Tempco Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 336 (N.L.R.B. 1969)

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tempco Mfg. Co., Inc. and Metal Shop,
Warehousemen and Helpers Union , Local 970,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America . Case 18-CA-2666
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On April 17, 1969, Trial Examiner James T.
Barker issued his Decision 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 Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices.
Thereafter, the Charging Party filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the Respondent filed an answering brief.
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 this case to a
three-member panel.
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, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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
Recommended Order of the Trial Examiner, and
orders that the Respondent, Tempco Mfg. Co ., Inc.,
St. Paul, Minnesota , its officers, agents , successors,
and assigns , shall take the action set forth in the
Trial Examiner 's Recommended Order.
IT IS FURTHER ORDERED that those portions
of the complaint as to which no violations have
been found are hereby dismissed.
America, hereinafter called the Union.' The complaint, as
amended at the hearing , alleges violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended, hereinafter called the Act. The parties timely
filed briefs with me.
Upon consideration of the briefs and upon the record in
this case and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Tempco Mfg. Co., Inc., herein called Respondent, is,
and has been at all times material herein, a Minnesota
corporation having its principal place of business in St.
Paul, Minnesota , where it is engaged in the manufacture
of short run metal stampings.
During the 12-month period immediately preceding the
issuance of the complaint , herein, Respondent, in the
course and conduct of its business operations,
manufactured , sold, and shipped from its location in St.
Paul, Minnesota , finished products valued in excess of
$50,000, to points directly outside the State of Minnesota.
During the same calendar year Respondent purchased,
transferred and caused to be delivered to its St. Paul
location materials valued in excess of $50 ,000, directly
from points outside the State of Minnesota.
Upon these admitted facts, I find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Metal Shop, Warehousemen and Helpers Union, Local
970, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America , herein called the Union, is admitted to be a
labor organization within the meaning of Section 2(5) of
the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues involved in this proceeding are whether, (1)
Section 8(a)(1) of the Act was violated by reason of
Respondent's alleged interrogation , threats and offers of
benefits , and by its enforcement of a no-loitering rule; (2)
Section 8(a)(3) of the Act was violated by the layoff of
Alvin Bunk and/or his subsequent termination ; (3) Section
8(a)(5) of the Act was violated by reason of the
cancelation of a scheduled collective -bargaining meeting
and the unilateral grant , subsequent to the certification of
the Union , of selective and general wage increases to unit
employees; (4) whether the September 4 strike was an
unfair labor practice strike; and (5) whether Alvin Bunk
and other strikers are entitled to reinstatement in light of
the occurrence of certain strike misconduct.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T . BARKER , Trial Examiner : This matter was
heard at St . Paul, Minnesota , on January 6, 7, 8, 9, and
10, 1969, pursuant to a charge filed on August 27, 1968,
by Metal Shop , Warehousemen and Helpers Union, Local
970, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of
B. The Facts
1. Prefatory facts
a. Company personnel
Peter J. Cronen , Sr., is president of Respondent and his
sons, Peter Cronen, Jr., and Timothy Cronen are,
'Unless otherwise specifically noted, all dates herein refer to the calendar
year 1968
177 NLRB No. 12
TEMPCO MFG. CO., INC.
respectively, vice president and treasurer. Peter Cronen,
Jr., has the title of production manager and works in the
plant with rank-and-file employees. Ed Kadlec is general
superintendent and the parties stipulated his supervisory
status. Respondent operates one shift and employs an
average of 60 to 70 production workers.
b. Certification and bargaining
In the month of April some of Respondent's employees
contacted the Union for the purpose of inquiring into
possible representation by the Union. On April 24 several
employees met with representatives of the Union and
signed authorization cards. In addition, they were given
blank authorization cards to distribute to fellow
employees. On May 16, in a Board-conducted election the
majority of Respondent's production and maintenance
employees designated and selected the Union as their
collective-bargaining representative. On May 23, the
Regional Director certified the Union.
Pursuant to the certification, unit employees met with
Donald Liljedahl, president and business agent of the
Union, and a negotiating committee was selected.
Employees Mark Bradshaw , Robert Rolling , and Alvin
Bunk , the alleged discriminatee herein , were selected as
committee members. Additionally, Bunk was selected to
serve as steward in the plant.
Prior to commencing negotiations with the Respondent,
the negotiating committee met and drew up a proposal to
be submitted to the Company. The proposal was ratified
by the membership of the Union and a written copy of the
proposal was submitted to the Company.
Representatives of the Union and Company met in
collective-bargaining meetings on June 27, July 9, July 23,
August 7, September 12, October 1, and November 26.
All meetings, save the first, were attended by a
representative of the Federal Mediation and Conciliation
Service.
c. The supervisory status of Alvin Bunk
Alvin Bunk worked in Respondent's employ from
October 20, 1959, until August 30, 1968. He Nerved
successively as a pressman, press operator, setup man and
working foreman in the small press section of the press
department. Then, in early May, at Bunk 's request and
through mutual agreement of Bunk and supervision, Bunk
was transferred to the tool and die room in an admittedly
rank-and-file position.'
Prior to his transfer to the tool and die department,
Bunk had served in the position of working foreman in the
small press section for over 2 years. In the small press
section there were approximately 40 employees who
worked the same shift as did Bunk. However, in
fulfillment of his duties, Bunk reported to work I hour
earlier and worked l hour longer than did other
employees in the small press division. Bunk was hourly
paid.
As part of his duties during the regular shift hours of
small press operators, Bunk would allocate work to the
small press operators drawing upon his knowledge of the
'This transfer of assignment is not alleged as constituting a violation of
the Act
337
skills required to perform each assignment . In making an
allocation of work to a new employee, Bunk would work
at the machine with the operator instructing him in the
performance of his duties. It was Bunk 's duties to check
the work product of each operator for conformance to
quality, and if he deemed the product not to conform to
proper standards he would direct the operator to take the
part produced to the quality control inspector. Bunk had
no authority to discharge or hire employees or to
effectively recommend such action. Bunk was the recipient
of complaints of small press operators concerning their
assignments and other matters arising in connection with
the fulfillment of their work duties but served as a mere
conduit of these complaints and possessed no authority to
effectively adjust them. However, it was Bunk's
responsibility to maintain vigilence over the amount of
work produced by each press operator and to enforce
safety standards. Bunk was charged with responsibility to
reprimand employees for failure to conform to safety
work standards and he had the authority to affect a 1-day
suspension of employees for failure to comply with safety
regulations . It was also Bunk's responsibility to keep
employees busy and to prevent loitering. Bunk estimated
that during the normal shift hours of small press operators
he devoted 60 percent of his time to checking production,
20 percent to keeping employees fully occupied with work
duties and checking their use of all safety devices and the
balance of his time to physically checking the operative
qualities of safety devices.'
Upon the foregoing, I find that at all pertinent times
prior to his transfer to the tool and die department, Alvin
Bunk was a supervisor within the meaning of Section
2(11) of the Act in that he possessed authority to assign,
suspend, discipline and responsibly direct the work of
employees.'
d. Alvin Bunk requests transfer
On April 26 Alvin Bunk met with Peter Cronen, Jr.,
and Timothy Cronen in a small office in the production
portion of the plant. Bunk stated that he was dissatisfied
in his job as' foreman in the small press division and
indicated his interest in being transferred to a job which
would provide him an opportunity to do setup work. Bunk
added that he had been a leading participant in the
unionization effort and suggested that he had sufficient
influence upon employees to affect their decision with
respect to the question of union representation. The
Cronens informed Bunk that they did not wish to discuss
'These findings are based upon a composite of the credited testimony of
Peter Cronen , Jr., and that of Alvin Bupk, elicited principally from Bunk
on cross-examination and redirect examination on the first day of the
hearing . It is noteworthy that by the second day's hearing Bunk developed
a deprecative attitude concerning the scope of his authority to assign and
discipline employees , which was more restrictive than his earlier testimony,
even on redirect examination the first day. I am convinced that his earlier
testimony was the more accurate and credible.
'In light of this determination , incidents of alleged threats and
interrogation directed against Bunk by supervision during the period of
time covered by his tenure as a supervisor in the small press division, form
no basis for finding violations of Sec 8 (axl) of the Act, as alleged in the
complaint However, scrutiny has been given to the incidents for what light
they shed, if any , upon the existence of animus and discriminatory
motivation in the subsequent layoff and ultimate discharge of Alvin Bunk,
hereinafter considered.
Specifically , I credit Bunk 's testimony that on April 25 Cronen, Jr.,
approached him and asked him if he "was any way part of the Union."
However , contrary to the General Counsel, I find that no rank-and-file
employee overheard or participated in the conversation.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the question of his union leanings but wished to limit the
conversation to his request for transfer.
The following day, Cronen, Jr., approached Bunk and
asked Bunk his purpose in meeting with him and his
brother the previous day. Bunk stated that he was
uncertain of his position and was flexible in the matter of
unionization . The following Monday, during the course of
the workday, Bunk informed Cronen, Jr., that he was for
the Union "all the way." Cronen, Jr., responded, in
substance, that, although they had been friends for a long
time he no longer wished to be Bunk's friend because he
saw no reason for Bunk to have proceeded as he had done
and to have involved him in the union interplay. Cronen
added that while Bunk had his rights to be for or against
the Union he did not care for the variant manner in which
Bunk was "dealing with the union."
Within a matter of a few days Alvin Bunk was replaced
in his foreman's job by Larry Hopwood, a former
full-time employee of Respondent who had been working
for Respondent part time. Hopwood had been approached
by Cronen, Jr., on the evening following Bunk 's request
for transfer. Hopwood took under advisement the offer of
a foreman's position and gave his answer to Cronen, Jr.,
the following Monday.'
e. The status of Peter Cronen, Jr.
As an element of his overall duties as production
manager , Peter Cronen, Jr., worked in the plant in a close
functional relationship with rank-and-file employees.
Assisted by Ed Kadlec, general superintendent, an
admitted supervisor, and other line supervisors, Cronen,
Jr., worked regularly with rank-and-file employees
directing their work and overseeing production. He spent
approximately 85 percent of his workday in the toolroom
and storage crib. The nature and continuity of this work
relationship between Cronen, Jr., and employees served to
'The foregoing is based primarily upon the credited testimony of Peter
Cronen , Jr., and Timothy Cronen In all respects wherein Alvin Bunk's
testimony is at variance with the testimony of Timothy and Peter Cronen,
I do not credit it. Specifically I do not credit the testimony of Alvin Bunk
to the effect that on these occasions Cronen , Jr , inquired into Bunk's
involvement in the Union and asserted that he had information that Bunk
was an organizer Moreover , I reject Bunk's testimony concerning
Cronen's alleged statements that he would offer employees the moon and
recant upon these offers after the question of unionization had been settled;
that within 2 years all union supporters would be worked out of the plant;
that he would meet Bunk ' s wage or promotion demands as an inducement
to Bunk to withdraw his support of the Union or that he , Cronen , should
have replaced Bunk as foreman long ago because he was "too popular with
the working men" at the Company
I am convinced that Bunk approached supervision requesting a transfer
from his foreman 's position because he realized the restrictions upon his
union activities deriving from his position as a supervisor and wished to
gain alleviation from these restrictions by being transferred to a
rank-and-file job . Bunk made the request for transfer realizing his
deficiencies in setup work which limited his supervisory potential and with
a further realization that the transfer would be essentially a lateral one in
terms of compensation With respect to these series of incidents, as with
regard to other matters subsequently detailed , Bunk impressed me as a
witness with a strong tendency to rationalize when his interests in the
litigation were served thereby.
In this related regard , I do not credit the testimony of Alvin Bunk to the
effect that approximately a week poor to the May 16 election Cronen, Jr.,
approached him and stated that if Bunk would retreat from his position of
support for the Union he, Cronen, would grant Bunk full "amnesty" and
would present him with baseball tickets . Not only did Cronen, Jr , deny
this incident but, more significantly, in light of Cronen's earlier candid
statement to Bunk concerning his distain for Bunk 's two-sided approach to
the issue of unionization , I am convinced that Cronen , Jr , would not
attempt to approach Bunk on this score.
form a close acquaintanceship between Cronen, Jr., and
many of the employees.
2. The alleged unlawful conduct
a. The events of April 25
On April 25 union authorization cards were distributed
among the employees at the plant and many employees
executed cards. In the course of the distribution of the
cards and their execution the various ramifications of
unionization because a widespread topic of conversation
among the employees. During the workday of April 25
Peter Cronen, Jr., was a participant in many
conversations with employees concerning the meaning,
effect, pros and cons of unionization. Many employees
solicited answers from him concerning the topic of
unionization.
On the morning of April 25 Cronen, Jr., engaged in a
conversation with a group of employees in the crib area.
David Adams was present and participated in the
conversation. Adams testified concerning this conversation
as follows:
He was telling us how the Company was wealthy and
they were individually wealthy enough to close down the
shop for a year or more to withstand the strike or beat
the union . He told us he could cut out overtime and put
in a night shift ...
Subsequently, during the afternoon of April 25,
employee Mark Bradshaw and Peter Cronen, Jr., were
participants in a conversation wherein Cronen informed
Bradshaw that he was "through" whether or not the
Union got in. Bradshaw endeavored to respond to
Cronen' s statement but Cronen would not permit
Bradshaw to do so.
At the end of the workday on April 25, Peter Cronen,
Jr., came to the toolroom where employee Robert Rolling
was working, locked the door and stated to Rolling that
Mark Bradshaw was definitely going to be fired. Cronen
further stated that anyone that "was with the Union"
would be "worked out of the shop" if it took 2 years to
do so. Cronen then asked Rolling if he had joined the
Union and Rolling answered in the negative. Cronen then
inquired if Alvin Bunk had joined the Union and Rolling
answered that he did not know. Cronen then stated that
he was "thinking" of firing Bunk and instructed Rolling
to so inform Bunk . However, Cronen subsequently stated
during this interlude that he had changed his mind about
discharging Bunk and would give him a "second chance."
During the workday of April 25, Alvin Bunk overheard
Cronen, Jr., speaking with employee David Klemic.
Cronen stated to Klemic that it was "foolish" for a man
like Klemic "to be part of the union" because with the
Union he would "never get as far as he had."
In the meantime , during the workday of April 25, Ed
Kadlec, a supervisor, approached employee Mark
Bradshaw and urged him not to turn over to the Union
the authorization cards in his possession. Thereafter, later
in the day, Kadlec again conversed with Bradshaw and
concerning this conversation Bradshaw testified as follows:
Later on he came back and talked to me alone, telling
me the disadvantages of the union. They had tried it
before. They would quit their overtime, they would put
on a second shift and things like this.
TEMPCO MFG. CO., INC. 339
b. Other preelection conversations
On May 10, Peter Cronen, Jr., presented employee
Gary Battleson with a slip of paper upon which was
recorded information informing Battleson of his eligibility
for a 15-cent raise. As Cronen presented the slip of paper
to Battleson, Cronen stated that if the Union "came in"
the raise was not "worth the paper it was written."'
c. Postelection conversations
On May 17, the day following the Board election, Peter
Cronen, Jr., informed David Adams that if he was against
the Union he should take all the company time he desired
to walk around and converse with other employees and
talk them out of the Union.
Approximately a week later Cronen, Jr., spoke with
employee Richard Uherka. Cronen, Jr., approached
Uherka in the plant and said , "You know if you stick
with the company you can get further ahead than by going
to the union."
During the month of June Cronen, Jr., spoke on a
second occasion with employee Richard Uherka and
emphasized the advantage of Uherka's being on the
"Company's side instead of with the Union." Cronen
further asserted that the Union did not have anything
Uherka wanted and that all the employees would get out
of the Union would be "paying of dues."
In mid-June Cronen, Jr., approached David Adams in
the pressroom and conversed with him. During the course
of the conversation Cronen observed that in the event of a
strike the Company could haul parts out in the trunks of
automobiles in order to receive income and could thus
withstand a strike. Cronen recounted to Adams that
approximately 10 years earlier employees had struck the
Company and had remained on strike for approximately
18 months. Cronen asserted that the Company had beaten
the strike. The conversation then turned to the issue of
Adams' resignation from the Union. On this subject
Cronen stated that if Adams would resign from the Union
he would take Adams and his wife to a baseball game and
buy steak dinners at the Stadium Club. Cronen further
offered to promote Adams to the die room with a raise in
pay. Cronen observed, in this connection , that if Adams
was a union member and went on strike and if Adams
were to cross the picket line the Union could fine him but
that "a raise could make up for the fine."
In late June, Peter Cronen, Jr., approached employee
Fred Wormsbaker in the deburring room of the plant and
stated that he had conversed with his father and that the
Company would not sign a collective-bargaining
agreement. The conversation terminated on this note and
Cronen left the deburring room but after a few minutes
returned. Upon Cronen's return employee Dennis Knorr
asked Cronen if in the event of a strike the Company
would hire employees back. Cronen asnwered that in the
event of a strike the employees "would go out for a long
time" and he further stated that the Company would not
hire the employees back. At this point Wormsbaker, who
`I do not credit the testimony of Alvin Bunk concerning an incident in
early May wherein he, Cronen, Jr., employee Don Faul and employee
Gerry Lansick discussed a petition which the latter two employees sought
to circulate in the plant. Bunk heard only a portion of the conversation
relating to the petition and I am convinced that the testimony of Cronen,
Jr , more accurately reflects the setting and content of the entire incident
than does that of Bunk . Nor do I credit Bunk 's testimony that soon after
this incident, but on the same day , he was informed of his transfer to the
die room from his job as a working foreman in the machine shop.
had suffered a physical disability from polio, observed
that the Company would have to hire him back. Cronen
answered in the negative but Wormsbaker asserted that he
was protected by the "discrimination clause." Cronen
answered that this did not apply to Wormsbaker and left
the deburring room.
Soon after Cronen had departed employee Mike Olson
came in to the deburring room and spoke with
Wormsbaker. Olson informed Wormsbaker that because
of Wormsbaker's polio he, Olson, would not have to hire
him, the Union would not have to represent him and if the
Company became a union shop Cronen would not have to
hire him. Olson left and Cronen entered the deburring
room.
Cronen stated to Wormsbaker that if the employees
went on strike they would be out a long time and that the
Company would not have to rehire any of them. The
conversation turned again to the "discrimination clause"
and Cronen reasserted that he would not have to hire
Wormsbaker back in the event of a strike. Cronen left
and Olson again returned and commenced to speak with
Wormsbaker.
Olson again asserted that because of Wormsbaker's
polio the Company would not have to hire him and
reiterated, in substance, what he had said earlier. Prior to
leaving, Olson asked Wormsbaker if he would want a
letter of resignation prepared for him. Wormsbaker
answered that he would and instructed Olson to proceed
to have it prepared.
During the first week of August Cronen, Jr., spoke with
Richard Rolling and discussed the collective-bargaining
contract and the concept of having a "split shop." Cronen
stated that the employees should endeavor to get a 10-year
contract. Rolling answered that this was not possible and
Cronen stated that he knew more about unions than
Rolling. The conversation turned to Alvin Bunk and
Cronen stated that he was not a good foreman and could
not perform well as a press operator. Cronen observed
that Rolling was doing a good job compared with Bunk
on the presses and that he was worth 50 cents an hour
more than Bunk.
In mid-August, Cronen, Jr., called Battleson to a back
room in the plant and asserted that the Company could
not afford a union . Cronen stated that he did not know
whether or not Battleson was for the Union, but if the
employees went on strike he was going to build the
Company from the bottom up and start over again.
Cronen observed that he would like to have Battleson with
him when he started over, and it made no difference
whether or not he had joined the Union.'
'The foregoing findings are based principally upon the testimony of the
employees who were found to have been the participants in the
conversations as detailed above.
I have carefully evaluated the testimony of Peter Cronen , Jr., concerning
conversations with employees and credit it to the extent of finding that by
reason of his close working relationship with rank -and-file employees he
was frequently the recipient of inquiries concerning unionization and was
often drawn into conversations about the effect and consequences of
unionization . These conversations covered a penod of 4 month 's time and,
in the main , testimony concerning them emanated from leading union
proponents among the employees I do not discount their advocacy of the
union cause nor deem them to be entirely dispassionate or disinterested
witnesses They patently were not. However , neither was Peter Cronen, Jr.,
found to be and his interest in the outcome of this litigation is similarly
patent. It is entirely likely that over the course of the 4 months
encompassed by these conversations Cronen , Jr , often avoided threats and
promises and spoke only in terms of opinion and economic prediction.
However , the testimony of the employee witnesses with respect to these
specific incidents found to have transpired was intrinsica lly believable and
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Postelection resignations from the Union
The week following the Board election , the Union held
a meeting which was attended by many of the employees
of Respondent . Mike Olson , a tool-and-die maker,
attended the meeting . Olson had been in the employ of
Respondent for over 4 years and had attended all previous
union meeting during the organizational period. At the
meeting questions were raised with respect to the
possibility of a strike in order to enforce the Union's
collective-bargaining demands . Olson testified that the
answers he received from the union leadership,
particularly Liljedahl, were unsatisfactory to him and, as a
consequence , he made the determination that the Union
was not going to be the answer to the problems of the
employees . He testified further that on the following day,
May 23, he circulated among several employees whom he
believed shared his feelings concerning the Union a
document entitled shop petition for modified union which
had been prepared by an office employee . Typewritten at
the top of the petition was the following:
READ EXPLANATION OF ABOVE AND SIGN
BELOW:
EXPLANATION: A modified union is whereas the
older employees are not forced to join the union rather
than a closed shop union where everyone is forced to
join.
Olson further testified that the first 10 or 11 signatures
on the document were those of employees whom he
contacted as a result of his belief that they shared his own
views concerning the Union . Thereafter , the petition hung
on a nail behind Olson ' s workbench . Olson testified that
all signatures subsequent to the 10th or 11th signature
were affixed to the petition by employees who approached
his work station where the petition was posted , read the
petition and affixed their signature . He testified that no
words were spoken concerning the petition.'
Timothy Cronen testified that at approximately this
point in time he had learned that an employee desired to
resign from the Union and had approached Alvin Bunk
concerning the question . The employee had been informed
by Bunk that he could not resign from the Union . Cronen
testified that upon learning of this he contacted his
attorney and was informed that resignations could be
accomplished by submitting a letter of resignation to the
Union.
Cronen further testified that as a result of this
instruction he posted a notice on the company bulletin
board to the effect that if an employee desired to join the
Union he should contact either employee Bunk, Bradshaw
or Rolling . The notice continued that, if on the other
hand, an employee desired not to join the Union they
were not required to do so and could "stay out."
Additionally , the notice contained an instruction that if
employees wanted to resign from the Union they had to
send a letter to the Union informing the Union of this
desire.
gains added credence from other events , subsequently found to have
transpired , which establish the atmosphere created by reason of the union
effort Moreover, although Peter Cronen , Jr., denies some of the remarks
attributed to him by the employees , his testimony with respect to many of
these conversations was equivocal , evasive and frequently unresponsive In
sum, with respect to this phase of the case , the testimony of Peter Cronen,
Jr , was generally unconvincing
'The posting of this petition and these acts of Mike Olson arc not
alleged as violative of the Act.
Timothy Cronen additionally testified that after posting
the notice employee Lewis Stumpf brought employee
Edwin Hohn to the office and informed him that Hohn
desired to resign from the Union . Cronen informed Hohn
that he would have to send a letter to that effect and upon
being advised by Hohn that he did not understand how to
accomplish this Cronen prepared for him a typewritten
form letter for his use.
During the period June 21 through 24, nine employees
submitted letter of resignation to the Union. The initial
letter of resignation was submitted by employee Edwin
Hohn and was dated June 21. Thereafter, during the 3-day
period June 24 through 26 eight other employees
submitted letters of resignation . Subsequently, on July 1
employee James Evenson submitted a letter of
resignation.9
The employees who resigned from the Union
approached Olson or Stumpf for assistance in affecting
their resignation . Nine typewritten letters of resignation
were submitted to the Union." The typewritten letters
were prepared in the company office and the envelopes
were prestamped in the office." Upon being approached
by an employee concerning resignation from the Union,
Olson and Stumpf answered questions posed to them by
the employee and upon being requested to do so they
instructed the employee to return later stating that they
would secure the necessary letter of resignation."
e. The selective wage increases
In May 1967, Respondent posted on its bulletin board a
pay scale of prevailing hourly rates based on job
classification and length of service . However, in practice,
Respondent paid wages above scale to employees whose
production and overall job performance warranted higher
rates ." No written policy statement contained criteria for
granting increases above scale was ever formulated or
posted by the Company.
After the Union's certification on May 23, and prior to
October 1, the Company granted approximately 21 wage
increases above scale. The Company did not consult with
the Union prior to granting these increases."
f. Restriction on use of parking lot
In the rear of Respondent ' s plant is maintained a
parking lot for the use of rank-and-file employees. On the
'Employees submitting letters of resignation from the Union were Edwin
Hohn , James Evenson , Fred Wormsbaker, David Adams, Richard Uherka,
Dennis Knorr , Thomas Seaton , Terry Seaton , Leonard Spears, and Donald
Lhotka.
"The letter of resignation submitted by James Evenson, dated July 1,
was handwritten.
"The credited testimony of Mike Olson establishes the manner of
preparation of the letters and envelopes.
"The testimony of employees Edwin Hohn , David Adams, Richard
Uherka, Leonard Spears , and Fred Wormsbaker , although containing
minor variations not of substance concerning the technique of preparation
and execution of their respective letters of resignation , establishes all of the
foregoing.
"The testimony of Timothy Cronen establishes this as does a
comparison of company pay records with the rates contained in the posted
wage scale
"Including among the increases granted were those of Richard Uherka
on June I I and to Mark Bradshaw on June 20 The testimony of Timothy
Cronen, which I credit with respect to both raises - specifically rejecting
all conflicting testimony of Richard Uherka and Mark Bradshaw with
respect thereto - reveals that both raises had the effect of crediting the
recipient for time spent in Military Service and thus to bring their
respective wage levels to normal scale
TEMPCO MFG. CO., INC. 341
other hand, in front of the plant, is a parking lot for
management and office employees and for the use of
salesmen, tradesmen and visitors. During the first 6
months of 1968 there occurred some instances of damage
and vandalism to automobiles parked on the employee
parking lot and management had been the recipient of
such reports. Additionally, materials stored on the parking
lot outside of the plant had been stolen and the plant had
been burglarized on two occasions.
In mid-summer 1968 a meeting was held which was
attended by Peter Cronen, Jr., Superintendent Ed Kadlec
and several employees including Lewis Stumf and Mike
Olson. The meeting was held in an auxiliary office in the
plant and transpired the day following some vandalism
perpetrated against the automobile of employee Wayne
Jones who also attended the meeting. A general discussion
occurred concerning vandalism and it was agreed that a
notice should be posted forbidding loitering in the parking
lot. Some discussion also transpired at that meeting
concerning the use of the employee parking lot by
employees who desired to eat their lunch in their
automobiles on the parking lot.
As a consequence of this meeting, within an hour after
the meeting's termination, a notice was posted on a
bulletin board in the plant to the effect that because of
vandalism and damage to automobiles employees could
not loiter in the employee parking lot and that any
employee wishing to eat his lunch in his automobile must
do so on the front parking lot or leave the premises
completely. is
The posted rule placed no limitations upon the freedom
of employees to discuss matters on their own in any
portion of the plant building. The posted rule contained
no time specification for departing the plant premises at
the conclusion of a work shift."
In early August, Alvin Bunk approached employee
James Huston in the parking lot soon after the
termination of Huston's shift at 5:30 p.m., in an effort to
have him sign the union shop petition which he was
circulating." Bunk was accompanied by employees Mike
Bradshaw and Robert Rolling. Huston declined to sign the
petition. They had conversed for 2 or 3 minutes when
Peter Cronen, Jr., came out to the parking lot and
approached the group of employees. As he approached,
Bunk and Huston were seated in Huston's car discussing
the petition. As Cronen reached the car he inquired of
Huston as to what was transpiring. Huston stated that
Bunk was endeavoring to have him sign a petition. Huston
added that he had previously worked at other plants which
had become unionized, that he had been terminated and
he had no intention of executing this petition. Thereupon
Cronen asserted that Huston would be better off in the
plant without a union shop. Bunk answered that the
"The Company provided a lunchroom for employees and it was
permissible for employees to leave the plant premises and to park along
the shoulder of a highway which ran very proximate to the plant.
"The foregoing is based principally upon the credited testimony of
employee Ray Kadlec and Peter Cronen, Jr. Upon an analysis of the
record testimony concerning this incident , I am convinced that Cronen and
not Kadlec was the more accurate in placing the time of the meeting and
the posting of the notice which resulted . In connection with the foregoing I
credit also the testimony of James Huston , Lawrence Hopwood and
Timothy Cronen to the effect that a notice was posted and find the
testimony of Alvin Bunk and Robert Rolling to the effect that they were
unaware of any written notice insufficient to overcome this affirmative
testimony.
Union had no authority to hire or terminate employees.
Thereafter, there transpired a lengthy discussion of the
advantage and disadvantage of unionization. Bunk
asserted that the Company was going to have a union
shop whether it desired it or not. Cronen challenged this
and Bunk stated that in support of their demands the
employees would strike and that a picket line would be
established which would prevent employees from working
and the Company from receiving deliveries. This focused
the conversation upon the length of the strike and in this
connection Cronen stated, in essence, that the Cronen
family, particularly his father, had sufficient financial
substance to withstand a long strike. The conversation
became rather animated and Huston stated that in the
event of a strike he would cross the picket line and work.
To underscore his determination in this regard he reached
into the glove compartment of his automobile and
withdrew a gun and told Bunk that he was going to work,
strike or no strike.
At this point in the conversation Cronen told Bunk to
cease loitering in the parking lot and bothering employees
about the Union. He instructed Bunk and the other
employees to leave the parking lot.'5
Alvin Bunk testified that approximately a week and a
half prior to this incident Cronen had come to the parking
lot and instructed Bunk that he had 5 minutes to get out
of the parking lot.
g. The bulletin board incident
Alvin Bunk testified that on the day of the parking lot
incident involving Huston, Cronen and himself, he had
been told by Cronen, Jr., that the Union would not
support the employees and that he would cease "fighting
the Union" if Bunk could get a letter from the Union on
the letterhead of the Union stating affirmatively that the
Union would support the employees.
Alvin Bunk was the recipient of a letter from Earl H.
Drange, secretary-treasurer of the Union, dated August
15, on the letterhead of the Union. The letter read as
follows:
This Local Union is prepared to support to the hilt the
endeavors of the people who are members of Local 970
at Tempco Manufacturing Company. Your employer,
like many others, is taking an extremely difficult and
anti-labor position during these negotiations. This Local
Union, on the other hand, is doing everything short of a
strike to attempt to convince him to negotiate with your
Committee and this Local Union in good faith.
Should his defiant attitude leave you with the necessity
of economic action, that is a strike, each and every
member will receive the full support from the
"As considered below, this petition had been furnished Bunk by the
Union as an outgrowth of developments at the August 7 bargaining session
between the parties
'The foregoing is predicated upon a synthesis of the testimony of Peter
Cronen, Jr , James Huston , and Alvin Bunk . I have considered also the
testimony of Mike Bradshaw and Robert Rolling concerning this incident.
The testimony of Alvin Bunk and that of Peter Crimea, Jr., to a lesser
degree, tends to highlight those portions of the conversation which redound
most favorably to their personal interests in the outcome of this case
However , I consider the testimony of Cronen with respect to this incident
more plausible than that of Bunk . Weighing Cronen's testimony in
connection with the thoroughly credible testimony of James Huston
concerning this conversation I am of the opinion that the foregoing
findings concerning the substance of the incident to be an accurate
chronology and evolution of the conversation that transpired over a period
of approximately 45 minutes.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, the two Joint
Councils in this area, as well as this Local Union. This
support is promised in the form of financial, moral, and
any other support necessary to bring about the
successful conclusion of these negotiations.
Do not hesitate to call this Local Union office should
any problem arise that you feel needs our help.
On August 19, Bunk posted the letter which he had
received from the Union on a window-bulletin board near
the employee timeclock." The letter remained on the
bulletin board for approximately 1 hour and 30 minutes
when it was removed by Peter Cronen, Jr.
Cronen testified credibly that he first observed the letter
posted on the bulletin board at approximately 7 a.m. He
looked at the letter and concluded that it conformed to
standards which had been agreed upon for the posting of
letters from the Union to employees." Cronen returned
approximately an hour later and reread the notice and
concluded that it contained derogatory remarks
concerning Peter Cronen, Sr., and the Company's
negotiations with the Union. He testified credibly that he
was going to remove the notice when he was approached
by Ed Kadlec who counseled him not to do so. However,
Cronen reread the letter. After Cronen and Kadlec
consulted together concerning the letter Cronen decided to
remove the letter from the bulletin board and to take it to
the office for his father's study and consideration. He
removed the letter and while en route to the office he was
intercepted by Alvin Bunk . Bunk protested the removal of
the letter and threatened a strike. Cronen answered that
the letter was being removed so that Peter Cronen, Sr.,
could make a decision with respect to it. Cronen took the
union notice to the company office and returned to work
in the toolcrib.
In the meantime, without the knowledge of Cronen, Jr.,
Bunk removed from the bulletin board a company notice
over the signature of Peter J. Cronen, Sr., captioned
"Questions - Answers pertaining to the Union." In the
notice were posed nine questions which were briefly or
succinctly answered. Soon thereafter Cronen, Jr., was
approached by Ed Kadlec who informed Cronen that
Bunk had removed a company notice from the bulletin
board. Cronen told Kadlec to follow him and he also
summoned employee Stumpf and Olson. As the group
approached Bunk , Ed Kadlec informed Bunk that he
would have to send him home for the day. Bunk was
informed that he was being taken off the clock for the rest
of the day and that he was not being discharged. Bunk
raised some question as to whether he would be
compensated for the day's work and Cronen interjected
that he would be paid until Cronen, Sr., made a decision
"on this matter." Cronen, Jr., informed Bunk that if he
'The evidence of record establishes that the Company maintains a
regular bulletin board in the employee lunchroom as well as a window-type
bulletin board near the timeclock . The latter is recumngly used by both
the Company and the employees for postings of general interest to the
employees.
"The credited testimony of Peter Cronen, Jr., establishes that during the
postelection period the bulletin board became a device for the posting of
all manner of ad hoc pronouncements and propaganda, favorable and
adverse , concerning union matters . He testified credibly that during this
postelection period company notices were disappearing from the bulletin
board . As a consequence of this , a meeting was held which was attended
by Alvin Bunk and Robert Rolling as well as Cronen and Ed Kadlec. At
this meeting it was decided that material from the Union would be posted
on the company bulletin boards if it was on the letterhead of the Union,
addressed to the employees generally and contained no derogatory
statements.
desired to know his job status he should check with
Cronen, Sr., Bunk answered that he was going to the
Union."
h. Bunk returns to the Plant
Upon being told that he was suspended for the balance
of the day, Bunk left the plant in the automobile of
Robert Rolling . He returned to the plant in the forenoon
and after speaking briefly to Rolling and employee
Soderstrom he tore down from the bulletin board another
notice. This notice bore the stamped name of Peter
Cronen, Sr., and provided that anybody tearing down
signs would be liable for discharge. Bunk returned to the
plant again during or soon after the 3 p.m. break. Peter
Cronen, Jr., became aware of Bunk 's presence on the
premises when he was informed of this by Lawrence
Hopwood, Bunk ' s successor as foreman of the small press
division , and by Hopwood' s assistant , Robert Noll.
According to the credited testimony of Hopwood, at
approximately 3:15 p.m., on the afternoon of August 19,
he observed Bunk on the employee parking lot. He
consulted with Noll and they together went to Cronen and
told him of Bunk 's presence. Cronen, Noll and Hopwood
went together to the parking lot where Bunk was speaking
with employee Edwin Mattila, a forklift operator.
According to the credited testimony of Mattila, Bunk had
approached him while he was in the process of operating a
forklift in the parking lot area and had urged him to "sign
up" for the Union.22
Cronen approached Bunk and asked Bunk what he was
doing. Bunk informed him that he was asking employees
if they desired to sign the union petition. Cronen answered
that the employees were on working time and requested
Bunk to leave the premises. Bunk asserted that he would
not leave and Cronen answered that "Mr. Cronen" did
not want any loitering on the parking lot. Bunk answered,
"Who is Mr. Cronen?" Cronen, Jr., repeated his
statement and Bunk again answered, "Who is Mr.
Cronen?" Bunk augmented this rhetorical inquiry with an
obscenity directed towards Cronen, Jr. Bunk said that he
would leave when Cronen, Jr., left. Thereupon Cronen
instructed Mattila, Hopwood and Noll to return to work.
Cronen also left the parking lot and returned to work.
Approximately 20 minutes later Cronen was informed
by Hopwood that Bunk had not left the premises and was
still in the parking lot. Cronen returned to the parking lot
and there observed Bunk speaking with employee Uherka,
Rolling , and Soderstrom. Cronen, Jr., spoke to the group
of employees asserting that "Mr. Cronen" did not want
any loitering in the parking lot and asked them to leave as
fast as they possibly could. Thereupon Cronen returned to
the plant.
Approximately 20 minutes later Cronen was again
informed by Hopwood that the employees had not left the
parking lot. Cronen went out to the parking lot and said,
"Mr. Cronen doesn 't want any loitering in the parking lot,
and would you please leave." Employee Uherka was in his
truck. After Cronen had spoken Uherka accelerated
causing the truck wheels to spin . As he progressed
through the parking lot the parked automobiles were
"The foregoing is based upon a composite of the testimony of Peter
Cronen, Jr., Alvin Bunk , and Mike Olson concerning this incident. I rely
principally upon the testimony of Cronen for I consider his version of the
incident more reliable than the more abreviated account of Bunk.
"The document which Bunk desired Mattila to sign was the union
petition which Bunk was at that time circulating among the employees.
TEMPCO MFG. CO., INC. 343
sprayed with gravel which covered the parking lot. Upon
observing this, Cronen vowed to the group of employees
gathered that he was not going to come out again and
stated that he was going to the office and have his brother
call the police. He stated that he wanted the employees to
leave the parking lot before the police arrived so that
there would be no trouble."
i. The discharge of Alvin Bunk
On August 30, the Company directed a letter to Alvin
Bunk which read as follows:
I have been authorized to inform you that because of
your actions of August 20, 1968, your services with the
company will be terminated effective August 30th. It
has been reported that you posted on the company
bulletin board a personal letter addressed to you
without permission or approval of the company. When
that fact came to the attention of one of your
supervisors, Peter Cronen, Jr., you were instructed to
remove the document but you refused to do so. When
the letter was taken from the board, you became so
enraged that you tore all the company notices from the
bulletin board. This conduct took place in the presence
of other employees of the company.
You were then told to leave the premises immediately.
You went to the parking lot, stopped other employees
who were still on duty, engaged these employees in
conversations and solicitations for an extended period of
time. Your supervisor again asked you to leave. You
once more refused to follow instructions and, in
addition, you used profanity and all forms of foul
language against you supervisor. You finally left the
premises only after being told that the police had been
called.
This incident has been reviewed by management and
because of your insubordination and other misconduct,
it has been determined that a discharge is the only
appropriate remedy under the circumstances. The
company can not permit conduct of this kind to
continue. Rules must be followed and the position of
supervisor must be respected.
The letter was drafted by the Company's legal counsel
upon information supplied to him by Timothy Cronen.
j. The early collective-bargaining negotiations
The parties conducted their first collective- bargaining
meeting on June 27. Present were Peter Cronen, Sr., his
sons Timothy and Peter Cronen, Jr., and Joseph
Hamilton, an attorney, who served as a principal
"The foregoing is predicated upon the credited testimony of Peter
Cronen , Jr., as supported in some aspects but the testimony of Lawrence
Hopwood and Edwin Mattila . I do not credit Alvin Bunk ' s version of this
series of incidents Specifically I do not credit Bunk ' s inferential assertion
that all employees to whom he spoke were on breaktime for upon
cross-examination he conceded that employee Mattila was in the process of
operating a forklift when he spoke with him. Moreover , I do not credit the
implications of Bunk ' s testimony to the effect that during his series of
sojourns from the plant to the parking lot to instruct Bunk to leave Cronen
did not in specific terms order him to leave the premises . Bunk conceded
that during the last exchange between him and Cronen , Cronen informed
him that he was going to call the police , and Bunk further conceded that
there was a heated exchange of words between them . Despite Bunk's
reticence and his convenient lapse of memory concerning the various
details of these conversations it is most unlikely that Cronen would have
refrained from directly ordering Bunk from the property in light of his
continued presence there.
negotiator on behalf of the Respondent during the course
of the collective-bargaining meetings which transpired.
Present for the Union were Donald Liljedahl, president
and business agent of the Union, and members of the
employee bargaining committee selected by the
membership of the Union. Little of a substantive nature
was accomplished at the first meeting which was marked
by exchange of recriminations between Peter Cronen, Sr.,
and Donald Liljedahl at the outset of the meeting. This
arose from Cronen's inferences that the Union had been
responsible for rather extensive window breakage which
had transpired at the plant the previous night. Liljedahl
denied union complacity. Cronen characterized the
Teamster leadership as being comprised of racketeers and
Liljedahl responded by directing some obscene remarks
toward Cronen. Cronen left the meeting and some
discussion transpired between Hamilton and the Cronen
brothers, on the one hand, and Liljedahl on the other.
The second meeting transpired under the auspices of the
Federal Mediation and Conciliation Service and was held
on July 9. At the meeting the Union took the position
that it would accept nothing short of a full union shop. On
the other hand, the Company opposed this because of the
apparent desire of a number of employees not to be forced
into a union membership." Initially, the Company took
the position that only an open shop would be acceptable.
However, it modified this position to indicate amenability
to something less than a full union shop.
The second meeting on July 9 was devoted almost
exclusively to a discussion of the union-shop issue.
At the subsequent meetings conducted on July 23 and
August 7, respectively, the union-shop issue continued to
be the predominant one discussed by the parties. At the
July 9 meeting the Union had requested the Company to
submit wage proposals and classification schedule and the
Company had agreed to do so. However, the discussions
again turned to the issue of union security and the parties
remained adamant with respect to their positions. Peter
Cronen, Sr., reiterated his objection to forcing employees
"into the union."
At the July 23 meeting the conversations again centered
upon the question of a union shop. In addition to
reiterating his opposition to forcing employees into a
union shop situation, Cronen restated his position with
respect to wages and asserted that it was his practice to
do as well as or better than his competition. He
specifically cited in this regard the leader in the field,
Dayton-Rogers . The issue of wages generated no
substantial dispute but the conversation again merged into
a discussion of the principal of a union shop and the
possible alternatives thereto.
At the August 7 meeting, which was also conducted
under the auspices of the Federal Mediation and
Conciliation Service, the Union's wage proposal which
had been submitted was discussed. However, the
discussion again returned to the principal of a union
shop.25 In this respect, the Federal mediator, in response
to Cronen's stated position that it could not force
employees into the Union against their wishes, inquired if
Cronen would have a change of heart on this matter if
"Prior to the commencement of negotiations, Peter Cronen, Sr , had
shown to Attorney Joseph Hamilton the document which Mike Olson had
circulated and posted in the plant reflecting preference for less than a full
union shop.
"The record does not reflect whether the Union 's wage proposal was
submitted at the August 7 meeting , or at an earlier meeting.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some "clear evidence" were submitted to the effect that
employees did not object to Cronen executing a
collective-bargaining agreement encompassing a "full
union shop." Cronen answered that he would reconsider
his position if such evidence were submitted to him.
The meeting of August 7 ended with an agreement that
a subsequent meeting would be arranged and negotiations
would proceed from the point reached as a result of the
Federal Mediator's suggestion.
k. The union shop petitions
As a consequence of this meeting, Liljedahl drafted
some petitions containing the following text:
A Union Shop provision would not be objectionable to
me, and I would continue working at Tempco with such
a provision in the contract.
Tempco management will not see this petition nor any
signature thereon.
These petitions, in blank, were dispatched to Alvin
Bunk who circulated them to employees on the plant
premises during nonwork time. The petitions, bearing
employees signatures, were returned to Liljedahl on or
about August 15.
1. The cancellation of the August 26 meeting
A meeting was subsequently scheduled for August 26
but the meeting did not transpire.
A day or two following the August 7 meeting,
Hamilton was contacted by Cronen, Sr., who conveyed his
dissatisfaction with the progress of negotiation, and the
Union' s insistence upon "a full union shop or nothing."
Cronen asserted that he was inclined toward terminating
further negotiations with the Union. Hamilton discussed
with Cronen the legal implications of terminating
negotiations and the circumstances which must prevail as
a precondition to doing so, as well as the alternative
consequences of doing so.
On August 12, Hamilton dispatched a letter to Peter
Cronen, Sr., whereby he noted that in his conversation
with Cronen that Cronen had indicated his desire to
cancel the meeting of August 26. The letter also contained
the observation that Cronen had submitted certain
material concerning union activity for posting on the
company bulletin board. Hamilton noted that he had
studied the material and had made some changes and
submitted an enclosed copy thereof.
In addition, in the letter of August 12, Hamilton
submitted to Cronen a letter for Cronen's signature in the
event Cronen determined that he desired to terminate
negotiations. In the letter, Hamilton detailed the likely
consequences of such a course of action.
The letter which Hamilton submitted to Cronen for his
submission to the Federal Mediation and Conciliation
Service read as follows:
Please be advised that the Company can see no purpose
in meeting with the Union August 26 as proposed. It
appears that an impasse has been reached. It is
requested that all further meetings be cancelled until
such time as the Union demonstrates a willingness to
compromise and a desire to bargain in good faith. The
Union has demanded that all employees of the
Company be forced into the Union against the wishes
of the individual employees affected and the Union has
refused to consider any other alternative, making
further negotiations impossible.
A copy of this letter was submitted to the Union, as well
as to Alvin Bunk.
Liljedahl, and other representatives of the Union
appeared on August 26 at the appointed place and time
for the meeting but no representative of the Company
made an appearance.
Liljedahl denies having ever asserted to the Company at
collective-bargaining meeting that he would not continue
to negotiate unless the Company accepted a full union
shop.
Peter Cronen, Sr., testified that in writing the letter to
the Federal Mediator canceling the August 26 meeting, he
felt that it was futile to meet further with the Union
unless the Union would "cooperate" in moderating its
consistent demand for a full union shop provision.
in. The September 4 strike
On September 4 employees of Respondent went on
strike and a picket line was established. In late August,
approximately 20 employees of Respondent had met in
the capacity of a union meeting and the course of
negotiations was discussed. Consideration was given to the
Respondent's letter to the Federal mediator relative to the
cancelation of the August 26 meeting, and Liljedahl
expressed his opinion that the Company had no intention
of negotiating seriously with the Union. Moreover, at the
meeting the termination of Alvin Bunk was discussed. The
employees voted at the meeting in favor of a strike."
n. The poststrike negotiations
The parties met again in a collective-bargaining meeting
on September 12. Present at the meeting was a
commissioner of the Federal Mediation and Conciliation
Service. At the September 12 meeting the Company made
an oral offer of a maintenance of membership clause to be
included in any collective-bargaining agreement
consummated , and a wage scale adopting the provisions of
the Dayton-Rogers contract.
On September 20, the Company transmitted by letter
the language of the proposed maintenance of membership
clause and the proposed wage scale correlated to
department and to work classification.
The Company's offer of a maintenance membership
provision was made in contest of an in-depth discussion by
the FMCS commissioner of the various alternatives to a
full union shop provision. The commissioner
recommended that in order to stimulate further discussion
of the issue the Company submit this proposal in writing.
The Company' s oral wage proposal arose from a
reiteration of the Company's earlier stated negotiating
position that wage adjustements were due the employee
under the Company's policy of annual wage adjustments
which, but for the pendency of the Board election, would
have matured in May 1968. The Company pointed out at
the September 12 meeting that it had deferred pay
increases due under the established wage policy and that it
desired to make effective a wage scale which would
correspond with or exceed the Dayton-Roger schedule.
At the September 12 meeting, the Company stated that it
was submitting this proposal to the Union as was required
pursuant to its bargaining obligation, but underscored the
"The foregoing is based on a composite of the testimony of Donald
Liljedahl , Alvin Bunk , and Robert Rolling . I do not credit Bunk's
testimony to the effect that the Company' s position on the Dayton-Rogers
wage scale was a determinative factor in voting in favor of the stoke for
the exchange of positions with respect to wages had not hardened at this
point in time and neither Liljedahl or Rolling made a reference in their
testimony to the wage issue as being a factor in the stoke vote
TEMPCO MFG. CO., INC. 345
Company's wish to put the pay increase in effect. The
wage proposal subsequently submitted in writing on
September 20 reflected wage scales effective in the
Dayton-Roger contract on May 1, 1968.
At the October 1 meeting the Company's written
submissions of September 20 formed the discussion of the
union shop question and wage rates. The Union indicated
its willingness to consider a modified union shop provision
and the Company offered a maintenance of membership
clause. Wage rates were discussed but the Union asserted
that the issue of union security must be resolved.
Additionally , the Union insisted a satisfactory resolution
of the question of Alvin Bunk ' s termination must be
made.
At the October 1 meeting , the FMCS commissioner
suggested that the Union submit its position in writing.
As a direct consequence of this recommendation, by
letter of October 8, the Union dispatched the following
letter to the Company:
The meeting held Tuesday, October 2, 1968, was ended
by Commissioner Earl Smith with the thought that this
Local Union would submit a counter proposal to the
company . I do not think it is necessary to submit a
complete contract proposal as both parties have already
done so.
I believe the basic differences between us lies in three
areas - one being the Union Shop . Somewhere
between the employer's maintenance of membership
proposal and the Union's full Union Shop proposal we
could resolve this issue . I am proposing , specifically, a
modified Union Shop. The proposal on wages, as
received at the last meeting , was designed primarily for
Dayton-Rogers, and because of the exceptions made by
the employer to his own proposal , it would seem to me
that we must draw up a wage and classification sheet
that would fit the specifics of the Tempco Company.
The third issue involved is the dismissal of Mr. Alvin
Bunk , and certainly the company must be aware that
the firing of Mr . Bunk , and our subsequent filing of
unfair labor charges, was at least partially instrumental
in bringing about the strike situation.
I believe that the exclusions to the modified Union
Shop, the wage rates and classifications, the dismissal
of Alvin Bunk , and any other issues that might exist,
would best be worked out by direct meetings between
the two parties.
The parties did not meet again in collective -bargaining
negotiations until November 26.
o. The general wage increase
On October 2, Respondent put into effect a general
wage increase for employees. The schedule of newly
effective wage rates was posted on the company bulletin
board. Timothy Cronen credibly testified that in May the
Company had been prepared to post a new wage scale but
refrained from doing so after consultation with the
National Labor Relations Board's Regional Office
suggested that the course of action might be violative of
the Act.
3. The alleged strike misconduct
a. General
On the morning of September 4 a picket line was
established at Respondent ' s plant manned by striking
employees. Witnesses at the hearing variously estimated
the number of pickets to have ranged from 25 or 30 to 40.
On the first morning of the strike a substantial number of
the pickets gathered at the employee entrance to the plant
and vehicular progress through the picket line was slowed
due to the impending affect of the convened pickets who
verbally taunted the nonstriking employees who refused to
observe the picket line. During the subsequent progress of
the strike the picket line was usually manned by 25
striking employees.
The credited testimony of Timothy Cronen reveals that
during the strike the word "scab" had been painted on the
building, an air compressor in the rear of the building had
been damaged , a gas tank had been tampered with and
bullet holes had been shot in the windows of the front
office located in the plant. With respect to the latter
incident Cronen testified that during the first or second
week of the strike when he arrived at the office one
morning he found bullet holes through many of the
windows and by looking through the bullet holes he lined
them up with a camper which was being utilized by
strikers and which was parked approximately 100 yards
from the building.
Employees testified at the hearing concerning verbal
threats allegedly by striking employees to nonstrikers,
minor physical altercations between strikers and
nonstrikers and damage inflicted upon the automobiles of
nonstrikers by striking employees.
Approximately a week after the commencement of the
strike, Lewis Stumpf had occasion to converse with Alvin
Bunk and as a result of that conversation he concluded
that some progress might be made in resolving the strike
issues . As a consequence, he spoke with Mike Olson and
they agreed at a meeting between the employees might
prove beneficial . They agreed to hold a meeting at Bunk's
residence with Olson and Stumpf in attendance . Bunk was
to select an employee of his choice to be present at the
meeting. _'
The meeting took place at Bunk's residence and during
the course of the meeting discussion was had with respect
to incidents that were transpiring as a result of the strike.
At the meeting, Olson and Stumpf urged Bunk to use his
influence to stop the slashing of automobile tires and to
prevent picketers from bringing children to the vicinity of
the plant . In the exchange at the meeting, Bunk related an
assertion by some of the pickets that they would bring a
rifle to the picket line and shoot the gas tank of vehicles.
The conversation at the meeting turned to the question
of the ability of the Union to represent the interests of the
employees. Olson and Stumpf suggested that, as an
alternative to union representation , the employees should
form their own plant union . The meeting terminated with
an understanding that those present would consider the
question of a plant union. _'
"Stumpf and Olson explored with Supervisor Kadlec the question of a
meeting with the strikers and, in a noncommittal fashion, Kadlec stated
that the effort was worth exploring. He was invited to attend the meeting
but declined.
'The foregoing is based principally upon the testimony of Mike Olson
and Lewis Stumpf. I credit the testimony of Alvin Bunk to the effect that
at the meeting the participants discussed the possibility of forming a plant
union as an alternative to the Teamsters' union. This testimony finds
support in the testimony of Mike Olson. While I consider Alvin Bunk's
testimony as generally unconvincing with respect to most aspects of the
instant meeting, I do credit his denial of the testimony of Stumpf that at
the meeting he asserted that he would like to see more tire slashing and
related conduct.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The alleged strike misconduct of Bunk
On the second day of the strike an automobile driven
by employee Howard Walker in which employee Edwin
Mattila was riding, was stopped by picketers as it entered
the plant. Alvin Bunk was at the front of the automobile
near the front fender and another picket was in the rear of
the automobile. Walker suddenly heard a sound and the
picket at the back of the automobile shouted, "Your tire
is going flat." Walker got out of the automobile and
found that both the front and rear tires were flat. Mattila
had observed Bunk as he stood near the right front side of
the car bend down and straighten up again."
During the first or second week of the strike Lawrence
Hopwood was entering the plant in his automobile and
Alvin Bunk struck the automobile aerial with his hand
and broke it off.
During the course of the strike Ray Kadlec observed
Alvin Bunk engage in a "pushing contest" with employee
Ken Leiran. Subsequently, approximately 2 weeks after
the commencement of the strike, Donald Faul observed
from the door of the shipping room a company truck
utilized to haul parts in and out of the plant, enter the
plant and be stopped by Alvin Bunk and Richard Uherka.
Bunk was at the rear of the truck and Uherka was
standing on the front at the right side of the truck. He
noticed Uherka stoop over and touch the tire near which
he was standing . Approximately 15 minutes later Faul
examined the tire and found air escaping from the
sidewall.
On the evening of September 18, Richard Noll was at
his home when at approximately 10:20 p.m., he heard a
loud crashipg noise outside. He looked out the window
and observed three men running away from his
automobile which was parked outside his residence. A few
minutes later the front doorbell rang and then some
individuals ran around the house to the outside back door.
They broke the lock of the door and entered the hallway
of the house and knocked at the back door of Noll's
apartment. A man outside the back door said, "Dick,
look what somebody did to your car." Noll held a gun in
his hand and shouted, "Bunk , get the hell out of here." A
man outside the door answered, "Dick, I want to talk to
you." Noll answered, "Bunk , get the hell out of here." As
he did so Noll pulled back the bolt of the gun which
produced a clicking sound. The individual outside of his
door ran out of the house.
Noll called the police and upon investigation it was
found that all of the glass in the automobile had been
broken or damaged, all of the tires had been slashed, the
wiring underneath the hood had been pulled out, the spark
plug wires had been removed, dirt had been placed in the
gas tank and other lesser damage had been inflicted.
No charges were filed as a result of this incident and
Noll testified that he could not identify the three
individuals who had approached his home.
He testified that the following morning he accompanied
his brother and employee Hohn to work in Hohn's
automobile and as they approached Alvin Bunk, his
brother asked Bunk how he liked to "wreck cars." Noll
testified that Bunk got "red in the face" and did not say
anything.
"Mattila places this event as having transpired on the first day of the
strike but I am convinced that his testimony related to the same incidents
as that placed by Walker as having transpired on the second day This
minor discrepancy, in its record context , is not such as to warrant
discrediting of Matdla' s testimony.
Noll testified that he recognized Bunk by his voice and
so informed the police who stated that he had insufficient
evidence to support his charge.
James Huston testified that during the strike he had his
automobile parked on the company parking lot overnight
for 2 successive nights. On the third day Bunk approached
him and stated that he would not be responsible for what
happened to the automobile if Huston left it there another
night.
On or about September 13, the evening following the
meeting between Alvin Bunk, Lewis Stumpf and Mike
Olson, Olson received a telephone call from Bunk. During
the conversation Bunk states that he did not know how
much longer he could hold the "union off" Stumpf and
Olson in that Stumpf and Olson were impeding the
objectives of the Union. Bunk stated that Stumpf and
Olson should talk to the men going "with the Union."
During the telephone conversation Bunk also stated
that the "union" was going to get employees Dick Noll,
Kenneth Leiran, Charles Buback and two other
unspecified employees. Bunk singled these employees as
prime targets of the Union and labeled them
troublemakers.'°
c. The misconduct of David Adams
Approximately 6 weeks after the strike began, Richard
Hohn was leaving his home when he observed Alvin Bunk,
Robert Rolling, David Adams, Jim Evenson, and Derrick
Soderstrom arrive in an automobile. Hohn was in his
automobile and Evenson approached him and started to
talk with him. They were soon joined by Rolling and later
by Alvin Bunk and David Adams. After they had
conversed a brief time David Adams threatened to break
the radio antenna of Hohn's automobile. However the
other employees disuaded him from doing so.
Subsequently, however, as Hohn drove away, David
Adams who was leaning against the left side of Hohn's
automobile made a jerking motion. As Hohn passed him
he made a second jerking motion. Hohn left his
automobile overnight at a different location and the
following morning he was informed by his brother that he
had two flat tires on his automobile. As a result of this
incident, David Adams was charged and convicted of a
misdemeanor in the criminal division of municipal court
in Minneapolis , Minnesota, and fined $100." The
conviction was, at the time of the instant hearing, under
appeal. At his trial in this matter, which Hohn attended,
Adams testified that he had an ice pick in his hand on this
occasion.
d. Other alleged strike misconduct
On an occasion during the strike when Lewis Stumpf
was stopped in his pickup truck at the entry gate to the
parking lot, he observed Richard Uherka holding
something in his hand against the truck. He observed
Uherka jerk his hand back and put a scratch in the door
panel to the tailgate of the pickup truck.
During the course of the strike employees James Enson
and Duane Colonga kicked and damaged the door of the
"Olson also testified that at some juncture during the strike he was told
by strikers that they were going to "kick the hell" out of him and also
asserted that if the strike was not settled before October 15 they were
going to "wreck" the plant
"The maximum sentence permissible was a fine of $100, 90 days
detention and a suspension of the driving permit of the convicted
individual
TEMPCO MFG . CO., INC. 347
automobile of employee Ron Letendre.
During the third or fourth week of the strike, Edwin
Hohn conversed with employee Derrick Soderstrom with
whom Hohn had in the past played pool. As they
conversed Soderstrom suggested that they "go down and
shoot a game of pool" and Hohn declined to do so.
Soderstrom then observed, "We could have a good game
of pool if I don't get carried away and hit you over the
head with a pool cue." Soderstrom added, "another thing,
don't ever turn your back on me." 32
Conclusions
1. Interrogation, threats, and promises
The record of this proceeding amply establishes that
when the organizational efforts of the Respondent's
employees became overt and known to management and
supervision, Respondent undertook a verbal campaign
which exceeded the permissible limits of Section 8(c) of
the Act and which had as its unlawful purpose the
undermining of the Union's organizational effort. That
Peter Cronen, Jr., by virtue of his close working
relationship with employees frequently became drawn into
the discussions relating to the Union serves as no
immunity for the interrogation and threats which he
undertook. Nor did Ed Kadlec gain privilege to utter
threats merely by reason of the fact, well established, that
the topic of unionization was openly discussed in the
plant, and was the source of preoccupation among many
of the employees with whom he closely worked.
I find that Respondent, through acts of its supervisors
violated the Act by threatening to curtail overtime and
imposing a night shift,)' threatening the discharge of
Bradshaw and the ultimate discharge of other union
supporters, interrogating Rolling concerning his union
membership, conditioning Battleson 's raise on the
continued nonunionization of the plant and requesting
Bradshaw to withhold executed authorization cards from
the Union.
The Union's success in the election and its certification
by the Board did not abate the Respondent's efforts to
undermine the Union's following. Thus, during a period of
time when collective-bargaining negotiations were pending
Peter Cronen, Jr., conveyed to employees Klemec,
Uherka, Huston, Adams, Wormsbaker, and Rolling the
concept that their employment interests would better be
served through affinity to the Company than through
allegiance to the Union." Cronen's reference during his
conversation with Rolling and Huston in the parking lot
to the insolating effects from union and employee
demands of the family's financial resources, uttered in
context of a discussion of benefits to be derived from the
Union, carried an implicit threat, as did a similar
reference to family wealth uttered earlier to Adams in
context of other unlawful threats.35
The unlawful interrogation and threats transpiring after
the Union's election and certification were carried out in
conjunction with efforts to induce employees to resign
from the Union. The approach of Peter Cronen, Jr., to
David Adams the day following the election wherein
Cronen invited Adams to use company time to induce
employees to withdraw from the Union serves as a
forecast of events to follow. The efforts of employees
Olson and Stumpf may not reasonably be viewed as
independent effort by interested, nonunion employees. I
find this to be so for company support and condonation of
their activities, carried on in the plant, is revealed, not
alone by use of company equipment, stationary and
postage in the preparation and dispatch of the letters of
resignation , but is evidences also by the coordinated
efforts of Cronen, Jr., and Olson in obtaining through
cajole, threats, and persuasion the resignation of Adams
and Wormsbaker, and the participation of Timothy
Cronen in the drafting and preparation of Hohn's
resignation . While, as a unit employee, Olson was free to
persuade fellow employees to resign from the Union, the
Company was not free to interpose its influence in the
persuasive process and to assist Olson in his endeavors.
The evidence is convincing that, Olson's opposition to the
Union became well defined and known to management
and it is further convincing that, as the General Counsel
contends, Olson was acting as the agent of management
not only in facilitating the resignation of employees --
like Spears - voluntarily dispose, but in inducing
resignations . This is illustrated by the fine-tune
performance of Olson and Cronen, Jr., in eroding though
threats and promises the confidence of Wormsbaker in his
job security under unionized conditions; and, in a more
suttle manner, achieving the resignation of Adams.
In the process of inducing Wormsbaker's resignation
the Respondent through Cronen, Jr., and Mike Olson, its
agent in this special purpose undertaking, violated the Act
by the sum total of a dialogue which instructed
Wormsbaker that Peter Cronen, Sr., would not sign a
contract with the Union; would not rehire striking
employees; would not rehire Wormsbaker and that
because Wormsbaker had had polio he would not be
rehired in a union shop.36
The mid-August statement of Cronen to Battleson to
the effect that employees who struck would be discharged
as an incident to Respondent's intention to rebuild the
Company, was both a threat to Battleson's job tenure and
an effective inducement for him to leave the Union.
2. The termination of Bunk
In the foregoing circumstances, and at a juncture when
collective-bargaining negotiations had been punctuated by
acrimony and division over the subject of union security,
Alvin Bunk was terminated. Bunk's leading role as a
"Howard Walker testified that on the first day of the strike his
automobile was damaged when he tried to gain entry to the plant through
the entrance at which were convened many strikers . Additionally, Douglas
Stockwell testified that at approximately 1.30 a.m., on an occasion during
the strike a car was driven in his yard and the occupants called out epithets
to him from the automobile . Neither Walker nor Stockwell were able to
identify the individuals involved in these incidents.
Similarly, Stockwell testified that during the strike Alvin Bunk called
out to him that Cologna was going to burn down his garage if Stockwell
kept coming to work . However , Stockwell testified that Bunk stated he
wasjust "kidding Stockwell."
"This threat was uttered by Peter Cronen , Jr., to Adams and by Ed
Kadlec to Mark Bradshaw.
"Throughout this period of time there was widespread discussion and
speculation over the prospects and affect of a strike to enforce union
demands.
"The comment to Adams was couched not in terms of a prediction of
legitimate counteraction to a union-called economic strike but, in context
of threats affecting job tenure and income, implied the futility of
unionization.
"It is doubtful, even in this context , that Wormsbaker accepted as
factual Olson 's further statement that the Union would not represent him
because of his polio-related physical limitations . As Olson's
pronouncement clearly related to a union decision beyond the capacity of
the Company to control or implement , it was not violative of the Act.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union advocate , including his participation as a member of
the Union' s negotiating committee and his designation as
steward, is too well memorialized in the record to require
analysis . Respondent's hostility to the Union is similarly
sealed by abundant record evidence.
Respondent' s initial act of suspending Bunk pending a
determination by Peter Cronen, Sr., arose, I find, from an
over literal and discriminatory application of a rule
formulated and promulgated to place a fair limitation
upon the use by employees and the Company of the
bulletin boards for communications relating to the
Union.37 It is clear from the record, upon an analysis of
Respondent' s own reasons for removing the letter, that
Respondent seized upon a pretext for disciplining Bunk.
The letter was on the letterhead of the Union, clearly
related to matters of common concern to all employees
and contained no statements so slanderous, obscene,
"obnoxious" or frivilous - criteria detailed by Cronen, Jr.,
as leading to the formulation of the rule - as would
necessitate summary removal of the notice." The notice
was addressed to Bunk in his capacity as shop steward,
and had been obtained in direct response to a conversation
between Bunk and Cronen, Jr., Bunk ' s suspension resulted
directly from his removal of a company notice, but
Cronen's arbitrary action in removing a notice of
significant importance to the union cause triggered the
chain of events . Cronen, Jr., had peculiar knowledge of
the highly charged atmosphere which prevailed at the
plant and welcomed nothing that counteracted or undercut
the Company's effort to erode the delicate margin of the
support the Union had commanded at the Board election.
I am convinced that Cronen removed the letter because its
contents proved him wrong in his earlier prognostication
of the union disinclination , in the showdown, to guarantee
support to the employees. Thus aroused, he reacted
against Bunk , the symbol of union investiture among the
employees. In doing so he disciplined Bunk for his union
activities and for exercising rights protected under Section
7 of the Act. The Respondent thus violated Section 8(a)(1)
and (3) by the temporary suspension of Bunk, and
independently violated Section 8(a)(1) by the removal of
the letter."
In light of the discrimination against Bunk, his
subsequent removal, an hour or two after his suspension,
of another company notice may be found to bear close
relationship to the discrimination against him, and on that
ground be excused."
However , his offenses in the afternoon of the day of his
suspension received no similar shield . With the passage of
some 5 hours ' time the emotion and exuberance aroused
in Bunk by his suspension may reasonably be presumed to
have subsided at least to a state of reasoned resentment
which rendered his actions rational and purposeful. The
record evidence convinces me that in the afternoon of his
suspension Bunk acted with premeditation in carrying out
his course of intentional disruption of employee work
tasks , direct disobedience to valid directive of supervision,
obscene derision of a management representative and
"At the hearing, the General Counsel made clear that he was not
attacking the rule as such , but only its application in the specific context
here under consideration.
"Indeed Cronen read the notice twice and consulted with Supervisor
Kadlec before removing it. Kadlec disagreed with Cronen 's interpretation
of the notice as nonconforming to the specifications
"See Challenge Cook Brothers of Ohio. Inc, 153 NLRB 92, enfd. 374
F. 2d 147 (C.A 6)
"N L.R.B. Y. M & B Headwear Co, 349 F 2d 170 (C.A. 4); Blue Jeans
Corporation and Whiteville Manufacturinf Company, 170 NLRB No. 149.
calculated trespass upon company property. Such
activities receive no protection under the Act; break the
chain of causation as between discriminatory motive and
justifiable discharge ; and, in my judgment, render the
Company's discharge action beyond the reach of Section
8(a)(1) or (3) of the Act.
The General Counsel characterizes as palid Bunk's
offenses of the afternoon and seeks to excuse them on the
ground that, ( 1) Bunk chose to wait in the parking lot for
his coworker and corider , Rolling, despite Cronen's
instructions that Bunk leave ; (2) because Bunk "thought"
the coworkers with whom he conversed were enjoying an
afternoon break; and finally, (3) because Bunk merely had
"words" with Cronen , which Bunk assessed as being free
from profanity. The record places a substantially different
hue on the events of the afternoon and renders reasonable
and justified the discharge action that subsequently
followed, even, as the General Counsel pointedly asserts,
when assessed against a satisfactory employee of 8 years'
standing.
The dichotomous nature of Respondent ' s actions
against Bunk , as here found , is not dispelled by the
wording of the Respondent's discharge letter. There is
nothing in the letter which reveals that, absent Bunk's
conduct in the parking lot following his suspension, his
suspension would have been permanent. On the other
hand, strong emphasis is placed in the letter upon the
nature of his parking lot misconduct. There is reason to
believe that Bunk 's suspension arising from his removal
from the bulletin board of the first company notice would
have received the timely attention of Cronen, Sr. There is
insufficient evidence , however , to permit a determination
that Cronen , Sr., would have ordered Bunk ' s termination.
While the discharge letter places some stress upon the
effect of the example set by Bunk in removing the notices
from the bulletin board in the presence of other
employees, it is noteworthy that Bunk's removal of the
notice was followed only by his temporary suspension and
not by summary discharge. Thus, it may reasonably be
concluded that Bunk ' s subsequent actions on the parking
lot controlled the decision ultimately reached.
The General Counsel points to the popularity of Bunk
among the employees and the impact upon employees of
actions against Bunk . The evidence , at least, establishes
that Bunk was a leader among the employees and served
as their union steward . Equally valid , in the circumstances
prevailing on August 19, is the speculation that the
discharge of a union steward, well regarded by the
rank-and-file, would tend to solidify the very body of
support which the Company was seeking to wean.
Moreover , the General Counsel ' s case gains no significant
assist from the evidence that Cronen , Jr., had earlier
threatened the discharge of Bunk , for the statement was
one impulsively made and quickly recanted. In
contra-distinction , and in sum , there is strong reason to
believe that because of Bunk ' s status as a steward and his
participation as a bargaining committee member, Bunk
had greater immunity from discriminatory discharge than
did other employees. Also, there is much in the record to
show that Cronen, Sr., knew that he was dealing with an
aggressive , militant union leadership that would call for an
accounting of Bunk's discharge . On this ground it is too
simplistic to indulge the easy assumption that because
Respondent had resorted to tactics designed to undermine
the employee support of the Union and had
discriminatorily suspended Bunk, the discriminatory
design continued unbroken whatever the justification for
the discharge action taken . This process of reasoning
TEMPCO MFG . CO., INC. 349
would further assume that Respondent would intentionally
accord to the Union a rallying point around which to
marshal its supporters , both dedicated and wavering.
In light of the foregoing , I find the evidence affords
insufficient ground for concluding that the temporary
suspension of Bunk on the morning of August 19 would
have been extended to become permanent but for Bunk's
own offenses perpetrated in the afternoon of August 19. I
am convinced it was the actions of disobedience , insolence
and, misconduct which brought his discharge . I find that
Respondent violated neither Section 8(a)(1) nor Section
8(a)(3) in permanently discharging Bunk.
3. The no -loitering rule
Contrary to the General Counsel , I do not find that the
evidence preponderates in favor of a finding that the
Respondent either promulgated or applied the no-loitering
rule applicable to the employee parking lot for the
purpose of impending union activity . The General Counsel
is correct in his contention that prior to the
commencement of organizational activities employees
were accorded free access to and use of the parking lot
during lunch and break time , as well as some off duty
hours . This access continued for approximately 2 months
after union activities had begun . As an incident of this
activity and the conflict in interest and views among the
badly divided employees constituency , vandalism and
damage was inflicted during working hours to vehicles
parked on the employee parking lot. The credible evidence
of record establishes that the rule was adopted as a direct
consequence of these incidents . The rule promulgated and
applied against Alvin Bunk related solely to the parking
lot which was the situs of the property offenses. In no
manner did it limit free time discussion of union matters
in any other portion of plant property . There is no
significant evidence to reveal that the rule was given other
than evenhanded enforcement . While in August, during
the Bunk-Huston incident , Cronen instructed Bunk to
leave and "stop bothering employees about the Union"
there is no showing that after adoption of the rule
employees were allowed to solicit for nonunion or other
causes, or to congregate for discussion of nonunion
topics.41 As to the foregoing , as the burden of proof was
upon the General Counsel, and as special circumstances
existed warranting Respondent 's adoption of the
no-loitering rule, I shall dismiss the allegations of the
complaint relating to it.42
4. The collective -bargaining violations
I find upon the record before me that at no time during
the course of collective bargaining did the parties reach a
bargaining impasse which would permit a termination of
further bargaining or unilateral employer action . Thus, I
find that Respondent violated Section 8(a)(5) of the Act
by canceling the scheduled August 26 meeting and by
unilaterally granting selective and general wage increases
"It is true that on the principal occasion of its application to Bunk,
Cronen, Jr., himself engaged in an extensive dialogue with Bunk
concerning the pros and cons of unionization . However , this conversation
evolved from the corrective action which Cronen took to enforce
observance of the rule, and may not reasonably be viewed as a disparate
departure from the rule.
"See Republic Aviation Corporation v. N.L.R B., 324 U.S. 793; Walton
Manufacturing Company 126 NLRB 697, enfd. 289 F.2d 177 (C.A. 5), cf
The Wm H. Block Company, 150 NLRB 341; The Rose Company, 154
NLRB 228.
to employees in the unit represented by the Union, the
certified collective-bargaining representative of the
affected employees."
The evidence reveals that at the August 7 meeting -
the fourth between the parties - the parties had discussed
various contractual provisions but the issue of union
security was one which separated them . The subject of
wages had received attention but the disagreement over
union security had limited consideration of that topic and
had relegated it to a secondary position . The August 7
meeting terminated with a stipulation by Cronen , Sr., that
revealed his position on union security was not totally
inflexible and was subject to some moderation. The
evidence establishes to my satisfaction that at the
termination of the August 7 meeting the position of the
parties with respect to the issue of union security had not
hardened to a point which rendered further exploration
and discussion of the issue futile and predictably
unproductive . This is suggested by the evidence
establishing that a further meeting to be held on August
26 was scheduled.
Thus, viewing the attitude and position of the parties as
projected through their bargaining table discussions, and
considering contractual issues of importance which
remained unresolved , including the issue of wages, upon
which the parties, at least to this point in time, had
evidenced amenability , it may not be concluded that a
bargaining impasse existed when the August 26 meeting
was canceled by Respondent."
Nor does the evidence establish that an impasse was
reached during subsequent negotiations which ensued
following the commencement of the September 4 strike.
The discussion of wages which transpired at the
September 12 and October 1 meetings revealed no
cleaveage of positions as would justify a conclusion that
the respective positions of the parties on this particular
issue were final and beyond reconciliation . While at the
October 1 meeting the Union asserted that a resolution of
the issue of union security was a prerequisite to ultimate
contractual agreement, both the Union and the Company
submitted proposals which represented a modification of
their previous position with respect to union security, thus
revealing the viability of the bargaining relationship with
respect to the issue of union security . Moreover, the
October 1 meeting terminated with the suggestion of the
FMCS commissioner that the Union submit its bargaining
position in writing . The foregoing negatives the existence
of a bargaining impasse."
In light of the absence of a bargaining impasse , and the
Union ' s status as certified collective-bargaining
representative the Respondent was not free to effectuate
"Misplaced is the Respondent's reliance upon that line of cases which
renders permissible the grant of wage increases to unit employees when,
without antiunion motivation , the increases have been long contemplated
and planned or when they accrue pursuant to an established schedule. The
evidence establishes quite conclusively that wage increases above scale do
not accrue automatically but require the intraposition of management
evaluation and judgment as to the work performance of each employees.
Thus, it may not be reasonably found that this category of wage increase
falls within the ambit of the cases cited by Respondent .Eg. Standard Coil
Products, Inc., 99 NLRB 899; N L R.B. v. Cleveland Trust Co., 214 F 2d
95 (C.A 6); Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB No
55. The vice of the wage increases granted Uherka and Bradshaw was not
that they were unwarranted but that they were granted without
consultation with the certified collective-bargaining agent and instituted in
a manner and circumstance calculated to erode the recipients' support of
the Union
"See Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB No. 55.
"Taft Broadcasting Co., WDAF AM-FM TV, supra
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilaterally either the individual, selective wage increases
or the general wage increase which it accomplished by its
action of October 2. This is so with respect to the general
wage increase even though the wage rates put into effect
were those which were presented to the Union during the
course of the September 20 and the October 1 meeting.
This action, taken in the absence of a bargaining impasse,
had the effect of circumventing the Respondent's duty to
negotiate with the Union and frustrated the object of
collective bargaining thereby violating Section 8(a)(5) of
the Act.96 In the circumstances it is not significant that the
wage rates put into effect were those discussed earlier with
the Union."
5. The September 4 strike
I find that the strike which commenced on September 4
was an unfair labor practice strike as it arose as a
consequence of the strike vote taken by unit employees
pursuant to consideration given the cancelation of the
August 26 meeting, Respondent's alleged intention not to
bargain in good faith and its alleged unlawful conduct in
terminating Alvin Bunk. These considerations, I find, were
the determinative factors in the decision to strike.
Accordingly, as I have found the Respondent to violate
the Act by canceling the August 26 meeting and in
suspending Alvin Bunk temporarily, I conclude that the
strike which commenced on September 4 was an unfair
labor practice strike, arising as it did, in part, from the
unlawful acts of Respondent.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with the operations of
the Respondent 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 of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminated
against Alvin Bunk by affecting a temporary layoff of
some 5 hours' duration I shall recommend that
Respondent make Alvin Bunk whole for any loss of pay
he may have suffered because of the discrimination
against him by payment to him of a sum. of money
derived through application of the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, with interest
at a rate of 6 percent per annum as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
It having further been found that the strike of
September 4, was caused by Respondent's unfair labor
practices I shall recommend that Respondent offer each
unfair labor practice striker immediate and full
reinstatement to his former or substantially equivalent
"N L R B v. Benne Katz, etc., d/b/a Williamsburg Steel Products, 369
U.S. 736; Iowa Mold Tooling Co., Inc, 173 NLRB No. 154
"Flowers Baking Company, Inc., and Ideal Baking Company, Inc., 169
NLRB 101.
position of employment, without prejudice to his seniority
or other rights and privileges, discharging if necessary any
employee hired on or after September 4, 1968, and make
each of them whole for loss of earnings which they may
have incurred as a result of their participation in the strike
by payment to each of them of a sum of money equal to
the amount he normally would have earned as wages
during the period from 5 days following the date of his
application for reinstatement to the date of Respondents'
unconditional offer of reinstatement. Said loss of earnings
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, together with
interest at the rate of 6 percent per annum as provided in
Isis Plumbing & Heating Co., supra. °0
While I have found that certain picket line and other
strike misconduct transpired, I find, as detailed below,
only one unfair labor practice striker herein is disqualified
by reason of said conduct for reinstatement and backpay.
I base my finding upon precedent holding that
unauthorized acts of violence on the part of individual
strikers are not chargeable to other union members in the
absence of proof that identifies them as participating in
such violence." Moreover, regarding many instances of
misconduct and damage to property arising during the
course of the strike the identity of the perpetrators was
not established, '" or , in some, the casual relationship
between employee action and subsequently discovered
damage could not be established with sufficient precision.
Finally, I find the conduct attributed to Richard Uherka,
James Enson, Duane Colonga and Derrick Soderstrom is
not of sufficient gravity to warrant their disqualification
for reinstatement."
However, in light of the conviction of David Adams on
a criminal misdemeanor charge arising from damage
inflicted upon the automobile of Richard Hohn, a
nonstriker, and in further light of Adams' threat, during
this incident, to inflict damage upon the automobile of
Hohn, I determine that Adams has disqualified himself
for reinstatement and his reinstatement is not
recommended. S3
Having further found that Respondent has unlawfully
refused to bargain by unilaterally instituting wage
increases and by canceling a scheduled
collective-bargaining meeting with the Union I shall
recommend that Respondent cease and desist therefrom.
I find no merit in Respondent's contention that by
reason of picket line and other strike misconduct normal
remedial requirements redounding to the benefit of the
Union in its capacity as collective-bargaining
representative should not be invoked.53
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
"The record contains no list or other identification of the complement of
employees who participated in the strike This matter must, perforce, be
resolved at the compliance stage of this proceeding.
"N L R. B. v. Deena Artware, Inc, 198 F.2d 645, 650 (C A. 6) The
applicability of Rubin Bros. Footwear, Inc, 99 NLRB 610, enforcement
denied 203 F 2d 486 (C.A. 5), is not in issue.
"See Morris Fishman & Son. Inc., 122 NLRB 1436, 1438
"In view of the determination made with respect to the discharge of
Alvin Bunk I find it unnecessary to decide whether his conduct on the
picket line and during the course of the stoke would be sufficient to
deprive him of reinstatement rights.
"Cf Quality Limestone Products, Inc, 153 NLRB 1009, 1011-112,
1046.
"See United Mineral & Chemical Corp, 155 NLRB 1390, 1395, Call,
Burnup , and Sims. Inc.. 159 NLRB 1661, 1682.
TEMPCO MFG. CO., INC. 351
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. Metal Shop , Warehousemen and Helpers Union,
Local 970, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America , is a labor organization within the meaning of
Section 2 (5) of the Act.
3. Respondent temporarily suspended Alvin Bunk in
retaliation against him for his support of and activity on
behalf of the Union , and did thereby violate Section
8(a)(1) and (3) of the Act.
4. By threatening employees with curtailment of
overtime , imposition of a night shift , discharge of union
supporters , refusal to hire employees who might strike in
support of the Union , refusal to rehire physically
debilitated employees in the event the plant was unionized,
and refusal to sign a collective -bargaining agreement with
the Union ; by interrogating employees concerning their
own union activities and the union activitie s of other
employees ; by conditioning a wage increase granted an
employee on continued nonunionization of the plant; by
undermining the employees ' support for the Union by
statements suggesting that employment interests would be
better served through giving affinity to the Company than
through allegiance to the Union; by inducing through
promises of employment and social benefit employees to
withdraw from the Union , and by lending support to and
facilitating the actual withdrawal of employees from the
Union ; and by discriminatorily implementing a rule
governing posting of notices and written material on
employee bulletin boards , the Respondent has engaged in
conduct violative of Section 8(a)(1) of the Act.
5. Metal Shop , Warehousemen and Helpers Union,
Local 970, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of
America , has been since May 23, 1968, and now is, the
exclusive certified collective-bargaining representative of a
majority of Respondent' s employees in a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
6. The following described collective -bargaining unit is
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
All production and maintenance employees of
Respondent at St . Paul, Minnesota operation ; excluding
office clerical employees , professional employees,
guards and supervisors as defined in the Act.
7. By unilaterally increasing the wages of employees in
the unit in which the Union was and has been at all
material times the certified collective-bargaining
representative , and by canceling a scheduled
collective-bargaining meeting the Respondent engaged in
conduct violative of Section 8(a)(5) and (1) of the Act.
8. The strike which commenced on September 4 was an
unfair labor practice strike arising from the prior unlawful
conduct of Respondent.
9. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the basis of the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , I recommend that
Respondent, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with curtailment of
overtime , imposition of a night shift, discharge of union
supporters, refusal to hire employees who struck in
support of the Union , refusal to hire physically debilitated
employees in the event the plant was unionized, and
refusal to sign a collective-bargaining agreement with the
Union ; interrogating employees concerning their own
union activities and the union activities of other
employees; conditioning a wage increase granted an
employee on continued nonunionization of the plant;
undermining the employees ' support for the Union by
statements suggesting that employment interests would be
better served through giving affinity to the companies and
through allegiance to the Union ; inducing through
promises of employment and social benefit employees to
withdraw from the Union , and lending support to and
facilitating the actual withdrawal of employees from the
Union ; and discriminatorily implementing a rule
governing posting of notices and written material on
employee bulletin boards.
(b) Discouraging membership in Metal Shop,
Warehousemen and Helpers Union , Local 970 , affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , by discriminatorily
suspending employees or in any like or related manner
discriminating against any employee with regard to his
hire or tenure of employment , or any term or condition of
employment , except as authorized in Section 8(a)(3) of the
Act.
(c)Refusing to bargain collectively with Metal Shop,
Warehousemen and Helpers Union, Local 970 , affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , as the certified
and exclusive representative of all employees in an
appropriate collective-bargaining unit by unilaterally
granting wage increases and by canceling scheduled
collective-bargaining meetings.
(d) In any like or related manner, interfering with,
restraining , or coercing its employees in the right to
self-organization , to form their own labor organization, to
join or assist the Union , or any other labor organization,
to bargain collectively with representatives of their own
choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
2. Take the following affimative action designed to
effectuate the policies of the Act:
(a) Make whole Alvin Bunk for any loss of pay he may
have suffered as a result of the discrimination against him,
in the manner set forth in the section entitled "The
Remedy."
(b) Upon application, offer striking employees
reinstatement to their former or substantially equivalent
positions of employment without prejudice to their
seniority or other rights and privileges discharging, if
necessary, all replacements hired on or after September 4,
1968, and make said applicants whole for any loss of
wages they may have suffered , to the extent and in the
manner set forth in the section entitled "The Remedy."
(c) Post at its plant and places of business at St. Paul,
Minnesota , copies of the attached notice marked
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Appendix."" Copies of such notice, to be furnished by
the Regional Director for Region 18 shall , after being
duly signed by a representative of the Respondent, shall
be posted by Respondent immediately on receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18, in
writing , within'29 days from the receipt of this Decision,
what steps the Respondent has taken to comply
herewith.55
"If this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" in the notice . In the further event that the
Board's Order is enforced by a decree of a United States Court of
Appeals , the words "a decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
"If this Recommended Order is adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing within
10 days from the date of this Order , of the steps which Respondent has
taken to comply herewith "
APPENDIX
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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT threaten employees with less overtime,
the start of a night shift, discharge of supporters of the
Union , refusal to hire employees who might strike in
support of the Union, refusal to rehire physically
disabled employees in our unionized plant or refusal to
sign a collective-bargaining agreement with the Union.
WE WILL NOT interrogate our employees concerning
their own union activities and the union activities of
other employees.
WE WILL NOT condition wage increases to employees
upon our plant being nonunion.
WE WILL NOT undermine the support of our
employees for the Union by unlawful statements
suggesting that employment interests of employees
would be better served through giving loyalty to the
Company than by loyalty to the Union.
WE WILL NOT induce employees to withdraw from the
Union by extending promises of employment and social
benefits or by lending support to and assisting in the
actual withdrawal of employees from the Union.
WE WILL NOT in an unlawful or discriminatory
manner give effect to the rule governing posting of
notices and written material on our bulletin boards.
WE WILL NOT refuse to bargain collectively with
Metal Shop , Warehousemen and Helpers Union, Local
970, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of
America, as the exclusive certified collective -bargaining
representative of our employees in the following
described unit by unilaterally granting selective or
general wage increases to our employees or by
canceling scheduled collective -bargaining meetings. The
appropriate collective-bargaining unit is:
All production and maintenance employees at our St.
Paul, Minnesota , operation ; excluding office clerial
employees, professional employees , guards and
supervisors as defined in the Act.
WE WILL offer Alvin Bunk approximately 5 hours
backpay for unlawfully suspending him from his
employment on a temporary basis on August 19, 1968.
WE WILL, upon application , offer immediate and full
reinstatement to their former or substantially equivalent
positions, without loss of seniority or other rights and
privileges, all employees on strike on or after
September 4, 1968, discharging , if necessary, all
replacements hired on or after September 4, 1968, the
date on which the strike became an unfair labor
practice strike , and will make such applicants whole for
any loss of pay suffered by reason of our refusal , if any,
to reinstate them within 5 days after application.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named, or any other labor organization , except to
the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment in Section 8(a)(3) of the
Act, as amended.
TEMPCO MFG. CO.,
INC.
(Employer)
Dated By
(Representative) (Title)
NOTE: - Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
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.
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.
Any questions concerning this notice may be directed to
the Board ' s Regional Office, 316 Federal Building, 110
South Fourth Street, Minneapolis , Minnesota 55401,
Telephone 612-334-2618.