Kohler Co.

National Labor Relations Board - Board Decisions

Apr 12, 1954

108 N.L.R.B. 207 (N.L.R.B. 1954)

KOHLER CO. 207
As we have overruled the Intervenor's objections, and as
the Petitioner has secured a majority of the valid votes cast
in the election, we shall certify the Petitioner as the repre-
sentative of the employees involved.
[The Board certified United Steelworkers of America, CIO,
as the designated collective-bargaining representative of the
employees of the Employer in the unit found appropriate in
the Decision and Direction of Election herein]
Members Murdock and Beeson took no part in the consider-
ation of the above Supplemental Decision and Certification of
Representative- s.
KOHLER CO. and EDWARD ERTEL
KOHLER CO. and VERNON L. BICHLER, ET AL.
KOHLER CO. and KOHLER WORKERS' ASSOCIATION, An
Independent Labor Organization (now affiliated with INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
(KWA UAW-CIO, LOCAL 833)). Cases Nos . 13-CA-960, 13-
CA-1114, and 13 -CA-1115. April 12, 1954
DECISION AND ORDER
On October 20, 1953, Trial Examiner Eugene E. Dixon issued
his Intermediate Report in the above -entitled proceedings, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of those allegations.
Thereafter, the Respondent, the General Counsel, and the
Charging Parties filed exceptions to the Intermediate Report
and supporting briefs. i
The Board has reviewed the rulings made by the Trial Exam-
iner at the hearing andfindsthatnoprejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and
the entire record in these cases and hereby adopts the find-
iThe Respondent and Charging Parties also requested oral argument . These requests ire
denied as the record , including the exceptions and briefs, adequately presents the issues and
the positions of the parties.
108 NLRB No. 41.
208 DECISION OF NATIONAL LABOR RELATIONS BOARD
ings,2conclusions , and recommendations of the Trial Exam-
iner.'
ORDER
Upon the entire record in these cases, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Respondent, Kohler Co.,
Kohler, Wisconsin , its officers , agents, ' successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Kohler Workers' Association
affiliated with International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America (KWA UAW-
CIO, Local 833) or any other labor organization of its em-
ployees, by discriminating in regard to their hire or tenure of
employment or any term or condition of their employment.
(b) Threatening employees in their tenure of employment or
with the loss of their jobs or other economic reprisals if the
union organization is successful or if they join the Union.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Kohler Workers' Association affiliated with International Union,
United Automobile, Aircraft and Agricultural Implement Work-
ers of America (KWA UAW-CIO, Local 833) or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds necessary to effectuate the policies of the Act:
2 The Intermediate Report contains certain minor inadvertences, e.g., the Trial Examiner
quotes employee Wilcox as having told supervisor Strace that he (Wilcox) did not know the
labor laws pertaining to the posting of bulletins, whereas Wilcox testified that he said he did
know such laws. However, these madvertences affect neither the validity of the Trial Exam-
iner's conclusions, nor our concurrence therein
3The General Counsel and the Charging Parties argue, among other things, that the Trial
Examiner erred in holding that the Respondent's opposition to the CIO was not germane to the
discharge of the 12 enamelers. We find it unnecessary to pass on this question as the record
fails to estabish that the discharges were motivated by other than the enamelers' unprotected
work stoppages.
In connection with the discharge of employee Ertel, which the Trial Examiner finds dis-
criminatory, the Respondent contends in part that the discharge was valid because it believed
E rtel was inciting an unlawful concerted refusal to work overtime. However, it does not appear
that Ertel either engaged in this conduct, or that the Respondent entertained a belief that he
was so engaged. We agree with the Trial Examiner that Ertel's discharge was prompted by his
lawful concerted activities.
KOHLER CO. 209
(a) Offer to Edward Ertel, in accordance with the recom-
mendations set forth in the section of the Intermediate Report
entitled "The Remedy," full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority and other rights and privileges.
(b) Make whole Edward Ertel in the manner set forth in the
section of the Intermediate Report entitled "The Remedy." 4
(c) Upon request , make available to the Board or its agents,
for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amount of
back pay and the right of reinstatement under the terms of this
Decision and Order.
(d) Post at its plant in Kohler, Wisconsin, copies of the
notice attached hereto and marked "Appendix."5 Copies of
such notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by Respond-
ent's authorized representative, be posted by Respondent
immediately upon receipt thereof and maintained for sixty (60)
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what
steps Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that Respondent violated Section 8 (a) (3) and (1) of the
Act by the discharge of the 12 enamelers, be, and it hereby is,
dismissed.
Member Beeson took no part in the consideration of the
above Decision and Order.
4 The Trial Examiner inadvertently referred to the first period, during which Ertel should
be made whole for any loss of earnings, as: "between the date of his innduction." This is
hereby amended to read: "between the date of his discharge by the Respondent and the date
of his induction."
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
339676 0 - 55 - 15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in, or activities
on behalf of, Kohler Workers' Association, affiliated with
International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (KWA UAW-
CIO, Local 833), or any other labor organization , by dis-
criminating in regard to the hire or tenure of employment
or any term or condition of employment.
WE WILL NOT threaten our employees with loss of
employment or other economic reprisals if they join or
assist Kohler Workers' Association, affiliated with Inter-
national Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America (KWA UAW-CIO,
Local 833), or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self- organization , to join or assist Kohler Workers'
Association, affiliated with International Union, United
Automobile, Aircraft and Agricultural Implement Workers
of America (KWA UAW-CIO, Local 833, or any other labor
organization , to bargain collectively through represen-
tatives of their own choosing, to engage in concerted activ-
ities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of
such activities , except to the extent that such right may be
affected by an agreement requiring membership in alabor
organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Edward Ertel full reinstatement to his
former or a substantially equivalent position withoutprej-
udice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of our discrimination against him.
All our employees are free to become, remain , or refrain
from becoming or remaining , members in the above-named
Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
THE KOHLER COMPANY,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, or covered by any other
material.
KOHLER CO.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
211
Upon charges filed on November 2, 1951, by Edward Ertel, an individual, on May 5, 1952,
by Vernon L. Bichler, et al., individuals, and also on May 5, 1952, by Kohler Workers' Asso-
ciation, an independent Labor Organization, i the General Counsel of the National Labor Rela-
tions Board, herein called the General Counsel and the Board respectively, by the Regional
Director of the Thirteenth Region (Chicago, Illinois), issued his consolidated complaint dated
January 28, 1953, against the Kohler Company, herein called the Respondent, alleging that
Respondent had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the consolidated
complaint and the order consolidating the cases were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleges in substance, that the Re-
spondent on various dates and in various ways (1) interrogated its employees regarding their
union activities; (2) threatened its employees with reprisals for engaging in Union or concerted
activities; (3) warned its employees that their Union activities were under surveillance; and
(4) discharged various employees because they joined and assisted the Union or engaged in
concerted activities for collective bargaining or other mutual aid or protection.2
In its answer Respondent avers that: (a) Certain allegations of the complaint not referred
to in the original charge nor bearing any relation to the matters contained therein, although
occurring within 6 months before the filing of the original charge, are barred by Section 10
(b) of the Act; and (b) that other allegations of the complaint pertaining to conduct occurring
after the last charge was filed, but more than 6 months before the complaint was issued, are
also barred by Section 10 (b). These matters were again raised at the hearing where I refused
to grant Respondent's motion to dismiss the allegations in question.
As to (a) above see Jay Company Inc., 103 NLRB 1645; Indiana Metal Products Corporation,
202 F. 2d 613 (C. A. 7); Cathey Lumber Company, 86 NLRB 157.
As to (b) above there is a conflict between the Courts of Appeals: N. L. R. B. v Top Mode
Mfg. Co., 203 F. 2d 482 (C. A. 3) and Union Manufacturing Company, 200 F. 2d 656 (C. A. 5)
contra; Indiana Metal Products Corporation, supra, pro.
However, in National Licorice Company v. N. L. R. B., 309 U. S. 350, decided before the 6
months limitation was added to the language of-Section 10 (b) by the 1947 amendments, 3 the
Supreme Court held that the Board had power to prosecute in the original proceeding violations
occurring after the charge was filed.
I find nothing in the legislative history of the 1947 amendments to indicate that Congress
was concerned with or meant to change the rule of the National Licorice case. In this con-
nection and for a discussion of the Board's opinion as to the effect of the 1947 amendments
on Section 10 (b) see Cathey Lumber Compan y, 86 NLRB 157. See also Ferro Stamping and
Manufacturing Co., 93 NLRB 1459, supporting the General Counsel
The answer, while admitting that Respondent is engaged in commerce, denied in substance
that its operations had any effect on commerce. No attempt was made to litigate this matter,
'Subsequent to the filing of the charge by Kohler Workers' Association, herein called KWA,
the KWA became affiliated with International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America and at the time of the hearing was known as Kohler
Workers' Association, UAW-CIO, Local 833. This latter organization is referred to herein as
the [JAW-CIO and sometimes as the Union.
2 Those named in the complaint as having thus been allegedly discriminated against are
Edward Ertel on or about October 4, 1951, and Vernon Bichler, Clarence J Wield, Raymond
E Majerus, Vernon Clark, James H Lacy, Donald L. Raniaker, John Zanskas, Raymond W
Reseburg, Eugene A. Pfister, Robert Kretsch, Robert E. Wilcox, and James C. Dekker all on
or about April 23, 1952.
3 The following language was added to Section 10 (b) in the 1947 amendments:
Provided, that no complaint shall issue based on any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made, unless the person aggrieved
thereby was prevented from filing such charge by reason of service in the armed forces
in which event the six-month period shall be computed from the day of his discharge.
2 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which, in any event, was without merit. See N. L. R. B. v. Phoenix Mutual Life Insurance
Company, 167 F. 2d 983, cert. denied, 69 S. Ct. 68. In all other respects Respondent's an-
swer denied the commission of unfair labor practices.
Prior to the hearing a motion for a Bill of Particulars was granted in part by Trial Exam-
iner Richard N. Ivuis.
Pursuant to notice, a hearing was held in Sheboygan, Wisconsin, and Washington, D. C.,
between March 17, 1953, and June 8, 1953, before Eugene E. Dixon, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Union, and
the Respondent 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 upon
the issues was afforded all parties.
At the end of the General Counsel's case-in-chief, Respondent's motion to dismiss was
denied. Leave was granted to the parties to Take the deposition of the witness, Grube. After
the close of the hearing a motion by the Union to reopen for the purpose of receiving and
making part thereof the adjudication of the Wisconsin Industrial Commission together with
its memoranda opinions covering the claims of certainof the discriminatees herein was denied.
Although given the opportunity, none of the parties offered oral argument at the close of the
hearing but briefs were filed by the General Counsel, the Respondent, and the Union.
Upon the entire record and from my observations of the witnesses (except the witness George
Grube whose testimony was taken by deposition and the witness Donald L. Ramaker whose
testimony before the Wisconsin Industrial Commission was stipulated as part of the record
herein) I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has been a corporation duly organized and existing
by virtue of the laws of the State of Wisconsin, with its principal office and place of business
located at Kohler, Wisconsin, and with offices located in the States of Massachusetts, Illinois,
Ohio, Michigan, Texas, California, Minnesota, New Jersey, New York, Pennsylvania, Virginia,
Missouri, and Oregon, and in London, England. It is engaged in the manufacture and sale of
plumbing fixtures , heating equipment , electrical plants , air-cooled engines , and precision parts.
Its principal plant for the manufacture of the foregoing products is located in the city of Kohler,
Wisconsin.
Respondent, in the course, conduct, and operation of its business, at all times material
herein, has continuously caused large quantities of materials, valued in excess of $500,000
annually and used by it in its business, to be purchased and transported in interstate commerce
to the plant at Kohler, Wisconsin, from and through States of the United States other than the
State of Wisconsin.
Respondent, in the course, conduct, and operation of its business, at all times material
herein, did cause and has continuously caused large quantities of its products manufactured
in the plant and valued in excess of $1,000,000 annually to be sold, shipped, and transferred
in interstate commerce from the plant in Kohler, Wisconsin, into and through States of the
United States other than the State of Wisconsin.
Respondent does not deny and I find that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
At all times material herein the independent Kohler Workers' Association has been a labor
organization within the meaning of the Act; and Kohler Workers' Association affiliated with
International Union, United Automobile, Aircraft and Agricultural Implement Workers of
America (KWA UAW-CIO, Local 833) is and has been a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
The Main Issue
For several years Respondent's production employees at its Kohler, Wisconsin, plant had
been represented in collective bargaining by the Kohler Workers' Association, an unaffiliated
KOHLER CO. 213
independent union . In the fall of 1950 the UAW-CIO commenced an organizational campaign
at Respondent 's plant which , after an unsuccessful election in 1951 , culminated in its winning
Board certification and Respondent 's recognition as the bargaining representative of the
employees in June of 1952 . Up to this time there had been a continuing bargaining relationship
between the Respondent and the KWA since 1934.
During the last campaign Respondent 's unhappiness about and its opposition to the CIO repre-
sentation of its employees is clearly reflected in the record . One of the strongest advocates
for KWA affiliation with the UAW -CIO was a KWA official , Raymond Majerus , employed in
Respondent 's enamel shop . Also employed in this shop was a substantial number of KWA
members who openly and actively supported the CIO campaign.
The last contract between Respondent and KWA expired January 31 , 1952 . Negotiations for
a new contract had been carried on from December 1951 until they finally broke down in April
1952 shortly before the discharge of the 12 enamelers on April 23 --discussed below.
On April 7, 1952 , the operation of certain so -called barrel fans in the enamel shop was dis-
continued by management for the purpose of making experiments regarding dust accumulation
on the enamelware . No advance notice of the decision was given to the KWA by the Company.
Upon inquiry after the experiment began , the employees were informed that the fans were to
be off 1 week . Because the study was inconclusive at the end of that time the experiment was
continued, the KWA learning that another 2 week period was contemplated . Becoming restive
about the matter the KWA called a meeting of the employees on April 19 , 1952 , to consider
some form of protest action. The men wanted to strike and strike action was discussed but no
strike vote was taken . Instead , it was decided to inform management , in writing, that unless
the fans were put into operation by a specified deadline , the enamelers would not overextend
their efforts or force themselves to continue working on any shift when they felt ill or other-
wise felt that they could not "take it any longer."
After receipt of this letter by management 91 out of a total of 190 employees in 4 consecutive
shifts reported ill to their superiors before theend of their shifts . Eighty-seven of the ninety-
one were sent to Respondent's medical department where they were examined by Company
physicians . In connection with the examination of the 87 , no instructions were marked on the
cards of 12 by the doctors ; 25 of the cards were marked "Sent home"; 50 were marked "sent.
back to job." Of these 50 , 38 went back to work and finished their shifts . The other 12 did not
finish their shifts but left the plant . When these 12 reported for duty on their next regular
shifts they were not permitted to go to work and, after individual interviews with top Company
officials , were discharged.
It is the discharge of these 12 that is the important issue in this case. The General Counsel
contends that the CIO activity of the 12 enamelers or their concerted activities for the purpose
of collective bargaining was the motivation for their discharge . Respondent contends ( a) that
the employees were discharged for malingering - for claiming illness when they were not ill;
(b) that they were discharged for insubordination - for not returning to work when they were
directed and ordered to do so; (c) that the testimony of the 12 employees establishes that they
were not engaging in concerted activity but were acting in their individual capacities "im-
pelled" by their own illnesses and that Section 7 of the Act does not apply to such a situation
and (d) if they were engaging ui concerted activity that such activity was not protected by the
Act. I find merit in this last contention . Before discussing my conclusions, however , it will be
necessary to make more detailed factual findings about the situation of the 12 enamelers than
is contained in the foregoing.
The Nature of the Work
The enamel shop of Respondent 's plant as the name implies is the section of the plant where
the enamel finish is applied to various types of Respondent 's-production items . The castings,
after preliminary preparation in other departments , come to the enamel shop where they are
heated to a cherry red condition in furnaces with temperatures ranging from 16400 to 17800
F. In this cherry red condition enamel is manually sifted on the casting in a powder form by
means of long handled sieves varying in weight full up to about 27 pounds. The process is
much the same as a cook thoroughly salting the outside of a roast before putting it in the
oven. After the powdered enamel has been sifted on, the casting is returned to the furnace for
a few minutes "melt." Upon reaching the proper color the piece is removed from the furnace,
given another application of the enamel powder, and returned for another melt . At the end of
this melt , absent defects which may require a further application of powder and a return to
the furnace , the piece is inspected , trimmed of excess enamel , and placed in a cooler shed,
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which looks like a metal pup tent , located on the opposite side of the shop about 20 feet from
the furnaces.
Although the record goes into considerable detail as to the specific operations of the enam-
elers and the protective clothing and devices they use there is no object in going into equal
detail here. Suffice it to say that the enamelers worked in pairs , each having had certain
duties to perform in fairly close proximity to the hot castings and the furnaces; that ordinarily
operators at times pertinent herein worked about 50 percent of their 6 -hour shift on the hot
ware and possibly as much as 70 percent if much patching was required ; that in the immediate
working area of a cherry red bath tub, that is within 42 feet of it, the temperature has been
recorded at 1750 F. or slightly more; that besides the heat the enamel dust in the air is a
hazard of the job.
The barrel fans which were the subject of the enamelers ' grievance were not exhaust fans
but were simply for moving air in the building itself. They were located at the side of the shop
opposite the furnaces so as to blow across the men toward the face of the furnace. There were
28 of these so-called barrel fans installed in the enamel shop as of April 21, 1952.4 Each of
these fans at that time handled approximately 7,000 cubic feet of air per minute . When the dust
experiment started April 7 all of these fans were turned off except one which was kept in
operation as part of the experiment.
In addition to the barrel fans the enamel shop ventilating system included at that time: 36
ventilating stacks over the furnaces of approximately 19,200 cfm each making a total capacity
of 691,000 cfm; 18 monitor fans of 26,000 cfm each in a total capacity of 468,000 cfm; and
5 duct exhaust systems to handle dust and heat over work areas totaling 98,000 cfm. All
except the 27 barrel fans were in operation on April 21 and 22 , 1952, providing a ventilating
capacity of 1,257,000 cfm for a buildingof2,200,000 cubic feet or a complete air change there-
in every 1-3/4 minutes. In addition to the above, many of the furnaces had 2 or 3 12-inch desk
fans depending upon the desires of the enamelers.
Past Practices and Events
According to the testimony of Respondent's personnel director, Walter Ireland, previous to
April 21, 1952, it had been customary for an enameler desiring to leave before the end of his
shift to report the matter to his foreman. The latter would then issue an absence permit card
indicating the reason for leaving . The card constituted permission to leave the plant and could
be issued by the timekeeper as well as the foreman. An employee reporting illness as his
reason for leaving was not required to visit the medical department but might do so if he
desired . If the employee still desired to leave after visiting the plant doctor, the latter would
send him back to the foreman where the employee would obtain permission to leave. The
medical department had no supervisory authority over the enamel shop employees.
As pointed out in the General Counsel's brief, "The undenied and uncontradicted testimony
of the General Counsel's witnesses indicated, with respect to leaving the plant prior to comple-
tion of a shift, that practice was loose and varied, and a matter concerning which disciplinary
action was virtually unknown in the plant prior to the discharge of the 12 enamelers herein."
Thus we have Majerus'testimony that within the 6 months preceding the discharges in question,
enameler Frank Bunzel went home refusing to work on large ware . He was not disciplined.
Majerus also testified as to his own leaving, many times without absence permit cards simply
by telling his foreman he was going or having his partner tell the foreman if the latter was not
around at the time Majerus was ready to leave. Similarly is Vernon Clark's testimony that in
September 1951 he refused to switch to another type of ware on orders of his foreman, Bernard
Ross, and left the plant without being disciplined. Raymond Reseburg testified as to leaving
before the end of his shift 8 to 10 times in his approximate 2 years of employment with Re-
spondent. Of these occasions he leftwithoutanabsence permit card 2 or 3 times undisciplined.
There was similar testimony by employees Kretch, Wield, and Lacy among others. Vernon
Bichler not only testified that in his year and a half of employment he left his shift 8 or 10
times, either because of illness or because of the heat, without a card about 50 percent of the
time, but also testified that in August 1951 practically the entire shift left early because of the
heat --no one getting a card.
Moreover, on April 14, about a week prior to the discharges in question, enameler William
Schroeder, feeling ill during his shift, obtained a card to medical where the doctor marked it
"sent back to job." Schroeder returned the card to his supervisor, who said nothing, and
4 Thirteen were installed in 1947, 2 in 1949, 4 in 1951, and 8 in 1952.
KOHLER CO. 21 5
Schroeder left . He was never disciplined for this action . The evidence further reveals that in
the fall of 1951 , after the UAW-CIO had lost the first election in the plant and the KWA re-
mained the bargaining agent, SupervisorStracehadproposedturnmg off the barrel fans for the
winter. Majerus objected on the grounds that the fans had been installed to help the men in
their work and that it would be unfair to them to discontinue the operation of the fans . Nothing
more was heard of the matter and the fans remained in operation.
Although there appears to have been considerable latitude permitted the enamelers in leaving
before the end of their shifts the testimony shows that for the most part, even though they felt
ill or physically oppressed by the heat , they continued working until the end of their shifts or
took a break to alleviate the condition. 5
Majerus testified that prior to April 7 he became ill at work but did not always go home;
instead of leaving he would skip a piece of ware , eat something , or "take some relaxation."
Clark testified that before April 19 "if you became exhausted you continued to work." Sim-
ilarly Reseburg : there were many days they continued workmgwhen not "up to par " and they
might take a break or rest to complete a shift . Kretch: prior to April 22 it was customary to
work even though they felt they were over extending themselves . Wield: prior to April 1952
they would put on a little extra exertion to stay on . Dekker and Lacy: both complained of
headaches to the doctor but admitted they had completed shifts with headaches before . Ramaker:
whose complaint had been a pounding headache ( apparently a chronic condition ) had similar
attacks in April but had never missed any part of a shift from the first of the year until the
occasion for which he was discharged
The Discharge of the 12 Enamelers
The broad outline of the discharges of the 12 enamelers has already been set forth. The
letter or memorandum of April 19 from KWA to management concerning the fans was as
follows:
KOHLER WORKERS ' ASSOCIATION
MEMORANDUM
To: - Kohler Co. Management Committee,
Mr. Lyman C. Conger, Chairman
Copy: - KWA Eexecutive Committee
Mr. Christ H. Zittel, KWA General Chairman
Mr. Lloyd Frericks , KWA Group 3A Representative
Mr. Sam Murphy , KWA Group 3C Representative
Mr. Robert Paske , KWA Group 3D Representative
From: - Mr. Ray Majerus , KWA Group 3 Chairman
The fans in the Enamelshop were shut off without saying anything in advance to the
KWA. When an inquiry was made, weweretold that they would be shut off for one week,
during which time the Company wanted to experiment with the amount of dirt-in-ware,
if any, the fans are responsible for.
When the week was over and the fans were still not put back into operation , we were
told upon inquiry that the experiment was inconclusive the first week because of too much
rain and that another 2 -week period would be required. Accordingly , they were shut off
all last week, during which period of time there were several warm days , and are in-
tended to be shut off all this week.
The matter of the fans was thoroughly discussed at the meeting of all Enamelers held
in Kohler Recreation Hall on Suturday , April 19, 1952 . These men have been extending
and over-exerting themselves in working full shifts all this while that the fans have been
out of operation to cooperate with the Company , but they feel that to do so any longer
would be injurious to their health.
5 For a comparison of the incidence of unfinished shifts and the number of employees involved
during the first 19 days of April 1952 with the four shifts which precipitated the discharges
see the table below.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result, these men voted unanimously that if the fans are not turned on by 8 o'clock
Tuesday morning, April 22, 1952, they will no longer force themselves to complete any
6-hour shift when they begin to feel sick, dizzy or otherwise feel as if they cannot take
it any longer and that continuing to work without fans would be injurious to their health.
As indicated, after receipt of the above communication, in the 4 consecutive shifts 6 starting
with the third, 5:30 to 11:30 p. m. shift on April 21, 91 out of 190 enamelers reported ill to
their supervisors before the end of their shifts. From April 1 to April+19, 1952, the number of
enamelers failing to complete their 6-hour shifts were as follows:
7
9
8
14
15
16
17
18
19
10
11
12
As the fans were not turned off until April 7 it will be seen that the average number of
enamelers failing to complete their shifts from April 1 to 19 was slightly higher per day for
the 5 days of the period when the fans were still in operation than for the remaining 11 days
of the period after the fans had been turned off.
Eleven of the twelve discharged enamelers teetified before me as to the circumstances of
their leaving their shifts and their discharges. Testimony given before the Wisconsin Indus-
trial Commission by the 12th, Donald Raymaker, was stipulated due to his unavailability.
In general, their testimony tells substantially the same story: 7 That they were either at the
KWA meeting of April 19 when the decision reflected in the communication to the Company was
made or were informed of the plan; that the weather at the time of their last shift was warm,
humid and oppressive; 8 that within 2 or 3 hours of the beginning of their last shifts they be-
came ill or physically incapacitated to such an extent that they felt compelled to discontinue
working; that upon informing their supervisors of their desire to leave they were sent to the
medical department where they were examined by Company doctors who marked their cards
"sent back to job" but who told some of them that although no reason was found to send them
home, their leaving or continuing to work were their own decisions to make, that they could go
back to work or leave if they desired.
It further appears that upon returning from medical to their department with their marked
cards, 8 of the 12 after checking with supervision were issued new cards permitting them to
leave. Two of the remaining four, Wield and Bichler, testified they did not read their cards,
but checked out without further contact with supervision. Clark was told by Supervisor Strace,
after returning from medical and showing Strace his card marked "sent back to job," that he
"had better go back to work." Majerus worked on the 3rd (5:30 tb 11:30 p. m.) shift on April
21 during which he too reported ill. After being informed by the doctor that his blood pressure
was very high and having it examined three times with intervening rest periods, Majerus took
his card and met Strace on the way from medical. Strace asked where he was going . "Home,"
6At the time the enamel shop was working four 6-hour shifts a day, the first shift starting
at 5:30 a. in.
71 deem it unnecessary to discuss the individual testimony except where it has special
significance to the issue
8It was stipulated that the outside temperature between 7 and 8 p. m. on April 21 was 61
degrees and 51 degrees at 2 p. m. on April 22.
KOHLER CO. 217
said Majerus noticing for the first time that his card was marked "sent back to job." Thinking
it was peculiar for Strace to ask him where he was going in view of his having showered and
changed clothes, Majerus went back to medical in an attempt to get his card marked "sent
home." Refusing to so word it, the doctor said, "I'm telling you to go back to work." Leaving
medical the second time, Majerus encountered Buffington, a supervisory employee in the em-
ployment office. Majerus explained his desire toleave and the conflicting marking of the card.
Buffington commented that the doctor should not have marked the card as he had, stepped in-
side, presumably making a phone call, and thereupon informed Majerus that he was free to
leave, but on his own responsibility. strace then came by and told Majerus to go to work.
Majerus said he wanted to see Ireland. In Ireland's office he found Ireland, and two other Com-
pany officials, Plant Manager Biever and Mr. Conger, Respondent's counsel. Conger asked
"What is this all about? " Majerus said his card had been marked "sent back to job" and that
he wanted to go home. Conger replied, "You can go home, but you're going home on your own
responsibility." Majerus indicated that basis was unacceptable tohim and that he wanted per-
mission. Conger then referred to the KWA communication of the 19th saying, "this is the cause
of the whole thing, this is nothing more than a sit down strike." Thereupon "quite a conver-
sation" ensued about the communication and finally Conger gave Majerus 5 minutes to get back
to work. Majerus said "okay, I will go back to work" but upon leaving the office decided that
because only about an hour remained of the shift he would leave. He then gave Strace his card
and said he_was going home . Strace did not comment.
The' following morning, because he had some KWA duties to perform regarding cull pile
deductions, Majerus arrived at the plant at 7 o'clock, and was informed he was wanted in the
personnel office. There Ireland directed him to return at 8 o'clock. At 8 he was told that
management was not ready for him but would call him at the KWA office when he was wanted.
There he recieved a call from Ireland asking him to stop in that evening on the way to work
which he did. At that time an argument arose upon Ireland's denial that he had asked Majerus to
report then. Finally, Ireland directed Majerus to return the next morning at 8 o'clock. Majerus
asked if he could go to work and was told he could not. The next morning the KWA executive com-
mittee met with the management committee at which time KWA was informed that the 12
enamelers were to be discharged. The KWA committee, citing past practice of Respondent,
made a plea for a lesser penalty than discharge and asked for the Company's decision in writ-
ing. That afternoon a letter confirming the discharge decision was transmitted to the KWA.
Except to the extent that Conger's remarks to Majerus the night he left his shift could be
construed as a warning of discipline in the event Majerus left, it is clear that none of the 12
were given any warning regarding the consequences of their failure to complete their shifts.
As previously shown, when the employees returned for duty on their next regular shifts they
were not permitted to go to work. Instead they were told to report to the employment office
where, after several delays, they were finally interviewed individually by Respondent's man-
agement committee and terminated. The interviews followed a pattern--the committee expres-
sing disbelief that so many employees could have become ill in the period involved and the
employees maintaining that they were in fact ill.
A Few More Factual Findings Complete the Picture
Most of the employees in question testified that when they left their shifts they had no in-
tention of remaining away from work and that it was their purpose to resume work on their
next shift. Also, it is quite clear from the testimony of many of the 12 enamelers that, ill or
not, their decisions to leave their shifts when they did leave were based in part on their con-
certed purpose to get favorable action by Respondent regarding the fans.? Thus we have Wield's
testimony that the decision reached by the employees in the KWA meeting of April 19 "was
probably the reason" he lefthis shift; Clark's that it was his idea to go home "due to the fact"
that they had agreed not to overextend themselves; Lacy's that his leaving the shift involved an
element of "collective bargaining"; Pfister's that in leaving his shift he "was participating in
this collective bargaining"; Kretsch's and Reseburg's that it was the enamelers' purpose to
change the custom of continuing to work if they felt they were overextending themselves;
Dekker's that the others were leaving; Bichler's that at the time he left he "felt that was the
time (the enamelers) should buckle down a little bit and have better working conditions."Of
9 The situation of those witnesses whose testimony did not specifically admit to that fact
and the two witnesses , Zanskas and Wilcox, who testified that KWA's position played no part
in their decision to leave , will be discussed later.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the foregoing witnesses, the evidence shows that Lacy, Reseburg, and Kretsch had no barrel
fans on their furnaces.
The General Counsel produced substantial evidence to show Respondent's opposition to
the CIO activity and support by its employees. That evidence, of course, is germain to the
issue of the 12 enamelers only if their conduct was protected by the Act Finding as I do
that their activity was not so protected the Respondent's attitude toward the CIO as regards
this issue is irrelevant and immaterial.
Concluding Findings Regarding the 12 Enamelers
The General Counsel argues that the purpose of the KWA in seeking to get management to
continue the operation of the barrel fans was a legitimate purpose--which it was His further
contention, however, that what we have here was simply a legal strike with an abandonment
thereof as evidenced by the employees offering themselves for work on their next regular
shifts is not, in my opinion, supported by the evidence nor controlled by the cases upon which
he relies.
It is clear that although strike action was discussed in the KWA meeting of April 19 and
although there was strong rank -and-file sentiment favoring a strike, the question never reached
a strike vote, and the ultimate decision was in favor of another type of action. to That action
was outlined to Respondent not as a strike, but as a purpose, as long as the fans remained off,
not to complete any shift when certain individual conditions arose. After the determination of
the KWA to make good the threat was demonstrated by the wholesale exodus from the four
shifts on April 21 and 22, the only reasonable interpretation of the KWA position was that as
long as the Respondent did not capitulate , such depletions of the shifts could be expected to con-
tinue. ii It is this continuity aspect of the conduct in question that makes the authorities cited
by the General Counsel inapposite. 12
In defense of its position Respondent relies on , among others, two cases , C. G. Conn, Ltd. v.
N. L. R. B., 108 F. 2d 390 C. A. 7 and International Union, UAWA, AF of L, Local 232, et al.
v. Wisconsin Employment Relations, et al. 336 U. S. 245, 69 S. Ct. 516. Both, I believe, are
applicable to and controlling on the facts at hand. In the Conn case an employee petition for
an increase in the overtime rate was turned down by management . That evening , instead of
working overtime as was scheduled , a number of the disappointed petitioners , without warning,
knocked off work apparently at the end of the regular shift. The next day they returned to and
began work at the usual hour. During the day all of the employees of the department involved
were asked by the Company to sign 1 of 2 instruments either agreeing or refusing to work
overtime. Those who signed the latter type instrument were discharged at the end of the day's
regular shift. There was evidence in the case that the employees intended to knock off at the
end of the regular shift each day until their request for an increase in the overtime rate was
granted. The court disagreed with the Board's position that the discharged employees had
ceased work in connection with a current labor dispute and thus retained an employee status
within the meaning of Section 2 (3) of the Act. Rejecting the Board's argument that-
It is immaterial that the men's withdrawal of their labor was intended to be operative
only during fixed and limited periods of time, rather than during the entire working
day, as in the usual strike situation. By the express language of Section 2 (3) any in-
dividual whose work has ceased in connection with any current labor dispute, retains
his employee status and the protection of the Act, .. .
10 Obviously the enamelers themselves had no notion that they were striking. Neither of
these factors, however, are necessarily conclusive as to whether or not a strike occurred.
Nor, assuming that it was a strike, is it clear that the return of the individual employees to
their shifts could be construed as an abandonment thereof in the face of the outstanding, un-
revoked communicaton to Respondent about the matter.
u Supporting this interpretation is the testimony of Wield that it was his intention to work
the next day only until he felt he was overexerting himself "if the fails were not turned on."
r< The cases relied upon by the General Counsel are: Modern Motors Incorporated, 96
NLRB 964, enfd 198 F. 2d925(C A. 8); Gullett Gin Co. v. N. L R. B , 179 F. 2d 499 (C A. 5),
reversed on other grounds, 340 U. S. 361; N. L. R. B. v. Kennametal, Inc., 182 F. 2d 817
(C. A. 3); Carter Carburetor Corp. v. N. L R. B., 140 F 2d 714 (C. A. 8); Olin Industries, Inc.,
191 F. 2d 613; N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U S. 333; John H. Barr
Marketing Company, 96 NLRB 875; Gardner-Denver Company, 58 NLRB 81.
KOHLER CO. 2 19
the court said:
We are unable to accept respondent ' s argument to the effect that an employee can be
on a strike and at work simultaneously
We think he must be on the job subject to the authority and control of the employer, or
off the job as a striker , in support of some grievance.
The court pointed out that when the employer refused to comply with the request for
the higher overtime rate there were two courses open to the employees--further negotiation
while continuing the work , or strike But, the court went on,
They did neither, or perhaps it would be more accurate to say they attempted to do both at
the same time. We have observed numerous variations of the recognized legitimate strike,
such as the "sit-down" and "slow-down" strikes. It seems this might be properly des-
ignated as a strike on the installment plan.
The General Counsel maintains that "there is no factual basis for Respondent ' s contention
that the C. G. Conn case ... appl( ies) to this situation", that this is not a case of "men con-
tinuing to work while accepting part of their work assignment and refusing another as assigned
overtime." I disagree . If anything the facts here make a stronger case in defense of the dis-
charges than in the Conn case. Here , it was a failure to complete part of the regular shift
assignment . There, therefusal involved the assignment of extra work outside the regular shift
hours.
The General Counsel' s position on the Conn case , apparently is bottomed on the hazardous
type of work involved . It is his contention that to demonstrate the harmful effects of Respond-
ent's action the employees leftonly becausethey actually felt ill , and moreover that their leav-
ing as they did was proper in their view, due to the past practice . The past practice obviously
pertained only to individual spontaneous conduct as distinguished from concerted activity di-
rected to a grievance . Considering the type of work involved it is quite possible that many of the
12 enamelers were suffering physical debilitations at the time they left; but it is clear from
the evidence that such debilitations were a normal hazard of the job itself , with or without the
fans, and generally would not have motivated leaving the shifts absent the concerted determina-
tion on the part of the enamelers to influence Respondent ' s action regarding the fans. In my
opinion, neither the hazardous type of the work involved in the grievance nor the moral
aspect of Respondent ' s attitude toward it have any bearing on the legal rights and liabilities
herein I know of nothing in the Act or in the decisions under it providing that the legality
of a grievance is determined by the degree of merit it has . 13 In any event the validity of the
grievance and the objective of the KWA is not in question here . It is the means utilized by
KWA to attain its objective that is the issue
In the UAW-AFL case, supra (hereinafter referred to as the Wisconsin Case) a Wisconsin
statute declared it to be an unfair labor practice for employees " to engage in any concerted
effort to interfere with production except by leaving the premises in an orderly manner for
the purpose of going on strike " The Union, according to plan, conducted a total of 26 or 27
intermittent work stoppages in a period of 42' months , all without prior notice to the employer
or any indication of the Union ' s purpose . The Wisconsin Supreme Court upheld the Wisconsin
Employment Relations Board's determination that this conduct was an unfair labor practice
and approved its order prohibiting the employees from interfering with production by the con-
duct in question.
Citing with approval the Conn case among others , the United States Supreme Court affirmed
the Wisconsin Court and held, in effect , that this type of intermittent work stoppage was not
within the protection of Section 7 of the Federal Act. The main arguments that the Wisconsin
case is not controlling here are that - ( 1) Here the action of the employees was announced
and their purpose or objective was made known to Respondent , and (2) here there was no in-
termittent or recurrent work stoppage involved
As for the first contention , it is true that the KWA's objective was made known to Respond-
ent. However , that the April 19 assertion that the employees would not complete any shift
when their physical reactions dictated constituted the kind of " announcement " contemplated
in the Wisconsin case is doubtful it is apparent that the conduct in that case to which correction
was directed was the intermittent and recurrent interference with production and that not being
i3Cf. American Manufacturing Company of Texas, 98 NLRB 48. Enforcement denied on
other grounds , 203 F. 2d 212 (C A 5).
22( DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forewarned, the employer "was disabled thereby from making any dependable production plans
or delivery commitments." It is difficult to understand how the Respondent herein was in any
better position to dependably plan production than the employer in the Wisconsin case not-
withstanding the communication from KWA of April19. All that communication did was inform
Respondent that beginning as of a certain date Respondent could expect to have its enamel-
shop production curtailed is unknown and variable amounts at unspecified times. In this light,
the fact that Respondent was fully aware of the KWA objective would hardly be of sufficient
significance to place this situation outside the rule of the Wisconsin case.
In supporting his contention that the facts here do not amount to an intermittent or re-
current work-stoppage situation, the General Counsel claims that it was the intention of the
KWA to make only one demonstration. I find nothing in the record to substantiate the claim.
Indeed, the evidence is quite to the contrary The statement of the KWA position to the Company
on its face negatives any single demonstration intention And this is borne out in the testimony
by Clark that after the KWA decision he would not continue to exert himself to complete a
shift by Reesling's testimony that before April19 the enamelers had been overextending them-
selves that they had decided to "change that"; and by Wield's testimony that although he re-
turned to work the next day he intended to leave when he felt he was overexerting himself if the
fans were not on.
Nor does the fact that only one man reported ill on the 3rd and 4th shifts of April 22, at a
time when no disciplinary action had yet been announced by management, prove that the KWA
intended only a single demonstration. On the facts herein, what it tends to show is that the KWA
ran into an unexpected turn of events which caused the employees to discontinue the plan. The
unusual circumstance of being sent to medical upon reporting ill, particularly on a night shift
when normally no doctors were on duty, must have struck the employees as odd and raised a
suspicion of possible disciplinary action In any event, not being permitted to go to work when
they reported for their next shift was a clear indication to them that the KWA plan had encount-
ered difficulties. Moreover, Respondent's attitude and intention was obvious to Majerus in his
discussion with Ireland, Biever, and Conger on thenight of April 21 when Conger insisted that
if Majerus went home he would have to do so on his own responsibility and referred to the
communication of April 19 characterizing the whole situation as "nothing more than a sit down
strike "
The General Counsel also contends that "there is manifestly no basis for Respondent's con-
tention that a recurrent work stoppage was involved" . . because "here the acts occurred in
the course of one day, and were discontinued at the end of that day, with no history of inter-
mittent or repeated work stoppages." While the period covered and the number of interruptions
here were substantially less than those condemned in the Wisconsin case, the difference is one
of degree only and in my opiniondoes not affect the basic principle involved. m It is impossible
to say how long KWA may have carried on its plan but it was not incumbent upon Respondent
to accept further repetition of the stoppages or to refrain from countermeasures to protect its
production.
As said by Mr. Justice Brandies in Dorchy v Kansas, 272 U. S. 306: "Neither the common
law, nor the Fourteenth Amendment confers the absolute right to strike." Since that decision
a number of limitations have been placed on employees' absolute right to strike or to con-
certedly withhold their labor 15 In the Wisconsin case the Supreme Court has further limited
the means by which employees can, within the law, concertedly exert economic pressure in
their disputes with employers. In my opiniontheenamelers of the Kohler Company in question
14In International Shoe Company , 93 NLRB 907 , the Board characterizes single work stop-
pages occurring on two different shifts of the same day as " intermittent work stoppages." See
also The Kroger Co., 100 NLRB 352, where the discharge of an employee who, on the basis
of a grievance in concert with other employees , caused 2 or 3 work stoppages within a matter of
minutes , was held not to be a violation of the Act under a factual situation very comparable to
the situation in the instant case.
15 For example: Sitdown strike, N. L. R. B. v . Fansteel Metallurgical Corp ., 306 U. S. 240;
slowdown, Elk Lumber Company , 91 NLRB 333) "Wildcat" strike , N L. R. B. v. Warner Bros.
Pictures , Inc., et al., 191 F. 2d 217 (C. A. 9); N L. R. B. v. Illinois Bell Telephone Company,
189 F. 2d 124 (C A. 7) certiorari denied 342 U. S. 885. Strike in violation of contract. Hazel-
Atlas Glass Company v . N. L. R. B ., 127 F . 2d 109 (C. A. 4); partial strike, Home Beneficial
Life Insurance Company , Inc. v. N. L. R. B ., 159 F . 2d 280 ( C. A. 4), certiorari denied, 332
U S. 758; N . L. R. B. v . Montgomery Ward & Company , 157 F 2d 486 ( C. A. 8) and G C Conn,
supra.
KOHLER CO. 22 1
chose an illegal method by which to prosecute their grievance with the Company. I find, there-
fore, that their conduct was not protected by Section 7 of the Act and that no violation of the Act
occurred by reason of their discharges
As for the two enamelers who testified in effect that the KWA plan had no connection with
their leaving their shifts and as for others whose testimony was silent on any such connection,
their discharges, just or unjust, leave them without a remedy. On the basis of Conger's state-
ment to Majerus that Conger considered the stoppages in the light of the April 19 ultimatum
as nothing more than a sitdown strike, it is clear that Respondent viewed the conduct as
illegal. In discharging all of the 12 enamelers whose cards were marked "sent back to job"
Respondent did so in the honest belief that they were all engaging in illegal conduct If the Re-
spondent were mistaken as to any of the 12, a point which is unnecessary to decide, such
mistake, unfortunate if it occurred, would not, as in Globe Wireless, Ltd , 88 NLRB 1262, en-
forced 193 F. 2d 748 (C. A. 9) and Link-Belt Co panj', 311 U. S. 854, cited by the General
Counsel, make Respondent guilty of an unfair labor practice The rule of these two cases
applies only where the employee activity mistakenly attributed to discriminatees is activity
protected by the Act which is not the situation here.
"An employee may ... be discharged ... for any cause or no cause at all, so long as it is
not for union activities." N. L. R. B. v. Russell Manufacturing Company, 191 F. 2d 358 (C. A.
5). Here, if the employees participated in the KWA plan, their activity was unprotected by the
Act and they are without a remedy. Similarly, if they did not participate in the plan but left
shifts solely because they were sick the Act affords no protection--a point which was conceded
by the General Counsel at the hearing
Interference , Restraint , and Coercion
As previously indicated , Respondent ' s attitude toward, and opposition to, the UAW-CIO is
amply demonstrated in the record . Shortly after the CIO lost the first election in March of 1951,
during a meeting between the KWA executive committeeand the management committee, KWA
reproached management for nearly losing the election for KWA by reason of the part the
Company took in the campaign . Conger disagreed , making the statement , " We are the ones that
won that election for you. We got on the air and put ads in the papers and we are certain that
is what changed the picture , otherwise we might be meeting with somebody else right now."
In a speech over the radioMay 7, 1952, Respondent ' s president said in a reference to KWA's
failure to get a contract with Respondent:
Why was it not possible for the Kohler Co. and KWA to agree on terms of a new contract
this year? The reason is clear. No settlement was arrived at because the CIO didn't want
the KWA to arrive at one--they didn't want the KWA to obtain a new contract. They do
not want settlements that actually settle.
This is part of the tactics of creating employee dissatisfaction with the union the CIO
wants to capture.
In August 1950 Majerus was appointed KWA representative on "cull" deductions Aware of
employee dissatisfaction with the existing system, Majerus consulted with the UAW-CIO, and
in February 1951, after repeatedly protesting what he considered an unfair system of deduc-
tions, he refused to sign any further deductions until the individual employees signed authori-
zations for him to do so. During Mai erus' experience from 1947 as an enameler, no other KWA
representative had ever taken exception to Respondent's method of making cull deductions In
December 1951, apparently as a result ofMalerus'discussions with the CIO, two of Respond-
ent's enamelers brought an action against Respondent under a Wisconsin statute which they
were advised made Respondent's method of cull deductions illegal. Majerus and the KWA chair-
man testified on behalf of the plaintiffs who were represented in the lawsuit by UAW-CIO
Attorney Max Raskin In a full page advertisement in the Sheboygan (Wisconsin) Press,
Tuesday, June 3, 1952, given as a speech by Conger over the radio the previous day, this com-
ment was made about the "cull lawsuit- "In this lawsuit the CIO was trying to establish their
claim that the KWA was too weak even to prevent a violation of law And two KWA officials
were trying to help them do it." This identification of the lawsuit with the CIO by Respondent
in June must have been as apparent to Respondent at the time the suit was filed and the matter
tried in court.
About 2 weeks after Majerus became a member of the KWA executive board in July 1951,
Christ Zittle, the then chairman of KWA, was told by Ireland that the latter thought or knew
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Majerus was not KWA-minded but was for the CIO. Zittle said he did not believe it.
Ireland claimed knowledge that Majerus was attending CIO meetings Zittle asked the source
of such information. Ireland refused to disclose his source but told Zittle that he had ways
and means of finding out who attended meetings--that he had men checking.
During the course of its campaign the CIO held meetings, at Standard Hall in the city of
Sheboygan In January, February, and March of 1951, is Zittle on several occasions parked
near the building in order to do a little "checking " On one occasion he saw Runge, an em-
ployee in Respondent's employment office, drive around the block 5 or 6 times slowing down
to look toward the Hall.
During his surveillance of Standard Hall, Zittle saw Runge on one other occasion That time,
coming around a corner, Runge saw him, nodded as he drove by, and did not return. There is
no evidence nor claim that Runge was a supervisory employee. Although in his brief the
General Counsel attributes knowledge of the CIO activities of its employees to Respondent
through Runge's activities, referring to it as surveillance, I find that neither knowledge nor
surveillance on Respondent's part could be or is established by this evidence. Moreover,
since there is no allegation in the complaint as to a threat of surveillance being made by
Ireland, 17 in the absence of an amendment to that effect and since Ireland was not called as a
witness by Respondent and the issue was thus not fully litigated, Respondent cannot be charged
with a violation of Section 8 (a) (1) of the Act on the basis of Ireland's remarks to Zittle.
The following undenied and credited testimony appears in the record: In September 1951
Wilcox, acting as spokesman for employees in the sealing department regarding a new system
'they considered to be a speedup, had a discussion with Supervisor Strace in the presence of
Foreman Dhein and employee Frerichs. Contending that the employees had no grievance,
Strace accused Wilcox of instigating the dissatisfaction and told him if he was going to be an
agitator he would rather not have him in the department. Wilcox denied being an agitator
pointing out that the men had asked him to represent them in presenting the grievance. Strace
said, "Bob, you feel that way about it, if you are going to agitate these men like that I'd just
as soon have you quit."
In January or February of 1952, as Wilcox was passing Strace's office the latter called
Wilcox in and asked him to be seated. Strace then mentioned seeing a CIO bulletin on the KWA
bulletin board that morning and asked if Wilcox had put it there. Wilcox said he had not, adding,
"I don't know what the labor laws are pertaining to that sort of work Jack." Strace replied,
"Well, Bob, you know if I was you I'd kind of watch my step because the company don't like
your attitude." During the 1951 and 1952 campaign Wilcox had signed about 150 employees to
the CIO and had done considerable handbilling at the plant for the CIO.
In a conversation about the CIO with Foreman Govek in March 1952, Wilcox was informed by
Govek that "Well, Bob, it seems to me like if the CIO does get in here, you will have to go down
and take your shower at maybe one minute from the time you are supposed to punch out in-
stead of being able to go down at a quarter after the hour and the Company will probably stop
your Christmas bonus." This conversation took place at Wilcox's work station. Govek left
after making this remark but returned "shortly" and told Wilcox that he had better watch his
step "these roving guards that were going arounig were watching" him.
In September 1951 Clark refused to switch to a different type of work during the course of
his shift. Foreman Ross, pleading with Clark not to go home and "further antagonize the
company," told Clark that a few weeks previously his Union activity had been questioned by
President Kohler in connection with a possible promotion of Clark to foreman
During January, February, and March 1952 Reseburg had several conversations with Super-
visor Kolb about the CIO. Kolb told Reseburg and his partner that "if a big union such as CIO
came in the company would step on us, make us work that much harder, we couldn't go down
five minutes before wash up time, stuff like that."
16 Zittle first testified that the year was 1952. After Respondent had informed the General
Counsel that an employee, William Runge, who figured in the 1952 events testified to by
Zittle, had left Respondent's employment in September 1951, Zittle was recalled to the stand,
and changed the year to 1951. In view of my disposition of the matter the conflict is unimpor-
tant. Nor do I view it as impugning the credibility of Zittle. He impressed me as being a truth-
ful, honest witness. In any event, the remarks he attributed to Ireland are undenied. Although
available, Ireland was not called upon to testify by Respondent. I credit Zittle's.testimony.
tr The complaint alleges that "in or about the month of March 1952, by its supervisory
employee, Joseph Govek, Respondent warned certain of its employees that their union activities
on behalf of the CIO were under surveillance by agents of Respondent."
KOHLER CO. 223
In January 1952, during an argument among Lacy and his partner and Kolb about a cull
deduction , Lacy made the remark that "maybe when the CIO gets in here things will be a
little different ." Kolb remarked if they knew what was good for them they would leave the CIO
out and be satisfied with what they had.
The latter part of May 1952 Frerichs and his partner went for their showers a few minutes
earlier than the usual quarter of an hour before punch-out time . Govek came down and told
them "when the CIO gets in here you fellows will have to work right up to the time , there won't
be no getting down early , no getting down before the time." At about the same time , whether on
the same occasion as Govek's remarks to Frerichs or not does not appear , Govek made sub-
stantially the same type of statement to Nisporic.
In the latter part of March , Frerichs was told by Boldt that it was reported there was a "lot
of union activity" on Frerichs ' shift and that this naturally pointed to Frerichs because he was
the most active on the shift . Later , sometime in August , Boldt told Frerichs , "you are making
an awful lot of scrap, your ware is very poor and with your position in the union you had better
watch yourself or otherwise you won't be an enameler at the Kohler company any more."
About a month before the June 1952 election , according to Frerichs ' testimony , during a
grievance discussion with Strace the latter mentioned , "you fellows think the CIO is going
to do you any good, I said I thought it would, he said, I see your partner out there hand billing
pretty regular and I said, yes, he does, and he said if you fellows think the CIO is going to
do you any good, I think itwilldo you more harm than good , you fellows are going to get your-
self in a lot of trouble."
It is well established that threats of economic reprisals by an employer against his em-
ployees for their Union activity or adherence is conduct which , in the language of Section 8 (a)
(1) of the Act , tends "tointerferewith , restrain, or coerce employees in the rights guaranteed
in Section 7" of the Act . From the above it appears that Respondent engaged in conduct pro-
scribed by the Act in the following respects:
( 1) Strace's statement to Wilcox on January or February 1952, in connection with the placing
of CIO material on the KWA bulletin board, to the effect that Wilcox should watch his step be-
cause the Company did not like his attitude.
(2) Govek's remark to Wilcox in March 1952 that if the CIO came in "the company will pro-
bably stop your Christmas bonus."
(3) Ross' remark to Clark in September 1951 that Respondent 's president had questioned
Clark's Union activity in connection with a possible promotion , after pleading with Clark not to
go home and " further antagonize the company."
(4) Kolb's statements toReseburgin the firstquarter of1952 that if the CIO came in , thecom-
pany would "step on" the employees , makethemwork harder , and restrict their washup time.
(5) Kolb's remark to Lacy in January 1952 that if the employees "knew what was good for
them they would leave the CIO out and be satisfied with what they had."
(6) Govek's remarks to Frerichs and Nisporic in May 1952 that " when the CIO gets in here
you fellows will have to work right up to the time, there won't be no getting down early, no
getting down before time."
(7) Boldt's remark to Frerichs in August 1952, "you are making an awful lot of scrap, your
ware is very poor and with your position in the union you had better watch yourself or other-
wise you won't be an enameler at the Kohler company any more."
(8) Strace's warning to Frerichs the first partofMay 1952 that the employees were going to
get themselves into "a lot of trouble" in connection with their attitude on the CIO.
(9) Govek's warning to Wilcox in March 1952 , shortly after the discussion about the CIO and
its effect on the bonus , that he had better watch his step because he was being watched by
"roving guards." is
Unless it is necessary to the disposition of a case I am reluctant to resolve a credibility
conflict where the testimony of one of the principals is by deposition and I have had no
opportunity to observe him testify . Accordingly , since itin no way affects the result or remedy
herein, I make no findings as to the remarks attributed to Ebert by Grube.
The Discharge of Edward Ertel
Ertel stayed his employment with Respondent as an inspector in the casting and finishing
department June 4 , 1951, working on the second shift 4:30 p in. to 1 : 30 a. m In 1949 while
iaAlthough involving no actual threat of reprisal , by warning or fostering the impression that
Respondent was engaging in surveillance . Govek's statement was coercive within the meaning
of Section 8 (a) (1) of the Act, S. W. Evans & Son, 81 NLRB 161 ; F. W. Woolworth , 90 NLRB 289.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Nash Motor Company in Milwaukee, Ertel had joined the UAW-CIO. Ertel's
previous employment with Nash was made known to Respondent at the time Respondent hired
him. From the startofhis employment until September 20, 1951, Paul Ebert was Ertel's direct
supervisor. On that date Ebert was transferred to the day shift and Carl Mertz, a foreman in
the inspection department during the entire period of Ertel's employment, became Ertel's
direct supervisor.
There is no evidence that Ertel became a member of KWA. According to his testimony his
sympathies were with the UAW-CIO and, within a month after he was hired, he began distrib-
uting CIO buttons, literature, and membership cards in the plant lunchroom.i? That his CIO
preference became known to Respondent very early in his employment is apparent from Ebert's
testimony that although he was not sure about other employees wearing CfO buttons, he was
definite about his recollection as to Ertel wearing one because "he wore a CIO button right
after he came and it seemed to me odd that he should be recruited by the CIO immediately
Ertel further testified that he had several conversations with Mertz about unions--the first
one in the lunchroom about a month after he was hired. At this time he contended to Mertz
that the employees could have better pay and working conditions if they were represented by
the UAW -CIO illustrating his point with a statement about the experience he had in his
Milwaukee employment. Mertz replied that he thought the "Kohler workers had a good deal with
the KWA" and told Ertel that if he was smart, he "would keep quiet about the CIO."
Both Mertz and Ebert ate in the lunchroom used by the rank-and-file employees. According
to Ertel's testimony they saw him passing out CIO buttons, cards, and literature there. This
testimony was corroborated by the deposition of Grube. He testified that in the early part of
July, Ertel distributed about 12 to 15 cards on one occasion in the lunchroom while 4 or 5
supervisors, including Orlebac and Ebert, were in clear view, no more than 7 or 8 feet behind
them. Grube who was given a card and a button, then and there put the button on his cap, signed
the card, and returned it to Ertel.
The balance of Ertel's direct testimony was as follows: About a week before he was dis-
charged on October 11, in the company of two other inspectors, Zoerner and Ellinger , he told
Mertz he thought the inspectors should be getting more money and that "I thought we would go
in and see some company officials" about it. The next day they went to see Martin Ertel,20
assistant chief inspector, who asked if they thought they were worth more. Ertel replied that
he thought so "otherwise, we wouldn't be asking for more." Apparently, no action was taken
on the request.
The night before Ertel was discharged Mertz told him he would have to work overtime.
Ertel told Mertz he did not want to work overtime because he had some business the following
day and that if they had a union the employees would not be forced to work overtime .21 Mertz
grabbed Ertel by the back of the neck and told him he had to work; that it was because of Ertel
that "none of the other inspectors wanted to work overtime" and that "it was this CIO
business and all the union talk that was creating the trouble there"; that Mertz was going to
tell Messner that Ertel "was talking about the union too much" and that 10 other men on the
enamel shop were "wise guys" like Ertel who "were talking about the union and trying to get
the union in there" and that they would be discharged too.
Ertel completed his regular shift and worked the overtime that night. Next day when he re-
ported for work he was sent to Messner by Mertz. Messner, in Martin Ertel's presence, told
Ertel that his foreman had reported that Ertel was not satisfied and "was creating a lot of
trouble in the department" he was in; that he thought Ertel was not satisfied with his job and
that it would be better for Ertel and the Company if he left; that he was being asked to leave in
a nice way and that he "was not being fired."
Thereupon, Ertel walked back to the plant and Martin Ertel walked with him. The latter
said, "See, all the trouble you got in by opening your mouth and talking about the union." In
the plant, Ertel saw Ebert and asked him why he had been discharged. Ebert told him that he
thought Ertel was not satisfied with his job or pay and that it would be better for him to leave.
Ertel replied thatheknewthereason for his discharge--that it was because of his participation
19 Although there were employees other than Ertel in different parts of the plant active on
behalf of the CIO at this time, the testimony of Grube is undenied and I find that Ertel was the
only one on his shift, so engaged.
20No relation to the complaining witness.
211 find in accordance with Ertel's undenied and uncontroverted testimony that Ellinger and
another unnamed inspector also protested to Mertz against working overtime on this occasion.
KOHLER CO. 225
in the Union and that he was going to take it to the National Labor Relations Board because he
did not think it was right.
Ertel testified that in the course of his employment, during breakdowns or when no work was
at hand, he, as well as the other inspectors, would go to the different parts of the plant. On
cross-examination Ertel admitted leaving his department on at least 1 occasion to go to the
sealing department located about 1,000 feet fromhis post, but denied that it was at a time there
was any inspection or other work for him to perform.
Grube inspected on a wheelabrator about 100 feet from and next to Ertel's wheelabrator.i2
Grube's undenied and credited testimony is as follows: On an occasion in June 1951 he was
expected to work overtime but told his foreman Gollhardt he would not do so. Golhardt com-
mented, "If that's the way you feel about it there will be no more overtime." Grube did not
work the overtime nor did anyone else on the shift, all punching out together. No discipline
resulted.
Returning to work from the lunchroom on the evening that he had received the card and
button from Ertel, Orlebeck said to him, "Huh, do you think that's going to get you anywhere,
do anything for you." 23
During the summer months of 1951, althoughthe shifts in Grube's department were 8 hours,
the wheelabrators seldom were in operation more than 6 hours due to breakdowns or failure
of truckers to supply ware. Many times his machine would bebroken down while the others were
operating and vice versa. He had no instructions as to duties during breakdowns and used
to talk to other inspectors while they were working and vice versa. He was never criticized for
so doing nor did he ever hear anyone else so criticized. Furthermore, he would leave his
department during breakdowns, going as far as the crating department some 200 feet away,
which was within call. He could not recall going as far as the sealing department. On 1 occa-
sion he allowed a defective tub to go through. The following day his supervisor reprimanded
him for it telling him that if it happened again he could look for another job.
Respondent's defense as to Ertel's discharge is based on the testimony of Mertz, Ebert,
and Emil Ruppel, foreman on the wheelabrator, Martin Ertel not being called as a witness.
Ruppel, who had no supervisory authority over Ertel, testified on direct examination that
he told both Ebert and Mertz several times that Ertel was not doing his work and was
holding up production on the wheelabrator; that Ertel was "talking, this and that with every-
body"--to men on Ruppel's crew and other inspectors. He further testified that Ertel left his
place of employment during working hours and that on several occasions upon informing
Ertel that it was going to be necessary to work overtime he refused to do so saying he did
not have to.
The cross-examination of Ruppel revealed that: (1) He saw other inspectors leave the in-
spection table and that he had reported such conduct by Ellinger to the latter's foreman; (2)
there were several occasions when employees other than Ertel complained about working over-
time, but that he did not have much of such trouble with the men before Ertel worked there;
(3) generally he knew about 1 hour before the end of the shift if overtime would be required
to complete the scheduled run; his regular procedure was first to inform his own men that
overtime would be required and then notify the inspection foreman with the expectation that
the latter would tell his men what was expected; (4) "sometimes" men working under his
supervision refused to work overtime but that none of them were ever discharged for it; (5)
he also complained to Ellinger's foreman that Ellinger was holding up production; (6) break-
downs of the wheelabrator occurred from time to time lasting anywhere from 5 minutes to 11
days on 1 occasion; (7) the washroom was on the floor beneath his department and that the men
did not have to obtain permission to go to the washroom; (8) reluctantly and evasively that he
knew of no duties required of an inspector when the wheelabrator was down for repairs or not
operating; (9) his work station was about 40 feet from Ertel's.
Ebert testified as follows that: Ruppel "came to me several times and the complaint was
always just about the same story, that Edward Ertel was not staying on the job, that he was gone
22 The wheelabrator operation was the function immediately preceding the inspection function,
the inspectors performing their task as the ware came off the wheelabrator. The wheelabrator
operation for which Ertel, with others, inspected, had a crew of nine men. The inspection and
wheelabrator functions were under different supervisions. Continuing inspection was necessary
for continuing operation of the wheelabrator.
23Respondent's objection to this evidence as being outside the scope of the pleadings is
overruled since it was not offered as proof of an unfair labor practice but to show Company
knowledge of employee Union activity and is so received.
339676 0 - 55 - 16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he should have been there working , that he was talking to his men and keeping them from
working, and there were occasions when he didn ' t want to work overtime , on the occasions that
Ruppel complained to him, Ebert spoke to Ertel telling him "that his job was inspecting ware,
that he had enough work to do, that he didn't have time to spend a lot of time talking to other
workers, and ... that on the matter of overtime that if the schedule required it that he would
have to stay over and work as part of his job, and I also cautioned him again as he was in-
structed in the beginning that when there was no work there he was not allowed to leave his
department without permission from me " The latter admonition was given to Ertel by Ebert
"several times "
Ebert further testified that on several occasions , independent of the complaints by Ruppel,
he spoke to Ertel for passing bad ware ; that he "would say qualifiedly of course , Mr Ertel's
(work) was considerably below normal" that in Ebert's view, a very important factor in Ertel's
discharge was the faulty ware he passed.
Ebert denied talking to Ertel about unions and also denied the remarks attributed to him by
Grube's testimony
On direct examination Mertz, in the same general terms, corroborated Ruppel's testimony
in part, related how Ertel refused to work overtime " most every time" he was instructed to
do so, and how Ertel was told, apparently after Ruppel's complaint, that he was not to go into
other departments of the plant without permission Mertz also denied ( 1) discussing unions
with Ertel, (2) that he told Ertel he would be smart to keep quiet about the CIO, (3) that he
grabbed Ertel by the neck, (4) that he accused Ertel of talking about the union too much, (5)
that he told Ertel there were 10 other men in the enamel shop who were going to be discharged,
(6) that he told Ertel "he was a wise guy and was talking too much union."
The cross-examination of Mertz revealed that: (1) Others besides Ertel had objected to
working overtime, (2) Mertz did not recall any occasion where Ertel objected to overtime on
behalf of other inspectors, (3) Mertz did not "believe" he ever told Conger that Ertel was ob-
jectionable because he was urging other inspectors to refuse overtime work and that Martin
Ertel was the only one with whom he ever discussed Ertel's unwillingness to work overtime, 24
(4) after denying any recollection of occasions when employees objected to working overtime
and actually went home , he testified that there were "a lot of occasions " when employees re-
fused to work overtime "but they had a legitimate excuse or we could replace them with some-
body else", (5) at no time during his employment by Respondent did anyone ever talk to him
about the CIO, (6) he never observed anyone "doing anything in connection with the union, (7)
he was completely unaware that any Union activity was going on in the plant at the time of
Ertel's discharge (8) he did not recollect any election in the plant in which the CIO partici-
pated, (9) between September 20 and October 11 there might have been 6 or 7 occasions when
overtime was required and of those there were 3 occasions that he knew of upon which Ertel
objected to working overtime. Of these 3, Ertel worked 2 and Mertz found a replacement for
him on the one he did not work, (10) that he never made any recommendation that Ertel be dis-
charged but that he complained to Martin Ertel about him on October 11, (11) no other em-
ployee objected to working overtime the night before Ertel's discharge, (12) he had individually
told Ellinger and Zoerner, another employee, that they could not visit in other departments.
An analysis of the foregoing testimony, in my opinion, establishes the General Counsel's
allegation that Respondent discriminated against Ertel in violation of Section 8 (a) (3) of the
Act.
Much of the testimony adduced by Respondent to show that Ertel was discharged for cause
was of an indefinite and general nature Completely unidentified as to approximate dates or
otherwise, its probative value is considerably diminished 25 Corollary to this lack of identi-
fication is an aura of exaggeration in it However , even if Respondent ' s evidence were not
deficient in these respects its case against Ertel would still be unconvincing
While Ertel testified that an important factor in Ertel's discharge was his passing bad ware,
no such fault was referred to by Mertz in his testimony. Nor, significantly, does Respondent's
brief include passing bad ware in the summary of the reasons for Ertel's discharge. It states:
"It is apparent that Edward Ertel's discharge was caused by his persistent refusal to coop-
erate--his habitual desertion of his job during working time, his persistent talking to other
employees during working time, and his repeated objection to working necessary overtime."
24 This is in conflict with a statement made by Conger in a letter to the Board which shows
that the matter was discussed by Mertz and Conger.
25Heider Manufacturing Company, 91 NLRB 1185.
KOHLER CO. 227
The undenied, credited testimony of Grube, together with the admissions of Respondent's
own witnesses however, shows that all the criticisms of Ertel's conduct as an employee were
true of other employees.
Ruppel found it necessary to report other employees for the same offenses he reported Ertel.
Grube, as well as other employees , went into other departments and talked to other em-
ployees--at times while they were working. Although Ertel admitted going as far as the sealing
department no specific evidence was offered by Respondent that on the occasion adverted to the
wheelabrator was operating or that Ertelhad inspectionor other duties to perform at the time
Ruppel admitted, as well as Mertz, that other employees objected to working overtime. More-
over, employees under Ruppel's supervision had refused to work overtime. Grube not only re-
fused to work overtime but on one occasion his refusal apparently precipitated a refusal on
the part of the whole shift to do so. Grube also was criticized for passing one defective tub and
threatened with discharge if it happened again. 26
In view of the foregoing and in the light of Ertel's vigorous support of the CIO and his out-
spoken and uninhibited attitude regarding wages and overtime, the disparity of Ertel's treatment
by Respondent indicates a discriminatory motive. In my opinion, Ertel ' s refusal to cooperate
and his objection to working overtime were synonomous in Respondent's view The key to
Respondent's attitude, I believe, is found in Ruppel's testimony that he did not have much com-
plaint from the men about working overtime before Ertel began working for Respondent. Then
came this brashyoung man 27 spouting praise of the UAW-CIO 26 at a time when that organization
was of enough concern to Respondent to cause it to have "men checking" on who was attending
the CIO meetings. Not only did he proselyte for the CIO but he was in the forefront in seeking
"mutual aid and protection " regarding employee working conditions . That those things were
the causes of his discharge are shown by a preponderance of the evidence climaxed by the
statement attributed to Martin Ertel by the complaining witness when he was discharged which
I credit--"See, all the trouble you get in by opening your mouth and talking about the Union," 29
and by the following undenied and credited remarks attributed to Mertz in Ertel's discharge
that (1) It was because of Ertel that none of the other inspectors wanted to work overtime;
(2) it was the CIO business and all the Union talk that was creating the trouble there, (3) 10
other men in the enamel show were "wise guys" like Ertel who were talking about the union
and were trying to get the union in there.
In view of the record as a whole and these admissions I find that Ertel's discharge was dis-
criminatory within the meaning of the Act 30
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and comnierce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices, the under-
signed will reconunendthattheRespondentceaseanddesist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act. The undersigned has found that be-
26 In this light, Ebert's testimony that he spoke to Ertel "several times" for passing bad
ware seems incongruous unless it was during Ertel's training or breaking in period.
271 should judge his age to be not over 20.
281 credit Ertel's testimony, denied by Mertz, that he discussed unions with Mertz on one
occasion in the lunchroom about a month after Ertel was hired m which he expounded on the
virtues of the CIO to Mertz, As between the two, I find Ertel's testimony less questionable than
Mertz'. The latter's completedisavowalofanycognizanceof any Union activity including a CIO
election in the plant and the conflict between his testimony and Conger's letter, apart from
other faults, brands hint as an unreliable witness. That Mertz was not Ertel's supervisor at
that time is no reason, as Respondent seems to suggest, to reject Ertel's testimony.
29Martin Ertel did not testify. There was no showing that he was unavailable.
3OAccepting Ertel's testimony that Mertz told him that if Ertel was smart he would keep
quiet about the CIO, I find this to be an additional invasion by Respondent of the employees'
rights under the Act.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ginning October 11, 1951, the Respondent discriminated against Edward Ertel and it will there-
fore be recommended that the Respondent be ordered to offer Ertel immediate and full
reinstatement to his former or substantially equivalent position without prejudice to his senior-
ity or other rights and privileges and make him whole for any loss of pay suffered by him as
a result of the discrimination.
As the record indicates , Ertel has been inducted into the Armed Forces of the United States
and may not be available for immediate reinstatement . Accordingly, it is recommended that
Respondent notify Ertel that he will be reinstated , without prejudice to his seniority or other
rights and privileges , upon application within 90 days of his discharge from the Armed Forces.
It is further recommended that Respondent make Ertel whole for any loss of earnings he may
have suffered because of Respondent ' s discrimination against him , by payment to him of a
sum of money equal to the amount he would normally have earned as wages less his net
earnings 91 during those periods ( 1) between the date of his induction , and (2) between a date
5 days after his timely application for reinstatement and the date of offer of reinstatement by
Respondent.
It has also been found that the Respondent has engaged in certain acts of interference, re-
straint, and coercion , in violation of the rights guaranteed employees under Section 7 of the
Act.
The Respondent ' s infractions of Section 8 (a) (1) and 8 ( a) (3) of the Act , herein found, dis-
close a fixed purpose to defeat self- organization and its objectives . Because of the Respondent's
unlawful conduct and its underlying purposes , theundersigned is persuaded that the unfair labor
practices found are related to the other unfair labor practices proscribed by the Act, and that
the danger of their commission in the future is to be anticipated from the course of the Re-
spondent's conduct in the past. The preventative purposes of the Act will be thwarted, unless
the remedial order is coextensive with'the threat In order , therefore , to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thus to effectuate the policies of the Act it will be recommended that the Respondent be ordered
to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of
the Act. N. L. R. B. v Express Publishing Co., 312 U. S. 426, N. L. R. B. v. Entwistle Manu-
facturing Co , 120 F. 2d 532, 536.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Kohler Workers Association affiliated with international Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (KWA UAW-CIO, Local 833) is a labor
organization within the meaning of Section 2 (5) of the Act and the unaffiliated Kohler Workers
Association , until it became affiliated with the UAW- CIO, was also a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Edward Ertel, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting commerce with-
in the meaning of Section 2 (6) and (7) of the Act.
5. Respondent Kohler Company has not violated the Act by the discharge of James H. Lacy,
Vernon L. Bichler, Raymond E. Majerus, Eugene Pfister , John L. Zanskas, Donald L . Ramaker,
Vernon Clark , Raymond Reseburg , Robert J Kretsch , James Dekker, Clarence J . Wield, and
Robert Wilcox.
[Recommendations omitted from publication.]
3iCrossett Lumber Company, 8 NLRB 440; English Mica Company, 101 NLRB 1061. The
back pay due to be computed on a quarterly basis in a manner established by the Board in
F. W. Woolworth, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other such period. It will also be recommended that the Respond-
ent make available to the Board, upon request, payroll and other records to facilitate the
checking of the amounts due.
HARGIS TRUCK LINE, INC. 229
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board in order to effectuate the policies of the National Labor Relations Act, we hereby notify
our employees that:
WE WILL NOT discourage membership in, or activities on behalf of Kohler Workers'
Association , affiliated with International Union, United Automobile , Aircraft and Agricul-
tural Implement Workers of America (KWA-UAW, CIO, Local No. 833), or in any other
labor organization , by discriminating in regard to the hire or tenure of employment or
any term or condition of employment,
WE WILL NOT threaten our employees with loss of employment or other economic
reprisals if they join or.assist Kohler Workers ' Association , affiliated with International
Union, United Automobile , Aircraft and Agricultural Implement Workers of America
(KWA-UAW, CIO, Local No. 833), or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self -organization , to join or assist Kohler Workers' Asso-
ciation, affiliated with International Union, United Automobile , Aircraft and Agricultural
Implement Workers of America (KWA-UAW, CIO, Local No: 833), or any other labor
organization , to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all of such activities , except to the extent that
such right may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole Edward Ertel for any loss of pay he may have suffered by reason
of our discrimination against him.
All our employees are free to become, remain or refrain from becoming members in the
above-named Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the Act.
THE KOHLER COMPANY,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
HARGIS TRUCK LINE, INC. and FLOYD M . SKILES
LOCAL 135 , INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL and FLOYD M. SKILES. Cases
Nos. 35-CA-439 and 35-CB-110 . April 14, 1954
DECISION AND ORDER
On October 30, 1953, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above - entitled proceedings,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices and recommending that they
108 NLRB No. 57.