Wisconsin Bearing Co.

National Labor Relations Board - Board Decisions

Sep 21, 1971

193 N.L.R.B. 249 (N.L.R.B. 1971)

WISCONSIN BEARING CO. 249
Wisconsin Bearing Company and United Electrical,
Radio and Machine Workers of America (U.E.).
Cases 30-CA-1361, 30-CA-1394, 30-CA-1420,
30-RC-1338, and 30-RC-1334
September 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On April 28, 1971, Trial Examiner Benjamin B.
Lipton 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. He further
recommended that the election held on November 12,
1970, be set aside and the petitions in the representa-
tion cases be dismissed. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding 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, and the entire
record in the proceeding 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 adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Wisconsin Bearing Company, Milwau-
kee, Wisconsin, its officers, agents, successors, and
assigns shall take the action set forth in the Trial
Examiner's recommended Order.
IT IS FURTHER ORDERED that the election conducted
in Cases 30-RC-1344 and 30-RC-1338 on November
12, 1970, be, and it hereby is, set aside, and the
petitions for certification of representatives in said
cases dismissed.
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule Trial
Examiner's resolutions with respect to credibility unless a clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F.2d 362 (C A. 3). We have carefully examined the record and find no
basis for reversing his findings
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: In the successive
complaint cases , the General Counsel alleges various
independent violations of Section 8(a)(1), (3), and (5) of the
Act.' The representation cases , 30-RC-1338 and 1344,
involve petitions for certification filed by the Union,
respectively, on September 1 and September 10. Pursuant
to a Decision and Direction of Election issued by the
Regional Director on October 12, after a hearing, an
election was conducted on November 12 in an appropriate
unit of all employees, including office clericals, confined to
the Milwaukee plant. At the election, of approximately 86
eligible voters, the results were as follows; 37 votes for
Petitioner, 39 votes against Petitioner, I void ballot, and 8
challenged ballots. Timely objections were filed by the
Union. On December 22, the Regional Director issued a
report on the objections and challenges and an order
consolidating the complaint and representation cases,
particularly the surviving issues on objections and
challenges,2 for the purpose of a hearing before a trial
examiner. The objections are broadly coextensive with the
complaint allegations . Respondent's answers to the com-
plaint generally deny the alleged violations. From January
11 through January 14, a hearing in the consolidated
proceeding was held before me in Milwaukee, Wisconsin.
All parties appeared at the hearing and were afforded full
opportunity to present relevant evidence and to argue
orally on the record. Briefs received from the General
Counsel, the Respondent, and the Union have been duly
considered.
On the entire record in the cases, and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is engaged in the business of warehousing,
selling, and distributing ball and roller bearings, mechani-
cal power transmission equipment, and related items. Only
its principal facility at Milwaukee, Wisconsin, is directly
involved herein. In addition, it has branches in Green Bay,
Wausau, Appleton, Racine, and Madison, all in Wisconsin,
and in Ishpheming, Michigan .3 During the year preceding
issuance of the first complaint, Respondent had a direct
inflow and a direct outflow of products in interstate
commerce, in each instance valued in excess of $50,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of the Act.
1 All dates are in 1970 unless otherwise noted . The initial complaint,
Case 30-CA- 1361, was issued September 23, and the charge thereon filed
and served August 25 . In Case 30-CA- 1394, the charge was filed and
served September 24. In Case 30-CA- 1420, the original charge was filed
and served October 29 and amended charge was filed November 17.
2 One of these challenges made by the Board agent was sustained in the
Regional Director's report and is not involved herein
3 It appears in the testimony that Lester Berry, president of Respondent,
is virtually the sole stockholder , and that he operates allied companies,
called Berry Bearing Company , Bearing Service Company , and Illinois
Bearing Company.
193 NLRB No. 35
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union, also referred to herein as the U.E. or the
Charging Party, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Summary of Events
In the general period of July and early August, the initial
conversations on the subject of having a union took place in
the machine shop. John Schaetzel, employed in the
warehouse, discussed with John Matajac, Robert Fields,
and Dennis Martin, machine shop employees, certain
dissatisfactions concerning their wages and conditions of
work. On August 17, Matajac, who had previously worked
in a shop represented by the U.E., suggested that they
approach this union. On August 18, Schaetzel visited the
Union and consulted with Richard Massman , a field
representative. Schaetzel was given certain organizational
material to distribute, and arrangements were made for a
meeting of employees at the union hall on August 20. On
August 19, Schaetzel conveyed this information to Matajac,
Fields and Martin and gave them pamphlets, and the
solicitation of other employees was begun. Schaetzel spoke
on company premises with various employees, including,
e.g., Linda Morris, Arlene Eisch, and Mildred Meier. Fields
also approached two named employees. On August 20, in
the evening, the meeting at the union hall was held with
Massman, who discussed organizational procedures. The
11 employees present at the meeting all signed union
authorization cards, including Schaetzel, Fields, Matajac,
and Morris.4 Blank cards were taken for further distnbu-
tion. Schaetzel and Fields, respectively, were elected
chairman and secretary of the organizing committee.
Thereafter, solicitations were undertaken to obtain addi-
tional union authorizations, and further meetings with
employees were held at the union hall. Cynthia Behling
signed a card on August 24, attended the second union
meeting , and solicited all the girls in her "cardex" section,
as well as some in "expediting."5
On August 28, the Union sent Respondent a letter in
which it demanded recognition, requested a bargaining
meeting, and offered to prove majority representation
through a neutral party by a payroll check against signed
authorization cards. On September 4, Respondent replied,
stating that it doubted the majority claim and inviting the
Union to file an election petition with the Board .6 There are
alleged incidents of coercive conduct by Respondent
beginning August 21, as described infra. On August 24,
alleged discriminatees Schaetzel, Fields, and Barbara
Neary and, on August 28, Michael Klaus were terminated
4 Others were Martin, James Bussard , Dennis Schlamm, Pat
Strzyzewski , Nancy Gauger , Nancy Miller, and Michael Klaus (whose
signed card bears the date of August 20)
5 Bussard and Strzyzewski also passed out cards
6 At this time , a petition had already been filed on September I
T Respondent 's position in this case is that all the alleged discriminatees
were terminated
9 General Counsel relies on these exhibits for corroborative purposes
but does not allege violations per se
9 The evidence is largely interrelated and does not lend itself to
or laid off - a matter in dispute. On August 26,
Respondent distributed a leaflet to all employees denying
alleged accusations of the Union that Schaetzel and Fields
were discriminatorily discharged and asserting that they
were included with several people, naming Neary and two
others, in a "general layoff" for economic reasons, and that
all these laid-off employees would be recalled in the event
of a "business upswing." On September 23, Eisch Matajac,
Morris, and Behling were terminated or laid off-also
alleged as violations . ? In evidence are a series of preelection
campaign leaflets, dated on and after October 21,
disseminated to employees by Respondent.8
Concurrently, scheduled speeches on the subject of the
Union were delivered to assembled employees on company
time and premises. On October 14 and October 26, the
speeches were made to four different groups of employees
on each date; on November 3, the speeches were made to
three such groups; and on November 11, the speech was
purportedly read from a prepared text to an overall group
of about 75 employees. Questions from employees were
invited and discussed at all but the last meeting. C. E.
Werner, vice president and general manager of Respon-
dent, did substantially all the talking at the meetings, with
Attorney Clifford present except during the final speech.
On November 12, the election was conducted, as earlier
described.
Werner indicated the hierarchy at Milwaukee: Immedi-
ately under him is his assistant, Harry Gaffney, then
Lawrence Carpenter, Michael Joyce, and Elaine Klenz. The
top salesman at each branch is the manager there. Werner
is in charge of all operations and makes the ultimate
decisions in all hiring, discharge, wage, and policy
questions.
B. Essential Issues
Under Section 8(a)(1) are numerous allegations of threats
of plant closing, layoffs, job loss, union-provoked violence,
and other detriments; a variety of threats described in
terms of general conclusions; specific instances of interro-
gation ; surveillance of a union meeting ; wage increase as
inducement ; withholding wage reviews and increases;
promise of improved health insurance ; suggesting the
employees seek some labor organization other than the
Union; and others .9
Under Section 8(a)(3) are alleged the discriminatory
layoffs of eight employees, previously noted, and the
transfer of James R. Bussard to a less desirable job.
Under Section 8(a)(5), the main issue raised is that of a
refusal to bargain on evidence of a majority of union
authorization cards preceding the election, with principal
reliance placed on the Gissel case 10 to justify a bargaining
order based upon Respondent's "extensive" and
treatment, as Respondent has drawn its brief , by attempting to match
specific testimony to each specification in the complaint . Certain of the
allegations are stated in terms of general conclusions as, for example, that
Respondent in the speeches threatened employees "with an atmosphere of
hatred, bitterness , strikes, and unspecified hostility and acrimony in the
event the Union was selected " Such a conclusion, if made , can only be
derived from a general context or a course of conduct and would be
appropriate, in my view, only to summarize the nature of particularized
violations
10 N LR B v G,ssel Packing Co, 395 U S 575
WISCONSIN BEARING CO.
"pervasive" unfair labor practices. In addition, it is alleged
that Respondent unilaterally improved employee health
insurance, and that it requested employees to submit their
grievances directly to Respondent (i.e., bypassing the
Union).
C. Specific Incidents of Restraint and Coercion
1. Michael Joyce is the overall supervisor of the
machine shop and warehouse, which is inclusive of the
delivery functions. On Saturday, August 22, Joyce came to
the home of Mildred Meier, a truckdriver. Meier testified to
a conversation between them in her backyard. He asked if
she knew anything about this union business. She said no.
He asked if she knew "who the ringleaders were or the
instigators, some word like that." She said no, although she
thought it was Roger Fields in the machine shop. He said,
"I think I know who's behind it, Roger in the machine shop
and John Schaetzel." He had never visited before at her
home.
Joyce testified, in substance, that he regularly drove by
Meier's house on his way to and from work. In early
August, she had bought materials at the warehouse for her
husband's racing car. He had previously noticed this car in
the yard when he passed by. On August 22, about 3 p.m., he
was returning from the office[[ with his young daughter
and her friend and stopped to talk to Mr. Meier and one of
the sons when he saw them working on the racing car.
Someone then went to get Mrs. Meier. He first became
aware of any union activity on August 26 upon being
handed a union leaflet outside the plant. He had not
discussed the Union with Mrs. Meier, and he never talked
to her about Schaetzel and Fields.
The evidence as to this incident in particular has been
closely examined. By her demeanor, the detailed nature of
her version, and other factors in this record, I am persuaded
of the trustworthiness of Meier's testimony. Joyce is not
credited that he lacked knowledge of the Union until
August 26. He did not attempt to give affirmative testimony
of his conversation with Mrs. Meier; and the circumstances
he described of the visit to her house are much less than
convincing.
2. Under Joyce, the machine shop consisted of three
full-time employees, Fields, Matajac, and Martin; three
regular part-time employees, Murphy, McGill, and Gumm;
and two employees who worked only when called, Knitchik
and Fretchel. On August 21, Fields solicited Murphy and
McGill, neither of whom signed a union card. On August
24, in the morning, Fields was laid off by Joyce. Later in the
day, Matajac heard Werner, Joyce, and Murphy discuss the
Union. Then Murphy came to Martin and Matajac and
related that Werner had told Joyce not to hire anyone who
has a union in mind. Matajac's testimony is not controvert-
ed.
3. On Monday, August 24, Betty Bigelow, a truckdnver,
returned to work after a vacation. During that week, when
Joyce brought packages to her at the loading dock, he asked
if she knew who besides Nancy (Miller) was going to union
meetings . She said she did not know.
251
The following week, while she was having lunch in the
machine shop, Joyce inquired if she had signed a union
card, and she said yes. He asked if she knew whether
"Millie" (Meier) had signed, and her reply was she thought
Millie had. He then stated, "I don't know what you people
are doing . . . because Mr. Werner said if you go on strike,
you can strike six months or longer. He didn't care."
Joyce denied that he spoke to Bigelow concerning the
Union before August 26. He gave shifting testimony as to a
possible conversation after such date. However, referring to
early September while Bigelow was on the loading dock, he
had inquired if there was a big discussion at her house
about the Union and what did her husband think of this.
She answered that her husband's advice was to do what the
majority does. Bigelow is credited as to both incidents.
4. In mid-August, Joyce approached Nancy Gauger
and Nancy Miller at the wrapping table. He asked if they
heard any rumors about a union being started. They
answered affirmatively. He asked if they were going to join.
Gauger said, "definitely," and as Joyce walked away,
Miller said she would too.
5. In mid-August, Schaetzel overheard the following
conversation at the shipping table from a distance of 15-20
feet: Joyce asked Michael Klaus if he knew anything about
the Union and which of the employees were involved.
Klaus did not testify, and Joyce was not questioned.
6. As Dennis Martin testified, on August 26, in the
morning:
Mike Joyce came up to me and said I hope you have
nothing to do with what's going on around here. And he
said because if you do, he said you could cost me my job
plus your own because the old man wants to close the
machine shop the way it is. And I asked him who he
meant, Berry or Cy Werner, and he said Cy Werner. He
said that they could get along without the machine
shop, and he said well, what do you want? He said we
could get along just with the bearing repair. We don't
need the machine shop and Cy was thinking of closing it
in the first place.
Joyce did not directly recall a conversation with Martin
regarding the Union. He proceeded to explain that there
were numerous group discussions on this subject in the
machine shop. About August 27, the men (e.g., Martin,
Matajac) were talking about the Union getting a raise of $2
an hour. Joyce interjected that Werner was losing money
on the machine shop for years and was thinking of shutting
it down. "If it was losing money now, what do you think
Werner would do if he had double the wages [with the
Union]?" Then he said, "if it was me I'd close it down;
what do you think? And this was the basic conversation I
had with Dennis." Martin's version is accepted.
7. About August 28, Joyce came to Matajac and
inquired if there was going to be a union meeting. Matajac
said there was and asked Joyce if he had signed a card.
Joyce retorted that he would not sign a card because the
Union was trying to take food out of his family's mouth.
And he said, "I'll remember you for this." This utterance
was repeated two or three times whenever Joyce came into
the machine shop that day. Martin overheard part of the
ii Earlier he stated he was coming from his home on the way to the
office.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation: Matajac told Joyce he could not go to the
meeting because he was a supervisor. Joyce argued that he
had a right to go and listen at the meeting that night, and he
would see his lawyer about it. Joyce was yelling at Matajac,
"I'll remember you, John." In his testimony, Joyce denied
ever telling Matajac, "you'll be sorry."
8. On September 23, Cynthia Behling was informed by
Supervisor Carpenter that she was being laid off from the
cardex section. Her testimony is undisputed that he told
her, "because of the Union, we would have to lay off by
seniority," and "before the union ... they could pick and
choose who they wanted to lay off."
Concluding Findings
The various incidents described above were fully litigated
within framework of the complaint. Violations of Section
8(a)(l) are found as follows: (1) on August 23, interrogation
by Supervisor Joyce of Meier as to her own union activity
and that of other employees; (2) on August 24, the threat by
Werner, in Murphy's presence, not to hire employees who
have a union in mind; (3) in mid-August, two instances of
interrogation by Joyce of Bigelow as to her own union
activity and that of other employees; (4) in mid-August,
interrogation by Joyce of Gauger and Miller; (5) on August
26, interrogation by Joyce of Martin and threats of job loss
and closing the machine shop; (6) as General Counsel
stated at the hearing that a violation is not specifically
alleged, the evidence that in mid-August Joyce interrogated
Klaus in a similar vein, as above, is considered only for
corroborative purposes; (7) about August 28, interrogation
by Joyce of Matajac whether there was going to be a union
meeting, and threatening Matajac with reprisal, because the
Union would take food from the mouths of Joyce's family;
and (8) on September 23, Carpenter's statement to Behling
implying that the existence of the Union was the reason for
her selection for layoff, since Respondent would otherwise
not resort to seniority but would "pick and choose." The
clear and intended impact of this statement was coercively
to place the onus on the Union for her layoff.12
D. Surveillance
On October 22, at 7:30 p.m., a previously announced
meeting of employees was to take place at the union hall. At
7:45 p.m., Supervisor Carpenter appeared in the vestibule
of the building, from which a short hallway led to the
assembly hall where the employees were seated facing in
the direction of the hallway. Carpenter saw a former
employee, Joe Galinsky,13 and asked him to get Massman,
the union organizer. Massman arrived shortly thereafter.
He saw Carpenter standing in the hallway viewing the
assembly hall. The substance of the discussion was that
Carpenter wanted to know "what is going on," and sought
to attend the meeting. Massman told him he could not do
so as it was a violation of the law. He agreed to talk with
Carpenter and provide him with information at a
subsequent time. Massman left to get a business card. On
12 The series of interrogations by Supervisor Joyce during the same time
period are scarcely isolated , as argued by Respondent , but plainly fall into
a coercive pattern , especially when considered in the context of the other
unfair labor practices committed See Blue Flash Express, Inc, 109 NLRB
returning with the card , Massman saw Carpenter standing
in the vestibule at a place where he could be viewed by
some of the employees in the meeting hall. While both were
talking in the vestibule, people passed by. Carpenter
departed from the union hall after he was given Massman's
business card. Excepting Galinsky and Massman, the only
people at the union hall were employees or those recently
laid off.
Carpenter testified that he had seen a union pamphlet
that morning which charged that Respondent, in speeches
to the employees , had misrepresented the facts on items
such as insurance and profit sharing . He showed Massman
the pamphlets at the union hall and said he wanted to
attend the meeting to hear what was going to be said about
it, for his own information , as he was also a beneficiary of
these benefits. During his visit to the union hall, he did not
see any employees whom he recognized.
Two employees, Ella Brinkman and Virginia Stys, from
their car outside the union hall observed Carpenter enter
and leave . While waiting outside , Brinkman saw a "couple"
of employees go in . She had also seen Don Spot, a
telephone salesman , through the outside window of the
union hall. As a consequence, Brinkman and Stys decided
not to attend the meeting . April Glatch, inside the assembly
hall, could hear Carpenter talking to Massman although
she could not see him . From a long window on the street, a
passerby could look into the meeting room and see the
employees.
It is entirely evident that the employees at the union
meeting were aware of Carpenter 's presence at the union
hall. Whether Carpenter saw any of these employees is
immaterial, although he had ample opportunity to do so. It
is most difficult to accept Carpenter's version that he was
innocent of any intent to engage in surveillance . He holds a
high position in charge of the purchasing department and
the data processing and has been employed in a supervisory
capacity for 4 to 5 years. The union campaign had been
actively under way within Respondent's knowledge since
August. Respondent had already undertaken speeches and
distribution of literature to the employees. It strains
credulity that Carpenter was so naive as to think he would
be admitted to the union meeting or that he could
accomplish his stated purpose at the union hall. The true
facts as to the insurance and profit sharing benefits were
more readily accessible to him in management than the
Union. The alleged discriminatory layoffs had already
taken place, and the Union's charges had been filed with
the Board. The scheduled election was less than 3 weeks off.
It is a realistic assumption that , as of October 22, the union-
minded employees were acutely apprehensive of their job
security. The fact of Carpenter's appearance at the union
hall tended to intimidate those employees present and to
deter employees generally from attending union meetings.
There was actually such an effect on Brinkman and Stys.
Even assuming, as I do not find, that Carpenter came to the
union hall for the vague purposes he stated , Respondent
must be charged with the knowledge that employees were
591; Mitchell Plastics, Inc, 159 NLRB 1574
13 Galinsky was the "boy friend" of an employee and accompanied her
to the meeting.
WISCONSIN BEARING CO.
aware of his presence and could reasonably believe that
they were seen by him. Apart from Carpenter's motives, it is
the tendency of his conduct to interfere with the employees'
Section 7 rights that is controlling. Here there is also the
factor of Respondent's union animus, evident elsewhere in
the record. In any case, I am brought to the conclusion that
Carpenter's conduct was indeed intended to be and did
constitute surveillance, violating Section 8(a)(1).14
E. The Speeches
As previously indicated, there were 12 separate speeches,
on October 14, 26 and November 3 and 11, made by
General Manager Werner to the assembled employees.
During this preelection time period, Respondent also
distributed literature, in evidence, relating to matters in the
speeches. As to each speech, the employees were told by
their respective supervisors of the designated time for them
to attend and were, in practical effect, given no choice of
refusal. About 20 employees were present at each meeting,
except that 40 attended at 9:30 a.m. on November 3 and 75
attended the final meeting on November 11. The obvious
purpose of the meeting was to dissuade the employees from
supporting the Union, particularly with respect to the
forthcoming election. In the speeches, the same pattern of
subject matter appears to follow for each of the particular
days, and some of the same discussions were repeated on
succeeding dates. The meetings were not, as suggested in
Werner's testimony, devoted essentially to answering
employee questions.
The complaint alleges that in conjunction with the
required attendance of the employees Respondent made
threats, promises, and inducements as described in 18
specifications. Numerous witnesses for the General Coun-
sel testified in detail as to specified meetings, although the
meetings they attended, in many instances, did not
coincide. Undoubtedly Werner's remarks on specific issues
varied at different meetings. While some conflicts exist in
the testimony of General Counsel' s witnesses , these are not
of any major consequence. On the whole, their testimony is
mutually corroborative, substantiated in parts by material
in the written speech on November 11, and presents a fairly
consistent and clear picture. For Respondent, Werner was
the principal witness. Carpenter, who attended on Novem-
ber 3, was not questioned. Fred McClure, a telephone
salesman , gave sketchy testimony in answer to very few
questions and negligibly contributed to the record. Tyrone
Travert, assistant purchasing agent under Carpenter, was
questioned only briefly and had virtually no memory of
what was said in the meetings. Pearl Rocklin, a billing clerk,
was similarly terse, and was plainly confused and
unimpressive as to reliability. The latter were certainly not
the best witnesses available, and they scarcely covered the
major issues of the speeches. While at this point I reserve
credibility determinations, the general character of Wer-
14 Kingwood Mining Company, 166 NLRB 957, 958-959; Colo Well
Service, Inc, 163 NLRB 707, 713
is According to Werner, portions of the document he used were crossed
out in red pencil to shorten the speech , but that document "disappeared."
Later, his attorney (other than Clifford) reconstructed a copy of the speech
by placing masking tape over the portions which were purportedly not
read . Pursuant to instructions of the Trial Examiner, the masking was
253
ner's testimony on the speeches may initially be noted. He
could not identify his testimony as to any particular
meeting, even though in talking to the employees he
referred to notes in a little black book and was present in
the hearing room through the great part of General
Counsel's case. His testimony was well confined to selective
questions, he did not attempt to relate in narrative the
substance of any meeting, and he failed to meet certain of
the significant testimony of General Counsel. He was
frequently vague, verbose, unresponsive and, in my
judgment, distinctly evasive. Consideration has been given
to all the evidence, and essential findings will be made
without elaborate detail.
Werner testified that the last speech, on November 11,
was read verbatim from a prepared text, and a copy was
supplied by Respondent.15
The November 11 speech will first be considered, as the
material therein is relatively fixed and serves to clarify or
resolve some of the disputed issues involved in the previous
meetings. The following are excerpts: 16
You'll notice for the first time in my life I'm talking
to you from a written text. I hate to do this but Mr.
Clifford tells me that it's necessary. I guess he's tired of
so many lawsuits.
*
I really thought that I had done everything I could over
the years. . . . [It isn't so because there are quite a
number of legitimate complaints and problems that
haven't been solved. There appear to be some inequities
in the salary situation and there most certainly appears
to be less than adequate communication.]
* * * * *
[But suppose the union-forced strike hangs on . . . as
such strikes have been known to do.. . . What happens
to the Company? Well, first of all, we certainly would
try to service our accounts through the other branches.
Naturally, we would try to get the Butler Branch going
soon enough to take up part of the slack here in
Milwaukee. . . . And you and I know that our
customers aren't going to wait for the strike to be over.
That they would have to go to someone else.] Suppose,
for example, we lost maybe (30%) of our business here
in Milwaukee. Then when the strike ended, we could
have lost maybe (30%) of our jobs.... But if you were
one of the (30%) who found himself or herself, in these
increasingly bad times, looking for a job that couldn't
be found, you might then wonder if it was all
worthwhile.
And Mr. Clifford has told us that, under the law, in
an economic strike we're entitled to keep operating,
removed, and brackets were inserted to indicate the masked portions.
While these portions are not crucial, I take the entire document in evidence
as having been read.
16 The brackets are indicated as to the previously masked portions,
supra, parentheses show interlineations in Respondent 's handwriting; and
the underscoring is in the original.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we're entitled to hire replacements to permanently
replace anyone who goes on (such a) strike.
s : s s s
But suppose there was union provoked violence? If
you wanted to come to work, would you be willing to
try to walk through a line of people using foul language
and pushing and shoving? As you well know, these
things do happen on some picket lines . And no union
that I've ever heard of uses only company employees on
a picket line. They generally have a fair number of
pretty rough customers that they bring in from other
places. Unfortunately, the law says this is perfectly
legal. So if you have some idea of walking through a
picket line composed only of your friends , and just
having some kind of a gentle, lady-like discussion, give
it another thought. You could easily be confronted by
some real tough customers that you didn't know and
who didn't know you and couldn't care less about you.
s s s s s
[We've tried to save jobs where we can and] if this
Butler situation works out the way I would like it to
work out, it's entirely possible we can save everybody's
job [who wants to continue to work here, with no loss of
seniority.]
0
[You know our sales are down and I'm telling you now
our profits are off by 50%.] If there was ever a time
when a union could do harm in this little place, it must
be right now.
s s * s
Do you know of one single instance, just one, where any
nonunion company took anything away? Of course not!
But I know of a company where a union bargained
away a cost-of-living plan to get a dues checkoff!
As you well know, it's our sincere hope that you will
feel that you really don't need an outside union. But in
any event, it would seem that this one is probably
among the least suitable ones that could possibly be
found. Now to the best of our knowledge, they have
four contracts here in Milwaukee. So far as we can find
out, not in one single instance do they represent any
office people.
I'm sure you realize that not all unions are the
same-any more than all companies are. And that there
has just got to be something really different about this
one-else why were they thrown out of the AFL-CIO?
s s s s s
Nor have they ever denied that for years they jumped
on the bandwagon of every Communist [backed] cause
in the United States! ... And three men who were the
top men of this union then are still the three top men.
As you know, I recently reviewed the salaries of every
individual person here. While there certainly are cases
where increases weren't granted [where they should
have been], there have been substantial increases
granted and there have been regular and periodic
increases granted.
.. . we are even right now trying to work out transfers
to save jobs that may be threatened by the tailspin in
business.
I guess I've painted a pretty gloomy picture of what
the future could be here with this outside union in here.
Frankly, I'm scared of why they might do. I honestly
believe that they not only could but would, do
harm-harm that might be impossible to repair.
* s s s
As you know, we're trying very hard to minimize the
impact of loss of business. As I mentioned, in the big
unionized plants, they don't make any such efforts at
all. When business is down, people are sent home . It's as
simple as that. We don't want to be that way. . . . For
example, we'd like to be able to staff the Butler office
with people from here-people who want to go.
If you are sincerely convinced that there is no hope at
all for you with your own company-and also sincerely
convinced that this particular union is the best one for
you-then I suppose you will feel you must vote against
us.
Turning to the earlier speeches, made without script, the
following is the substance of General Counsel's
testimony: 17
The October 14 Meeting
Werner asked why the employees did not go to him with
their problems instead of going to the Union . With a union,
there would be a "wall" between hirq and the employees,
and they couldn't see him any more with their problems but
would have to go first to a union representative.
composite form covering more than one meeting17 Of practical necessity, for clarity, and as I view the rounded
substance of the testimony, the particular subjects described are partly in
WISCONSIN BEARING CO. 255
If the Union came in, and he could not meet the union
demands, there would be a union-forced strike.18 He did
not even know what the demands would be.19 If there was a
strike, the Company would just have to close the
Milwaukee plant and operate out of other branches. If there
was a strike, the Company would lose its customers, and
therefor it would go bankrupt.
In order to meet the Union's demands, he would have to
raise the prices, and customers would go to the competition
which did not have a union. As a result of this, more people
would be laid off, and possibly the plant would close. He
couldn't afford to pay union wages, and because he could
not raise his prices, he would go broke.
If the Union got in (and obtained a union shop), he could
fire them for not paying dues. Attorney Clifford (at some
meetings at least) explained the operation of a union shop
and a checkoff, and the requirements for paying dues.
If the Union got in, he would not have the power to hire,
or to fire, even if the employee was a "goof off."
He was looking for a building to open a new branch in
Butler20 in order to provide better service for customers in
that area. He had to go to Butler because he was really
going broke, and that was where the big companies were.
There would be job opportunities and some employees
might be transferred out there instead of being laid off. If
the Union got in and started to strike, he would operate out
of Butler , or if that wasn't ready he could operate out of any
other branch.
It was costing the Company too much money in making
its own deliveries; an outside firm could do it for less.
Virginia Stys stated she wanted to ensure that she would
be reviewed for her yearly raise, due in November. Werner
said "he couldn't give raises now, because of this union
business , and because of this, a lot of people who would
have been reviewed, weren't ... ." After the union
business was over, he would review these people who had
not received raises and go back to the same policy as
before. However, at such time no raises would be granted
retroactively. Questioned as to why an employee did not
receive her raise after one year and why the annual raises
had not been given automatically, he replied, in part, that
perhaps they were overlooked. He indicated wage reviews
are due a year from the last raise. He could not give raises at
this time because it might be considered bribery. Instead of
asking about raises , they should be thinking of a cut. At
another point, he said that the only way he could give raises
was if everybody worked hard and sales went up.
Werner said he would check on questions concerning
health insurance-which was the subject of some discus-
sion.
The October 26 Meeting2l
Werner had specific information on health insurance,
which he explained by using the blackboard. The insurance
company had been reviewing the current policy and
indicated there would be changes and a higher premium for
the Company. These changes had been under negotiation
for some months, since March or April. He announced that
an improvement in benefits22 would be put into effect as of
November 1.
The cardex girls would be laid off in about a month (upon
conversion of this operation into the existing computer
system, as had been discussed with the employees for a long
period).
At Allen-Bradley, the strikers had a rough time and
received no strike benefits. The Union had not told the
employees there would be no strike benefits. The dues for
union members at General Motors were raised $10 a month
to support the strikers, and that might happen to
Respondent's employees.
Nine times out of 10 when there is a strike, the union
brings in outsiders on the picket line. If there is a strike, the
employees trying to get to work would be subjected to
verbal and physical abuse.
Werner was asked why Behling received only 15 minutes'
notice of her termination.23 He said her supervisor
complained that they had trouble with her.
The money that was in profit sharing belonged to the
employees, but if the Union got in, it would be different,
according to what the Union stated.
This was not a very reputable union. Why not another
one? "Why the UE?"
Asked if he would negotiate reasonably with the Union,
he said it depended on what was meant by reasonably.
The November 3 Meeting24
Two high officials of the International Union had once
been tried for being Communists; the charges were never
proven and were dropped; the same two men are still the
head men of the U.E.
Although the witness was not sure whether Werner
specifically mentioned the Machinists,25 he did say the
other union was a stronger and better union.
If the employees would stick with him, they could do
better; and if the economy got better, they would all get a
raise.
If there was a strike, he could hire other people to come in
and take over their jobs.
Werner's Testimony
On October 14 he did not have the answers to questions
18 Strikes were mentioned at every meeting
19 Some of the General Counsel 's witnesses testified he did not make
such a statement Werner testified that he did However, on the evidence,
he might well have made different remarks at the four meetings conducted
on October 14. In either event, I do not find that this comment is
materially significant
20 Located in Wisconsin , about I I miles from the Milwaukee plant.
Werner testified that, at a subsequent date, Respondent had leased a
portion of a building which it expected to occupy in late January or
February Construction of the building was started after his speeches
21 Insofar as the statements are not essentially repetitious of those
described as to October 14
22 Principally, the hospital room coverage would be increased from $20
to $40 per day, and the maximum major medical would be raised from
$10,000 to $15,000 Around December, the employees received a pamphlet
(in evidence) showing the insurance changes
23 Other cardex employees, terminated about December 24, were given
I week's notice and severance pay
24 Insofar as the statements are not essentially repetitious of those
described as to October 14 and 26.
25 The Machinists initially intervened in the representation cases, but on
October 21 it was permitted to withdraw prior to the election
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about insurance, so he said he would have to check with the
insurance company. There were many questions about
strikes. He answered that only the Union could force a
strike . On being questioned, he told them about the union
shop and discharge for failure to pay dues. As to union
demands, he said he could not reply because he did not
know what these would be. The Butler branch was
mentioned at every meeting. It had been discussed for 7 or
8 months. He was attempting to get a location there to
protect his customers with better service. If there was a
strike , he would continue to operate at Milwaukee, Butler,
and all other branches.
About raises, it was explained that a raise is given after a
90-day probationary period, and then a year from that
time; pay status would then be automatically reviewed In
some cases, employees got raises before the year was up He
told the employees that, if the economy permits and "when
he is legally able," he would review the records and make
promises as to whether a raise would be given. He denied
that he asked, "Why the UE?" He told them he didn't think
the U.E. had sufficient experience in office and clerical type
work to be able to come into this plant. On cross-
examination , he admitted that he possibly said, "Why this
union?" He read them a newspaper article about Allen-
Bradley where employees voted to reduce their hours rather
than take a layoff. This answered a question whether there
would be layoffs if the Union got in. He promised the
cardex girls in one of the speeches that they would be given
a week 's termination notice and severance pay, but he did
not know about Behling.
The foregoing is substantially the testimony of Werner on
the speeches. Three other witnesses testified for Respon-
dent, as already described. McClure's entire testimony on
this subject was that Werner said he would hate to see a
strike if he could not meet the demands, of which he knew
nothing about. Travert attended the meetings but could not
recall anything of substance. Rocklin testified that, at the
first meeting , Werner told them that if they had any
question about raises they could visit him in his office. At
the last speech, on November 11, he answered a question
about raises , stating that employees would have to wait
until this was all over As set forth above, the General
Counsel's testimony is credited.
Concluding Findings on the Speeches
Werner was entitled to apprise the employees of the facts,
as he contended , and even if they were not the facts, his
statements were privileged to the extent that they were not
directly or impliedly coercive. However, albeit with the
presence of counsel, he launched upon a rather uninhibited
and wide open course of speeches and, at the least, he
assumed the risk of conveying his remarks in a manner that
the employees could reasonably construe as coercive. This
risk is especially pronounced in circumstances as present
here, where employees were addressed in a compelled
audience ; union animus was the unmistakable theme; the
employees were relatively unsophisticated in this type of
organizational conflict; they were with justification sensi-
26 N L R B v Gissel Packing Co, 395 U S 595 (1969)
27 NL RB v Varo, Inc, 425 F 2d 293, 300 (C A 5), and see, N L R B
tive as to their job security and wages in view of recent
layoffs and withholding of wage reviews; and the vantage
of superior knowledge lay with the Company, as well as the
real control over employment conditions.
In the recent Gissel case,26 the Supreme Court specifically
addressed itself to the long controversial question of speech
within the purview of the Act, such as those made here,
during a "nascent union organizational drive, where
employers must be careful in waging their antiunion
campaign." Standards were articulated by which it may be
determined whether a "company prediction of the possible
effects of unionization is proper and permissible," 27
bearing in mind the constitutional guarantees written into
Section 8(c) of the Act
. . Thus, an employer's right cannot outweigh the
equal rights of the employees to associate freely, as
those rights are embodied in Section 7 and protected by
Section 8(a)(1) and proviso to Section 8(c). And any
balancing of those rights must take into account the
economic dependence of the employees on their
employers, and the necessary tendency of the former,
because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear... .
... an employer is free to communicate to his
employees any of his general views about unionization
or any of his specific views about a particular union, so
long as the communications do not contain a `threat of
reprisal or force or promise of benefit.' He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective facts to convey an employer's
belief as to demonstrably probable consequences
beyond his control. . . . If there is any implication that
an employer may or may not take action solely on his
own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no
longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation
and coercion, and as such without protection of the
First Amendment.
Applying the standards of the Gissel case, as well as
viable Board precedents, I find there were numerous and
repeated predictions by General Manager Werner, made to
the employees in an aura of virulent union hostility, which
were not "demonstrably probable consequences beyond his
control" and based on objective facts but rather were
threats of retaliation based on misrepresentation and
coercion. In the entire context of the litigated speeches
within the embrace of the complaint, the following
statements amount to coercion or other interference
violative of Section 8(a)(1):
(I) The predicted inability to meet the Union's demands,
which were then unknown to Respondent, would result in
v Lenkurt Electric Company, Inc, 438 F 2d 1,102 (C A 9), Bancroft Mfg
Co, 189 NLRB No 90
WISCONSIN BEARING CO.
loss of customers, layoffs, possible plant closure, and
bankruptcy.28
(2) The repeated emphasis on union-forced strikes as an
inevitable consequence of unionization,29 with the resultant
loss of customers and eventual bankruptcy.
(3) The constant reference to opening a nearby branch in
Butler, with six branches already existing, could only have
been intended, and could reasonably have been understood
by employees, to discourage union support. Used in various
ways, it forecast the complete futility of a strike, as
Respondent would remove the struck operations to Butler
and other branches impliedly on an indefinite basis; it also
held out inducements of job opportunities or transfers
instead of a layoff as an implied reward for taking the side
of Respondent against the Union.
(4) If the employees would stick with him (and reject the
Union), they could do better; if the economy got better,
they would all get raises
(5) In the event of a strike, employees seeking to cross the
picket line would be subjected to verbal and physical abuse
at the hands of the Union.
(6) The Union is not suitable or competent to represent
the employees; it is not a reputable organization, still
having high international officials who were notoriously
involved in court cases as alleged Communists; and in this
context, Respondent suggested another union, such as the
Machinists, with the purpose of diverting the employees
from the U.E. The violations consist of a breach of required
neutrality and interference with the guaranteed right to
employees to a free choice of representative.30
(7) With the Union, there would be a "wall" between
Werner and the employees, as they could no longer deal
directly with Respondent concerning their problems and
grievances.31
(8) Raises were withheld and could not be given now
because of "this union business." The issues concerning
raises will be further discussed infra.
(9) Predicting that selection of the Union would only
result in "harm." 32
While Werner's discoursing on the operation of a union
shop and checkoff confused some of the employees, who
construed the statements as automatically requiring
membership and payment of dues at the peril of theirjobs, I
am satisfied that Attorney Clifford's intercession with
explanations of these technical subjects was probably
sufficient to remove any implication of coercion. Similarly,
as to the permanent replacement of strikers, while the
manner it was explained to employees may have been less
than complete and clear, the November II speech refers
specifically to an economic strike. I find no violation.33
Other subjects covered in the speeches, e.g., health
28 There is nothing to demonstrate that the Union's as yet unannounced
demands would substantially enhance the Company's costs , or that the
Company "could not, in fact , meet higher labor costs out of current levels
of income , or out of increased income , or from reduced costs in other
areas " Mon River Towing , Inc v N L R B , 421 F 2d 1, 11 (C A 3)
29 See Tommy 's Spanish Foods , Inc, 187 NLRB No 31
30 E.g , Newburgh Steel Company, et a!, 146 NLRB 1101 Standing
alone , the labeling of union leaders as "Communists " is privileged E g,
Globe Wireless, Lid, 88 NLRB 1262, 1263
31 Proviso to Section 9(a) of the Act
32 Block-Southland Sportswear , Inc, 170 NLRB No 101
33 Cf Tommy's Spanish Foods , 187 NLRB No 31
257
insurance and comments relating to the layoffs, are
separately treated below.
E. Wage Increases
In their hiring interviews, and in their general employ-
ment, employees were led to expect annual wage incre-
ments. The evidence clearly indicates the practice of
granting annual wage reviews as to each employee 1 year
after the last raise. Werner explained that annual increases
were not as such automatically granted. However, I find
there was in effect a typical program of annual merit
increases, in the respect that upon the wage review, absent
adverse factors in the employee's performance, the increase
would be granted. Thus, Respondent's established practice
constituted an existing term of employment, regularly
expected by the employees as a form of compensation.
Following the Union's advent, these wage reviews were
admittedly withheld from a large number,34 but not all, of
the employees, because of "this union business" and to
avoid the charge of bribery. Without more, it may be found
that such a withholding was unlawful.35 Additionally, the
evidence well reveals that Respondent exploited the
sensitive question of wage increases to its advantage during
Werner's antiunion speeches and in the preelection
campaign.
At the November 3 speech, John Hopple had asked a
question concerning wages and was afterwards summoned
to Werner's office. In the presence of other supervisors, he
was handed a memorandum 36 in which he was granted an
hourly increase of 15 cents.37 Werner told him that, while
about 19 other employees were waiting or qualified for
wages, he was one of the "chosen few" because it was
thought he could do something for the Company. I am
unable to accept Werner's asserted justification for this
exception, which was predicated on his subjective judgment
that Hopple, like a few others, was a hardship case because
he had a "new baby" in the family.38 The position of
Werner that the annual wage reviews were in effect
precluded by the pending election proceeding is rejected as
without merit in law, as not advanced to the employees in
good faith, and as discriminatorily applied. The employees
could reasonably infer from the discriminatory applications
that Respondent's purpose was to discourage their support
of the Union. Violation of Section 8(a)(1) is found as to
those employees who were disparately granted raises, and
as to those employees who were denied annual wage
reviews which were due following at least Respondent's
receipt of the Union's recognition demand.
34 Werner estimated "safely" that the figure was between 10 and 19
employees
35 Eg, The Gates Rubber Company, 182 NLRB No. 15. And see The
Udylire Corporation, 183 NLRB No 23, in TXD
as Dated prior to November 3.
37 He had previously received a 15-cent raise on September 28,
apparently as a result of an annual wage review
35 Werner indicated 2 or 3 others were given raises about the same time
on similar hardship grounds, including Strzyzewski , and that, since August,
there have been 3, 4, or 5 raises Records in evidence show that during this
period in question raises were given to 12 employees, of which 7 were
granted on October 19 ; some were within the year, and some were annual
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Layoffs
Schaetzel and Fields
On Monday morning, August 24, Supervisor Joyce told
Schaetzel that Werner had instructed him to lay off
employees in the warehouse, and that Schaetzel might be
laid off because of his attendance record. Schaetzel said he
was ill and received permission from Joyce to leave work.
The next day, when he reported for duty, he was told by
Michael Klaus to go home and not return.39 Since
Schaetzel was hired in July 1969, Respondent knew he was
a diabetic and needed regular insulin treatment. Joyce was
aware of the problem and was admittedly "not too
disturbed" at times when Schaetzel failed to call in his
absence. Other employees had numerous absences. Werner
conceded that it is not the actual number but the reason for
the absence, such as illness, which is controlling.40 This
ground loses further credence by virtue of the evidence that
Schaetzel was awarded an extra pay raise in December
1969, and told by Joyce it was because of superior work
performance.41
Joyce testified that a meeting of supervisors was held on
August 17,42 at which time Werner decided, for economic
reasons, to lay off one employee from each department in
accordance with seniority.43 This ostensibly firm decision
on August 17, or earlier, to lay off particular employees was
not carried out until August 24 as to Schaetzel, Fields, and
Neary, and not until August 28 as to Klaus. Questioned on
cross-examination, Werner gave vague reasons. Joyce said
there was a need for personnel at that time to take the
annual inventory, usually done the weekend before Labor
Day, but he wanted to accomplish as much work as
possible before that time.44
As previously described, the machine shop consisted of
three full-time employees, three regular part-time employ-
ees, and two "on call" employees. When Fields was laid off
by Joyce on August 24, he was informed that his selection
was not according to seniority but because he had less on-
the-job experience than Matajac.45 He was told the
Company could not afford his wages, and that the part
timers would also have to be let go. Describing Fields as a
39 Joyce was away from the plant, and Klaus was acting as "leadman"
in charge of the warehouse section Klaus was then replacing Lorraine
Eggleston while she was on summer vacation for 2 months
40 Leroy Orchekowski also had a poor attendance record , and had
absences from work occasioned by a drinking problem , known to
Respondent
41 Joyce professed a lack of knowledge of the raise, while Werner
admitted it was approved by him
42 Carpenter 's version on direct was that Werner first discussed
economy measures the first week in August , and names of employees may
have been mentioned On cross, he stated that the first time Werner talked
to him about cutting down overhead was in June, maybe . During the first
week in August, it was definitely decided to cut down Then he said, about
August 15 or 16 at a supervisor's meeting, instructions were given to lay off
specific employees , i e, Schaetzel, Fields , and Neary Werner testified that
the supervisors ' meeting took place the first week in August , and that there
were many discussions with individual supervisors in the preceding weeks
Joyce disavowed his pretrial statement to a Board agent, confronted, he
admitted portions which conflicted with his testimony Elaine Klenz , office
manager, who was named as also present at the supervisors meeting, was
not questioned on this subject Assertedly , Eggleston was also consulted by
Werner about the same time concerning the number of drivers she needed
for deliveries , she was not called to testify
43 The general policy for these layoffs was described by Werner as
trainee , and Matajac as having previous shop
employment,46 Werner indicated that in laying off Fields
seniority was followed within the trainee category. As
further revealed infra, there are many inconsistencies in
Respondent's application of its stated policy of following
departmental seniority regarding the layoffs, and I find this
defense entirely dubious on the evidence. Werner sought to
provide an additional ground for the layoffs in the machine
shop. Originally he had set up the machine shop in
Milwaukee by employing only part- time retired machinists
"on call." Since April or May, he talked to Joyce many
times and "instructed" him to go back to the old system. He
stated that Joyce replied he would do this on an attrition
basis, Werner adding that there have been no hires in the
machine shop since April or May.47 Fields and Matajac
were hired in May, and after Fields was laid off,
Strzyzewski was transferred as a full-time employee from
the warehouse to the machine shop. As of the hearing, the
machine shop was operating with the same number and
type of personnel as before, less one full-time employee. I
find this aspect of the defense unsubstantiated, conflicting
in the specific evidence , and implausible.48
According to Werner, all decisions were made by him
alone to effect various economy measures necessitated by a
serious downturn in business (a "tailspin"). Having at first
testified that he did not consult any superior concerning the
"termination" of employees, he was shown his pretrial
statement taken by a Board agent . He confirmed as correct
that "about two and a half months ago Mr. Berry came here
and we reached the decision that we would have to reduce
our payroll immediately." Explaining further, he said that
Berry merely indicated profits were down and told him to
use his judgment on how to remedy the situation. He
testified that he has no access to reports on Company
profits, but is only told generally when they are up or down.
From an account of shipments and orders, he can only
make an estimate of monthly sales toward the end of each
month. After the close of the hearing, an affidavit was
received49 purporting to show official information on
Respondent's sales and profits for the past 5 years covering
the consolidated operations at Milwaukee and the branch-
based on departmental senionty . In Respondent 's testimony , it is obscure
as to what constitutes a department for such purposes.
44 There is a complete absence of corroboration from any of the
numerous witnesses that inventory work was performed by the employees
in question , or the general help, during August
45 Matajac was hired after Fields.
48 Both answered Respondent 's advertisement for machinist trainees,
Fields was hired at $2 10 and Matajac at $2 35 an hour.
41 Joyce called this a "pet peeve" of Werner, dating back 5 or 6 years.
Joyce himself wanted full -time people and not so many wondering when
they are coming in. Later, he testified that he has Werner convinced he will
always be able to keep one full -time employee, but the rest he wants on
part time As will be shown, this does not accord with the actual machine
shop complement at the time of the hearing
48 Credibility also enters into this opinion , as Werner's testimony
generally impressed me as unreliable.
49 The affidavit was not admitted in evidence . It was included by the
reporter in the exhibit file as G C Exh . 25, which was identified , but not
offered, as Werner' s notes of a telephone conversation concerning this
information Werner testified as to the same data he was given on the
telephone . The affidavit was presumably intended to be furnished in
response to the General Counsel's subpoena , served January 5. The affiant,
however, was not presented to testify
WISCONSIN BEARING CO. 259
es. Werner testified that a breakdown as to Milwaukee
alone was not available. The figures below, taken from the
affidavit. reflect annual fiscal periods ending August 31:
Year Sales Net Profits
1966 $7,348,769 $130,350
1967 7,574,526 173,576
1968 7,603,961 170,586
1969 9,013,597 178,543
1970 9,357,887 105,872
Thus, it is noted that sales were up in 1970. And monthly
sales were ostensibly the main information accessible to
Werner when the layoffs in question were effected,50 while
he had only been generally advised by Berry that profits
were down. Werner testified that, in the last 10 years, the
Company has grown at an "exceptional rate."
During this same period, there were no layoffs in any of
the branches.51 And there have been no prior layoffs in the
history of the entire Company. Since the various layoffs in
question, Respondent reemployed a veteran returning from
military service and assigned him to the warehouse, but it
has done no further hiring. Some employees have been
transferred between departments. The employees had
regularly worked, at their option, at least 5 hours of
overtime per week; such overtime work continued after the
layoffs. In 1970, Respondent contributed $50,000 into the
profit-sharing fund, as it had in prior years, although there
is specific provision for a reduction in contribution "if
earnings for any fiscal year are reduced . ..."
Schaetzel and Fields were leading organizers of the union
movement, which took concrete form on August 17.
Following this date, employees were solicited in the plant to
attend the initial union meeting on August 20 and to sign
authorization cards. Joyce was not unaware of these
activities, as he claimed, but engaged in interrogations
beginning at least August 21, supra. On Saturday, August
22, he visited Meier's house and sought confirmation of the
identity of the instigators, whom he thought were Schaetzel
and Fields. The next working day, they were laid off,
together with Barbara Neary. These, as well as the other
alleged discriminatees, were severed without notice in the
middle of a payroll period. And that week preceded the
annual inventory in which all employees are normally
utilized and work substantial amounts of additional
overtime. Thus, the timing is significant, though purported-
ly the decision had been made earlier and action withheld
until August 24. Respondent's antipathy toward the Union
is well documented. As above described, and I find, the
various economic grounds it advanced are seriously flawed.
In particular, I am unable to credit the testimony that a
decision to lay off specific employees had been made on or
before August 17. Rather, I find that these decisions must
have been reached only after Respondent's knowledge of
the Union's campaign. While it is unquestionably an
independent business judgment at any time as to whether
economic conditions require personnel reductions, the sales
and profit data supplied do not on their face compellingly
support Respondent's contention here. On this entire
record, it is concluded that Schaetzel and Fields were
discriminatorily selected for layoff although actually
intended to be terminated. Accordingly, these alleged
violations of Section 8(a)(3) are sustained.
Neary and Klaus
Barbara Neary was also laid off on August 24, and
Michael Klaus on August 28. Neary was employed in
expediting, which is part of the purchasing department.
Supervisor Carpenter testified she was specifically named
at the supervisors meeting with Werner as the least senior
employee, presumably of the expediting section. She did
not sign an authorization card.
Klaus was not mentioned in the testimony concerning the
supervisors meeting. At the time of his layoff, he was acting
in charge of the warehouse section in place of Eggleston, on
a 2-month summer vacation, supra. He signed a card,
attended the original organizational meeting at the union
hall on August 20, and was among those interrogated by
Joyce. Although laid off on August 28, the parties agreed
that he is in the unit for the purpose of deciding the
question of the Union's card majority. He worked as a
stock clerk in the warehouse when he was not substituting
for Eggleston. Concerning Klaus, Werner gave the reason
for his layoff that he was a student who would return to
school and that his future status with the Company was
uncertain.52 Thus, Klaus' selection appears also to be a
departure from the seniority standard avowedly employed
in the layoffs. With Klaus, there is a sufficient basis for an
inference, which I draw, that Respondent was aware or
suspected his active participation in the Union, and that
this was the true motive for his severance.
General Counsel contends that Neary was chosen in
order to camouflage the termination of the known union
activitists.53 The inclusion of Neary with the layoffs of
Schaetzel, Fields, and Klaus at essentially the same time
50 The following are comparative sales figures for Milwaukee and
branches for particular months
1969 1970
June $801 ,000 $767,000
July 785,000 759,000
Aug 678,000 668,000
Sept . 711,000 699,000
51 However, there were two hires in Racine in November and
December , one hire in Wausau in October , and one hire in Green Bay in
December The branches have 50-60 employees combined
52 The record is ambiguous as to Klaus' employment status He appears
on an attendance record as having commenced full-time work on June 1,
1970, as a temporary stock clerk Another record shows that he was given
an hourly rate of $165 on July 5, 1967, and $200 on June 3, 1969 It is not
alleged or otherwise shown that he was only a summer employee during
school recess, or whether he had worked part time during the remainder of
the year It is clear that he did not leave voluntarily on August 28. If it is
assumed he was just a summer employee , the additional period he normally
would have worked is indeterminate on this record , but could conceivably
have continued for another month
53 In his brief , the General Counsel offers the same reasoning as to
Klaus, Morns, and Eisch.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lends some substance to this contention. While Werner
gave testimony that he had earlier undertaken certain cost
cutting measures,54 it is my finding, as noted, that the
adoption of a plan to reduce personnel was conceived only
after the Union's appearance on the scene. It is significant
that there were no prior layoffs in the Company's history;
that the six branches, involved in the same financial
circumstances but not organized by the Union, were not
subjected to any layoffs; and that the testimonial account
of the layoff decisions is grossly conflicting and unconvinc-
ing. As to Neary as well, it may be found that the General
Counsel made out a prima facie case which was not
overcome by Respondent's evidence. Accordingly, I
conclude that Respondent violated Section 8(a)(3) as to
Klaus and Neary.
Matajac
The second group of layoffs took place September 23 as
to MataJac, Morris, Eisch, and Behling.55 Matajac has
previously been shown as one of the original promoters of
the Union and to have engaged in all the initial activities.
On August 28, he was interrogated by Joyce and threatened
with reprisal (I'll remember you, John,") because Joyce
believed he would suffer adversity with the Union. On
September 21, MataJac, Schaetzel, and Bussard came to
testify in the representation hearing at the Board office.
Passing them in the hallway, Werner called them "son of a
bitches." On September 22, he was notified by Joyce that he
was laid off, on the basis that he had the least seniority in
the machine shop.
As to Fields, a trainee, it is recalled that Respondent
argued that MataJac, though junior, was retained in the
earlier layoffs because he had on-the-job experience. In this
instance, Martin, a trainee, was retained, while MataJac was
selected as having the least seniority in the shop. Joyce
testified that he was not consulted as to MataJac, Morris,
and Eisch, and that he was instructed by Werner on
September 23 to lay these employees off. Werner testified
the second "group of terminations" were accomplished the
same way as the first, and they were discussed a week to 10
days in advance.
My finding as to Matajac is that he was terminated
because of his known union activity in violation of Section
8(a)(3).
Behling
As earlier described, Cynthia Behling was an active
organizer , and had solicited authorization cards of the girls
in the cardex and expediting sections. On September 23,
when Supervisor Carpenter advised her she was laid off, he
said that the selection was made by seniority in cardex, and
if it were not for the Union, "they could pick and choose
who they wanted to lay off." At the same time , he told her
that she would be replaced by Anne Howard, who had been
reduced from expediting as the employee with the least
seniority in that section. April Glatch, called as Respon-
54 The economies effected before August 17, as related by Werner,
appear to me as attempted makeweights and of minor consequence to the
issues herein
55 No particular reasoning was offered by Respondent for the timing of
these further layoffs, following I month after the first group, in terms of
additional evidence of adverse business conditions
56 Neary had earlier been laid off from expediting, on August 24, supra
dent's witness, testified that on September 23 she and
Patricia Spinella were asked by Carpenter to train Howard
in Behling's Job. He also told them Behling would be
recalled.
This presents a further confusion in Respondent's
declared policy as to its basis in effecting all these layoffs. It
would appear to make little sense to select one junior
employee from each "department" and then allow such
"bumping" between two distinct groups. However, this
procedure was apparently used only in Howard's case and
was not offered or contemplated as to the alleged
discriminatees herein.56 The entire cardex section was
expected to be eliminated within a short time; in fact all the
cardex employees were terminated at the end of the year
with I week's notice and severance pay. Behling was given
no notice or severance pay. Werner, when asked at the
November 3 meeting, said that her supervisor had trouble
with her. Carpenter testified, on cross-examination, that
Behling's name was first brought up the second week in
September.57 Taking Carpenter's version, or Werner's, it
lacks plausibility that action was delayed for so long after
the decision had been made.
On all the record evidence, I can only conclude that
Behling's layoff falls in the same category as that of
MataJac, Schaetzel, and Fields. She solicited a large
number of employees in the plant for authorization cards.
Respondent engaged in a course of interrogation intent
upon learning the identity of the instigators. And Behling
received disparate treatment as to notice and severance
pay. Consequently, I find that she was terminated, in whole
or in substantial part, because Respondent believed or
suspected she was especially active on behalf of the Union.
Morris and Eisch
Both were in the delivery section of the warehouse as
truckdrivers. Morris signed a card at the first union meeting
on August 20, and Eisch signed the next day. It is observed
that there is a disproportion of seven out of eight employees
selected for layoff who were card signatories.58 Werner
testified that, in late July or early August, he raised a
question as to why there were seven drivers and only five
trucks. He asked for a study on the drivers and found that it
cost Respondent $1.26 to make a delivery stop, while
commercial delivery (e.g., United Parcel Service) could be
bought for $.90 a stop.59 In early August, he reduced the
drivers from seven to five, but he is not sure whether both
these drivers were "let go by attrition" or one was
transferred to another department. But it is noted that
Morris was hired on July 14,60 and Eisch on August 12, the
latter being urgently sought by Joyce over several weeks.
Applying Respondent's layoff policy, here there were two
junior employees, not one, selected for layoff on September
23 from a group of five drivers. The testimony shows that,
after they were laid off, a heavier burden fell on the
remaining drivers, now assisted by Eggleston, to wrap
57 On direct, he said he determined seniority as to Behhng on August 15
or 16, when he told this to Werner, with Joyce and Klenz present
Ss E g, Starlight Mfg Co, 172 NLRB No 21
59 In his speech on October 14, he made it a point that it was costing the
Company too much money for the deliveries, and an outside firm could do
it for less
80 Another driver, Nancy Gauger, was hired on July 15 Her attendance
record shows termination about August 28, Joyce implied that she quit
WISCONSIN BEARING CO.
packages for delivery, including those for United Parcel
Service. It appears to me that Respondent already knew or
could easily have ascertained at an earlier time the same
relative cost factors in making deliveries. After the Union
appeared, a decision was made to contract out a greater
percentage of deliveries to an outside firm. This was the
basis, I find, for reducing Morris and Eisch. On Werner's
account of the affair, he could just as readily have achieved
this economy in late July or early August, or perhaps
contracted out the entire operation then. So far as it affects
Morris and Eisch, this decision, in effect to contract out
part of the operation, must be regarded as having been
precipitated by the same animus and motive of discourag-
ing union activity. Accordingly, it is held that these two
employees as well were discriminatorily terminated within
Section 8(a)(3)
G. James Bussard
In the absence of evidence, the allegation that about
August 26 Bussard was transferred to a less desirable job is
dismissed
H The Refusal to Bargain
The appropriate unit consists of all employees at the
Milwaukee plant, including office clerical employees, but
excluding outside-service salesmen, together with the
customary exclusions. The parties herein stipulated that
there were at least 79 employees in the unit, as specified on
an exhibit, as of "the demand-refusal dates." As shown,
Respondent's letter refusing the Union's recognition
demand was written on September 4. Remaining in dispute
are 12 named individuals, viz.
Schaetzel, Fields, and Neary, who were found to have
been unlawfully terminated, are included in the unit.
McGill, Murphy, and Gumm, as regular part-time
employees in the machine shop, have a substantial and
continuing interest in the employment conditions at the
plant and are therefore ►ncluded.61 Fritchel and Knitchek
are "on call" part-time employees in the machine shop, i.e.,
they are called to work only when needed by Respondent 62
The average number of hours per week they worked in this
capacity has not been shown in evidence. As, inter alia,
there is no basis for finding they are regular part-time
employees, they are excluded as intermittent and casual
employees. Eggleston, as testified, is "in charge" of the
warehouse section, including the wrapping and delivery
functions. Werner stated that she was consulted early in
August concerning the number of employees under her
charge who would be needed. Joyce has overall supervision
of the warehouse section, as well as the machine shop, and
has additional responsibilities, such as visiting and servicing
customers about 25 percent of his time. Werner testified he
has given Joyce specific instructions that, when he will be
gone from the plant, to advise Werner's assistant, Harry
Gaffney, to make himself present at the warehouse "often
enough" to see that things are running smoothly. On this
6i E g, Red & While Super Markets, 172 NLRB No 210
62 From the general references in the record to Respondent's use of this
type of employee, it would appear that they are social security annuitants
63 For example, compare the authority exercised by Michael Klaus, in
Eggleston's absence during the summer, when he ordered Schaetzel to go
home and not return
64 The in and out chart" is maintained for certain personnel who have
occasion to leave the plant The following are the names regularly kept on
261
record as litigated, it is reasonably inferable that, for
substantial periods each week, Eggleston is solely in charge
of the warehouse personnel,63 and that, in general, she
responsibly directs employees within the supervisory
definition of Section 2(11). Dennis Helwig was hired on
July 28, 1969, as a "sales trainee" and has been in training
to become an outside salesman. He is on a straight salary of
$145 or $150 a week, does not punch a timeclock, has a desk
in the "salesmen's room," and his name is on the "in and
out chart" at the switchboard 64 Schaetzel testified that
Helwig told him he would be learning the job of outside
salesman for approximately a year and then would go out
on the road.65 Werner testified that some of the sales
trainees qualified to become outside salesmen in 6 months;
others have taken a year or 2. It seems highly probable that,
in the regular course of events, Helwig will assume the
position of outside salesman within a short penod following
the hearing. As he was specifically employed to train for
such a position outside the appropriate unit, Helwig is
excluded.66 Mazurek was formerly a full-time outside
salesman for Respondent, and Behl was a full-time
telephone salesman. They are now employed part-time on
salary as retirees under social security. Both have desks and
telephones in the salesmen's room, and are on the "in and
out chart." Mazurek is the only person who works "on the
catalogues." He is employed for only 3 hours in the
morning for 3 days a week, and is compensated on the basis
of $3.50 an hour. Behl still does telephone sales work about
32 hours a week and is paid the top rate of $3.75 an hour.
About 10 to 12 percent of Behl's time is spent at the
branches substituting for employees who are ill or on
vacation. Other telephone salesmen are included in the
unit. Presumably, he is on the "in and out chart" because he
visits the branches to perform telephone sales work. As a
regular part-time employee in such classification, I find no
basis for excluding Behl. However, Mazurek works only 9
hours a week, is identified with his prior capacity as an
outside salesman for a long period of employment, and is
unique in his job on the catalogues. Mazurek is therefore
excluded as lacking a sufficient community of interest with
the unit employees. In sum, of the 12 disputed individuals, 7
are included in the unit and 5 are excluded.
As I find, there were 86 employees in the unit as of
September 4. Signed authorization cards from 54 employ-
ees in the unit were admitted in evidence, without
challenge. Of these, 45 were signed on dates from August 20
through August 31. Additional cards were signed by 6
employees on September 9 and 10, and the remaining 3
cards were signed on November 4, 5, and 6. Thus, the
Union had a clear majority of cards when it was refused
recognition, and it augmented this majority in subsequent
weeks while its recognition demand was continuing. It is
the chart- Werner, Joyce, Carpenter, and Supervisor Fred Odell; Ralph
Holsen and Herb Holsen, outside salesmen, Sigmund Mazurek and Erwin
Behl, whose status is in dispute; and Helwig.
61 Earlier in the hearing, the Trial Examiner inquired whether Helwig
and Behl would appear as witnesses , and Respondent 's counsel indicated
that they would They were not called
66 Garrett Supply Co, 165 NLRB 561
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordingly held that, on and since September 4, the Union
has been, and is now, the statutory bargaining representa-
tive of the employees in the appropriate unit.
As detailed herein, Respondent engaged in serious
violations of Section 8(a)(1) and (3), which were calculated
to defeat the Union's organizational effort and undermine
its representation status among the employees.67 These
unfair labor practices, in my opinion, were of a character
and scope which may properly be described as
"outrageous" and "pervasive" within the terminology of the
Gissel case. The effects of such conduct were to preclude a
fair representation test in the election held on November
12,68 and they also render highly improbable the holding of
a new or rerun election without the continuing impact and
recurrence of Respondent's coercion. In these circum-
stances, the use of traditional remedies is ineffectual, and
consideration is validly given to the signed authorization
cards as a more reliable measure of the employees'
representation desires. It is therefore concluded that, by
refusing the Union's bargaining request and engaging in the
aforesaid unfair labor practices, Respondent violated
Section 8(a)(5) and that a bargaining order is necessary and
appropriate to protect the majority sentiment expressed
through authorization cards and otherwise remedy the
extensive violations committed 69
I. Health Insurance
At the meeting with employees on October 14, Werner
stated that he did not know the answers to questions raised
concerning the insurance, and he would "check" on the
matter. Thereafter, he called Respondent's controller,
Robert Province, and was told that, following the
expiration (and renewal) of the yearly policy in April,
negotiations were undertaken because the insurance
company wanted the premiums raised and Respondent also
desired some changes. It was expected that the revised
policy would be consummated sometime in November.70
On July 21, the insurance agent sent an initial letter to
Province indicating some increased trends in Respondent's
experience of claims made under the policy and inviting
discussion of possible revisions in the program. During
early August, the insurance agent conferred with Province
and they agreed to the terms of a new policy, with higher
premiums and a changed benefit structure.71 The policy
was applied, effective November 1, to all four of the Berry
companies.
General Counsel alleges a violation of Section 8(a)(5), in
that Respondent acted unilaterally in changing the
insurance benefits without bargaining with the Union.
While Werner in his speeches clearly capitalized upon the
acquired information to influence the employees against
the Union, I find that Respondent had already entered
67 All the cards were signed prior to the election on November 12 and
preceding or during the course of Respondent 's coercive conduct
65 As noted , in the election , as against the 54 signed cards, the Union
received 37 votes, there were also 4 challenges by Respondent and 3 by the
Union The effect of Respondent 's coercion is thus presumptively evident
The coercion involved is of such a serious nature that it is well nigh
impossible to conjecture the time span before the impact could be
considered as dissipated Moreover , it is reasonable to assume on the
present facts that the effect of any added delay would serve only to profit
Respondent for its wrongdoing and further deprive the employees of the
representation to which they are entitled . Cf. New Alaska Development
upon the course of making such changes and had
effectively committed itself with the insurance company
prior to the Union's advent and claim of majority
representation. Accordingly, this allegation is dismissed.
J. The Representation Cases
The consolidated proceeding is prosecuted with the
principal objective of having the election set aside and
obtaining a Gissel bargaining order. The evidence fully
warrants such a result. Additionally, the issue of the
challenges were referred to me by the Regional Director. In
effect, these issues are resolved in the disposition above of
the questions concerning the inclusion of the same
challenged individuals, among others, in the appropriate
unit. Assuming that the ballots of the five challenges which
would be overruled 72 are opened and counted, and that the
Union loses the election, it would nevertheless be entitled to
the bargaining order under well-established law. It is clear
that if these five challenged ballots were all in favor of the
Union, the results would show that, of 84 eligible voters,73
the Union would receive 42 votes, or less than a majority.
As no useful purpose would be served in specifically
dealing with the challenges, I will recommend that the
election be set aside and the petitions in the representation
cases be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed 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.
V. 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. A broad
cease-and-desist order appears warranted, particularly in
view of Respondent's discriminatory conduct and other
violations.74
It has been found that Respondent unlawfully terminated
eight employees, on August 24, August 28, and September
23. It will therefore be recommended that Respondent offer
these employees immediate and full reinstatement to their
former positions , or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered as a
result of the discrimination against them, by payment to
them of a sum equal to that which they would normally
Corp v N L R B, 441 F 2d 491 (C.A 7, March 9,197 1)
69 N L R B v Gissel Packing Company, 395 U.S 575
70 He also testified that , about September 10, he received notice that the
new policy, with improved benefits, was effective as of November 1. It is
observed that Werner did not have the answers on October 14.
71 Essentially as described in In 22
72 1 e , Schaetzel , Fields, Matalac, Behling, and Behl.
73 The original 86 eligibles, less Mazurek and Helwig.
74 N L R.B v Express Publishing Company, 312 U S. 426; N L.R B v
Entwistle Mfg Co, 120 F.2d 532 (C A 4)
WISCONSIN BEARING CO. 263
have earned , absent the discrimination , from the date of the
discrimination to the date of Respondent's offer of
reinstatement , 75 less net earnings during such period, with
backpay computed on a quarterly basis in the manner
established in F. W. Woolworth Company, 90 NLRB 289.
Backpay shall carry interest at the rate of 6 percent per
annum , as set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will be further recommended that Respon-
dent preserve and make available to the Board, upon
request , all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary and useful to determine the amounts of
backpay and the rights of reinstatement under the terms of
these recommendations.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating on August 24, August 28, and
September 23, 1970, the eight employees named below,
thereby discouraging membership in the Union, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
John Schaetzel Arlene Eisch
Roger Fields John Matajac
Barbara Neary Linda Morris
Michael Klaus Cynthia Behling
4. All employees of Respondent at its Milwaukee,
Wisconsin, facility, including office clerical employees, but
excluding outside salesservicemen, professional employees,
managerial employees, confidential employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. Since September 4, 1970, the Union has been, and is
now, the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act.
6. By failing and refusing, at all times on or after
September 4, 1970, to bargain collectively with the Union
as the exclusive representative of the employees in the
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. By the foregoing, and by other acts and conduct
interfering with, restraining , and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
75 The status of Klaus, as possibly a temporary summer employee, shall
be determined in the compliance stage of this proceeding If it is so
determined , backpay shall be limited accordingly, and reinstatement shall
be offered only to the same kind of temporary employment he had in the
past
76 In the event no exceptions are filed as provided by Section 102 46 of
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondent's unlawful conduct interfered with the
election held on November 12, 1970.
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 76
Respondent, Wisconsin Bearing Company, Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and those of fellow employees; coercively
promising and granting wage increases or other benefits to
employees; withholding wage reviews and increases from
employees to discourage union support; urging employees
to select a union other than the union they have freely
chosen; stating, in the presence of employees, that
employees who have a union in mind will not be hired;
stating that, with a union, employees could no longer deal
directly with Respondent concerning their prohlems and
grievances; or engaging in surveillance of union meetings
or activities.
(b) Threatening employees with closing the machine
shop, closing the plant, loss of customers, layoffs,
discharge, loss of jobs, bankruptcy, "harm," the inevitabili-
ty of a union-forced strike, verbal and physical abuse of
employees by the Union should they attempt to work
during a strike, removal of operations to other branches in
the event of a strike, or other reprisals, for engaging in
union activities.
(c) Discouraging membership in United Electrical, Radio
& Machine Workers of America (UE), or in any other labor
organization, by terminating or laying off employees or in
any other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(d) Withholding any wage review or wage increase to
which its employees would otherwise be entitled but for
their union activities or their recourse to the processes of
the Board.
(e) Failing or refusing to bargain collectively with the
above-named labor organization as the exclusive bargain-
ing representative of all employees in the appropriate unit
described above.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization, as the exclusive representative of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings, conclusions , decision and order of the
Board, and all objections thereto shall be deemed waived for all purposes.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees in the appropriate unit , and embody in a
signed agreement any understanding reached.
(b) Offer the employees named below immediate and full
reinstatement to their former positions , or, if those
positions no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of
earnings , in the manner set forth in "The Remedy" section
of the Trial Examiner 's Decision.
John Schaetzel Arlene Eisch
Roger Fields John Matajac
Barbara Neary Linda Morris
Michael Klaus Cynthia Behlmg
(c) Notify the above-named employees , if presently
serving in the Armed Forces of the United States , of their
right to 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.
(d) Preserve and make available to the Board or its agents
all payroll and other records , as set forth in "The Remedy"
section of the Trial Examiner's Decision.
(e) Post at its Milwaukee, Wisconsin, plant copies of the
attached notice marked "Appendix ." 77 Copies of said
notice , on forms provided by the Regional Director for
Region 30, shall, after being duly signed by Respondent, be
posted by it immediately upon receipt thereof , in conspicu-
ous places , and be maintained by it for a period of 60
consecutive days . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(f) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of this Trial Examiner's
Decision , what steps Respondent has taken to comply
herewith.78
It is further recommended that the consolidated com-
plaint be dismissed insofar as it alleges violations not
specifically found herein.
Further , it is recommended that , in Cases 30-RC-1338
and 30-RC-1344 , the election on November 12, 1970, be
set aside and the petitions dismissed.
77 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
78 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 20 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice ; and we intend to carry out the order of the
board , and abide by the following:
WE WILL NOT ask you anything about your union
activities or the union activities of your fellow
employees in a manner which would coerce you
regarding your rights under the Act.
WE WILL NOT threaten you with closing down the
machine shop , closing down the plant; loss of our
customers, bankruptcy , discharge , layoffs , removal of
our operations to other branches if you strike , refusal to
hire employees who have a union in mind , or with
"harm" or other reprisal in order to stop you from
joining or helping a union or keep you from voting for a
union in a Board election.
WE WILL NOT promise or give you wage increases, job
opportunities or transfers to another branch, or other
benefits to keep you from joining or supporting a union.
WE WILL NOT withhold any wage reviews or wage
increases or deprive you of any other benefits because
of your union activities or recourse to the processes of
the National Labor Relations Board.
WE WILL NOT spy on employees , or make you believe
we are spying, in order to find out who has joined the
Union or is in favor of the Union.
WE WILL NOT tell you that the Union is not reputable,
or not a suitable representative, and urge you to select
another union in a manner that would interfere with
your free choice of bargaining representative under the
Act.
WE WILL NOT tell you that , with the Union , there will
be a wall between the employees and the Company, and
you can no longer deal directly with the Company
concerning your problems and grievances.
WE WILL NOT tell you or threaten you that a union-
forced strike will definitely result if the employees select
a union to represent them.
WE WILL NOT tell you or threaten you that there will
be verbal or physical abuse by the Union if you seek to
go to work in case of a strike.
WE WILL NOT refuse to bargain collectively with
United Electrical , Radio & Machine Workers of
America (UE).
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of the rights
guaranteed employees in the National Labor Relations
Act, which are as follows:
To engage in self-organization;
To form, join, or help unions;
To bargain collectively through a representa-
tive of their own choosing;
To act together for collective bargaining or
other mutual aid or protection;
To refuse to do any or all of these things.
Since it has been found that we unlawfully terminat-
ed the employees named below , WE WILL offer to give
them back their regular jobs, or if those jobs no longer
exist, we will give them substantially equivalent jobs;
and WE WILL pay them for the earnings they lost
because of the discrimination , plus 6 percent interest.
John Schaetzel Arlene Eisch
Roger Fields John Matajac
WISCONSIN BEARING CO.
Barbara Neary Linda Morris
Michael Klaus Cynthia Behling
WE WILL notify all these employees , if presently
serving in the Armed Forces of the United States, of
their right to reinstatement upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
WE WILL , upon request , bargain collectively with
United Electrical , Radio & Machine Workers of
America (UE) as the exclusive representative of our
employees in the appropriate unit and put into a signed
agreement any understanding reached . The appropriate
unit is:
All employees at the Milwaukee , Wisconsin,
plant , including office clerical employees, but
excluding outside sales-servicemen , professional
employees , managerial employees , confidential
265
employees , guards, and supervisors as defined in
the Act.
Dated By
WISCONSIN BEARING
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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 or compliance with
its provisions , may be directed to the Board 's Office,
Second Floor , Commerce Building , 744 North Fourth
Street , Milwaukee, Wisconsin 53203 , Telephone
414-272-3861.