Quality Limestone Products, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1009 (N.L.R.B. 1965)

QUALITY LIMESTONE PRODUCTS, INC., ETC. 1009
such employees under the provisions of Section 9 of the Labor Management
Relations Act, as amended, or (b) to force or require Albany Medical Center
Hospital, or any other person engaged in commerce or in an industry affecting
commerce, to cease doing business with Fitz-Inn Parking, Inc.
LOCAL 895, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
Dean Fox, Business Agent.
Dated----- --- ---- ------- By- -------- ----------------------------------
Herbert Grossman , Business Agent.
LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- By-------------------------------------------
Nicholas Robilotto, President.
Dated------------------- By-------------------------------------------
Howard Bennett , Business Representative.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Region 3,
Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Tele-
phone No. TL 6-1782, if they have any question concerning this notice or compli-
ance with its provisions.
Quality Limestone Products , Inc.; Waukesha Lime and Stone Co.,
Incorporated; Halquist Lannon Stone Company; Wislanco Lan-
non Stone Co., Inc.; Monacelli Lannon Stone Co.; Midwest Lan-
non Stone Co.; Milwaukee Lannon Stone Co., Inc. and Drivers,
Salesmen , Warehousemen, Milk Processors , Cannery, Dairy
Employees and Helpers Local Union 695, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Cases Nos. 30-CA-6 (formerly 13-CA-5055), 30-CA-
10 (formerly 13-CA-5450), 30-CA-11 (formerly 13-CA-5451),
and 30-CA-16 (formerly 13-CA-5595). July 1, 1965
DECISION AND ORDER
On May 13, 1964, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices and rec-
ommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
153 NLRB No. 93.
79 G-02 7-G G-v of 153-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint, and recommended dismissal of the complaint as to them. There-
after, the Respondents i and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs. The Charging
Party filed cross-exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions, and briefs, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner to the extent con-
sistent with our Decision herein.
We agree with the Trial Examiner that Respondents, by failing and
refusing to bargain on and after August 29, 1962, with the Union as
the exclusive representative of the employees in the appropriate multi-
employer unit, engaged in conduct violative of Section 8(a) (5) and
(1) of the Act 2
Certain other findings and conclusions of the Trial Examiner rela-
tive to the allegations of Section 8 (a) (1) and (3) violations are dis-
cussed hereinafter.
Discrimination by Waukesha
The General Counsel and Charging Party have excepted to the Trial
Examiner 's recommendations to dismiss certain allegations relating to
Respondent Waukesha's discriminatory treatment of employees Koch
and Lipuma. We find merit in the exceptions.
i Respondent Waukesha Lime and Stone Co , Incorporated ( hereinafter called Waukesha),
filed a motion with the Board for leave to adduce additional evidence concerning its rein-
statement of employee Mundigler The Trial Examiner had recommended that Mundigler
be reinstated with backpay for the period from April 16, 1963 , to the date of Waukesha's
unconditional offer of reinstatement . In its motion, Respondent Waukesha declared that
it had, in fact, rehired this employee in June 1954 ( after the hearing ) and he quit a few
days later because of his admitted inability to perform the bag-stacking job to which he
was assigned . Further, the movant asked that the hearing be reopened for the purpose
of introducing this evidence or that affidavits which were attached to the motion be made
part of the record to establish these facts which assertedly contradict the Trial Exam-
iner's findings concerning Mundigler 's physical capacity for employment with Waukesha
In our view , this evidence is incompetent and irrelevant to justify Waukesha ' s failure to
reinstate Mundigler during the spring of 1963 We view the issues otherwise raised by
the motion as properly resolvable during the compliance phase of this proceeding. Accord-
ingly, we deny Respondent 's motion.
2 To the extent that the Trial Examiner suggested that employers could unilaterally
create a multiemployer unit , presumably without reference to the desires of the union in-
volved , it is well-settled that the labor organization must also freely consent to bargain
jointly with a group of employers and that , at its inception , a legal multiemployer bar-
gaining unit can only be the product of the mutual agreement of such parties The
Great Atlantic & Pacific Tea Company , Inc, 145 NLRB 361, enfd . in part 340 F 2d 690
(C.A. 2).
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1011
The record demonstrates that during the Union's strike in October
1962, while leaving a tavern where he encountered a nonstriker, Koch
deflated the tires on the nonstriker's car. Koch was accompanied by
another Waukesha employee, Lipuma, who simultaneously slashed one
of the tires on the same vehicle. Later, both men were convicted and
fined by a local court for disorderly conduct as a result of this incident.
On November 10, 1962, a group of laborers who had been on strike,
including Koch and Lipuma, visited Waukesha's office, announced that
their strike was terminated, and unconditionally applied for reinstate-
ment. They were instructed to return on November 12 and on that day
all of them were given layoff slips containing the notation "lack of
work." Koch and Lipuma received such slips and no reference was
made to them by Respondent Waukesha concerning the above-described
damage and tampering with the nonstriker's automobile although
Respondent was aware of the incident.3 These two employees remained
in layoff status until April 18, 1963, when they learned that Waukesha
was recalling some of the unfair labor practice strikers. They went
to the plant and requested that Robert Coburn, Waukesha's secretary-
treasurer, put them back to work. Coburn told them that "they were
never coming back to work" because of the tire slashing episode and for
"other reasons."
With respect to Lipuma, we adopt the Trial Examiner's findings
that the Respondent discriminatorily refused to reinstate him on and
after November 12, 1962, in violation of Section 8(a) (3), including
the finding that Lipuma was discharged on April 18, 1963, because of
the prominent role he played in leading Waukesha's laborers into the
Teamsters, and his efforts to make the ensuing strike successful. How-
ever, the Trial Examiner also found that because of Lipuma's mis-
conduct during the strike, consisting principally in the tire slashing
incident, it would best effectuate the purposes of the Act to recommend
backpay for Lipuma only for the period between November 12, 1962,
and December 20, 1963, the date of the close of the instant hearing, and
to deny him reinstatement. We disagree with these recommendations.
The Trial Examiner himself found that on November 12, 1962,,
Respondent condoned any strike misconduct by Lipuma and Koch.
When the Respondent failed to discharge them and continued their
employment status by placing them on layoff that day, it elected to
treat them in the same manner as it did the other unfair labor practice
strikers, consequently waiving any right to discharge them subse-
quently for the same conduct. Sam Walliek, et al., d/b/a Wallick t
Schwalm Corp., and Spring Mills Apparel, Inc., 95 NLRB 1262;
3 Nor was it mentioned that Koch was seen holding a "billyclub" while picketing. How-
ever, Koch readily complied with the sheriff 's request to rid himself of this object. As
for Lipuma , at times while picketing he carried a small bat made of plastic . While we
do not approve of the carrying of such objects by pickets, in our view of this case, these
are not significant circumstances
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plasti-Line Incorporated and Harry W. Brooks, et al., d/b/a Sign
Fabricators, 123 NLRB 1471, enforcement denied 278 F. 2d 482 (C.A.
6). Moreover, as already noted, Lipuma's discharge on April 18, 1963,
had a discriminatory motivation. Under all the circumstances, we
believe that effectuation of the purposes of the Act requires the award
of backpay to Lipuma on and after November 12, 1962, and his rein-
statement to his former or substantially equivalent employment.
As for Koch, we reject the Trial Examiner's recommendation that
the allegations in the complaint as to him be dismissed. As has been
indicated here, Koch and Lipuma underwent simultaneous and iden-
tical treatment at the hands of Waukesha. Because the Trial Exam-
iner found Koch's union activities to be minimal, he concluded that
Respondent's mixed motivation actuating Lipuma's discharge in April
1963 was not applicable to Koch and that Respondent could lawfully
discharge Koch.4 On the other hand, we have previously found, as the
Trial Examiner did, that the Respondent condoned Koch's strike mis-
conduct in November 1962 when it gave him the layoff slip.5 Accord-
ingly, we find that the Respondent discriminatorily discharged
employee Koch, as it did Lipuma, on April 18, 1963, in violation of
Section 8(a) (3).6
Employee R. Meyers
Like the other Waukesha unfair labor practice strikers, Meyers
unconditionally applied for reinstatement in November 1962 and was
given a layoff slip. On April 15, 1963, Meyers was offered a tempo-
rary job of approximately 1 month's duration. Meyers refused because
he did not wish to resign from steady employment to accept Wau-
kesha's short-term job. Waukesha thereupon considered his employ-
ment terminated. The Trial Examiner recommends the dismissal of
the allegations in the complaint pertaining to Meyers on the ground
that the General Counsel has not sustained his burden of proving that
Respondent's offer of temporary employment was discriminatorily
motivated. We disagree. Although Meyers had little prestrike sen-
4 We note that the Board in the previous case Waukesha Lime and Stone Co., Incorpo-
rated, 145 NLRB 973, 990, adopted the Trial Examiner's finding that Koch was one of
the Waukesha employees and union adherents subjected to coercive interrogation in viola-
tion of Section 3(a) (1). Further, under the terms of the Order in the above-cited case,
Koch and the other Waukesha laborers were to have been reinstated with backpay upon
their application on or after August 20, 1962.
s Although not necessary to our decision herein by reason of our findings concerning
Respondent's condonation of Lipuma's and Koch's strike misconduct, we would note our
view that the subject conduct of these two employees does not appear, in any event, to be
so flagrant as to warrant our disqualifying them from the Act's remedial provisions.
Plastic Applicators, Inc., 150 NLRB 123; Kansas Milling Company, 86 NLRB 928, enfd.
185 F. 2d 413, 420 (C.A. 10).
6 Koch was a relatively new employee having low seniority compared to certain Waukesha
nonstrikers who continued to work during the winter of 1962-63. Consequently, it
appears that under Respondent's practice of utilizing seniority when selecting employees
for layoff, there would have been no work for Koch between November 12, 1962, and on
or about April 18, 1963. For these reasons, we order the reinstatement of Koch with
backpay commencing April 18, 1963.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1013
iority, he was an unfair labor practice striker entitled to reinstatement
to his same or substantially equivalent job, pursuant to the Board's
Order in the previous case arising from this labor dispute.? The rec-
ord shows that Respondent hired several new employees in April and
May 1963, as laborers to perform work similar to that performed by
Meyers prior to the strike. Two of these employees were retained for
6 months at which time they were laid off because of Respondent's cur-
tailed operations during the winter. Another of these new hires was
employed continuously, including during the 1963-64 winter season.
In view of the foregoing, we do not perceive any justification for
Respondent's offer of short-term employment to Meyers. In the cir-
cumstances, we find that Waukesha violated Section 8(a) (3) and (1)
by its treatment of Meyers on and after April 15, 1963, and we shall
order his reinstatement and backpay from April 15, 1963.
Discrimination by Quality 8
Quality employee Grgich was one of a group of six unfair labor
strikers who on July 5, 1963, abandoned their strike and uncondition-
ally applied for reinstatement. Their applications were not accepted
by Quality on the ground that there was no work available in the labor-
ers' category. As to Grgich, Quality stated in a letter that it would
also not rehire him because of "his deliberate destruction of Company
property on the picket line." During the strike, Grgich was convicted
of disorderly conduct and fined a nominal amount for breaking a stone
window still being transported on a truck through the picket line. In
the light of this misconduct, the Trial Examiner recommends dismis-
sal of the allegations in the complaint relating to Quality's failure to
reinstate employee Grgich. We find merit in the exceptions to this
recommendation filed by the General Counsel and the Charging Party.
It is well settled that employees who strike as a result of an employer's
unfair labor practices are entitled to have any unprotected conduct
which they may have engaged in during the course of such a strike
balanced or weighed against the employer's unlawful conduct which
provoked or, as here, prolonged their strike. N.L.R.B. v. H. N. Thayer
Company, 99 NLRB 1122, 1125, enfd. as modified 213 E. 2d 748 (C.A.
1), cert. denied 348 U.S. 883; Kohler Co., 148 NLRB 1434. Quality,
along with the other Respondents, had steadfastly persisted in its
refusal to accede to the Union's legitimate demand to resume multi-
employer bargaining in the established unit from August 1962 until
July 1963, when these Quality employees terminated their strike.
Grgich, on the other hand, became involved in the only instance of
strike misconduct shown in the record as occurring during the course
7 See footnote 4, supra. Meyers, like Koch, was also subjected to coercive 8(a) (1) con-
duct. Respondent had threatened Meyers' job security for his having joined the Union.
8 Respondent Quality Limestone Products, Inc., referred to herein as Quality.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this long strike. While his conduct is not to be condoned, we con-
clude that his momentary lapse of picket line decorum was not of such
serious nature as to warrant depriving him of his statutory remedy.
We also note that Grgich had been an employee of Quality since 19.501
and had never been warned or disciplined for any deficiency in his
work performance. Accordingly, unlike the Trial Examiner, we find
that Respondent Quality engaged in conduct violative of Section
8(a) (3) of the Act when it failed to offer Grgich unconditional rein-
statement with backpay on and after July 5, 1963.10
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the three Orders recommended by the Trial Examiner, as modi-
fied herein, and orders that the Respondents, Quality, Waukesha, Hal-
quist, Wislanco, Monacelli, Midwest, and Milwaukee, all located in
Waukesha County, Wisconsin, their officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Orders, as so modified :
I. The first Recommended Order directed toward all the Respond-
ents is modified as follows :
In Appendix A, the address given below the signature line is
amended to read : "Room 230, Commerce Building, 744 North 4th
Street, Milwaukee, Wisconsin, Telephone No. 272-3866."
II. The second Recommended Order as to Quality Limestone Prod-
ucts, Inc., is modified as follows :
1. Paragraph 2(a) is hereby amended so as to include the name of
employee Anthony Grgich along with employees Birzer and Hartung.
2. A new paragraph 2 (e) is hereby added to read as follows :
"(e) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3. In Appendix B amend the second substantive paragraph thereof
so as to include the name of employee Anthony Grgich along with
employees Birzer and Hartung.
4. In Appendix B amend the Regional Office address given below
the signature line in the same manner as in I, above.
Grgich had greater seniority with Quality than Birzer and Hartung who are recom-
mended for reinstatement with backpay by the Trial Examiner
10 As to Respondent Wislanco Lannon Stone Co , Inc, the Trial Examiner recommended
the dismissal of allegations in the complaint concerning threats uttered by J. Cappelletti,
one of Wislanco 's owners, to the effect that he would not deal with the Union herein as
long as its secretary -treasurer , A. Mueller, was in charge In the absence of exceptions,
we adopt, pro forma, this recommendation of the Trial Examiner.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1015
III. The third Recommended Order as to Waukesha Lime and
Stone Co., Incorporated, is modified as follows :
1. Paragraph 2(a) is hereby amended by striking the last sentence
thereof and continuing the paragraph as follows :
"Also offer Sam Lipuma, Raymond Koch, and Rodney Meyers imme-
diate and unconditional reinstatement to their former or substantially
equivalent jobs, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them. Lipuma's back-
pay will be determined for the period between November 12, 1962, and
the date he is offered reinstatement, as set forth above. Koch's back-
pay will be determined for the period between April 18, 1963, and the
date he is offered reinstatement. Meyers' backpay will be determined
for the period between April 15, 1963, and the date he is offered
reinstatement.
2. Add new paragraph 2(e) covering Armed Forces service as in II,
2, above.
3. The substantive portions of Appendix C are amended as follows:
(1) The second substantive paragraph thereof will read,
WE WILL offer Roger Rouse, Carl Wenzel, Roswell Mundigler,
Sam Lipuma, Raymond Koch, and Rodney Meyers immediate
and unconditional reinstatement to their former or substantially
equivalent jobs, without prejudice to their seniority and other
rights and privileges.
(2) The last substantive paragraph of Appendix C is hereby
deleted.
(3) The Regional Office address given below the signature line is
amended in the same manner as specified previously.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
The above -captioned companies are referred to herein as Respondents or as Qual-
ity, Waukesha , Halquist, Wislanco, Monacelli , Midwest , and Milwaukee . The Charg-
ing Party Union is referred to as the Teamsters or the Union and the Hod Carriers
International Union is referred to as the Laborers or the Laborers Union . The charge
in Case No . 15-CA-5055 was filed by the Teamsters on August 7, 1962, against
Waukesha , Quality, Halquist, and Wislanco , alleging violations of Section 8(a)(1),
(2), and ( 5) of the Act on and after June 29, 1962. In Case No . 13-CA-5450, the
charge was filed by the Teamsters on February 27, 1963, against Waukesha , alleging
Section 8 ( a)(1) and ( 3) violations on and after November 10, 1962, with respect to
employees Lipuma, Rouse , Peardon, Wenzel , Murray, and Barfoth . On February 27,
1963, in Case No . 13-CA-5451 the Teamsters filed charges against Waukesha, Qual-
ity, Halquist , Wislanco , Monacelli, Milwaukee , and Midwest alleging violations of
Section 8 ( a)(1) and ( 5) of the Act on and after August 29 , 1962. An amended
charge in Case No. 13-CA-5451 , above, was filed on October 8, 1963, adding a Sec-
tion 8 ( a)(3) allegation to the Section 8(a)(1) and ( 5) allegations . The Section
8(a)(3) allegation was that on and after July 5, 1963 , Quality discriminated against
employees Grgich, Birzer, Hartung, Wagner , Regner, and Showers. A second
amended charge was filed in Case No 13-CA-5451 on November 6, 1963, adding an
allegation with respect to conduct of participating in a private election. The charge
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Case No. 13-CA-5595 was filed by the Teamsters against Waukesha on May 6,
1963, alleging violations of Section 8(a)(1) and (3) of the Act, including discrimi-
nation against employee Lipuma. This charge was followed by an amended charge
on May 21, 1963, adding the name of employee Koch to that of Lipuma.
An order consolidating cases, complaint, and notice of hearing, dated November 8,
1963, was issued by the General Counsel. An amendment to the complaint and notice
of hearing, dated November 12, 1963, issued. Under date of December 6, 1963, an
amended complaint was issued. On the first day of the hearing, December 17, 1963,
the General Counsel, having in the previous week advised Attorney Hoebreckx of
his intention to do so, amended the complaint.
The amended complaint, last mentioned above, on which this hearing proceeded,
alleged: acts of interference and coercion by Wislanco in July and August 1962 in
violation of Section 8(a)( I) of the Act; that a strike by certain Waukesha employees
from July 20 to November 10, 1962, was caused and prolonged by unfair labor prac-
tices as found in a prior case ; 1 that from November 10, 1962, to April 1963, Wau-
kesha refused to reinstate employees Rouse and Wenzel in violation of Section 8(a)
(3) of the Act; that, since November 10, 1962, Waukesha refused to reinstate
employee Lipuma in violation of Section 8(a)(3) of the Act; that, since April 18,
1963, Waukesha has refused to reinstate employees Koch, Mundigler, and Meyers in
violation of Section 8(a)(3) of the Act; that the following is a multiemployer unit
appropriate for collective bargaining:
All truckdrivers, load luggers, fork-truck operators, maintenance men, mechan-
ics, welders, blockmen, hardmen, crusher operators, sawyers, drillers, and helpers
employed by Quality, Halquist, Wislanco, Monacelli, Midwest, and Milwaukee,
together with all truckdrivers, load luggers, maintenance men, mechanics, and
welders employed by Waukesha, in both cases exclusive of employees repre-
sented by the Stone Cutters and the International Union of Operating Engineers,
Local No. 139, AFL-CIO, office and clerical personnel, sales, professional
employees, and supervisors as defined in the Act;
that since Maich 1962 Teamsters has been and is the representative of the employees
in the aforesaid unit, that since August 30, 1962, and more particularly on July 5 and
on July 11, 1963, Respondents have refused to recognize and bargain with Teamsters
as the representative of the employees in the said unit, all in violation of Section
8(a)(5) of the Act; that in October and November 1963, Respondents participated
In an arrangement for a private election among their employees in violation of Sec-
tion 8 (a) (1) of the Act; that from July 20, 1962, to July 5, 1963, certain employees
of Quality engaged in a strike that was caused and prolonged by Respondents' refusal
to bargain with Teamsters; that since July 5, 1963, Quality has refused to reinstate
employees Grgich, Birzer, and Hartung in violation of Section 8(a)(3) of the Act.
In their answers Respondents deny the commission of the alleged unfair labor
practices.
The matter was heard on December 17, 18, 19, and 20, 1963, in Waukesha, Wis-
consin, before Trial Examiner Ramey Donovan. All Respondents except Wislanco
were represented by counsel and participated fully in the hearing . Briefs were filed
by the General Counsel, the Union, and Attorney Hoebreckx. Counsel are to be
commended for their able and thorough briefs. The respective positions have been
presented vigorously and well.
Upon the entire record in the case, and from observation of the witnesses, I make
the following
FINDINGS OF FACT
1. COMMERCE FACTS
Quality is a Wisconsin corporation having its principal office and place of business
at Sussex, Wisconsin. Quality is engaged at locations in Sussex and Lannon, Wis-
consin, in the business of quarrying, processing, and selling of cut stone, crushed
stone, agricultural lime, and related products. During the calendar year 1962, a
representative period, Quality produced, sold, and shipped from its Wisconsin quar-
ries stone products, valued at in excess of $50,000, directly to points outside the State
of Wisconsin.
I On June 25, 1963, Trial Examiner Kessel issued a Decision in Wavkesha Lime and
Stone Co., Incorporated, Cases Nos. 13-CA-5055 and 13-CA-5181. The Board's Decision
in that case issued January 17, 1964, 145 NLRB 973.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1017
Waukesha is a Wisconsin corporation having its office and quarry on State Highway
164 in Waukesha, Wisconsin. Waukesha is engaged at said location in the quarrying,
sale, and distribution of crushed stone, agricultural limestone, and related products.
During the calendar year 1962, a representative period, Waukesha quarried, proc-
essed, and sold stone products valued in excess of $50,000 which were shipped
directly to points outside the State of Wisconsin.
Halquist is a partnership composed of A. C. Halquist, M. E. Halquist, A. C. Hal-
quist, Jr., and W. P. Halquist, having its principal office and place of business at
Sussex, Wisconsin. Halquist is engaged at locations in Sussex and Colgate, Wiscon-
sin, in the business of quarrying, processing, and selling cut stone, crushed stone,
agricultural lime, and related products. During the calendar year 1962, a represen-
tative period, Halquist quarried, processed, and sold stone products valued in excess
of $50,000 which were shipped directly to points outside the State of Wisconsin.
Wislanco is a Wisconsin corporation having its office and quarry at Lannon, Wis-
consin Wislanco is engaged at this location in the business of quarrying, fabricating,
and selling of cut or building stone and related products. During the calendar year
1962, a representative period, Wislanco quarried, fabricated, and sold stone products
valued in excess of $50,000 which were shipped directly to points outside the State
of Wisconsin.
Monacelli is a partnership of Oswald Monacelli, Robert Monacelli, and Nick Mas-
tricola, having its office and place of business at Lannon, Wisconsin. Monacelh is
engaged at this location in the business of quarrying, processing, and selling of cut
or building stone and related products. During the calendar year 1962, a representa-
tive period, Monacelli quarried and sold stone products valued in excess of $50,000
which were shipped directly to points outside the State of Wisconsin.
Midwest and Milwaukee are each firms engaged at Lannon, Wisconsin, in the busi-
ness of quarrying, processing, and selling of cut or building stone and related products.
In a relevant and material period the Respondents have been part of a multi-
employer bargaining group which was organized and exists for the purpose among
others of engaging in, and has regularly engaged in, collective bargaining on behalf
of the members of the group with the Teamsters as well as with other unions, con-
cerning wages, hours, and other terms and conditions of employment of their employ-
ees At relevant and material times the Respondents have engaged in multiemployer
group bargaining and have evinced an unequivocal intent to be bound by group action
in their dealings with the Teamsters.2
It is found that Respondents are engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Teamsters is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It is not disputed that the seven Respondents "engaged in group negotiations with
Local 695 [Teamsters] in previous years .. " 3 The Board has considered and
passed upon material and significant aspects of the group negotiations in a Decision
issued in June 1963.4 The Board found that [footnotes omitted]
The Association [Wisconsin Dimension Stone Industry, Inc.] was formed by
members of the quarry industry on November 18, 1952, for the purpose, inter
alia, of negotiating with various unions. From its inception the Association,
through a designated bargaining committee, negotiated three contracts with the
Union [Teamsters]. The committee acted only for those members which author-
ized such representation, and each member signed separate but identical con-
tracts. Witnesses for the Employers gave conflicting testimony concerning the
extent to which the members were bound by results of the committee's negotia-
2 The multiemployer bargaining unit issue is discussed in detail later in this report.
8 Brief of Attorney Hoebreckx, p 13
4 Quality Limestone Products, Inc., Case No. 13-RD-510, and Halquist Lannon Stone
Go, Case No. 13-RD-536, consolidated, 143 NLRB 589. Briefly stated, the principal issue
in these two cases was the appropriateness of a single unit at Quality and the appro-
priateness of a single unit at Halquist, in each of which separate units a decertification
petition had been filed A hearing was held in the aforementioned proceeding on Decem-
ber 10, and 11, 1962, and January 14, 1963. Attorney Hoebreckx represented the em-
ployers therein
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions .... However, it appears that in practice none of the participating mem-
bers had rejected any such agreement . Furthermore , the minutes of the Associa-
tion reveal various resolutions by the group giving the committee certain
authority to negotiate , including the following resolution which appears in the
minutes of June 1959:
Further resolves that said Committee [Negotiations Committee for the
Teamsters Contract ] be and it is hereby given full authority to negotiate a
contract with the Teamsters Union, which terms shall not exceed the wage
pattern and fringe benefits of the Journeymen Stone Cutters Contract ....
The last of the three contracts with this Union ran from 1959 to 1962. At the
time of those negotiations the committee represented approximately nine employ-
ers, including Quality and Halquist , and individual contracts were again
executed.5 ...
On March 15, 1962, the Union sent a notice of its desire to reopen the con-
tract to all employers who had signed the 1959 contract . In May 1962 seven
employers , including Quality and Halquist, appointed a bargaining committee
composed of A. C. Halquist (of Halquist ), Lloyd Wolf (of Quality ), and an
official of another company as alternate .6 On June 6, 1962, the Union was
informed that these seven companies were being represented by the bargaining
committee.?
we find , that Quality and Halquist have bargained on a multiemployer
basis at all relevant times . Their conduct throughout indicates that they evinced
an unequivocal intent to be bound by group action , and, as noted above, they have
never taken any steps to adopt an individual course of action prior to the posi-
tion taken during the course of this proceeding . Accordingly , we conclude that
at all times the Employers were engaged in group bargaining and their employees
were part of a multiemployer unit ....
Accordingly , we find that the single -employer units of employees of Halquist
and Quality are not appropriate , and we shall dismiss the petitions herein.
Although the primary issue in the above case was the appropriateness of single-
employer bargaining units at Halquist and Quality, the decision necessarily came to
grips with the question of single units among seven Employers , the instant Respond-
ents, versus the existence of multiemployer group bargaining that created a multi-
employer unit . The Board 's Decision is a determination that the Employers,
Respondents herein, both prior to 1962 and at the inception and during the course
of contract negotiations with the Union in 1962, and into the summer of 1962, were
in a multiemployer bargaining unit and that the multiemployer unit was the appro-
priate unit. Since it was not necessary in order to dispose of the issues in the above-
quoted case , the Board did not determine the matter of whether, in August 1962,
three of the seven Respondents , Monacelli, Midwest, and Milwaukee , had effectively
removed themselves from the multiemployer unit. The Board simply noted that
three Employers had taken steps to withdraw from the group but that the Union had
refused to bargain in other than the multiemployer unit.
The question of unit is a prime issue in the instant case and the evidence in the
instant record necessarily duplicates some evidence that was before the Board in the
cited decertification case. The evidence herein, as well as the cited Board Decision,
c Although the Board did not name the nine employers , I am satisfied that among them
were the seven instant Respondents Thus, an exhibit in the above case before the Board,
143 NLRB 589 , is a June 30 , 1959, communication to the employee members of the Team-
sters setting forth the health and welfare and wage increases offered to the Union in
negotiations . The increases aforementioned are uniform for all companies , with no in-
creases tailored individually to each company The communication is from "Bargaining
Committee for the following Employers" , then listed are the seven instant Respondents
plus two others.
e Although not named in the Board 's Decision , the alternate committeeman was John
Cappelletti , president or partner in Wislanco
7 General Counsel's Exhibit No 14 in the instant case Is a letter , dated June 6, 1962,
to the Union from Committeeman Wolf . It reads :
You suggested when you were here . that we mail you a list of the Employers for
whom contracts were being negotiated . These companies are: [seven companies are
then listed ; these companies are the seven Respondents].
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1019
convincingly establish that prior to 1962 Respondents bargained with and negotiated
contracts with the Teamsters in a multiemployer unit. The last contract prior to
1962 was for the period June 1, 1959, to May 31, 1962.
Before discussing the 1962 contract negotiations it is appropriate to note the job
title composition of the multiemployer unit set forth in the recognition clause of the
1959-62 contract with the Teamsters. The contract unit consisted of:
Truckdrivers, load luggers, fork-truck operators, maintenance men, mechanics,
and welders (hereinafter collectively referred to as drivers) Blockmen, yard-
men, crusher operators, sawyers, drillers, and helpers, excluding paving cutters,
stone cutters , office and clerical personnel , and sales, professional , and super-
visory employees as defined in the Act, as amended (hereinafter collectively
referred to as blockmen).
The Teamsters did not represent various employees in the multiemployer group who
were represented by the Stone Cutters Union and the Operating Engineers Union,
respectively. In addition, although Waukesha was in the multiemployer unit and
was a signatory to the 1959-1962 contract with the Teamsters, including the above-
described unit of employees,8 it was acknowledged and understood by all concerned
that certain Waukesha employees that were represented by the Teamsters at the
other six Employers' plants and covered by the Teamsters contract, were represented
by the Laborers Union at Waukesha. Other Waukesha employees, however, were
represented by the Teamsters in the multiemployer unit.
The 1962 events commenced when the Union sent a notice, in March or April 1962,
to all Employers, the seven Respondents, who had signed the 1959 contract, stating
that it proposed to negotiate the terms of a contract to succeed the expiring contract.
As previously quoted above, the Board found that in May 1962, the seven Employers,
the instant Respondents, appointed a bargaining committee composed of A C. Hal-
quist of Halquist, Lloyd Wolf of Quality, and John Cappelletti of Wislanco as alter-
nate.9 In May and June 1962, the employer group negotiated with the Union con-
cerning the contract proposals submitted by the latter. The parties resolved many of
their differences in the bargaining, with give and take on both sides. On June 25,
1962, the parties reached the point where the only substantial issue that separated
them was the amount of the wage increase. The Employers stood firm on a so-called
10-10-10 offer regarding wages,19 stating that they would offer no more."
After the aforementioned disagreement on wages, which was the only substantial
issue separating the parties, the Union, as the meeting was concluding, requested that
the employer committee recognize the Union as the bargaining representative for the
independent truck operators (referred to as the ITO's). The employer committee
immediately rejected this request and the meeting ended
The ITO's were, as the name implies, independent truck operators who had busi-
ness relations with three of the Respondents, Waukesha, Quality, and Halquist.12
6 General Counsel's Exhibit No. 13.
2 The record indicates that Wolf was the chairman of the committee.
10A 10-cent-per-hour increase each year for 3 years It is not entirely clear bow far
the parties were apart at this point on wages but there is some indication in the record
that the Union was holding out for 12-12-12.
At the instant hearing, Waukesha contended that its participation in the 1962 nego-
tiations was on an individual basis For reasons previously stated I find that, in 1962,
Waukesha, as well as the other six Employers, were engaged in group multiemployer bar-
gaining and that the bargaining unit was a multiemployer unit of all seven Respondents.
Waukesha first joined the employer group in 1959 and participated in the 1959 negotia-
tions and signed the 1959-62 contract that was identical for all employers, although
some employers in the group, including Waukesha, did not employ all classifications of
employees described in the contract. At the instant hearing, Charles Coburn, president
of Waukesha testified that in 1959 Waukesha negotiated a contract with the Union, to-
gether with the other employers. He stated that in 1962 Waukesha decided to follow the
same practice He also recalled that the Employers got together and decided that 10-10-10
was as high as they would go and that he remembered making an agreement with
the other employers in the group that 10-10-10 would be their last offer Previously
quoted, above, is the letter of June 6, 1962, from Committee Chairman Wolf to Teamster
Representative Mueller, stating that the committee was negotiating for the seven Re-
spondents. Mueller, who represented the Union at the last two negotiating sessions in
June 1962, testified to the active participation of Waukesha in the sessions, together with
the other employers
12 The ITO's hauled products by truck from the Employers' quarries to customers
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union had never represented the ITO's prior to 1962 and had not sought to
bargain with Respondents concerning the ITO's prior to 1962, as aforedescribed. On
May 16, 1962, the Union, however, had filed three petitions for certification with the
Board with respect to ITO's at Waukesha, Quality, and Halquist 13 The petitions were
still pending on June 25, 1962, when the Union made its demand for recognition as
aforedescnbed.14 On August 2, 1962, the Regional Director of the Board, acting
pursuant to authority delegated by the Board, issued a Decision and Order dismissing
the aforesaid ITO petitions, on the ground that the ITO's were independent con-
tractors and not employees. The Board, on August 23, 1962, denied the Union's
appeal or request to review the Regional Director's decision.
Meanwhile, after the June 25, 1962, meeting between the parties, the ITO's, on
June 29, 1962, began picketing at Waukesha, Quality, and Halquist. The inside
Teamsters members 15 at these three companies respected the picket line.
In the first few days of July 1962, according to Quality employee Wilson, he and
others, not identified in the record, held two meetings at a VFW hall in the area.
Wilson testified that he and others ("we'-') had consulted a local attorney. Appar-
ently employees from Quality and Halquist and employees from other Respondent's
employers attended the meetings.16
The testimony of employee Wagner of Quality, which like Wilson' s, is not contro-
verted, is that on June 30, 1962, employee Metzger invited him to a meeting at
Metzger's home.17 When Wagner arrived at Metzger's place, there were present two
other Quality employees; Metzger; Wolf, president of Quality; and Quality Attorney
Hoebreckx. At the "meeting," attended by all present as aforedescribed, Metzger
said that he did not think that the inside employees 18 should be out of work because
of the ITO strike. According to Wagner, there was a "discussion" that ". . . they
were to resign from Local 695 [Teamsters]. That was the discussion." Attorney
Hoebreckx then said that he could not represent the employees because he was the
attorney for the companies and that it would be better to engage another attorney to
take on "what they were planning to do"; Hoebreckx expressed the opinion that the
matter would not be without its difficulties but that he would furnish whatever advice
was necessary to the attorney they might engage to handle the matter of getting out
of the Teamsters. At the conclusion of the meeting Wolf said that any of the men
who were "out," i.e., observing the picket line, could return to work anytime they
wished, and to Wagner, "Dan, he says, a man of your age, he says that '[it's] probably
kind of hard for you to get a job somewheres, which I [Wagner] admitted it probably
would be ...... 19
It is apparent that the aforedescribed June 30 meeting was the immediate antece-
dent of the two meetings, in the first few days of July 1962, that were described by
Wilson, above. Subsequently, a petition for decertification of the Teamsters at
Quality, signed by Metzger and Wilson, was filed with the Board on July 20, 1962.20
13 Cases Nos . 13-RC-8655 (Waukesha) ; 13-RC-8656 (Quality) ; and 13-RC-8657
(Halquist).
14 It is fairly evident that, prior to the filing of the petitions for certification in May 1962,
the ITO's, or a sufficient percentage of them, had joined the Teamsters or had designated
that organization as their bargaining agent
15 These were the employees that were part of the multlemployer unit encompassed in
the 1959 contract and the unit about which the 1962 negotiations were conducted, albeit,
as aforedescribed , the Teamsters injected the ITO issue at the last negotiating session on
June 25, 1962.
"Wilson was a witness called by Attorney Hoebreckx. Wilson testified, "We called
a meeting of all the men of the quarries . .. .
Q (by HoEBRECxx) : Was this just Quality employees or what.
A. No, everybody.
Wilson stated, as to attendance, "I would say 90 percent" at the first meeting The wit-
ness testified that he secured signatures for a Quality decertification petition and that
Trapp performed the same function for a Ilalquist decertification petition Wilson stated
that he did not handle the Wislanco decertification petition and had no first-hand informa-
tion on that matter.
17 Metzger, at this time , lived in a farmhouse owned by Quality and apparently leased
to Metzger Subsequently, when Metzger moved out, Wilson moved into this property on a
lease with Quality.
is The Teamster multlemployer unit employees who were respecting the ITO picket line.
10 Wagner observed the picket line from its inception on June 29, 1962. At the time
of the hearing he had not worked for the employer since that time
20 "Quality Limestone Products, Inc , Employer, and William Metzger and Marvin
Wilson, Petitioners," Case No 13-RD-510
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1021
Trapp, who was at the two meetings held in the VFW hall ( described by Wilson,
above ) a few days after the June 30, 1962 , farmhouse session , secured signatures in
support of a Halquist decertification petition . Trapp, as petitioner , signed the petition
filed with the Board on July 20, 1962.21
At the instant hearing Attorney Hoebreckx stipulated that Trapp was a supervisor
within the meaning of the Act. A C . Halquist, Sr ., a partner in the Halquist firm,
testified that Halquist had two quarries 4 miles apart . One quarry , where the com-
pany offices were located , was referred to as the main quarry or pit 1 , and the other
was known as Ideal quarry or pit 2. Trapp was in charge of Ideal quarry. Other
management officials and supervisors worked at the main quarry . At Ideal, Trapp
was responsible for getting out the work and directed the work of all employees,
including employees in the Teamsters unit as well as those in the Stone Cutters unit.22
Some indication of Trapp' s methods in obtaining signatures was furnished by the
uncontroverted testimony of Giloy, a former Halquist employee who had worked at
the Ideal quarry in July 1962. According to Giloy, in July 1962, Trapp asked him
to sign a paper.23
I [Giloy] refused to sign this paper [for Trapp] in the morning and at dinnertime
we got into an argument I was being pressured again to sign that paper and in
the course of this conversation he [Trapp] told me that all of us Union fluffs
would be going down the street , equivalent of being fired , if the Teamsters were
kicked out of there.
A day or two later, Trapp said to Giloy that "under no circumstances would Mr. Hal-
quist bargain with Mueller," the Teamster representative. Maker, another employee
at the Ideal quarry testified that, in the same July 1962 period, Trapp asked him to
sign a paper about the Teamsters , saying to Maker that ". . . Halquist was not going
to do business with the Teamsters and there would be another strike unless we signed
this paper to get rid of the Teamsters and go back to work." Bell , another Halquist
employee, testified that Trapp , on several occasions , solicited his signature to the
decertification paper. Bell testified that on one occasion Trapp said something about
"if you do not go with us you will be going down the road ." Bell signed the paper,
he stated , because he wanted to continue working and also because he believed, from
what Trapp had said at various times , that if the Teamsters were overthrown "the guys
would be safe that signed the paper." Trapp did not testify.
In July 1962, at the Wislanco quarry , one of the coowners or partners in Wislanco,
Halvorsen , gave Working Foreman Piechowski a paper to sign.24 The paper was to
support a petition to decertify the Teamsters . Piechowski signed the paper and Hal-
vorsen then requested Piechowski to take the paper around the quarry to the other
employees to secure their signatures . Halvorsen told Piechowski and the other
employees that ". . . if we 'd sign the petition that they [Teamsters ] wouldn't pull us off,
we'd keep on working." After Piechowski took the petition to the other men and
secured their signatures , he returned it to Halvorsen "and he [Halvorsen ] says, good,
and away he went with it." The uncontroverted testimony of employee Stanley indi-
cates that Wislanco was leaving nothing to chance on this matter of the decertification.
Shortly after Piechowski had brought the petition to Stanley and Stanley had signed,
the latter encountered Cappelletti , the other coowner or partner in Wislanco Cap-
pelletti asked Stanley "if we all signed the paper " and was assured that such was
the fact.
21 "Halquist Lannon Stone Co , Employer , and Ralph Trapp, Petitioner ," Case No.
13-RD-509.
22 Trapp, as well as approximately four working foremen at the other quarries, had been
covered by the Teamster contracts with the Employers as "working foremen." The 1962
negotiations concerned the same unit . No question was ever raised by Respondents
about the inclusion of working foremen in the contract . I am not persuaded by Respond-
ents' argument in their brief that therefore the unit included supervisors and was
apparently a justification for any refusal to bargain . The contract unit excluded super-
visors and so does the unit alleged in the complaint Trapp is a supervisor but it is
neither clear nor necessary to decide in this case if all working foremen are supervisors.
Cf. Great Western Broadcasting Corporation , d/b/a KXTV, 139 NLRB 93. Although
Trapp was or had been a member of the Teamsters , there is no assertion or charge that
Respondents were assisting or dominating the Teamsters through the medium of having
a supervisor as a member therein.
211 am satisfied from the record that the paper was the request for decertification and
the repudiation of the Teamsters that was being circulated by Trapp to support the decer-
tification petition later filed with the Board . Giloy, in fact , later testified that the paper
was about union decertification
24 This and the following testimony is from Piechowski 's uncontroverted account.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having secured the requisite number of employee signatures as aforedescribed,
Halvorsen then apparently filed, as petitioner, a decertification petition with the
Board. At some point, Piechowski signed the NLRB petition form, aforementioned,
in place of Halvorsen's deleted name 25
We have referred to the June 29 commencement of picketing; the Metzger-Quality-
farmhouse meeting on June 30; the two Wilson Metzger meetings around July 3; and
the Quality, Halquist, and Wislanco decertification petitions from their inception to
their filing with the Board on July 20 and August 2, 1962. There were also other
events during the aforementioned period. Quality, Halquist, and Waukesha filed an
antitrust suit in Federal district court against Local 695, Teamsters, on July 6, 1962,
seeking an injunction against the picketing and damages. The court, on July 19,
denied the request for a temporary restraining order and thereafter plaintiffs volun-
tarily withdrew their suit.26 About July 10, 1962, the majority of the Quality employ-
ees returned to work through the ITO picket line. In the period approximately from
July 6, 1962, the Teamsters organized the Laborers unit at Waukesha. This was the
unit that had been represented by the Laborers Union, as earlier described in this
Decision. Beginning on July 13, 1962, and thereafter, the Teamsters requested that
Waukesha recognize the Teamsters as the bargaining agent for the Laborers unit and
negotiate with the Teamsters for such unit. Waukesha refused.
The last-mentioned matter of the Laborers unit led to the filing of charges by the
Teamsters against Waukesha on August 7 and October 4, 1962. A complaint issued
on November 9, 1962, against Waukesha, alleging violations of Section 8(a)(1),
(2), (3), and (5) of the Act. The matter was heard before Trial Examiner Thomas
N. Kessel on February 18 through 20, 1962, and his decision issued on June 25, 1963.
The Board decision issued in January 15, 1963 (145 NLRB 973), finding violations
of Section 8(a) (1), (2), and (5) of the Act.
The Waukesha case, above, is a fait accompli insofar as I am concerned. It is
appropriate to state, however, that certain events were evidentiary in common in both
the Waukesha case and the instant case. Thus, when Waukesha refused the Teamsters'
recognition demand as to the Laborers unit, the majority of the Waukesha Laborers
unit employees stiuck Waukesha on July 20, 1962, in support of the Teamster
demand. On Saturday, November 10, 1962, these strikers unconditionally applied
for reinstatement and were told to return on Monday, November 12. On the latter
date the strikers were given layoff slips and were told that the stone plant had closed
for the season on November 9 or 10.
The Waukesha case, supra, inter alia, did not go beyond the November 10 appli-
cation for reinstatement The General Counsel stated at that hearing that the dis-
crimination against strikers was not an issue in that case. The Board noted:
We are not passing upon the validity of Respondent's reduction of force and its
giving layoff slips to the employees when they sought to return to work as such
an issue was neither alleged or litigated. Further, the Respondent notes that a
charge is presently pending in the Board's Regional Office, alleging that the
Respondent has discriminated against six of the striking employees with respect
to their employment on and after November 10, 1962.
The alleged discrimination against the strikers, on and after November 10, 1962, is
one of the issues in the instant case. The multiemployer unit issue was not an issue
in the Waukesha case and no decision was rendered thereon. The General Counsel
did not seek to relitigate the Waukesha Laborers unit case in the instant proceeding
and, indeed, in view of the successful outcome of the prior case from his standpoint,
there was not even a temptation to do so. In the instant proceeding, Attorney Hoe-
breckx, who represented Waukesha in the prior case as well as Waukesha and others
in the instant case, was apparently unreconciled to the prior outcome 27 and did get
25 General Counsel's Exhibit No. 18 is a Board petition form, bearing Case No. 13-RD-
512, filed August 2, 1962. Erased, at the bottom of the form over a line designated on the
form for "Signature of representative or person filing petition," but still discernible, Is
the name "Gerald Halvorsen " and an erased address ; crossed out over the lines "Title, If
any" Is the title "Secretary-treasurer." Superimposed over the above erasures is the
name and address of Piechowski
26 Quality Limestone Products, Inc., et al. v . Drivers, Salesmen , Warehousemen, Milk
Processors , Cannery, Dairy Employees and Helpers , Local 695 , etc., 207 F. Supp 75
(D.C. Wis ). Before the court, the defendants had apparently relied on the cases of
Local 24 , Intl Brotherhood of Teamsters , etc v. Revel Oliver, 358 U S. 283, 362 U S. 605,
with respect to the ITO matter
27 There has been no compliance with the Trial Examiner's Decision and Recommended
Order or with the Board's Order
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1023
into matters that were dealt within the prior case although counsel also believed that
they were relevant to the instant case 28
In the case before us, we find that, on July 27, 1962, the Teamsters wrote to each
of Respondents a letter stating that it was "enclosing a proposed addendum to the
collective-bargaining agreement, which is presently the subject of negotiations. This
addendum covers the owner-operators .... We request a prompt resumption of col-
lective-bargaining negotiations...." The addendum was, in effect, proposed con-
tractual provisions to cover the ITO's that was separate and complete in itself but
which was manifestly intended to be, as stated, an addendum to the contract instru-
ment about which the parties had negotiated regarding the non-ITO Teamsters multi-
employer unit. Five of the Respondents replied by letter of July 31, 1962; one by
letter of August 1, 1962; and Midwest did not reply. The letters are basically the
same, even to the extent of some identical language. All Respondents in their letters
refused to negotiate regarding the ITO's. All except two indicated that their ITO
declination did not refer to the other Teamsters unit negotiations and the assertion
or implication was that they were not unwilling to negotiate concerning the non-ITO
employees. Quality and Halquist confined themselves to the ITO aspect and said
nothing about other negotiations.
On August 17 or 18, 1962, the Teamsters members at Milwaukee Lannon Store
struck that establishment. About August 18, 1962, a meeting was held, at the
Employer's suggestion, at which Mueller of the Union was present; Renz, who was
on Mueller's staff; Halquist, Junior, president of Milwaukee (and a partner in Hal-
quist); Monacelli of the Monacelli Company; Thorp, a partner in Midwest; and
Attorney Hoebreckx. The Employers said that they were no longer associated with
the other quarries in the group and requested negotiations for a contract apart from
the group.29 Mueller characterized the proposal as premature since there was the
matter of securing the written consent of the employer committee and this, he opined,
might be difficult. Even if the foregoing was accomplished, Mueller said he would
have to consult his attorney since he did not wish to be a party to destroying the
multiemployer group. At this meeting, the Employers gave as their reason for their
action and proposal, the fact that they did not have any ITO' s, and that they were
not involved in any decertification matters, and that they were prepared to negotiate
a contract.
Milwaukee, Midwest, and Monacelli thereafter, on August 22, 1962, wrote to
"Lloyd Wolf, Committeeman"; "A. C. Halquist, Sr., Committeeman"; and "John
Cappalletti, Alternate Committeeman."
[name of company] has determined that it is not to their best interests to continue
participation in the group bargaining for an employers' labor contract with Local
No. 695 [Teamsters]. Accordingly [name of company] does hereby withdraw
from the bargaining group of which you are the representatives. We further
hereby give notice that hereafter you no longer shall act as our representative
in any negotiation with Local 695. We shall proceed to bargain individually
with said Local ....
By letter of August 28, 1962, Wolf and Halquist, as committeemen, jointly advised
the three Companies:
This is to acknowledge receipt of your letter of August 22nd advising that you
wish to withdraw from the bargaining group that has been negotiating with
Local 695.
You are advised that the undersigned Committee will proceed on the basis
that they are not hereafter authorized to represent you in any further bargaining
with Local 695.
On September 6, 1962, when the three Companies showed Mueller the corres-
pondence with the committee, he refused to recognize the asserted withdrawal and
declined to bargain except on the multiemployer group basis.
28 E.g., the petition filed on August 7, 1962, in Case No. 13-RC-8822 by the Teamsters
with respect to the Laborers unit at Waukesha, as well as an accompanying document and
letter , were in evidence in the Waukesha case and were discussed in that decision. At-
torney Hoebreckx in the instant case argued the materiality of the foregoing "to show
that the Union was claiming that the Waukesha laborers were part of the multiemployer
unit," which was, of course , one of Respondent 's prime arguments in the Waukesha
Laborers unit case.
28 This would seem to be confirmatory of the function and continued existence of the
multiemployer group, and also of its current viability . The later correspondence between
the three employers and the committee of the employer group is described hereinafter and
is further confirmation of the foregoing observation.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union wrote to each of the seven Respondents on August 29, 1962, proposing
a meeting time and place to negotiate a contract covering truckdrivers and load lugger,
fork-truck operator, high lift (2 yards or more capacity), high lift (less than 2 yards
capacity), maintenance mechanics and welders, mechanic helpers, working foreman,
blasting, blockmen (A), blockmen (B), drillers and crushers, sawyers, special saw-
yers, sawyers cut stone shop, yardmen and flagstone men, lime bagger, sand blasters
or polishers, and dryer operator. Each Respondent answered individually. Halquist,
Quality, and Wislanco declined to meet, they said, because of the pending decertifica-
tion proceeding which raised a question of the Union's majority.30 Waukesha
replied on August 31, 1962:
This will acknowledge your letter ... which requests a meeting to negotiate the
terms of a collective bargaining agreement covering the same classifications as
were listed in the contract which expired May 31, 11962. As you know, the only
classifications in said contract that applied to this company were drivers and
maintenance mechanics. [Emphasis supplied.]
(The letter then said that, "speaking only for Waukesha ...," Waukesha was prepared
to meet with the Union.) Milwaukee, Midwest, and Monacelli, answered, through
Attorney Kraemer, by letter of August 31, 1962, stating that the three companies
were prepared to meet with the Union.
Before proceeding to further events, we shall consider the unit in which the Union
requested contract negotiations in its August 29, 1962, letter, above. On its face,
the unit appears to be in all substantial respects the unit in the preceding contract
that expired May 1962, and the same unit in which the parties negotiated in 1962 up
to and including June 25, 1962. Article II, the recognition clause of the expired
1962 contract unit, commenced as follows: "truckdrivers, load luggers, fork-truck
operators ..."; the August 29 letter read: "truckdrivers and load luggers, fork-truck
operator ..."; the entire August 29 described unit was not taken verbatim from article
II of the 1962 contract but it was substantially the same. More important, how-
ever, is the fact that the job classifications listed in the August 29 letter were all the
classifications listed in articles XIX and XX of the 1962 contract. Articles XIX and
XX listed job classifications and wage rates. These are certainly the articles where any
lack of precision in the earlier general articles of the contract would not exist. The
Union could not be more precise in describing the 1962 contract unit than to list the
very classifications listed in articles XIX and XX thereof. The August 29 letter did
not enumerate the exclusions from the unit but it did not include the excluded cate-
gories. The letter was not a contract draft but simply a letter from Mueller to the
Employers who would know what he was talking about and would know from the
classifications set forth by the Union that the Union as not including office and cleri-
cal people and people who had, at all times, been acknowledged to be represented
by the Engineers and Stone Cutters Union. Confirmation of the foregoing is sup-
plied by Waukesha's replying letter in which it was expressly recognized that the
Union was proposing negotiations "covering the same classifications in the contract
which expired May 31, 1962." Milwaukee, Midwest, and Monacelli raised no ques-
tion about the internal composition of the unit in the August 29 letter and quite evi-
dently recognized it, as had Waukesha, as the unit of the expired contract. These
three Employers, in agreeing to meet as three Companies on the unit insofar as its
internal composition was concerned, were, of course, in effect, challenging the group
multiemployer unit by reason of their asserted withdrawal from the group.31 Some-
what the same obseivation applies to Quality, Halquist, and Wislanco. Neither of
them, in their replies to the August 29 letter, raised any question about the internal
composition of the unit. They refused to negotiate because of the pending decerti-
fication petitions which they said affected the matter of the Union's majority. The
said petitions were, of course, also a direct challenge to the multiemployer group
unit since the petitions were for single-employer units of Quality, Halquist, and
Wislanco.
80 Letters of September 4, 1, and 4 , 1962, respectively.
ai On August 18 or 19, as we have seen, the three Companies told the Union that they
were no longer associated with the group. The Union did not accept the alleged dis-
association and the Companies then proceeded to take steps to withdraw from the group
The group committee accepted the "withdrawal" by letter of August 25. Issue was not
finally joined until September 6, when the three Companies presented to the Union the
committee ' s acceptance of the withdrawal to the Union . The Companies at that time took
the position that they were not part of the multiemployer unit and the Union refused to
bargain with them except in the multiemployer unit.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1025
One other aspect of the August 29, 1962, letter merits comment with respect to
Waukesha. The August 29 unit description, being on its face the unit of the 1959-
1962 contract, as Waukesha acknowledged, was the unit in the 1959-62 contract that
Waukesha had signed as a member of the group multiemployer unit. We have pre-
viously noted and it is not disputed that all concerned knew and acknowledged that
Waukesha did not employ people in all the categories in the unit set forth in the uni-
form contract that all members of the group signed. Equally clear was the fact that
the unit in the group contract with the Teamsters, while it covered all the unit employ-
ees of six of the employers, covered only some of the unit employees of Waukesha.
This was because of the recognized fact that some of the otherwise Teamsters unit
employees at Waukesha had, for many years, been represented in a separate unit by
the Laborers Union. It was accepted and practiced that the contract applied, as to
Waukesha, to only those classifications that it employed and that the Teamsters con-
tract did not apply to the Laborers unit at Waukesha. Therefore, it is evident that
Waukesha, in its August 31 reply to the August 29 letter, in acknowledging that the
unit described in the Teamsters' letter was the same as that in the expired contract
and that all the classifications in the unit description did no apply to all, but to only
some, of its employees, was fully cognizant of and accepted the request for negotia-
tions as being on the same basis as the terms, including unit, that prevailed in the
1959-62 contract. Waukesha, on August 31, controverted the union proposal on
only one ground; namely, single-unit bargaining as opposed to the multiemployer
group unit bargaining. That this latter aspect was the single point of dichotomy
was acknowledged by the Union in its letter reply to Waukesha on September 4, 1962,
when it stated:
It seems as though you misunderstood our request in that we ask to meet with
the negotiating committee which represented seven named quarry operations.
We have no desire of being a party to breaking up the multi-employer group
which was a party to the negotiations from the outset 32
It is a fair conclusion from the evidence that, upon receipt of the August 29 letter,
all Respondents knew that on that date the Union was proposing negotiations in the
expired 1962 contract unit, including both the interal composition of that unit and
its multiemployer unit scope. As seen above, Quality, Halquist, and Wislanco
refused to bargain because of the decertification petitions, which necessarily was a
refusal on the asserted ground that the multiemployer unit was inappropriate or that
the three employers, assertedly, had a reasonable doubt as to the appropriateness of
that unit as compared to the single-employer units described in the decertification
petitions; also, it was a refusal on the basis of an asserted doubt regarding majority
in the single units set forth in the decertification petitions. Milwaukee, Midwest, and
Monacelli also knew what the August 29 proposal was and their sole divergence was
on the basis of their withdrawal from the multiemployer unit, the proposed basis
for negotiations made on August 29 by the Union with respect to the unit in the old
1962 contract. Not one of the Respondents rejected the August 29 proposal on the
ground that the unit described therein included the ITO's. No one, including the
Union, even mentioned the ITO's on August 29 or in the Employers' replies a few days
later. In view of the Respondents' consistent and strong opposition to negotiations
about the ITO's, it is apparent that if they suspected or understood that the August 29
unit proposal, by its terms, included ITO's, they would have rejected it on such
ground alone or in conjunction with other grounds, since they were fully aware not
only of their own position with respect to ITO bargaining but were also aware, as
was the Union, that prior to August 29 the Board had held that the ITO's were not
employees but independent contractors.33
In focus, therefore, as of the time of the August 29 request to bargain in the 1959-
62 multiemployer group unit, Respondents all refused to bargain on the proposed
basis. As of the time of their refusals, Respondents' refusals were premised on the
pending decertification petitions, which included a refusal on the basis of single-
employer units (the unit and the majority in each of the single units) as opposed to
the multiemployer unit (Quality, Halquist, and Wislanco); and a refusal on the basis
of a single unit for Waukesha (with no majority issue in the single unit) as opposed
8z The Union did not answer the letters of Quality, Halquist, and Wislanco, apparently
in view of their outright refusal to meet because of the decertification matters The
Union, as we have seen, did meet on September 6 with Milwaukee, Midwest, and Monacelli
and insisted upon the multiemployer unit
83 Regional Director's Decision, August 2, 1962; Board denied appeal August 23, 1962.
796-027-66-vol. 153-66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the multiemployer unit ( Waukesha ); and a refusal on the basis of single or three
employer group units as opposed to the seven employer group unit (with no issue as
to majority) (Milwaukee, Midwest, and Monacelli). Whether the refusals to bar-
gain, on the basis proposed by the Union on August 29 when made, constituted illegal
refusals to bargain in violation of Section 8(a) (5) of the Act, will depend on the
validity of the aforedescribed defenses.3=
On October 2, 1962, the Union wrote to Commissioner Anderson of the Wisconsin
Employment Relations Board:
[After listing the names of the seven Respondents .] The above named
employers have negotiated with this union as a multiemployer group for a new
Labor Agreement covering their employees as provided in previous collective-
bargaining agreements
During the course of these negotiations with a committee representing the
above multiemployer group a work stoppage resulted.
This union has repeatedly attempted to meet with the above mentioned
employer representatives . . . to attempt to resolve the disputed issues that
remain and conclude a new agreement covering the employees this union is cer-
tified to represent.
[Anderson is then requested to arrange a meeting between the parties.]
[Emphasis supplied.]
Commissioner Anderson answered the Union by letter of October 3, 1962, with
copy to Attorney Hoebreckx. Anderson therein stated that he spoke to Committee-
man Wolf on October 3 and was referred to Attorney Hoebreckx. According to
Anderson, Hoebreckx told him that, with respect to Quality, Halquist, and Wislanco,
there was a question of representation pending before the NLRB and that his clients,
therefore, would not meet with the Union. As to Waukesha, Anderson was report-
edly told that Waukesha would meet with the Union concerning the inside driver
employees that the Union represented. Since there is nothing in the record indicat-
ing that Attorney Hoebreckx sought to advise Anderson or the Union that the fore-
going report was inaccurate, I believe, that, in the circumstances, this hearsay evi-
dence may be noted.35
The October 2, 1962, letter, in its reference to a desire for resumption of the inter-
rupted negotiations "for a new Labor Agreement covering their [the Employers']
employees as provided in previous collective -bargaining agreements ," reiterates the
unit described and understood in the August 29, 1962, letter of the Union. The unit
about which negotiations were being sought on October 2 was again, or still , the multi-
employer group unit embracing the employees described in the 1959 -62 contract unit.
As reported by Anderson, Quality, Halquist, and Wislanco again refused to negotiate
solely because of the decertification petitions ; and Waukesha again would negotiate
only on a single-unit basis for the employees previously covered in the multiemployer
unit as it applied to Waukesha and the Teamsters . The foregoing once more indi-
cates that Respondents were aware that the Union was seeking resumption of bar-
34 Subsequent to the August 29 letter and Respondents ' replies thereto, there was an
article , dated September 7, 1962 , in the Wisconsin Teamster , a union paper. The article
quoted the Union's attorney regarding the background of the strike against Respondents.
The attorney was quoted as saying that the strike would continue until the employers
"agree to comply with the Federal law and negotiate with the Union in good faith "
Since the Federal law does not require negotiations for people whom a Federal agency has
declared to be independent contractors and not employees , there is some question whether
it can be implied that the Union was still demanding inclusion of the ITO ' s in the con-
tract. However, other portions of the quotation refer to the inception of the dispute over
inclusion in the contract of drivers who owned their own trucks and states that the dispute
will be settled when the employers bargain on " the multiemployer basis that has existed
in the past . . . for all of their truck drivers and inside employees . . Respondents,
in their brief , contend that the article shows that on August 29, 1962, the Union letter
in referring to "truck drivers" in the unit , included ITO's, albeit the term "truck drivers"
was the term also used in the 1959-62 contract.
35 Since copies of the October 2 letter from the Union had been sent to all Respondents,
and manifested that resumption of negotiations was desired on the expired contract unit,
our ignoring of Commissioner Anderson 's letter would leave the record showing nothing
except that the Respondents , at this time, apparently simply ignored the Union 's desire
for further negotiations
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1027
gaining in the 1959-62 contract unit and that the Union was either abandoning the
ITO aspect or had determined to deal with that matter as a separate subject and that
whatever ITO picketing was still going on was part of a separate battle.36
By letter of October 25, 1962, Waukesha requested that the Union negotiate with
Waukesha on a single -unit ( Waukesha ) basis "for our employees who have been
represented by Local 695 for many years." The Union refused on October 30, 1962,
reminding Waukesha , "as we have told you on other occasions , Local 695 is willing
and ready to continue negotiations with the committee representing the original multi-
employer group."
In November 1962, the Regional Director of the Board, consistent with Board
practice, dismissed the decertification petition involving the Halquist employees (Case
No. 13-RD-509) because it had been filed by a supervisor.37 During the same
month, the Wislanco decertification petition was withdrawn. This left outstanding, in
November 1962, the Quality decertification petition, Case No. 13-RD-510. This
decertification petition, as had the others, placed directly in issue the question of
single-employer unit as opposed to the Union's contention that Quality and the other
employers were part of a multiemployer unit.
While the unit was being assailed by the Employers and by the decertification peti-
tions aforedescribed, there was also a series of charges filed with the Regional
Director by the Union against the Employers and by the latter against the Union.
These refusal-to-bargain charges were premised on respective unit contentions
Since it was apparent, from the various letters, statements, petitions, and charges
of the parties, that the sole roadblock in the path of the resumption of contract nego-
tiations was the unit issue, the Regional Director had before him the choice of pro-
ceeding on the refusal-to-bargain charges, which would necessarily involve disposition
of the unit issue, or of processing the representation case (the decertification) which
would also resolve the unit issue38 A representation proceeding is customarily a
shorter and quicker route to the resolution of a unit issue than an unfair labor prac-
tice case. The former is part of the Board's investigatory process and simply involves
a notice of hearing, a nonadversary hearing, a Board decision thereafter issued by the
Regional Director pursuant to delegation from the Board and the Board's right to
consider or deny a review of the aforesaid decision, or, as in the instant decertification
proceeding, the Board itself may decide the case after the hearing. The unfair labor
practice route, of course, involves formal pleadings, an adversary hearing, Trial
Examiner's Decision, and so forth. In any event, the Regional Director here chose
the representation case route and, of necessity dismissed the refusal-to-bargain
charges as well as union charges of employer interference.39 The Union filed timely
appeals with the General Counsel of the Board from the aforesaid dismissals of its
charges. The General Counsel withheld action on the Union's appeals from the
Regional Director's dismissals of its charges until after the Board's Decision issued in
the representation case.40
36 The October 2 letter not only referred to a new agreement covering the employees
embraced in the prior contracts , which did not include ITO's, but also referred to conclud-
ing "a new agreement covering the employees this union is certified to represent " Since
the Union ' s ITO petition with the Board had been dismissed on August 2, 1962, and the
ITO's had been held to be independent contractors , under no stretch of the imagination
could the reference to employees , "for which this union is certified ," be said to refer to
ITO's. Also, the Union had not been certified for Waukesha ' s employees that had pre-
viously been represented by the Laborers Union
"A new decertification petition was subsequently filed by a Halquist employee, Case
No. 13-RD-536, on January 3, 1963.
38 It is generally Board policy not to process representation cases, where there are pend-
ing unfair labor practice charges, particularly where the charges are that there has been
a refusal to bargain.
36 Typical of the dismissal letters sent by the said Regional Director , in this case, is the
following language:
. . . it appears that, as regards alleged violations of Section 8(a) (5) [refusal to
bargain] , issuance of complaint at this time would not effectuate the purposes of the
Act, particularly in view of the substantial multiemployer unit issue which can best
be resolved in a pending representation proceeding
4° The Respondents apparently understood the motivation of the Regional Director in
his decision to go forward on the decertification petitions since in their brief it is stated,
"The Regional Director apparently in an effort to clear the way for processing the decer-
tification petitions , on November 2, 1962, dismissed the refusal to bargain charges.
(at p. 25)
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As described at some length earlier in this Decision, the Board issued its Decision in
the consolidated representation cases involving the decertification petitions at Quality
and Halquist, on June 28, 1963.41 The Board found that the unit was multiemployer
and dismissed the petitions in the single units
Meanwhile, during the above period, an organization known as Wisconsin Workers
Union was formed. Information in the record is derived from the testimony of
Quality employee Wilson, previously mentioned. Wilson stated that he was treasurer
of the WWU and testified that he believed that the Union was organized in February
1963. On March 21, 1963, the WWU, by Attorney McLario, advised Quality that
it "has signed up a majority of your employees" and requested recognition as their
representative. Through Attorney Hoebreckx, on March 28 Quality declined recog-
nition because of the then pending decertification petitions.
The WWU on July 3 and 5, 1963, wrote to the Employers claiming that it repre-
sented "over 50 percent of the employees in the quarry industry" and requesting
recognition and negotiations 42 On July 8, 1963, the WWU filed a petition for
certification with the Board (Case No. 13-RC-9538) for the following unit: multi-
employer unit being all the employees working in and about the quarries in said
multiemployer unit, excluding operating engineers, supervisors, office employees,
guards, professional employees, and stonecutters; listing the seven Respondent
Employers.
The Teamsters, on July 5, 1963, wrote to Wolf as "Chairman Employer Bargaining
Committee," as well as sent the letter to the other employers:
You may recall that negotiations were interrupted last year when the quarries
refused to meet and bargain with Local 695 for the inside employees unless
negotiations proceeded on an individual basis. Two quarries refused to meet on
the further ground that union decertification proceedings were pending before
the Board.
As you know, the recent decision of the Board [143 NLRB 589, June 28, 1963]
held that the following named Quarries are part of the multi-employer bargain-
ing unit: [the seven Respondents were listed and a time and place suggested for
"resuming negotiations on a group basis"1.43
Attorney Hoebreckx replied to the above letter on July 9, 1963. Inter alia, he asked
whether the Union still demanded the inclusion of the ITO's in the negotiations and
whether the Waukesha Laborers are part of the "so-called multi-employer unit." The
letter mentioned that the WWU demanded recognition "on a multi-employer basis
of the inside employees previously represented by Local 695" and that the Employers
had requested that the WWU file a petition with the Board. It was also stated by
Attorney Hoebreckx that the Union was aware that the employer commitee had not
"functioned" since the picket line was set up and that three employers had withdrawn
from joint negotiations. However, the letter said that Quality, Halquist, and
Waukesha were prepared to participate in joint negotiations with any union that
represented the employees in an appropriate unit, with the understanding that each
of the Employers aforementioned would represent its own interests in the negotiations
and that only the officers of each employer could bind the Employer to an agreement.
The Union was asked to inform the writer which of the other four employers were
"now" agreeable to participate in joint negotiations.
Through its attorney, Uelman, the Union responded to the above by letter of
July 11, 1963. The letters stated, inter alia,
Your clients and all quarries that are part of the multiemployer unit were advised
that negotiations were requested for the unit found appropriate by the Board.
This unit did not include the ITO's, so called, nor did it include the laborers
unit at Waukesha ....
It was also stated that the Union had requested the General Counsel to issue a com-
plaint "because of your refusal to meet and bargain." However, it was stated that,
if Respondents were willing to negotiate on the multiemployer basis found appro-
priate by the Board, the Union would arrange to meet with them.
Attorney Hoebreckx wrote to Attorney Uelman on July 19, 1963, reiterating the
asserted withdrawal from the group of Milwaukee, Midwest, and Monacelli and
recalling that Wislanco had also declined to bargain on a group basis. It was pointed
41143 NLRB 589.
42 Seven employers were so addressed. They were all the Respondents except Waukesha
and there was a°"Weather Rock Quarries" Included. A day or two later, July 5, Weather
Rock was omitted and Waukesha was added.
43 On July 5, 1963, the Union also advised Wolf of Quality that picketing had ceased
and requested reinstatement of six striking Quality employees
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1029
out that the Union had not given information as to the participation of three
employers in the negotiations. "In any event," the letter noted that the WWU had
filed a petition with the Board and it was suggested that the Teamsters cooperate in
bringing about an election 44
The General Counsel, on September 25, 1963, reversed the Regional Director's
prior dismissals of the Union's refusal-to-bargain charges (Section 8(a)(5)) and
directed issuance of a complaint.
On October 23, 1963, the WWU, through its attorney, wrote to Attorney Hoebreckx
re "Your-Clients-Quarry Employers," suggesting an election on a private basis. Also,
on October 23, 1963, Respondents requested the General Counsel to reconsider his
decision of September 25, 1963. Before a reply was received, Attorney Hoebreckx
wrote to the Teamsters on October 31, 1963, advising of the WWU proposal for an
election on a private basis. It was stated that the Employers had agreed to the pro-
posal on condition that the Teamsters were offered an opportunity to appear on the
ballot with the WWU. The letter invited the Teamsters to participate and enclosed a
copy of the election agreement, notices, and two forms of the ballot, one of which
"will be used, depending on whether or not Local 695 participates." The Teamsters
did not reply or participate.
Early in November 1963, all seven Respondents and the WWU signed the private
election agreement, providing for an election in the multiemployer unit of the seven
Employers. It is clear that the voting was to be in the aforesaid unit and not on a
separate, individual employer unit basis and that, depending on the outcome of the
election, the seven Employers were prepared to recognize and negotiate with the
WWU in the multiemployer unit. It is also to be observed that the unit of "all of
the production and maintenance employees ..." did not by its terms exclude the
employees in the former Waukesha Laborers unit. On November 6, 1963, the
General Counsel refused to change his decision of September 25, 1963, above.
The Teamsters, on November 6, 1963, amended its charges to attack as inter-
ference, in violation of Section 8(a) (1) of the Act, the preparation and participation
in the private election procedure. Thereafter, the Regional Director, pursuant to
Section 10(j) of the Act, petitioned for and secured a temporary restraining order,
and, subsequently, after hearing and briefs, secured a temporary injunction from the
Federal district court, restraining Respondents from encouraging or conducting the
private election.
Without becoming involved in the prior case against Waukesha,4° it is noted that
the principal issue in that case was the refusal to bargain with the Teamsters by
Waukesha, regarding the segmented unit at Waukesha that had for many years been
represented by the Laborers Union. The Trial Examiner and the Board found that
Waukesha had refused to bargain with the Teamsters in the aforementioned Laborers
unit.
Evidence in the instant case , heretofore described by me, manifests that the Union
was seeking to bargain regarding the 1959-62 contract unit which did not include the
Waukesha Laborers unit. The latter unit, beginning in July 1962, was organized by
the Teamsters on the same basis on which it had been represented for many years
by the Laborers Union. The evidence in this case satisfies me that Waukesha and
the other Respondents understood that the Waukesha Laborers was one issue (between
the Union and Waukesha), and that the other issue came down to the matter of the
old contract multiemployer unit, including Waukesha's non-Laborers unit employees.
In the prior Waukesha case, the Board had noted that the Union had filed a peti-
tion for the Laborers unit on August 7, 1962. It was found that Respondent's coun-
sel had acknowledged that the Teamsters in their petition were seeking to represent
those employees who had historically been in the Laborers unit. Respondent con-
tended that a separate unit as aforedescribed, in which Respondent had had no prob-
lem for many years in recognizing the Laborers Union, had become inappropriate
when the employees' allegiance had shifted from the Laborers to the Teamsters.
Respondent, in the Waukesha case, quite evidently aware that the Teamsters were
seeking recognition for the Waukesha Laborers unit as a separate unit, contended
that the Waukesha Laborers "could appropriately be represented by the Teamsters
only in a unit with the employees already represented by this organization" in the
multiemployer unrt.-ic
44 The Regional Director advised the parties on July 31 , 1963, that further processing
of the WWU petition was being withheld because of the pendency of unfair labor practice
charges filed by the Teamsters. These were charges that had not been dismissed or
otherwise disposed of.
45145 NLRB 973
46 145 NLRB 973.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their brief in the instant case, Respondents state that the Union "was demanding
negotiations for the same classification of employees at Waukesha as it was at the
other quarries," and therefore the exclusion of the Waukesha Laborers from the
overall unit in the instant complaint was completely arbitrary.47
Since our present interest is with the instant case and not the prior case, we will not
reiterate the evidence previously detailed hereinabove We believe, from the evidence,
that it was made clear to the Respondents that, in August 1962, and thereafter, the
Union was requesting negotiations in the 1959-62 multiemployer contract unit, exclu-
sive of the Waukesha Laborers, whom the Union considered that it represented as a
separate unit by reason of its supplanting the Laborers Union as the bargaining agent
in that unit. Not previously discussed is an October 16, 1963, letter that the Union
wrote to its members 48 The letter briefly outlined the history and status of the
Union's dispute with Respondents. Although the letter was not addressed to the
Respondents and although various communications from the Union to Respondents
had expressly stated the unit in which it desired to resume negotiations, and the
Respondents had refused, the latter, in its brief, points to certain statements in the
aforesaid October 16, 1963, intramural letter. Thus, the Union said that the law
required Respondents to negotiate a contract with the Union "for the inside workers.
Basically, it requires the same type of negotiations on a group basis that were held
prior to the strike, with the addition of the laborers employed at Waukesha Lime and
Stone Company."
Since the Union had supplanted the Laborers Union as the representative of the
Waukesha Laborers and since in June 1963, a Trial Examiner had so found, as subse-
quently affirmed by the Board, the Union did represent the said Laborers. The Union
had advised Respondents expressly that it was prepared to negotiate with the group,
which included Waukesha, for the 1959-62 unit, excluding Waukesha Laborers
As a practical matter, Waukesha, as a member of the group, would or should partici-
pate in negotiating for classifications, inter alia, that were identical to the classifica-
tions of the Waukesha Laborers. The negotiations would be with the same union
that also represented the Waukesha Laborers. If Waukesha or the Teamsters chose,
these two parties could, or would, or would be obligated to, negotiate separately,
either before, during, or after the multiemployer group negotiations, either at different
times or places or otherwise. The principal significance of the separate Waukesha
Laborers unit was a legal one; namely, that the Teamsters now represented a histori-
cally separate unit formerly represented by the Laborers Union. If Waukesha com-
plied with its legal obligation to recognize the Teamsters in that unit, which was the
purpose and result of the pnor Waukesha case, the unit would still be legally separate.
The practicalities of bargaining would thereafter be a matter for consideration of the
parties. In any event, I am not persuaded that the October 16, 1963, letter, coming
after clear prior demands and refusals, altered the conclusions to be drawn from the
said demands and refusals.49
Conclusions Regarding the Section 8(a) (5)
Allegations of Refusal to Bargain
Without repeating the evidence heretofore described and analyzed in detail, I find
and conclude that at all relevant times in 1962 and 1963 the appropriate unit was a
multiemployer unit of the seven Respondents. The internal composition of the unit
was that alleged in the complaint as quoted earlier in this Decision Any doubt about
the group approach of the Employers to questions of union representation and to
matters of dealing with unions regarding employees is dispelled by the reaffirmation
of the multiemployer unit in October and November 1963 in the agreement with the
Wisconsin Workers' Union for an election on a multiemployer basis The Respond-
ents denied the existence of the multiemployer unit only in their responses to the
Teamsters and persisted in this course of action, with respect to the Teamsters, after
the Board's unit decision in the decertification cases.
Aside from the foregoing action of Respondents that was consistent with the
existence of the multiemployer unit and inconsistent with the purported withdrawals
from group action by any of the Respondents, I am of the opinion that the purported
withdrawals were untimely and were not made at an appropriate time. Employers
47 Respondents' brief, p 30
48 Respondents ' Exhibit No. 14; a more legible copy of the letter is to be found in
General Counsel 's Exhibit No. 1(k).
48Another section of the October 16 letter that Respondent regards as significant is
the statement that "Local 695 cannot and will not request bargaining on behalf of the
ITO's and the strike of these ITO's has long been cancelled " I do not agree that this
statement is significant in view of other facts previously described
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1031
have great freedom with respect to multiemployer units. Neither the Board nor a
union can create a multiemployer unit. Employers may not be forced into a multi-
employer unit.50 When it suits their interests, employers and employers alone may
create a multiemployer unit. The sanctity and the durability of a multiemployer
unit, when thus created by a group of employers, is such, that, for its preservation, the
Employers have a sanction nowhere else provided in the Act. They may lock out
their employees in order to preserve the multiemployer unit against union efforts to
fracture the unit.51
When employers by their actions render a multiemployer unit the appropriate unit
for bargaining, they do so after evaluating the respective advantages and disadvantages
of group as opposed to individual dealings with a union. Any group action as
opposed to individual action generally means that not everything that is palatable to
the group or to a majority of the group is in all instances what the individual would
find most acceptable if he were acting alone. But by joining the group the individual
has concluded that the advantages outweigh the possible disadvantages of group
action.
There can be no doubt of the right of employers to withdraw from a multiemployer
group at an appropriate time. But I am of the opinion that anytime that a member
of an employer group in the course of negotiations or in the course of a contest with
a union, such as a strike or apprehension of a strike, finds that the issues between the
group and the union do not fit his individual interests or ideas, is not an appropriate
time. The Employer has made his choice in joining the group and the appropriate
multiemployer unit prevails as the appropriate unit despite efforts of a union or of an
individual employer to sever the unit. The Act contemplates a degree of order and
stability in industrial relations and the maintenance of stability in bargaining rela-
tionships. This purpose is not served by individual employers, who were members of
a multiemployer group unit, or by unions, being accorded the power to turn the unit
on and off like water from a tap as it suits their individual interests in the course of an
economic struggle to secure a contract. The Act vests in the Board the power and
the obligation to determine the appropriate unit.52 When the employers have volun-
tarily created a multiemployer unit, the Board, in our view, must apply reasonable
controls over withdrawals and other efforts to destroy the stability of the unit then
existing. Withdrawals should be made, in our opinion, before the commencement of
negotiations and before issue is joined between the group and the union, or by mutual
consent of the group, the individual employer, and the union.53
An appropriate unit is not destroyed or made inappropriate because one of the
parties seeks additions to, or deletions from, such unit. Such a doctrine would vest
in either party a right to render inappropriate that which is appropriate. Under such
a principle there would be stability in no unit. The demand of the Union with respect
to the ITO's from June 25 to August 29, 1962, did not alter the unit and the Employers
could and did refuse to bargain for the ITO's. Nor can I agree with the contention in
Respondents' brief that "by causing whipsaw strikes against only certain employers
who were participating in group negotiations" the Union destroyed the multiemployer
unit. Again, this would be too easy a method for destroying an appropriate unit and
the whole Buffalo Linen doctrine, supra, is premised on the fact that the appropriate
multiemployer unit may not be destroyed by efforts to bargain on an individual basis.
It is because the multiemployer unit prevails that the members of the group may lock
out their employees in the face of efforts to alter the unit.
With respect to the Union's majority status in the appropriate unit, I am persuaded
that because the members of the Employer group had had contracts with the Union
since 1952 there is a presumption of union majority status throughout those years.
There is nothing in the record to rebut the continuation of such a presumption in the
period from 1952 to, and including, contract negotiations in 1962. This is particu-
larly true since, in the most recent period, 1959-62, the Union and the multiemployer
group of the seven Respondents were parties to a contract containing a union security-
clause that required membership in the Union as a condition of continued employ-
ment. At no subsequent time, until July 5, 1963, was there a challenge from any
source regarding the Union's majority status in the appropriate multiemployer unity
60 Section 8(b) (1) (B) of the Act.
m N L R B. v. Truck Drivers Local Union No. 449 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL (Buffalo Linen Supply
Co.), 353 U.S 87.
62 Section 9(b)
63 Compare statements by the Board in Retail Associates , Inc., 120 NLRB 388, 393-394.
64 On March 21, 1963, the WWU had made a bare claim, unsupported, and followed up
with no definite action or showing of interest until July 1963 The claim, moreover, was
limited to a unit of Quality employees.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that date, the Wisconsin Workers Union advised Respondents that it represented
a majority in all the quarries and filed a petition for certification on July 8, 1963.
While the claim of the WWU was made with respect to a unit of all Respondents, the
unit included the Waukesha Laborers group which the Board has previously found
to be a separate unit and not part of the multiemployer unit.
In addition to the presumption of the continuation of the Union's majority status
in the appropriate unit, there is confirmatory evidence of such continued status All
the Halquist portion of the multiemployer unit employees, except two, respected the
union picket line at Halquist during the strike, which terminated at Halquist about
October 8, 1963. They thus refrained from work for over 3 months. Although the
prior contract had expired in May 1962, 23 of the 25 Halquist Teamster members
that comprised the unit voluntarily continued their payment of union dues through
July, August, and September, 1962 and continued to remain members of the Union.
Before examining the situation at the other Employers' plants, I deem it appro-
priate to state that I do not agree with Respondents' contention in their brief that the
continued payment of union dues is without significance since the Union was paying
strike benefits to its members during the strike. Although Respondents in the course
of examination made an attempt to elicit testimony that the Union deducted dues from
the strike benefit payments, this was shown to be contrary to the facts. In any event,
the payments of dues and the withholding of services by employees over a period of
months impresses me as significant evidence of the employees' support of the Union.55
At Halquist, the employees' support of the Union was such that it was deemed neces-
sary to have Supervisor Ti app sponsor and secure employees' signatures for a decerti-
fication petition. Moreover, Trapp found it appropriate or necessary to exert con-
siderable pressure and to threaten employees in the course of his aforesaid efforts.
This was likewise true in the case of the five employees in the multiemployer unit at
Wislanco. At that company the owners themselves found it necessary to initiate and
to sponsor a decertification movement among the five union employees who continued
to pay dues in July, August, and September, 1962.
The nucleus of disaffection with the Union was at the Quality Sussex quarry. At
Quality's Conco quarry the situation, however, was not the same. Beginning a few
days after the picketing at Sussex, 17 union members in the unit returned to work
through the picket lines at Sussex and had thereafter signed a decertification petition.
Six Sussex strikers remained loyal to the Union and picketed until July 5, 1963, when
the union terminated the strike. The Conco union members, six in number, respected
the union picket line at Conco and refrained from work until October 1962. They
also voluntarily maintained their dues payments during this period. Of a total of 33
employees in the unit at Quality's two quarries, 15 paid their union dues for July,
August, and September, 1962.56,
The support of the Union by the members thereof at Waukesha is shown by the
fact that 9 out of 10 employees in the multiemployer unit at that company honored
the picket line for over 4 months.57 At the Milwaukee quarry, the seven employees
55 Respondents' argument about the lack of significance of the dues payments because
the strikers were receiving strike benefits would seem to be based on the premise that
what the strikers were interested in was their income during the strike Therefore they
paid dues in order to get strike benefits Even on that premise, the net income of the
strikers would be low and, if they were really interested in income during the strike, they
would be back at work earning their regular wage and would not be paying dues.
00n the last day of the hearing, the General Counsel stated that he had documents
subsequently signed by 9 of the 17 Quality signers of the decertification petition stating
that they were still members of the Union and revoking their decertification action. He
also had similar evidence respecting six of the nine signers of the decertification petition
at Halquist Respondents stated that they would not stipulate as to the authenticity
of the signatures on the aforesaid documents and demanded the right to examine each
signer as to the circumstances thereof. The individual signers were not then on hand
I rejected the evidence and it was placed in a rejected exhibit file. Under all the circum-
stances, including the extension of the hearing for one or more days while some 15
witnesses were examined as to their signing of both a decertification and a repudiating of
the decertification action, it was and is my opinion that the issues in the case do not turn
upon the signing and unsigning of papers by employees
57 We are, of course, not here referring to the Waukesha Laborers group which was
found to be a separate unit in the prior case It was found in that case that the Team-
sters had signed up 13 out of the 17 employees in the unit and these employees were on
strike until the end of the strike in November 1962. The alleged discrimination against
some of these strikers when they applied for reinstatement is discussed at a later point
in the instant Decision
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1033
in the unit engaged in a strike called by their Union at Milwaukee from August 18
through September 6 or 12, 1962; they continued payment of their dues thioughout
this period. At Midwest and Monacelli, where there was neither strike nor decertifica-
tion activity, the tour employees voluntarily continued their dues payments to the
Union and thus manifested their adheience. Of a total of 84 employees in the unit
of the 7 Respondents, the foregoing analysis shows continued representation by the
Union of at least 60 employees.58 This constitutes a majority.
Having considered the matter of unit and majority, we now turn to the refusal to
bargain. I find that on August 29, 1962, the Union requested resumption of bargain-
ing in the appropriate unit and that the Respondents understood that this was the fact.
Since this evidence has also been previously described and analyzed earlier in this
Decision, it is not here repeated. It is also found that by their replies on August 31
and September 1 and 4, 1962, the Respondents refused to bargain in violation of
Section 8(a)(5) of the Act. The refusals to bargain were clear and complete and
the grounds of the refusals were equally clear. All the responses constituted rejections
of the obligation to bargain in the appropriate unit. Neither at that time nor at any
other time did the Employers file a RM petition with the Board with respect to the
unit or related issues.59 The decertification issue raised by Halquist and Wislanco
was untenable in view of the active employer sponsorship of such petitions. Neither
the Quality, Halquist, or Wislanco decertification petitions, confined as they were to
single employer units, raised a decertification issue in the appropriate unit. It is
established Board policy that a decertification election will be directed only in the
recognized or certified unit.60 The pendency of a petition imposes no requirement
that employers refrain from recognizing an incumbent union unless the petition
creates a real question of representation. "One of the essential elements for a deter-
mination that such a `question' exists is that the [petitioner] seeking to displace an
incumbent, assert its claim to an appropriate unit of employees." 61
After a full and complete refusal to bargain in the appropriate unit in violation of
Section 8(a)(5) in the period August 29 to September 4, 1962, Respondent points
to a September 7, 1962, story in the Teamster paper to justify its prior action What-
ever explanation or interpretation is appropriate to said article, it had nothing to do
with the aforementioned refusals. If the Respondent can rely on the September 7
article as justification for not bargaining on September 7 and for the balance of the
month, they were again informed on October 2, 1962, that the Union desired to
negotiate for a contract covering the employees in the prior multiemployer group
contract. Respondents once more or still refused to bargain. There was, in effect,
a further refusal to bargain on July 5, 1963, and thereafter.
The evidence of Respondents' good faith in their various responses to the Union
is not apparent. No question of the Union's majority in the appropriate unit was
raised on August 29 and October 2, 1962, when Respondents refused to bargain.
With respect to unit, Respondents consistently refused to bargain in the appropriate
unit and challenged the multiemployer unit until the Wisconsin Workers Union
appeared on the scene. At that point, Respondent then entered into an election
agreement with the WWU in a multiemployer unit. Respondents, with respect to
Waukesha, and Waukesha have contended that the Teamsters, in their request for
Is I have included only 12 employees at Quality. The General Counsel would count 15
at Quality, making the total 63.
69 Section 9(c) (1) (B) of the Act provides for an employer petition which the Board
designates as a RM petition. Union petitions for certification are RC petitions Decer-
tification are RD petitions. See Ray Brooks v. N L R.B , 348 U S 96, 103
60 Harry F Shuey and Marion M Shuey, d/b/a Oakwood Tool and Engineering Com-
pany, 122 NLRB 812, 814 See Section 9(c) (1) (A) (n) of the Act.
61 William Penn Broadcasting Company, 93 NLRB 1104, 1105, 1106 In a footnote in
the cited case the Board said "Necessarily, it is for the Board, within the piescribed
procedures of the Act, ultimately to determine after full litigation of the issue, nhether
it real question of representation existed under particular circumstances . the `deter-
mination' which an Employer may make for himself, and at his peril, under the rule in
this case is in no way different from the interpretations of law, derived from existing
statutes and authoritative legal opinions, an employer is regularly called upon to make to
guide himself in his other business activities." It may be noted that in the William Penn
case the Regional Director had evidently thought that the petition had raised a question
of representation since he issued a complaint against the employer for renewing its contract
with the incumbent Union while a petition was pending The Board dismissed the com-
plaint. It is apparent that no action by a Regional Director can create a real question
of representation where none existed. Moreover, in the instant case, the Regional Di-
rector' s dismissal of certain charges was reversed.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations, had sought to include the Waukesha Laborers group in the multi-
employer unit and this was assertedly one reason for the refusals to bargain. In
the Waukesha case and thereafter Respondent Waukesha refused to bargain with
the Teamsters in a separate unit, formerly represented in a separate unit by the
Laborers Union. But, when the WWU appeared, Respondents, including Waukesha,
readily agreed upon a multiemployer unit that included the Waukesha Laborers
group.
Good faith in bargaining is a fact and we can appropriately consider the circum-
stances surrounding the decertification petitions and the emergence of the WWU.
The first day of picketing was on June 29, 1962. The very next day an employee of
Quality, Metzger, who was also a house tenant of Quality, was able to arrange a
meeting at his home attended by the president of Quality, Wolf, and the Company's
attorney, Hoebreckx. Three other Quality employees were also invited. With some
limited and discreet advice from the management people, Metzger's desire to get out
of the Teamsters was pointed in the right direction. More importantly, it was evi-
dent, however tacitly, that the Metzger move had the approbation of Metzger's
employer and landlord. Attorney Hoebreckx made it clear that he would be pre-
pared to advise any attorney that Metzger and his group were told they should retain.
A few days later, a meeting for employees of all the quarries was held and Quality
employee Wilson states that 90 percent of the employees were present. The meeting
was abortive since apparently the attorney was not present. Another meeting was
held and the decertification movement was launched. The net result of this assert-
edly wide employee interest was that three decertification petitions were secured.
Supervision at Wislanco and Halquist had to play a key role, including the applica-
tion of pressure , in securing signatures . At Quality, the initial imprimatur of man-
agement on June 30 was evidently sufficient and Metzger and Wilson filed a peti-
tion with the Board. While there were no doubt a number of employees at Quality
and Halquist who wished to disassociate themselves from the Teamsters, they were
a small part of the employees in the whole unit and even this minority, initially, at
least, required management approprobation to "get off the ground." When the decer-
tification route resulted in Board Decision that was adverse to the objectives and,
with Respondents still failing to file a RM petition, the WWU came into being, with
Metzger and Wilson, and two others as officers. Respondents' continued benevolence
toward any anti-Teamsters movement was soon confirmed by Respondents' ready
agreement to an election in the multiemployer unit, including Waukesha Laborers.
This was a complete turnabout from its prior position with the Teamsters on the
unit issues. Moreover, an undetermined amount of employee support of the WWU
can be attributed , in part , to the Respondents ' prior refusals to renew contract nego-
tiations with the Teamsters.
Because of the evidence in this case that has been described , I conclude that
Respondents did not entertain a good-faith doubt either with respect to majority or
unit. Further, the Act says nothing about good faith. Section 9(a) provides that a
representative "designated or selected" for purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes , shall be the
exclusive representative of all the employees in such unit for the purposes of col-
lective bargaining ...." Section 9(b) declares that "the Board shall decide in such
case . . . the unit appropriate for the purposes of collective bargaining ...: . Sec-
tion 8(a)(5) declares that it is an unfair labor practice for an employer "to refuse
to bargain collectively with the representatives of his employees, subject to the pro-
visions of Section 9(a)."
The Board and the courts, however, have recognized good-faith doubt as to major-
ity to be a defense to a refusal-to-bargain charge. It is submitted that this is so
because majority is a question of fact In the typical uncomplicated case, a union
organizes the employees of an employer. The latter may in good faith doubt the
claim of majority support. If there are no other contrary factors in the case, an
election is the best method of determining majority. Moreover, if the employer
was held to have doubted majority at his peril, the fact that the union won a sub-
sequent election would not necessarily establish that it had a majority on the occa-
sion, prior to the election, when the employer refused to bargain. Be sure that as it
may, doubt as to appropriateness of unit is another matter. The determination of
unit is ultimately a matter for the Board's Decision and appropriate unit is a con-
clusion of law. Both the employer and the union act at their peril on the matter of
unit. If a union demands bargaining and strikes and files charges upon a refusal, its
entire position crumbles if the unit is ultimately found to be inappropriate. Not
only has there been no refusal to bargain under the Act but the strike is not an unfair
labor practice strike and the jobs of the strikers may be lost as a consequence. It is
believed that the employer assumes the same risk when he refuses to bargain on the
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1035
ground that the unit is not appropriate, if, in fact, the unit is determined to be appro-
priate, particularly if the employer has made no effort to file a RM petition to
resolve the unit question.62
The Alleged Discriminations
In July 1962, 14 of 17 or 18 employees in the Laborers unit at Waukesha had
signed Teamsters authorization cards and on July 20, 1962, all 14 struck the plant.63
One more Laborer, who had not signed a Teamster card, did engage in picketing.
Apparently three Laborers, Zeigh, Mathison, and Button, neither signed a card nor
picketed. The basic Teamsters unit employees at Waukesha, who were in the multi-
employer unit, observed the picket line and did not work. The Engineers unit people
remained away from work for a short time but then returned to work. During the
strike, production at the plant was carried on by the nonstriking Laborers, the three
Operating Engineers, Kuester, who was in the basic Teamsters unit, and some super-
visory and office personnel.64
On Saturday, November 10, 1962, the Waukesha strike was terminated and the
striking Laborers, about 12, went to the Waukesha plant and applied unconditionally
for reinstatement. They spoke to Hill, identified in the record as head salesman.
Hill said that the Coburns 65 were not around but he told the men to return to work
on Monday, November 12.
When the men returned to the plant on November 12, Robert Coburn said that he
had no work for them and gave each man a layoff slip with the notation "Lack of
work" checked thereon.
At the hearing, Coburn testified that the Company's business had been adversely
affected by the strike, that a large inventory had been built up, and that the stone
plant had been shut down on November 9, 1962, for the winter. The Company
therefore had no work for the returning strikers at that time. The General Counsel
points out that in other recent years the stone plant, depending on weather, usually
operated until sometime in December and he otherwise casts suspicion upon the tim-
ing of and motivation for the shutdown in 1962.66 However, as I read the complaint,
there is no allegation that the shutdown itself constituted a violation of Section
8(a) (3 )of the Act. Nor does the General Counsel expressly so contend in his brief
The initial allegation before us is that Respondent, on and since November 10, 1962,
discriminated against employees Rouse, Wenzel, and Lipuma by failing to reinstate
them.
Lipuma had been in Waukesha's employ since May 1953. He was in the Laborers
group. During his employment he had never been laid off during the winter season.
Before the 1962 strike, Lipuma was performing minor repair work and maintenance
cleanup in the stone plant. Throughout the period of his employment Lipuma, at
various times, "ran the drills ... ran the dust plant ... ran the stone plant ... and
practically done everything around there," including, during the winter, work in the
dryer, running the bagging machine, piling bags, helping repair equipment, and so
forth, except operating power shovels and other work of the Operating Engineers.
e' Cf. Tom Thumb Stores, Inc., 123 NLRB 833, 834-835, and the statement in Safeway
Stores, Incorporated, 110 NLRB 1718, and in Chalet, Inc., 107 NLRB 109, that the Board
overruled in Tom Thumb. Similar language is found in United Butchers Abattoir, Inc.,
123 NLRB 946, 957.
e' 145 NLRB 973.
84 It is appropriate at this point to mention something more about the general nature
of Respondents' operations They operate limestone quarries in Waukesha Country, pro-
ducing crushed stone, cut stone, and agricultural lime. The basic raw material, stone, is
produced or extracted from the spring to late fall, with weather and business conditions
being a factor in the length of the season. Quality, Halquist, and Waukesha produce cut
stone and during the late fall and winter they process, bag, and ship agricultural lime
made from the limestone. The lime is used by farmers before the planting of new crops
The Waukesha Company runs its big stone plant and pit except in the late fall and winter
when that operation is shut down , in the winter the Company recrushes stone and oper-
ates the lime plant
65 Charles Coburn, president of Waukesha, and his son Robert, secretary-treasurer, who
was also active in running the entire operation.
69 "By timing its seasonal layoff to coincide with the return of the strikers, Waukesha
managed to retain and regularly employ during the winter season each and every produc-
tion employee who had crossed Local 695 picket lines to work during the strike, while on
November 12 laying off each and every returning striker . . " General Counsel's
brief, p 34.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lipuma was the leading figure in signing up the Laborers in the Teamsters Union in
July 1962. Waukesha was aware of Lipuma's activity and had expressed strong
opposition thereto, including a statement to Lipuma and another employee that if
they got into the Teamsters there would not be enough work for all of them.67
Lipuma was on strike until November 10, 1962.
Rouse had worked for Waukesha in the Laborers group since March 1950.
Throughout his employment he had never been laid off during the winter season. In
the summer he was an operator of the stone plant, and during the winter Rouse ran
the recrusher, making chips and lime. Rouse had signed up in the Teamsters in July
1962 and was on strike until November 10, 1962.
Wenzel, who was in the Laborers group and who was a Teamsters card signer and
striker until November 10, 1962, had been in Waukesha's employ since February
1956 During 1959, 1960, and 1961, Wenzel had not been laid off during the winter.
In the winter, Wenzel principally ran the bagging machine in the lime plant, loaded
bags on boxcars, and performed such other work as was assigned.
It is a fact that Waukesha would have had a winter layoff in 1962. This had
occurred in other years and did occur in 1962, with the supplementary reason, in 1962,
that Waukesha's business had been adversely affected by the strike. The winter lay-
off required a selection among the employees of those who would be given employ-
ment during the winter and those who would be laid off When the strikers termi-
nated the strike and applied unconditionally for work on November 10, 1962, they
were applying as unfair labor practice strikers.68 These strikers, who before and
throughout the strike remained employees, had withheld their services during the
strike, but, otherwise, they were employees indistinguishable, as to rights and status,
from the nonstriking employees who were still working on November 10 and there-
after. At the time when strikers Lipuma, Rouse, and Wenzel applied for work on
November 10, the law, in our opinion, required that they (and the other strikers)
be treated no better and no worse than the nonstrikers with respect to selection for
layoff. The fact that the nonstrikers had worked during the strike entitled them to
no preference in the matter of retention or layoff. Participation or nonparticipation
in a strike may not be used as a criterion for granting either preference or detriment
to employees with respect to their rights as employees, including their right to be
considered together with nonstrikers, according to nondiscriminatory standards, in the
Employer's selection of employees to be laid off or retained 69
The evidence in this case persuades me that, on November 12, 1962, when Wau-
kesha made its seasonal and business layoff of employees, it did not consider the
strikers and nonstrikers together as its complement of employees, from which com-
plement a layoff was to be made according to nondiscriminatory standards. Wau-
kesha either excluded the nonstrikers from consideration for layoff, or, if it did think
about them in this connection, it accorded them preference or superior retention
rights over Lipuma, Rouse, and Wenzel.
Mathison was a nonstriker in the Laborers group who was not laid off on Novem-
ber 12, 1962. This employee had less length of service with Waukesha than Lipuma
and Rouse. During the summer, his lob was principally drilling holes in rocks, and
in the period from November 12, 1962, through the winter, Mathison worked in the
"dust" (lime) plant stacking bags, loading cars, and bagging. This was the same
work that Lipuma had performed during past winters When Rouse was later
recalled to work in April 1963 for 2 or 3 weeks he was given the work of piling bags
of lime in the lime plant, stacking and loading bags on cars and trucks. It is appar-
ent that Mathison's work during the winter required no special skill and there is no
showing that he was an outstanding worker. Lipuma and Rouse were at least
equally qualified; they had greater seniority; and for periods exceeding 10 years
neither Lipuma nor Rouse had ever been laid off during the winter whereas Mathison
had been laid off in the winter of 1958-59, 1960-61, and 1961-62.10 Wenzel also
customarily had performed as his principal duty the type of work that Mathison
performed from November 12, 1962, and Wenzel had worked without winter layoff
from March 1959 to the time of his layoff on November 12, 1962
Another employee in the Laborers group, who was a nonstriker and who con-
tinued to work from November 12, 1962, and thereafter, was Button. He had been
first hired in March 1961 and was laid off in the seasonal winter layoff, December
87 Waukesha Lime and Stone Co , Incorporated, 145 NLRB 973
w Waukesha Lime and Stone Co , Incorporated , 145 NLRB 973.
OD Erie Resistor Corporation , 132 NLRB 621 ; N L.R B. v. Erie Resistor Corporation,
et al, 373 U S. 221.
70 The date of Mathison 's last layoff was January 2, 1962 ; he was recalled on
April 10, 1962.
I
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1037
1961, being recalled in March 1962. Button , who was a rock driller in the spring
and summer , had, as we have seen , never worked for Waukesha during the winter.
However, he was not laid off on November 12, 1962, but worked in the lime plant
during the winter, which was the type of work that Rouse, Lipuma, and Wenzel had
performed in other winters . Robert Coburn testified that Button also performed "a
lot of repair and maintenance " and some truck repair work . According to Coburn,
Button possessed more mechanical ability than Rouse.71 In view of the fact that
Button 's qualifications were not such as to lead to his retention in the prior winter
layoff, when Rouse, Lipuma, and Wenzel were all kept on without layoff, I do not
find Coburn 's testimony convincing in the aforementioned respect.
Waukesha employed three operating engineers , Smart, McMartin , and Corey.
All had been with the Company a shorter period than Lipuma, Rouse , and Wenzel.
Corey, in fact, had been hired in June 1961 . The three engineers did not testify but
Robert Coburn stated that their principal job was operating heavy excavating equip-
ment, including power shovels and front-end loaders . Coburn testified that Corey
primarily operated a front-end loader. In past winters , the engineers worked during
the winter only on a rotating basis; i e., each engineer would work 1 day and then
would be off for 2 days . 72 Under such a schedule each engineer would work no
more than 2 days in a week and the three engineers combined would put in a week's
work per week . The type of worked performed by the engineers in past winters,
according to Coburn , was operating the front -end loader and overhauling and repair-
ing power equipment like the large shovel . Although admitting that the three engi-
neers worked full time during the 1962-63 winter, Coburn was unable to recall
exactly what they did. He expressed the view that it was "entirely possible" that
they worked in the lime plant during the 1962-63 winter.73 At another point Coburn
confirmed the last mentioned possibility . Rouse, who had regularly run the recrusher
in the lime plant during past winters , testified that Engineer Corey and employee
Kuester were running the recrusher when Rouse was rehired in April 1963. Even
at that time Rouse was not put back on the recrusher until 2 or 3 weeks later.74 In
any event , I am satisfied that in the 1962-63 winter period the engineers worked full
time as compared with part time in past winters and that the additional work that
they performed was principally work in the lime plant that Lipuma, Rouse, and
Wenzel had performed in past winters . The engineers had a higher rate of pay than
the employees in the Laborers group, above , and they worked at this same higher
rate throughout the 1962-63 winter. Although Coburn testified that engineers were
hard to secure and therefore the Company liked to keep them on during the winter,
this ignores the fact that in past winters the engineers were retained by giving them
winter work on a part-time or rotating basis. There is no evidence that this assign-
ment was not satisfactory from the standpoint of both the Company and the engineers.
While Waukesha was clearly within its rights in operating during the strike with
whatever personnel it had available , the terminatoin of the strike and the applica-
tions for remployment by the strikers placed the Company under the legal obliga-
tion of making the November 12 layoff from among all its employees , strikers as
well as nonstrikers , according to normal standards and past practice , and without dis-
crimination against the strikers because they had been strikers or without discrimina-
tion in favor of those who had worked during the strike.
The evidence satisfies me that if there had been no strike in 1962, but if business
in the same proportion had decreased by the time of the annual winter layoff on
November 12, Lipuma , Rouse, and Wenzel would have been retained in preference
to Mathison and Button and that the engineers would have performed their normal
71 Coburn furnished no direct comparison at the hearing between Button , Lipuma, and
Wenzel
72 So described by Robert Coburn. Lipuma gave the same description insofar as net
result was concerned but described it as working in turns , with one engineer working 1 day,
then another the next day, and so forth.
73 Various witnesses , in referring to the locus of winter work, used the terms lime plant,
dust plant , working the dryer, or working on the recrusher . Lipuma, for instance, at one
point said that the dryer is the place that they dry the stone and pulverize the lime during
the winter . At another point he stated that in the winter the Company recrushed and ran
the lime plant and that he worked in the dryer ( lime plant).
71 Kuester was a nonstriker who was first employed by the Company in April 1962. In
the prior case, it was found that he was a welder in the basic Teamsters unit at Waukesha
and not in the Laborers group At the instant hearing , Coburn testified that, in the
summer, Kuester worked in the stone plant but thereafter worked in the lime plant. Ac-
cording to Coburn, Kuester could do anything and was so used ; Kuester was a welder
and Coburn also said that he could perform "intricate" repair work.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
winter work on a part-time rotating basis, thus leaving at least one, and possibly two,
additional jobs and a total of three or four jobs for the Laborers group employees.? 7
For many years in the past, Lipuma, Rouse, and Wenzel had been retained dur-
ing the winter; they had greater seniority than any of the employees above mentioned
who were retained in preference to them on November 12, 1962; those retained in
1962 had been laid off in past winters when the three strikers had been retained:
the engineers in past winters were, in effect, laid off in part, since they had only
worked part time.
The conclusion is compelling that the determining factor in the November 12
layoffs was the fact that only the strikers were considered for layoff and that no con-
sideration was given to making the layoff according to length of service and expe-
rience, past practice, and ability to perform available work. Indeed, no witness of
Respondent testified that the layoffs had been made by considering all employees,
strikers and nonstrikers, and then selecting, by some reasonable and nondiscrimina-
tory standard, those who were to be laid off.7°
Employees Lipuma and Koch, alleged discriminatees, pose an additional situa-
tion.77 Koch had originally been hired in May 1962, in the Laborers group at
Waukesha. He went on strike in July 1962 with the others, and applied for
reinstatement with Lipuma and others, on November 12, 1962. As already described,
all the November 12 applicant strikers, including Lipuma and Koch, received layoff
slips on that date because of "lack of work "
In the latter part of October 1962, while the strike was still in effect, Lipuma and
Koch were in a tavern about 2 miles from the Waukesha plant While they were
drinking beer, nonstriker Kuester passed their table and smiled at them. As Lipuma
and Koch left the tavern, Lipuma slashed one of the tires on Kuester's car and Koch
let the air out of the other tires. About a week later, in a local court proceeding.
both men were found guilty of disorderly conduct because of the aforementioned
incident and each was fined $10 and costs. Lipuma was also directed to make resti-
tution for the slashed tire 78 The affair was publicized in the local newspaper and
Waukesha was aware of the matter prior to November 10, 1962. Robert Coburn
testified that, at that time, he and his father had determined not to rehire Lipuma
and Koch "because of their unlawful acts under the law." According to Coburn.
the aforesaid acts were the tire incident; Lipuma and another striker had on one
occasion followed nonstriker Button by car as he was driving home from the plant
during the strike; Lipuma was carrying a bat on the picket line; Koch had a billyclub
on the picket line.
Respondent's counsel, at the hearing, asked Coburn why Lipuma and Koch were
given layoff slips on November 12, 1962, "like everybody else." Coburn's answer
was:
Well, after several months' strike we were tired of trouble and we just didn't
want to stir up a fuss. This was the easiest way to do it
Coburn admitted that the layoff slips enabled Lipuma and Koch to secure unemploy-
ment compensation and that the Company did not contest the award of compensation
75 As mentioned , in the winter of 1962-63 the engineers each performed a full week's
work per week, principally in the lime plant. In past winters, the three engineers,
combined, performed 1 week's work per week.
79 Without claiming that it had considered both strikers and nonstrikers, Coburn stated
that the Company makes its winter layoffs primarily according to capability and that
seniority also enters into it. The Examiner is persuaded that, judging from the past,
Lipuma, Rouse and Wenzel would not have been laid off if they had been compared with
the employees, the nonstrikers, aforedescribed, who were not laid off
At the hearing, in response to questions, Coburn did make a few comparisons between
the laid -off strikers and the retained nonstrikers . The comparisons were less than con-
vincing but, in any event, the witness made no claim that such comparisons had been
made before determining which employees were to be laid off in November 1962
77 The complaint, as we have seen, alleges discrimination against Lipuma since Novem-
ber 12, 1962, and against Koch, since April 18, 1963
7s According to Lipuma's uncontroverted testimony, the judge directed the district at-
torney to contact Kuester about the value of the tire and the district attorney said that
he would be busy for the next few weeks but would thereafter arrange to get Kuester
and Lipuma together to work out the appropriate value of the tire The district attorney
deemed it inadvisable for the two men to meet regarding the tire except in his presence
Lipuma has been awaiting word from the district attorney on this matter
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1039
In the period after November 12, 1962, Lipuma had secured some interim employ-
ment elsewhere. Having been laid off from this other job and learning that other
laid-off strikers were recalled by Waukesha in April 1963, Lipuma and Koch went
to the Waukesha plant on April 18, 1963. They saw Robert Coburn and Lipuma
asked for employment. According to Lipuma, Coburn said that he and Koch were
never coming back to work. Lipuma asked why, and Coburn said that Lipuma knew
why. Lipuma asked whether it was the tire slashing. Coburn said yes, and other
things. Lipuma inquired, what other things, and Coburn said "that if it wasn't for
me [Lipuma] that we wouldn't be in the mess we were in now." Koch's version is
substantially the same as Lipuma's. Coburn's version is that he told Lipuma, the
spokesman, on April 18, that they were not being taken back "because of their ille-
gal acts under the law, and he [Lipuma] asked, is that all, and I said, there aie other
reasons "
I am satisfied that Coburn told the two men, on April 18, that they were not being
rehired, inter alia, because of their misconduct and unlawful acts. Considering all
the evidence, including Coburn's testimony at the hearing as to what were the unlaw-
ful acts, I find that the acts aforementioned were the tire incident; Lipuma's act of
trailing Button's car during the strike; Lipuma's carrying a bat on the picket line, 79
and Koch's having a club while at or on the picket line.80
While the tire incident is the most serious, it is also true that citizens should not
be expected to have in hand bats or clubs of any material while engaged in a dispute
with another party,81 including a labor dispute in which there is a picket line. The
implication, if not the potentialities, of such conduct is not salutary By the same
token citizens are not expected to follow another person's car for purposes of appar-
ent harassment. The law contemplates rectification of wrongs or illegal acts com-
mitted by an adversary to rest with the law and not with physical self-help
I believe that Respondent could properly discharge Lipuma and Koch because of
the tire incident alone. However, on November 12, Respondent did not do so and
admittedly accorded them the same treatment as the other strikers They were laid-
off employees, laid off for lack of work. The evidence is clear that Respondent
made a deliberate choice at that time for reasons to suit its own purpose, to wit, it
did not wish any trouble. The trouble apparently refeired to the possibility that
the strike, which had just ceased, might be resumed promptly if Lipuma and Koch
were discharged rather than laid off, with a reasonable expectancy of recall when
the stone plant operation resumed in the spring. When an employer states that he
had made a prior decision to discharge an employee and then does not do so but
affirmatively retains the employee as a laid-off employee, for whatever reason, it is
apparent that the employee has not been discharged Lipuma and Koch were
employees on November 12, prior thereto, and thereafter, until their status was
changed by the Employer. Further confirmation of the foregoing is found in the
fact that solely because of Respondent's act, Lipuma and Koch received unemploy-
ment compensation as laid-off employees, without objection by Respondent. Since
the unemployment compensation fund does not contemplate payments to discharged
employees, Respondent again had, in a sense, affirmatively manifested the nondis-
charged status of these employees.
In view of the foregoing and for the reasons previously set forth with respect to
the discriminatory selection of employees for layoff on November 12, 1962, I include
Lipuma, together with Rouse and Wenzel, as discriminatees from November 12, 1962.
Lipuma's misconduct is a relevant factor to be considered with respect to his termi-
nation on April 18, 1963, together with Koch's misconduct and the latter's termination
on the same date
It is my opinion that there is no legal principle of "condonation" in the Act or in
its construction or application. If an employer has tolerated or condoned misconduct
by an employee, the law does not provide, per se, that if the employer thereafter dis-
charges the employee for the aforementioned misconduct, he has thereby violated the
law. Condonation is a fact to be ascertained like any other fact.82 Once the fact of
condonation, for whatever reason it came into being, is ascertained, then, for our pur-
poses, it is to be considered together with the other facts in a discrimination allega-
7e The bat was a plastic one but admittedly Coburn had not been close enough to the
bat at anytime to know of what material it was made
80 The club was about 2 feet long When directed to do so by the sheriff, Koch put
the club away.
81 Unless, possibly, in danger of assault
82 "Condonation . . . Tacit forgiveness of an offense by treating the offender as if it
had not been committed." Webster's New Collegiate Dictionary.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion The ultimate fact to be determined is the reason for the discrimination , whether
a legal reason or an illegal reason. Prior condonation is no more than an important
evidentiary fact to be weighed in arriving at the ultimate conclusion
Because it admittedly served Respondent 's own purpose and interest to do so,
Respondent condoned the misconduct of Lipuma and Koch from November 12, 1962,
to April 18, 1963. Respondent 's moral indignation as an employer , with respect to
the misconduct , is therefore shown to be a rather flexible thing that was adaptable
to the purpose that Respondent wished to serve or to attain. The asserted purpose
in November 1962 was stated to be the avoidance of further trouble, which presuma-
bly meant the avoidance of a resumption of the strike . Respondent was thus acting
in its own interest in not discharging Lipuma and Koch in November . 83 Later, in
April, when it suited Respondent 's interest to do so, it discharged the two employees.
On April 18, Respondent changed the status of the two employees from that of
laid-off employees to that of discharged employees . Stating Respondent 's position
most effectively , it would be that Respondent asserts that it discharged the men
because of their misconduct . It did this because, on April 18, it was faced with the
choice of reemploying them or of discharging them, since , in 1963, it had called back
other laid -off strikers and the winter shutdown was over, or almost over , a fact which
removed the "Lack of Work" reason given for the prior layoff. In November 1962,
on the other hand, Respondent presumably says it had another legitimate reason,
lack of work , for not putting the men to work; therefore , it did not have to invoke
their misconduct , particularly since a simple layoff obviated any "trouble " that might
have ensued if Lipuma and Koch had been discharged in November.
In appraising Respondent 's conduct of suiting its action and reasons to its pur-
pose, we discern a clear purpose of not putting Lipuma back to work. That much
is evident both in November and in April . Respondent would say, however, that the
motivation or reason for the foregoing was solely the misconduct of Lipuma. In
view of Respondent 's rather flexible attitude toward the misconduct , its motivation
is not as clear as it claims.
Since Respondent 's objective of not reemploying Lipuma (and Koch ) is not dis-
puted , we can properly turn our attention to motivation . The fact that the employ-
ees' misconduct would furnish a legitimate motive for the discharge does not estab-
lish that it was the motive or that it was the sole motive. There is substantial evi-
dence of another motive. Lipuma , in July 1962, had signed up the great majority of
the Laborers group into the Teamsters . As recounted in the prior case,84 Respond-
ent was aware of Lipuma 's prominent role in this activity . Respondent was strongly
opposed to the Teamsters activity . Coburn said that Respondent would never deal
with the Teamsters because it disliked the methods of Teamsters Representative Muel-
ler; Coburn informed Lipuma and another that if they got into the Teamsters there
would not be enough work for them; Respondent 's superintendent , in talking to an
employee during this period, referred to Lipuma as an "instigator " that he had to get
rid of; Coburn , in addressing the assembled employees, informed them that he would
not sign a contract with the Teamsters ; in the instant case, while Lipuma was picket-
ing across the railroad tracks leading to the plant , Respondent 's superintendent said
to him, "Sam , you are making it hard for yourself, you are not going to have a job."
We have also seen that, in the instant case , Respondent discriminatorily laid off
Lipuma, the leading striker , on November 12, as well as two other strikers. This
layoff was made according to no legitimate criteria but on the basis of the fact of
being strikers . There is not even a claim that the November layoff was based on
misconduct . In view of all the foregoing , including the discriminatory November
layoff, there is substantial basis for rejecting the conclusion that misconduct was the
motive and reason or the sole motive and reason for the April discharges of Lipuma
and Koch.
531 reject Respondent ' s assertion , in its brief , that Lipuma and Koch were laid off so
that they could secure unemployment compensation Neither Coburn ' s testimony nor
other evidence supports this statement . Coburn stated that the layoff was due to the
fact that Respondent had just endured a strike for several months and wished to avoid
further trouble . Obviously , when Respondent advised the employees in writing that they
were laid off for lack of work , it could not very well contest a claim for unemployment
compensation . Both consistency and the asserted desire to avoid "trouble" dictated Re-
spondent ' s failure to contest the unemployment claims. There is nothing in this record
that shows any discernible solicitude for Lipuma ' s welfare on Respondent 's part. In
fact , pronounced hostility is manifested , particularly as described in the prior case
84145 NLRB 973.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1041
Considering now what was said to Lipuma and Koch on April 18, 1963, when they
were discharged, we will appraise Coburn's testimony. Coburn told the men that
they were not being taken back "because of their illegal acts under the law, and he
[Lipuma] asked is that all, and I said there are other reasons." That, according to
Coburn, was the extent of the conversation and the men departed. As we have seen,
Coburn, at the hearing, listed the illegal acts to which he had reference when he
made the discharges, assertedly because of the illegal acts. It is apparent, therefore,
from the terminal conversation, as described by Coburn, that there were two rea-
sons or categories that caused the discharges. One category or reason was the
"illegal acts under the law," referring to the acts described by Coburn at the hear-
ing. The other category or reason for the discharges was the cryptic statement, in
reply to Lipuma's question whether the illegal acts were the only reasons, that "there
are other reasons." What these other reasons were was not explained to the dis-
chargees nor was it explained at the hearing. In the light of Respondent's pro-
nounced hostility to the organizing of the Laborers unit by the Teamsters and to
Lipuma as the leader in the successful Teamsters organizing, the only reasonable infer-
ence is that the "other reasons" were the aforesaid union activities of Lipuma. Con-
firmation, that such was the other area to which Coburn referred, is found in Lipuma's
and Koch's testimony that Coburn had also said to Lipuma, on April 18, "that if it
wasn't for me [Lipuma] that we [Respondent] wouldn't be in the mess we were in
now.,,
Since Respondent made the April 18 discharge of Lipuma for two reasons, one,
the acts of misconduct, and the other, the legitimate union activities, I am unable to
disentangle this mixed motivation on Respondent's part. Respondent is responsible
for this situation of mixed motivation and, since one of the reasons for discharge was
illegal, it is found that the discharge was in violation of Section 8 (a) (1) and (3) of
the Act.
Although Coburn, in making the discharge on April 18, made but one set of state-
ments, he was talking to Lipuma and I believe that Coburn's remarks were ad homi-
nem to Lipuma, and that the "other reasons" and the reference to responsibility for
the "mess" that the Company was in applied to Lipuma. Koch was a relatively new
employee, undistingiushed by any union activity other than the fact that he, with
others, had been a striker. Although, in view of Respondent's attitude, on Novem-
ber 12, toward the acts of misconduct, the question of the seriousness of the mis-
conduct in Respondent's eyes is not free from doubt, I am not persuaded that his
conclusion regarding mixed motivation in Lipuma's case is applicable to Koch. It is
therefore recommended that the complaint allegation regarding Koch be dismissed.
I am unable to agree with a statement in Respondent's brief, p. 44, that "It was
agreed that for the purpose of this proceeding, Koch and Lipuma [Waukesha employ-
ees] would not be considered unfair labor practice strikers." In the instant com-
plaint, it was alleged that the Waukesha strike was caused and prolonged by unfair
labor practices as found and concluded by the Trial Examiner in the Waukesha case.
At the instant hearing, I stated that I could not take official notice of another Trial
Examiner's findings:
you are going to let that stand or fall by what the Board does on excep-
tions .... I won't consider them unfair labor practice strikers because I could
only do that on the basis of the accepting of Trial Examiner Kessel's findings
which I can't do. So I will just have to consider it on what you present.
I observed that the prior Decision of a Trial Examiner and the exceptions were
before the Board and that case rested on its own two legs. The General Counsel
said that the reasons for the particular paragraph in the complaint was to preserve
his assertion that eventually the cause of the strike and the status of the strikers would
be res judicata as far as the Trial Examiner was concerned when the Board issued its
decision in the prior case. The General Counsel stated that he had no intention of
relitigating the Waukesha case and if the Board reversed the Trial Examiner in that
case, then I would have to treat the strikers as economic strikers, but if the Board
affirmed in the prior case then the strikers would be unfair labor practice strikers,
res judicata. The Board did affirm the Trial Examiner's findings in the prior case
and did so a few weeks after the close of the instant hearing. It is thus apparent
that all concerned were aware that the status of the strikers depended upon the out-
come of the prior case and that the Board has held in that case that the Waukesha
strikers were unfair labor practice strikers.
The inclusion of strikers Mundigler and Meyers in the complaint was accom-
plished at the hearing. Respondent opposes the inclusion in the complaint of these
two employees on the ground that no timely charge was filed naming these two indi-
79 6-02 7-6 6-v of 15 3-6 7
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viduals. A charge against Waukesha,85 filed on May 21, 1963, alleged that Respond-
ent had discriminated against Lipuma and Koch in violation of Section 8(a)( I) and'
(3) of the Act. As Respondent was aware, both Lipuma and Koch were laid-off
strikers on November 12 who had been denied reemployment and terminated on
April 18, 1963. Respondent was aware that Mundigler and Meyers were also laid'
off strikers on November 12. Further, Meyers' employment relationship with
Respondent had terminated on or about April 15, 1963, a fact known to Respondent.
Respondent also knew that it had not recalled laid off striker Mundigler in the spring
of 1963 and had determined not to do so although Respondent did recall other
strikers.
Since Meyers and Mundigler were terminated or unreinstated strikers, they were
in the same general class as Lipuma and Koch who had been named in the above-
mentioned charge. Section 10(b) simply requires that the complaint allege "unfair
labor practices" which are related to those alleged in the charge and which grow out
of them while the proceeding is pending before the Board 86 A charge is not a
pleading but serves only to initiate an investigation by the Board to determine
whether a complaint shall issue.87 Consequently, I conclude that the allegations
regarding Mundigler and Meyers are not foreclosed for procedural reasons.
Meyers had been hired by Waukesha in April 1962. He was in the Laborers group
and worked in the dryer, loading cars, cleaning out cars, and so forth. Meyers was
on strike, with the others, from July 20 to November 10, 1962. He was in the
group that applied for reinstatement on November 10 and 12 and he received a lay-
off slip.
On April 15, 1963, Superintendent Latimer telephoned Meyers at his home. After
considering the testimony of Meyers and Latimer, I find that Latimer told Meyers
that he had a temporary job open that would probably last about a few weeks or a-
month and asked Meyers if he was interested. Latimer also asked Meyers if he
could start the following morning. Meyers replied that it would be impossible to do
so since he would have to give his present employer notice that he intended to leave.
Meyers also said that his present job was steady year-round work and that he would
not quit for a temporary job as described by Latimer. Latimer wrote to Meyers on
April 17 confirming the conversation of April 15 "in which you were recalled to,
work at the Company. You said that you had a better job, and that you would not
return to our employ." Nothing further was heard from Meyers.
On April 16, 1963, Respondent hired a new employee, Brandt, as a laborer. On
April 22 Respondent hired a new employee, Hall, as a crusher operator. Tates was
hired as a crusher operator on May 20 and Parfitt was hired in the same laborers
group on May 20. These men in general performed the same type of laborers' work
as had Meyers. Parfitt quit on May 27, 1963; Tates and Brandt were laid off after
about 6 months but Hall was retained for work in the lime plant for the winter.
I can perceive as the only arguable basis for contending that Meyers was discrimi-
nated against, a theory that Latimer deliberately underplayed his job offer to Meyers
and overstressed the temporary nature of the work; also that the reporting date pro-
posed to Meyers was unreasonable and was discriminatorily motivated. I do not
agree that the General Counsel has sustained the burden of proof regarding Meyers
and dismissal of this allegation is recommended. The record indicates that the nature
of the business was such that when Respondent needed help, such as Meyers, it needed
them immediately. Moreover, Latimer might have assumed that the laid-off laborers
were either unemployed or in jobs that they would feel free to quit promptly. Respond-
ent did hire a man the day after Latimer spoke to Meyers. Respondent's work for
the laborers was in many respects seasonal and unpredictable as to duration. Meyers,
was working in a steady year-round job. There is no showing that it paid less or was
less desirable than working for Respondent or that Meyers would have quit his job
to return to Respondent if he knew that there was a possibility of 6 months' work or
longer. Respondent, as far as appears, did not give its laborers any guarantee as to
length of employment, and, if there had been no strike, there was no certainty that
Meyers, a recent employee hired in April 1962, would have worked steadily thereafter,
including the winter. Finally, I discern no particular union activity on Meyers' part.
to set him apart from other recalled strikers as an object for discrimination.
Case No. 13-CA-5595.
N.L.R.B. v. Fant Milling Company, 360 U.S. 301, 307.
87 Trsboro Cartage Corporation , 117 NLRB 775, 777.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1043
Mundigler was hired by Waukesha in June 1962. Superintendent Latimer, who
hired Mundigler in 1962, admitted that, prior to 1962, Mundigler had also worked
for the Company and had worked under Latimer as superintendent. Mundigler was
a striker in July-November 1962; he applied for reinstatement on November 10 and 12,
1962, and received a layoff slip.
During his employment in 1962, Mundigler performed general laborers' work. He
testified that he cleaned out stones from the crusher and other general cleanup and
maintenance work. At various times, when someone was sick, he would help out in
taking bags of lime off the conveyor, piling them in cars or trucks; he also performed
other laboring jobs as assigned. He had received no complaints about his work.
Waukesha did not recall Mundigler in the spring of 1963 as it had done with respect
to other laid-off employees. In September 1963 Mundigler went to the plant and
asked Latimer about employment. Latimer said that there was not enough work
and said that if anything opened up he would call Mundigler. Mundigler was never
recalled.
At the hearing, Latimer testified that he did not rehire Mundigler because he did
not consider him capable of handling the job that was open. That job, according
to Latimer, was taking bags of lime off the conveyor and stacking them in cars. When
Respondent's counsel, on direct examination, asked Latimer why he did not think
that Mundigler was capable of the above work, Latimer said that he did not think
that Mundigler had the "initiative" for such work and that Mundigler did not seem
to have the right attitude, "didn't want to put out the work that it would take to handle
the bags off a conveyor."
On cross-examination, Latimer said that Mundigler was all right at sweeping out
cars but that there was a big difference between that and taking 80-pound bags off
a conveyor and stacking them in boxcars. Further on, in the course of cross-exami-
nation, Latimer said that from Mundigler's "general physical appearance and demon-
stration of work," Latimer had concluded that Mundigler "just didn't move around
fast enough" to handle bags that sometimes came off the conveyor at a rapid rate.
Latimer said that in an emergency Mundigler might possibly have performed that
type of work prior to his layoff. According to Latimer, on April 16, 1962, a new
employee, Brandt, had been hired for the bag lifting work.
I conclude that Mundigler was a satisfactory employee to Respondent prior to the
strike. This is shown by the fact that he had worked for Respondent in past years
and there is no showing that his work was unsatisfactory at that time. He was indeed
hired again in June 1962. He performed general labor, manual work, and his work
was not criticized. While he did not work principally at taking bags off the conveyor
and loading them, he did perform such work on occasion as well as other manual
tasks. There is no doubt that the bag lifting work was heavy work and to perform
it regularly would require a substantial degree of physical strength. Mundigler did
not impress me as a big powerful man but Mundigler had worked in quarries as far
back as 1947. Work in the quarries is, in general, hard manual work in heat and
cold. These men, who have performed manual work through most of their working
lives, in my experience in Board cases, usually have a wiry toughness that belies their
external physical experience. Moreover, on direct examination, Latimer based his
opinion, on Mundigler's incapacity for the job, solely on Mundigler's mental attitude
and used the terms lack of "initiative" and lack of proper attitude "to put out the
work" to perform the bag lifting work. I was not impressed by this portion of the
testimony. Initiative and attitude toward such work would appear to be minimal
factors since it came down to no more than the fact that the man could or would
perform the job as required or he could not or would not so perform. As we have
seen, there appears to be nothing in Mundigler's past record to downgrade him on
these factors. Further, if Mundigler had been given the job, he could be terminated
promptly as soon as his incapability appeared, if it did. Later, on cross-examination,
Latimer cited physical factors as the reason for his judgment regarding Mundigler,
to wit, "general physical appearance" and not moving "around fast enough." My
views on the physical aspect have been previously stated. Accordingly, it is con-
cluded that, as an unfair labor practice striker, who was laid off on November 12,
1962, Mundigler was entitled to reemployment before Respondent hired new employ-
ees such as Brandt on April 16, 1963, and that the failure to hire Mundigler must be
regarded as discriminatory in violation of Section 8 (a) (1) and (3) of the Act.
A group of the union members, employees at Quality's Sussex quarry, had respected
their Union's ITO picket line at Sussex since its inception on June 29, 1962. The
Union held a meeting of the aforementioned employees on July 19, 1962 at which
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they all voted to strike Quality in support of their union's contract bargaining
demands.88 A sixth member of this group who was not present at the meeting ratified
the aforesaid decision when he learned about it. Thereafter, the members of the
aforementioned union group not only refrained from working but also engaged in
picketing.
It is my opinion that from June 29 to August 29, 1962, the aforementioned Quality
strikers were not engaged in an unfair labor practice strike. These employees quite
evidently were prepared to, and did, support the Union in the Union's bargaining
position with the Respondents. Initially, they supported the Union position when
it included the non-ITO contract demands as well as the ITO demands. When the
Union, beginning on August 29, 1962, and thereafter, limited its request for renewal
of negotiations to the original multiemployer unit, exclusive of the ITO aspect, and
Respondents refused to bargain, the Quality strikers continued to support the altered
contract demands of the Union. They continued to strike to aid the Union, their
bargaining representative, in its demands. Thus, when Respondents, on August 31
and thereafter, illegally refused to bargain, these strikers became and remained unfair
labor practice strikers.89
The six strikers unconditionally applied for reinstatement on July 5, 1963. They
went with Renz, a Teamsters representative, who presented a letter addressed to
Quality's president, Wolf. The letter requested reinstatement of the six and said that
the strike and picketing had ceased. Wolf was not present at the time but he answered
by letter of July 9, 1963. Wolf stated that ". . . We will not rehire Anthony Grgich
because of his deliberate destruction of Company property on the picket line." With
respect to the others, Wolf said that business had been affected by the strike and that
its present complement of employees was sufficient for the work on hand for the
balance of the season. He said that if the situation changed he would consider the
others for employment if available.
Although the record does not show the exact date, it does reflect that during the
strike and before July 5, 1963, Grgich was convicted of disorderly conduct and fined
$10. The conviction was for breaking a stone window sill that was in the back of a
truck going through the Quality picket line. The window sill was apparently a
Quality product valued about $10.
Of the six Quality strikers aforementioned, the complaint alleges discrimination
against three, Grgich, Norman Birzer, and Hartung. These men had greater senior-
ity, length of service, with the Company than any of the other strikers. Their
seniority also exceeded that of at least four employees who were either nonstrikers
or who had returned to work through the picket line early in the strike and who were
still employed on July 5, 1963.
With respect to Grgich, the General Counsel, in our opinion, has not sustained the
burden of proof. This employees was not rehired because of his conviction of mis-
conduct during the strike. Dismissal of the allegation is recommended.
Birzer and Hartung, when they applied for reinstatement, were employees with
the same rights as the other employees who had not picketed or had returned to work
through the picket line. The only distinction between the two groups during the
strike was that, while both were comprised of employees, the strikers were withhold-
ing their services as was their right under the Act. On July 5, 1963, when the strikers
applied for reinstatement, they were no longer withholding their services and as
unfair labor practice strikers they were entitled to their jobs. If, as was the case,
Quality's work required a smaller total of employees, the jobs in the Company should
be allocated to employees by some reasonable and nondiscriminatory standard. The
strikers, Birzer and Hartung, as of July 5, 1963, were in the same competitive area
as the nonstrikers. The latter could not be preferred on the ground that they had
88 In this hearing, both employers and employees at various times in their testimony
referred to the strike or strikers as the activity of picketing or the participation therein ;
they distinguished the foregoing from the different situations at the quarries where em-
ployees respected picket lines and did not work
w Two of the Quality strikers, Regner and Norman Birzer, had signed the decertifica-
tion petition for Supervisor Trapp on July 3, 1962 Since they subsequently voted, on
July 19, 1962, to strike Quality in support of the Teamsters and picketed thereafter, and
voluntarily continued payment of dues, I find these actions to be determinative
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1045
returned earlier through the picket line or because they did not strike. They are not
entitled to superior retention rights which, in effect, would be a type of preferred or
super seniority.
The record indicates that Quality did, in fact, accord the employees, referred to
above as nonstrikers, a preferred status. In the past, Quality operated under a con-
tract that contained a seniority clause governing layoffs. Although Wolf testified
that in the past he did not have occasion to make any layoffs he admitted that if the
situation arose he would probably be guided by seniority. I conclude that length
of service would be the normal criterion for layoffs at Quality. The assumption is
also warranted that the senior employee would have preference if he had experience
in and had on prior occasions satisfactorily performed the work that remained to
be performed. Respondent makes no contention that the nonstrikers, junior in length
of service to Birzer and Hartung, were superior performers or that Birzer and Har-
tung were not satisfactory employees. It is evident, therefore, that the criterion used
in not laying off junior nonstrikers on July 5, 1963 and, instead, retaining them in
preference to the senior strikers, was the fact that the retained employees were not
strikers but had worked during the strike. Such a standard, in our opinion, is dis-
criminatory. It discriminated against Birzer and Hartung solely on the ground that
they were strikers and constitutes a violation of Section 8(a)(3) of the Act90
Other Alleged Unfair Labor Practices
The complaint alleges that in July 1962 Cappelletti, one of the owners of Wislanco,
threatened to close its quarry rather than sign an agreement with Local 695. Employee
Stanley testified that Cappelletti showed him the Teamster proposal of July 27, 1962,
embracing contract terms for the ITO's. Cappelletti said that he could not operate
under such a contract and would have to close. Although there is no evidence about
the economic effect of the union proposal, I believe that Cappelletti was within his
rights in refusing and expressing a refusal to sign a contract for the ITO's. Under
the circumstances , no violation is found.
It is alleged that in July and August 1962 Cappelletti, and Halvorsen on July 31,
1962, interrogated employees concerning their union membership, activities, and
desires 91 and that Cappelletti in August 1962 promised benefits if employees assisted
decertification efforts or repudiated Local 695 and joined an independent union.
Stanley testified that in July 1962 Halvorsen asked him what he thought about join-
ing the Stone Cutters Union. On another occasion in this period, Cappelletti asked
Stanley what he thought about joining an independent union. On two occasions, in
June 1962 during contract negotiations, Cappelletti asked Stanley, on the day follow-
ing two meetings held by the Teamsters with their members, what had transpired
at each meeting. Cappelletti further told Stanley that he, Cappelletti, knew that two
votes had been taken at the second meeting. On another occasion, Cappelletti said
to Stanley that, with a different union than the Teamsters or with an independent
union, the employees could have the same contract and conditions as under the
Teamsters.92 I find on the foregoing evidence that Wislanco violated Section 8(a) (1)
of the Act.
BO Birzer had worked for Respondent since January 1956 ; he performed a variety of
tasks ; e.g., he was a pitman, a blockman, a bagger, and a load lugger driver. Hartung,
a bagger helper and quarry truckdriver, had been with the Company since March 1959.
Among the nonstrikers still working on July 5, 1963, were: Erdmann, hired in April 1962
and classified as a blockman ; Goerke, hired in 1960 and classified as a quarry truck-
driver ; Goode, hired in August 1959 and classified as a quarry truckdriver ; and It. Far-
row, hired in 1960 and classified as a dryer operator. Most of the work was semiskilled
laboring work and employees were moved from one task to another as needed Wilson,
another nonstriker, had been hired in September 1959. Because he was classified as
"welding and maintenance," I have not considered him in the competitive area with
Birzer and Hartung, although he possessed less seniority.
01 Neither Cappelletti nor Halvorsen testified at the hearing
12 Halvorsen initiated and saw to the circulation of a decertification petition among the
employees and Cappelletti, by questioning employees, verified that the employees had
signed the petition.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another allegation is that Cappelletti threatened to discontinue all dealings with
Local 695 as long as Mueller was in charge. It is found that this type of statement
was made with reference to the ITO proposal of Mueller and is not found to be
illegal under the circumstances.
The complaint allegation regarding the encouragement of, and participation in,
the private election agreement in November 1963 is sustained. While a private elec-
tion arrangement is not per se illegal, the situation in this case renders it an act of
interference in violation of Section 8(a)(1) of the Act. The Regional Director had
dismissed the WWU petition for certification in view of Respondents' violation of
their obligation to bargain with the Teamsters. The private election arrangement,
arrested only by a court injunction, was in derogation of Respondents' duty to bar-
gain with the Teamsters and constituted interferences with the rights of employees
under Section 8 (a) (1) of the Act.93
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondents described in section I, above, have a close,
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 thereof.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, it
will be recommended that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act
The customary action to remedy a refusal to bargain will be recommended. It is
also recommended that Respondent Waukesha offer to employees Rouse, Wenzel,
and Mundigler immediate reinstatement to their former or substantially equivalent
jobs and that Respondent Waukesha make whole the said Rouse and Wenzel for
loss of pay between November 12, 1962, and the date of the offer of reinstatement,
less any intermediate earnings; that Mundigler be made whole for loss of pay, less
intermediate earnings, for the period from April 16, 1963, to the date of the offer
of reinstatement.
With respect to employee Lipuma it is recommended that he be made whole for
any loss of pay, less intermediate earnings, from November 12, 1962, to the date
of the close of the instant hearing. I have found that Lipuma was discriminated
against in violation of Section 8(a)(1) and (3) of the Act on November 12, 1962,
and thereafter, including his termination on April 18, 1963. The April 18 termina-
tion was found to be attributed to a combination of Lipuma's misconduct during the
strike and his prominent union activity. Since one of the entangled factors in the
discharge was illegal, the discharge was held to be illegal.94
In view of the fact that the Act is intended to facilitate the peaceful adjustment of
problems in industrial relations between management and labor and provides machin-
ery for remedying proscribed conduct by peaceful means, the reinstatement of
Lipuma is not recommended in view of Lipuma's misconduct of tire slashing 35 Both
the remedial action recommended to be taken by Respondent and the limitation
regarding Lipuma that is recommended are, from the standpoint of responsibility,
attributable, respectively, to Respondent and Lipuma themselves.
It is recommended that Respondent, Quality, offer immediate reinstatement to
their former or substantially equivalent jobs to employees Birzer and Hartung and
make them whole for any loss of pay they may have incurred from July 5, 1963, to
the date of the offer of reinstatement, less interim earnings. All backpay recom-
mendations in this Decision contemplate that computations be made in accordance
with the principles established in F. W. Woolworth Company, 90 NLRB 289, with
03 Although with no particular reference to the above I note at this point that I have
granted the General Counsel's motion to correct the transcript of hearing in various
specified respects Respondents have concurred with the corrections of the General
Counsel.
ea The burden of disentanglement rested with the tortfeasor.
Di Other acts of Lipuma were less serious but in the aggregate they are not helpful to
his position.
QUALITY LIMESTONE PRODUCTS , INC., ETC. 1047
interest as prescribed in Isis Plumbing & Heating Co ., 138 NLRB 761 . Also recom-
mended is the placing of Quality strikers , Showers, Wagner, and Regner , on a prefer-
ential hiring list and the use of nondiscriminatory standards of hiring and retention
as between the aforesaid employees and any employees hired or to be hired since
July 5, 1963.
Three orders have been recommended . One, a general order directed to all
Respondents and two additional orders directed to Waukesha and Quality . In view
of the Section 8 (a) (1) language in the general order, it does not appear necessary
to have an additional separate Section 8(a)(1) order directed to Wislanco.
CONCLUSIONS OF LAW
1. Respondents , members of a multiemployer bargaining unit, are employers
engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Union was on June 25, 1962, and on August 29, 1962, and at all relevant
times thereafter the representative of a majority of Respondents ' employees for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act in
the following multiemployer appropriate unit:
All truckdrivers , load luggers , fork-truck operators , maintenance men, mechanics,
welders, blockmen , hardmen, crusher operators , sawyers, drillers , and helpers
employed by Quality, Halquist, Wislanco , Monacelli, Midwest , and Milwaukee,
together with all truckdrivers , load luggers , maintenance men, mechanics , and weld-
ers employed by Waukesha , in both cases exclusive of employees represented by the
Stone Cutters and the International Union of Operating Engineers , Local No. 139,
AFL-CIO, office and clerical personnel , sales, professional employees , and super-
visors as defined in the Act.
4. By failing and refusing since August 29 and October 2, 1962, to recognize and
bargain collectively with the aforesaid labor organization as the exclusive represen-
tative of the employees in the foregoing appropriate unit, the Respondents have
'engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(5) and ( 1) of the Act.
5. By discriminatorily laying off and refusing to reinstate employees Rouse,
Lipuma, and Wenzel on November 12, 1962, Respondent Waukesha engaged in
unfair labor practices within the meaning of Section 8 (a)(3) and ( 1) of the Act.
6. By discriminatorily discharging employee Lipuma on April 18, 1963, Respond-
ent Waukesha engaged in unfair labor practices within the meaning of Section 8(a)
(3) and ( 1) of the Act.
7. By discriminatorily refusing to reinstate employee Roswell Mundigler, on or
about April 16, 1963, Respondent Waukesha engaged in unfair labor practices within
the meaning of Section 8(a) (3) and ( 1) of the Act.
8. By discriminatorily refusing to reinstate and laying off employees Birzer and
Hartung on July 5, 1963 , Respondent Quality engaged in unfair labor practices
within the meaning of Section 8 ( a) (3) and ( 1) of the Act.
9. By interrogation , suggestion , and intrusion into the area of employee rights
under Section 7 of the Act , Respondent Wislanco interfered with rights of its employ-
ees and thereby engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
10. By participation and cooperation in arrangements for a private election, in
derogation of an obligation to bargain with the Teamsters Union, Respondents inter-
fered with the rights of their employees under Section 7 of the Act and thereby
.engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
'and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
I hereby recommend that:
A. Respondents , Quality, Waukesha , Halquist, Wislanco, Monacelli, Midwest, and
Milwaukee , their officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain as a group , upon request, with Drivers , Salesmen, Ware-
housemen , Milk Processors , Cannery, Dairy Employees and Helpers Local Union 695,
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the statutory bargaining representative of their employees in the fol-
lowing appropriate multiemployer unit for collective bargaining:
All truckdrivers, load luggers, fork-truck operators, maintenance men, mechan-
ics, welders, blockmen, hardmen, crusher operators, sawyers, drillers, and helpers
employed by Quality, Halquist, Wislanco, Monacelli, Midwest, and Milwaukee,
together with all truckdrivers, load luggers, maintenance men, mechanics, and
welders employed by Waukesha, in both cases exclusive of employees represented
by the Stone Cutters and the International Union of Operating Engineers, Local
No. 139, AFL-CIO, office and clerical personnel, sales, professional employees,
and supervisors as defined in the Act.
(b) Participating in any private election in derogation of their obligation to bar-
gain with the aforesaid Union.
(c) In any other manner interfering with, restraining, or coercing their employees
in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Bargain collectively as a group, upon request, with the aforesaid Union in
the aforedescribed unit, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post in their plants, copies of the attached notice marked "Appendix A." 96
Copies of said notice, to be furnished by the Regional Director for Region 13, shall,
after being signed by Respondent's representatives, be posted by Respondents imme-
diately upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, at their respective quarries, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered, defaced, or covered by
other material.
(c) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondents have taken to comply
herewith.97
B. Respondent, Quality, its officers, agents, successors, and assigns, shall:
1. Cease and desist from discouraging membership and activity in Drivers, Sales-
men, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Local
Union 695, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by laying off and refusing to reinstate or otherwise discriminat-
ing against employees because of their union activities.
2. Take the following affirmative action:
(a) Offer Norman Birzer and Ralph Hartung immediate and full reinstatement
to their former or substantially equivalent positions, without prejudices to their sen-
iority or other rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against them, in the manner set
forth in the section of the Trial Examiner's Decision entitled "The Remedy." Luverne
Showers, Daniel Wagner, and Donald Regner shall be placed on a preferential hiring
list in accordance with seniority or other nondiscriminatory standards and shall be
offered employment before any new persons are hired.
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
(c) Post at its quarries, copies of the attached notice marked "Appendix B." 98
Copies of said notice, to be furnished by the Regional Director for Region 13, shall,
after being signed by Respondent's representative, be posted by Respondent imme-
eu If this Recommended Order is adopted by the Board, the words "a Decision and Ordei"
shall be substituted for the words " the Recommended Order of a Trial Examiner" In the
notice. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order".
e7 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 13, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith".
08 See footnote 96, supra.
QUALITY LIMESTONE PRODUCTS, INC., ETC. 1049
diately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notice to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director, for Region 13, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith as
C. Respondent, Waukesha, its officers, agents, successors, and assigns, shall:
1. Cease and desist from discouraging membership and activity in Drivers, Sales-
men, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Local
Union 695, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by laying off and refusing to reinstate or otherwise discriminat-
ing against employees because of their union activities.
2. Take the following affirmative action:
(a) Offer Roger Rouse, Carl Wenzel, and Roswell Mundigler immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of pay they may have suffered by reason of the discrimination against them, in the
manner set forth in the section of the Trial Examiner's Decision entitled "The
Remedy." Make whole Sam Lipuma for any loss of pay he may have suffered from
November 12, 1962, to December 20, 1963, in the manner described in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
(c) Post in its quarry, copies of the attached notice marked "Appendix C." .1oo
Copies of said notice, to be furnished by the Regional Director for Region 13, shall,
after being signed by Respondent's representative, be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director, for Region 13, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith.101
00 See footnote 97, sups a
100 See footnote 96, supra.
101 See footnote 97, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively as a group, upon request, with Local 695, Inter-
national Brotherhood of Teamsters, as the bargaining representative of the fol-
lowing appropriate unit:
All truckdrivers, load luggers, fork-truck operators, maintenance men,
mechanics, welders, blockmen, hardmen, crusher operators, sawyers, driller,
and helpers employed by Quality, Halquist, Wislanco, Monacelli, Midwest,
and Milwaukee, together with all truckdrivers, load luggers, maintenance
men, mechanics, and welders employed by Waukesha, in both cases exclu-
sive of employees represented by the Stone Cutters and the International
Union of Operating Engineers, Local No. 139, AFL-CIO, office and cleri-
cal personnel, sales and professional employees, and supervisors as defined
in the Act.
If an understanding is reached with the above Union, we will embody such
understanding in a signed agreement.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interfere with our employees ' rights as guaranteed under the--
National Labor Relations Act.
QUALITY LIMESTONE PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
WAUKESHA LIME AND STONE CO., INCORPORATED,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
HALQUIST LANNON STONE COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
WISLANCO LANNON STONE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
MONACELLI LANNON STONE CO.,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
MIDWEST LANNON STONE CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
MILWAUKEE LANNON STONE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,.
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West`
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any-
question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor-
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership and activity in Local 695, Interna-
tional Brotherhood of Teamsters, by laying off and refusing to reinstate employ-
ees because of their union activities
WE WILL offer Norman Birzer and Ralph Hartung immediate and full rein-
statement to their former or substantially equivalent jobs, without prejudice
to their seniority or other rights. We will pay them the wages they may have-
lost by reason of the discrimination against them, less any interim earnings they
may have had.
WE WILL place Luverne Showers, Daniel Wagner, and Donald Regner on-
a preferential hiring list in accordance with seniority or other nondiscriminatory
standard and we will apply such list for the period since July 5, 1963.
QUALITY LIMESTONE PRODUCTS, INC.,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
WAREHOUSE UNION LOCAL 6, ETC. 1051
NOTE.-In the event any of the above-named employees are presently serving in
the Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX C
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership and activity in Local 695, Interna-
tional Brotherhood of Teamsters, by laying off and refusing to reinstate or other-
wise discriminating against employees because of their union activities.
WE WILL offer Roger Rouse, Carl Wenzel, and Roswell Mundigler immediate
and full reinstatement to their former or substantially equivalent jobs, without
prejudice to their seniority or other rights.
WE WILL pay them the wages they may have lost by reason of the discrimina-
tion against them, less any interim earnings they may have had.
WE WILL pay Sam Lipuma the wages he may have lost by reason of the dis-
crimination against him, less any interim earnings he may have had, for the
period from November 12, 1962, to December 20, 1963.
WAUKESHA LIME AND STONE CO., INCORPORATED,
Employer,
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event any of the above-named employees are presently serving in
the Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Warehouse Union Local 6, International Longshoremen's and
Warehousemen 's Union and Hershey Chocolate Corporation.
Case No. 20-CC-442. July 1,1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Henry S. Sahm issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease. and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
153 NLRB No. 86.