Miller Electric Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1958

120 N.L.R.B. 298 (N.L.R.B. 1958)

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miners around the plant ," he told Chavez on April 5, to inform Garcia that he
was being terminated at the conclusion of his shift.
Chavez testified that about an hour before the conclusion of the shift on April 5,
he informed Garcia that he was being discharged ; that Garcia demanded to know
the reason for such action ; that he told Garcia that he did not know and then
suggested that Garcia "go to the office" if he wanted to ascertain the reason; that
Garcia, after exhibiting his union card, asked whether his organizational activities
were the cause for his discharge ; that he again replied that he did not know why
he was being terminated ; and that prior to that time he did not know that Garcia
had a union card.
Employee Ignacio Valles testified that about an hour before Garcia was informed
of his termination , Chavez came to where he was working and said that Garcia
"is going to be discharged tonight"; and that when he asked why, Chavez replied,
"Because he is a unionist ." Chavez unequivocally denied making the statement
attributed to him by Valles or any similar statement . In the light of the Trial
Examiner's observation of the conduct and deportment at the hearing of Valles
and Chavez, and after a very careful scrutiny of the record, all of which has been
carefully read, and parts of which have been reread and rechecked several times,
and being mindful of the contentions of the parties with respect to the credibility
problems here involved, the Trial Examiner credits Chavez's testimony and finds
that he did not make the statement attributed to him by Valles.
2. Concluding findings
Upon the entire record in the case , the Trial Examiner is convinced , and finds,
that Garcia 's union activity and sympathy played no part in Respondent 's deter-
mination to discharge him. The Trial Examiner further finds that Garcia was dis-
charged for the reasons advanced by Respondent .? Accordingly, since the General
Counsel has failed to prove by a fair preponderance of the credible evidence that
Garcia was discriminated against in violation of Section 8 (a) (3) of the Act, the
Trial Examiner will recommend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Rio de Oro Uranium Mines , Inc., Albuquerque , New Mexico , is engaged in,
and at all times material herein was engaged in, commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Hod Carriers and Laborers Union , Local No. 16, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint , as amended at the hearing, that Respondent
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act have not been sustained by substantial
evidence.
[Recommendations omitted from publication.]
It is significant to note that the record is devoid of any evidence tending to show
any past or present union hostility or animus on the part of Respondent.
Miller Electric Manufacturing Co., Inc. and Associated Unions
of America . Case No. 13-CA-2135. April 3, 1958
DECISION AND ORDER
On June 11, 1957, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding, that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in a copy of the Inter-
120 NLRB No. 47.
MILLER ELECTRIC MANUFACTURING CO., INC.- 299
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief, and the
Charging Party filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Miller Electric
Manufacturing Company, Inc., its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Associated Unions of America,
Independent, or any other labor organization, by discriminating in
regard to the employees' hire and tenure of employment or any term
or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, or to join or assist Associated Unions of
America, Independent, 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 bargain-
ing or other mutual aid or protection, or to refrain from any such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion 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:
(a) Offer to Vincent Buchberger immediate and full reinstate-
ment to his former or substantially equivalent position, without prej-
udice to his seniority or other rights and privileges and make him
whole, in the manner set forth in the section of the Intermediate
I We correct the following minor inaccuracy in the Trial Examiner's findings of fact
which does not affect the validity of his ultimate conclusions : The Trial Examiner mis-
identified the foreman whom employee Phillips considered partial to Buchberger. But
the fact that it was Foreman Parr, rather than Foreman Ellefson, whom Phillips believed
granted Buchberger unjustified amounts of overtime does not detract trom the inferences
the Trial Examiner drew in assessing the credibility of Phillips ' testimony.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report entitled "The Remedy," for any loss of pay he may have suf-
fered by reason of the discrimination against him.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay
due and the rights of employment under the terms of this Order.
(c) Post in conspicuous places at the Respondent's plant in Apple-
ton, Wisconsin, including all places where notices to employees are
customarily posted, copies of the notice attached hereto marked
"Appendix." 2 Copies of said notice to be furnished by the Regional
Director for the Thirteenth Region, shall, upon being duly signed by
the Respondent's representatives, be posted by it, as aforesaid, imme-
diately upon receipt thereof, and maintained for at least sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) File with the Regional Director for the Thirteenth Region,
within ten (10) days from the date of this Order, a report in writing
setting forth in detail the steps which the Respondent has taken to
comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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 Labor Manage-
ment Relations Act, as amended, we hereby notify.our employees that :
WE WILL NOT discourage membership in Associated Unions of
America, Independent, or any other labor organization, by dis-
criminating in any manner against our employees in regard to
their hire or tenure of employment or any term or condition of
their employment.
WE WILL NOT discriminate in regard to the hire or tenure of
employment or any term or condition of employment of any of
our employees, because of membership in, or activities on behalf
of, any labor organization or any concerted activity on behalf of
our employees.
WE WILL NOT threaten to close the plant if the Union succeeds
in securing the right to represent our employees.
WE WILL NOT derate any of our employees because of their
interest in, or attendance at, union meetings or in the Union.
MILLER ELECTRIC MANUFACTURING CO., INC. 301
WE WILL NOT in any manner interfere with,, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist Associated Unions
of America, Independent, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such acts 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 offer to Vincent Buchberger immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
will make him whole for any loss of pay he may have suffered
as a result of the discrimination against him.
All our employees are free to become or remain members of
Associated Unions of America, Independent, or any other labor
organization.
MILLER ELECTRIC MANUFACTURING CO.,INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge originally filed on January 6, 1956, and thereafter amended, by
Associated Unions of America , Independent, hereinafter referred to as the Union,
the General Counsel of the National Labor Relations Board , herein called respec-
tively the General Counsel i and the Board, by the Regional Director for the Thir-
teenth Region ( Chicago, Illinois), issued its complaint against Miller Electric Manu-
facturing Co., Inc ., herein referred to as the Respondent , alleging that the 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 Labor
Management Relations Act, 1947, 61 Stat. 136, herein called the Act . Copies of the
charges and the complaint 2 together with notice of hearing thereon , were duly served
upon the Respondent and the Union.
The Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held at Appleton , Wisconsin , from March
12 through 16, 1957 , inclusive , before the designated Trial Examiner. All parties
appeared at the hearing , were represented by counsel and afforded full opportunity
to be heard , to produce , examine and cross-examine witnesses, to introduce evidence
material and pertinent to the issues, and were advised of their right to argue orally
upon the record and to file briefs and proposed findings and conclusions. On or
1 This term specifically includes the attorneys appearing for the General Counsel at the
hearing.
2 The Trial Examiner permitted the complaint to be amended at the hearing under
conditions.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before May 8, 1957, briefs were received from the General Counsel, the Union, and
the Respondent.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admitted, and the Trial Examiner finds
that Miller Electric Manufacturing Co., Inc., is, and at all times herein mentioned
has been, a corporation duly organized under and existing by virtue of the laws of
the State of Wisconsin, having its principal office and manufacturing plant in Apple-
ton, Wisconsin, where it is, and has been, engaged in the manufacture of welding
machinery. The Respondent, in the course, conduct, and operation of its business,
causes and at all times material herein has continually caused large quantities of raw
materials used by it in the manufacture of its finished products to be purchased and
transported in interstate commerce to its Appleton, Wisconsin, plant, from and
through the States of the United States other than the State of Wisconsin. During
the calendar year 1956, the value of the materials so purchased and transported by
Respondent and shipped to its plant at Appleton, Wisconsin, from points outside of
the State of Wisconsin, was in excess of $500,000. Respondent, in the course, con-
duct, and operation of its business, causes and at all times material herein has con-
tinually caused large quantities of its finished products, described above, to be shipped
and transported in interstate commerce into and through the States of the United
States other than the State of Wisconsin. During the calendar year 1956, the value
of the finished products so sold and transported by Respondent was in excess of
$1,000,000, of which in excess of $500,000 was shipped by Respondent from Apple-
ton, Wisconsin, to points outside of the State of Wisconsin.
The Respondent is, and was at all times material herein, engaged in commerce
within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Associated Unions of America, Independent, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Vincent Buchberger
1. The facts
Vincent Buchberger began his employment with the Respondent in 1944 and
worked for the Respondent continuously until his discharge on January 4, 1956,
except for a 7-month period in 1947 when he left the Respondent's employ and at the
conclusion thereof was solicited to, and did, return to work for Respondent by his
then foreman, Frank Parr, at the suggestion of the Respondent's president, Niels C.
Miller. At the time of his discharge, Buchberger held one of the higher seniority
ratings in the sheet metal department in which he worked and enjoyed one of the
highest hourly rates of pay in that department.
At least since World War II the Respondent has paid its employees in accordance
with an incentive system it devised at that time. Under this system each employee
is paid per hour his hourly base rate 3 plus a percentage of that base rate computed
weekly from the weekly production of the plant and known as the "incentive rate "
This weekly incentive rate is determined by a formula whereby the incentive rate
equals 65 percent of the earned hours divided by the actual production hours for
the week's work. The earned or gained hours in the production of each machine
in this formula is a transposition' (through a formula not disclosed during this hear-
ing) of the competitive market price of each machine manufactured, during the week
into the number of production hours theoretically necessary for the machine's pro-
duction. Actual production hours, of course, is the total weekly payroll hours
worked-by the Respondent's production employees. Respondent figures its produc-
tion workers to be 65 percent of its total staff. Thus, it allows 65 percent of the
earned hours divided by the actual hours as incentive for the production workers.
3 The Respondent' s starting pay rate is 84 cents per hour.
MILLER ELECTRIC MANUFACTURING CO., INC. 303
As an example, if the week's total production amounted to 15,000 earned hours for
the week and the actual production hours worked amounted to 10,000 hours, the
incentive rate would equal 65 percent of 15,000 over 10,000 or 97.5 percent. So a
production worker with a base rate of $1 per hour would. actually earn $1.975 for
that particular week.
The formula by which the Respondent translates the competitive market price of
the machine manufactured into earned hours was not disclosed at the hearing. But, as
the earned hours depend exclusively upon the competitive market price of the ma-
chine produced, it is obvious that the more competitive the market for which the
products are manufactured, the lower the price of the machine and, therefore, the
lower the earned hours and the incentive rate.
Being dependent upon so many variable factors, the incentive rate varies sub-
stantially in the plant from week to week which, in turn, causes the paychecks of
the employees to fluctuate accordingly .4 The incentive rates for the last 22 weeks
of the year 1955 were particularly low, reaching the average for the year on only
10 occasions and dropping as low as 61.38 percent in the first week of December.
Thus, during a good portion of 1955, Executive Vice President Anthony E. Harrant
recognized the existence of a growing resentment among the production employees
against Respondent's incentive plan. He testified he could feel that tension while
walking through the plant.
Beginning sometime in August or September 1955, employees Buchberger and
Carlon Dreier began discussing the pros and cons of attempting to organize the
plant employees among themselves, a few other employees and outsiders with more
personal experience on the subject. Although this was apparently rather desultory
conversation, it came to the attention of Plant Superintendent Harold A . Reitzner
who reported the matter to Miller and Harrant.5
When Respondent established a night shift about Labor Day, 1955, Buchberger
was requested to, and did, accept a transfer to it. Reitzner had suggested the move
to Harrant who agreed that it would be a good idea to "segregate" Buchberger
by putting him on the much smaller night shift.6
On December 14, 1955, Dreier got in touch with certain officials of Associated
Unions of America. On December 20, a meeting was held in a basement room
of the Appleton Hotel which was attended by five of Respondent's employees,
including Buchberger and Dreier. and by certain union officials, including Union
President Jerome Hiler and Organizer Pink. At this meeting the union officials
explained the purposes of the Union, answered questions concerning what the
Union could do for the Respondent's employees and the method of organizing the
Respondent's plant. Union authorization cards were distributed to the employees
in attendance who returned to the plant, reported what they had learned to their
fellow employees and began soliciting signatures to the authorization cards. Within
the next few days Buchberger had succeeded in securing signed applications from
some 14 employees while talking with many others.
Again this information came to the attention of Reitzner by word of mouth in
the plant and through telephone calls to his home. Again Reitzner reported the
facts as thus disclosed to him to Miller and Harrant Harrant also testified that
on occasions he would receive as many as 5 or 6 telephone calls within an hour
from employees and others about union matters on such evenings.
On December 21 or 22 7 the Respondent decided to hold a meeting of all of its
employees after Christmas. Miller and Harrant testified that they decided to hold
+ Dui ing the year 1955 the incentive rate vat red from a high of 119 35 percent in the
8th week of the year to a low of 61 38 percent in the 49th week In 1955 the incentive
rate averaged 85 37 percent as against 105 64 percent for the year 1956
5In his second and subsequent appearance as a witness, Reitziier iepudiated his in
testimony that he knew of the existence of union activity during the year 1955 His sub-
sequent, and allegedly "corrected." testimony will be discussed more fully, in/la
6In his testimony Hai rant indicated that the reason for this segregation of Buchbei ger
was due to the fact that lie was obnoxious and unable to get along with his fellow ens
plovees That this was not the true season is obvious from the tact that employee Austin
Phillips was also on the night shift For years Phillips lied complained to Respondent
about Buchberger because, as Phillips' testimony showed, he believed that Bucliberger had
been getting more oveiti,me work from Foreman Ellefson than Phillips had. However
the transter did coincide with Reitznei's discovery of Buchberger's interest in a union.
7 Subsequently Hai rant ad,-anced the date of this decision to December 15-16 during
his testimony The season given by both Millen and Hariant for postponing the meeting
until Deeembei 29, to wit, that they did not wish to interfere with the Christmas parties
-304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,this meeting because of certain "rumors" alleged to be current "in Appleton"
concerning Miller. This meeting was held December 29, 1955.
On the evening of December 24, Foreman Elven Ellefson of the sheet metal
department chanced to meet employee Donald Maas in the Sears store in Appleton.
After a short general conversation Ellefson said to Maas: "Well, I know that some
of you fellows have been distributing union cards around the plant, . .. it will
never work. You will never get a union in the plant." 8
On December 29 the Respondent assembled all of its approximately 400 employees,
from both the day and evening shifts, together with all the supervisors and com-
pany officials, in the plant at 3 p. in. Both shifts of employees were paid time
and a half during the whole of this meeting which lasted about 2 hours.
President Miller opened this meeting by saying that: "There are groups of parasites
who seem to destroy those who apparently have." He then stated that he wished
to clear up certain rumors which he said were circulating in Appleton about him.
He then enumerated a number of real-estate deals which he said accounted for his
ability to build his new home together with the money his wife had managed to save
out of his salary which according to him averaged about $15,000 a year. Complet-
ing this Miller then turned and expressed his disappointment over the fact that the
incentive rate had fallen to 61.38 percent. He asked the employees to have con-
fidence in him and his company which he stated had been built upon this incentive
plan. He stated that, when the new addition to the plant was completed, there was
no reason why the incentive rate could not go up to 200 percent. He asked the em-
ployees what was wrong which had caused the incentive rate to fall to the low of 61
percent and invited questions or suggestions from the employees, assuring them that
there would be no reprisals.
In response to Miller's request, Buchberger asked what the employees were to do
until the new addition had been completed for a lot of fellows were taking home only
$60 to $65 per week. Miller answered that the employees were averaging $1.95 per
hour and that lots of people were living very well on less than that. Buchberger stated
that the incentive rate was so variable that it was hard to live under such conditions
and then inquired whether the incentive could be controlled by the type of machines
which were being manufactured.9 Harrant answered this by stating that the Re-
spondent had certain spot welders on which the incentive rate was 235 percent where-
upon Buchberger asked why they were not being manufactured as there were orders
for them. Buchberger suggested that part of the money going into the new plant addi-
tion was money which should have been passed out to the employees as incentive. A
.vice president explained that the money for the new addition was borrowed from
the banks.
Miller interpreted Buchberger's remarks as an accusation that the Respondent was
"fixing" the incentive rates and using the employees incentive money to build the
plant's new addition.1° After a question or two not related to wages or the incentive
system had been asked by 1 or 2 other employees, the meeting ended.
On the morning of December 30 the Respondent posted the following notice on
its bulletin board:
December 30, 1955
Vincent Buchberger stated in the company meeting of December 29, 1955
that he was only getting $60 per week pay checks .and that he could not live on
what we were paying him.
then taking place, leads to the conclusion that the date given by Miller of December 21-22
is more nearly correct than the earlier date suggested by Harrant because, if Harrant's
suggested date were correct, the mass meeting obviously could have been held prior to the
commencement of the Christmas festivities
9 Ellefson's version of this conversation varied but slightly from that found above.
It is clear from either version that Ellefson, despite denials of having any knowledge of
union activities in the plant prior to Buchberger's dischaige, did, in fact, know that an
organizing drive was in progress at the Respondent's plant at least by Christmas Eve.
0 As the earned or gained hours allotted to each machine are exclusively dependent
upon the competitive market value of the machine produced, it is mathematically obvious
that the incentive rate is bound to be lower when the Respondent is filling orders for
machines in the more competitive markets.
10 At the hearing Miller, Harrant, and numerous employees all testified that Buchberger
actually said • "I can't live on 60-65 dollars a week." Although this conflict is of rela-
tively little importance, the Trial Examiner will explain infra the reasons which have
convinced him that Buchberger's statement was a generalized one and not a personal
remark.
MILLER ELECTRIC MANUFACTURING CO., INC. 305
Here are the facts:
1955 ----------------- $4,436.82.
Hours worked --------- 2,1681/2 (50 weeks- 80 hours paid for 2 weeks'
vacation).
Average hourly rate._. $2.046.
Average weekly salary --- $85.32.
This information taken from his actual payroll record.
On January 3, 1956, Foreman Ellefson met Harrant in the plant and inquired if
Harrant had heard about the union activities . Harrant answered that he had heard
that the employees were discussing it.I"
On the morning of January 4, 1956, Buchberger was directed to the office of Har-
rant and there in the presence of Harrant, Reitzner, and employee Schmidt, who
was a member of the shop committee elected from a department other than the sheet
metal department ( whose representative was Dreier) and who had been called to
the 'office by Harrant specifically to witness the event , Buchberger was handed his
checks for money due him and the following letter which had been prepared by Har-
rant and the Respondent 's attorney:
DEAR VINCE: On December 29, 1955, a meeting - was held on the company
premises of all the, employees and management of the company.
At this meeting , you publicly stated in front of all those present, that your
earnings were only $60. 00 per week.
After due consideration , it is our strong opinion that such a statement was a
deliberate and malicious mis-statement of fact, inasmuch as your average pay-
check for the past year amounted to $85.32 and you knew your earnings were
in excess of $60.00 per week.
Recently your personal conduct in regard to violation of Motor Vehicle Laws
of Wisconsin was such that it was not characteristic of an employee of this
company.
Since around December 1, 1954, we could not help but observe a steadily in-
creasing antagonistic attitude on your part since our selection of a new foreman.
For any one, or combination of any of the above factors , we hereby notify you
that you are discharged from the employ of Miller Electric Company as of the
receipt of this letter.
Very truly yours,
MILLER ELECTRIC MANUFACTURING COMPANY.
(Signed) Anthony E . Harrant,
ANTHONY E . HARRANT,
Executive Vice President.
Buchberger has never been reinstated.
On January 7 the Respondent received a copy of the union charge in this matter
that Buchberger had been discriminatorily discharged.
On January 20, Harrant called Carlon Dreier to his office for a conference which
lasted from 9:30 a. in. to approximately 11:45 a. in. Harrant commenced the con-
ference by telling Dreier that Dreier was not to feel that he was being questioned
as to his right to join or refrain from joining a union or that he had to discuss the
Union but that Harrant knew that he was one of the men who was organizing the
Union in the plant and he, Harrant , wanted to determine what was wrong or if
there was any dissatisfaction in the plant . Dreier indicated that the employees
wanted seniority and security . Asked what he meant by that , Dreier stated that
Buchberger 's discharge was a good example. Harrant pointed out that, while the
Union had had a meeting at the Appleton Hotel on December 20, Buchberger had
not been discharged until January 4. Harrant also told Dreier that the Respondent
knew who had attended that meeting and practically all who had signed cards. Har-
rant stated that the real reason for Buchberger 's discharge was the fact that he had
lied about his wages . Miller, who was in and out of this conference several times,
said that the real reason for the discharge was Buchberger 's accusation against Mil-
ler of holding out the employees ' money in order to build a new addition . Dreier
suggested that Harrant and Miller had misunderstood what Buchberger had said.
U Subsequently , after a recess during his testimony , Ellefson came to the conclusion
that this conversation with IIarrant must have been "after the discharge " despite his
earlier positive testimony as found above . Harrant had testified that the convei sation
was after January 7 As will be noted in another section of this Report whether testi-
mony was given before or after recesses became impol tart in this case
483142-59-vol. 120-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The talk then veered to what Dreier had ever done to improve his position in the
Company . Dreier explained that on one occasion he had wanted to go to voca-
tional school as his brother, Alan, had done but at the time had not had the necessary
tuition money . Harrant offered assistance from the Respondent if Dreier should
care to go to school later . Harrant wound up this long conference by telling Dreier
that he, Dreier, should be "one of those who trained others to work rather than to
cause dissension ." Some time after this conference the Respondent transferred
Alan Dreier to the electronics department and gave Carlon Dreier an increase in his
base rate.
2. Conclusions as to the discharge
(a) The Respondent's alleged lack of knowledge and credibility
Although the Respondent 's contentions regarding the discharge of Buchberger were
succinctly stated in the discharge letter dated January 4, 1956, the really basic de-
fense maintained by the Respondent throughout the hearing was its claim that the
Respondent knew nothing about the existence of any organizing or concerted effort
among its employees until, as the phrase so frequently appeared throughout the
transcript, "after the discharge," to wit, on and after January 7, 1956, when the
Respondent received a copy of the Union 's charge in this matter.
Thus, at the very outset of this discussion, it is necessary to determine whether
the Respondent had any knowledge of the union activities in the plant and Buch-
berger's part therein before the discharge, for, if the Respondent is proved right
about this contention, then, of course, the discharge of Buchberger could not have
been discriminatory.
Both Miller and Harrant were adamant in their testimony that the first knowledge
the Respondent had of any union activity in the plant was upon the receipt of a
copy of the Union 's charge herein on January 7, 1956. These witnesses maintained
this position despite the fact that the Respondent determined to hold the meeting
of December 29 only a day or two following the original union meeting in the Ap-
pleton Hotel on December 20, and despite the strange remark about "parasites"
with which Miller chose to open that meeting. Miller acknowledged that his refer-
ence was to union organizers . Under the circumstances existing at the plant at the
time of the meeting, this would have also been the interpretation of the theoretically
reasonable hearer of the remark.
Harrant , noting the chronological relationship between the union meeting on
December 20 and the decision to hold the mass meeting for the employees on Decem-
ber 21-22, in his testimony which followed that of Miller, who incidentally was more
than necessarily vague on dates except as they were either "before" or "after" the
discharge , advanced the date of the decision to hold the mass meeting of December
29 to December 15 or 16. But both witnesses gave the same reason for the choice
of December 29, to wit, Respondent did not want to interfere with the employees'
holiday festivities. It seems quite clear that, if the decision was actually made
December 15-16, the mass meeting could have been held prior to any possible in-
terference with holiday festivities. Thus, the Trial Examiner is convinced that
Miller was more accurate in setting the date of the decision to hold the mass meet-
ing than was Harrant. Furthermore, the date of December 29, 1955, in and by
itself, appears to indicate that the Respondent was not too concerned about any
interference with the holiday festivities. The facts indicate that Miller's estimate
as to the date of that decision was closer to the truth than was Harrant's, and the
Trial Examiner so finds.
Foreman Ellefson,12 as a witness, denied "knowing" of any union activity in the
Respondent's plant until "after the discharge." However, his admitted conversa-
tion with employee Donald Maas on Christmas Eve proved beyond cavil, even
accepting Ellefson's version thereof, that he had such knowledge even at that date.
Furthermore, he testified quite positively that on January 3, 1956, he asked Harrant
if he knew of the union activity in the plant to which Harrant answered that he
heard that they were discussing it. However, after a recess, Ellefson returned for
redirect examination and suddenly became convinced that the above conversation
12 Respondent contended that Ellefson was a foreman in name only without any at-
tributes of a supervisor as defined by the Act If the Respondent's contention is accepted,
then the only supervisor of this whole plant employing approximately 4Q0 production
workers was the plant superintendent The facts disclosed at the hearing prove that
Ellefson had, and exercised, much of the supervisory authority listed in Section 2 (11)
of the Act The Trial Examiner finds Ellefson to have been a supervisor within the
meaning of the Act at all times mentioned herein.
MILLER ELECTRIC MANUFACTURING CO., INC. 307
with Harrant must have occurred "after the discharge." For reasons which become
clearer immediately hereinafter the Trial Examiner is convinced that Foreman
Ellefson was correct before the recess and, therefore, finds that the above con-
versation, between Ellefson and Rarrant occurred as originally testified to on Jan-
uary 3, 1956, before the discharge.
Superintendent Harold A. Reitzner, as a witness for the Respondent, denied on
direct examination by Responden: s counsel, having heard Buchberger's name in con-
nection with union activities in the plant prior to the discharge. However, when
asked when he first learned of union activities in the plant, he answered that he so
learned in August or September 1955, and that thereafter he learned by word of
mouth in the plant or by telephone calls to his home 13 about the union meetings
and other activities in the plant and that he, Reitzner, promptly conveyed that in-
formation to both Harrant and Miller beginning in August or September and con-
tinuing thereafter. Having so testified, Reitzner was excused as a witness.
Undenied testimony by at least one disinterested witness, a newspaper reporter,
and by one union official proved that, as Reitzner left the stand at the conclusion
of his testimony mentioned above and of the hearing session that evening, he was
called over to one side of the hearing room by Harrant where Harrant was heard
to say to Reitzner: "You were suppose to say '56, not '55" and "what is the mat-
ter with you? You gave the wrong testimony this afternoon. Do you know that
you made liars out of Mr. Miller and myself?" To this Reitzner was heard to
answer: "Well, I was on the witness stand and on oath."
The following morning Reitzner was recalled to the witness stand by the Respond-
ent where Reitzner "corrected" his testimony of the previous day to conform to
that of Miller and Harrant by testifying that he had not reported his knowledge
of union activity in the plant to Miller or Harrant until the middle of January
1956, "after the discharge." He also appeared to deny having any such knowledge
himself.
The change in Reitzner's demeanor between these 2 appearances on the stand
was as startling as the difference. in the testimony he gave on those 2 occasions.
In his first appearance Reitzner answered questions freely, carefully, and openly,
albeit somewhat reluctantly apparently to his realization that his testimony was
not in conformity with that previously given by Miller and Harrant. He appeared
confident and self-assured, looking his interrogator in the eye. On his subsequent
appearance Reitzner slumped down in the witness chair and never raised his eyes
from the stand in front of him. His self-assurance had deserted him. He was
unsure of what he wanted to say or do. When he completed his apparently dis-
tasteful task of "correcting" his rrevious testimony, he left the stand and promptly
departed the courtroom for the first time since the opening of the hearing.
In its brief the Respondent A rote relative to Reitzner's testimony, in part, as
follows :
Counsel made a motion tc. impeach Mr. Reitzner as his own witness. This
motion was made on the bz-sis that counsel believed Reitzner to be so com-
pletely confused, perplexed, and fearful of legal proceedings because of a
previous experience he had in legal proceedings resulting in considerable
embarrassment to himself, that his testimony was unreliable. Counsel for
the Respondent is more than convinced of this after having had an oppor-
tunity to make a first hand investigation of the circumstances surrounding
Mr. Reitzner's testimony.
Of course, the Trial Examiner may not go dehors the record and, therefore, has
had no such advantage as Respondent's counsel had in personally investigating
this strange episode so as to arrive at the conclusion indicated in the last quoted
sentence above.
Based upon the record, however, this Trial Examiner is convinced that Respond-
ent's counsel's motion to strike F eitzner's testimony is not the correct solution to
the problem posed. The undeniel testimony as to events occurring between Reitz-
ner's appearances on the stand are too important and illuminating.
It must be admitted at the outset that Reitzner lied on at least one appearance
on the witness stand. The only question is whether Reitzner lied on both occasions.
In his original testimony Reitzner stated that he first learned of union activity
in the plant as early as August or September 1955, which was a month or two
earlier than Buchberger and Dreier had estimated that their interest in the Union
13 It is interesting to note that Barrant, although fixing the date as of the middle of
January 1956, described exactly the same influx of telephone calls from employees and
other, giving him information about the Union and its activities.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
began. Obviously one or the other misjudged the time element. However, this
miscalculation is extremely slight when one considers the considerable lapse of
time between this rather nebulous event and the date of the hearing. Miscalcula-
tion of time is a common and natural phenomenon.
The original testimony of Reitzner and the testimony of Harrant regarding the
source of their respective information regarding concerted and union activity in
the plant were practically identical-except as to the date of its receipt. Both of
these witnesses testified to the receipt of this information by word of mouth from
employees in the plant and by telephone calls to their homes at night. Both
acknowledged receiving on occasions a number of telephone calls a night. Obvi-
ously these 5 or 6 telephone calls an evening were not mere coincidence but
were stimulated by some important event, either actual or impending, the news
of which was fresh, new, and to certain employees important to relay to the
Respondent.
But, as noted heretofore, Harrant, in conformity with the rest of his testimony,
placed the occasions when he was deluged by telephone calls at a time "after the
discharge" and about the middle of January-at a time when, according to this
record, there were no important events concerning union or concerted activities
which would stimulate the numerous telephone calls. Accordingly, it would seem
that the telephone calls which deluged Harrant occasionally must have resulted
from pure chance or coincidence if Harrant's testimony is to be accepted.
On the other hand, Reitzner in his original testimony specifically mentioned
August, September, and December as months when he received numerous tele-
phone calls. Although Reitzner may well have been a month or two awry on
his earlier dates as noted above, it is clear that in each of these periods there were
events regarding concerted and union organization which would stimulate the
deluge of telephone calls which Reiteaer-and Harrant-received. Thus, in Reitz-
ner's original testimony, this occasional influx of telephone calls depended not
on chance or happenstance but were logical and explicable in accordance with
known and recognized facts.
In other words Reitzner's original testimony accords with common sense and
is logical according to the way things generally happen. Harrant's does not. Con-
sequently Reitzner's original testimony appears chronologically correct and logical
Harrant's does not.
Harrant was a glib witness. He dated everything as either "before" or "after"
the discharge.
On his original appearance on the witness stand Reitzner appeared to the Trial
Examiner to be a witness testifying carefully, although on occasion reluctantly,
to the truth as he knew it to be. On his second appearance on the stand Reitzner
appeared to be a man speaking a piece, by rote, regardless of its truth. The
undenied testimony of the newspaper reporter and the union official appeared to
explain this difference.14
Under all the circumstances here involved, the Trial Examiner is convinced and,
therefore, finds that the original testimony given by the witness, Reitzner, was
essentially correct and that the Respondent through Miller, Harrant, and Reitzner,
did in fact have knowledge early in the fall of 1955 that a concerted effort to
organize the Respondent's employees was under discussion and was in fact under-
taken in December 1955 by Buchberger and Dreier among others.
In addition to the above findings, there is still another phase to the bizarre
events of this Reitzner incident. The blatant effort of Harrant to force Reitzner
to conform his testimony to that previously given by Miller and himself casts grave
doubts not only upon the truthfulness of Harrant, Miller, and Respondent's primary
defense of a complete lack of knowledge of the concerted activities in the plant
but further casts grave doubts as to the bona fides of the Respondent's whole
defense to this complaint.
It must be recalled that, on at least two other occasions during this hearing,
witnesses for the Respondent changed their original testimony following recesses
in order to bring that testimony into conformity with the Respondent's preconceived
defenses. Miller himself set this pattern when he changed his testimony that Fore-
man Parr ceased to complain about employee Buchberger in or before 1947 to the
fact that Parr continued his complaints against Buchberger until shortly before his
death in November 1954. The excuse for this change in Miller's case was that he
14 Chronologically the explanation of the change in Reitzner's appearance and testimony
was entered upon the record through the undenied testimony of the newspaper reporter
and of the union official subsequent to Reitzner's second and last appearance on the
witness stand
MILLER ELECTRIC MANUFACTURING -CO., INC. -309
had misheard a question due to an infected ear, an excuse which well may have
been justified. However, as a witness, Miller at least verged upon being unneces-
sarily rambling and vague-especially about certain events and dates which, in his
case, were almost universally classified as being either "before" or "after the
discharge."
The second example of testimonial changes following a recess was that noted
above when Ellefson became convinced, after the recess, that his conversation with
Harrant regarding union activities in the plant must have occurred "after the dis-
charge." Again the Trial Examiner was not impressed by the testimonial change
because his admitted conversation with employee Maas in the Sears store on
Christmas Eve was positive proof that Ellefson himself had knowledge of union
activities in the plant prior to the discharge-despite his testimonial denial thereof.
Accordingly, the Trial Examiner has found that Ellefson spoke to Harrant about
union activities in the plant at least on January 3, 1956.
The facts disclosed in this record created too many holes in the preconceived
dike of lack of knowledge set up by Miller and Harrant for those leaks to be suc-
cessfully plugged on the credibility of those two witnesses alone. Harrant's unde-
nied activity in the Reitzner episode does not enhance one's faith in Harrant's
credibility but, in fact, even reflects on the credibility of Miller. The Trial Examiner,
accordingly, has been unable to give full faith and credit to the testimony of either
of these witnesses.
(b) Respondent's other contentions
Respondent's first and primary charge against Buchberger as phrased in the dis-
charge letter of January 4, 1956, was as follows:
On December 29, 1955, a meeting was held on company premises of all the
employees and management of the company.
At this meeting, you publicly stated in front of all those present, that your
earnings were only $60 00 per week.
After due consideration, it is our strong opinion that such a statement was
a deliberate and malicious mis-statement of fact, inasmuch as your average
paycheck for the past year amounted to $85.32 and you knew your earnings
were in excess of $60.00 per week.
As found above, the meeting of December 29 at which the allegedly offensive
remark was made by Buchberger had been held by the Respondent specifically for
the undisclosed purpose of permitting the Respondent to determine what was wrong
in the plant and what dissatisfactions existed which caused the concerted or organ-
izational activities which were taking place in the plant to the Respondent's
knowledge. The incentive rate had been dropping steadily for months. The em-
ployees were known to be dissatisfied with it. At the meeting Miller invited
employee comments and questions promising "no reprisals." The only employee
who spoke on the wage system was Buchberger who was critical thereof. He objected
that the incentive rate was too variable. He suggested or inquired as to whether it
could be controlled or "fixed." The record proved that the incentive rate had
varied steadily downward for many months, the average for the first 6 months of
the year having been 93.48 percent while that for the last half of the year turned
out to be 77.3 percent or 85.37 percent for the entire year.15 As the "earned hours"
allotted to a manufactured article depended exclusively upon the competitive market
price of that machine, it is clear that the incentive would fluctuate in accordance
with the market for which the machine was being manufactured. The more com-
petitive the market, the lower the price and, therefore, the fewer earned hours
allotted and the lower the incentive would be while the less competitive the market,
the higher the price and, therefore, the more earned hours allotted and the higher
the incentive rate.
Although Miller purported to see an implication in Buchberger's remark regard-
ing the possibility of controlling or "fixing" the incentive rate which angered him,
his own explanation at the meeting was limited to the office procedures by which
the incentive figure was mathematically arrived at by the office staff after the allot-
ment of earned hours had been made This was hardly illuminating to the employees.
Nor was the "complicated formula" by which the competitive market price was
translated into "earned hours" tor each machine more fully explained either at
the meeting or at the hearing. His explanation therefore did not reach to the core
of the question asked.
"The average incentive rate for the year 1956 proved to be 105 64 percent or 20 27
higher than in 1955.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another remark which apparently angered Miller and the Respondent was Buch-
berger's suggestion that attempting to live on $60-$65 per week in the year 1955
was extremely difficult. Miller's rejoinder to this at the meeting was that lots of
persons in the Fox Hill valley were living very well on that amount of money and
that, besides, his employees were averaging $1.95 per hour. The figure Miller gave
at the hearing may have been accurate although it hardly seems mathematically
possible in a plant with as many new employees as the Respondent apparently had.
New employees started at 84 cents per hour with an average incentive rate for the
year of 85.37 percent. This figures mathematically to an hourly rate of $1.557 per
hour or $62.28 for a 40-hour week.
Miller's answer to Buchberger on the $60-$65 per week question is of interest
on the conflict of testimony which developed at the hearing as to whether Buch-
berger's statement at the meeting was a generalization, as testified to by all the
witnesses for the General Counsel, or whether Buchberger said, as each of the
numerous witnesses for the Respondent testified: "I can't live on 60-65 dollars a
week." Contrary to his testimony given at the hearing, Miller's answer at the
meeting indicated quite clearly that at that time he, Miller, also understood Buch-
berger's remark to have been a generalized one, rather than a personal reference.
It was not until the following day that the Respondent posted Buchberger's personal
earnings' statement indicating for the first time that it considered Buchberger's
remark at the hearing to have been a personal remark. Miller excused this delay
on his own "slow thinking" at the meeting. He acknowledged that members of
the payroll department who were also present at the meeting could have supplied
him with Buchberger's personal earning record within a matter of minutes. Miller
had been encircled by his whole official family during this meeting, including
Harrant, in addition to those in charge of the payroll department. It is hard to
believe that this whole hierarchy was equally slow witted. It is easier-and more
logical-to believe, as the Trial Examiner does, that Buchberger' s statement at
the meeting was the generalized one found above.
As indicated above, and as admitted at the hearing, it was perfectly possible
for Respondent's newer employees to have been earning between 60 and 65 dollars
per week at the Respondent's plant in 1955. In fact as indicated above a new
employee at a base rate of 84 cents per hour was averaging in that range for a
40-hour week. Thus, Buchberger's statement was not a lie.16
The record proves beyond question that Miller invited comments and questions
regarding the incentive system and had promised "no reprisals" for those employ-
ees making such. Miller praised Buchberger for his original question to the assem-
bly at the meeting. In addition, Buchberger had been requested by other employees
to express their point of view on the incentive system at the meeting . Wages are
a proper subject for collective bargaining. Buchberger's comments had been fair
and accurate, if somewhat penetrating. In making those comments, Buchberger
not only had accepted Miller's invitation, but was engaged in a protected concerted
activity.
Actually it developed during Harrant's testimony that the Respondent's objection
to Buchberger's statement made at the meeting was that the Respondent and Har-
rant considered that Buchberger was attempting to "incite" the Respondent's em-
ployees to concerted effort "with his lies . . . and his accusations." This incitation
was the important objection the Respondent had to Buchberger's comments, espe-
cially as it was known that he was one of the instigators of the concerted effort
towards organization. Whether the remarks made were personalized or generalized
was unimportant in Respondent's eyes compared to the effect they could have had
upon the employees' concerted effort.
"Lies" could be stopped or corrected by posting notices. Inciting employees
to concerted effort at organization could not-short of discharge.
The next "cause" for Buchberger's discharge was stated by the Respondent in
its discharge letter of January 4, 1956, as follows:
Recently your personal conduct in regard to violation of Motor Vehicle
Laws of Wisconsin was such that it was not characteristic of an employee of
this company.
This charge related to an episode which occurred nearly 2 months previously
on November 7, 1955, when Buchberger was arrested for being drunk and disorderly,
"Even if Buchberger made the personalized statement attributed to him by the Re-
spondent 's witnesses , which the Trial Examiner cannot find on this record, the statement
would seem more properly classified as an exaggeration rather than a lie.
MILLER ELECTRIC MANUFACTURING CO., INC. 311
spent the night in jail and paid $20 as a fine and $20 more for breakage. On the
same evening, the fellow employee with Buchberger had been arrested and fined
for drunken driving. Both episodes had been reported in the Appleton newspaper
in the November 8, 1955, edition where it had been read by Respondent's officials.
At least until Buchberger became interested in union organization, this episode
of November 7, appeared to be of no moment to the Respondent for both employees
continued working for the Respondent without discipline, reprimand, or notice of
the episode by the Respondent. Until January 4, 1956, Respondent considered
this episode, which was completely divorced from the Respondent or employment
with the Respondent, to be purely a matter involving the employees' personal lives.
The Respondent's long inactivity with knowledge of the episode proved that the
events of November 7, had no actual effect upon Buchberger's employment status.
The episode was resurrected on January 4, in order to bolster Respondent's con-
tention that Buchberger was discharged for cause.
That the Respondent was in fact completely indifferent to such private activities
of its employees, independent of their employment status, was clearly demonstrated
about 1954, when Respondent promoted one of its official hierarchy following that
official's arrest and conviction on similar, or more serious, charges.
Therefore, the Trial Examiner has no hesitancy in finding that the discharge
letter mentioned the episode of November 7, solely in an effort to bolster its
case against Buchberger and that said episode played no part in his discharge.
The last item mentioned in Respondent's letter of January 4, to bolster their
contention that Buchberger was discharged for cause read as follows:
Since around December 1, 1954, we could not help but observe a steadily
increasing antagonistic attitude on your part since our selection of a new
foreman.
In the year 1953 and 1954, members of the shop committee elected from the
sheet metal department did complain to Harrant that Buchberger was loafing on
the job and requested Harrant to "straighten him out." Apparently, from Harrant's
testimony at least,17 Harrant on one or more occasions requested permission from
Miller to discharge Buchberger. Permission was always refused until January
4, 1956.
In order to prove this contention that Buchberger was antagonistic and that
he loafed on the job, the Respondent called no less than 6 of its handicapped
workers, all but 1 of whom had no information except hearsay, as they worked in
other departments so located as to be able to personally observe little or nothing
of Buchberger's work habits. The sixth witness, Austin Phillips, was at one
time the elected shop committeeman from the sheet metal department who was
primarily responsible for the attack upon Buchberger. His testimony was patently
exaggerated and obviously biased by his jealousy of the fact that Buchberger was
assigned more overtime work by Foreman Ellefson than the witness was himself.
In fact, even though the Respondent's letter indicates that the basis for Buch-
berger's alleged antagonism was his jealousy of the appointment of Ellefson as
foreman, this witness contended that Ellefson favored Buchberger over the re-
mainder of the employees. Part of the obvious bias displayed by these handi-
capped workers against Buchberger at the hearing may well have stemmed from
the rumor started, but not vouched for, by President Miller himself to the effect
that, if the Union succeeded in organizing their shop, the handicapped workers
would have to be discharged or the plant closed.
In assessing the truthfulness of this testimony, it must be noted that Foreman
Ellefson of the sheet metal department in his testimony made no adverse criticism
of Buchberger either as a workman or as an individual. In fact, within the last 6
months of Buchberger's employment, it is undenied that Ellefson had praised him
and his work. This accords with Buchberger's 12 years of satisfactory service with
the Respondent and Miller's refusal to have him discharged previously.
The short answer to this contention made by the Respondent is that even the
Respondent admitted that during Buchberger's last 6 months of employment, no
complaints had been voiced against Buchberger or his work. Indeed, as noted
above, his foreman had even praised both.
Consequently, the Trial Examiner must find that this third charge against
Buchberger was stale, without validity, and exaggerated beyond recognition in an
effort to create a logical pretext for the discharge of Buchberger.
i* It is impossible due to Harrant's vagueness as to dates to determine whether Harrant
made one or innumerable requests of Miller.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Conclusions as to Buchberger's discharge
It thus appears that 2 of the 3 reasons given by the Respondent to explain the
discharge as having been for cause are mere pretexts 'added to the first stated
reason for the purpose of giving the discharge an appearance of legitimacy. When
examined even superficially, these two alleged causes are patently without sub-
stance or merit.
Similarly, Respondent's contention that it had no knowledge of concerted or
union activities in the plant until "after the discharge" was, if anything, even more
clearly disproved. The facts show that too many of the Respondent's supervisors
and officials knew and had talked about these activities for this defense to be
credited. Miller's remark about "parasites" on December 29, the conversation
between Harrant and Ellefson on January - 3, Reitzner's admitted knowledge,
gained exactly as Harrant described the method by which similar information
came to him, and Ellefson's conversation in the Sears' store on Christmas Eve
clearly and convincingly disprove any claimed ignorance on the Respondent's part.
If the above is not deemed sufficient proof, then Harrant's undenied effort to
bring Reitzner's testimony into conformity with the ignorance claimed by Miller
and by himself must be conclusive.
All that remains of the Respondent's preconceived lines of defense then are the
statements made by Buchberger at the Respondent's invitation at the December 29
meeting. Although some of these queries or statements were penetrating and
disclosed unpleasant truths and fallacies in the Respondent's incentive system,
the comments were fair comments on matters directly affecting the employees'
hours, wages, and working conditions. Although these comments had been in-
vited with the promise of no reprisals, Buchberger's comments, no doubt, were dis-
pleasing to the Respondent as pointing out weaknesses and fallacies in the sys-
tem, about which, as the Respondent well knew, there had been for some months
growing dissatisfaction among the employees which had caused them to seek
union assistance . Although Buchberger had been requested and authorized by
fellow employees to discuss their wages, hours, and working conditions at this
meeting, _as well as by the Respondent, the evidence disclosed that the Respondent
feared such comment might well incite its employees to further organizational
effort which, as will more clearly appear in subsequent sections of this report,
was highly displeasing to the Respondent, Miller, and Harrant. However, in so
doing, Buchberger was, as found above, engaged in a protected concerted activity
guaranteed by the Act. In order to prevent further "inciting" of its employees
to a concerted effort to form, join, or assist a labor organization, Respondent dis-
charged Buchberger on January 4, 1956, giving him alleged reasons therefor,
which were mere pretexts without merit or substance. Accordingly, the Trial
Examiner must find that the Respondent discharged Vincent Buchberger on Janu-
ary 4, 1956, in order to discourage concerted activity and union membership in
violation of Section 7 and Section 8 (a) (3) and (1) of the Act.
B. Interference, restraint , and coercion
1. The Harrant-Dreier interview
As found heretofore under the discharge of Buchberger, Harrant called
Carlon Dreier to his office on January 20, about 2 weeks after the receipt of the
Union's charge in this matter, for a conference lasting from 9:15 to 11:45 a. m.
As the facts of that conference have been found in full under the previous section
of this Intermediate Report, they will not be repeated here. -
Respondent's purpose, in calling this long conference was clearly set forth in
Harrant's concluding remarks to, Dreier to the effect that Dreier "should be one
of those that go and train the fellows to work, rather than cause dissension."
During that 2'h-hour conference, Harrant utilized two distinct methods in an
effort to accomplish his objective. The first was the use of fear of loss of employ-
ment. At the very outset of the conference, following a preliminary statement
giving lip service to the guarantees. of the Act, Harrant disclosed to Dreier that
the Respondent knew Dreier to be one of the instigators of the move to unionize
the employees and, in addition, knew those employees who had attended the Apple-
ton Hotel meeting of December 20, of whom Dreier had 'been, one, as well as
practically all of the employees who had signed cards on behalf of the Union.
These revelations were designed to indicate to Dreier that the Respondent had all
the union activities of its employees under close surveillance which, in the light
o' Buchberger's recent discharge, was reasonably calculated to instill fear of similar
loss of employment among those employees still engaging in such activity. Dreier's
MILLER ELECTRIC MANUFACTURING CO., INC. 313
reaction at the conference was proof that the implication was not lost on him.
Harrant then turned to the second weapon in his arsenal by holding forth to Dreier
the possibility of financial help from the Respondent if and when Dreier decided
to attend vocational school thereafter.
Harrant's concluding remark made it unmistakably clear that which fate was to
befall Dreier depended upon whether Dreier decided "to train the fellows to work"
or continued to "cause dissension" by continuing to foster unionization among the
employees in the plant. Thus, Harrant's effort was to coerce Dreier into foregoing
his efforts to organize the Respondent's employees.
Therefore, the Trial Examiner must find that Harrant's conference with-Dreier on
January 20, 1956, was intended to, and in fact did, interfere with, restrain, and
coerce Dreier and the employees into abandoning their concerted effort to organize
themselves into a labor organization and, thus, violated Section 8 (a) (1) of
the Act.
2. The no-solicitation rule
On February 8, 1956, the Respondent posted and maintained until approximately
June 6 on its bulletin board in the plant the following notice:
February 8, 1956
NOTICE
No employee will engage in union solicitation or organization of any kind
during his working hours or on company premises without written consent
from an executive of the company.
No employee will engage in the distributing and circulating of unauthorized
notices, posters or handbills on company premises.
Any employee violating these rules will be warned for the first offense and
suspended without pay for 2 days for the second. Third offense will either be
1 week's suspension without pay or discharge.
------------------------------------------------------
Executive Vice President.
This notice is so phrased as to prohibit all union solicitation or activity on com-
pany premises at any time, including the employee's rest periods. The Board and
the courts have condemned such comprehensive company rules on the grounds
that by including all company property and all of the employee's nonworking hours,
such as rest periods, lunch periods, etc., the prohibition goes beyond reasonable
and permissible limitations, thus unreasonably limiting the rights guaranteed to the
employees by the Act, and, therefore, such rules are held to be in violation of
Section 8 (a) (1) of the Act. The Trial Examiner so finds.
However, the Respondent here contends that the rule was not unreasonable
because "written consent from an executive" might have been granted and because
no request is shown to ever have been made for such written consent. The fallacy
in this argument is that the rights of the employees have been set by a statute of
the United States and that the exercise of these statutory rights may not thereafter
be further limited or conditioned by the desires or whims of any particular em-
ployer. The Trial Examiner, therefore, finds that by posting the above no-solicita-
tion rule in the plant on February 8, 1956, the Respondent violated Section 8 (a)
(1) of the Act.
The posting of this illegally broad rule against union solicitation and activity
disclosed, as had Miller's speech on December 29, and as had Harrant during his
21h-hour conference with Dreier, the Respondent's animus towards the unionization
of its employees. In this connection Harrant's explanation for the posting of this
rule was illuminating. Harrant testified at the hearing that the purpose of the
rule was to prevent the employees from posting too many unauthorized notices
regarding dances, social events, raffles, etc., and other similar affairs. Not only
the emphasis on union activity in the notice itself disproved Harrant's attempted ex-
planation but also the fact that all other solicitations for dances, raffles, product
sales, etc., continued after the posting just as they had prior to that time. Thus,
the facts show that the posting of this rule was exclusively for the purpose of coercing
the employees to cease exercising their right guaranteed by the Act to "help form,
join, or assist" labor organizations.
The fact that no one may have suffered any penalty as prescribed by the notice is
immaterial for the reason that the deterrent was the posting of the notice itself. It
was calculated to have that effect.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly the Trial Examiner must find that the posting of this illegal no-
solicitation rule by the Respondent on February 8, 1956 , interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed to the employees
by the Act in violation of Section 8 (a) (1) of the Act.
3. The derating of employee Vandenburg
About February 10, 1956, the Respondent for the first time in its history intro-
duced a system by which its foremen , such as Ellefson, were required to rate each
individual employee under his supervision . The Respondent supplied the foremen
with a form entitled "Employee Rating Sheet" consisting of nine rating elements.
The first of the nine rating categories was listed on the rating sheet as "Loyalty to
Company" which was followed by such other elements as "Ability to Take Direc-
tions," "Housekeeping ," "Willingness to Cooperate," "Safety Practice," etc.
Prior to the initial ratings the Respondent held a meeting of its foremen in order
to explain the new system and the meaning of the rating elements. The element
"Loyalty to Company" was, according to Harrant 's testimony, explained to the
foremen at this meeting as follows:
Well, we felt that any person working for our company certainly would, in
their conversations with outsiders, that is , outsiders being any person not in
the employ of Miller Electric, would talk well of the company, would certainly
praise the product that was being manufactured, which they had a hand in, and
certainly not degrade any person responsible for the operation and manage-
ment of the organization.
As I testified earlier , Loyalty to the company was submitted to the foremen
in this way: that we felt that their true feeling, fidelity to the company , that it
was besides that the manner in which the employee spoke of the company,
not only on the premises , but off the premises , wherever it might have been
heard, and that the person had a good feeling towards not only the product
that we manufactured , in which they contributed a portion thereof , but also
to the management of the company, and anybody else in connection with the
operation of our company.
Sometime 18 about this time Harrant notified Foreman Ellefson that employee
Quintin Vandenburg of the sheet metal department had attended at least one
union mass meeting.
Ellefson thereafter rated Vandenbuig 80 percent on the element "Loyalty to
Company." On all other elements Ellefson rated Vandenburg the perfect score
of 120 percent. However, the loyalty rating of 80 percent reduced Vandenburg's
total rating on all elements to 100 percent from the 120 percent given for an
excellent rating.
After discovering that Ellefson had rated him only 100 percent, Vandenburg
spoke to Ellefson stating that he figured that he should have been rated 120 per-
cent. Ellefson answered that he had heard that Vandenburg was "going to union
mass meetings" and, therefore, would have to put Vandenburg down to 100 per-
cent "on that account." 19
According to witnesses for the Respondent , the foremen's rating was merely an
advisory rating until passed upon by a reviewing board consisting of Harrant and
two other vice presidents. When passed by this reviewing committee, the rating
was final but the employee, if still dissatisfied, was entitled to appeal directly to
President Miller.
In Vandenburg's case, Ellefson's rating was passed without change by the re-
view committee.
Under the system introduced by the Respondent. this employee rating affected
each employee's rate of pay for the reason that only employees with the excellent
rating (120 percent) received the full incentive rate for each week's work, while
those rated less than 120 percent had the weekly incentive rate reduced propor-
tionately to the score each had received on the employee rating sheet.
Thus during the whole period that Vandenburg's rating remained at 100 per-
cent, Vandenburg failed to receive the whole weekly incentive rate and his pay-
18 Both Harrant and Ellefson were extremely vague as to this date.
19 As a witness Ellefson at first admitted that such attendance caused the derating of
Vandenburg. Subsequently, he denied that such attendance had any effect upon his rat-
ing but finally agreed that he may have considered it "a little."
MILLER ELECTRIC MANUFACTURING CO., INC. 315
checks were reduced below what he would have received if his employee rating
had been 120 percent.
The discrimination against Vandenburg on this employee rating based, as it was,
upon his attendance at union mass meetings is too patent to require comment
here.
However, this discriminatory action by the Respondent was brought to Har-
rant's attention by a field examiner for the Board during his investigation of this
case. Despite the fact that it was Harrant, himself, who had informed Ellefson
as to Vandenburg's attendance at union meetings, Harrant, according to the evidence
here, promptly thereafter in April 1956, gave Ellefson, in Ellefson's own words,
"the worst bawling out" Ellefson ever took on any job and which, according to
Ellefson, placed Ellefson's "own job in jeopardy." Also, Harrant had the em-
ployee review sheet on Vandenburg changed to 120 percent and handed Vanden-
burg a check for the difference in pay which had resulted from the lower employee
rating made by the foreman which had been approved originally by Harrant and
his fellow vice presidents.
Prior to the second rating date, the element "Loyalty to Company" was eliminated
from the employee rating sheet and the element "Productivity" substituted for it.
However, Harrant candidly testified at the hearing that he still considered the
element "Loyalty to Company" to have been the most important element in the
Respondent's rating form.
Respondent denied responsibility for this discrimination on the grounds that
Ellefson was not a supervisory employee and, further, that Ellefson had "misunder-
stood," or disobeyed, the Respondent's instructions in regard to the meaning
of the element "Loyalty to Company."
Even if we assume that Ellefson was not a supervisory employee (contrary to
the facts disclosed in this record and the finding made by the Trial Examiner
heretofore), still the Respondent cannot escape responsibility for this discrimina-
tion. The facts here show that it was Harrant who informed Ellefson that Van-
denburg was attending union meetings; Ellefson's rating, even if advisory only, was
passed upon and approved by Harrant and his fellow vice presidents . It is thus
obvious that the 80-percent rating on "Loyalty to Company" based upon attendance
at union meetings was in accord with Harrant's intentions when he passed that in-
formation on to Ellefson at rating time. From the approval of Ellefson's rating
by the reviewing vice presidents, it is clear that they approved the derating of an
employee for attending union meetings.
In July or August 1956, Respondent created a new position in the sheet metal
department, that of assistant foreman to which they promoted Vandenburg. Thus
Vandenburg became the first and, at that time, the only assistant foreman in the
Respondent's plant.
The derating of employee Vandenburg based as it was upon his attendance at
union meetings was patently discriminatory and intended to interfere with the
rights guaranteed him in Section 7 of the Act, thus, violating Section 8 (a) (1)
of the Act. The Trial Examiner so finds.
4. The speech of February 13, 1956, by President Miller
On February 10, Friday, the Union distributed leaflets to the Respondent's
employees at the gates of the Respondent's plant as the shifts were changing
around 4 p. m.
The following Monday , February 13 , President Miller addressed the day shift
employees in the plant over the public address system which extended throughout
the plant through a microphone located in his private office.
In this talk given over the public address system Miller stated that on the previous
Friday an employee 20 had asked Miller to call the police in order to stop abusive
language being used by distributors of these union leaflets to the employees. But
that he, Miller, "didn't interfere, didn't ask the police for interference (sic) because I
wanted [the employees] to find out how lousy [the Union distributors] could be." ai
Miller then proceeded to tell the employees that information had come to him
that "certain of our employees had attended union meetings" and that a certain
large percentage of those attending such meetings had been new employees, a smaller
percentage had had up to 5 years' employment with the Respondent and that the
smallest percentage of those in attendance had been employed over 5 years. He
ar According to Miller 's testimony, the employee referred to was a cost accountant
named Jim Wrasz.
v Other answers by Miller indicate his use of the phrase "stinking and lousy."
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued by stating that the speaker at that union meeting had stated that "when
we represent Miller Electric, their handicapped people must go" and that Respondent's
incentive system was "for the birds." He then added that, "if the day ever came
that I was forced to get rid of our handicapped and old people, our incentive system,
there would be no more Miller Electric Company." 22
It is now well established that surveillance of union activities, though secret
and unknown to the employees, violates Section 8 (a) (1) of the Act.
Here Miller's speech noting the numbers of the employees attending union meetings
in percentage figures and purporting to describe certain alleged statements of
speakers at those union meetings was reasonably calculated to notify the employees
that the Respondent was keeping their union activities under close and penetrating
surveillance. Whether Miller's facts and figures were factual or figments of his
own imagination, their citation in Miller's speech was calculated to instill fear of
the consequences of engaging in union activities in the minds of the employees and,
thus, to restrain and coerce said employees into abandoning these activities and,
therefore, infringed upon the rights guaranteed to the employees by the Act and
violated Section 8 (a) (1) thereof.
In addition to the above violation of Section 8 (a) (1) of the Act, Miller's speech
also contained the clear implication that, as the Union would demand the elimination
of the handicapped employees and of the incentive system, according to the rumor
started by Miller in the speech above referred to,23 Miller Electric Company would
go out of existence, thus causing all the employees to lose their employment if they
should select the Union to represent them. This clear implication was also reasonably
calculated to coerce and restrain Respondent's employees through fear of loss of
employment into abandoning their efforts to form, join, or assist the Union 24 Thus,
the Trial Examiner must find that Miller's speech of February 13, 1956, also
violated Section 8 (a) (1) of the Act in this regard also. This speech was another
step in an antiunion employer's campaign of interference, restraint, and coercion
to force its employees to abandon their concerted efforts to organize.
Instigated by a remark by the field examiner investigating this case to the effect
that Miller's February 13 speech violated the Act, on March 29, 1956, President
Miller again addressed Respondent's employees over the public address system in
order to "correct" any misunderstandings of the February 13 speech. In this
speech, after paying lipservice to the right of the employees to join or refrain from
joining a union, Miller reiterated the supposed statements of the union speaker
regarding the elimination of the aged and the handicapped workers, although he
specifically disclaimed knowledge of the authenticity of the facts he himself was
stating, and again reiterated that, if the handicapped, the aged, and the incentive
system had to go in accordance with such alleged union demand, the Respondent
would cease to exist.
Respondent appears to contend that this speech "corrected" the coercive effects
of the February 13 speech. The Trial Examiner cannot agree. In the first place
the same clear implication of loss of employment in the event that the employee
should select the Union as their representative still existed in the March 29 speech.
In the second place, regardless of that, the March 29 "corrective" speech could
not eliminate or eradicate the effects of the 6 weeks of coercion caused by the
February 13 speech.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, have a close
22According to Miller, these 2 groups constituted over 50 percent of the Respondent's
working force
23 It must be noted here that in making a subsequent speech on March 29 purportedly to
"correct" alleged misunderstandings of the February'13 speech, Miller again referred to
this supposed demand by union speakers for the_ elimination of Respondent's handicapped
employees and of the incentive system but, on this occasion, Miller specifically refused
to accept responsibility for the truth or falsity of the rumor he himself had started
Due to the fact that the aged and the handicapped constituted more than 50 percent of
the Respondent's working force, Miller's starting of this rumor affecting those 2 groups
was an effective weapon against any possible unionization of the employees.
u The complaint as amended alleged and the evidence indicated that on or about Janu-
ary 25, 1956, Foreman Ellefson repeated Miller's threat to close the plant if the Union
succeeded in representing the employees. Because Ellefson's statement was a mere re-
iteretion of Miller's twice repeated threat, the Trial Examiner Is not making separate
findings thereon
ZIMMER INDUSTRIES, INC. 317
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Vincent Buchberger by discharging him on January 4, 1956,
the Trial Examiner will recommend that the Respondent offer to him immediate
and full reinstatement to his former , or substantially equivalent position , without
prejudice to his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of said discrimination by payment
to him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination against him to the date of the offer of reinstatement
less his net earnings during such period , in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner , the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife which burdens and obstructs commerce , and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Associated Unions of America, Independent , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging Vincent Buchberger on January 4, 1956, thereby discriminating
in regard to his hire and tenure of employment and thus discouraging membership
in Associated Unions of America , Independent , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, the 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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Zimmer Industries , Inc. and United Automobile , Aircraft and
Agricultural Implement Workers of America (UAW), AFL-
CIO, Petitioner . Case No. 35-RC-1496. April 3, 1958
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On October 18, 1957, pursuant to a stipulation for certification upon
consent election, an election was conducted under the direction and
supervision of the Regional Director for the Ninth Region among the
employees in the stipulated unit. Upon conclusion of the election, a
tally of ballots was furnished the parties in accordance with the Rules
and Regulations of the Board. The tally showed 95 valid ballots were
cast, of which 41 were for, and 54 were against, the Petitioner.
120 NLRB No. 50.