was also alleged to have been discriminated
against by reason of two disciplinary layoffs
783-133-66-vol. 151-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary layoff, a work transfer , and a subsequent discharge . Both Hatfield and
Reidhauser were also alleged to have been , together with some other union officials,
the target of some restrictive and discriminatory work orders by Respondent.
In addition to the alleged discrimination violating Section 8 ( a)(3) and certain
conduct violating Section 8 ( a)(1), the General Counsel also alleges that notwith-
standing the negotiating meetings that took place, Respondent did not bargain in good
faith as required by Section 8(a)(5) of the Act. With this preliminary picture in
mind let us first turn to the alleged 8 (a) (1) conduct.
B. The alleged 8(a)(I) conduct
1. The no-solicitation rule
On May 14, 1963, the following notice to the employees was posted in the plant:
NOTICE TO ALL EMPLOYEES
Unauthorized Collection Of Union Dues
In 1954 , this company established the employees ' Benefit Committee to put
an end to solicitation of employees while on company premises for contributions,
donations , and payment of dues to non-company sponsored activities and
organizations.
Since 1954 Flambeau has turned over the profits of its vending machines to
the Committee and has further subsidized its activities so as to relieve produc-
tion from non-company sponsored activities calling for such contributions,
donations and dues collections.
It has come to the attention of Flambeau Management that there has been
activity by members of Local 380 Allied and Industrial Workers' of America,
whereby there have been collected, or attempts have been made to collect, union
dues on company premises . As a result of this activity on company premises,
the following statement of policy is made:
IN LINE WITH ITS POLICY ESTABLISHED IN 1954 PROHIBITING
THE COLLECTION OF NON-COMPANY SPONSORED CONTRIBUTIONS,
DONATIONS AND DUES BY INDIVIDUALS OR ORGANIZATIONS ON
COMPANY PREMISES , NOTICE IS HEREBY GIVEN THAT, EFFECTIVE
IMMEDIATELY, ANY FURTHER ATTEMPT ON THE PART OF ANYONE
TO COLLECT OR ATTEMPT TO COLLECT UNION DUES ON COMPANY
PREMISES WILL BE SUBJECT TO DISCIPLINARY ACTION IN THE
FORM OF THE WRITTEN NOTICE PROCEDURE OUTLINED ON PAGE
4 OF FLAMBEAU'S POLICY BOOKLET.
Posted on bulletin board May 14, 1963.
The evidence shows that copies of this notice were posted on the bulletin board in
the clock alley where notices to employees were normally posted and also on the
door to the injection molding room office where notices were not normally posted to
employees but sometimes were. These notices remained posted until sometime just
before the end of the year when the General Counsel called Respondent 's attention
to them and suggested that they be removed ? The one in the clock alley was
removed about Christmas time and the other one was taken down shortly after the
first of the year. No repudiation of these notices was ever posted or communicated
to the employees by Respondent.
The promulgation of a rule prohibiting union activities of employees on their non-
working time "is presumptively invalid unless validated by evidence that special
circumstances made the rule necessary in order to maintain production or discipline."
Walton Manufacturing Company, 126 NLRB 697, 698. No such showing was made
here. Consequently , no distinction having been made between working and non-
working time, Respondent's notice interfered with the rights guaranteed its employees
in the Act and violated Section 8 ( a)(1) thereof . The subsequent removal of the
notice was not sufficient of itself to dispel its coercive effect nor did its removal
amount to an effective revocation of it . Time-O-Matic, Inc., 121 NLRB 179
2. The no-talking order
William Schreiber was maintenance supervisor for Respondent at all times material
up to April 27, 1963, when his employment terminated . According to Schreiber's
undenied and credited testimony "right after the union officers election" Edwin Sauey
(one of Respondent 's officers and Schreiber 's "direct supervisor") told Schreiber
"you know who the boys are now, you will have to watch them." Sauey also indicated
' In his brief the General Counsel states that this was on December 3
FLAMBEAU PLASTICS CORPORATION 595
that Schreiber should keep maintenance man Frank Reidhauser (the Union's vice
president) busy so that he could not "do any union soliciting or anything in connection
with the Union during working hours."
Schreiber was later called in by Edwin Sauey and William Sauey. Respondent's
president, with the request that he change the break or rest periods of Reidhauser and
maintenance man Virgil Hatfield (the Union's president) so that they would not be
taking their breaks at the same time. William Sauey indicated that he "didn't feel
that these two people should be in the lunchroom at the same time so that they could
possibly discuss union affairs or anything related to that while they were on their rest
period." Sauey further indicated that with the two maintenance people away from
the department at the same time he felt "the maintenance department would not be
able to fullfill its obligations in the plant." Schreiber disagreed with the Saueys on the
grounds that he was available almost at all times himself for work in the plant and
that on previous occasions in emergency breakdowns both Reidhauser and Hatfield
had voluntarily taken less time on their break periods to come out and help get the
machinery back into operation. William Sauey indicated that Schreiber "could
either carry the order out or take the other alternative." Assuming that the other
alternative was to resign and feeling that he did not want to get involved any more in
the "friction between management and the Union," he handed in his resignation
that day.
Reidhauser testified that on June 26 he was ordered by his then foreman, Ward,
that he was to remain in the maintenance department until he was called upon to
perform work by a supervisor or leadman and that he was "not allowed to talk to
any of the operators, just leadmen and supervisors." The same order was given to
Hatfield. According to his credited testimony, he was told that the maintenance
people were not supposed to go on the floor unless notified by a supervisor and not to
talk to anyone on the floor. They were to stay in the maintenance department until
they were authorized to leave. The order also excluded production people from the
maintenance department. There had never been such an order in Hatfield's experi-
ence with the Company which dated from 1958.4
Hatfield also testified that at first the supervisors were the only ones who were to
give work orders to the maintenance people but later the rule was relaxed so that
leadmen could also give such orders. Hatfield complained to one of the supervisors,
Leo Schultz, about staying in the maintenance shop where the air was bad- The next
night the doors were opened and there were four fans in the room. According to
Hatfield's further uncontroverted and credited testimony, Austin, the day maintenance
man and no particular supporter of the Union, told Hatfield that he had never heard of
the no-talking order.
Charles Kissack, a leadman in the injection molding department, and Fred Schultz,
a material handler, also testified credibly about receiving similar orders at this time.
Kissack, who had been a trustee of the Union since the initial election of officers in
March, was told that he was not "to talk to any operators ... (or) to anyone else on
the floor," that he was not allowed outside the molding department, and that he was
to stay out of the maintenance and tooling department. Schultz, who had been elected
treasurer of the Union, was told he would not be allowed "to be standing around by
the pressers leaning on the tables talking to operators ...." The extra breaks that had
been permitted to Schultz prior to this time, if his work was caught up, were also
rescinded on this occasion.
According to the undenied and credited testimony of Tom Janney, in June he
received the following memorandum entitled "maintenance personnel" from his
supervisor, Gerald Templin, dated June 25, 1963:
Effective this date , no one is allowed to go into the maintenance department to get
Virgil to do maintenance work in our department except myself and Tom Janney
the setup man. Also Virgil Hatfield is not to come into our department without
either Tom or myself asking him to do so at which time Virgil is not permitted
to talk to an operator. These instructions have been issued to me by Joe Ward
who is in charge of the maintenance department.
This memorandum was directed to the personnel of the second shift.
Janney further testified credibly and without denial that in September Hatfield had
come into his department and asked if he knew where something was, a green hose he
was looking for. Janney said that he did not know where it was and went toward the
* In this connection Schreiber testified that prior to the Union 's winning the representa-
tion election, employees were allowed to talk in all departments at least in the sense of
a friendly greeting "or something to this degree " He further testified that there had
been no excessive talking in connection with his maintenance employees so far as
he knew.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back of the shop where he encountered and congratulated a new employee whose name
had appeared in the Company's publication "Firebrand's" welcoming him to the Com-
pany. When he got to the other end of the shop he was stopped by his foreman who
asked if he had been talking union to the new man. Janney said that he had not.
Then the foreman , Lambirty, told Janney that he would rather that he not talk with
Hatfield and that he would tell Hatfield the same thing because he did not want them
"talking union on the job." The following day Janney talked to another supervisor,
Schepp, about the matter. Schepp told him that "Bill Sauey had made the statement
to him about Tom Janney talking to people out there in the department and he is
strong union ...." When Janney protested the accusation leveled at him, Schepp
told him "that it had been sent down from higher up that certain keymen would be
singled out and pressured ... due to the fact that the Union is here ...."
Janney further testified credibly, and without denial, that sometime before Christmas
in 1963 a collection was taken up in the blow molding department and that he was
himself solicited by the foreman of the third shift, Max Mannix. This collection was
for the purpose of buying a Christmas present for Schepp, the department supervisor.
Janney also testified about a conversation with Supervisor Lambirty in August when
he was due for evaluation for a wage increase. Lambirty said that he would put him
in for a raise. A couple of weeks later he returned and told Janney that the raise
had not been granted. Janney said, "Well, I really didn't expect to, due to the fact
that we had this little squabble about talking union on the lob before." He told
Janney that "that had a lot to do with it" but that if his work picked up in 6 or 8
weeks, he would put him in again for a raise. About 6 or 8 weeks later he got a
raise. He also got an increase in March of 1963 when he was reclassified from a
B operator to an A operator. This was after he was active in the Union and had taken
part in the organizing campaign. He was also put in a higher classification in May
although he did not get an increase at the time.
LeRoy Mason, Respondent's director of engineering, testified that late in June 1963
he had ordered a change in the procedure for maintenance work whereby the mainte-
nance people were to perform their work in the maintenance tooling area except
work that had to be done in the production area, and that such work was to be done
only at the request of production supervisors. Prior to this, according to Mason,
almost any of the production personnel could and did call on the maintenance people
for work. Thus, the maintenance department did not have control over its people
and the production department did not have control over its operations. The incentive
for this order came from the production people who had asked for it. They had
told Mason "that there was too much interference in the production operation in
their departments" and asked if he could do something about it. Production Superin-
tendent Mather "particularly" had taken this position.
According to Mason's further testimony, about the first of August a change was
made in the order; "it was explained to the production people that (a) man would
coming through to do the routine preventive maintenance work so that the foreman
knew a man was there and why." This was "after complaints were registered by
production people that maintenance employees were acting strangely ... wearing signs
and so forth ...... 5
This order was brought up in the negotiation meeting of August 1. Hatfield com-
plained that it was interfering with the work,6 and Union Representative Schaefer
accused the Company of being "like a prison." Company Representative Howard
Smiley said he would investigate the matter. In the August 14 meeting Smiley read a
report addressed to him from Mason, indicating that Mason had discussed the matter
with the employees and had "clarified the situation regarding the amount of conversa-
tion to be carried on in performing a lob." The General Counsel's witnesses testified
5 While Mason in his testimony attempted to imply that the above complaints had
given rise to the original change in the maintenance procedure, it would appear that
those "complaints" and the sign wearing was the same matter that Hatfield admitted
having joked about after the new orders had gone into effect. This lends substance
to the General Counsel's evidence that the new orders gave rise to strained feelings
and misunderstandings between the maintenance people and the production people
6 Hatfield testified credibly and without denial that because the setup men were not
allowed in the maintenance department he had to perform part of their work. Also,
it was necessary to get permission to do routine maintenance work. Kissack testified
,credibly and without denial that his work was affected because just to get material out
of the maintenance department for normal needs he had to search out his foreman who
in turn would convey the request to maintenance. Furthermore, whereas setup men
formerly had cut their own pipe, this now had to be done by the maintenance people
because setup men were no longer allowed in the maintenance department.
FLAMBEAU PLASTICS CORPORATION 597
that the orders then were rescinded. Respondent's evidence denies this. Whatever
the fact may have been, apparently the restrictions were somewhat eased thereafter,
as was evidenced by Mason's testimony of clarification and change in the original
order.
Conclusions as to the No-talking Order
I am of the opinion and find that the foregoing evidence shows that Respondent's
no-talking order and restrictions imposed on the operations of the maintenance
department were substantially grounded in the discriminatory purpose of curtailing
the freedom of speech and action of the union leaders as compared to the other
employees, and thus violated Section 8(a) (1) and (3) of the Act. In reaching this
conclusion the following considerations and their relationship to each other, I believe
are significant:
1. William Sauey's attempt, through Foreman Schreiber, on April 27 to prevent
Reidhauser and Hatfield from engaging in union discussion or activity on their free
time.
2. The Company's similar restrictive and coercive notice which was posted shortly
thereafter.
3. The specific no-talking orders given Union Treasurer Schultz and Union Trustee
Kissack in addition to Union Officers Reidhauser and Hatfield as compared to the
absence of such orders to maintenance man Austin?
4. Supervisor Schepp's uncontradicted communication to Janney that "certain key-
men would be singled out and pressured" because of the Union.
5. The lack of any convincing evidence that the rule was indeed needed for produc-
tion and plant efficiency.8
C. The alleged discrimination
1. Zimmerly
Edward Zimmerly was hired by Respondent in 1957. At all times material herein
his job was assistant setup man whose duty it was to do the necessary things to set up
a machine for operation by the production crew and to run the first few pieces to
see that everything was in order. He was the Union's sergeant at arms, who signed
up new members since the Union had been certified and had worked "on contract
proposals."
On January 29, 1963, Zimmerly had received a warning notice for disobedience by
reason of having failed to report an accident "until a week later when medical help
was needed." On August 21, 1963, Zimmerly received a second warning notice and
accompanying 2-day disciplinary layoff, this time for carelessness. The warning
notice stated:
Cutler Hammer mounting plate mold was damaged. Drool and condition of
mold shows only that part of or all of shot was left in mold. Slides shows actual
imprint. Your experience in molding can mean this was a definite act of care-
lessness. Since this is your second offense, you are being given a 2-day layoff.
Regarding this matter Zimmerly testified as follows- At about 1.30 or 2 a m.
press No. 4, where the mold damage occurred for which he was disciplined, was
running nylon. Nylon gains moisture if setting only a short length of time and also
the machine heats up under such circumstances. Accordingly one must purge it down
and cool it, which he did. The heat was on when he got to the machine. He took
the pressure down and cleaned off and checked the mold which "had just come back
from tooling." He then started cycling the machine slowly and ran some short shots.
A small amount of drool came in. After he had cleaned it out some more drool
came in after the gate started to close.9 When the drooling continued, he called
7 While this finding is based on Hatfield 's hearsay testimony it should be noted that
hearsay not objected to may "be considered and given its natural probative effect as
if it were in law admissible," Diaz v. United States, 223 U S 442 , 450, and where not
contradicted carries the force of substantial evidence sufficient to support a finding.
American Rubber Products Corporation v. N L.R B. , 214 F . 2d 47 , 52 (CA. 7).
8 Mason's testimony on the matter was not only somewhat inconsistent with the
established facts, but totally uncorroborated by any of the "production people" who
supposedly were clamoring for the needed rule including Mather , the one "particularly"
concerned about it.
8 According to Rogers, Zimmerly's supervisor, nylon has a tendency to drool more than
other raw materials.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogers over . Rogers said that the mold would have to be pulled for tooling. That
was all that was said. The job was pulled out and they "set a new job in the
machine."
Zimmerly denied that he had started with the Cutler Hammer job, and he also
denied leaving a shot in the mold. He further testified that he had broken molds be-
fore and had drooled molds but had never gotten a warning for it that he could recall.
Nor did he have knowledge of similar layoffs. He also testified that he had seen
supervisors and setup men drool and damage molds on occasion .10 Furthermore,
Rogers testified that drools can occur after all precautionary measures are taken and
without any negligence or carelessness on the operator's part.
On August 21, according to Supervisor Rogers' testimony, Zimmerly came up to
him and showed him some faulty parts involving a Cutler Hammer mold which had
been damaged. Rogers asked him if "there were any parts caught in there or any-
thing like that" and he answered that there were not. Zimmerly told Rogers that
"evidently the mold was that way to start out with," and that these were the first parts
that he had run.
Rogers pulled off the mold and put it in tooling for examination In the tooling
department Rogers examined the mold at which time "it was evident ... that some-
thing had been caught in the mold." Either a piece had been left in or a drool had
occurred. After examining the damaged mold in the tooling department Rogers went
home. That night after "other shots had been found underneath the press that had
not been damaged, start-up shots," 11 Zimmerly was given a 2-day disciplinary layoff
for damaging the mold.
Production Superintendent Robert Mather's testimony about this matter was as
follows- On the 21st, when he came to work, he had a memorandum from Rogers
which had two shots from the mounting plate for Cutler Hammer attached in a
polyethylene bag. The memorandum 12 stated that Zimmerly had given Rogers the
two shots which showed evidence of mold damage. The memorandum went on to
say that Zimmerly had told Rogers that the parts were damaged when they came out
of the mold and they were the first shots he had run This, of course, would indicate
that the mold had been damaged before Zimmerly started. Mather looked at the
shots and found none of the typical startup effects such as silver streaks, grease, or
shorts. This puzzled him and led him to believe that these were not the only two
shots that were run. Having "this suspicion," he went to the press where the job
had been running and underneath found three parts from the mold, not shots, but
parts. These parts indicated evidence of startup; they were silver streaked badly and
had grease typical of startup shots 13 These parts did not indicate any mold damage.
From this Mather concluded that the mold damage had occurred after the first shots
but before the last two shots had been run 14 This information he transmitted to
Rogers by memorandum to which he attached the parts that he found under the
machine as evidence of his findings together with a statement to Rogers that he "didn't
think he had the full story on Mr. Zimmerly."
Mather did not recall whether he talked to Rogers about Zimmerly's layoff In
explaining , on cross-examination , why he thought Zimmerly had been careless in this
matter, Mather testified that he previously ( at an undisclosed date but when Mather
had been the shift foreman) had "had a long serious talk" with Zimmerly about scope
of his work. Mather was not satisfied with it. Zimmerly wasted too much time, did
too much talking, and his workmanship was poor "he wasn't getting the job done." 15-
10 The evidence clearly establishes that it is not uncommon for drools and mold damage
to occur.
11 Rogers testified that he did not see these shots
12 Mather testified that memoranda on mold damage are normal and go into a mold
damage file.
13 In his testimony Zimmerly stated that he had run several short shots (shots with
not enough plastic to fill up the mold) before he ran those he showed to Rogers. These
first shots, he testified, he had thrown into the grinders
11 Mather further testified that he knew that it was no one else but Zimmerly who
had run the startup shots he had found under the machine "because this mold had not
been run on this previously, it had been run once or twice in another press on a sampling
basis only. It was a new mold, it had been run once or twice before but not on this
press." Nevertheless, he further testified that he did not know if the mold had come
directly from tooling or if tool work had been done on it just prior to Zimmerly's
using it. He admitted , in effect, that if such were the case there probably would be
no evidence of grease on the startup shots.
15 This testimony stands undenied in the record.
FLAMBEAU PLASTICS CORPORATION 599
Conclusions as to Zimmerly's 2-day Layoff
I am convinced, and find, that Zimmerly's 2-day layoff for mold damage was moti-
vated essentially by his being an officer of the Union and thus was discriminatory
within the meaning of the Act. The evidence as to Zimmerly's negligence is at best
equivocal. There are questionable discrepancies between the testimony of Mather
and Rogers about the matter. There is no indication in Rogers' testimony that he
wrote a memo to Mather as testified by Mather. Nor was such a memo offered by
Respondent although Mather testified that such memos are normal procedure and
are filed in a mold damage file. Moreover, Rogers denied seeing the undamaged
startup shots that Mather testified he transmitted to Rogers and that supposedly were
the basis upon which Zimmerly's negligence was established. Furthermore, Zim-
merly's testimony that the mold in question had come directly from tooling stands
undenied in the record, and by Mather's own admission would thus not have shown
any of the telltale effects that Mather claims he found in the shots he attributed to
Zimmerly. That Respondent itself was not certain about Zimmerly's fault seems
implicit in the warning he received, worded as it was in the subjunctive mood.
These considerations take an additional force when viewed in the light of the
Saueys' illegal opposition to the Union as evidenced by their attempt to prevent
Reidhauser and Hatfield from exercising the rights guaranteed them in the Act and
by Respondent's other illegal restriction of its employees' rights. There is one further
aspect of the evidence on the matter that I deem to be significant in tending to show
an antiunion motivation by Respondent here. Before the Union had been certified as
the collective-bargaining agent of the employees, there were at least three people who
had received two warning notices without having received any accompanying disci-
plinary action.16
Zimmerly's 5-day Layoff
On October 25 Zimmerly received a 5-day layoff for entering the warehouse con-
trary to plant rules. About this matter Zimmerly testified as follows: Early in the
morning of October 24, having run out of snake tape being used on a certain job,
Supervisor Rogers sent Zimmerly and another employee through the plant to search
some out. Rogers told them that "if the warehouse wasn't unlocked [they] would have
to wait, if [they] couldn't find it any place else [they] would have to get some from
the warehouse" but that they "were not to go into the warehouse unless the door was
unlocked." Since tape was used in almost all departments that had occasion to seal
things, Zimmerly looked through the plant before resorting to the warehouse. There
were three doors leading from the finishing department to the warehouse, two larger
ones and a small one at the rear of the finishing department. Zimmerly did not recall
whether there was a fire sign "at the rear door."
When Zimmerly entered the finishing department from the molding department, he
encountered an employee, Dean Bretsch. He asked Bietsch if the latter knew where
there was some snake tape and Bretsch answered in the negative. Trying the large
doors to the warehouse and finding them locked, Zimmerly went to the little door in
the rear and tried it. Finding it unlocked, he entered and returned in a few minutes
with the needed tape. When he came out he saw Bretsch who was some 50 or 60 feet
away. He then took the tape to Rogers and told him where he had gotten it; Rogers
told him he should not have gone into the warehouse and said that he would have to
report Zimmerly.
The following night Zimmerly was called into the office where Rogers and Produc-
tion Superintendent Mather informed him that he was being given a 5-day disciplinary
layoff for having entered the warehouse which was against the rule. Zimmerly said
that if there was such a rule he was not aware of it. They showed him a yellow tablet
upon which the rule was written in longhand. This was Zimmerly's first knowledge
of this written rule and he told his superiors so. Mather said that he "probably knew
about it."
As for the yellow pad in question, Zimmerly testified that only "leadmen and fore-
men are suppose to read that" and then pass the information on to others. He
further testified that he was allowed in Mather's office if he had reason to be in there,
and that he was told "awhile back ... it would be a good idea if we read it (the
yellow pad) but we were not required to read it."
Roger Louis Roznos, Respondent's traffic manager, testified about this matter as
follows: He had charge of the warehouse. For at least 2 years preceding this incident
there was a sign on the door in question, "Exit, to be used for fire exit only." 17 This
19 These were Larry Kimball, Josephine Manix, and Claron Kissack. In the case of
Kissack, his record warning came on March 6, the day after the certification.
17 A photograph of the door showing such a sign on it was introduced into evidence.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
door was kept sealed on the warehouse side of the door by means of a thin wire
which would permit the door to be opened in case of necessity and yet disclose any
unauthorized use of the door by reason of the seal being broken. When he checked
the door on the morning of October 25, the seal was broken and laying on the floor.
While he normally did not check to see if the warehouse doors were locked or sealed
every day, he had been doing so "at this particular time," making the checks every
night. The reason for having the doors sealed and the warehouse locked was "to
keep material from flowing up into the molding department without requisitions "
On cross-examination Roznos testified that the sign on the door faces the finishing
department. He did not know if there were two signs on the door and was not sure
whether the same wording was on the sign that appeared in the photograph in evidence
as was on it in October of 1963. Nevertheless he knew that the sign was there by
reason of his having walked by it every day, notwithstanding that his work was in
the warehouse and not the finishing department. He then testified that he did not walk
by the sign every day but that he only walked by it occasionally. When asked who put
the wire seal on the door that was on it currently, he testified that he did not recall
but that "it could have been [himself]." He indicated that he "sometimes" put it on
himself, notwithstanding that it was a job for maintenance. Nor did he recall who
had put it on in October 1963, whether it was he or the maintenance department
that did it. He also testified that the wire was on so as to give "maybe a half an inch"
before it would catch.
Dean Bretsch , a young lad whom I should judge was not over 18 or 19 years old,
testified about this matter as follows: Pursuant to his duty, to get the hot stamping
machines ready for the start of the regular shift, he was in the finishing department
before 6.30 that morning. Zimmerly came back to where he was plugging in some
electrical connections and asked for some snake tape. Bretsch said that he did not
have any and Zimmerly said "he was going into the warehouse or he went by the
warehouse door." Bretsch "told him not to go back there because the door was
sealed " As to what he did next Bretsch testified as follows:
I walked over by the door and I looked and I seen the seal on the door and then
I says, it's sealed, you better not go back there and then I just walked away and
went up the line and started in my hot-stamp machines and airlines or whatever
had to be plugged in.
About 5 or 10 minutes later, Bretsch saw Zimmerly come out of the same ware-
house door. When shown the photograph of the door which Respondent had intro-
duced in evidence and asked if he had seen the sign depicted thereon he answered,
"Well, I know there was a sign down there, I can't positively state that that's the
sign."
On cross-examination, when Bretsch was asked how he knew the warehouse door
was locked, he testified that when Zimmerly asked him for snake tape he went over
to the door and showed Zimmerly the seal on the door. He testified that the seal
could be seen through the window of the door and that he "jiggled the door a little
bit and you could feel the seal on it." When asked if the seal could have broken by
his jiggling the door he testified, "It could have been, not saying it was, though "
Later on in his cross-examination he testified that "there was some kind of seal on
there, I don't know whether it was wire or what it was, but I know there was a seal
on it, it looked like wire to me." Still further on in his cross-examination when
asked what kind of seal was on the door his testimony was, "Well, I never looked at
the seal I mean that close or anything " He also was unable to say which of the
four windowpanes in the door he had looked through to see the seal but finally con-
jectured that it was either of the two bottom ones. He further testified that it was
light in the finishing room by reason of the lights which were burning and had been
on all night long.
Harley Rogers' testimony about this incident was as follows:
Well, we ran out of snake tape on this particular job that we were to tape our
boxes with and we went ahead that night and taped our boxes up with regular
tape and oh, later on that morning around 6 o'clock or so, we were fairly well
caught up on our work and I told Ed Zimmerly and Gary Nehring . . . to
watch for any quality control man or warehouse man that might happen to
come in, sometimes they come in early ... because I thought then if they could
get a partial roll of snake tape from them we could seal our boxes up in a proper
manner.
Rogers testified that the lack of snake tape at this point was not "holding up . . .
production in any sense." The next thing he knew about the tape situation was
when he noticed the men "sealing the boxes up with the snake tape, re-sealing them."
FLAMBEAU PLASTICS CORPORATION 601
He did nothing about "ascertaining where the tape came from" at that time Zim-
merly did not tell him where he got the tape. After he got home he got a telephone
call from Plant Superintendent Bob Mather "about where it went in the warehouse "
It was not until that night when they (presumably he and Mather) came in that
they "got the idea that he was in the warehouse."
Confronting Zimmerly about the matter, he told Zimmerly that he was "not sup-
posed to go into the warehouse for any reason at all." The basis for this statement
was that about a week or so prior to this time, a "notice" was "issued" by means of a
handwritten statement on a yellow pad used in the office "that no one is to go into
the warehouse except for moving production and that's only the last half hour of each
shift period." Rogers testified that he could not recall Zimmerly "saying much of
anything" about the matter, and then testified that Zimmerly made no comment at
all about whether or not he knew of the existence of the rule on the yellow pad
Rogers further testified that in order to remove something from the warehouse "a
requisition must be made out" and that warehouse personnel is also called in at
night to get material for them. He further testified that Zimmerly's work did not
normally take him into the warehouse area. Asked again where he found out that
Zimmerly had been in the warehouse, his testimony was "Bob Mather called me that
morning."
Mather's testimony about this matter was as follows: He was advised shortly after
he came to work that morning by Leonard Johnson, supervisor in the finishing
department, that Zimmerly had gone through the fire door into the warehouse.
Since disciplines, promotions, raises, and all that "sort of thing" came through him,
he "felt this was a very serious situation where this man would go into the ware-
house" and he thought he "should do a little study here before (he) jumped to any
conclusions." So he went out and looked at the door and looked at the sign on the
door. Then he "dug out the note" that he had left on the yellow pad "to make sure"
that he had left explicit instructions and then called Rogers to ask "if he had talked
to his people about it, about not entering the warehouse." He then told Rogers that
he had received this report about Zimmerly going through the fire door.
The yellow pad statement in question was dated October 14, 1963, and read as
follows:
All W.H. doors are to be kept locked and closed at all times after W.H. per-
sonnel leave except from 10.30-11:30 p.m. when second shift production is
moved and from 6.30-7 a.m. when third shift production is moved. You
foremen are responsible to see that this is strictly adhered to. Nothing is to be
taken from W.H. without authorization from myself or Roger Roznos. What
about sales department??)
It appears from Mather's further testimony that it was his practice to set forth in
this yellow pad daily notes "pertinent to the job being run or instructions to the fore-
men, leadmen and the other people in the molding department " It further appears
that not everyone has access to this pad, but that foremen and leadmen do and who
see it beyond these two categories is "up to the supervisor."
Received in evidence about this matter was a memorandum from Rogers to Vice
President Howard Smiley as follows: It was dated October 25, 1963, and its subject
was "Ed Zimmerly layoff."
We ran out of snake tape needed on the Toni Curlers and deflectors. We
sealed boxes with regular tape and intended to take a rejected lot on the two jobs.
Around 6 a.m. we were in pretty good shape and I told both G. Nehring and
Ed Zimmerly to watch for the quality control men coming in just before 8:00
and to ask them if they had a partial roll of snake tape or full one. If they did
we would be able to tape our boxes in the proper manner, not receive rejected
lots and also save Q.C. the time they would have to use to retape the boxes.
I wasn't too concerned about receiving rejected under this condition.
It was later that I learned Ed had entered the warehouse and removed the
tape. He fully understood that no one was to go into the warehouse except
the last half hour of the shift and this is to move production only.
An interoffice memorandum from Mather dated October 26, 1963, with copies to
Sauey and Smiley was as follows:
Ed Zimmerly entered the W.H. on the morning of 10/25/63 just prior to
7 a.m. for the purpose of removing two rolls of snake tape (10-26). This is
entirely contrary to all of our rules of operation and was done in spite of the
fact that he had been previously told that nothing was to be removed from the
W.H.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also Ed is fully aware of our requisitioning procedure but in spite of this
he removed these two rolls without proper written requisitions.
Also Ed removed this item in spite of the note I had left on yellow pad. I
leave pertinent information daily and Ed told Harley and myself that he does
read this information. (See yellow sheet attached.)
Also Ed entered the W.H. through a sealed fire exit door which had a large
sign on it which read "EXIT-TO BE USED FOR FIRE EXIT ONLY." His
explanation to myself and Harley was that he "didn't see the sign "
Also Ed Zimmerly entered the W.H. on his own in spite of the fact that
Harley had just previously told him to wait until just prior to 7 a.m. until W.H
doors were open and either W.H. personnel or inspection personnel were pres-
ent. He was then asked to ask them for some tape rather than take it on his
own
Because of this outright violation of company rules and regulations Ed Zim-
merly is being given a warning notice and a 5-day layoff beginning 10/26/63.
I feel that Ed is getting a break here because in view of his past performance
and record he should be terminated.
Conclusions as to Zimmerly's 5-day Layoff
There is no question, as admitted by Zimmerly, that he entered the warehouse
through the fire door; and I believe the evidence as a whole also establishes that he
knew it was a fire door and its purpose. It is quite possible that the fire seal was
not intact when he opened the door or that upon opening, it broke without any per-
ceptible resistance so that Zimmerly may not have known it had been sealed. In
this connection I specifically do not credit Bretsch's testimony which in my opinion
is not worthy of credence on its face I also reject the essentials of Roznos' testi-
mony as being of the same quality as Bretsch's.
The patently unreliable testimony of these two on this matter and the general
considerations of the record as a whole, which pointed to the conclusion I reached
in the matter of Zimmerly's 2-day layoff, help to convince me that his 5-day sus-
pension was also discriminatory within the meaning of Section 8(a)(3) of the Act.
While Zimmerly may have disobeyed an outstanding rule or orders here, the cir-
cumstances are such that one gets the impression that Respondent was straining to
chastise Zimmerly and in doing so, to coin a phrase, was making a mountain out of
a molehill. To charge Zimmerly, a rank-and-file employee, with prior knowledge of
a rule promulgated some 10 days before, and which had to be "dug out" from a
handwritten memorandum to supervisors,ls seems unduly harsh. And this is par-
ticularly true where it is evident that Zimmerly's immediate supervisor, Rogers,
apparently was also in violation of the Company's rules in the directions he had
given Zimmerly. Mather's instructions were that "nothing" [emphasis his] was to be
taken from the warehouse without his or Roznos' authorization. Nor is there any
indication that Rogers had followed the requirement of making out or having
Zimmerly make out a written requisition for the tape. As appears from Rogers'
testimony and his memorandum to Vice President Smiley, he told Zimmerly to ask
any warehouseman that might have come in for the necessary tape.
In this connection, the discrepancy between the testimony of Zimmerly and Rogers
where Zimmerly testified that he told Rogers where he got the tape is interesting.
According to Zimmerly's testimony, which I credit (and which of course would be
entirely against his interest), when he told Rogers where he got the tape, Rogers
told him he should not have done what he did and that it would be necessary to
report him for it. Yet Rogers, in his testimony, claimed not to have learned of
Zimmerly's having gone into the warehouse until the following night The only
explanation I can think of for this peculiar twist is that while Rogers felt compelled
to mention Zimmerly's transgression to him, he really did not feel it was of sufficient
importance to make an issue of it and therefore did not report it. But when some-
one else reported it, Rogers was in a position where he was reluctant to admit having
had knowledge of the matter.
2. Reidhauser
Frank Reidhauser was employed by Respondent on February 20, 1960 He had
had nothing to do with the preelection union campaign but joined the Union on
18 It would seem that any rule to be directed to the employees at large would have
been promulgated through some less restricted vehicle. If it was directed to Zimmerly
as one of Respondent's key personnel, the question immediately arises as to how Zimmerly
could have attained such status if his work was of the submarginal or unsatisfactory
quality that Mather claimed it had been.
FLAMBEAU PLASTICS CORPORATION 603
March 16 after it had been certified as the collective-bargaining agent of the employ-
ees. The day after he joined the Union, he was elected its vice president and
became a member of its bargaining committee.
In April 1963 Maintenance Supervisor William Schreiber left the Company's
employment and Reidhauser was offered the position by Vice President Smiley,
being urged to "accept right away." He asked for the weekend to think it over and
then refused the promotion telling the company officials, among other things, that
he did not feel qualified for the hydraulics part of the job and that he had turned
down a promotion to foreman in a previous employment and had quit that employer
2 weeks later.
According to Reidhauser's testimony, during the June 25 negotiation meeting
Norm Sauey, another vice president of Respondent, who was sitting next to Reid-
hauser leaned over to him and said, "Do you know you are No. 1 on our list?"
Reidhauser nodded his head in assent . Sauey said, "This does not worry you9"
Reidhauser said, "No, it doesn't worry me." Sauey said "If it was up to me, I would
fire you." In his testimony Sauey denied making such statements and Smiley testi-
fied that he had heard no such comments from Sauey although he had been sitting
on the other side of Sauey from Reidhauser.
As to this matter, Respondent in its brief states that "it is incredible that Sauey
during the course of a negotiation meeting would, out of the blue, lean over and
whisper into Reidhauser's ear that he would like to fire him." Actually, the state-
ment in question is perhaps not so "far out of the blue" as Respondent would have
me believe. It should be considered that not too long before this, Reidhauser had
turned down an offer of a position of maintenance supervisor. Some managements
feel that such a refusal definitely curtails the individual's value and desirability as
an employee. It may be that this was Sauey's view and that he was in a minority of
the management hierarchy on it.
Also to be considered in this connection is Edwin Sauey's statement to Supervisor
Schreiber right after the Union's election that "you know who the boys are now,
you will have to watch them"; and Schreiber's being ordered on April 27 by Edwin
and William Sauey to see that Hatfield and Reidhauser (who were president and
vice president, respectively, of the Union) did not take lunch breaks and rest periods
together (as they had apparently been doing) so as to prevent them from " discussing
union affairs or anything related to that."
Furthermore, as found above, it was on the very day (or the following day) that
Norm Sauey was alleged to have informed Reidhauser of his being No. 1 on
Respondent's list; that Respondent inaugurated the discriminatory change in its
maintenance procedures directed against the union officers and designed to prevent
their free movement about the plant, and to curtail their right to converse with their
fellow employees both of which were relatively unrestricted up to this time.
Considering the foregoing and the record as a whole, I do not think that the remarks
attributed to Sauey by Reidhauser are necessarily implausible or incredible The
fact that Smiley did not hear the remarks proves little or nothing. I am inclined to
credit Reidhauser in this instance.
On July 9 Reidhauser was notified by his then supervisor, Joe Ward, that the
third shift man had quit and that because Reidhauser had less seniority than the
second shift maintenance man Union President Hatfield, Reidhauser was being
transferred to the third shift which worked from 11 p.m. to 7 a m. This transfer
became a subject of controversy in the negotiations of July 10 The Company
explained that Reidhauser's transfer was necessary because of a shortage of main-
tenance men and the fact that the day shift had to be manned by Austin, a new
employee who was a supervisor trainee, and for that reason had to be on the day
shift. The Union contended that the Company should hire more men 19
About the middle of August, Roger Pettigrew was hired as the maintenance super-
visor This was the job that Reidhauser had been offered but had refused. Accord-
ing to Pettigrew's testimony, he introduced himself to Reidhauser on August 13 and
got a "cold reception." Reidhauser made no response to his introductory greeting
Pettigrew tried to draw him out with some questions and comments about the work.
Reidhauser indicated that the plant personnel "were generally a stupid lot ..." and
that he (Reidhauser) was the best of the maintenance people. Pettigrew further
testified that he "couldn't get to Frank at all ... couldn't get information from him
and it was difficult to work with him . . . couldn't get direct answers to any specific
problems."
19 Clearly, this transfer to the night shift was not discriminatory as alleged by the
General Counsel.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About his initial meeting with Pettigrew, Reidhauser testified that Foreman Joe
Ward introduced Pettigrew to him and that he shook hands and said to Pettigrew
"How do you do." Ward then left and Pettigrew said "Do you have a minute?"
Reidhauser said "I will check these two machines over for oil then I will have com-
pleted that and then I will be there in a minute." He then "walked by the two
machines, looked at the sight glass, reported to the maintenance department," and
then engaged in a conversation with Pettigrew. Pettigrew apparently told him "that
he was maintenance engineer" and asked about problems facing the maintenance
people. He outlined to Pettigrew what he considered to be the outstanding problems
in the department.
Here I am inclined to believe that there is some substance and some exaggeration
in both witnesses' versions. On the whole, though, the fact that Reidhauser saw fit
to perform some routine maintenance tasks before acceding to Pettigrew's request to
confer with him was hardly the most diplomatic way to start out with a new super-
visor and undoubtedly had an adverse initial personal effect on Pettigrew.
During the August 14 negotiation meeting, some remarks were made by Reidhauser
in connection with the use of certain employees for maintenance work. As to this,
Reidhauser testified as follows:
. Norm Sauey made some statement which I didn't quite understand I heard,
do you call these people men9 and Mr. Smiley says "qualified." And Norm
Sauey then asked me if I knew how many hours Joe Platt had worked last week.
I says I did not, that I was working 11 to 7. And he says get the facts before
you shoot off your mouth in here ... and I said that I was elected by the people
to come in here and talk and I could continue to do so. He says I am not
afraid of you, go ahead and talk. I will listen. And I says that I'm not afraid
of you, either, that I don't think you have enough brains to be afraid. Mr.
Hoebreckx made a comment that I did not catch, and the company left the room,
Schaefer left the room, the company returned, that's all.
Smiley's testimony about this matter was as follows:
It was during this conversation relative to the coverage of the maintenance work
by the maintenance personnel that led to a remark by Reidhauser to the effect
he couldn't understand why Joe Platt who was another man in the maintenance
department and who was concerned primarily in welding and iron work of this
nature, Joe Platt or this man Wilcox, who is still the maintenance trainee, why
they could not be assigned to do the maintenance work and he made the state-
ment,: "these men," could takeover this job and Mr. Norman Sauey replied,
"what men?", then Mr. Reidhauser stated,": "Let me get this straight, do you
mean to tell me that you are not calling these men. men? Let me write this down,
I want to be sure that I get this straight because I would like to quote you
exactly out in the plant. Now, let me get exactly what you mean by what you
said." Then you, Mr. Hoebreckx stated: "What Norm is talking about is quali-
fied men" Reidhauser replied to your remarks, "I'm not talking to you,
Hoebreckx, I am talking to Norm." Norm stated "Yes, I am talking to you,
too." Reidhauser then stated to Norm "You don't have enough brains to talk."
Smiley further testified that the committee then closed its files and left the room
with the statement "We refuse to continue to negotiate under conditions indicated by
this type of personal insult. We will meet with the committee when it can conduct
itself in a proper manner." Whatever was said, it is clear that Reidhauser attributed
a lack of brains to Norman Sauey.
On August 15 Pettigrew called Reidhauser's home about 5.30 regarding a problem
he had on press No. 14. Getting no answer, Pettigrew went out to Reidhauser's
house about 6 o'clock. There he asked Reidhauser to come in and help. Reidhauser
complained (and this was undenied in his testimony) about "getting called in at all
kinds of hours . . . this was just a big pain in the neck." Anyway, Reidhauser agreed
to come in and arrived at the plant about 6.50. Notwithstanding Reidhauser's
presence, they did not get the problem on press No. 14 solved according to Pettigrew's
testimony.2°
On August 16 Pettigrew was having trouble with press No. 12. Since he was trying
to find out as much as he could about the problems of Respondent and its equipment,
he asked Reidhauser about the press which Pettigrew had heard had a broken torpedo.
It should be noted here that Respondent makes no adverse claims regarding Reid-
hauser 's competence and of course its offer of a supervisory position to him attests to that
competence It further appears from the testimonv of his former supervisor. Schreiber,
that he considered Reidhauser to be "the most ieliable and trustworthy of all (his)
employees "
FLAMBEAU PLASTICS CORPORATION 605
Reidhauser said, "Well, it's broken." When Pettigrew asked him just how it was
broken, Reidhauser told Pettigrew that he "wouldn't understand it anyway." The
conversation ended there. This also stands undemed in the record and is credited.
According to Pettigrew's further testimony, on August 22 he had a report from
Austin, the day shift maintenance trainee, that Reidhauser had been talking to him
about how little work he had to do which disturbed Austin who claimed to be working
hard himself. The following night Pettigrew talked to Reidhauser about Austin's
report and reprimanded him, telling him that he knew there were standing orders of
work to be done. On this same occasion Pettigrew told Reidhauser that Hatfield was
going on vacation and that Austin had agreed to cover the maintenance work from
7 a.m. to 7 p.m. and asked Reidhauser if he would take the remaining half day.
Reidhauser said that he ". . . couldn't do it, he said he was sick, he had a health
problem." Pettigrew then suggested that he work his regular shift "and make himself
available on call from 7 p.m. to 11 p.m." Reidhauser refused to do this repeating that
he had a health problem and saying that he "wasn't going to sit next to a telephone
for 4 hours and wait for a call." Pettigrew then offered him the day shift. Reid-
hauser refused to consider this on the grounds that he had "just got used to this third
shift and he wasn't about to change to the first shift." Pettigrew then asked Reid-
hauser what his health problem was and was told that it was "none of his business." 21
The discussion apparently ended with Pettigrew's instructing Reidhauser to report at
7 p.m. the following day.
In this same conversation with Reidhauser, on the night of August 23, Pettigrew
had given Reidhauser specific orders that a certain valve was to be installed on press
No. 9. Respondent had sent someone down to O'Hare Field in Chicago to pick up
the valve that afternoon. It was needed for the purpose of getting a rush sample
job done. The press had been down that day for heatbands. Hatfield had started
installing them the latter part of his shift but had not finished. Pettigrew told
Reidhauser to forgo regular oiling and greasing, if necessary, to get the valve installed.
He also instructed him not to work on any other equipment unless "just absolutely
necessary." He said that production had to have the press and would be on his back
for it-the sample job was that important.
The following day when he got to work, Pettigrew found that the valve had not
been touched. Checking Reidhauser's nightly report, he found that Reidhauser had
performed only two jobs that were necessary and had spent a substantial amount of
time on routine or other unnecessary work. About 9:30 that morning Pettigrew
called Reidhauser at his home about the matter, saying he could see no reason why
the valve was not installed. Reidhauser claimed that he had been pretty busy and
Pettigrew retorted that his report had shown that he had engaged in much unnecessary
work. Accordingly, he told Reidhauser that he was being given a 5-day disciplinary
layoff and stated as the reasons therefor Reidhauser's not obeying orders, not cooperat-
ing in covering the maintenance operations for the ensuing week, refusing to work the
12-hour shift requested of him, and refusing to be on call for 4 hours as requested
of him 22 Reidhauser asked for a letter confirming the conversation which was
subsequently transmitted to him.
About the August 23 valve installation matter Reidhauser testified as follows-
In the same conversation with Pettigrew that Reidhauser had refused to work the
12-hour shift, Pettigrew had instructed him to finish the heatbands on press No. 9
that had been left over from Hatfield's shift which would enable the production
people to run a sample job. After that, he was to get the valve on "as soon as
possible." He started on the heatbands at 11 o'clock, the beginning of his shift.
He worked about a half hour on this when the production foreman informed them
that they were having trouble with the Lead-o-matic Tapper. Reidhauser asked if
the job that he was on "didn't have a high priorty." The foreman said that the
machine Reidhauser was working on had a high priority, that the parts out of it were
due out at 12 o'clock the next day, but the parts out of the Lead-o-matic Tapper were
due out at 7 o'clock the next morning. So Reidhauser proceeded to fix the Lead-
o-matic Tapper and returned to press No. 9 when he was informed that production
was having trouble with press No. 14. Reidhauser indicated that if he left press
^ The foregoing stands essentially undenied on the record Indeed, Reidhauser admitted
on cross-examination that he did not tell Pettigrew what was wrong with him, although
he testified that in the July 10 and 22 negotiation meetings he informed the Company
that he had trouble sleeping and had requested a 5 a.m quitting time for the next
meetings so as to be able to get more sleep, which requests were both granted
22 Although it does not appear in Pettigrew's testimony, Smiley testified that Pettigrew
conferred with him about Reidhauser's layoff as well as about his subsequent discharge.
Smiley, in effect, gave Pettigrew carte blanche in his handling of Reidhauser.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 9 any longer, the machine would have to be reheated to install the bands. The
foreman said to take a look at press No. 14 and if it did not take too long, to fix it.
Reidhauser was able to do the necessary work on press No. 14 and to complete the
heatbands on press No. 9 by 2 o'clock, at which time he turned the press back to
production with the information that he had completed the work on the heatbands
but stated that if they were not going to run the press, they should turn it back to
him because he had additional work to do. Rogers decided to run it for the purpose
of running the sample that Pettigrew had said they should run prior to putting on
the valve. After that he "performed work assigned [him] by the foreman, Harley
Rogers, and Robert Mather and routine work assigned [him] by Joe Ward." 23 He
never installed the valve in question. He had returned to press No. 9 several times
to see if it was done, but the last time he had checked at 6.30 a.m. it was still in
production.
About this matter, Robert Mather testified as follows: He recalled no involvement
with press No. 9. He was not consulted about whether it was to go back into
production. He had no knowledge about a "valve to go in that night." He knew
it had to go in sometime, but not that night, nor did he issue any instructions to
Rogers or Reidhauser as to that machine on that occasion. He further testified
that a machine down from maintenance can get back to production in either two
ways (1) the molding foreman can ask for it, or (2) maintenance tells him he can
have it.
Harley Rogers' testimony about this matter was as follows: Press No. 9 on the
third shift on August 24 operated 2 hours on a sample job. It had been down about
4 hours for heatbands and had been turned over to them by Reidhauser as being
repaired. He was not sure whether maintenance had been instructed to install
a valve on the press that day. Nor did he recall if they had trouble with a tapping
machine on that same shift, but he testified that there had been trouble with the
tapping machine on other occasions In any event, he did not tell Reidhauser that
if he did not fix the tapping machine he would have to shut down the press because
the press could operate without the tapping machine.
Here I am inclined again to credit Reidhauser's version with which there is no
substantial conflict in any event. It appears to me that had an adequate investigation
been made by Pettigrew, and the results evaluated in an objective manner, little
fault could have been found with Reidhauser's performance that night. But obviously
Pettigrew did not make such an investigation. He had ordered the valve installed
in explicit terms and found the job not done. Looking at Reidhauser's work report
and finding that he had performed some nonpriority work (which Pettigrew had
told him to abstain from in order to get the valve job done), Pettigrew reached the
conclusion that Reidhauser had deliberately disobeyed his orders without justification.
On September 9 Pettigrew had a conversation with Reidhauser concerning Hat-
field's impending absence for the purpose of attending a union convention. Pettigrew
told Reidhauser that Austin had agreed to work a 12-hour shift and asked if he would
agree to be on call an extra 4 hours a day. Reidhauser again refused, saying that
he was a sick man and that he could not work more than 8 hours. Reidhauser then
suggested that "if this could be done on days" he could take care of it. Pettigrew
said that he did not want a shift change. Reidhauser said he would let him know
at a later date what he could do.24
13A handwritten communication from Ward to Reidhauser , undated, showed the
following:
Frank
Please see that all
machines are greased
and oiled nightly
Thanks
Joe
Also safety switch checked nightly.
Reidhauser testified that he had asked Pettigrew on several occasions (except the one
in question here) if he "wanted to retract" Ward's foregoing orders but that Pettigrew
declined to do so.
u This testimony, too, is substantially undenied by Reidhauser. On cross-examination,
he testified that when Pettigrew asked him what was wrong with him that he could
not work overtime, he replied that he would furnish a doctor's statement about how he
could work and that whatever the doctor's statement was he would abide by it
FLAMBEAU PLASTICS CORPORATION 607
According to Pettigrew's further credited testimony, the following night he again
asked Reidhauser about the extra work and Reidhauser gave him, or showed, the
following statement from a Doctor Hannan.
To whom it may concern: For medical reasons I do not feel that Frank Reid-
hauser should work more than 8 hours a day.
K. D. L. HANNAN, M.D.
9/7/63
Pettigrew wanted to keep the slip for the company files and Reidhauser refused
saying, "I paid a lot of money for that slip and I am going to keep possession of
it " Then he said to Pettigrew, "You always come to us the last minute as far as
what you want us to do, what is wrong with me letting you know at the last minute
as to when I can work." Reidhauser then said he would let Pettigrew know by the
13th of the month, for sure, whether he could help out.
On September 12 Pettigrew again asked Reidhauser for the doctor's slip. Reid-
hauser said that he did not have it on him but that he would not give it to him
anyway; that if he did work overtime and anything happened to him, he intended
"to use that doctor's slip to hold the Company liable ....' This was undenied
by Reidhauser.
Pettigrew was not in the plant on the 13th and received no word from Reidhauser.
The following day Reidhauser still would not make a definite commitment about the
extra work saying "he would come in if he felt he could." At this time Pettigrew
told Reidhauser that he was to take a physical examination at the Company' s expense.
Reidhauser asked if he would be paid for the time involved and Pettigrew said that
he did not think so.
On September 17, according to Pettigrew's further testimony, the Company wanted
some temporary wiring for the production department. This was right in Reidhauser's
line so he called Reidhauser at home. Reidhauser said he could not come in at 7
but he agreed to come in at 8 o'clock. When Pettigrew got to the plant about 10
minutes to 8, Reidhauser was already there, having arrived at 7:30. Pettigrew took
him over to the finishing department and proceeded to explain what was needed in
the electrical service which was going to be on a permanent basis as far as they could
go with the balance on a temporary basis just to get the electricity in there for the
time being. Reidhauser informed Pettigrew that this type of installation "wasn't
code" and he would not have anything to do with it. He "would not be responsible
for hanging a bunch of wires up and a bunch of plugs, around the plant." When
Pettigrew explained that it was "strictly temporary", Reidhauser said that he "under-
stood that this temporary stuff stays in a plant forever and he wouldn't want any part
of it." Since Pettigrew "wasn't about to argue with Mr. Reidhauser" he said, "Look,
Mr. Reidhauser, make a material list for a permanent setup and leave that list on
my desk and we will get the material in here as soon as possible."
About this matter Reidhauser testified as follows: About 6 o'clock that evening
Pettigrew called him telling him that they were "in an awful mess" and that they
would "like" him to report at 7 o'clock. Reidhauser asked if he "would be able to
return home to take [his] medication before starting work at 11 o'clock." 25 Pettigrew
informed him that he felt he would have to work straight through. Reidhauser
informed Pettigrew that he could not make it by 7 o'clock, but that he would be there
by 8. Nevertheless he reported about 7:25 that evening. When he got there, he met
Foreman Leo Schutz and asked if he knew of any trouble. Schutz did not. Reid-
hauser went to the maintenance office and waited for Pettigrew who arrived about
7:50. Pettigrew said that he thought Reidhauser could not make it until 8 o'clock.
Reidhauser replied that his call sounded so urgent that he made it by 7:30. They
then left the maintenance office and went to the finishing department where Pettigrew
told Reidhauser that what he wanted him to do that night was to "make a list of some
material that we would have to order in order to do a job." They then went to
another department where Reidhauser was instructed regarding the removal of some
instruments that night in connection with a press after it was down. This was sup-
posed to be done on his regular shift. Reidhauser did not open his toolbox or
perform any work that night prior to his regular shift and never learned what the
"awful mess" of emergency work was that he had been called in for. It was on this
occasion that Pettigrew gave him a letter with the Company 's request that he report
to its doctor for a physical examination . Here I am inclined to, and do, credit
Pettigrew.
251t appears that Reidhauser's medication was a pill he had to take.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 25, pursuant to the Company's request, Reidhauser was examined
by Dr. John Siebert. According to Dr. Siebert's undenied and credited testimony,=6
Reidhauser was "not too freefiowing" with respect to his medical history. The
doctor had seen Reidhauser in 1960 as a patient and Reidhauser questioned the
necessity for repeating a history that he felt was already on the doctor's records.
Reidhauser's attitude was "rather belligerent." He took the position that if the
doctor wanted to find out anything, he "was free to examine him and come to [his]
own conclusions."
The doctor did a complete physical and within the limits of the information he
got at the time, found nothing wrong with Reidhauser except that he was somewhat
overweight and complained about not being able to sleep. In reporting the results
of Reidhauser's examination to Smiley, the doctor indicated that this "meeting
was not wholly satisfactory because of the failure to obtain a proper history" but
that from what he could determine by his examination Reidhauser "was in good
health."
In early October Respondent inaugrated a card-reporting system for its maintenance
people. A separate card was to be made out by the maintenance man for each job
or duty performed except those of trivial or minor significance. The system was
designed to give Pettigrew written information as to what the men were doing on
the shift. It was to show the emergency downtime hours for purposes of comparison
with production records, information as to the cause of downtime, and information
as to the parts used for the purpose of establishing an inventory. According to
Pettigrew's testimony he took an hour explaining the reason for the cards to Reid-
hauser and went over the items listed thereon, specifically one at a time , with him so
he would know the reason for the questions and the information asked. He told
Reidhauser that the cards should be filled out in their entirety with the exception
of the date which Pettigrew said he did not have to put in "if he didn't want to "
Analyzing the first cards that Reidhauser turned in it appears that card No. 12
had the word "oil" written in the space for the machine number. Pettigrew testified
that he knew that this meant that Reidhauser had taken care of the scheduled oiling
job but that no one else would know that. Card No. 14 showed one word "talk"
with the time being 12:50. Pettigrew testified that he understood this to have repre-
sented the hour that he talked to Reidhauser in explaining the purposes of the
cards but that "nobody else would know that." On the basis of these cards of
Reidhauser's for October 4, Pettigrew "was satisfied that he misunderstood [Pet-
tigrew's] directions. [He] couldn't conceive where, but they certainly weren't filled
out the way [he] had intended them to be filled out." The following night Pettigrew
asked Reidhauser "if he understood how to fill these cards out" and "asked him to
do a better job of it," telling him that the way he filled them out did not "relate
any information" the way he "would like to have it." He told Reidhauser that Hat-
field and Austin were doing "a fine job of filling the cards out," and believed he
even showed Reidhauser some of theirs but was not sure. Reidhauser told Pettigrew,
"I don't see any purpose in them, I don't see that they are any good." According to
Pettigrew's further testimony, 3 or 4 days later he again talked to Reidhauser about
his continued failure to fill out the cards properly.
Reidhauser testified that he never received any reprimand about the way he was
filling out the job cards and that the first knowledge he had of any dissatisfaction,
on the part of the Company, regarding his handling of them was when he was
informed of his discharge on October 16.
Here I believe that Pettigrew's testimony that he spent an hour explaining these
cards to Reidhauser is incredible on its face. I credit Reidhauser's testimony that
he was never reprimanded for the way he was filling out the cards prior to the
occasion of his discharge. In so finding, however, I do not mean to be understood
as deciding that Reidhauser's performance in this respect was without blemish. Not-
withstanding that it would appear from Pettigrew's analysis of the various cards
that he understood Reidhauser's cryptic notations on them (as Reidhauser had
testified he would), an examination of Reidhauser's cards particularly in comparison
with cards of the other maintenance men shows a cavalier approach to them which
comports with Pettigrew's testimony (denied by Reidhauser) that Reidhauser did
not "see any purpose in them ... [didn't] see that they are any good."
According to Pettigrew's further testimony, about 5 in the morning of October 16,
Production Supervisor Rogers had called him about some problem and mentioned
that he had some trouble with press No. 9. Pettigrew asked to talk to Reidhauser
who came to the telephone. After some preliminary comments back and forth about
the matter, Pettigrew "suggested some methods ... he use to determine" whether it
26 Indeed, the general tenor of the doctor's testimony was admitted on cross-examination
by Reidhauser.
FLAMBEAU PLASTICS CORPORATION 609
was a pump. He wanted Reidhauser "to get a gauge in the line next to the pump
to see if the pump had any pressure." The conversation ended with Pettigrew's
instructions that Reidhauser call him back and let him "know what his findings were "
At 6 a.m. Pettigrew again called Reidhauser to find out "how he was doing " Reid-
hauser said that he thought the high-pressure pump was bad but was not sure. Pet-
tigrew suggested that Reidhauser "block off the pressure side of the pump with the
valve" for the purpose of making a positive test as to whether it was the pump or not
Reidhauser thought that this might be dangerous and Pettigrew told him "to start
with the valve open, it's not dangerous, close it up, block it." 27 He told Reidhauser
"to put the valve in, leave it open, jog the machine, in jogging it you can't get hurt."
Pettigrew further told Reidhauser to report his findings to him before he left the
plant.
Pettigrew arrived at the plant that morning about 7:10. He had had no word from
Reidhauser since his 6 o'clock telephone conversation with him. Reidhauser had
already left the plant and the first-shift man had called in and said that he was ill
and would not be in. Pettigrew could find no information on the machine anywhere.
Reidhauser's card was not filled out and no one knew a thing about it. As a result
Pettigrew "had to go into the machine" and determine for himself what was wrong.
About 9 o'clock that evening Pettigrew called Reidhauser at his home and told
him that he had decided to terminate Reidhauser's employment for his consistently
refusing to obey orders and for his failure to call him that morning or leave informa-
tion about the problem on press No. 9. Reidhauser said that he was sorry that he
had not called. He said "that as of that moment he would work overtime anytime,
no limitations or restrictions and that on his next visit to the doctor, he would tell
his doctor that he felt fine and that he could work anytime and he said he would stand
on his head, he would wiggle his ears, he'd do anything, he didn't want to get fired."
Pettigrew told Reidhauser that he "thought it was a little late to change his attitude
and that [the] decision stood." Reidhauser replied that he was going "to fight this
thing to the full extent of the law, he was going to fight right to the top and he was
going to be back," he said "I'll be back."
As to the October 16 matter, there is no essential conflict in Reidhauser's and
Pettigrew's version as to the two telephone conversations, except that Reidhauser
denied that he had any instructions in the second one to call Pettigrew back. He
also testified that he knew of no procedure which would have required him to remain
on duty until the next shift maintenance man arrived, pointing out that on three or
four previous occasions when Austin, the maintenance man, had failed to arrive on
time, he just left the plant. Nevertheless, Reidhauser admitted on cross-examination
that on occasion when his shift ended with a machine down, if he could finish in a
few minutes he would do so, otherwise he would make a report on it "to the mainte-
nance supervisor or the man who was relieving him." That this was a standard
practice regarding the transfer of any outstanding problem from shift to shift is clearly
established by the record. Thus, it appears that whether or not Pettigrew had told
Reidhauser to call him back in the second telephone conversation is really immaterial
since the established practice was to make a report in such matters and Reidhauser
disregarded his obligation to do so.
Conclusions re Reidhauser's Alleged Discrimination
Notwithstanding the discrimination by Respondent against Zimmerly and the pos-
sible application to Reidhauser's situation of the factors I consider probative regard-
ing Zimmerly, I am unable to say that the General Counsel has proved the discrimina-
tion against Reidhauser by the necessary preponderance of the evidence. All I have
is a strong suspicion or surmise that Reidhauser's union position and support played
a part in his layoff and subsequent discharge. But such a basis is not adequate to
support a finding of unfair labor practices. Punch and Judy Toys, Inc., of California,
85 NLRB 499; Wausau Concrete Company, Inc., 142 NLRB 33, 35.
I am also aware and have found that some of the matters relied upon by Respond-
ent as cause for its action against Reidhauser were either exaggerated or unjustly
applied, as for example, the matter of the job cards and the installation of the valve
on press No. 9. But whether justly applied or not, I am convinced that they had their
foundation in a personal conflict between Reidhauser and Pettigrew Accordingly,
rightly or wrongly, as Reidhauser's superior, Pettigrew could well have been con-
cerned about Reidhauser's transgressions or fancied transgressions quite apart from
n Pettigrew admitted on the stand that the operation could be dangerous both to the
machine and to the man.
78 3-13 3-6 6-v o f 151-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any connection Reidhauser had with the Union. And in this context it is easy enough
to understand why Pettigrew might not have gone out of his way to investigate or
weigh the merits of any overt or apparent transgression by Reidhauser.
In addition to Reidhauser's fancied derelictions, of course, the record clearly
establishes some real and substantial shortcomings on his part as an employee. His
failure to cooperate on the manning of the maintenance work in the absence of Hat-
field 28 (particularly when Hatfield was scheduled to attend the union convention)
and the surrounding circumstances I believe provided adequate ground to justify
his 5-day disciplinary suspension.
After that suspension, it seems to me, Reidhauser should have been aware of the
difficult position he was in vis-a-vis his relationship with Pettigrew and how it might
affect his job But if he was, his action regarding the faulty pump on press No. 9
that gave rise to his discharge belies it. There is no doubt that he was obligated to
make a report to someone about the status of the trouble before he left.29 This
he did not do. I am convinced that he knew better which makes his action, partic-
ularly in view of his precarious position, quite indefensible. In the last analysis,
considering that Reidhauser had turned down an offer of a supervisory position, I
am not at all sure that top management, being aware of the personal conflict between
Reidhauser and the maintenance supervisor it had selected for the job that Reidhauser
had spurned, would have kept him on in view of what occurred, whether or not he
played a part in the Union. Accordingly, I am unable to find that Respondent dis-
criminated against Reidhauser within the meaning of Section 8(a)(3) of the Act.
D. The alleged refusal to bargain
As already indicated, between March 28, 1963, and February 27, 1964, 13 meetings
took place between representatives of the Company and the Union in which the terms
of a possible collective-bargaining agreement were discussed. Nothing of any con-
sequence was agreed upon. The Company was opposed to any form of union security
or checkoff, compulsory arbitration, or the application of seniority unfettered by the
exercise of company discretion. It also took the position that it would not consider
granting a general wage increase 30 or any other benefit involving a "monetary value."
In addition to these things, most of which the Company had designated as strike
issues, there were conflicts between the parties regarding break periods, overtime
and holiday pay, superseniority for union officials, grievance procedures, and mater-
nity leave Under some of the Company's proposals, the Union would have been
required to relinquish rights it had as a matter of law.31
During the course of the meetings Respondent supplied, at the Union's request,
various information which included: (1) a list of all employees, their classifications
and rates of pay; (2) a copy of the Company's job evaluation plan; (3) a later
list of all employees including new hires, their classifications and rates; (4) a seniority
list; and (5) a description of its reclassification and merit procedures.
Conclusions as to the Refusals To Bargain
The General Counsel contends that the record as a whole supports his allegation
that Respondent failed to bargain with the Union in good faith, and thus violated
Section 8(a)(5) of the Act. I agree for the reasons that will appear.
An employer violates Section 8(a)(5) of the Act if he fails to bargain in good
faith with his employees' bargaining representative. Section 8(d) of the Act describes
the obligations and rights of collective bargaining, defining the bargaining obligation
as the duty to "meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the negotiation of
28 It appears from former Supervisor Schreiber's testimony that when Reidhauser was
hired (by Schreiber), all the maintenance men were on call either "regular scheduled
calls or . . . emergency calls." Reidhauser was informed at that time that this was
part of the maintenance man's job-being on call on off-hours
2' Whether or not Pettigrew actually had to himself determine what the trouble was,
as he testified, or whether it was not resolved until some days later by Hatfield, as he
testified, is really irrelevant to the basic issue here
30 On May 5 the Company put into effect a general wage increase of 4 cents an hour,
the circumstances and significance of which will be set forth below
31 For instance, under the Company's proposal, the Union and its members would
not have been able to engage in any union activity whatsoever on company premises in
their free time. Also the Union would have had to relinquish any right to bargain about
merit increases.
FLAMBEAU PLASTICS CORPORATION 611
an agreement ...." Although this obligation does not "compel either party to agree
to a proposal or require the making of a concession," Section 8(d), see also N L.R.B.
v. American National Insurance Co., 343 U.S. 395, 402, 404, it does contemplate a
willingness to enter the discussions "with an open mind and purpose to reach an
agreement consistent with the respective rights of the parties," L.L. Mature Transport
Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5), and it presupposes that the parties
will bargain "with an open and fair mind and a sincere purpose to find a basis for an
agreement touching wages and hours and conditions of labor." Globe Cotton Mills
v. N.L.R.B., 103 F. 2d 91, 94 (C.A. 5). Simply entering "upon a sterile discussion
of union-management differences is not sufficient." N.L.R B. v. American National
Insurance Co., 343 U.S. 395, 402. Essentially, then, the "ultimate issue whether the
Company conducted its bargaining negotiations in good faith involves a finding of
motive or state of mind which can only be inferred from circumstantial evidence."
N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140
(C.A. 1), cert. denied 346 U.S. 887.
Thus the question here is whether substantial evidence supports the General
Counsel's contention that Respondent, although meeting and conferring with the
Union on 13 occasions over an 11-month period, merely went through the form of
collective bargaining without a sincere purpose of entering into an agreement. I find
that it does.
The good faith of Respondent's bargaining attitude here is immediately colored by
its demonstrated opposition to the Union as reflected in its coercive efforts to curtail
the statutory rights of the Union and of its employees during the time that it was sup-
posed to be sincerely attempting to reach a bargaining relationship with the Union.
This inconsistency of attitudes is particularly pointed when it is considered that the
direct responsibility for much of Respondent's illegal conduct was that of top manage-
ment, one of whose members was on Respondent's barganiing committee. It is one
thing during negotiations for such coercive conduct to be engaged in by the lower
ranks of management where there may be reasons to question whether the conduct
truly reflects the attitude of top management, notwithstanding that it may legally be
charged therewith. It is another matter, it seems to me, where as here, the illegal
conduct actually originates with, and is promulgated by, top management itself. Such
an attitude certainly has a significant bearing on the state of mind with which Respond-
ent entered upon and pursued its collective-bargaining obligation.
In this connection, of course, Respondent's illegal discrimination against its employ-
ees also must be considered. While there is no direct connection shown between the
discrimination against Zimmerly and the Saueys, there certainly is a unity of purpose
shown between the Sauey's attempts to restrict the rights of Reidhauser and Hatfield
to engage in union activities on their free time and the discriminatory work rules
directed at the maintenance department of which Reidhauser and Hatfield were the
kingpins. In any event, there is other substantial direct evidence of Respondent's
failure to bargain in good faith.
On April 27, 1963, Respondent posted on the employees' bulletin board a copy of a
letter of the same date addressed to the Union's representative, Schaefer, in Milwaukee
as follows
Since 1950 it has always been the policy of Flambeau Plastics Corporation to
regularly examine its wage scale to determine whether or not an increase in wage
rates would be justified at the time of the particular review. As the result of
these periodic reviews, the wage rates of Flambeau employees were increased
from time to time.
In April of 1959 Flambeau instituted its formal "Wage and Job Evaluation
Program" which set up our present system of job description, labor grades and
accompanying wage ranges. Among other things, the establishment of this new
system provided for the following:
1. Annual review of Flambeau's wage scale during the month of April of
year, and,
2. The putting into effect of any increase which the April review might
indicate during the month of May following.
Pursuant to the above and starting with April 1960, Flambeau had regularly
made its annual wage review in April of each year and awarded any increase
determined possibly in the May next following. As a result of this regular prac-
tice, "across the board" increases were made in May 1960 and May of 1962.
We have just completed our 1963 annual April wage review and the result of
such review, we are posing to institute a 4¢ an hour "across the board" increase
to all hourly waged earners effective the pay period commencing May 5, 1963.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The basis for our proposed increase is as follows •
1. Such annual wage review and accompanying increase is part of a standard
practice instituted by this company several years ago and pact of what we con-
sidered to be our obligation to our people
2. Judging from the fact that to date Flambeau has not heard from the bar-
gaining committee relative to any contract demands, even though it is now
almost 2 months since the union was certified as collective bargaining agent by
the NLRB, we estimate that negotiations for a contract between the union and
Flambeau could well last into a period of many months.
3. This being true. Flambeau does not believe it fair to its employees to
require them to wait for this increase (and thereby be denied of its enjoyment)
during the long months of negotiations that well lie ahead.
Thank you.
In the May 2 issue of the company publication "Firebrand's," which is distributed
to the employees, the Company printed the foregoing letter with the following
comment:
The following letter was sent via certified mail to Mr. Robert Schaefer, repre-
sentative for the Allied Industrial Workers of America, Milwaukee, Wisconsin,
on April 27, 1963. As you will recall, Mr. Schaefer heads up the collective
bargaining committee of the local union with Virgil Hatfield, Frank Reidhauser,
and William McIntyre completing the balance of membership on this same com-
mittee. This letter is reproduced below without comment and for information
to Firebrand's readers.
By letter dated May 3, 1963, Union Representative Robert Schaefer sent the follow-
ing communication to the Company:
I am in receipt of your letter under the date of April 27, 1963, whereby you
have informed me of the history and a review of wage scales of Flambeau.
This will serve as notice to you that Local 380, AIW-AFL-CIO is hereby
concurring in the 4¢ increase referred to in your letter. We do, however, wish to
state that we had high hopes that this increase would be greater than 4{ an hour,
but we are sure that the 4¢ per hour increase will be welcomed by the employees
and will contribute to a better standard of living for the employees and their
families, and will help them meet their bills on pay day.
We want it clearly understood, however, that in concurring with this 40
increase, it will in no way prejudice the Union's position in future contract
negotiations.
In closing, I want to thank you for your fine cooperation and look forward to
the same cooperation in the future.
In its May 16 issue of "Firebrand's," the Company headlined the wage increase,
effective May 5, and made the following comment:
In the last issue of "Firebrand's" proposal for a $.04 per hour increase
"across the board" to all hourly paid employees was announced. According to
that proposal the increase is now in effect commencing with the pay period
May 5, 1963.
Referring back to the issue of "Firebrand's" in which this proposed increase
was announced, your attention again called to the fact that such increase by the
company is part of its annual wage review, promised the employees in 1959, to
be a yearly affair occurring in the month of April each year with any increase
given as a result of such review to take effect the next May following such review.
When Respondent posted to its employees the copy of its letter to the Union it was,
in effect, bypassing the Union as the duly elected bargaining agent of its employees
and making its proposal directly to them. This it was not legally permitted to do,
Tidewater Express Lines, Inc, 142 NLRB 1111; N.L.R B. v. Berme Katz, etc., d/b/a
Williamsburg Steel Pioducts Co., 369 U.S. 736, and showed its purpose to circumvent
the Union and is indicative of its failure to bargain in good faith ,12 Whatever
acquiescence the Union thereafter gave to the Company's proposal, of course, is
irrelevant.
82 Further evidence of Respondent's purpose to circumvent and discredit the Union is
implicit, I believe, in the fact that nowhere in the comments it published in the May 16
issue of "Firebrand's" about the raise, did it make any mention of the Unions acquiescence
and related comments thereto, the net effect of which was to avoid any possibility of
the Union's getting even a crumb of credit out of the situation.
FLAMBEAU PLASTICS CORPORATION 613
The Merit Raises and Reclassifications
From the time the Union was certified up to February 29, 1964, Respondent
granted some 80 merit increases and 139 reclassification increases to its employees.
These increases became the subject of controversy in the negotiation meeting. As a
result of them the Union requested information to determine upon what basis increases
were being given. The Company produced a copy of its "Job Evaluation Program,"
with the comment that it was used "for guide purposes only." The Company's posi-
tion was also made clear that it was its understanding that it was not only entitled but
obligated, without reference to the Union, to pursue the wage policy it had adopted
before the Union was certified.33 In this connection, it asked the union negotiators if
they wanted the Company to discontinue making these individual determinations. It
asked the Union to put into writing any request it had in this respect so that the
Company could determine its legal position on the matter.
Whether or not the Company failed to produce all of the information requested by
the Union pertaining to the granting of individual wage increases 34 is unnecessary to
decide since an examination of the Company's job evaluation program, as revised,
shows that it was no more than a time schedule with virtually complete discretion
vested in the Company as to the granting of individual adjustments. There being
nothing automatic about its wage program, it was not entitled to continue granting
such increases without consultation with the Union. As stated by the Supreme Court
in the Katz case, supra,
Whatever might be the case as to so-called "merit raises" which are in fact simply
automatic increases to which the employer has already committed himself, the
raises here in question were in no sense automatic, but were informed by a large
measure of discretion. There simply is no way in such case for a union to know
whether or not there has been a substantial departure from past practice, and
therefore the union may properly insist that the company negotiate as to the
procedures and criteria for determining such increases.
Accordingly, I find that in addition to its general wage increase there is further
evidence of Respondent's refusal to bargain in good faith in the policy it was pursuing
of granting merit and reclassification increases to its employees during the negotiations
without consultation with the Union thereon33
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection
with its operations described in section I, above, have a close, intimate, and sub-
stantial 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist
therefrom, and that it take certain affirmative action designed to effectuate the
policies of the Act. I shall recommend that Respondent, upon request, be ordered
to bargain with the Union concerning rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding is reached, embody such under-
standing in a signed agreement. I shall also recommend that Respondent make whole
Edwin Zimmerly the loss of earnings he suffered because of Respondent's discrimina-
tion against him.
33 In this respect the Company was not quite accurate. A month after the certifica-
tion the Company had made significant changes in its job evaluation program. These
changes were unilaterally made and as further evidence of Respondent's refusal to bargain
Si The testimony is somewhat in conflict on this point but it would appear that when
the Union wanted to know what factors were used in determining wage increases other
than those referred to in the job evaluation program, it was informed that economic
considerations such as local conditions or the condition of the plastics industry were
relied upon.
3'I reject the General Counsel ' s contention that the evidence supports a finding that
an additional indicia of Respondent 's failure to bargain in good faith was its delay and
stalling of the negotiations . I further deem it unnecessary to decide whether Respond-
ent's admitted failure to supply the Union with information as to what , if any, dividend
the Company may have realized out of its employee insurance program was indicative
of bad faith In view of Smiley ' s testimony that its failure was purely inadvertent
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The unfair labor practices committed by Respondent involve conduct in derogation
of the principles of good-faith collective bargaining. The inference is well war-
ranted that Respondent maintains an attitude of opposition to the purposes of the
Act with respect to the protection of employee rights in general. It will accordingly
be recommended that Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Flambeau Plastics Corporation is, and at all times material herein has been, an
employer within the meaning of Section 2(2) of the Act.
2. Local 380, International Union, Allied Industrial Workers of America, AFL-
CIO, is, and at all times material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, iestrainmg, and coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating against its employees as found above, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
5. By failing and refusing to bargain in good faith with the Union as the representa-
tive of all its production and maintenance employees and warehouse and shipping
employees, including truckdrivers and janitor, in its Baraboo, Wisconsin, plant, but
excluding office employees, engineering employees, guards, professional employees,
and supervisors as defined in the Act, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that the Respondent, Flambeau
Plastics Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Local 380, International
Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organi-
zation, by giving them discriminatory layoffs or working rules, or in any other manner
discriminating against any individual in regard to his hire, tenure of employment, or
any term or condition of employment, except as authorized in Section 8(a)(3) of
the Act.
(b) Imposing an illegal no-solicitation rule.
(c) Retusing to bargain collectively with Local 380, International Union, Allied
Industrial Workers of America, AFL-CIO, as the exclusive representative of all its
employees in the appropriate unit with respect to rate of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed them in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a) (3) of
the National Labor Relations Act, as amended.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make Edwin Zimmerly whole for any loss of pay he may have suffered by
reason of Respondent's discrimination against him in the manner set forth in the
section entitled "The Remedy."
(b) Upon request, bargain collectively with Local 380. International Union, Allied
Industrial Workers of America, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit, and embody any understanding reached in a signed
contract.
(c) Post at its plant in Baraboo, Wisconsin, copies of the attached notice marked
"Appendix." 36 Copies of said notice, to be furnished by the Regional Director for
a6 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court
of Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order".
FLAMBEAU PLASTICS CORPORATION 615
Region 18 , shall, after being duly signed by an authorized representative of the
Respondent , be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 18, in writing , within 20 days from
the receipt of this Decision and Recommended Order, what steps it has taken to
comply herewith 37
It is further recommended that unless on or before 20 days from the receipt of this
Decision and Recommended Order the Respondent notifies the aforesaid Regional
Director , in writing , that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an Order requiring it to take such action
17 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 18, in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT discourage membership in Local 380 , International Union,
Allied Industrial Workers of America, AFL-CIO, or in any other labor organiza-
tion , by imposing up our employees discriminatory layoffs or working conditions,
or in any other manner discriminating against them in regard to their hire or
tenure of employment , or any term or condition of employment.
WE WILL NOT refuse to bargain collectively with the aforesaid Union as the
exclusive bargaining representative of all our production and maintenance
employees and warehouse and shipping employees , including truckdrivers and
janitors, but excluding office employees , engineering employees , guards, profes-
sional employees , and supervisors , by granting general or individual wage
increases without prior notice to, and discussion with, said Union.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form, j oin, or assist
the aforesaid union or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized by the Act.
WE WILL make whole Edwin Zimmerly for any loss of pay he may have
suffered by reason of our discrimination against him.
WE WILL, upon request , meet and bargain collectively with Local 380, Inter-
national Union , Allied Industrial Workers of America, AFL-CIO, as the
exclusive bargaining representative of all our employees in the above -described
appropriate bargaining unit, concerning rates of pay, wages , hours of employ-
ment, and other terms and conditions of employment , and if an understanding is
reached , embody such understanding in a signed agreement.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of the foresaid union or any other labor organization.
FLAMBEAU PLASTICS CORPORATION,
Employer.
Dated---- --------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 316
Federal Building, 110 South Fourth Street , Minneapolis , Minnesota , Telephone No
334-2611, if they have any question concerning this notice or compliance with its
provisions.