Hartland Plastics, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1951

93 N.L.R.B. 439 (N.L.R.B. 1951)

HARTLAND PLASTICS, INC. 439
persons, it will be recommended that the Union notify the Tribune, in writing, that
it has no objection to the nondiscriminatory employment of these individuals ;
and further, that it request the Tribune to offer them employment without dis-
crimination because of their nonmembership in the Union and without prejudice
to their seniority and other rights and privileges.
Joseph Rizzo P. G. Kutzman
Irving Shapiro Philip Auld
Fred Gorton D. Pecoraro
Rocco Nicolini B. Schulman
Joseph Satkosky Wm. Annable
Michael Contino J. F. Birmingham
Joseph Scopelliti M. Di Costanzo
J. Pisicchio S. Abrams
Maurice Roth L. Katz
V. J. Gigante
It will be further recommended that the Union make those individuals whole,
in accordance with the Board's usual policy. (See for example, F. W. Wool-
worth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republic Steel Cor-
poration v. N. L. R. B., 311 U. S. 7), for any losses of pay incurred by reason of
the attempt to cause discrimination against them. The Union may terminate
further accrual of back pay by notifying the Tribune that it has no objection to,
and permitting, their employment by the Tribune on a nondiscriminatory basis.
The period for which back pay is to be computed shall be from and including Oc-
tober 27, 1948, to the date of compliance with these recommendations.
On the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. New York Herald Tribune, Inc., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By attempting to cause the New York Herald Tribune, Inc., to discriminate
against the employees named in Section V, above, the Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
HARTLAND PLASTICS, INC. and DISTRICT No. 48, INTERNATIONAL Asso-
CIATION OF MACHINISTS. Case No.13-CA385. February 27,1951
Decision and Order
On November 6, 1950, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding; finding that
93 NLRB No. 72.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended the dismissal
of those allegations. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report with supporting
briefs. ,
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'-
Order
Upon the entire record in this case and' pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Hartland Plastics, Inc.,
Hartland, Wisconsin, its officers, agents successors, and assigns, shall :
1. Cease and desist from :
.(a) Discouraging self-organization or concerted activities among
its employees for their mutual aid and protection as guaranteed in
Section 7 of the Act or discouraging membership in District No. 48,
International Association of Machinists, or any other labor organiza-
tion of its employees, by discharging any of its employees or in any
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of their employment or by
warning or threatening employees With reprisals for engaging in
activities guaranteed by'the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District No. 48, International
Association of Machinists or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Reynolds and Murdock].
2 The efforts of the Respondent ' s president , in the presence of his employees , to make
the Union ' s business representative cease distributing leaflets on the street in front of
the plant , as described in the Intermediate Report, constituted an unwarranted inter-
ference with employees' self-organization We therefore agree with the Trial Examiner
that such conduct violated Section 8 ( a) (1) of the Act . The Red Rock Company, 84
NLRB 521, 525.
HARTLAND PLASTICS, INC. 441
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Beverly Jean Johnson, Charlene Dittmar, and
Patricia Clark, and each of them, in the manner set forth above in
the, section of the Intermediate Report entitled, "The Remedy" for
any loss of pay they may have suffered by reason of the discrimination
against them.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due under the
terms of this Order.
(c) Post immediately in its plant at Hartland, Wisconsin, copies
of the notice attached to the Intermediate Report and marked Ap-
pendix B.3 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by
Respondent's authorized representative, be posted by the Respondent
immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the Respondent dis-
criminatorily failed or refused to recall, after a layoff on January 4,
1950, Beverly Jean Johnson, Charlene Dittmar, Patricia Clark, and
Leone Johnson.
Intermediate Report and Recommended Order
Mr. John P. Von Rohr, for the General Counsel.
Messrs. 0. S. Hoebreck and R. A. Schoenecker of Milwaukee, Wis., for the
Respondent.
Mr. J. J. Denny, for the Union.
3 This notice, however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words , "Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be inserted before
the words "A Decision and Order" the words "A Decree of the United States Court of
Appeals Enforcing."
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by District No. 48, Inter-
national Association of Machinists, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional Director for the Thir-
teenth Region (Chicago, Illinois) issued a complaint dated July 7, 1950, and
and an enlargement of complaint dated July 28, 1950, against Hartland Plastics,
Inc., herein called the Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices the complaint, as amended, alleged
in substance that Respondent on or about October 26, 1949, discriminatorily
discharged and refused to reinstate until on or about December 3, 1949,
Beverly Jean Johnson, Charlene Dittmar, and Patricia Clark, that following a
layoff on January 4, 1950, Respondent discriminatorily refused to recall
Beverly Jean Johnson, Charlene Dittmar, Patricia Clark, and Leone Johnson,
and that Respondent since on or, about October 1, 1949, interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed them in Section 7
of the Act.
Respondent duly filed an answer admitting certain allegations of the com-
plaint, as amended, but specifically denying the commission of unfair labor
practices.
Pursuant to notice, a hearing was held on September 5 and 6, 1950, at Wau-
kesha, Wisconsin, before the undersigned Trial Examiner. The General Counsel'
and the Respondent were represented by counsel and the Union by its Grand
Lodge representative. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. The parties were afforded, but did
not avail themselves of, an opportunity for oral argument at the close of the
hearing. The parties were advised of their right to file proposed findings of
fact, conclusions of law, and briefs. Briefs have been received from the General
Counsel and from Respondent which have been considered. A letter in the
nature of a reply brief has also been received from Respondent and has been
considered. At the conclusion of the General Counsel's case-in-chief and at the
conclusion of the hearing, counsel for Respondent moved to dismiss the com-
plaint, as amended, because of insufficient evidence. The undersigned took the
motions to dismiss under consideration and they are now disposed of is
accordance with the following findings and conclusions.
After the close of the hearing the undersigned received from counsel for
Respondent and from the General Counsel, motions to correct transcript. Said
motions are hereby granted.
Upon the entire record in the case and from his observation of witnesses, the
undersigned makes the following : -
D
FINDINGS OF FACT z
I. BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material herein, a corporation
duly organized under and existing by virtue of the laws of Wisconsin. Its prin-
1 References hereinafter to the General Counsel refer to his representative at the hearing.
2 In making the findings of fact in this and other sections of this Report, I have con-
sidered and weighed the entire evidence . It would unnecessarily burden this Report to
describe , In minute detail, all evidence or disputed points. Such testimony or other
evidence as Is in conflict with the findings herein Is not credited.
HARTLAND PLASTICS, INC: 443
cipal office and place of business is located in Hartland, Wisconsin, where it is
engaged in the manufacture of plaques and religious statues.
The value of raw materials purchased annually by Respondent, consisting
primarily of cellulose acetate, exceeds $30,000, of which dollar value approxi-
mately 90 percent is shipped to Respondent's plant from points outside the State
of Wisconsin. Respondent sells annually products valued in excess of $50,000,
of which dollar value approximately 60 percent is shipped from its plant to
points and places outside the State of Wisconsin.
Respondent admits and the undersigned finds that it is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a labor organization
within the meaning of Section 2 (5) of the Act.
III. UNFAIR LABOR PRACTICES'
A. The discharges
Charlene Dittmar was employed by Respondent from August 24, 1949, to
October 26, 1949, and from December 7, 1949, to January 4. 1950. After approxi-
mately 2 weeks in the paint department, Dittmar was transferred, at her own
request, to the assembly department where she was working during the period
involved herein.
Patricia Clark (Mrs. Charles Delsman) was employed by Respondent from
July 18, 1949, to October 26, 1949, and from December 7, 1949, to January 4,
1950. Throughout her employment Clark worked in the assembly department.
Beverly Jean Johnson (Mrs. Bob Mitchell) was employed by Respondent from
July 25, 1949, to October 26, 1949, and from December 7, 1949, to January 4,
1950. Except for a period of approximately 3 weeks at the beginning of her
employment Johnson worked in the assembly department.
The above-named employees frequently worked in the immediate proximity
of one another and were very friendly toward each other and, as hereinafter
noted, two of them (Dittmar and Clark) worked as a team.
On October 26, 1949, Dittmar and Clark working together boxed and packed
plaques and small statues. Clark inserted the plaques or statues into individ-
ual cartons and Dittmar packed these individual cartons into larger cartons
(master cartons) and noted on the outside of the master carton, numbers in-
dicative of the content and quantity thereof During the morning of October
26, 1949, these employees (Dittmar and Clark) filled a master carton with
smaller cartons of a particular plaque However, when Dittmar placed the
numbers on the master carton she made a mistake and placed a number thereon
which signified that this master carton contained small statues (instead of the
plaques actually therein). Before this master carton left the assembly de-
partment, but after Clark and Dittmar had completed their work relative there-
to, this error was discovered and brought to their (Clark's and Dittmar's) at-
tention by Plant Superintendent William Taylor' On this occasion Taylor,
about 11: 30 a. m., in the presence of Inspector Anne Thurloff' and assembly de-
'Certain conflicts1and questions of credibility are noted and resolved ; others are un-
mentioned so as not to lengthen unduly this Report. However, all have been considered
and where required resolved by the undersigned.
Taylor was plant superintendent from September 19, 1949, until January 1950 when
he was discharged.
5A supervisory employee.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment foreman, John Grimshaw,e and in the immediate proximity of the
employees in this department (including Beverly Johnson) called to the atten-
tion of Clark and Dittmar the error noted above and told them, they were
making too many mistakes and that they were doing too much talking and that
if they "wanted to do any more talking he would set us right outside the door to
do our talking." Taylor told these employees that be would allow "one more
mistake" and directed Grimshaw to separate them Grimshaw, as directed,
separated Clark and Dittmar, placing Clark at another location in the de-
partment, and they did not work together the rest of that morning.
During the afternoon of October 25, 1949, and the morning of October -26,
1949, Beverly Johnson, among other things, operated a conveyor (elevator) in
use between the second floor (where the assembly department is located) and
the first floor. One of the' duties of the operator of this conveyor is to check
the accuracy of the numbers on master cartons. When not occupied with this
conveyor Johnson performed other duties including the operation of a drilling
machine. About 11: 40 a in. on October 26, Thurloff and Taylor conferred
with Johnson about a master carton not correctly numbered that had been sent
down to the first floor. Johnson told them it was not her error, that the car-
ton had been handled prior to the time that she began operating the conveyor.
Taylor although apparently not satisfied with Johnson's explanation, did not
pursue the matter further. However, shortly thereafter Grimshaw told John-
son that "someone else would inn the elevator" and Johnson was relieved of
this duty but continued the operation of the drilling machine.
During the lunch period (noon to 1 p in ) and shortly thereafter, on Octo-
ber 26, 1949, the three above-named employees (Clark, Dittmar, and Johnson) i
considered the advisability of forming a union and engaged in the following
activities Beveily Johnson and her mother, Leone Johnson, while eating to-
gether discussed the occurrences of that morning and concluded that a union
was needed. Beverly Johnson then sought out Clark and conferred with her
as to the advisability of organizing the employees. As a result of this meeting
Beverly Johnson and Clark returned to Respondent's plant about 12: 30 p. in.
with a blank piece of paper and endeavored to obtain signatures thereon from
other employees also interested in organizing. Johnson, on her way into the
plant, ran into Grimshaw and told him they are going "to try to start a union
up there." Upon their return to the plant Clark and Johnson approached Ditt-
mar in the assembly department. where she was eating, and sought her assist-
ance in obtaining signatures from other employees Shortly after 12: 30 p. in.
Clark and Dittmar went to a rest room where Dittmar solicited the signature
of another employee This employee did not sign but immediately left the
room. Clark left right behind her. Shortly thereafter Mrs. Meacham, wife
of the paint department foreman, Ray Meacham, entered the rest room, ob-
served Dittmar holding the paper and left without any verbal exchange between
them and without using the facilities of the rest room. About 1: 20 that after-
noon Mrs. Meacham was observed entering the office on the first floor, although
she was not a regular or frequent user of this office
After leaving the rest room Clark went to a work table and conferred with
Johnson. Shortly thereafter Dittmar joined Clark and Johnson and the three
of them continued to solicit signatures from employees This activity con-
tinued until about 10 or 15 minutes after the end of the lunch period (until
about 1 • 15 p. in ). However, after 1 o'clock these employees sought signatures
at their respective working places and while performing their assigned tasks.
About 3: 30 p. in , on October 26, 1949, Grimshaw told each of the afore-men-
6 Grimshaw was foreman of the assembly department from October 14, 1949, to October
28, 1949, when he was discharged.
HARTLAND PLASTICS, INC. 445
tioned employees (Clark, Dittmar, and Johnson) to get her hat and coat and
go to the office. These three employees went to the office together. There Tay-
lor handed them pay checks and told them their work was unsatisfactory and
that they were being discharged. No further explanation was given to the em-
ployees.
On November 1, 1949, the Union filed the original charge herein, alleging that
Clark, Dittmar, and Johnson were discriminatorily discharged. Fruitless ef-
forts were made thereafter to adjust this matter. Nevertheless, by letter dated
December 3, 1949, Clark, Dittmar, and Johnson were advised by Myron Brown,
general manager of Respondent since November 1949, that his investigation
revealed that they had been discharged for a "minor infraction" of their ob-
ligations as, employees, that under the circumstances their discharges were not
warranted, and that he was reducing the discharge to a disciplinary layoff and
requesting them to report for work not later than December 7, 1949. A copy
of Brown's letter is attached hereto as Appendix A. Clark, Dittmar, and John-
son were reinstated on December 7, 1949, and there is no contention that this
was not full reinstatement. Their subsequent layoff on January 4, 1950, will be
discussed in another section of this Report.
On or about December 20, 1949, Respondent posted and maintained for 60
consecutive days thereafter a notice stating :
NOTICE TO EMPLOYEES
A question has arisen concerning the company's compliance with the pro-
visions of the National Labor Relations Act. In order to dissipate any
misunderstanding regarding this matter, our employees are advised that:
We will not interfere with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form, join or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to restrain from any or
all such activities, as guaranteed to them by section 7 of the Act.
All our employees are free to become or remain members of any labor
organization. We will not discriminate in regard to hire or tenure of em-
ployment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organization
or because they may refrain from such membership or activity.
HARTLIND PLASTICS, INC.
By (S) Myron P. Brown,
MYRON P. BROWN,
General Manager.
DECEMBER 20, 1949.
This notice will remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
As noted in Brown's letter of December 3, prior to October 26, the employees
involved herein were cautioned on several occasions to improve their workman-
ship. However, these were general cautions and not accompanied by any re-
marks indicating disciplinary action might be warranted and they were given to
numerous employees on various occasions, as determined by supervisors from
their visual observation. The record reflects that mistakes or errors were not
uncommon or infrequent. Nevertheless Respondent did not maintain records or
any norm from'which an analysis could be made to determine the relative or
comparative efficiency of employees. However, the record does reflect that Grim-
shaw told Taylor he (Grimshaw) considered Clark and Dittmar as being prob-
ably two of the most competent packers in the assembly department. The same
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation prevailed with respect to talking. There was no rule against talking
and it was the custom of employees to talk while performing their work. Em-
ployees, including the three involved herein , were cautioned with respect to talk-
ing but only when from observation a supervisor concluded that particular em-
ployees were engaging in excessive talking. Even then no warnings of possible
disciplinary action were given and no records with respect to such cautions were
maintained. In addition there was no rule which forbade solicitation at the
plant during working hours and employees, other than the three involved herein,
during working hours solicited orders for cosmetics, perfumes, plastic materials,
hand painted pictures, and for Christmas and birthday gifts. Furthermore, the
record does not reflect that any production employee, other than those involved
herein, was discharged or otherwise disciplined because of too many mistakes,
too much talking, or for soliciting during working hours.
Hartland, Wisconsin, has a population of from 700 to 900 and Respondent's
plant is located on a street in the heart of the business area. On October 26,
1949, Respondent employed 58 production and maintenance workers (20 in the
assembly department).
For several weeks prior to October 26, 1949, the employees of Respondent
considered the advisability of organizing for their mutual benefit and protection
and on September 5, 1949, Clark, Dittmar, and Johnson visited the union hall
in Waukesha, Wisconsin, and conferred with Edward N. Thomas, union business
representative, about forming a union at Respondent's plant.
During "the first part of October" 1949 Dittmar and Clark approached Robert
Johnson, foreman bf the assembly department until October 5, 1949, and told
him they were considering a union and asked what he thought about it. John-
son replied, "Well I cannot say anything about it, but they told me down in
the office, that if anyone ever talked about the union that I should report it and
they would be fired."'
On October 26, 1949, when Beverly Johnson and Clark returned to the plant
with the paper on which signatures were thereafter affixed, Beverly Johnson and
Grimshaw discussed the events of that morning concerning the separation of
Clark and Dittmar and Johnson indicated to Grimshaw that the employees were
not satisfied and were going to try to start a union.
At approximately 1: 30 p. in. on October 26, 1949, Ray Meacham, paint depart-
ment foreman, approached Grimshaw and informed him (Grimshaw) that he
(Meacham) "had had word that a union petition was being circulated among the
girls" and asked what Grimshaw knew about it. Grimshaw stated that he did
not know anything about it and Meacham replied that eight of "his girls"
(girls under Meacham's supervision) had signed the petition.
About 3: 30 p. in. on October 26, 1949, Anne Thurloff asked Grimshaw what
he knew about the petition "to organize the labor force of the plant" and Grim-
shaw stated that if they were [if the employees were trying to organize] it
was none of my [Grimshaw's] business."
On October 28, 1949, Grimshaw was discharged by Taylor. During the con-
versation at which Grimshaw was informed of his discharge, allegedly because
of incompetent operation of jigs and fixtures and unsatisfactory supervision of
workers, Taylor, in the course of discussing Grimshaw's unsatisfactory perform-
ance of duties, asked Grimshaw, "Didn't Meacham come up shortly after noon
[on October 26, 19491 and inform you there was union activity in the plant?"
Grimshaw answered, "Well, yes, Meacham came up and made some such state-
ment, but since it came in such a roundabout way I chose to ignore it." Taylor
then said, "Why didn't you report it to me? That was one of your duties" and
4 Although the undersigned finds that Johnson made the statement set forth above, no
finding is herein made as to whether Johnson in fact was given such instructions.
HARTLAND PLASTICS, INC. 447
informed Grimshaw that he (Taylor) had sent Meacham "up to tell" him
(Grimshaw).
About a week after October 26, 1949, Mrs. Walter, secretary-treasurer of
Respondent, during a conversation with Marjorie Johannes, an office worker,
asked Johannes how she felt about the three girls (Clark, Dittmar, and Johnson)
being laid off and when Johannes said she felt sorry for the girls Mrs. Walter
remarked, "I cannot understand why our company cannot run the way we
want it to without a union interfering."
On October 28, 1949, Mrs. Leone Johnson, an employee in the press depart-
ment, and Bill Lucas, foreman of the press department, discussed a newspaper
article to the effect that the Union was contending that the discharges were
because -'They talked union" and Lucas told Leone Johnson (mother of Beverly
Johnson) she should not talk any more about it (the Union) 8 than necessary
as it would be "my [Mrs. Johnson's] neck also." Lucas' denial of this state-
ment, in the light of the entire record, is not credited.
Respondent's answer alleges that the discharges were "for good and lawful
cause."
Brown's letter of December 3, 1949, states that his investigation upon becom-
ing affiliated with Respondent revealed that the discharges were for a "minor
infraction" of their obligations as employees. On direct examination by the
General Counsel, Brown testified that the "minor infraction" meant that "the
girls had not been doing their work as they were told to do it. They had not
followed their instructions," and that he did not discuss this incident, this
minor infraction with Taylor. On cross-examination by Respondent's counsel,
Brown testified Taylor told him (Brown) that after being separated the dis-
chargees were found (by Taylor) in the afternoon, "working together again"
and that must have been the "minor infraction" referred to in the letter of
December 3.
Edward Walter, president of Respondent, in response to questions by Respond-
ent's counsel testified the discharges were because the girls continued making
mistakes after being reprimanded. In response to questions by the undersigned
Walter testified that Taylor told him (Walter) that he (Taylor) had separated
the girls and just before noon they were "all together again in a huddle" (the
three dischargees) and they were not doing as they were told and that he
(Walter) told Taylor "to get rid of them."
Taylor did not testify in this proceeding.
In response to a request by the undersigned for a statement as to Respondent's
reasons for the discharges, Respondent's counsel stated they were for inatten-
tion to their duties and unsatisfactory work, generally, and refused to be more
specific. At the conclusion of the hearing Respondent's counsel stated that
Respondent's position is "that the company is not compelled to pay employees
an hourly rate for engaging in union activities on the Company's time."
The record as a whole reflects that Respondent apparently maintains that
these employees were warned as to possible disciplinary action because of too
much talking and not enough attention to their duties and that within a few
hours they again engaged in talking and soliciting during working hours instead
of performing their assigned tasks to the extent required. As noted above,
Beverly Johnson was not given such a warning. It appears to the undersigned
that under the circumstances herein the real objectionable activity of Clark,
Dittmar, and Johnson was not their talking and soliciting but the purpose for
which they solicited-signatures of those interested in organizing. Respondent
denies that these discharges were motivated by the organizing activities of these
8 Leone Johnson's testimony later was that Lucas said, "I should not talk union around
the plant or it would be my neck also."
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and contends that the evidence is insufficient to establish even that
Respondent had knowledge that these employees were engaging in organizing
activities. On the basis of the record herein the undersigned rejects this con-
tention As noted above, various officials of Respondent, including Taylor (the
supervisor directly involved), were aware of these organizational activities.
That Taylor was aware of such is evident from his criticism of Grimshaw for
not reporting to him (Taylor) what Meacham had told him (Grimshaw) about
union activity at the plant and his (Taylor's) statement that he had sent
Meacham to Grimshaw with this information. Furthermore, in view of the
sequence of events, the various kinds of solicitations permitted in the plant,
the suddeness of the discharges after the employees organizing activities, and.
the size of Respondent's plant, it seems reasonable to infer that such,activities
did come to the attention of Respondent and the undersigned so finds. The
undersigned further finds that the reasons assigned by the Respondent were
mere pretexts to conceal Respondent's real reasons and that Clark, Dittmar,
and Beverly Johnson were discharged because of their concerted or organizing
activities for their own mutual aid or protection. Whether the discharges be
regarded as violations of Section 8 (a) (1) or of Section 8 (a) (3) the under-
signed believes the order hereinafter recommended necessary to effectuate the
policies of the Act.
B. Failures to reinstate
Respondent' s business is such that the amount of work and the number of
jobs available varies and its peak seasons are immediately prior to Christmas
and Easter. Usually after the afore-mentioned holy dais there is a noticeable
decline in the amount of work and frequently, as a consequence, a reduction in
force is made. Such was the situation on January 4, 1950, and on that date
Respondent laid off 19 employees, including Clark, Dittmar, Beverly Johnson,
and Leone Johnson. The table below indicates that Hein Radix, an employee
in the assembly department with less departmental seniority than Clark,
Dittmar, or Beverly Johnson,, was not laid off. The record indicates there is
a question as to whether Leone Johnson, an employee in the press department,
was laid off in accordance with departmental seniority and that she raised an
issue with respect to this matter (H. Squier's retention) at the time of the
layoff. The record also reflects that C. Delsman, G. Rode, C. Ebert, and V.
Ebert, employees with less departmental seniority than Leone Johnson, were
not laid off. Nevertheless the General Counsel, at the hearing, stated that
he agreed that on January 4, 1950, Respondent's policy as applied to the layoff
was that "everything else being equal, within department assignments, we
[Respondent] are laying off employees in line with length of service" and
stated that there is no contention that Respondent engaged in any discrimina-
tory conduct in connection with this layoff.° However, the General Counsel
does contend that thereafter the 4 afore-mentioned employees (Clark, C.
Dittmar, Beverly Johnson, and Leone Johnson) were not recalled "for the
reason that they and each of them, joined and assisted the union and engaged
in concerted activities on its and their own behalf "
On January 4, 1950, employees being laid off were told by General Manager
Brown that they were being laid off in line with seniority, other things being
equal,10 that he had no idea how long the layoff would last, that he recommended
they obtain other employment, if possible, and that if Respondent need them, if
9 Also the brief submitted by the General Counsel states , " there is no allegation or
contention that Respondent pursued a discriminatory policy in making the lay-offs."
10 The undersigned believes and finds the facts concerning Brown's statements to be as
stated above rather than , as suggested on pages 18 and 19 of the General Counsel ' s brief,
that Brown stated "straight" seniority would be followed.
HARTLAND PLASTICS, INC. ' 449
and when needed , he (Brown ) "would let them know ." Also employees laid
off were given a letter signed by Brown reading as follows :
For the past several weeks you have noted that a reduction in hours
of work was necessitated by lack of incoming business. ,
We now find that the reduction, as made, is not sufficient to conform to the
still further drop in incoming business . Your Company feels that a further
reduction in hours would spread the hardship on all employees rather than
on a minority.
While we dislike laying off our employees , we feel it has become a
necessity.
Everything else being equal, within departmental assignment, we are
laying off employees in line with length of service. Having fallen within
this group , your employment is being terminated as of Wednesday , January
4, 1050.
We recommend that you seek other employment in view of an indicated
prolonged reduction in business , which would mean an indefinite period of
lay-off.
The following table of employees in the assembly department is self e.Tplanatory
Name
Date of
employ-
meat
Termination and reason (L 0.
means laid off)
Recall
date Subsequent action
A Jensen- ------------- 7/17/47 ------------------------------------ ----------
I Steffan --------------- 9/8/47 ------------------------------------ ----------
R Rode--------- ------ 10/23/47 ----------------------------------- ----------
B Kreisman ----------- 7/12/48 --- --------------------------------- ----------
V Schwartz------------ 9/8/48 - ----------------------------------- ----------
D Dela--- ------------- 9/24/48 - ----------------------------------- ----------
J Leveienz ------------ 1/24/49 --- --------------------------------- ---------
L. Tohannes --------____ 1/25/49 1/6/50 L 0 --_____________________ ----------
C Schmidt ------------ 1/31/49 ------------------------------------ ----------
P Clark _______________ 7/18/49 1/4/50 L 0 (also see section en- _
titled discharges above)
C. Harmon ____________ 7/25/49 1/4/50 L O______
B Johnson_____________ 7/25/49 1 /4/50 L 0 (see also sect on above ___ _______
entitled discharges).
C Dittmar____________ 8/24/49 1/4/50L 0 (see also section above _
entitled discharges)
E. Dittmar ------------ 9/1/49 1/4/50 L 0 ________________________ ___ -
R Burgett_____________ 9/6/49 1/4/50 L 0________ _______________ 1/16/50
E Alexander___________ 9/20/49 1/4/50 L 0________________________ 1/16/50 5/5/50 quit.
A Teall ---------------- 10/3/49 1/4/50 L 0 ------------------------ ----------
B Krueger_____________ 9/28/49 1 /4/50 discharged __________________ ----------
L Aucutt_ _____________ 10/3/49 1/4/50 discharged __________________ ____
C Collins______________ 10/7/49 1/4/50 L 0 ________________________ 1/2/50 7/21/50 quit.
C Meier _______________ 11/7/49 1/4/50 ------------------------------ 1/27/50
C Wendt -------------- 11/7/49 1 /4/50 L 0 ------------------------ ---------
S Kopshmsky_________ 11/11/49 1/4/50 L 0 ________________________ 1/18/50 -
Hein Radix ----------- 11/14/49 --- - - ----- ---- - --- ---- ----- -- -- -- - -- ----------
M Swenson ____________ 11/14/49 11 /20/49 transferred to paint dept -- ----- 3/7/50 discharged.
L Rettler______________ 11/15/49 1/4/50 L 0 ________________________ 1/10/50
D. Becherer ____________ 2/20/50 4/12/50 transferred to paint dept ___ ----------
N Salden-------------- 2/20/50 ------- ----------------------------- ----------
R Biemer ------------- 2/27/50 3/1/50 quit---------- --------------- ----------
C Nelson______________ 2/27/50 3/3/50 discharged __________________ ----------
A. King________________ 3/3/50 3/29/50 discharged _________________ ----------
K Radix-------------- 3/7/50 ------------------------------------ ----------
E. Nieman ------------- 3/16/50 3/21/50 quit ---- -------------------- _ ___-___-
F Brandt______________ 3/21/50 6/22/50 transferred toshipping dept _ __________
T Condon_____________ 3/21/50 4/12/50 transferred to paint dept --- __________ 8/11/50 L 0.
V Matt ________________ 3/22/50 6/21/50 discharged _________________ ----------
K Condon_____________ 6/1/50 8/11/50 L 0_______________________ ----------
I Schafer ______________ 6/5/50 6/6/50 transferred to paint dept ---- __________ 8/11/50 L. 0.
E Oldenhoff----------- 6/5/50 6/6/50 quit ------------------------- ----------
F Crance-------------- 6/7/50 ----- ------------------------------- ----------
I Sober°---- ----------- 6/15/50 -
Weeks -------------- 7/6/50 8/11/50 quit------------------------ ----------
M Wmkelmann -------- 7/13/50 -
Ellsworth 7/20/50 7/31/50 transferred paint dept ___ __________ 8/11/50 L. 0
J Jahnke 7/20/50 8/11/50 L 0_______________________ ----------
943732-51-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An analysis of the information in the table, above, reveals that on January
4, 1950, Respondent laid off 13 and discharged 2 assembly department workers
and on January 6, 1950, laid off another employee (L. Johannes). There-
after Respondent recalled 6 of those laid off (R. Burgett on January 16, 1950,
E. Alexander on January 16, 1950, E. Collins on January 20, 1950, C. Meier on
January 27, 1950, S. Kopshinsky on January 18, 1950, and L. Rettler on January
10, 1950) and hired as new employees in this department 19 individuals. There
were 7 employees in this department who were laid off on January 4, 1950,
and not thereafter recalled (P. Clark, C. Harmon, B. Johnson, C. Dittmar,
E. Dittmar, A. Teall, and C. Wendt). Clark, C. Dittmar, and Johnson, not
recalled, had more seniority than any of those recalled and obviously more
seniority than new employees. There is no evidence as to whether employees
first hired after January 4, 1950, had had prior experience in this type of work.
Presumably they had no such experience since the supervisor of this department
was not aware of any. The record reveals that there are different types of
work in the assembly department but that Meier, S. Kopshinsky, L. Rettler, A.
King, K. Radix, and E. Nieman performed the same type of work that had
been performed by Clark, C. Dittmar, and Johnson prior to January 4, 1950.
On occasions after January 4, 1950, when additional employees were required
Brown gave the supervisor of the department concerned a list of the people in
that department who had been laid off and requested the supervisor to indicate
"who he wanted back out of that group that was laid off." Brown then fol-
lowed the recommendations of the supervisor except in situations where he
knew "of a good reason why that employee should not be brought back" and
he then "so advised the supervisor." This procedure was followed with respect
to the assembly department and the supervisor of that department (Arlene
Jensen) did not ask for the recall of Clark, C. Dittmar, or Johnson. Further-
more, Brown and Jensen conferred as to whether these three should be recalled
and Jensen stated she would rather have girls that had more aptitude, more
ability, and paid more attention to their work. Jensen became assembly depart-
ment foreman after Grimshaw's discharge on October 28, 1949, and the record
reflects that on several occasions between December 7, 1949, and January 4,
1950, Clark, C. Dittmar, and Johnson became "careless" in their work and
Jensen "called their attention to it, and told them they should try to do better
work and produce more." Also, on several occasions these three employees
"huddled together talking" and Jensen separated them and criticized them
because the quantity of their work was not what she (Jensen) thought it
should be. In addition Jensen testified, "it seems to me I was always watching
those girls, that I had to watch them more than the rest of them," that she
had more "trouble" with these three workers than any other employee, and
that their general attitude "seemed like they were more interested in just
putting in their eight hours than actually getting any work out." When Jensen
found "something radically wrong" she would go to the superintendent with it
and between December 7, 1949, and January 4, 1950, she told Brown about
the above outlined conduct of Clark, Dittmar, and Johnson and said that "if
they kept that up I [Jensen] didn't want them to work for me." n
n Dittmar testified she did not receive any reprimand or warning from any supervisor
or foreman after December 7. Clark testified she never received any warning by any
company supervisor in respect to any misconduct on her part. Johnson testified she did
not recall being criticized between December 7 and January 4 and that she was not warned
about any misconduct during this period. The undersigned finds the facts to be as stated
above.
HARTLAND PLASTICS, INC. 451
Although a union meeting was held at the home of Leone Johnson ( mother
of Beverly Johnson ) on November 1, 1949, and Respondent 's officials were aware
of this meeting , the evidence does not establish direct retaliatory action because
of such meeting. Further the record does not reflect any "concerted , organiza-
tional or union activity" after January 4, 1950.
Following the January 4 layoff Annabelle Teall ( also spelled Teale in the
record ) obtained "a steady job " with another concern. In view of the per-
manancy of this job and the lack of "permanancy" in the jobs with Respondent,
Teall was not recalled by Brown although Jensen indicated she (Jensen ) desired
to have her (Teall ) recalled. -
C. Harmon was not recalled because her prior "production was far below that
of other employees doing identical work" and "she was always paying more
attention to what someone else was doing up there than to her own work."
L. Aucutt was not recalled because "she was late quite often and absent, and
then her work in comparison with those called back was not as good."
E. Dittmar was not recalled because "her production was very low . She was
a slow worker."
L. Johannes was not recalled because Jensen did not request that she be called
back.
.
The record does not establish the alleged reason or reasons for not recalling
C. Wendt.
The General Counsel contends that since Clark, C. Dittmar , and Beverly
Johnson were known leaders of union organizing activities and since other
employees junior to them were recalled and new employees were hired to per-
form work previously performed by these three that a conclusion should be made
that the reason these three workers were not recalled was because of their
"union or concerted activities ." The undersigned , in the light of the entire
record, believes the evidence is insufficient to support such a conclusion.
On January 4, 1950, Respondent ' s press department was operated on a 2-shift
basis-a day and a night shift-and a total of approximately 6 female and 11
male operators were employed in this department . However, the night shift
works longer hours than the day shift and Respondent does not permit female
operators to work on its night shifts.
On January 4, 1950, three press operators (Leone Johnson, Shirley Frey, and
Hans Seuthe ) were laid off. About the same time at least one operator on
the night shift ( Charles Delsman) was transferred to the day shift. Since
the General Counsel does not contend the Act was violated with respect to this
layoff no attempt will be made herein to resolve the issue raised by Leone
Johnson, at the time of the layoff , as to whether she was being laid off in
accordance with departmental seniority and no special significance will be
made of the transfer of Delsman , an operator with less departmental seniority
than Johnson.
Subsequent to the layoff Respondent recalled ' Shirley Frey and Hans Seuthe
whose departmental seniorities were junior to that of Leone Johnson, and in
June 1 950 Respondent employed two additional male workers ( Arthur Bivens
on June 1, 1950, and Jerome Jungbluth on June 23, 1950). However Leone
Johnson was not recalled and the General Counsel contends that she was not
recalled because of her "concerted or union activities."
As noted above Leone Johnson is the mother of Beverly Johnson, and she
(Leone Johnson) was cautioned "not to stick her neck out." Nevertheless , there-
after on November 1. 1949, a union meeting was held at her ( Leone Johnson's)
home and Respondent 's supervisory officials were aware of this meeting. There is
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no evidence of immediate, direct retaliation by Respondent because of Johnson's
"concerted or union activities." To the contrary Johnson testified that within
about 3 or 4 weeks before the layoff she received three raises-75 cents, then 80
and 85. However, as noted above the General Counsel contends that the evidence
does establish that Respondent retaliated against Leone Johnson by not recalling
her after the layoff and instead recalling employees junior to her (Johnson) and
by hiring additional employees.
Shirley Frey was recalled January 16, 1950, and the following testimony by
Brown explains why she was recalled rather than Leone Johnson:
Q Why was Mrs Frey recalled, rather than Mrs. Johnson?
A. I had knowledge, knowing Mrs. Frey had been laid off at her com-
pany, that her husband and child were living with the father-in-law. I had
information that the father-in-law, her husband and she were out of work:
I thought it only fair to give one individual in that family an opportunity
to earn a livelihood.
Q. Is that why Mrs. Frey was called back?
A. Yes, sir.
On March 15, 1950, Shirley Frey quit. A replacement was not obtained, but
Charles Delsman (husband of Patricia Clark), who had been transferred from
the night to the day shift about the time of the January 4, 1950, layoff, was re-
tained on the day shift, although absent Mrs. Frey's quitting he would have been
transferred back to the night shift.
On March 23, 1950, Hans Seuthe was recalled and put to work on the night
shift. Around July 1950 the night shift was reduced, by transfer to the day shift,
from five or six operators to two operators and Seuthe was one of those trans-
ferred.
On June 1 and 23, 1950, Respondent employed as press operators on the night
shift Arthur Bivens and Jerome Jungbluth. On August 11, 1950, Bivens was
laid off in a reduction in force and Jungbluth and J. Delsman (another male
operator) quit.
In addition to the personnel changes noted above, Respondent as a temporary
measure-during an operator's absence or on rush orders-on occasions had
an employee from the assembly department, Betty Kreisman,' work on the
presses in the press department.
The undersigned believes the evidence adduced insufficient to establish that
Leone Johnson was not recalled because of her "concerted or union activities."
The entire record herein reveals that Respondent rid itself of the employees
known to be outstanding in concerted or organizing activities simply by not
recalling them and instead recalling other employees with less seniority and
hiring new employees for the same type of work and thereby casts considerable
suspicion upon Respondent's conduct. Nevertheless in the light of the entire,
record, including Respondent's evidence as to why these four were not recalled,
the undersigned believes and finds that the General Counsel has not established
by a preponderance of the evidence that Respondent failed and/or refused to
recall Patricia Clark, Charlene Dittmar, Beverly Johnson, and Leone Johnson,
and each of them, for the reason that they, and each of them, joined and assisted
the Union and engaged in concerted activities on its and their own behalf.
Accordingly the undersigned will recommend that these allegations of the com-
plaint be dismissed.
72 Kreisman's employment with Respondent started July 12, 1948, and Leone Johnson's
started February 22, 1949.
HARTLAND PLASTICS, INC.
C. Interference, restraint , or coercion
453
The General Counsel contends that the statements of Foreman Johnson that
"if anyone talked about the union" he (Johnson) should report it and "they
would be fired" and that the statement of Foreman Lucas to Leone Johnson
about "sticking her neck out" were per se violative of Section 8 (a) (1) of the
Act. Respondent contends that the testimony as to what Johnson was told
in the office is pure hearsay. It appears to the undersigned that Johnson's
statement, whether true or false as to what he had been told in the office, was
a clear warning to the employees and violative of the Act. Respondent notes
that Lucas denied the statement attributed to him and contends that assuming
he made the statement it does not prove coercion or intimidation, "for a day or
two later" Leone Johnson invited Lucas to attend a union meeting. As noted
above the undersigned does not credit Lucas' denial. Furthermore, statements
of this type, manifestly intimidating, have frequently been held violative of the
Act although they may not have achieved their end. Respondent further con-
tends that both foremen "made it clear to their conversants that they could
not discuss union matters" and that in view of this and Respondent's statements
published in the press and Respondent's notice of December 20 it should not
now be held responsible for the statements. In the light of the entire record
any claim that these foremen were voicing their own private views and that
these views were contrary to Respondent's policy is rejected. As stated at
the hearing the undersigned does not regard the newspaper articles per se as
statements authorized by Respondent or as proof of the facts stated therein
and, without more, rejects said articles as proof that Respondent published state-
ments in the press to the effect that "If they want to organize, that's perfectly
all right with us." No other proof of such statements was offered at the hearing.
The notice posted on December 20 in the light of Respondent's discriminatory
conduct is not considered a complete repudiation of the conduct of these foremen
and a clear expression to the employees of their right to engage in activities
guaranteed them by the Act without fear of interference, restraint, or coercion
by Respondent Respondent also contends that these statements were isolated
and that the December 20 notice should be accepted as complete satisfaction for
them. In the light of the entire record the undersigned believes that these were
not isolated incidents and notes that Lucas' statement has a direct relation-
ship to the discriminatory discharges found herein. As noted above the Decem-
ber 20 notice is not considered adequate.
On August 22, 1950, Allen Johns, union business representative, distributed
union leaflets among employees returning to the plant from their lunch period.
While he (Johns) was distributing the leaflets on the street in front of the
plant, Edward Walter, Respondent's president, asked Johns what he was pass-
ing out Johns told him they were leaflets calling for a union meeting. Walter
thereupon shouted, "Union leaflets? We don't have anybody here that wants
to go to your meeting, we haven't got anybody who wants to belong to your
union. Get out of here with those things and take and [scurrilous language]
with them " The circumstances under which these statements were. uttered
indicate to the undersigned that they were violative of the Act and I so find.
Ultimate Findings and Coiiclnstons
In view of the foregoing and upon a consideration of the entire record, the
undersigned finds and concludes :
1. District No. 48, International Association of Machinists is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
454 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
2. That Respondent discharged Beverly Jean Johnson, Charlene Dittmar,
and Patricia Clark on or about October 26, 1949, and refused to reinstate them,
and each of them, until on or about December 3, 1949, because they and each
of them engaged in self-organization and in concerted activities for their own
,mutual aid and protection and Respondent thereby discriminated with respect
to hire and tenure of employment and discouraged membership in the Union
and interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
3. That Respondent since on or about October 1, 1949, by warnings and threats
of reprisals, interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act.
4. That the aforesaid unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2 (6) and (7) of the Act.
5. That the evidence adduced is insufficient to sustain the allegations of the
complaint, as amended, to the effect that following a layoff on January 4, 1950,
Respondent discriminatorily refused to recall Beverly Jean Johnson, Charlene
Dittmar, Patricia Clark, and Leone Johnson.
IV. THE REMEDY
Having found that Respondent unlawfully discriminated in regard to the hire
and tenure of employment of Beverly Jean Johnson, Charlene Dittmar, and
Patricia Clark, it will be recommended that Respondent make whole the afore-
said employees, and each of them, for any loss of pay they may have suffered
by reason of the discriminations against them. The losses of pay shall be com-
puted from the date of the discrimination to December 3, 1949, the date Re-
spondent offered the aforesaid employees reinstatement. In computing the losses
of pay the customary formula of the Board shall be followed. See F. W. Wool=
worth Company, 90 NLRB 289.
In order to insure expeditious compliance with the recommended back-pay
order it is further recommended that Respondent be ordered, upon reasonable
request, to make all pertinent records available to the Board or its agents.
Respondent's illegal activities, including the aforesaid discharges, go to the
very heart of the Act and indicate a purpose to defeat self-organization of its
employees and that there is danger that the commission of other unfair labor
practices proscribed by the Act is to be anticipated from Respondent's conduct
in the past. The preventive purpose of the Act will be thwarted unless the
order herein is coextensive with the danger. The notice posted by Respondent
on or about December 20, 1949, does not comply with the usual requirements
of the Board and is not adequate to effectuate the policies of the Act. Accord-
ingly, in order to make effective the interdependent guarantees of the statute
and thus effectuate the policies of the Act, it will be recommended that Respond-
ent cease and desist from engaging in the unfair labor practices found and from
in any other manner infringing upon the rights of employees guaranteed by the
Act and that Respondent post the notice attached hereto as Appendix B. See
Standard Dry Wall Products, Inc., 91 NLRB 544.
Since it has been found that the evidence adduced is insufficient to sustain
the allegations of the complaint, as amended, to the effect that following a layoff
on January 4, 1950, Respondent discriminatorily refused to recall Beverly Jean
Johnson, Charlene Dittmar, Patricia Clark, and Leone Johnson, it will be recom-
mended that these allegations of the complaint, as amended, be dismissed.
- [Recommended Order omitted from publication in this volume.]