Kiekhaefer Corp.

National Labor Relations Board - Board Decisions

Jul 23, 1942

42 N.L.R.B. 793 (N.L.R.B. 1942)

In the Mattei of KIEKHAEFER CORPORATION and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, LODGE No 1326, A F. OF L
Case No C-2258 -Decided July 03, 1942
Jurisdiction . motor manufacturing industry
Settlement : stipulation piovidi ng for compliance with the Act
Remedial Orders : entered on stipulation
Practice and Procedure : pursuant to stipulation, complaint dismissed insofar
as it alleged disciimination against a named employee
Mr Stephen M. Reynolds, for the Board.
Mr E. C IKielehaefer, of Cedarburg, Wis , for the Iespondent.
Mr Gilbert E Brunner, of Waukesha, Wis, for the Union
Mr Charles Lubner, of Cedarburg, Wis., for the Independent
Mr George J Hadjinoff, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists , Lodge No 1326 , A. F. of L, herein called
the Union , the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twelfth Region (Milwaukee,
Wisconsin ) ; issued its complaint dated May 2,1942, against Kiekhaefer
Corporation, Cedaibuig, Wisconsin , herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), (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 accompanying notices of hearing
were duly served upon the respondent, the Union, and the Mercury
Workers' Independent Union, herein called the Independent
Concerning the unfair labor practices, the complaint alleged in'sub-
stance that the respondent - ( 1) had refused to bargain collectively
with the Union as the exclusive representative of employees in an al-
leged appropriate unit; (2) on or about May 24, 1940, instigated,
sponsored , and dominated the formation of the Independent, and there-
after continued to dominate and interfere with the administration of
and contributed financial and other support to the Independent, and
42N L R B, No 156
793
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about June 19, 1940 , entered into an illegal collective bargaining
agreement with the Independent; (3) laid off or failed to recall to
work certain employees during the periods indicated in the complaint
because of their union membership and activities ; (4) laid off or dis-
charged three employees and has since refused to employ them because
of their membership and activity in the Union, ( 5) warned and dis-
couraged its employees against affiliation with or activities on behalf
of the Union and questioned its employees about their union member-
ship and activities ; (6) by the above and other specified acts, interfered
with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
The respondent filed an answer dated May 23, 1942, admitting some
of the allegations of the complaint but denying that it had engaged
in any unfair labor practices
On July 6, 1942, a hearing was begun in Cedarburg, Wisconsin,
before Thomas S Wilson, the duly designated Trial Examiner Be-
fore any testimony was taken, the parties entered into the following
Stipulation and Agreement
IT IS HEREBY STIPULATED AND AGREED , by and between Kiek-
haefer Corporation, a corporation, hereinafter called Respondent,
International Association of Machinists, Lodge No 1326, affili-
ated with the American Federation of Labor, hereinafter called
the Union, Mercury Workers' Independent Union, hereinafter
called the Independent, and Stephen M Reynolds, Regional
Attorney, National Labor Relations Board, that
1 Upon amended charges, duly filed by the Union through
Gilbert Brunner as accredited agent and representative of the
Union for this purpose, the National Labor Relations Board,
hereinafter called the Board, by John E Johnson, Regional
Director for the Twelfth Region, acting pursuant to Article II,
Section 5, and Article IV, Section 1 of the National Labor Rela-
tions Board Rules and Regulations, Series 2, as annended, duly
issued a Complaint and Notice of Hearing thereon on May 2,
1942, against Respondent The Complaint and Notice of Hear-
ing thereon and the Sixth Amended Charge, were duly served
upon Respondent, the Independent, and the Union On July 6,
1942 a hearing was opened in Cedarburg , Wisconsin before
Thomas S Wilson, the Trial Examiner, duly designated by the
Board, which was adjourned before any testimony was taken
upon the execution of this Stipulation and Agreement
2 This Stipulation and Agreement, together with the Sixth
Amended Charge, Complaint and Notice of Hearing, Affidavit
of Service of Complaint and Notice of Hearing , Answer of
Respondent, Respondent 's three written Motions for contin-
KIEKHAEFER CORPORATION 795
uances, the Regional Director's two Orders granting continu-
ances and one Order denying continuance, and Affidavit of Serv-
ice of the Oi ders, shall constitute the entire record in this case,
and may be filed ith the Chief Trial Examiner of the Board,
Washington, D C
3 All parties hereto waive their right to further hearing and
to the making of Findings of Fact and Conclusions of Law by
the,,Board heiein,'.and.to any other or fuither procedure before
the Board
4 Respondent is now and has been since January 31, 1940, a
corporation organized under and existing by virtue of the laws
of the State of Wisconsin, having its principal office and place'
of business in the City of Cedarburg, County of Ozaukee, State
of Wisconsin, where it is engaged in the manufacture, sale, and
distribution of gasoline outboard motors, electric motors, mag-
netic equipment and other electric products The principal raw
materials used by Respondent in the course and conduct of its
business and in the operation of its plant at Cedarburg, Wiscon-
sin, hereinafter called the plant, consist of aluminum castings,
steel bars, sheets and forgings, grey iron castings, copper tubing,
carburetors, magnetos, fittings, gaskets, nuts, bolts, screws, and
other materials, large quantities of which Respondent causes to
be purchased and transported in interstate commerce from and
through states of the United States other than the State of Wis-
consin to the plant
During the eleven month period ending August 31, 1940, Re-
spondent purchased iaw materials in the amount of $210,700, of
which approximately 90°Jo represented shipments to the plant
from points outside the State of Wisconsin
Respondent did cause, and now causes, large quantities of fin-
ished products manufactured at the plant to be sold and trans-
ported in interstate commerce from-the plant to,-unto and through
states of the United States other than the State of Wisconsin
During the eleven month period ending August 31, 1940, Re-
spondent made sales of finished products amounting to approxi-
mately $318,200, of which approximately 90o%o represented ship-
ments from the plant to points outside the State of Wisconsin
Respondent agrees that it is engaged in interstate commerce
within the meaning of Section 2 (6) and (7) of the Act
5 The Union and the Independent are labor organizations
within the meaning of Section 2, Subdivision (5) of the Act
6 All production and maintenance workers employed at the
plant, excluding clerical and supervisory employees and sales-
men, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7 On June 6, 1940, the Union was, and at all times thereafter
has been, the duly designated representative of a majoiity of the
employees in the unit described in paragraph 6 hereof, and by
virtue of Section 9 (a) of the Act, on June 6, 1940, was, and at
all times thereafter has been, the exclusive representative of all
the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and
other conditions,of employment
8 Upon the basis of the pleadings in this matter and this
Stipulation and Agreement, if approved by the Board, an order
may forthwith be entered by the Boaid, as follows
Kiekhaefer Coiporation, its officers, agents, successois, and as-
signs shall -
1 Cease and desist from •
(a) Refusing to bargain collectively with International Asso-
ciation of Machinists, Lodge No '1326, A F of L, as the exclu-
sive representative of all its pioduction and maintenance em-
ployees, excluding clerical and supervisory employees and sales-
men in respect to rates of pay, wages, hours of employment and
other conditions of employment ; -
(b) Dominating or interfeiing with the administration of
Mercury Workers' Independent Union, or the formation or ad-
ministration of any other labor organization of its employees,
and from contributing support to Mercury Workers' Independent
Union of any other laboi oiganization of its employees,
(c) Recognizing Meicury Woikers' Independent Union as the
representative of any of its employees for the purposes of dealing
with Respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment and other conditions of work;
(d) Discouraging membership in International Association of
Machinists, Lodge No 1326, A F of L, or any other labor organ-
ization of its employees, by discharging its employees, or in any
mannei discriminating in regard to their hire and tenure of
employment or any term or condition of employment,
(e) In any other manner interfering with, restraining or coerc-
ing its employees in the exercise of their rights to self-organization,
to form, join or assist labor organizations, to bargain collectively
through iepresentatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining or
other mutual aid or protection
2 Take the following affirmative action to effectuate the palm US
of the Act x4p
rN,f(a) Upon request, bargain collectively with InteinaL6iha ^ ^ ;,,
ciation of Machinists , Lodge No 1326 , A F of L as t>i'e,`t¢, ,
bargaining representative of all production and ni^a^ii^
KIEKHAEFER CORPORATION 797
employees of Respondent at its Cedarburg, Wisconsin, plant,
excluding clerical and supervisory employees and salesmen,
(b) Withdraw /and withhold from Mercury Workeis' Inde-
pendent Union all recognition as representative of any of its
employees, for the purpose of dealing with Respondent concerning
grievances, labor disputes, rates of pay, wages, hour,, of employ-
ment or other conditions of work, and completely disestablish
Mercury Workers' Independent Union as such representative;
(c) Offer to Dean Stowell and C Maul immediate and full
reinstatement to their former or substantially equivalent position
without prejudice to their seniority and other rights and
privileges ; -
(d) Upon application by E Lewitzke within 30 days following
his discharge from the aimed forces of the United States, offer
E Lewitzke immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority
and other rights and privileges , ,
(e) Make whole Dean Stowell, C Maul and E Lewitzke for loss
of pay, if any, that they may have suffered by reason of their dis-
charge of lay off, by payment to each of them, of a sum of money
equal to that which he normally would have earned as wages from
the date of such discrimination against him to the date of the
offer of reinstatement in the case of said Stowell and Maul, and
to the date of induction into the armed forces in the case of said
Lewitzke, less his net earnings during said period 1,
(f) Make whole the following-named employees for loss of
pay, if any, that they may have suffered by reason of their lay-
offs or Respondent's refusal to recall them to work during the
periods indicated after their names, less their net earnings during
said periods: °
E Lewitzke ------ 6/5/40-6/21/40
Alfied Kraft____________________________ 6/11/40`7/1/40
Roland Kemp___________________________ 6/21/40-7/17/40
John Peterson -------------------------- 7/17/40-10/15/40
Harty Grammol ------------------------ 10/15/40-2/5/41
^10/10/40-12/27/40
Harry Neuenfe]tlt_______________________
3/10/41-3/20/41,
L Demnath_____________________________ 12/2/40-12/30/40
Albert Schweder------------------------- 2/2/40-1/10/41
Herbert Koss --------------------------- 12/2/40---4/1/41
Albert Hilgendorf_______________________ 4/25/41-4/28/41
'By "net earnings" is meant earnings less expenses, such as foi transportation, room
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent, which would not have been incurred but for the discrimi-
nation against' him and the consequent necessity of his seeking employment' elsewhere
Monies (re,ceivedI for workJperformedllupon Federal, State, County,, Municipal, I or other
work-relief projects shall be considered as earnings
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Post immediately in conspicuous places at its Cedarburg
plant, and maintain for a period of at least sixty (60),consecu-
tive days fi om the date of posting, notices to its employees stating
that
1. The Respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1, (a), (b),
(c), (d) and (e) of this Order;
2 The Respondent ivill take the aflitmative action set forth in
paragraphs 2 (a), (b), (c), (d), (e) and (f) of this
Order; and
3 The Respondent's employees are free to become or remain
members of International Association of Machinists, Lodge
No. 1326, A. F of L , and that the Respondent will not
discriminate against any employee because of membership
or activity in that organization;
(h) Notify the Regional Director for the Twelfth Region, in
writing, within ten (10) days from the date of this Order what
steps the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the Complaint be, and it hen eby
is, dismissed insofar as it alleges that the Respondent discrimi-
nated against Melvin Remholz
9 After the entry of the Order of the Board, as provided in
this Stipulation and Agreement, the Circuit Court of Appeals
of the United States, for the Seventh Circuit, may, upon appli-
cation by the Board and without notice to Respondent, enter a
deciee enforcing in full the said Ordei of,the Board, and each
of the parties hereto hereby consents to'the entry of such decree
and hereby waives any and all requirements of notice of the
filing of such application by the Board
10 ,It is =understood that by,the execution of, this Stipulation
and Agieement, Respondent does not admit that it committed
any unfair labor practices within the meaning of the National
Labor Relations Act, and Respondent expressly denies the com-
mission of any such unfair laboi practices;
Respondent specifically denies that it committed any of the
acts that it is now requiied by Order of the Board to cease and
desist fi om doing as set forth in Pai agr aph No 8, sub-division
No 1;
Respondent specifically denies that it discriminated against
any of the following named persons, to wit
Dean Stowell Roland,Kemp L Demrath
C Maul John Peterson Albert Schweder
E Lewitzke Harry Gi ammol Heibert Koss
Alfred Kraft Harry Neuenfeldt Alfred Hilgendorf
KIEKHAEFE 'R CORPORATION 799
either by discharge or lay-off, or by refusal to recall them to
work as alleged in the complaint as filed herein
11 This Stipulation and Agreement is made expressly subject
to the approval of the National Labor Relations Board
12 The entn e agreement by and between the parties hereto
is contained within the terms of this Stipulation and Agreement
and Consent Order and there is no verbal agreement of any kind
which varies, alters or adds to this Stipulation and Agreement
On July 14, 1942, the Board issued an order approving the above
stipulation, making it a part of the record, and pursuant to Article
II, Section 36, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, tiansferied the proceedings to the
Boaid for the purpose of entering a Decision and Order pursuant to
the provisions of the said Stipulation and Agreement
Upon the basis of the above Stipulation and the entire record in
the case, the Board makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent is a Wisconsin corporation, having its principal
office and place of business in the city of Cedarbuig, County of
Ozaukee, State of Wisconsin, where it is engaged in the manufacture,
sale, and distribution of gasoline out-board motors, electric motors,
magnetic equipment, and other electric products During the 11-
month period ending August 31, 1940, the respondent purchased raw
materials in the amount of $210,700, of which approximately 90 per-
cent represented shipments from points outside the State of Wiscon-
sin During the same period, the total sales value of finished prod-
ucts of, the respondent amounted to approximately $318,200, of which
approximately 90 percent represented shipments to points outside the
State of Wisconsin
The respondent admits that it is engaged in commerce within the
meaning of the Act
We find that the operations of the respondent constitute a contin-
uous flow of trade, traffic, and commerce among the several States
ORDER
Upon the basis of the above findings of fact, the Stipulation and
Agreement, and the entire record in the case, and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the respondent, Kiekhaefer Cor-
poration, Cedarburg, Wisconsin, its officers, agents, successors, and
assigns shall
I
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 Cease and desist fiom
(a) Refusing to bargain collectively ii ith Intei national Association
of Machinists, Lodge No 1326, A F of L, as the exclusive repre-
sentative of all its production and maintenance employees, excluding
clerical and supervisory employees and salesmen in respect to rates
of pay, wages, hours of employment and other conditions of em-
ployment,
(b) Dominating of interfering with the administiation of Mercury
Workers' Independent Union, or the foiniation of administration of
any other labor organization of its employees, and fiom,contiibuting
support to Meicury Workeis' Independent Union or any other labor
organization of its employees,
(c) Recognizing Meicury Workeis' Independent Union as the rep-
iesentative of any of its employees for the puiposes of dealing with
Respondent concerning grievances, laboi disputes, iates of pay, wages,
hours of employment and other conditions of woik,
(d) Discouraging membeiship in International Association of Ma-
chinists, Lodge No 1326, A F of L, or any other labor organization
of its employees, by discharging its employees, of in any manner dis-
criminating in regard to their hire and tenure of employment of any
term or condition of employment,
(e) In any other manner interfering with, iestrainnig of coercing
its employees in the exercise of their rights to self-organization, to
form, join or assist laboi organizations, to bargain collectively
thiough representatives of their own choosing, and to engage in con-
ceited activities, for the purpose of collective bargaining or other
mutual aid or protection.
2 Take the following affirmative action to effectuate the policies
of the Act
(a) Upon request, bargain collectively with International Asso
ciation of Machinists, Lodge No 1326, A F of L, as the exclusive
bargaining representative of all production and maintenance em-
ployees of Respondent at its Cedarburg, Wisconsin, plant, excluding
clerical and supervisory employees and salesmen;
(b) Withdraw and withhold from Mercury Workers' Independent
Union all recognition as representative of any of its employees, for
the purpose of dealing with Respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment or other conditions
of work, and completely disestablish Mercury Workers' Independent
Union as such iepresentative;
(c) Offer to Dean Stowell and C Maul immediate and full rein-
statement to their former or substantially equivalent position with-
out prejudice to their seniority and other rights and privilegesi;
KIEKFIAEFE'R CORPORATION - 801
(d) Upon application by E Lewitzke within 30 days following his
discharge from the armed forces of the United States, offer E Lewltzke
immediate and full reinstatement to his for mei or substantially equiv-
alent position without prejudice to his seniority and other rights and
privilege's ; '
(e) Make whole Dean Stowell, C Maul and E Lewitzke for loss of,
pay, if any, that they may have suffered by ieason of their discharge
or lay off, by payment to each of them 'of a sum of money equal to that
which he normally would have earned as wages fiom the date of such
discrimination against him to the date of the offer of ieinstatement
in the case of said Stowell and Maul, and to the date of induction into
the aimed forces in the case of said Lewitzke, less his net earnings
during said peiiod ',
(f) Make whole the following named employees for loss of pay, if
any, that they may have suffeied by reason of their lay-offs or Re-
spondent's refusal to recall them to work during the periods indicated
after their names, less their net earnings dui rng said pei cods .
E Lewltzke__________________________________ 6/5/40-6/21/40
Alfred Kraft_________________________________ 6/11/40-7/1/40
Roland Kemp________________________________ 6/21/40-7/17/40
John Peterson -------------------------------- 7/17/40-10/15/40
Harry Grammol______________________________ 10/15/40-2/5/41
f1O/10/40-12/27/40
Harry Nenenfeldt_ - - - - --- -- - ------ - -- -------- , 3/10/41-3/20/41
L Demrath__________________________________ 12/2/40-12/30/40
Albert Schweder_____________________________ 2/2/40-1/10/41
Herbeit Koss________________________________ 12/2/40-4/1/41
Alfred Hilgendorf____________________________ 4/25/41-4/28/41
(g) Post immediately in conspicuous places at its Cedaiburg plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that
1 The Respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d)
and (e)' of this Order,
2 The Respondent will take the affirmative action set forth in
paragraphs 2 (a), (b), (c), (d), (e) and (f) of this Order; and
3 The respondent's employees are free to -become or remain
membeis of International Association of Machinists, Lodge No
1326, A F of L , and that the respondent will not discriminate
I By "net earnings " is meant 'earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent, which would not have been incurred but for the discrimina-
tion against him and the consequent necessity of his seeking employment elsewhere Monies
received for work performed upon Federal, State, County , Municipal, of other work -relief
projects shall be considered as earnings
472814-42-%of 42-51
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against any employee because of membership or activity in that
of ganization ,
(h) Notify the Regional Director for the Twelfth Region, in writ-
ing, within ten (10) days from the date of this OI der what steps the
Respendent has taken to comply herewith
AND IT IS( FURTHER ORDERED that the Complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent discriminated
against Melvin Reinholz
MR GERARD D •REILLY took no part in the consideration of the
above Decision and Order
C