Frantz & Co., Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1965

153 N.L.R.B. 1322 (N.L.R.B. 1965)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ventured into the issue of the alleged threat to sell the business, with this witness,
by first establishing that she had heard the testimony concerning the "For Sale"
sign . He then asked her this question: "Prior to this hearing, had you heard any-
thing about that "For Sale" sign? The witness answered "just that a girl told me
that the building was for sale and that is all I know about it " Counsel for the Gen-
eral Counsel pursued this subject no longer with this witness, and called no other
witnesses to testify on the subject of the "For Sale" signs.
The allegation of the complaint on this issue is broad enough to admit evidence
of unlawful interference and coercion with respect to all of Respondent's employees-
those working at the Denton plant and also the plant at Pilot Point. At the plant
where the building being offered for sale was situated, Denton, the Union had just
won an election. The coercive effect of a "For Sale" sign on one building in a plant
consisting of several buildings, with no evidence of any kind of any rumor, belief,
or understanding that the business would be sold, is negligible if not completely
nonexistent. There is nothing whatever in the record to indicate that the employees
at the other plant, Pilot Point, had any knowledge that the building was being
offered for sale.
I find and conclude that Respondent's employees were not restrained or coerced
or their rights interfered with in anyway by the "For Sale" signs.
Respondent's Offer of Proof and Motion to Reopen Hearing
Counsel for Respondent objected strenuously to proceeding to hearing on the
allegations of the amended complaint, filed on the day of the hearing, respecting the
wage increase and the placing of "For Sale" signs on the building at the Denton plant.
The ground for his motion for continuance, as the hearing opened, was that Respond-
ent had been denied due process in being called upon to defend allegations with
scarcely any notice, or time to prepare its defense. After full consultation between
me and all counsel, the motion for postponement was denied. As a result, how-
ever, of the discussion it was agreed that Respondent should submit as an "offer
of proof" the evidence that it would introduce on these two issues if, as counsel
contended, time had permitted proper preparation of the defense. The record was
held open for this purpose only.
Pursuant to such understanding, and after the hearing closed, Respondent submitted
to the parties and to me a comprehensive offer, culminating in a motion to reopen
the hearing to enable Respondent to introduce the evidence set forth in the offer
of proof. The opposition of both counsel for the General Counsel and the Charg-
ing Party were also received and, together with the offer of proof, were duly con-
sidered. The offer of proof and motion to reopen the hearing were, by separate
order, denied, and the offer and the papers in opposition were made part of the
record as Trial Examiner's exhibits. While Respondent reasserts in the brief that
it is a denial of due process to refuse to grant the motion for continuance on the
issues raised by the amended charge and complaint, and to reject the offer of
proof and to refuse to reopen the hearing as to such issues, Respondent suffers no
prejudice from such rulings, even if erroneous, in view of the recommended dismissal
of the complaint in its entirety; and in the main, the proffered evidence was cumulative
to that admitted.
For all the reasons herembefore set forth, it is recommended that the complaint
be dismissed.
Frantz & Co., Inc. and Chauffeurs , Teamsters and Helpers "Gen-
eral" Local 200, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America . Case No.
30-CA-138. July 6,1965
DECISION AND ORDER
On May 5, 1965 , Trial Examiner Frederick U. Reel issued his Deci-
sion in the above -entitled proceeding , finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
153 NLRB No. 113.
FRANTZ & CO., INC. 1323
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
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 made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and brief, and the entire record in this case, 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 National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , and orders that
Respondent Frantz & Co ., Inc., Milwaukee , Wisconsin, its officers,
agents, successors , and assigns , shall take the action set forth in the
Trial Examiner 's Recommended Orders
i The telephone number for Region 30, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 272-3866.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Frederick U. Reel at Milwaukee,
Wisconsin, on March 25, 1965, pursuant to a charge filed November 19, 1964, and
a complaint issued January 27, 1965,1 presents questions whether Respondent, herein
,called the Company, violated Section 8(a)(1) of the Act by granting and promising
benefits to its employees in order to induce them to refrain from support of the
Charging Party, herein called the Union, and violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union. Upon the entire record in this case.
which consists largely of undisputed facts, and after due consideration of the briefs
filed by General Counsel and the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, (1) that the Company, a Wisconsin corporation
engaged at Wauwatosa, Wisconsin, in the manufacture and processing of sawdust and
related items, annually ships in excess of $50 000 worth to points outside the State,
and is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act: and (2) that the Union is a labor organization within the meaning of Section
2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Early in November 1964, a number of the Company's employees signed cards
authorizing the Union to repiesent them for purposes of collective bargaining On
November 6, the Union wrote the Company requesting recognition (a letter received
by the Company on November 7), and on November 10 the Union filed a petition
for certification, a copy of which was mailed to the Company on November 12, and
i All subsequent dates herein, other than the date of issuance, refer to the year 1964
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was received by it prior to November 16. On November 16, the Company granted
each of its employees a wage increase of 35 cents per hour, and also started paying
the employees' hospitalization premiums. Kenneth Frantz, a company officer and
the son of its president, spoke to each of the employees individually, advising each
of the wage increase. After telling employee Molkentine of the raise, and that the
Company would henceforth also give the employees paid hospitalization, Frantz
stated: "In addition to this there will be substantial pay increases in due time."
Frantz then added: "We are going to have an election quite soon now, and I want
you to bear in mind the Company's offer on that day when the election will be held."
He also told Molkentine to use his own discretion. When Frantz told employee
Clements about the wage increase and the paid hospitalization, Frantz added that the
wage increase might change the employees' minds about the Union.2
The Company's action in granting a substantial wage increase and paid hospitaliza-
tion was "undertaken with the express purpose of impinging on their [employees']
freedom of choice for or against union representation and [was] reasonably calculated
to have that effect." N.L R.B. v. Exchange Parts Company, 375 U.S. 405, 409,
reversing the Fifth Circuit decision cited by Respondent in its brief. The violation of
Section 8(a)(1) here, clearly established under the Exchange Parts case, was only
compounded by the blatancy with which the Company revealed its motive to the
employees. See also Indiana Metal Products Corp. v. N.L.R.B., 202 F. 2d 613,
620 (C.A. 7).
B. Refusal to bargain
The pleadings establish and I find that "all truckdrivers, warehousemen, and pro-
duction workers employed by Respondent, exclusive of office clerical employees,
guards, professional employees, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining." I further find, in accord-
ance with the Company's contention, that the unit at the time in question (November
1964) consisted of 10 employees. On or about November 5, employee Willie Tate
circulated union authorization cards among the employees, and obtained seven signed
cards including his own. Tate turned these cards over to the Union which promptly
requested recognition, and suggested that a meeting be held on November 11. Either
Company Counsel Gobel or Kenneth Frantz requested that the meeting be postponed
to November 18, to which Union Representative Hammer agreed. On November 10
the Union had filed its petition for certification, and the Board agents investigating
the matter also scheduled a meeting with company and union representatives at the
Board's Regional Office on November 18. Between the filing of the petition and the
scheduled conference, however, the Company committed the unfair labor practices
described in the foregoing section of this Decision. The Union did not appear at
the November 18 conference (at which the Company and Board representatives
agreed to a consent election) but instead on the next day filed its unfair labor prac-
tice charge initiating this proceeding
The Company's unfair labor practices, committed on November 16, were intended
to, and in all probability did, destroy the Union's majority status. See, for example,
the testimony of employee Clements that after November 16 a group of the employees
"got together ... and decided that the Union wouldn't do us much good " But the
law is well settled that where an employer commits unfair labor practices which tend
to affect a union's claim to majority status, the question whether the union represents
a majority must be determined as of the time the illegal acts were committed. The
Employer, having prevented by his own illegal conduct the holding of a free election,
must abide by other means of determining whether the Union had a majority. If
the union enjoyed majority status at the time of the illegal acts (a status which may
be established under these circumstances by valid authorization cards), the Board
may properly order the employer to recognize the union and bargain with it, for any
other result would permit the employer to profit by his own wrong. See, e.g., Franks
Bros. Company v. N.L.R.B., 321 U.S. 702, 703-705; N.L.R.B. v. Stow Manufactur-
2 Frantz, called as a witness, did not deny the conversation with Clements, and recalled
the conversation with Molkentine except that Frantz did not remember discussing the
election and thought he had not done so. I credit Molkentine's version for the following
reasons: (1) his demeanor on the witness stand impressed me as that of an honest
witness ; (2) he is still employed by the Company and apparently had nothing to gain
by testifying against his employer ; (3) he stood up well on cross-examination ; (4)
Frantz' denial was somewhat tentative in nature, (5) the episode is consistent with
that involving Clements; (6) Frantz had discussed the Union's request for recognition
with his counsel, one Gobel, the preceding Monday, at which time they discussed the
advisability of giving a wage increase, and Frantz' testimony concerning that discussion
makes it clear that the increase was intended to dissuade the employees from supporting
the Union.
FRANTZ & CO., INC . 1325
ing Co., 217 F. 2d 900, 904-905 (C.A. 2), cert. denied 348 U.S. 964; Joy Silk Mills,
Inc. v. N.L R.B., 185 F. 2d 732, 741-742, 784-795 (C.A.D.C.), cert. denied 341 U.S.
914. Indeed, even where a union has a card majority but has made no request to
bargain, and the employer has committed unfair labor practices which prevent a fair
election and tend to destroy that majority, an affirmative bargaining order may appro-
priately issue to restore the status quo ante the unfair labor practices. See Greystone
Knitwear Corp. et al., 136 NLRB 573, 575-576, enfd. 311 F. 2d 794 (C.A. 2), and
see also the decisions of the First, Third, Fifth, and Eighth Circuits cited in Grey-
stone, 136 NLRB at 576, footnote 4. And the filing of the petition for certification
does not relieve the employer of his bargaining obligation particularly where he
frustrates by unfair labor practices the very proceeding which the petition instituted.
It follows from the foregoing settled principles that the Company should be
ordered to bargain with the Union if it enjoyed majority status prior to November 16,
a status which may be established by valid authorization cards. Of the 10 employees
in the unit, 7 had signed cards on or about November 5 which recited that "I ...
hereby authorize the [Union] to represent me for purposes of Collective Bargaining
and, in my behalf to negotiate and conclude all agreements as to hours of labor,
wages, and other conditions of employment." The cards, captioned "Authorization
for Representation," are not misleading or ambiguous in any respect, and each of
the employee witnesses who was interrogated about the matter testified that he read
the card before signing it.
The Company attempted to establish that Tate, the chief employee organizer for
the Union, misrepresented the import of the card in obtaining signatures, or in some
other way misled or unduly influenced the employees. The record falls far short of
establishing any such taint with respect to the cards. Although Tate did tell the
employees that an election would be held (as indeed would have been the case but
for the Company's unfair labor practices), there is no evidence that he indicated
that the sole effect of signing the card was to get an election, let alone that he mis-
represented or sought to conceal the clear import of the card itself. The cards are
therefore to be accepted as valid designations of the Union, signed by a majority of
the employees. N.L.R.B. v. Mid-West Towel and Linen Service, Inc., 339 F. 2d
958, 962-963 (C.A. 7).
The Company contends that Clements' card is invalid because Tate told him before
he signed that six or seven men had already signed and two had refused. The record
does not substantiate the Company's claim that this was a misrepresentation as six
men may have signed before Clements. In any event his card is not necessary to
the Union's majority.
As the Company has not recognized or bargained with the Union, notwithstanding
the Union's request of November 7, the Company has violated Section 8(a)(5) and
(1) of the Act. Moreover, even in the absence of a bargaining request and refusal,
a bargaining order would be appropriate here to remedy the violations of Section
8(a)(1).
CONCLUSIONS OF LAW
1. By granting employees a wage increase and paid hospitalization for the purpose
of discouraging them from supporting the Union, the Company engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By failing to recognize and bargain with the Union upon its request, the Com-
pany engaged in an unfair labor practice affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company cease and desist from its violations of the
Act and from like or related invasions of its employees' rights, that it bargain with
the Union upon request (a provision which I would recommend to restore the status
which existed prior to the violations of Section 8(a) (1) even if there were no viola-
tions of Section 8(a) (5)), and that it post an appropriate notice.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and upon the record as a whole, and
pursuant to Section 10(c) of the Act, it is hereby ordered that the Respondent,
Frantz & Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting its employees benefits in order to discourage union membership or
activity, provided, however, that nothing in this Decision requires it to vary or
abandon any economic benefits which have heretofore been established.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain with Chauffeurs, Teamsters and Helpers "General"
Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of its employees in the appro-
priate unit. The appropriate unit is:
All truckdrivers, warehousemen, and production workers employed by the Com-
pany, exclusive of office clerical employees, guards, professional employees, and
supervisors as defined in the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees in the above-described appropriate unit, and
embody in a signed agreement any understanding reached.
(b) Post at its plant at Wauwatosa, Wisconsin, copies of the attached notice
marked "Appendix." 3 Copies of such notice, to be furnished by the Regional
Director for Region 30, shall, after being signed by an authorized representative of
the Respondent, be posted immediately upon the 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 the Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision, what steps the Respondent has taken to comply herewith .4
3In the event that this Recommended Order be 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 In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, 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 National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with Chauffeurs, Teamsters and Helpers
"General" Local 200, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive representative of all the
employees in the bargaining unit described below with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment,
and, if an understanding is reached, embody such an understanding in a signed
agreement.
The bargaining unit is:
All truckdrivers, warehousemen, and production workers employed by
us, excluding all office clerical employees, guards, professional employees,
and supervisors as defined in the Act.
WE WILL NOT grant our employees benefits in order to discourage union
activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their right to join or assist any labor
organization.
FRANTZ & CO., INC.,
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.
GRAPHIC ARTS FINISHING CO., INC. 1327
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Tele-
phone No. 272-8600, Extension 3860.
Graphic Arts Finishing Co., Inc. and United Papermakers and
Paperworkers , AFL-CIO. Case No. 5-CA-3076. Judy 6, 1965
DECISION AND ORDER
Upon charges duly filed by United Papermakers and Paperworkers,
AFL-CIO, herein called the Union, the General Counsel of the
National Labor Relations Board, by the Regional Director for Region
5, issued a complaint dated March 16, 1965, against Graphic Arts Fin-
ishing Co., Inc., herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) and (1) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before a Trial Examiner
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in
substance that the Union was and is the exclusive representative of
certain employees of the Respondent in the appropriate unit certified
by the Board on February 1.5, 1965, in Case No. 5-RC-4826, and that
on or about March 4, 1965, and thereafter, the Respondent unlawfully
refused to bargain with the Union.
The Respondent's answer, filed on March 25, 1965, admits certain
jurisdictional and factual allegations of the complaint but denies the
commission of unfair labor practices.
On May 10, 1965, all parties to this proceeding entered into a stipu-
lation. The stipulation contains a statement of facts, and states that
the parties have waived hearing, Trial Examiner's Decision, the filing
of exceptions and briefs, and oral argument, but that the Respondent
does not waive or abandon the issue raised by it in Case No. 5-RC-
4826, objecting to the failure of the Regional Director to grant it a
hearing on its objections to the election therein. The parties also agree
that the stipulation, together with the charge, complaint, and notice of
hearing, and answer shall constitute the entire record in this case.
On May 13, 1965, the Board approved the stipulation and ordered
the proceeding transferred to the Board. Upon the basis of the par-
ties' stipulation and the entire record in the case, the Board makes
the following :
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Fanning, Brown,
and Jenkins].
153 NLRB No. 115.