Heiler Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 17, 1946

71 N.L.R.B. 1114 (N.L.R.B. 1946)

In the Matter Of HARRY HEISLER AND AGNES HEISLER , CO-PARTNERS,
DOING BUSINESS AS HEILER MANUFACTURING COMPANY and UNITED
FARM EQUIPMENT AND METAL WORKERS OF AMERICA, LOCAL 230,
C. I. 0.1
Case No. 18-C-1226 .-Decided December 17, 1946
Mr. Clarence A. Meter , for the Board.
Messrs. Swisher , Cohrt, and Swisher , by Mr . L. J. Cohrt, of Water-
loo, Iowa, for the respondent.
Messrs. Meyers, Meyers and Rothstein , by Mr. David B. Rothstein,
of Chicago , Ill., and Mr . Harold Fischer , of Cedar Rapids , Iowa, for
the Union.
111r. Oscar Geltnzan , of counsel to the Board.
DECISION
AND
ORDER
On July 26, 1946, Trial Examiner W. P. Webb issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondents had not engaged in the unfair labor practice alleged in
the complaint and recommending that the complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the respondents and the attorney for the Board filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exception hereinafter
noted.
The Trial Examiner concluded that even if Heisler threatened to
sell the respondents' plant, as witnesses for the Board testified, such
statement was a tactical maneuver which was justified in view of the
' By a motion granted by the Trial Examiner during the course of the hearing, the
complaint and other formal documents were amended by adding the phrase "Local 230"
to the name of the union.
71 N. L. R. B., No. 181.
1114
HEISLER MANUFACTURING COMPANY 1115
Union's ultimatum that it would continue to strike unless the re-
spondent executed a retroactive wage agreement. Like the Trial
Examiner, we credit Heisler's denial that he made such a statement.
However, we find it unnecessary to determine, in view of Heisler's
credible testimony, whether such a statement if made constituted an
unfair labor practice.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against Harry Heisler
and Agnes Heisler, co-partners, doing business as Heisler Manufac-
turing Company, Waterloo, Iowa, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr Clarence A. Meter, for the Board.
Messrs. Swisher, Cohrt, and Swisher, by Mr. L. J. Cohrt, of Waterloo , Iowa, for
the Respondents.
Messrs. Meyers, Meyers and Rothstein , by Mr. David B. Rothstein, of Chicago,
111, and Mr. Harold F ischer, of Cedar Rapids , Iowa, for the Union.
STATEMENT 01- THE, CASE
Upon an amended charge duly filed by United Farm Equipment and Metal
Workers of America, Local 230, affiliated with the Congress of Industrial Or-
ganizations, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eighteenth Region (Min-
neapolis, Minnesota), issued its complaint, dated April 10, 1946, against Harry
Heisler and Agnes Heisler, co-partners, doing business as Heisler Manufacturing
Company, Waterloo, Iowa, herein called the Respondents, alleging that the
Respondents had engaged in and were engaging in unfair labor practices affect-
ing commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act Copies of the complaint and the amended charge, accompanied by notice of
hearing thereon, were duly served upon the Respondents and the Union.
With respect to the unfair labor practices, the complaint, as amended during
the hearing, alleged in substance: (1) that from about January 4, 1946, the Re-
spondents questioned their employees concerning their union activities and af-
filiation; advised, urged, and warned them to refrain from assisting, becom-
ing members of or remaining members of, the Union ; gave them wage increases
and attempted to introduce new piece-work rates during the time when the Union
was seeking to bargain collectively, advised them that the Respondents would
nen er sign a contract with the Union, urged and advised them to abandon their
strike ; used vile, profane, and abusive language while talking to them ; phys-
ically assaulted them; threatened to sell the plant and machinery; and sold and
removed machinery from the plant; (2) that on, and at all times after January 8,
1946. the Respondents refused, upon request, to bargain collectively with the Union
as the exclusive representative of all the employees in an appropriate unit,
although on and prior to that date, a majority of the employees in such unit
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had designated the Union as their representative for the purpose of collective
bargaining; (3) that on of about Januaiy 12, 1946, the Respondents laid off 17
certain named employees,' and from that (late until on or about January 29,
1946, refused and failed to recall them to their former or substantially equivalent
positions of employment; (4) that on or ahout January 28, 1946, the Respondents
demoted Evan Calhoun from his position as foreman to the status of a production
worker and, on or about March 1, 1946, constructively discharged said Calhoun
and, since his demotion have failed and refused to recall him to his former or
substantially equivalent position of employment; (5) that on or about April
18, 1946, the Respondents discharged Verona Berg and thereafter refused to
reinstate her to her former or substantially equivalent position of employment;
and (6) that by such acts and statements, the Respondents interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
On April 18 the Respondents filed their answer admitting certain allegations
of the complaint with respect to the operation of then- business, but denying that
they had engaged in or were engaging in the alleged unfair labor practices. The
answer sets up certain affirmative defenses which are considered below.
Pursuant to notice, a hearing was held at Waterloo. Iowa, from April 23 to
May 7, 1946, before the undersigned, W P Webb, the Trial Examiner duly desig-
nated by the Chief Trial Examiner The Board, the Respondents, and the Union
were represented by counsel, and participated in the hearing Full opportunity
to be heard, to examine and cross-examine witnesses, and to Introduce evidence
bearing on the issues was afforded all parties.
At the beginning of the hearing. counsel for the Respondents filed a written
motion to adjourn the hearing for 2 weeks on the ground that both Mr. and Mrs.
Heisler were suffering from an attack of influenza and were not presently able
to participate in the hearing The Board's counsel opposed the motion. The
motion was denied by the Trial Examiner, with the undeistanding that counsel
for the Board would proceed w ith the presentation of the Board's case in chief
and, at its conclusion, the matter of an adjoni nment would be given consideration
should cucuipstances warrant it The hearing proceeded on that basis and in
due course both Mr. and Mrs. Heisler attended the hearing. No further request
was made for an adjournment
At the beginning of the hearing, counsel for the Board moved to amend the
complaint by alleging the discriminatory clischaige of Verona Berg on or about
April 18, 1946, by the Respondents and their subsequent refusal to reinstate her.
The motion was granted by the Trial Examiner with the proviso that the Board
first proceed upon the original complaint, and that no testimony be taken in
respect to the alleged discharge of Berg, until counsel for the Respondents shall
have had ample time within which to prepare his defense. The hearing proceeded
upon this basis. Counsel for the Respondents made no request for any further
time. A motion by the Respondents' counsel to amend the Respondents' answer
to the complaint to include a denial of this allegation was granted by the Trial
Examiner.
A motion by the Board's counsel to add "Local 230" to the name of the Union
was granted by the Trial Examiner without objection.2
These eniplovees were Phil Bonefas, Ray Lott, Melvin Burns, Harold Peck, Robert Nass,
Donald Hulse, Gerald Burke, Francis Olinger. H E Geary, Clarence Tanner, Ruth Zilmer,
Ceola Pahl, Fred Parker, William Pfolzgiaf, Charles Shirley, Joseph Lutz and Herbert
Maire.
The Union received its Local number about Apiil 1, 1946
HEISLER MANUFACTURING COMPANY 1117
A motion by Board's counsel to amend the complaint by alleging that five
certain named employees were discriminated against by the Respondents by not
recalling them to work after the January strike, was denied.
After the Board had closed its case in chief and the hearing had been in
progress for 8 days, counsel for the Board moved to amend the complaint by
alleging that the Respondents discriminatorily discharged Bessie McCoy and
Lela Mae Strumpel on January 12, 1946. and thereafter refused to reinstate
them This motion was denied by the Trial Examiner i
At the conclusion of the hearing, a motion made by Board's counsel to con-
form the pleadings to the proof with respect to foimal matters was granted by
the Trial Examiner without objection
The parties waived the opportunity to argue orally before the Trial Examiner
at the conclusion of the hearing Briefs submitted by counsel for the Board
and the Respondents have been received by the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS 6
The Respondents, Harry Heisler and Agnes Heisler, are copartners, doing
business as Heisler Manufacturing Company. Their principal office and place of
business are located in Waterloo, Iowa, where they are engaged in the business
of manufacturing tractor pacts, such as governor parts, manifold parts, starter
parts, hitches. carburetor parts and other like products. The principal raw
materials used at the plant are cast iron and steel. During the calendar year
1945, the Respondents purchased, for use at their plant, raw materials valued in
excess of $140,000 of which, 30 percent or more was shipped to the plant from
points outside the State of Iowa During the same period the Respondents
manufactured finished products valued in excess of $213,000, of which 80 percent
or more was shipped to points outside Iowa The undersigned finds that the
Respondents are engaged in commerce, within the meaning of the Act The
Respondents made no contentions to the contrary
The operation of the Respondents' plant is conducted under the direct and
personal supervision of the partners, Mr. and Mrs. Heisler The latter is the
administrative executive. She looks after all operations of the plant, except
the engineering department, which is under the supervision of Mr Heisler The
latter also purchases machinery and contacts distributors There is no plant
superintendent and no salesmen are employed. Normally there is a forman in
charge of production and an office assistant. The normal complement of
employees is approximately 25.
II. THE ORGANIZATION INVOLVED
United Farm Equipment and Metal Woikers of America, Local 230, affiliated
with the Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the Respondents.
3 These employees were Ceola Pohl, William T'folzgraph, Charles Shirley, Joseph Lutz,
and Herbert Mane After the January strike had been settled the striking emploiees
ieturned to work in the plant in accordance with an agreement between the Union and
the Respondents, which is discussed below
i These two employees were office employees They were excluded from the appropriate
unit and were not eligible for membership in the Union The Union claimed no jurisdiction
over them The motion was untimely and without merit They were laid off on January
12, 1946, together with 17 others and thereafter made no effort to secure reinstatement
The following nuts were admitted by the Respondents in their answer to the complaint
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR, PRACTICES
A. Sequence of events
The Union began its organizational campaign in the plant in December 1945,
under the personal direction of Harold Fischer, International Representative.
The employees were unorganized and there was no other union seeking to or-
ganize them The campaign was successful from the start.
On January 3, 1946, Charles W. Hobble, District President of the Union, wrote
the Respondent stating that a vast majority of the Respondents' employees had
become members of the Union ; requesting that the Respondents recognize the
Union as the bargaining representative for all their production and maintenance
employees, excluding office employees, outside truck drivers, and supervisory
employees ; and asking for a meeting on January 8, for the purpose of collective
bargaining. The Respondents immediately referred the letter to their attorneys,
Messrs Pike, Sias and Butler, Waterloo, Iowa. Under date of January 7, attorney
Butler replied to the letter, informing the Union that the Respondents were of
the opinion that they should defer action until the Union had been duly certified
as the bargaining agent by the Board. On January 9, the Union filed a Petition
for Certification of Representatives with the Board.
At the close of business on Tuesday, January 8, 1946, the Respondents informed
19 employees, 2 of whom were office employees, by letter that they would'be tem-
porarily laid off, effective at noon on Saturday, January 12 On the following
Monday night, January 14, the Union held a meeting and decided to go on strike
in protest of the lay-offs The strike, herein called the January strike, became
effective the next morning, January 15, and the plant was picketed. That after-
noon a meeting of representatives of the Respondents and the Union was held in
Attorney Butler's office. A Field Examiner of the Board was also present. At
that meeting, the parties agreed to a consent election to be held in the plant the
next morning under the supervision of the Board, and a consent election agree-
ment was executed by the parties. The election was held as scheduled, on Jan-
uaiy 16, and the Union won The number of eligible voters was 27, but only 23
ballots were cast, all of which were for the Union No objections to the conduct
of the election were raised by any party. Following the election, a number of
,meetings were held between representatives of the-Union and the Respondents,
but the strike continued. On January 28, an agreement was reached between
the Union and the Respondents under which the Respondents agreed to recall to
work the laid off employees and reinstate the strikers, and the Union agreed to
call off the strike This settlement was effectuated the next day After the strike
was settled, bargaining conferences between the Union and the Respondents con-
tinued, both submitting written proposals. On February 22, a work stoppage of
approximately 2 hours' duration occurred in the plant. On February 26, a sit-
down strike, herein called the February strike, occurred in the plant. However,
bargaining conferences between the Union and the Respondents continued to
occur every few days. On March 11, the Union filed charges against the Re-
spondents. At the last conference which was held on Thursday, March 21, all
differences were ironed out and the Union and the Respondents entered into a
written contract for 1 year The strike was immediately discontinued and, on
the following Monday, March 25, all of the striking employees returned to work
in the plant On April 9, the Union filed amended charges against the Respond-
cnts, alleging violations of Section 8 (1), (3), and (5) of the Act
B. The alleged refusal to bargain collectively
The amended complaint alleged that from on or about January 8, 1946. to.
the date of the issuance of the original complaint, the Respondents have refused
HEISLER MANUFACTURING COMPANY 1119
to bargain collectively with the Union as the exclusive representative of all
their employees in an appropriate unit. The Respondents' answer denies this
allegation The undersigned finds that this allegation of the amended com-
plaint is not supported by the record in the case.
1. The appropriate unit
The amended complaint alleges, the Respondents admit, and the undersigned
finds, that all production and maintenance employees of the Respondents at
their Waterloo, Iowa, Plant, excluding office employees, outside truck drivers,
and supervisory employees, at all times material herein, constituted and now
constitute a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act°
2. Representation by the Union of a majority in the appropriate unit
It was stipulated by the parties that during the week of January 8, 1946,
there were 29 production and maintenance employees on the Respondents'
pay roll and that on or before that date 21 of these employees had signed mem-
bership cards in the Union. Pursuant to the consent election held in the plant
on January 16, 1946, under the supervision of the Board, as related above, the
Regional Director, on January 23, 1946, issued his Consent Determination of
Representatives in which he found and determined that the Union was the
exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.. Neither the Respondents
nor the Union filed any objections in respect to the conduct of the election
The undersigned finds that the Union was on January 8, 1946, and at all times
thereafter has been the duly designated representative of a majority of the
Respondents' employees in the aforesaid appropriate unit and that by virtue of
Section 9 (a) of the Act, the exclusive representative of all the employees in
such unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment.
3. The alleged refusal to bargain on and after January 8, 1946.
As related above, in reply to the Union's letter of January 3, 1946, in which
the Union claimed to represent a majority of the Respondents' employees, and
asked foi recognition and a meeting on January 8, counsel for the Respondents
informed the Union that it was "the opinion" of the Respondents that they were
not in a position to act until the Union had been certified by the Board. The
full text of the letter reads as follows :
PIKE, SLAS & BUTLER,
ATTORNEYS AT L.Aw. SUITE 1000 WATERLOO BLDG,
tiPatci loo, Iowa. January 7, 1916.
UNITED FARM EQUIPMENT AND METAL WORKERS of AMERICA, CIO,
Room 315-20 ORC Building,
Cedar Rapids, Iowa
(Attention: Mr. Charles W. Robbie, District Pres
CEN'TLEMEN : Your letter of Januaiy 3rd, addressed to the Heisler Manu-
facturing Company, of this city and requesting a meeting for the purpose
°'rhis is the same unit which appears in the con,ent election agreement executed by the
Union and the Respondents on January 15, 1046.
7177:34-47-vol 71-72
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of working out an agreement for recognition of the Union and for collective
bargaining has been handed to us for reply.
It is the opinion of the Company that they are not in a position to take
any action upon the matter until you have been properly certified as the
bargaining agent by the National Labor Relations Board
Yours very truly,
BFB : Lmm
(S) B F BUTLER.
Evidently the Union was also of the opinion that it should be certified by the
.Board, since immediately upon receipt of this letter, it filed a Petition for
Certification of Representatives with the Board, which was docketed in the
Regional Office on January 9.° According to Harold Fischer, International
Representative of the Union, he -was notified by a Board's Field Examiner that
a meeting with the Respondents had been arranged for Tuesday, January 15,
for the purpose of discussing the Union's Petition. The January strike began
that morning, and a meeting of representatives of the Union and the Respondents
was held in Attorney Butler's office that afternoon,' which resulted in the
-execution of a consent election agreement for a Board election to be held in
the plant the next morning At that meeting it was suggested that the Union
membership cards be checked with the Respondents' pay roll, but no agreement
was reached as to who should do the checking. The Union did not insist upon
-this method of ascertaining the Union's majority, and agreed to an election
Harold Fischer testified that, at that meeting lie requested an election His
-testimony, in part, leads as follows:
We both asked for an election; whether Mr Butler asked for one, or
agreed to one at our request, or both, I don't know They had a
perfect right to ask for an election.
At the meeting it was understood that another meeting of the representatives
-of the Union and the Respondents would be held in Attorney Butler's office the
,next morning, January 16, immediately after the election When the Union Com-
mittee, together with Don Harris, National C I. O. representative,° arrived at
Butler's office, the latter informed them that lie no longer represented the Re-
spondents. Harris then telephoned to the Heislers' home and was informed that
the local law firm of Swisher, Cohrt and Swisher would thereafter represent the
Respondents. Harris then telephoned Swisher and arrangements were made for
a meeting that afternoon in Swisher's office. The union representatives called
at Swisher's office as arranged, and were informed by Ben Swisher, herein called
Swisher, that he knew very little about the matter and would have to consult
the Heislers. A meeting was arranged for the next day, January 17, in Swisher's
office. According to Fischer, the next meeting between the Union and the Re-
spondent occurred on January 19 in Attorney Swisher's office. The lay-offs were
discussed. Swisher stated that the Respondents were willing to take back 10 or
12 of those who had been laid off and the remaining 5 to 7 just as soon as work
was available for them. The Union refused to agree to that proposal, and de-
manded that all of them be taken back or none. Another meeting was held in
Swisher's office on January 24, at which time the same subject was discussed.
The Respondents agreed to take back 12 to 14 of the employees immediately, ac-
' C.isc No 18-R-1442
'Those present for the Union were Harold Fischer , International Representative and
the union bargaining committee , which consisted of employees horsey , Peck, Burns and
Pfalzgraf The Respondents were represented by Attorney Butler , Mr. and Mrs Heisler
and Alvin Biown , Mrs Heisler ' s brother A Board ' s Field Examiner was also present.
Fischer was not present at that meeting.
HEISLER MANUFACTURING COMPANY 1121
cording to seniority, and the remainder as soon as the work justified it. The
Union did not recede from its former position, that all or none must be taken
back. At that time the Union had contacted the Conciliation Service of the United
States Department of Labor. The next meeting was held on January 28, in the
United tStates Court room. Conciliator Roy Schaffer was present. At that meet-
ing the strike was settled and the Union and the Respondents entered into an
agreement, approved by Schaffer, which reads as follows :
This agreement made by and between the Heisler Manufacturing Com-
pany and the United Farm Equipment and Metal Workers of America, CIO,
January 28, 1946
1. The Union agrees to cease strike action and picketing as of the signing
,of this Agreement.
2 The Company agrees to the immediate recall of the following sixteen
x(16) persons; Arley Haugen, Katherine Abben, Ruth Zilmir, Verona Berg,
Phil Bonafas, Orma Barclay, Clarence Tanner, John Lehman, Leslie Dorsey,
Irwin Fisher, Dorothy Vogt, Ray Lott, Melvin Burns, Noble Taylor, Harold
Peck, Robert Nass.
These 16 persons shall report for work January 29, 1946. The Company
further agrees to recall the following employees Thursday, January 31, 1946:
Donald Hulse, Gerald Burke, Pat Mullen, Frances Olinger, J. Sandhagen, H.
E. Geary.
3. These persons shall be restored to employment and no discrimination
or prejudice shall be shown because of the work stoppage, and such persons
shall return to work under the same terms and conditions as prior to the
stoppage, except that the work day shall be from 7. 00 A Al. to 3 30 P M one
half hour being allowed for lunch.
4. No claim shall be made for pay lost during the strike
', Present charges filed with the N L R B shall be withdrawn.
6 The Company further agrees that they will meet within a reasonable
time for the purpose of negotiating an agreement with the Union It is
understood that a reasonable length of time will not be in excess of 8 clays 10
There were 6 striking employees whose names did not appear in the aforesaid
agreement, for the reason that some of them had left town and the others could
not be contacted by the Union The Union agreed to contact all of the strikers
and to furnish the Respondents with a list of those to be taken back, which was
done. The Respondents recalled all of those listed by the Union It was under-
stood by the parties that if any of the employees, omitted by the Union, returned
by January 31, they could go back to work. After the agreement had been signed,
the Respondents never refused to reinstate any employee who was on the pay roll
at the time of the lay-offs on January 12, 1946 It was further understood that
for a short period, a week or more, after the strikers had returned to work, they
would be required to do any kind of work available in the plant, until the plant
had recovered from the strike conditions. It was agreed at that meeting that
the Union would prepare a proposed contract and submit it to the Respondents.
This was done on February 2. The Union's proposal, in substance, provided
for recognition of the Union ; non-discrimination, closed shop : 40-hour week ;
overtime. double time for legal holidays, including V-J Day : plant-wide
seniority ; rest periods; grievance procedure ; vacations ; and minimum wage
rate. Job classification and wage rates were to be agreed upon later ; and
any adjustment in wages to be retroactive to January 16, 1946 The next meet-
"The agreement was drawn up by Conciliator Schaffer, and was typed by Hai old
Fischer, International Representative of the Union
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing was held on February 6. Approximately the first half of the Union's pro-
posal was read and discussed , section by section at that meeting. The sections
in respect to recognition and non-discrimination were agreed upon. Time and
one half for all overtime was also agreed upon. Double time for legal holidays
was agreed upon, except that it was not agreed that V-J Day should be considered
a legal holiday until after it had been so declared by government authority.
Several other sections were agreed upon, but no agreement was reached in
respect to the closed shop and seniority sections . These were deferred for
future consideration . The Union desired plant-wide seniority and the Respond-
ents , wanted departmental seniority . Another meeting of the conferees was
held the next day, February 7. The remaining clauses of the Union's proposal
were read and discussed and several sections were agreed* upon. The Union
submitted a wage proposal calling for an increase of 181/2 , cents an hour , retro-
active to January 16 , 1946, which was the date of the consent election. The
Respondents opposed retroactive pay as of January 16, because the employees
were on strike from January 15 to 28. The Respondents were willing for any
pay increases that were agreed upon to become retroactive as of January 29.
the date on which the employees returned to work after the strike. At the
conclusion of that meeting, it was agreed that the Respondents would submit
written counterproposals at the next meeting.
The next meeting was held on February 14. At that meeting. the Respondents
submitted written counterproposals covering only the items upon which no
agreement had been reached Seniority was one of the main subjects discussed
at that meeting. The Union contended for plant-wide seniority and the Respond-
ents for departmental seniority At that meeting the Despondent" statecl that
they were preparing wage proposals which would be submitted at a later uneetun_.
The next meeting occurred on February 19. At that meeting, the Respondents
submitted a completed counterproposal contract, with the exception of wage
schedules. The Respondents stated at that meeting that local wage rates were
still being investigated by the Respondents The main issues discussed were
closed shop. enioiity, and retroactive pay. The Union held out for a closed
shop. The Respondents were agreeable to a maintenance of membership clause
under which all employees who wele members of the Union 15 clays after the
contract had been signed, or who became members thereafter, should remain
members during the term of the contract. The Union contended for plant-wide
seniority The Respondents were agreeable to a seniority system, but contended
that it should be on a departmental basis. Retroactive pay was also discussed
The Respondents reiterated their willingness to make the retroactive date
January 29 The Union requested that the Respondents execute a written agree-
ment, immediately, to that effect. The Respondents replied that they were
negotiating for a complete contract and not a series of agreements, and there was
no object in putting this particular point into writing On I'ebruary 22, there was
a discussion at the plant between the Union and the Respondents in respect to
putting the work on the "starter housing" on a piece work basis. Nothing was
agreed upon at that meeting, but it was understood that the matter would be
further investigated and would be taken up later. No further efforts were made
in this connection, find piece work rates were never put into effect The next
meeting was held in Attorney Swisher's office, on February 25 The propo5,ih
which. had been submitted by the Union and the Respondents were further dis-
cussed. The effective (late for retroactive pay came up for further discussion_
The Union maintained its previous contention that the date should be January-
Id, and the Respondents weie equally emphatic that the (late should be January
29, which was the day that the employees went back to work after the January
strike The Union insisted that the Respondents reduce that proposal to writing.
HEISLER MANUFACTURING COMPANY 1123
immediately. The Respondents reiterated their offer, but declined to put it into
writing as a separate agreement. The Respondents never receded from their
offer in this respect, and the contract which was finally executed contains this
provision. On the following day, February 26, the employees again went out on
strike. At the request of the Respondents, another meeting was held in Swisher's
office on February 28. At that meeting the Respondents submitted wage pro-
posals which were discussed. The Respondents contended that local wage rates
had been investigated and that the proposals were in line with them. The Union
rejected the proposals No agreement was reached at that meeting. Subse-
quently, the Respondents contacted the United States Conciliation Service and
as a result, a meeting between the Union, the Respondents and Conciliator Brown
was held in the local Post Office Building on March 4. The Conciliator was
informed of all the points in controversy and they were discussed. The Respond-
ents offered a general increase in wages of 5 percent. which was rejected by the
Union. Another meeting was held on March 7, and the discussions continued.
The Respondents increased their wage offer to 71/ percent. The Union held
out for 181/2 cents per hour and declined to recede from it. When Conciliator
Brown entered the negotiations, he requested the Union to return the strikers to
work The Union refused, and stated that the strikers would not return to work
until a contract had been signed Another meeting was held on March 13, at
which the Respondents offered a wage increase of 10 percent, which was refused
by the Union The Union made no concession from its original demand for 181/
cents Certain minor differences were settled at that meeting
The conferees met again on March 19. At that meeting the Respondents sub-
nutted written counterproposals covering all points in dispute, including wage
proposals. The Union considered the proposals that night, and on the next
clay, March 20, representatives of the Union and the Respondents, together with
Conciliator Brown, met and a final agreement was reached on all points. It
was agreed that the final contract would be prepared by the Respondents' at-
torneys the next day, March 21, which was done and the contract was imme-
diately signed by the parties. The strike was called off, and the strikers returned
to work. The contract, which runs for one year from date of execution, shows
by its provisions that a final agreement was reached through collective bargain-
ing, as both the Union and the Respondents made concessions from their
original positions.
4. Alleged refusal to bargain collectively subsequent to the contract of March 21,
1946
The amended complaint further alleged that the Respondents continued to
refuse to bargain collectively with the Union subsequent to the execution of
the agreement on March 21, 1946.
The record discloses and the undersigned finds that on or about April 10,
Fischer , international representative of the Union , called at the plant and dis-
cussed the matter of grievances with Mrs. Heisler . He accused Mrs. Heisler
of not complying with the terms of the contract in this respect . Mrs. Heisler
told him that several grievances had been presented to the foreman and had
been discussed by the management , but she had never received any grievances
`ubmitted in writing in accordance with the terms of the contract . The grievance
procedure clauses in the contract , read as follows :
A grievance arising between an employee or the Union under this agree-
ment and the Company shall be handled as follows :
(1) The grievance shall be presented by the Union steward or employee
affected to the foreman . If a satisfactory settlement is not reached, the
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance shall be reduced to writing and an answer given within twenty-
four (24) hours.
(2) If a settlement is not reached under (1), the grievance shall be,
taken up by the Union Representatives and top management, and written,
answer shall be given within two (2) working clays after presentation.
Any grievance must be presented to the foreman within thirty (30) days
of the commission of the at creating the grievance or complaint, except
that any grievance in existence as of the date of this agreement may be
taken up within thirty (30) clays after the (late of this agreement. Dis-
charges are subject to grievance procedure
On or about April 16, Foreman Sheets gave to Mrs. Heisler five written griev-
ances, which had been written out by Fischer, but signed by Dorsey, president
of the Union They read as follows :
I Violation of Art V. Sec 4 of contract dealing with no discrimination
against union members in that all nonunion members were called in for over-
time work and no union members were asked to come in for overtime.
II In regard to Verona's case, Company discriminating against union
members by transferring her from her original job and replacing her with
new employees. For additional reasons of caring for baby and reasons of
health she should be given her regular job back New employees shall not
replace those with greater seniority.
III Grievance for pay for the time lost of February 22, the start of work
stoppage : Company agreed to pay workers for that time lost and failed to
live up to their agreement.
IV With violation of contract in that Art XII states that supervisory
force and foreman shall not perform work etc. ; and that supervisory force
etc have worked and also worked overtime on Saturday
V. In regard to Kathryn : " Demand $1.00 per hr with back pay to Jan.
29, 1946, in accordance with terms of the contract She is rated as a drill
press operator and rates are in signed contract.
On April 18, Mrs Heisler gave Dorsey the Respondents' written reply to the
grievances. It reads as follows :
I. In answer to grievance I the Company states that to its knowledge there
has been no overtime worked ; and if the Union will state the employee or
employees alleged to have worked overtime and the date of such alleged over-
time, the Company will make further answer to said grievance.
II In answer to grievance II, the Company states that Verona has not
been transferred from her original job, and that the Company has not dis-
criminated against her ; and if the Union will give the particulars as to the
time and the circumstances of the alleged discriminations, it will make
further answer.
III. In answer to grievance III, the Company states that the time lost on
February 22, 1946, was by reason of the voluntary work-stoppage on the
part of the employees, and the Company did not agree to make payment for
any time not worked.
IV. In answer to grievance IV, the Company denies that the supervisory
force or foremen have worked or worked overtime on Saturday on any pro-
duction work
V. In answer to grievance V, the Company denies that Kathryn is a drill
press operator, and states that she has performed many of the jobs in the
plant. The Company admits that she is entitled to drill press operator's pay
12 This refers to Kathryn Abben.
HEISLER MANUFACTURING COMPANY 1125,
for whatever time she has spent on a drill press, and will figure such time-
and make payment therefor. The Company further admits that she is
entitled to increase of pay retroactive to January 29, 1946, for the particular-
job or- jobs she was performing during that time, and will make payment
on the basis of the rate of pay of the job which she was performing during.
said period
upon receiving from Mrs Heisler the above answer to the grievances, Presi-
dent Dorsey remarked, "Well, they are okay by me If you had to depend on me-
to write written grievances there would be very few wrote." On that occasion.
Haugen, a member of the Union Committee, said to Mrs Heisler, "It is all right
with me " The Union accepted Mrs Heisler's written answer to the alleged
grievances, and made no further request of the Respondents to discuss them.,
Mrs Heisler informed the Union Committee that the Respondents would meet
with the committee at any time. The record does not disclose that the Re--
sporulents engaged in any unilateral action or conduct, subsequent to the execu-
tion of the contract with the Union on March 21, 1946, which affected the con-
ditions of employment of any of their employees.
Concluding findings'
The record is clear and the undersigned finds that there was no refusal, on the
part of the Respondents, to bargain collectively with the Union either before
or after the contract was signed To the contrary, the evidence is conclusive-
that collective bargaining commenced just as soon as the Respondents were in-
formed that the Union had organized the employees The Union requested a'
meeting on January 8 The Respondents began negotiations on January 7, by
advising the Union that it should first be certified by the Board Evidently the
Union was of the same opinion as it immediately filed with the Board a Petition.
for Certification of Representatives Pursuant to the filing of this Petition, the
union representative was informed by the Regional Director's office that a meet-
ing between the Union and the Respondents had been arranged for January 15.
The meeting was held and collective bargaining proceeded, which resulted in the
execution of a consent election agreement that very day, and the election was
held the next morning Bargaining conferences continued, being held approxi-
mately every 3 or 4 days from that time until the final contract was executed on
March 21. The record shows that during the 10-week period from January 8
to March 21, approximately 20 bargaining conferences were held. This is an,
average of 2 each week. The record further shows that at the beginning of the
conferences, the parties were far apart in their demands, but as bargaining pro-
gressed, these differences became fewer and fewer, until final agreement was
reached and embodied in a written agreement. The undersigned is of the opinion
and finds that the record does not substantiate the allegations of the amended
complaint that the Respondents refused to bargain with the Union either before
or after the execution of the contract on March 21, 1046
C. The lay-offs on January 12, 1946
The amended complaint alleged that on or about January 12, 1946, the
Respondents laid off 17 named employees and, from that date until oil of about
January 29, 1946, refused and failed to recall them, and each of them, to their
former or substantial equivalent positions of employment, in order to discourage
membership in, activities in behalf of, and support of the Union among all of the
employees in the unit The undersigned finds that these :allegations of the
amended complaint are not supported by the record
The record discloses and the undersigned finds that during the period from
November 17, 1945, to January 29, 1946, there was a general strike among the
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck drivers operating long-haul motor trucks in the Midwest area, which
seriously affected the Respondents' business, in both the shipment of finished
goods and the receipt of raw materials. During a part of that time there
was also an embargo on rail shipments in that area. The Respondents enjoy
a nation-wide distribution of their products. Sales are made through distribu-
tors and catalog houses, particularly Sears, Roebuck & Co. and Montgomery
Ward. Sales are made F. O. B., Waterloo, Iowa, and shipments are made in
accordance with customers' instructions. If the Respondents ship contrary
to such instructions, any extra costs entailed have to be borne by the Respon-
dents. Shipments are made by motor trucks, railroads, parcel post, express,
and air mail. Approximately 75 percent of the, shipments is made by motor
trucks.
On November 4, 1945, Mrs. Heisler became ill from a heart attack and was
taken to a hospital, where she remained approximately 4 weeks. She then
returned to her home. She did not go to the plant until about December 22,
and then only for an hour or two. About December 29, she resumed her work
in the plant. According to the credited testimony of Mrs Heisler, at the time
she went to the hospital there were 16 or 17 employees on the pay roll and
when she returned to work at the end of December their number had been
increased to about 30. During Mrs. IIeisler's absence from the plant from
November 4 to December 29, the plant was operated under the supervision of
Mr. Heisler, Wallace Butler,12 Dean Newell," and Calhoun.
Charles S. McKinstry, president of the National Bank of Waterloo, Iowa,
where the Respondents did their banking business, testified that early in
December 1945, the Respondents sought to increase their debit at the bank.
That on or about December 10, 1945, he and Burke, cashier of the bank, made
an inspection of the Respondents' plant in respect to the inventory of both
finished and unfinished products on hand, and also the financial condition of
the business as disclosed by the Respondents' books. l\IcKinstry's testimony
in this respect, reads in part as follows:
It appeared the company was badly in need of additional money due
to accumulation of inventory at this time, and we did procure for them an
additional $40,000 00; that was right around December 11 . . . The
$40,000.00 was procured through other banks because they, with their
indebtedness, had used practically the limit our bank could give to any one
borrower, which was $70,000 00 . . . We advised Mr. Heisler at that
time that planning had not worked out as the management had hoped,
that materials were piling up, that finished merchandise was not moving
out, and it would be impossible for them to secure additional credit, that
they were beyond what they should be borrowing at that time, and that
what we wanted was simply a liquidation of the finished merchandise
and that that was unfinished but could be completed with materials on
hand, and that we did not want any additional labor used to work the parts,
castings that would not develop into a complete piece of merchandise to
be shipped immediately . . . We discussed matters along this line on
both the 11th and at a later date, on or about the 22nd, that the plant
should be operated more in keeping as they had in the past than they had
the latter part of 1945, in that the number of employees was too high in
keeping with their facilities and the cash position they were able to oper-
ate in. I think the management felt, due to orders and prospects that
12 Butler was hired by the Respondents on or about October 8, 1945. He was the son
of Attorney Ben Butler. He was hired to assist management. He was released in
December 1945.
is Newell was hired by the Respondents on or about December 22, 1945, as an office man.
HEISLER MANUFACTURING COMPANY 1127
they should double their production, but management was not able to take
advantage of that and their operations did not prove out successful, nor
were their finances such that they could carry the large inventory they had
accumulated . . . It came onto them along through the latter part of 1945,
piled up the latter part of 1945.
McKinstry further testified that he advised the Respondents on December 11,
and again on or about December 22, t o reduce their pay-roll expenses. , The
business of the Respondents was periodically audited by certified public ac-
countants. A statement prepared by these auditors covering operations for the
last 3 months of 1945, showed a loss of approximately $19,000. The auditors
advised the Respondents to "quit taking in inventory, to cancel out orders
or to have them hold up production and not to have such a large payroll."
According to the credited testimony of Mrs. Heisler, during the week end prior
to January 7, while at home, she and Mr. Heisler discussed the advisability
of laying off some employees temporarily ; that at about 4: 00 p in on Monday,
January 7, they called Calhoun and Newell into the office, and after some dis-
cussion, they decided to make the lay-offs. It was decided to keep about 12
of the key employees who were essential in carrying out the curtailed opera-
tions of the plant. A copy of the pay roll was brought in and the work of each
individual employee was discussed and a list was made of those to be laid
off. Newell testified that the list "was made on the basis of those that had
been there the longest period of time and perform the work that was felt would
continue in the plant." Calhoun testified that he was present when the selec-
tions were made as to who would be laid off and who would be retained, and
that consideration was given only to the question of who were the most valuable
and the best workers. Calhoun's testimony in the connection reads as follows:
Some-several of the employees were quite familiar with all types of
production. They were kept for that reason. Several others of the em-
ployees were kept because they were on a job of production that was needed
for shipment, and that was the main basis for keeping the number there
that were kept.
Calhoun further testified that Mrs. Heisler relied upon his judgment as to
what employees should be retained, and that she asked him "who was the best
for that job and if I thought we had better keep this one or that one." Both
Calhoun and Mrs. Heisler testified that when they made up the list of those
to be laid off they did not know which employees belonged to the Union and
which ones did not. Although the Respondents had taken a physical inventory
of all products and materials in the plant, as of December 31, 1945, it was con-
sidered advisable to recheck these articles before announcing the lay-offs. This
was done immediately after the lay-off list had been prepared. Calhoun testified
that with the exceptions of two or three articles, they had a sufficient inventory
to last several weeks.
The next day, January 8, the Respondents' attorneys prepared the lay-off
letter on the Respondents' letter heads, which reads as follows :
JANUARY 8, 1946.
Because of the truckers strike, we have been unable for sometime and
now are unable to make shipments of our products. During this time we
have continued our production .to the point that we now have an inventory
which is far in excess of what it should be. We have done this because we
did not wish to lay off any of our employees.
However, our inventory has now reached the point that it would be unwise
for us to continue production further at this time.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are, therefore, required, by conditions not of our making, to tempo-
rarily discontinue production after this week You will therefore, be
temporarily laid off after noon of Saturday, January 12, 194514 Your check
for the week ending January 12, 1945, will be ready for you in accordance
with our custom, on Friday, January 18th, 1945
Will you please keep us informed of any change of address so that we
may get in touch with you promptly when we are warranted in again starting
production.
Yours very truly,
HEISr.ER M_1uv aCTuriNo C0MMP_\NY,
By H. F HEISLER
That afternoon at 4: 00 p. in. the letters were handed to the employees to be
laid off, by Calhoun and employee Carl Sheets That was on Tuesday. The
lay-offs did not become effective until noon on Saturday, January 12 The record
shows that 17 production and maintenance employees and 2 office employees were
laid off. After the lay-offs, the employees who were left in the plant were
Newell, Calhoun, Sheets, 12 production and maintenance employees, and 2 office
employees. Of the 12 production and maintenance employees retained at work,
,916 were members of the Union and 3 were not. At the time of the lay-off, the
Union had no officers or Union Committee in the plant The Union Committee
was not selected until January 14, which was 6 days after the lay-off letters
had been released.
Bernard C. Ackerson, an employee of the Rath Packing Company, Waterloo,
Iowa, testified that he was on the picket line at the Respondent's plant on
January 15, during the strike, and that he asked Newell if the employees had
been laid off because the Union had filed a petition with the National Labor
Relations Board, and that Newell replied, "Partially that, yes " "The truck
situation too." Employees Barclay and Peck testified that they heard Ackerson
ask Newell if the lay-offs were on account of the Union. According to Barclay,
Newell replied, "Partially " According to Peck, Newell replied, "Yes, well, you
-know the truck strike." Ackerson's testimony cannot be accepted, because the
record shows that the Union filed its petition with the Board on January 9, the
-day after the lay-off letters had been released, and there is no evidence in the
record that the Respondents knew, at the time they decided to make the lay-offs
that such a petition was going to be filed. Newell denied that lie made the state-
ments to Ackerson, which were attributed to him by Ackerson, Peck and Barclay.
Newell testified that Ackerson said something to him about the lay-offs being due
to union activity and that lie replied it was due to the truck strike The under-
-signed credits the testimony of Newell
Employees Verona Berg and Erwin Fisher testified that on January 8, Mrs.
Heisler told them that there was going to be a lay-off on account of the truck
strike and railway embargoes, but key employees would be retained. As related
above, there was a strike in the plant on January 15 in protest of the lay-offs,
-which was settled on January 29, and all of the strikers and those who had been
laid off were recalled to work in accordance with an agreement with the Union 19
11 The date 1945, appeaiing in this letter should have been 1946 On January 11, a
,duplicate letter was given to the employees involved showing the correction
>a Included in this figure is employee Dorothy Voght The record is not clear as to
whether she was a member of the Union or not
' The Union made no request that the 2 office employees, who had been laid off, be
-returned to work The employees made no effort to return to work after the strike and
the Respondents did not recall them. Office employees were specifically excluded from the
ibai gaining unit.
HEISLER MANUFACTURING COMPANY 1129
Concluding findings
In January 1946, the Respondents were faced with the economic necessity of
:a retrenchment in the operation of their business. The truck strike had seriously
curtailed deliveries of finished products and the receipt of materials necessary
to complete orders. Pay-roll expenses had been increased approximately 50 per-
cent during Mrs. Heisler's absence from the plant in November and December
1945. The Respondents were compelled to borrow more money. Their bank ad-
vised them to cut down the pay roll and reduce the manufacture of products
until further sales of finished products could be made. Their auditors gave them
similar advice. The Respondents decided upon a temporary lay-off to accom-
plish that purpose. The fact that the lay-offs were finally decided upon subse-
quent to the receipt, by the Respondents, of the Union's letter informing the
Respondents that it represented a majority of the Respondents' employees, might
suggest that the Respondents made the lay-offs in order to discourage member-
.ship in the Union. However, the record does not support this theory. That
the Respondents had no such intention is clearly revealed in the fact that when
the lay-offs were made neither the Respondents nor Calhoun knew who were
members of the Union and who were not. No consideration whatsoever was
given to union membership or union activity. As testified to by Mrs. Heisler,
Calhoun and Newell, who selected the employees to be laid off and those to
be retained, consideration was given only to the question of which employees
it would be advisable to retain in order to operate the plant in the most efficient,
.and at the same time, least expensive manner As stated in the lay-off letter,
it was only a temporary expedient to meet an emergency, and the employees
would be promptly recalled as soon as normal production was resumed.
The undersigned concludes and finds, from the entire record in the case, that
the Respondents laid off the employees on January 12, 1946, as related above,
.solely for economic reasons, and not for the reasons alleged in the 'amended com-
plaint, and that by such lay-offs the Respondents have not engaged in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
D. Alleged demotion and constructive discharge of Evan Calhoun
The amended complaint alleged that the Respondents demoted Evan Calhoun
from foreman to production worker on or about January 28, 1946, and con-
structively discharged him on or about March 1, 1946, and thereafter refused to
reinstate him, for the reason that he refused to aid, assist and support the Re-
spondents in their attempts to interfere with, restrain or coerce their employees
in the exercise of the rights guaranteed in Section 7 of the Act. The under-
signed finds no substantial evidence in the record to support these allegations. 1
Calhoun was hired by the Respondents in July 1944, and was assigned to the
engineering department. He assisted Mr. Heisler in the development of various
tractor parts winch the Respondents desired to manufacture In November
1944, he was assigned to work in the toolroom. In April 1945, he was made
foreman of production"
Calhoun testified that during 1945, before and after he became foreman, Mr.
Heisler reprimanded him a number of times for wasting the time of the em-
ployees during working hours According to Mrs. Heisler after January 1, 1946,
Calhoun was not permitted to continue checking tolerance on the production
line because he had made a number of costly errors in that work After that
17 According to the Heislers, Calhoun was never given authority to hire or fire employees.
Calhoun testified that he did have such authority. The record shows that during Mrs.
Heisler's illness from November 4 to the latter part, of December 1945, Calhoun did hire
several new employees.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, that work was assigned to Carl Sheets. Sheets was hired by the Respond-
ents in June 1945, to assist Mr. Heisler in experimental work. In August 1945,
he was made foreman of the toolroom. On January 1, 1946, he was assigned
to the checking of tolerances on the production line and also to the checking of
manufactured items against the blueprints. About the middle of January 1946,
at the request of Calhoun, the pay of both Calhoun and Sheets was changed
from,an hourly rate to a weekly rate of $52.50 each.
Calhoun testified that on or about January 5, Mrs. Heisler told him that John
Lehmann, the janitor, had informed her that about 85 percent of the em-
ployees were members of the Union; 's that Mrs. Heisler then asked him,
Calhoun, if he knew anything about it, and he replied that he had not heard
anything about it; that he immediately told Lehmann what Mrs Heisler had
said and that he further told Lehmann that "if he expected to work in the plant
he would have to get along with the fellows in the plant, that he was going
behind his fellow employees' back and he couldn't get along with the boys in
the plant under those conditions ;" that Lehmann denied that he had gone into
the office and told Mrs Heisler anything ; that on January 7, Mrs. Heisler repri-
manded him for what he had said to Lehmann. Calhoun's testimony in this
connection reads as follows :
. . . Along about three o'clock, I should judge, that afternoon, she
[Mrs. Heisler] called me in the office and asked me-well, she said she was
a little disappointed, if it got to the place where she couldn't trust me then
she didn't feel like she could trust anyone, and I asked her what she meant
by that, and she said I had jumped onto Mr. Lehmann and told him he would
have to quit running into the shop-the office-and telling what was going
on, and that if I was any kind of a foreman she wouldn't have to go to out-
side sources for information, and she was rather disgusted with me for
not telling her about the union activities . .. I admitted telling Dlr. Leh-
mann that if he wanted to get along with the boys in the shop he couldn't
play stool pigeon and I think that was about the amount of the conversation.
The testimony of Mrs. Heisler in regard to this incident, which is credited by
the undersigned, reads as follows :
Around January 7 or 8, Mr. Lehmann had come into my office and told
me the boys were picking on him. I said, "Why?" He said, "They are
always telling me that I -am running to the office." "Well," I said, "Mr.
Lehmann, don't pay any attention to that because every time something
wrong, something is wrong with the boiler you almost have to come and
tell me because I generally call the electrician or talk it over with Mr.
Heisler what we should do." Well he said, "The workers are getting mean
to me. They are tying up my coat jacket, the sleeves in my coat jacket and
they hide my cap" "Well," I said, "That's too bad. I will talk to Mr.
Calhoun about it Did you tell him?" He said, "1\'o, I haven't, I thought I'd
come and tell you" He says, "The workers are always telling me that I
am running to the office telling you things." I said, "I'll take the matter
up with Mr. Calhoun." ... I asked Mr. Calhoun why he didn't come
and tell me these things were going about the boys being mean to Mr.
Lehmann . . . He said that he would take it up with the boys and see
what it was to it. . . On January the 12th I came back to the office
Saturday afternoon an hour or so. Mr. Lehmann was there and he told me
how mean Mr. Calhoun had talked to him. . . . I talked to him [Cal-
houn] in my office, January 14 . . . About Mr. Lehmann. I said, "I don't
18 Lehmann did not testify at the hearing.
HEISLER MANUFACTURING COMPANY 1131
think much of your discipline , the way you handled Mr. Lehmann." I
said, "It's too bad when a janitor can't come and tell management different
things about the way the boiler is running, when a faucet is leaking." I
said, "Now, you have told Mr. Lehmann , as I understand it from Mr. Leh-
mann, to keep his damned mouth shut, stay out in the shop and quit running
and babbling to Mrs. Heisler ." I said, "Why didn't you tell me that they
had even pinned tags on the back of Mr . Lehmann?" "Well ," he said, "I
knew it, but I didn't think it was necessary . . . I told Mr. Calhoun that
Mr. Lehmann had always come to me in regard to if there vas a window
pane broken out in the building, or if we needed some certain thing of
chemical solution for the boiler , or when the ashes had to be hauled, all
maintenance of operating the building , "and now you tell him to shut his
mouth and not even come to me."
Mrs. Heisler denied that she told Calhoun she was disgusted with him for
not telling her about the union activity . She testified that Calhoun told her
and also Mr. Heisler that he did not know anything about any union activity
until he saw the picket line at the plant on January 15. Calhoun testified that
he never heard Mrs. Heisler say anything about unions . The undersigned
credits the denial of Mrs. Heisler and finds that she did not say to Calhoun
that she was disgusted with him for not informing her about the union activity.
Calhoun testified that Mrs. Heisler did not request him to make any inquiries
about the Union, and that she did not make any derogatory statements about
the Union to him. Calhoun was not laid off on January 12 when the general
lay-off occurred.
In respect to his alleged demotion , Calhoun testified that in the evening of
January 28, the day on which the January strike was settled , Mr. and Mrs.
Heisler, Newell , Sheets and himself went to the plant office and he asked Mr.
Heisler what work he should do the next morning. Mr. Heisler replied that
he did not care, and for him to see Sheets. Calhoun inferred from that remark
that he had been demoted and that Sheets had been made foreman. However,
he told Mr. Heisler that it was all right as long as he received his same wages.
Calhoun further testified that he told Mr. Heisler that he did not "exactly care
for the demotion , but if that was the way he wanted it we would let is go at
that." Mr. Heisler testified that Calhoun was not demoted , and that when
Calhoun asked him what he should do the next day, he told him to check with
Sheets. Mr. Heisler 's testimony in this respect , which is credited by the under-
signed, reads as follows:
In the first place Calhoun was never demoted. On the other hand his
particular testimony with regard to the demotion, there was no such state-
ment on his part . . . He asked about certain blueprints in the checking
of some parts that was in production and that we were running, and I said
that was a new job just out of the toolroom, and is being set up, and Mr.
Sheets handles the new jobs that come out of the tool room, and so I sug-
gested he check with him as to the jobs he was making inquiry about.
Calhoun testified that on the next morning, he asked Sheets what work he
wanted him to do, and that Sheets replied, "If you will help me on some of
the problems I don't understand maybe I can make it all right" ; that most
of his work, after that, was in the toolroom ; that Sheets did not tell him, in
so many words, that he had been made foreman ; that he did not ask Mr. Heisler
whether or not Sheets had been made foreman ; that about Z weeks after his
demotion, the combination on the office safe was changed and he was not given
the new combination, although he had been given the old combination ; that
the locks on the plant doors were changed and he was not given any keys,
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although previous to the change, he had keys to the plant; that his elect ic-
buzzer call number from the office was given to Sheets ; that subsequent to
his demotion, he was not asked to interview salesmen or farmers requiring
tractor parts, as he had previously clone; and that he asked Newell why he
had been demoted, and Newell replied, "To be frank with you, because you.
were friendly with the employees" According to the credited testimony of
Newell, Calhoun asked him why he had been demoted and he replied that,
as far as he knew, he had not been demoted. Newell's testimony in this respect,
which is credited, by the undersigned, reads as follows:
I told him that he was not demoted as far as I knew That as far
as I knew he was too friendly with the employees, that during the course
of their working hours he spent too much time in conversation with them
and not enough time at his own work.
Sheets testified that about the first of February, just after the employees had
returned to work after the January strike had been settled, he was made fore-
man of production and Calhoun became assistant foreman ; that Calhoun con-
tinued to do the same work that lie had previously done; and that he was never
assigned to production work.
The undersigned finds that a change from general foreman of the production
line to assistant foreman under Sheets occurred in the employment status of
Calhoun on or about January 29, but not for the reason that he refused to aid,
assist and support the Respondents in their attempts to interfere with, restrain,
or coerce their employees in the exercise of the rights guaranteed in Section 7
of the Act, as alleged in the amended complaint The record contains no sub-
stantial evidence that the Respondents made any such attempts. Calhoun had
made several costly errors in checking tolerances with blueprints and early
in January he was relieved of that work His pay remained the same after
lie had been made assistant foreman and lie was never reduced to a production.
worker, as alleged in the amended complaint and, according to Sheets, his duties
remained the same. Calhoun admitted that he had never complained to either
of the Heislers about this change in his employment The record discloses and
the undersigned finds that the changing of the combination on the office safe
and the locks on the plant doors had no connection whatsoever with Calhoun's
employment; that Calhoun's electric buzzer ring was not given to Sheets; and
that no change was made in respect to his interviewing salesmen or farmers.
The record shows and the undersigned finds that Calhoun was changed from
general foreman to assistant foreman on or about January 29, 1946, for reasons
other than those alleged in the amended complaint.
In respect to the alleged constructive discharge of Calhoun on or about March
1, 1946, the record shows and the undersigned finds that prior to his employment
by the Respondents, Calhoun had applied to the United States Patent Office for
patents on a "starter" for International tractors and a "swinging draw bar exten-
sion hitch" for all makes of tractors and, in September 1945, he entered into an
agreement with the Respondents, under which the Respondents agreed to man-
ufacture these articles and pay Calhoun a royalty on their sales. Some of these
articles were manufactured and sold by the Respondents during the latter part
of 1945 and in January 1946.
About the middle of February there was a meeting between the Union Com-
mittee and the Respondents in the plant office, at which the matter of changing
the Respondents' business from a partnership to a corporation was discussed.
HEISLER MANUFACTURING COMPANY 1133
Calhoun and employee Gerald Witmer" were also present. Mr. Heisler in-
formed the meeting that since October 1945, he had been considering the advis-
ability of incorporating the business, as a corporation had many advantages over
a partnership, and that if the business was incorporated, the articles of incor-
poration would prohibit the corporation from employing any one who was
financially interested in any patented article that the corporation might manu-
facture and sell. He further stated that other corporations followed that prac-
tice. Prior to that meeting, Mr. Heisler had discussed the matter with his
attorneys and accountants. Calhoun testified that, at that meeting, Mr. Heisler
said the incorporation would probably be completed within a week or 10 days,
and that he and Witmer would have that time in which to look for other jobs.
Mr. Heisler denied that lie said anything about when the services of Calhoun and
Witmer would be terminated. Harold Peck, a member of the Union Committee,
and Sheets testified that they were present at that meeting and heard all that
was said. Their testimony makes no mention of Mr. Heisler having said that
Calhoun and Witmer had a week or 10 days to look for other jobs. It is not
necessary to resolve this conflict in testimony, as there is no evidence in the rec-
ord to support a finding that the Respondents threatened to incorporate the busi-
ness for the purpose of persuading Calhoun to quit his job, because he refused
to aid, assist and support the Respondents in their attempts to interfere with,
restrain or coerce their emloyees in violation of the Act. The Respondents' busi-
ness has not yet been incorporated. Calhoun testified that subsequent to that
meeting, he secured a job at John Deere's in Waterloo, Iowa, and on or about Feb-
ruary 26 or 27, he went to the plant office for the purpose of informing Mr. and
Mrs. Heisler that he was quitting their employment, but he was unable to see
them. On Friday, March 1, he told Sheets that he had quit and was going to
work for John Deere., Sheets testified that Calhoun told him on Saturday, March
2, that he was taking a job in the pattern shop at John Deere's on Monday, March
4, and that Calhoun then had a John Deere's badge. Calhoun further testified
that he quit his job with the Respondents for three reasons. His testimony in
this respect reads as follows :
I had three reasons for leaving. The first one was that I was informed
that I had to leave because of this corporation, and the next thing was that
I didn't care too much for the kind of bawlings out I had got, and I was
getting rather nervous. I was taking treatments at the doctor and he told
me my nervous disorder was affecting my health, and the third reason was
my demotion.
Thus by his own admission Calhoun quit his job of hip own volition. Nowhere
in his testimony does Calhoun claim that he was actually or constructively dis-
charged by the Respondents. Neither is there any evidence in the record that
Calhoun ever made any complaint, either to the Union or to the Respondents,
that the Respondents had attempted to elicit his support in an attempt to in-
terfere with, restrain or coerce their employees in the exercise of the rights
guaranteed in Section 7 of the Act. In respect to what effect incorporation of
the Respondents' business would have upon Calhoun's job, he knew that nothing
would happen unless or until the business had actually been incorporated. In
respect to the "bawlings out," the record shows that Calhoun had made several
costly errors in checking manufactured articles with the blueprints in 1945,
and that he had been reprimanded several times by Mr. Heisler on that account.
19 Witmer had applied for a patent on a certain article which he intended to have
manufactured by the Respondents. In the latter part of March, Witmer purchased some
machinery from the Respondents and opened his own plant at Denver, Iowa, for the
manufacture of his patent, at which time, he quit his job with the Respondents.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After January 1 , 1946, he was taken off that work entirely. In regard to his
demotion , Calhoun did not consider it of sufficient importance to even request
an explanation of the Heislers . According to his own testimony , he said nothing
to the Heislers about it after he discovered that his salary had not been changed
and his duties were practically the same.
The record discloses and the undersigned finds that Calhoun was not discharged
by the Respondents either actually or constructively, but that he voluntarilg quit
his employment with the Respondents on or about March 1, 1946.
Concluding findings
The undersigned concludes and finds from the entire record in the case that
the change, made by the Respondents, in the employment status of Evan Calhoun
on or about January 28 , 1946, as related above, were for reasons other than
those alleged in the amended complaint , and that the termination of his
employment with the Respondents on or about March 1, 1946 , was voluntary and
of his own free will and accord, therefore the undersigned finds that by such
change . of employment status and termination of employment , the Respondents
have not engaged in unfair labor practices , within the meaning of Section 8 (3)
of the Act.
E. The alleged discharge of Verona Berg
The amended complaint alleged that on or about April 18, 1946, about 5 days
before the instant hearing, the Respondents discharged Verona Berg and there-
after refused and failed to recall her to her former or substantially equivalent
employment for the reason that she joined and assisted the Union and engaged
in concerted activities with other employees for the purpose of collective bar-
gaining or other mutual aid or protection. The undersigned finds that the record
does not substantiate these allegations.
Berg began working for the Respondents in June 1944 . Her first jobs in the
plant consisted of painting, assembly work, and operating drill and punch
presses. During 1945, she helped to operate the Respondents' pick-up truck.
Also during that year, she helped Mrs. Heisler, from time to time, at the latter's
home, for which she was paid at her regular wages. Berg joined the Union on
December 15, 1945.20 She was not laid off on January 12, when the general lay-
off occurred. She went on strike with the other employees on January 15. After
the January strike had been settled on January 28, Berg was assigned to the
packing room, where she packed governors and manifolds. She continued on
this work until about February 24, then she packed governor parts for 2 days.
She went out on strike with the other employees o.i February 26., She returned
to work in the plant on March 25, after the February strike had been settled, and
resumed her work in the packing room, packing governors 21
In assigning work to the various employees after the February strike, Berg
was sent back to the shipping department, where she had been working prior
to the February strike. According to Berg, she went to the packing room
and said to Foreman Sheets "What am I going to do, am I going to be a part
of the shipping room?" Sheets replied that he did not know. Berg then said,
"I am not going to do it, that hasn't been my job before I went on strike and
I don't think I will have to do it now but I will be glad to help out a few
days to get the company back in shape." Berg further told Sheets that she
20 For just 2 days about April 1 and 2 , 1946, Berg was a union steward and a member of
the Union Committee . She requested the Union to appoint some one in her place, because
she did not like the job.
21 Packing governors consisted of placing a number of small boxes on a table and filling
them with about a dozen small parts taken from individual bins located near the packing
table . The job required the employee to stand and also to do some walking.
HEISLER MANUFACTURING COMPANY 1135
refused to be classified as part of the shipping department Sheets said that
he would see Mrs. Heisler about it About 2 hours later, Mrs Heisler called
Berg to the plant office According to Berg, she told Mrs. Heisler that she
did not want to be classified as part of the shipping room, and that Mrs. Heisler
said she did not have anyone else to do that job and that Berg would have to
work there for a few days. Beig replied that she was willing to work in the
shipping room for a few days in order to help out, but not permanently.
Berg then returned to her job packing governors.
According to the testimony of Mrs. Heisler, Sheets told her that Berg had
complained to him that she did not want to pack governors, as she did not like
it, and that she could not stand on her feet on account of trouble with her
leg. According to Berg, on Monday, April 1, Newell assigned her to assembly
work, but after a short time, employee Bakke was put on that work, and
Newell told Berg to work on the packing. Berg told Newell that she had
more seniority than Bakke and that Bakke could do the packing. Newell said
he would see Mrs. Heisler Very soon Mrs. Heisler came in and told Berg
that Bakke did not know how to pack, and that she was employed only tempo-
iarily, and that Beig should go back to packing Berg then started crying
and Mrs. Heisler made an obscene remark, and said to Berg "From now on
you come in at seven-thirty, being you are going to be in the shipping room." 22
Berg then returned to work in the packing room
The next day the Union Committee met with Mrs Heisler and Sheets in the
plant office, and the question of Berg packing governors, together with the matter
of operators setting up their own machines, were discussed The credited testi-
mony of Mrs. Heisler in respect to that meeting, reads as follows
She [Berg] wanted to know why she had to pack governors I told
her that we had certain orders to pack and ship and that we would have
to fill the orders. If we didn't fill orders and ship material out I didn't
see how the company was going to operate and pay any of the employees.
Well, she said she didn't like it, she'd sooner sit down or paint. She said
she could paint about an hour and a half, she could stand up that long,
then she'd have to sit down. Well, she said "I'd like to run the punch
press." Harold Peck 23 spoke up and said "Why don't you let Ruth 2} go
down and pack governors?" I looked at him and said, "Well, things have
changed You signed a contract for seniority." I said "Ruth has seniority
on doing what she is doing and she is an older employee than Verona
[Berg]." He said "Oh, I didn't know that" I told Verona it was very
foolish to hire a person temporary for a few days and to teach them all
the governor parts when she knew them all, and then have to lay the tem-
porary employee off when there was no more assembly work or paint work.
Well, she said she couldn't stand to stand on her feet. I told her I wasn't
running a hospital, I was trying to run a manufacturing plant. . . . Well,
she said that she would go back and pack governors but she didn't see
why I couldn't hire someone new. I told her to pack governors and get
the orders out and when work came off the punch presses she could do
assembly work.
According to Sheets, at that meeting Dorsey, a member of the Union Com-
mittee, said that if Berg could not stand on her feet and work, she should not
be in the Pik-it. At noon that day, April 3, Berg checked out and went home.
22 The hours in the shipping room were from 7: 30 a . in to 4 • 00 p in. Elsewhere in the
plant they were from 7 : 00 a m. to 3 30 p in.
sa Peck was a member of the Union Committee.
2' Peck w.is, no doubt, referring to Ruth Zihner
717734-47-vol. 71-73
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She went to see Dr. Burton M Gotshall, an osteopath, and he gave her a letter,
which reads as follows.
APRIL 3, 1946.
To whom it may concern:
This is to certify that I have today examined Verona Berg, Diagnosis:
Sacro Iliac Strain with involvement of the Sciatic nerve
Rest is indicated in her case for speedy recovery. Would recommend
she be off her feet for a time.
That same day Berg's husband took the letter to the plant office and gave
it to one of the office girls. Berg remained at home until Friday; April 12,
which was pay day, when she went to the plant for her check. While there,
she told Sheets that she might be back to work the next day ; however, she did
not return to work until Monday, April 15. She arrived at the plant a few
minutes before 7: 00 a in., and asked Sheets what work she should do. Sheets
told her to go to packing According to Berg, she replied, "So its packing, is
it? I can't guarantee you I will be here all day because I know I can't stand it.
I will try it as long as I can " About 9. 30 a. in. she told Sheets that she could
not work any longer and that she was going home, but she would return the
next morning According to Mrs Heisler, she had a meeting with the Union
Committee that afternoon, April 15, and the case of Berg was discussed. Mrs.
Heisler's testimony in this respect, reads, in part as follows :
. . . in this meeting it was mentioned that Verona couldn't stand on
her feet, she didn't want to pack governors, she wanted to run a punch
press, she wanted to sit down I said to Les Dorsey, "What am I going
to do with the other employees, send them home so she can sit down, that
has greater seniority than she?" I said to Arley, "Do you want to go
home, Arley, so that Verona can run the punch presses?" . . Les Dorsey
said that he told her [Berg] that if she wasn't feeling well that she go
home and not try to work until she felt better.
According to Berg, she returned to the plant the next morning, April 16,
and asked Sheets what work she was to do, and he told her it was packing.
She replied, "I can't stay. There is no use in tearing down all the good I
done by staying home last week just to come back and have that occur again."
Berg did not go to work but returned home. Berg further testified that she
lived quite close to the plant and, about noon, Mrs Heisler called her over to
the plant and after some conversation, in which Berg told Mrs Heisler that
she could not be on her feet for more than 1 hour and forty-five minutes at a
time and that she was not going to do an., more packing, His. Heisler told
her that she had some painting and assembly work for her if she wanted to do it.
Berg agreed and checked in the plant at 1:00 p.m She did painting and assembly
work that afternoon. 'Berg returned to work the next day, April 17, and did
assembly work all day. That was a sitting down job. That day Mrs. Heisler
requested Berg to secure a release from her doctor, saying to her, "If anything
happens to you while you are working here our insurance is liable." That night
Mrs. Heisler's testimony in respect to this incident reads as follows :
APR11 17, 1946.
To Whom It May Concern:
This is to certify that Verona Berg is able to assume duties but should not
be on her feet for too long a period at a time.
Berg returned to work the next day, April 18, and resumed work on the as-
sembly line She gave the doctor's letter to Sheets. According to Berg, at about
25 This was Arley Haugen, a member of the Union Committee.
HEISLER MANUFACTURING COMPANY 1137
9: 00 a. in Mrs. Heisler, called her into the toolroom where Dorsey, president
of the Union, was working. Berg 's version of what transpired at that meeting,
reads as follows :
... She [Mrs. Heisler] had that doctor 's release in her hand and read
it out loud and she says, "If," has to be in there. I can't give you a job
where you are sitting down for a while and then standing up for a while, or
first standing up for a while and then let you sit down for a while. I have
an order for governors and I would like to have you go down and help Opal." :e
and I said, "I am not going to work in packing It isn't my original job.
I don't like that kind of work and I can't stand it and I'm not going down
there," and she said she had an order for 500 governors from Sears and
Wards, and I said, "If you have an order for 500, you also have 500 speed
change castings to assemble and you also have other things to assemble"
and she said, "Now, you are starting to run management, aren't you?" And
I said, "No, I am not running management but I have worked here long
enough to know what you are going to need and what you aren't going to
need " And she said, "Yes, you are running management," and I said, "There
is a lot of stuff around heie to be done and I know there is a lot to be done
if you have got that many orders," and she said, "I can put Ruth on it."
She says, "She has more seniority than you have," and I said, "Yes, Ruth
has more seniority than I do but she also has weights, and I don't think
she could keep ahead with both " . . . She said, "If you are not going to
pack, I have nothing for you to do. That assembling I could have done next
year." and I said I wasn't going to pack governors and she said, "Are you
going to i etnse?" And I said, "I can't stand it" And she said, "I haven't
anything else for you to do. You can go home" I said. "If there wasn't any-
thing for me to do I suppose I can go home," and I said, "All right," and I
went to check out and while I was going to the time clock she followed me
and threw the doctor's release toward me and she said, "That doesn't mean
a goddamned thing to me, "and as far as she was conceived I could tear it
up and - -."'
Mrs Heisler 's testimony in respect to this incident reads as follows :
I had just had a long distance telephone call asking us if we could get out
so many 1530 governors to Omaha that day by Union I told the Company
that I thought we could . . . I went out into the factory and asked Opal
Bakke, who was helping to pack temporarily, how many governors she had
packed Site told me. I said, "I'll go ask a couple members of the Committee
and get Verona and see if she won't help to get this order out, and then she
can assemble some of the rest of the day as she has assembled about an hour
and a half or an hour and 45 minutes now. Maybe she could stand up now
again for an hour or so." I went and got Arley Haugen and went to the
assembly table and said, "Verona, I would like to talk with you, would you
come into the toolroom where Leslie Dorsey 28 is?" She said, "Yes " We
went into the toolroom and I said, "Red [Dorsey] I have a certain order that
I have to get out. Now Verona has refused to pack governors many tines
I'd like to get this order out; why can't she come down and help us till
around noon?" Red says, "I see no reason why she can't " Verona says, "I
am not packing governors ; Fischer 29 said I didn't have to, Harris 30 said I
didn't have to. I am not packing governors, I don't like to pack governors."
Y° She was referring to employee Opal Bakke.
r' There followed an obscene expression which is not necessary to repeat.
$8 Dorsey was President of the Union
29 Fischer was International Representative of the Union.
11 Harris was National Representative of C 1 O.
1138 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
She said, "I never packed them before, I don't know why I have to pack them
now." I said, "It's funny to me that you know how to pack them-you never
packed them before." She said, "I refuse to pack governors. If I have to,
I am going home," and I said, "By the way, also do you mean to tell me that
you are interfering with management, that I can't say what work has to be
done?" Well, she said, "If I don't want to pack governors, I don't have to."
I said, "Okay, if you refuse to pack governors, that's all I want to know."
Arley and Red Dorsey both told her that they thought she should pack. She
said, "I'm checking .out and going home," which she did. By the way, that's
the time she started crying.
According to Berg, she then left the plant and went home. She went into the
plant on Monday night, April 22, but not for the purpose of going back to work.
On that occasion, she said to some of the employees, "It looks like there is some
of my kind of work to be done Looks like I had better come back " According to
the credited testimony of Mrs. Heisler, since Berg terminated her employment
with the Respondents on April 18, 1946, the Union has not filed any grievance with
the Respondents on Berg's account, that Berg's time card was never permanently
removed from the card rack and it is still there; that it was the custom and
practice of the Respondents that whenever an employee's service with the Re-
spondents was terminated, to send a notice of separation to the government for
unemployment records; that no such notice has been sent in respect to Berg; that
Berg will be put back on the pay roll at any time she may wish to resume work in
the plant ; and that Berg has never made any request to go back to work in the
plant.
The record discloses and the undersigned finds that Verona Berg was not dis-
charged by the Respondents, but that she voluntarily quit her job with the
Respondents on or about April 18, 1946.
Concluding findings
It is inconceivable that the Respondents would have discharged Berg within a
month after the signing of a collective bargaining agreement with the Union
because Berg joined the Union and engaged in concerted activities for the purpose
of collective bargaining. The record contains no evidence in support of such a
theory The record is clear and the undersigned finds that Berg refused to do
the work assigned to her, although it was only for a day or two to help out in an
emergency, and rather than do the work, she voluntarily quit her job The
Respondents had been especially considerate on several occasions in assigning
work to Berg. She was not laid off in the January general lay-off. She was never
discharged and could have gone back to work at any time she desired. The
undersigned finds from the entire record in the case that on or about April 18,
1946, Verona Berg quit her employment with the Respondents of her own free
will and accord, and that her employment with the Respondents was not termi-
nated for the reasons alleged in the amended complaint ; therefore the under-
signed finds that in respect to Berg's termination of employment, the Respondents
have not engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
F. Alleged interference, restraint, and coercion
The amended complaint alleged that since January 4, 1946, the Respondents
have violated Section 8 (1) of the Act by (a) questioning their employees about
their union activities and affiliations; (b) advising, urging, and warning them
to refrain from assisting, becoming members of, or remaining members of the
Union ; (c) giving wage increases and attempting to introduce new piece work
rates during the time when the Union sought to bargain collectively; (d) ad-
vising their employees that they would never sign a contract with the Union;
HEISLER MANUFACTURING COMPANY 1139
(e) urging and advising them to abandon their strikes; (f) using vile, pro-
fane, and abusive language in talking with their employees ; (g) physically
assaulting their employees; (h) threatening to sell the plant and the machinery
therein; and (i) selling and removing machinery from the plant The Re-
spondents' answer denies these allegations, except that it admits that the
Respondents gave an increase in wages to certain employees after 6 weeks
of employment pursuant to their established policy, and that certain machinery
was sold and removed from the plant for the reason that it was no longer useful
to the Respondents and its removal was necessary in order to provide more
storage space These allegations are discussed below in the order named
(a) Calhoun testified that when employees Haynes and Tanner came to the
plant office about January 24, and requested permission to return to work,
Mr Heisler asked Haynes who was the main one "pushing" the Union, and
that Haynes replied that it was Burns and that Peck also had a hand in it.
Haynes and Tanner testified that Mrs. Heisler asked that question and Haynes
told her it was Burns. Mr Heisler denied having asked Haynes that question
or any similar question. Mrs. Heisler denied that such a question was asked
on that occasion or that Haynes said it was Burns and Peck. Mrs. Heisler
further testified that she and Mr. Heisler had ah eady attended several bar-
gaining meetings with the union representatives and that they knew who were
the most prominent in the Union, and therefore it was not necessary to ask
such a question. Both Newell and Sheets testified that they were present on
that occasion, and that no such question was asked by Mr. Heisler and that
no such reply was made by Haynes In view of the conflict in the testimony
of Calhoun, Haynes and Tanner, and the denials of Mr. and Dirs. Heisler,
Newell and Sheets, the undersigned credits these denials and finds that neither
Mr. nor Mrs Heisler made the statements attributed to them by Calhoun, Haynes
and 'Fanner
(b) Dorsey testified as to what occurred at the meeting between the Union
and the Respondents on January 15, at the time that the consent election was
agreed upon arid, after stating that he could not remember anything more that
was said at the meeting, he was asked if anything was said about the employees
forming their own union, he replied "I believe it was Harry [Heisler] said
something if we wanted a union in there why didn't we form our own instead
of calling in somebody from outside." Burns, a member of the Union Commit-
tee, testified that Dir. Heisler said that he wondered why the employees wanted
an outside union rather than one of their own. -Air and Mrs Heisler and Newell
testified that they were present at that meeting and that Dir. Heisler did not
make any such statement. The undersigned credits their denials and finds that
Mi Heisler did not make the statement attributed to him by Dorsey.
(c) It was the policy and practice of the Respondents to give new employees
an increase in wages of 5 cents an hour after 6 to 8 weeks of satisfactory
service. According to the credited testimony of Mrs. Heisler when the pay
checks were issued for the work week ending January 12, an increase of 5
cents an hour was given to four employees in accordance with that policy. The
authority to give this service increase was granted by the War Labor Board at
the time that the Respondents' wage structure was set up. There is no other
evidence in the record of the Respondents having given any wage increases
during the time that the Respondents and the Union were engaged in collec-
tive bargaining Mrs. Heisler testified that no other wage increases were given
dining that period.
On February 21, Mrs. Heisler called the Union Committee into her office and
told them that she wanted to put the "starter housing line" on a piece rate
basis, and requested them to have a meeting and discuss it among themselves
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and let her know their decision the next morning. The next day, February 22,
there was a conference between Mrs. Heisler and the Union Committee in re-
gard to that matter. During that conference, there was a work stoppage in the
plant of about 2 hours' duration. No agreement was reached at that meeting
in respect to the rates to be paid It was agreed, however, that time studies
would be made and local rates investigated and that the subject would be
taken up for further discussion at a later date. In the meantime, the em-
ployees agreed to go back to work. Piece work rates were never put into
operation in the plant.
The undersigned finds that the Respondents committed no unfair labor prac-
tices, within the meaning of the Act, by giving the 5-cent increase to the four
employees as above related, or by discussing with the Union Committee the sub-
ject of piece work rates
(d) Peck testified that "either the morning that the contract was signed,
[March 21] or the day before" he was on the picket line and he heard Mrs
Heisler say, "I won't sign any-I won't ever sign any damn contract." Burns
testified that he saw Mrs. Heisler at the plant that day, but that he could not
recall that she made any remarks to the employees on that occasion, but when
counsel asked him if she said anything about a contract, he replied that, she
said, "I won't sign a contract now," and that he did not know what she was
referring to. Mrs. Heisler denied having made that statement. Neither Peck
nor Burns testified as to what led up to that alleged statement by Mrs. Heisler,
and the undersigned finds it difficult to believe that she simply made that state-
ment to the employees without any previous or subsequent conversation. At
that time the Respondents were bargaining with the Union and were on the
verge of reaching an agreement, which in fact, was consummated, either on
that day or the next. The undersigned credits Mrs. Heisler's denial and finds
that she did not make the statement attributed to her by Peck and Burns
(e) Calhoun testified that during the second week of the January strike em-
ployees Tanner and Haynes came into the plant office and told Mr. Heisler that
they wanted to return to work ; that Haynes said he had a wife and two children
to feed and that he had to work for a living, and that he went on strike be-
cause he thought the Union would get him higher wages and better working
conditions ; and that the picket line was a "flop" and he was ready to go back to
work. Tanner testified that about January 24, he and Haynes went to the plant
office to see the Heislers about going back to work. His testimony, in part, reads
as follows :
We just told them we wanted to go back to work. As Mr. Haynes said,
there wasn't no use walking back and forth and sticking there, and going
to work would be better off, and I decided I would go back to work the
next morning, and I did.
Mrs. Heisler testified that Haynes and Tanner came to the office to see her
about going back to work; that she telephoned to Attorney Swisher to that
effect; and that Swisher told her if these employees had made arrangements
with the Union to go through the picket lines and go back to work, to let
them do so if she had any work for them, therefore she permitted them to come
into the office. The undersigned finds in this incident no attempt on the part
of the Respondents to urge and advise the employees to abandon the strike,
as alleged in the amended complaint. These two employees had voluntarily
ceased to strike and desired to return to work. In complying with this request,
the Respondents cannot be said to have urged and advised them to abandon the
strike, and the undersigned so finds.
(f) Mr. Heisler testified that early on the morning of February 26, Sheets
informed him that there was a sit-down strike in the plant, and that he went to
HEISLER MANUFACTURING COMPANY 1141
the plant immediately and when he arrived there he walked in and said, "What
the God damned hell goes on around here " There is some testimony in the
record that Mrs. Heisler, on two or three occasions while talking to employees,
used some profanity and other expressions, which the undersigned does not
consider necessary to relate in detail. However, the undersigned finds that
the use of similar language and expiessions by both employers and employees
in manufacturing plants is not uncommon, and per se is not proscribed by the
Act. The undersigned finds that the expressions used by the Heislers, as
found in the record, do not constitute unfair labor practices, within the meaning
of the Act, as alleged in the amended complaint.-
(g) Peck testified that during the January strike while he was on the picket
line. the Heislers came to the plant in their motor car, but could not drive into
the plant because the driveway had been blocked up; that they got out of the
car and tried to walk into the plant; that in doing so, Mrs. Heisler hit him on
the right side with her "fist or hand"; that he had his overcoat on and it did
not hurt him; that she did not hit anyone else; and that he did not take any
legal action against her According to the credited testimony of Mrs. Heisler,
she and Mr. Heisler drove up to the plant in their motor car, but could not enter
the driveway, as the strikers had blocked it with railroad ties, iron and wood.
They asked them to clear the driveway, but they refused. The strikers, including
Peck, formed a line in front of the Heislers, to prevent them from entering the
plant They went through, however, and according to Mrs. Heisler, it is
possible that her shoulder touched one of the strikers. She denied that she
struck" Peck. The undersigned credits her denial.
Orma Barclay testified that on or about March 18, during the strike, Mrs.
Heisler came out into the plant where there were two benches; that employee
Lott was sitting on one bench and Abben and Berg were sitting on the other;
that when Lott saw Mrs. Heisler coming, he left the bench and Mrs. Heisler
then went to the other bench ; that Berg got up off the bench, but Abben did not ;
that Mrs. Heisler caught hold of the end of the bench furthest from Abben and
moved along it until she reached Abben ; that Mrs. Heisler then pushed her
hand into Abben's face and Abben caught hold of Mrs. Heisler's hair ; that they
struggled with each other until they were parted; that after the altercation
Mrs. Heisler told Abben that she could not come on the property again ; 31 Berg
and Abben gave similar testimony. The testimony of Mrs. Heisler, in regard
to this incident, which is credited by the undersigned, reads as follows :
I was in my office the morning of March 18, 1946, and the telephone rang
and an employee that was doing painting for us called me and told inc that
he came to work but the employees told him not to come in that there wouldn't
be any work did that day They were still on sit down strike in the plant. I
didn't like this because our employees insisted all the time that there was
only a stoppage of work, not stopping people from coming into the plant. I
walked out to where the employees were all sitting, and standing, and I said,
"What do you mean by stopping people coming in that door? You have
stated in your meetings that you are only sitting here on stoppage of work,
you are not forming an} picket line or stopping anybody coming into the
building." Air. Barclay told me to shut my mouth, with a few other words
added to it, and I told him not to stop anybody else that come in that door.
Just at that time I looked out of the window, as the employees were all
setting and standing in front of the big window in the factory . . . I glanced
down and I said, "Where did you get those benches? They were put away
as you had them half broke. How did they get out here?" There was no
si Abben came back to work with the other strikers after the strike was settled.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one setting on one bench. I picked it up and shoved it behind me By that
time there was no one sitting down but Kathryn Abben on one end of the
bench furthest away from me I said, "Get up off of that bench and give
it to me." I grabbed ahold of the bench and she flew at me like a wildcat,
and I got the bench and I had it under my right arm. She grabbed ahold of
my brown slack suit that I was wearing at'that time, and Verona came up
and grabbed me in the hair, and Barclay came up and hit me in the left arm
that I carried a black and blue mark for ten days It was impossible for
me to do anything because I had the bench under my right arm I dropped
the bench and I pushed Kathryn away from me, and I said to Dean [Newell],
"Take these benches." John Greiner was in the plant by that time and
grabbed me back from the group and said, "Don't fight with them" and Mr.
Newell made the same statement. I said, "I don't mind having a fight, but I
just wish that they'd tell me and we'd take one at a time, not three "
These benches were kept in the back part of the plant at a table that was used
by the employees to eat on. The strikers had brought them up to the other end
of the plant to sit on during the strike.
The evidence is insuffi^ient to make a finding that these incidents, or either of
them, constituted a physical assault by the Respondents upon their employees,
thereby interfering with, restraining, or coercing them in the exercise of the rights
guaranteed in Section 7 of the Act, and the undersigned so finds.
(h) Several witnesses 32 testified that on February 26, the beginning of the sit-
down strike, Mr. and Mrs Heisler came to the plant and were told by Burns,
representing the Union Committee, that they wanted a written agreement from
the Heislers in respect to wages and redo=fictive pay,' and that they would go back
to work if they got it; that Mr Heisler told them that his attorney was out of town
and he could not do anything until lie returned; that Mr Heisler then said he
would sell the plant, and that the advertisement would be in the local newspaper
that night; that a few minutes after that, Mr. Heisler instructed Sheets to have
several machines disconnected from the power circuit; that later an electrician
from town arrived at the plant to disconnect the machines, but upon learning
that the employees were on strike, lie refused to do it. Mr. Heisler's testimony
in respect to this incident reads as follows :
He [Burns] said, "Well, we are not going to go any further with work
in your plant until we have a signed contract . . I said, "Boy that is
the $65 question." I said, "We are negotiating and the signing of the con-
tract is shortly at hand, to my knowledge. If you don't feel that you can
work until we have a signed contract, temporarily there isn't much I can
do for you, as I first will consult my attorneys." . . . Well, he [Burns]
said he wanted us to leave the damned attorneys out and sign some type of
agreement right there in the plant with them, and I told Mr Burns that
I was sorry, that I hired firms to assist us in our legal activities and pro-
cedure and I would have to consult the attorneys, and that other than that
I couldn't do much for them . . . I believe though that I recall this part
of a little discussion or an explanation on my part, that Mrs. Heisler's
heart condition was such that these work stoppages and miscellaneous things
were becoming too hard on her so that it worked on ine considerably, and
if the doctor's orders required her to sell out and discontinue in business
activities I would stay in the plant alone I think that was the end of'the
discussion.
32 These witnesses were Calhoun, Peck, Abben, Burns, and Dorsev
>a The Heislers had irformed the Union Committee several times dui ing bargaining con-
ferences that when an e greement had been reached, any par inci eases would become retro-
active to January 29, tie date on which the first strike had been settled.
HEISLER MANUFACTURING COMPANY 1143
Abben testified that Mr. Heisler told the employees, on that occasion, that he
could not do anything in the absence of his attorney, and that Mr Heisler also
said, "If this business is going to hurt Agnes or me we will sell out . . ."
"It will be in the papers tonight."
Mr Heisler further testified that a few days prior to this strike, he had
sold two machines to two different purchasers in Chicago, and that 4 days
prior to the strike, he had gone to Rock Island, Illinois, to purchase machines to
replace the ones he had sold to the Chicago firms; that the reason he ordered
them to be disconnected on the day of the strike, February 26, was because it
had to be done at that time, in order to get them to the purchasers on the agreed
delivery date ; that he lost the sale of the machines because the electrician
would not disconnect them ; that he informed the purchasers by telephone of the
situation, and they canceled the orders, and that the machines were not neces-
sary in the operation of the plant
The undersigned finds that the Union Committee called a sit-down strike on
February 26, and issued an ultimatum to the Respondents that the strike would
continue unless or until the Respondents executed a satisfactory wage agree-
ment retroactive to January 29, at which time the January strike had terminated.
The Respondents had already agreed to this retroactive pay during their bar-
gaining conferences with the Union Committee, and they did not desire to execute
several different agreements, prior to the execution of the final contract. Also
their attorney, Swisher, was temporarily out of town, and the Union Committee
was so informed. The undersigned accepts Mr. Heisler's testimony in respect
to what he said about selling out. The Respondents had just passed through a
strike from January 15 to 29, and were engaged in negotiating a final contract
with the Union The record is clear and the undersigned finds that Mrs. Heisler's
physical condition was not good, as she had been confined in a hospital for
6 weeks or more during November and December with a heart attack. The
plant was not advertised for sale, neither was the machinery sold.
In the opinion of the undersigned, regardless of the conflict in testimony, what-
ever statement Mr. Heisler made on that occasion, in respect to selling the plant,
was a tactical maneuver, which was justified in view of the Union Committee's
ultimatum, and the undersigned finds that by such statement, the Respondents
have not interfered with, restrained, or coerced their employees in violation of
the Act.
(i) According to the credited testimony of Gerald Witmer, a resident of Den-
ver, Iowa, which is located about 12 miles from Waterloo, Iowa, he was in the
employ of the Respondents during February and March 1946. During the course
of this employment he informed Mr. Heisler that he intended to open a plant ir.
Denver for the purpose of manufacturing an article of machinery which he had
patented, and he desired to purchase certain machines from the Respondents that
were not being used. The Heislers agreed and, in the latter part of 'March, sub-
sequent to the execution of the contract between the Union and the Respondents
on March 21, the Respondents sold certain machines 3q to Witmer, which the
latter installed at his plant in Denver. Mr. Heisler's testimony as to the reasons
for selling this machinery to Witmer, reads as follows :
Basically and primarily the necessary room that we were going to need
when the water came up, and we lost Barn No. 11 and the Selzer Building
on 4th Street.35 The tremendous stock we just testified we had on hand had
to be moved and had to take up space some place, and naturally it had to
14 The machines sold to Witmer were three lathes, one Simplex mill, one drill press, and
three grinders
35 These two buildings were used by the Respondents for storage purposes. They became
flooded in March and had to be vacated.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be in our own plant. These machines were not in use, we were not running
any operations on them, so we had no reason to and we couldn't, in fact, make
the necessary space any place in the plant other than to move machinery
and rearrange the plant especially on the 11th Street side of the building.
Dorsey, president of the Union, testified that the Respondents informed the
Union Committee that they were going to sell some machines to Witmer and no
objection was made. The record shows and the undersigned finds that the Union
Committee was aware of the sale and made no objection to it; that no operation
of the plant was hampered or hindered by the sale; that no employees were laid
off or worked shorter hours on that account; and that there is nothing in the
contract between the Union and the Respondents restricting the sale or purchase
of machinery by the Respondents. Therefore the undersigned finds that by the
sale of the aforesaid machinery to Witmer, the Respondents have not engaged in
any unfair labor practice, within the meaning of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondents, Harry Heisler and Agnes Heisler co-partners, doing busi-
ness as the Heisler Manufacturing Company, Waterloo, Iowa, are engaged in
commerce, within the meaning of Section 2 (6) and (7) of the Act.
2. United Farm Equipment and Metal Workers of America, Local 230, affiliated
with the Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
3. The aforesaid Respondents have not engaged in unfair labor practices,
within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, the undersigned hereby recommends that the amended
complaint herein be dismissed in its entirety.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fitteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board. Any party desiring to submit a
brief in support of the Intermediate Report shall do so within fifteen (15) days
from the date of the entry of the order transferring the case to the Board, by
filing with the Board an original and four copies thereof, and by immediately
serving a copy thereof upon each of the other parties and the Regional Director.
Dated July 26, 1946. W. P. Wyss,
Trial Enwminer.