John Oster Manufacturing Co

National Labor Relations Board - Board Decisions

Oct 31, 1968

173 N.L.R.B. 503 (N.L.R.B. 1968)

JOHN OSTER MFG. CO. 503
John Oster Manufacturing Co. and International
Brotherhood of Electrical Workers , Local 1607,
AFL-CIO. Case 30-CA-740
October 31, 1968
DECISION AND ORDER
By CHAIRMAN MC CULLOCH AND MEMBERS
FANNING AND ZAGORIA
tio;.s be dismissed is adopted , pro forma, in the absence of exceptions
thereto.
2 We agree with the Trial Examiner ' s finding that employee Van
Gysel in refusing to attend the "gripe session," and employee Cato in
advising Van Gysel of her right so to refuse , were both engaged in
activity protected by Section 7 of the Act, and that the Respondent
violated Section 8(a)(1) by disciplining them for engaging in such
conduct. We find it unnecessary , however, to pass on whether such
disciplinary action was also violative of Section 8(a)(3), because,
whether viewed as a violation of Section 8(a)(1) alone, or of both
Section 8(a)(1) and ( 3), the remedial order would in either event be the
same.
TRIAL EXAMINER'S DECISION
On July 31, 1968, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that the
Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, I as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, John Oster
Manufacturing Co., Milwaukee, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recoimm ilded
Order, as herein modified:
Substitute the following for the fourth indented
paragraph of the notice:
WE WILL make Gertrude Van Gysel whole for
any loss of earnings, with interest at 6 percent,
which she may have suffered as a result of her
3-day suspension for refusing to attend a gripe
session and as a result of having been taken off
incentive pay on the day of the gripe session.
I The Trial Examiner 's recommendation that certain 8(a)(1) allega-
173 NLRB No. 82
GEORGE TURITZ, Trial Examiner On a charge filed on
January 15, 1968 by International Brotherhood of Electrical
Workers, Local 1607, AFL-CIO, herein called the Union, and
served on January 16, 1968, upon John Oster Manufacturing
Co., herein called Respondent and, at times, the Company, the
General Counsel of the National Labor Relations Board, herein
called the Board, through the Regional Director for Region 30,
on March 27, 1968, issued a complaint and notice of hearing
against Respondent. Respondent filed its answer in which it
denied all allegations of unfair labor practices The hearing on
the Complaint was held before the Trial Examiner named
above in Milwaukee, Wisconsin, on May 13 and 14, 1968. The
General Counsel, Respondent and the Union were each
represented by counsel at the hearing. The General Counsel
and Respondent have filed briefs with the Trial Examiner.
Upon the entire record and from his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation and maintains a
plant and office at Milwaukee, Wisconsin, where it is engaged
in the manufacture and sale of electrical appliances. It is a
subsidiary of Sunbeam Corporation. In the course and conduct
of its business operations Respondent purchases and receives
goods and materials valued at in excess of $50,000 which are
shipped to its Milwaukee plant directly from points outside the
State of Wisconsin.
It is found that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the National Labor Relations Act, as amended, herein called
the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
1607, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues litigated at the hearing were whether Respondent
violated the Act by its attorney's interrogation of the Union's
president, an employee, as to his justification for filing the
charge, and by his request to employees for copies of affidavits
given to the Board during the investigation; whether Respon-
dent ordered an employee to attend a meeting between
Respondent and employees for the purpose, in part, of
discussing employee grievances without the Union's presence;
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Respondent violated the Act by disciplining the
employee for refusing to comply with such order and by
disciplining the shop steward for counseling such refusal, and
whether Respondent intimidated an employee by discrimina
torily ordering her not to talk to other employees about union
business on company time
A Background
Respondent and the Union had collective bargaining rela
tions for a period of years For at least the 7 years prior to the
hearing the contracts required union membership as a condi
tion of employment and provided for the checkoff of union
dues The contracts also contained a detailed grievance
procedure, with provision for pay to union officials, stewards
and other employees for time spent in union management
activities and for training by the Company of a union member
in time study procedures The Union's membership was con
fined to Respondent' s Milwaukee plant, which had about 600
employees, and all officers of the Union were employed at the
plant Until the events leading to the present case communica
tion between the parties was effective Only four or five formal
grievances were processed a year, and few went as far as
arbitration
In about 1965 or 1966 Respondent, without communi
cating with the Union, instituted the practice of periodically
holding meetings during working hours of top management
with small groups of employees selected by the various
foremen Coffee and doughnuts were served, the company
officials spoke to the employees about problems of manage
ment, such as scrap waste and the cost of light and heat, and
the employees were then invited to speak about any problems
they had Among matters complained of or suggested by
employees at the meetings and discussed with them by
management were plant ventilation , distribution of piecework,
food in the plant cafeteria , eating and recreation facilities on
plant property used by the employees at lunch and breaktime,
plant parking facilities for employees, and incentive standards
In October 1966 the meetings came to the attention of union
officials when employees asked why they were being held The
officials brought the matter up with Respondent informally,
intending to register objection However Radle, the plant
superintendent, explained that the Company knew employees
had "gripes" and that it wanted to find out what they were for
purposes of rectification The union officials stated that so
long as attendance at the meetings was voluntary and foremen
would not harass employees for what they said, there would
be no objection by the Union Radle gave assurance to that
effect and the meetings continued to be held
B Intimidation of Employees
Gertrude Van Gysel was an employee for 13 years with an
excellent employment record She was prominent among a
group of employees who initiated a suit against the Company
on behalf of all women employees for back wages based on
allegations of discrimination because of sex In December 1967
she was a candidate for member of the Union's Executive
Board Her foreman, De Tarville, who had been a union
member until his promotion 2 years before, told her at that
time that Frank Mars, an official of Respondent's, called her a
"barracks lawyer " From time to time during the pnor 2 years
De Tarville had told Sherwood, then the union president, that
he hoped Sherwood would never appoint her shop steward,
and in December 1967 he told Sherwood that she would not
make a good executive board member, since she was too
loud mouthed On December 20, 1967, when Josephine
Schultz complained to De Tarville that something was not
being done in accordance with the Union's contract De
Tarville told her not to be like Gertie, that one in his
department was enough, and that he did not want his girls to
come to the attention of the front office'
On January 5, 1968, Van Gysel was engaged in conversation
by an employee from the next shift who had arrived early The
employee had been laid off and she questioned Van Gysel
about layoff procedures The conversation was observed by
Radle, who instructed Redding, the division superintendent,
that the employees be ordered to "break it up " Redding
passed the instruction on to De Tarville, who told Van Gysel
sharply to get back to work and to conduct her union business
on personal time, not company time Van Gysel asked De
Tarville why was he angry He replied that thenceforth when
anyone came by to talk to her, she was to tell him to keep
walking
C The Disciplining of Van Gysel and Cato
On January 12, 1968, at about 10 30 De Tarville informed
Van Gysel that she had been designated to go to the employee
meeting scheduled for that morning She said that she did not
want to go De Tarville told her that he would check to
ascertain whether she was obliged to go He consulted
Redding, who told De Tarville that she was required to go to
the meeting De Tarville returned to Van Gysel and took her
machine "off production," so that she would be paid on the
basis of time rather than the amount she produced He gave
her permission to go to see Redding with her shop steward,
Charles Cato Shortly thereafter Redding himself came to Van
Gysel and shouted at her to get up to the meeting Van Gysel
replied that she did not have to go, since attendance was
voluntary Redding replied, "Mr Radle says for you to get up
there and you get up there " Van Gysel replied that the Union
said that she did not have to attend With force she threw a
handful of small shafts she was about to process back into the
box from which she had taken them and went to see Cato
Cato, and later Sherwood, the Union's acting president,
confirmed that she did not have to go to the meeting The
three then proceeded to Redding's office Redding, who was
returning from the employee meeting , where he had informed
Radle of Van Gysel's persistence , refused to discuss the matter
at that time He said that Van Gysel was supposed to be at the
meeting and that she had damaged some shafts so that they
were scrap He ordered that if she would not go to the meeting
she should get back to work He went into his office, slamming
the door At Van Gysel's request Cato and Sherwood
accompanied her to her machine so that she could show them
that the shafts she had thrown down were not scrap In a few
minutes Redding, very angry, came and ordered the three to
' The General Counsel while contending that these incidents show a they were violative of the Act They are not passed upon in this
discriminatory attitude towards Van Gysel does not contend that Decision
JOHN OSTER
get to work. They followed his instructions.
At 1.30 that afternoon Van Gysel was summoned to Radle's
office At her request Cato was also called. Redding, Radle and
Herberer, Respondent's personnel manager, were there. Radle
asked Van Gysel if she had been asked to attend the meeting
and whether she had refused. She answered yes to each
question, and both times Radle said to Herberer and Redding,
"Did you hear9" Asked why she refused, Van Gysel explained
that she had been to one of those meetings and made
complaints but had accomplished nothing. Redding contra-
dicted her, saying that she had raised question about incentive
jobs which had been retimed as a result of her comments. Cato
admitted that he had told Van Gysel not to attend the
meeting, explaining that it was his impression that attendance
was not mandatory. Radle replied that Van Gysel had received
a direct order from management and had disobeyed it He told
her that she would be informed later what would be done and
sent her back to her job.
The meeting was moved to the office of Hopkins, Respon-
dent's assistant vice president for employee relations. Schaffer,
an International representative of the Union, who chanced to
be in the plant, and Sherwood were asked to come. Hopkins
reviewed the facts as he said Respondent understood them.
The union representatives took issue with his claim that the
order Van Gysel had disobeyed was merely to see Radle; they
said that the order had been to go to the meeting. Hopkins said
that in any event it was undisputed that she had refused to
comply with what she understood was an order, and that
insubordination was a serious matter for which the penalty
would normally be immediate discharge. Schaffer said, "You
certainly can't be considering discharge." Hopkins replied that
they were. Van Gysel's employment record was then exam-
ined. It was found clear of warnings or disciplinary action of
any kind and showed good attendance, and Redding added
that she was a good producer. Respondent conceded that she
was a good employee whom they would not want to lose, but
insisted that something had to be done about her disobedience
of an order and her manner, namely, in throwing the shafts
down angrily. After the management representatives had
caucused, they announced to the union representatives that
Van Gysel would be given a 3-day disciplinary layoff and Cato
a written warning to cease advising employees to be insubordi-
nate. The union representatives protested, there was further
discussion, and another caucus by management, after which it
was announced that the stated disciplinary action would stand.
Both employees received "Disciplinary Action Reports."
Cato's warned of "more severe disciplinary action" in case of
recurrence, Van Gysel's of termination of employment. Van
Gysel was suspended for 3 days and then returned to work.
Cato and Sherwood testified that Radle insisted at the
conference that attendance at the meetings was mandatory.
Except insofar as he stated that he assumed that attendance
was voluntary, Hopkins did not testify directly as to what was
said at the conference on that point. Radle, when asked at the
hearing whether employees had to go to the meetings,
answered, "No, not necessarily," and went on to recount how
he had excused employees upon presentation of reasons.
Asked whether attendance at the meetings was mandatory at
any time, he replied, "No, not from my standpoint." Neither
he nor Redding testified as to what was said on the subject at
the January 12 conference, and Cato's specific testimony that
Radle there said that attendance was mandatory stands
undenied. Cato impressed the Trial Examiner as a truthful
MFG. CO. 505
witness. It is found that at the January 12 conference
Respondent maintained its prior position that attendance at
the meetings was mandatory.
Hopkins testified that he was the one who made the
decision to discipline Van Gysel and Cato. He stated that
basically the reason Van Gysel had been disciplined was that
she had disobeyed Redding's order, and that Cato had been
disciplined because he counseled her that she could disobey
the order of a superior. He stated that he thought that the
order to Van Gysel had not been to go to the meeting but to
go to see Radle, but he said that this difference as to the nature
of the order did not matter, except as to the degree of penalty
He explained that if she had disobeyed an order to go to the
meeting he would have disciplined her, although he speculated
that the penalty would then probably have been milder than
the 3-day suspension that had been imposed.
Van Gysel's rate of pay was $2.17 per hour, but on
incentive she normally earned about $1.35 per hour more. She
testified that this loss of earnings was not the reason she
refused to go to the meeting but rather the fact that the
meeting she had attended had been useless.
D. Interrogation , the Request for
Affidavits
On January 15, 1968, the charge, signed by Sherwood, was
filed. A week or two later Hopkins brought it before the
executive board of the Union. He read the charge, including
the following allegations.
Since on or about January 12, 1968, and thereafter, the
above-named employer has in order to discourage member-
ship in Local 1607 of the International Brotherhood of
Electrical Workers, AFL-CIO, discriminated in regard to the
hire and tenure of employment and to the terms and
conditions of employment of Gertrude R. Van Gysel by
suspending Van Gysel for 3 days because of her union
and/or protected concerted activities.
He then read the statement, just above Sherwood's signature,
"I declare that I have read the above charge and that the
statements therein are true to the best of my knowledge and
belief," and remarked that when he had previously discussed
the charge with Sherwood, the latter had admitted that he did
not think that Respondent had taken action against Van Gysel
because of her union or protected activities. Hopkins urged
that this was wrong. He said that he was not acquainted with
Board regulations but that he had never heard of regulations
requiring a person to sign a statement to the effect that he
believed true something which he did not believe true. He
requested the committee to review the charge and withdraw it.
The committee agreed to discuss the matter.
On May 3, 1968, 10 days before the hearing, Mallien,
Respondent's attorney, met at the plant with Hopkins,
Herberer, and Housfeld, assistant in industrial relations. Cato
and Grabow, the Union's vice president, and De Tarville, Van
Gysel's foreman, were summoned. Mallien told Cato that the
charge which had been filed alleged discrimination because of
union activities. He asked Cato whether he felt that he or any
other employee had been discriminated against because of
union activity, or whether he felt that Respondent had taken
the action it took against Van Gysel because of union activity.
Cato answered no to all the questions. Mallien then discussed
with him the January 12 incident, asked whether Cato had
signed an affidavit, whether Cato could get a copy, and
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he objected to Mallien's reading it Cato said that he
could probably get a copy and did not object to Mallien's
reading it.
Mallien asked who had signed the charge. Informed that it
was Sherwood, he asked to see him and that individual was
summoned Malhen told Sherwood that he was preparing for
the hearing in this case. He took out the charge and asked
Sherwood why he had signed it-did he think that Van Gysel
had been discriminated against. Sherwood said that he thought
so, but when asked why, refused to state his reason at that
time. Mallien persisted in asking Sherwood why he felt that
way and why he had signed the charge. Sherwood evaded the
issue and after a time said, "I don't feel that I have to answer
these questions at this time." Mallien agreed, but he said,
. . but you must have your reasons." Sherwood finally said
that he did not feel that Van Gysel had been discriminated
against because of union activities. He said that the only reason
the charge had been filed was that Respondent was making the
"gripe" meetings mandatory. Mallien then asked if he could
get a copy of Sherwood's affidavit, and Sherwood replied that
he probably could. Sherwood and Cato both agreed that they
would see if they could get copies of their affidavits and
submit them to Malden.
Concluding Findings
Intimidation. The General Counsel makes no contention
that Respondent would have been acting illegally by prohi-
biting employees while at work from carrying on discussions,
including discussions of alleged contract violations. His theory
is that (a) Respondent in its past practice had condoned such
discussions, and (b) on January 5, 1968, Respondent departed
from such practice with respect to Van Gysel because she was
more zealous than other employees in concerted activities for
mutual aid and protection, as demonstrated by her candidacy
for executive board, her prominent part in the pending lawsuit
alleging discrimination based on sex, and by her reputation as a
"barracks lawyer." On the basis of Josephine Schultz' explana-
tion to De Tarville that employees often brought their
problems to Van Gysel, it may be inferred that Respondent
thought that she was involved in such discussions more than
most employees That Van Gysel was somewhat argumentative
appears from her own testimony at one point, "I always have
some kind of comment to make but I don't remember
offhand " The fact that Respondent was less ready to condone
violation of its rule against worktime discussions in the case of
an argumentative and discussion-prone employee does not,
standing alone, establish a purpose or intent to discourage zeal
in concerted activities. It could mean that in such circum-
stances the employee's conduct could not be tolerated because
it had a more significant impact upon production. It is found
that the General Counsel has failed to prove by a preponder-
ance of the evidence that Respondent, in the incident involving
Van Gysel on January 5, 1968, applied its rules in a
discriminatory manner or otherwise intimidated employees
concerning union or other protected concerted activity.
The disciplining of Van Gysel and Cato • At the hearing
Respondent attempted to establish that Van Gysel's suspen-
sion was imposed because she had disobeyed an order to go to
see Radle. The evidence is uncontradicted that Redding told
De Tarville that Van Gysel had to go to the meeting and that
De Tarville passed that order on to Van Gysel. No claim is
made that this order was at any time countermanded or
withdrawn expressly. What Respondent attempted to establish
is that Van Gysel was later given an order in slightly different
form, i.e., to go to see Radle. As Radle concededly was then at
the meeting place and the meeting was getting under way, such
an order, assuming for purposes of discussion that it had been
given, would have amounted to the same thing, that is, to go to
the meeting. If Redding had intended otherwise, he would
have told Van Gysel that she did not have to go to the meeting
as previously directed, but that Radle nevertheless wanted to
see her. In fact, at the afternoon conference on January 12
Respondent insisted that attendance at the meetings was
mandatory and did not press the question of what the order
was that Van Gysel had disobeyed. Moreover, Respondent
imposed its disciplinary action upon Cato without any attempt
to establish whether he ever heard of the allegedly revised form
of order. Respondent's attitude at the conference disclosed its
recognition that the claim that Van Gysel was ordered to see
Radle was an afterthought It is found that Van Gysel was not
ordered to see Radle but was ordered to attend the meeting. It
is further found that Respondent disciplined Van Gysel for
refusing to attend the meeting and disciplined Cato for
advising her that, notwithstanding such order, she did not have
to attend.
During the conference mention was made of the fact that
when Van Gysel refused to comply with Redding's order she
angrily threw down the shafts in her hand. Redding testified
that the shafts were ground to a high finish and that Van
Gysel's action made them defective. Hopkins testified that the
company officials on January 12 mentioned among themselves
that Van Gysel's gesture had been witnessed by 100 employ-
ees. The value of the shafts, 7 or 8,000 of which Van Gysel
processed in a day, was not proved at the hearing, and no
contention was made there or at the January 12 conference
that such value played any part in the decision to discipline
Van Gysel or that it was even mentioned. Hopkins testified
that he would have disciplined Van Gysel even if he had
understood that she had disobeyed an order to go to a meeting
at which attendance was supposed to be voluntary. At no time
did he indicate that if her refusal to attend the meeting had
been expressed with courtesy she would not have been deemed
insubordinate. He testified in Hart
Q. And specifically the problem as you came to know it,
related to Van Gysel having disobeyed the order of a
superior?
A. Yes.
Q. I believe several times in your direct testimony you
used those words "disobeyed the order of a supervisor or
Mr Redding?
A. Yes.
Q. And that basically is the reason why Van Gysel was
disciplined, is that correct?
A. Yes.
As the "gripe sessions" were devoted in part to discussion of
employees' complaints about terms and conditions of employ-
ment, it would have been an invasion of the employees' rights
under the Act to conduct that part of the meetings in the
absence of the Union without the Union's consent. There is no
JOHN OSTER MFG. CO. 507
evidence that the Union gave its consent to mandatory
meetings The employees' statutory right to bargain collective-
ly through a representative extends to all aspects of collective
bargaining, including the presentation of grievances. At no
time was the order to Van Gysel qualified so as to limit it to
her attendance at the meeting during the time devoted to
Respondent's problems, the order which she disobeyed in-
cluded a requirement that she lend her presence to the
presentation of the employees' "gripes", it was plainly
unreasonable. As the employees had the right to the Union's
participation in such a presentation, her refusal to attend was a
right protected under the Act It is inherently discouraging of
union membership when employees who have designated a
labor organization as statutory bargaining representative are
disciplined for refusing to engage in individual bargaining. Cf
Aluminum Extrusions, Inc, 148 NLRB 1662, 1669, Franklin
Brass Products, 159 NLRB 800, 808. Specific proof that
Respondent intended to discourage membership in the Union
is not needed. See Radio Officers' Union v. NL R.B., 347 U S.
17, 45. In any event, however, Respondent did intend to
discourage employees from refusing to engage in individual
bargaining, a plain interference with their right to engage in
meaningful collective bargaining through a labor organization
of their own choosing and discouraging of union membership.
It is found that by disciplining Van Gysel and Cato
Respondent violated Section 8(a)(3). It is also found that by
the disciplinary reports issued to them and by the accusations
of insubordination and other statements during the January 12
conference Respondent threatened Van Gysel and Cato with
discharge and other reprisals because they exercised rights
guaranteed in Section 7, and that Respondent thereby violated
Section 8(a)(1) of the Act.
Unilateral change of rules. The Complaint alleges that on
January 12, 1968, Respondent, through Redding, unilaterally
changed the rules as to the "gripe" sessions by making
attendance mandatory instead of voluntary. The General
Counsel's theory at the hearing was that attendance had always
been voluntary up to January 12. Thus the alleged change on
that day was really a "one-shot affair." There is no basis for
finding that Respondent's action on January 12 was taken for
the deliberate purpose of evading its contractual obligations
On the contrary, Respondent's long relationship with the
Union, the contractual provisions for union security with
checkoff, payment for time spent on union-management
activities, and for training by the Company of union members
for incentive-standards work, and the absence of evidence of
friction or of attempts by Respondent to undermine the Union
all tend to establish that Respondent's position on January 12
was taken in good faith. At the hearing Respondent took the
same position as the General Counsel, namely, that attendance
was voluntary. That matter is thus settled as between the
parties; no useful purpose would be served in the circum-
stances of this particular relationship in deciding whether
Respondent's actions on January 12 included what would be a
unilateral change in terms and conditions of employment
However, the Trial Examiner does find that Respondent's
order to Van Gysel to attend the meeting and its action in
taking her off incentive in aid of such order were violative of
Section 8(a)(1) and (3).
2 In denying enforcement of W. T. Grant the court emphasized a
factor not present in this case, namely, that the attorney who requested
Interrogation- The Trial Examiner credits Cato's testimony
that he was asked for a copy of his affidavit and that he
acceded to the request without being told that he did not have
to furnish the statement. It is not necessary to resolve the
question of whether Mallren "prefaced" his request for
Sherwood's affidavit with the statement that he had the right
not to let him see it, by the time Sherwood gave his answer.
Mallren had made that clear It was also clear to Cato by the
time the meeting was over. An employer's request for
statements given to Board agents constitutes illegal interroga-
tion tending to interfere with the employees' free exercise of
their rights under the Act even though the request is placed on
a voluntary basis. See W. T. Grant Company, 144 NLRB 1179,
1181, enforcement denied in relevant part 337 F.2d 447,
448449 (C A 7),2 Braswell Motor Freight Lines, 156 NLRB
671, enfd. 386 F.2d 190 (C.A. 6). Any request that such
affidavits be turned over to an employer interferes with the
employees' rights. The Board is better able to carry on its
investigative function and thereby secure vindication of em-
ployees' rights under the Act if employees with information
possibly relevant to a charge can feel assured that their
statements to Board agents will remain confidential unless and
until they are called to testify. Such assurance is not possible if
they are to be subject to the necessity of refusing to comply
with their employer's wishes. Employees whose future ad-
vancement depends upon maintaining their employer's good
will cannot have such 'assurance if confidentiality can be
maintained only at the cost of refusing to comply with his
wishes that they turn over copies of their statements. Many, to
avoid having to take such a position vis-a-vis the person
controlling their jobs, would prefer not to give the statements
to the Board in the first place.
Mallien's interrogation went farther than a mere quest for
facts, he attacked the charge as containing untrue statements.
He put Sherwood on the defensive, asked him, in the presence
of Respondent's high officials, whether he believed the charge,
and then, after eliciting from Sherwood the admission that he
knew of no instances where employees had been discriminated
against by Respondent because of union activities, demanded
that he justify signing a charge which contained such an
allegation. The question of what constitutes discrimination
which encourages or discourages membership in a labor
organization within the meaning of the Act is a technical, legal
question as to which our highest courts have had differences of
opinion and which had to be resolved by the Supreme Court.
See Radio Officers' Union etc. v. N.L.R.B., 347 U.S. 17.
Respondent's questions to Sherwood placed him in a difficult
position. On prior occasions Hopkins had specifically pointed
to the words on the charge just above Sherwood's signature, "I
declare that I have read the above charge and that the
statements therein are true to the best of my knowledge and
belief." Sherwood was undoubtedly aware also of the further
legend printed on the form in capital letters, "Willfully false
statements on this charge can be punished by fine and
imprisonment (U.S. Code, Title 18, Section 1001)." Assuming
arguendo that Mallien, for trial preparation, needed informa-
tion as to whether Sherwood knew of any instances of
discrimination because of union activities, that was not the
purpose of his questions to Sherwood. When Sherwood
the affidavits was relying upon the Board 's dismissal of an earlier case
and followed "ground rules " laid down by the Board in the earlier case
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that he knew of no such instances, Mallien did not
stop, but proceeded, in the presence of Sherwood's superiors,
to ask why he had signed the charge, implying that Sherwood
had acted improperly in doing so. By these actions Respondent
showed doubt as to Sherwood's integrity, based upon his
exercise of his right to file charges with the Board, a
manifestation of doubt which carried with it a threat at least
to Sherwood's future advancement. An employee under
interrogation such as that to which Respondent subjected
Sherwood could not help but have some second thoughts
about the advisibdity, from the point of view of his own
personal interests, of filing such a charge. Plainly the interroga-
tion tended to have a chilling effect on the exercise of
employees' right to file charges with the Board for vindication
of their rights under Section 7 of the Act.'
It is found that by requesting Sherwood and Cato for copies
of their affidavits and by questioning Sherwood in the manner
described above as to his signing and filing the charge,
Respondent interfered with the Board's processes and inter-
fered with, restrained and coerced employees in the exercise of
their rights under the Act 4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
6 percent per annum computed from the normal payday for
that payroll period.
CONCLUSIONS OF LAW
1. Respondent, John Oster Manufacturing Co., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. International Brotherhood of Electrical Workers, Local
1607, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
4. By discriminatorily suspending an employee from work
and by discriminatorily issuing disciplinary action reports to
employees Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
5. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
It is found that the activities of Respondent set forth above
in section III, occurring in connection with its operations
described in section I, have a close, intimate, and substantial
relationship 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
As it has been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below requiring
Respondent to cease and desist from said unfair labor practices
and to take certain affirmative action which will effectuate the
policies of the Act.
The presence of adverse notations in the personnel records
of Van Gysel and Cato constitute a constant threat that they
may suffer some disadvantage in the future from those
notations. In order to ensure that this does not occur, and to
give them and other employees assurance that it will not occur,
it is recommended that Respondent be required to expunge
from its records the notations that Van Gysel was guilty of
insubordination and that Cato counseled such insubordination,
as well as all other adverse notations with respect to the
incident of January 12, 1968. It is also recommended that
Respondent make Van Gysel whole for any loss of pay she
suffered as a result of her suspension from work and also for
such loss of her usual earnings as she suffered on January 12 as
a result of being taken off incentive during part of that day.
Such backpay shall be paid with interest thereon at the rate of
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations Act,
as amended, Respondent, John Oster Manufacturing Co., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Ordering or otherwise requiring employees to attend
meetings with Respondent for the discussion of grievances or
complaints by employees with respect to terms or conditions
of employment in the absence of their bargaining representa-
tive.
(b) Suspending, laying off, discharging, warning, issuing
disciplinary action reports to, or otherwise disciplining, em-
ployees, or threatening to discharge them, because they refuse
to attend meetings with Respondent for the presentation or
discussion of grievances or complaints by employees with
respect to terms or conditions of employement in the absence
of their bargaining representative, or because they counsel
other employees that such attendance might or should be
refused.
(c) Threatening to discharge or visit other reprisals upon
employees because they exercise their rights to discuss
grievances with Respondent exclusively through their bargain-
ing representative or under the procedure set forth in the
collective agreement.
(d) Interrogating employees as to why they had filed
charges with the Board or as to the content of affidavits or
other statements given by them to agents of the Board.
(e) Requiring or requesting employees to furnish copies of
affidavits given by them to agents of the Board.
3 It is not material whether Respondent thought that the charge had of Marine and Shipbuilding Workers of America, AFL-CIO, and its
merit. The right of employees to be free from actions of employers or Local 22 (Holder), 391 U.S. 418, fn. 2.
labor organizations tending to chill the exercise of their right of access 4 As the similar interrogation of Sherwood by Hopkins and of Van
to the Board for the vindication of Section 7 rights extends to cases Gysel by Mallien is not alleged in the Complaint, it is not passed upon in
where the charges they file lack merit . See N L R.B v . Industrial Union this Decision.
JOHN OSTER MFG. CO.
(f) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the Act:
(a) Expunge from the personnel records of Gertrude Van
Gysel and Charles Cato and from all other company records
the disciplinary action reports against them dated respectively
January 18, 1968, and January 22, 1968, and all references to
such documents or action in the Company's records.
(b) Make Gertrude Van Gysel whole for any loss of earnings
she may have suffered as a result of the discrimination against
her in the manner described above in section V of this
Decision, entitled the Remedy.
(c) Preserve and, upon request, make available to the Board
or its agents for examination and copying all production
records, work records, payroll records and all other data
necessary to analyze and compute the backpay required by
this Order
(d) Post at its office and place of business copies of the
notice attached hereto marked "Appendix.s5 Copies of said
notice, on forms provided by the Regional Director for Region
30, after being duly signed by its representative, shall be
posted immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 30, in writing,
within 20 days from the receipt of this Recommended Order,
what steps Respondent has taken to comply herewith.6
IT IS ALSO RECOMMENDED that the allegations that Re-
spondent intimidated employees by the conduct of Kenneth
De Tarville on or about January 5, 1968, and that Respondent
unilaterally changed the rules as to attendance at group
meetings be dismissed.
5 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order is enforced by a decree of the
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
6 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 30, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
509
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT order employees to attend meetings with
us for the presentation or discussion of grievances in the
absence of their bargaining representative.
WE WILL NOT suspend, issue disciplinary action reports
to, or otherwise discipline employees, or threaten to
discharge or take any other action against them, because
they refuse to attend such meetings or because they advise
other employees that such attendance should be refused
WE WILL expunge from the personnel records of Gertrude
Van Gysel and Charles Cato the disciplinary action reports
issued against them because of Gertrude Van Gysel's refusal
to attend a gripe session and of Cato's having advised her
that she did not have to attend.
WE WILL make Gertrude Van Gysel whole for any loss
of earnings she may have suffered as a result of her 3-day
suspension for refusing to attend the gripe session and as a
result of having been taken off incentive on the day of the
gripe session.
WE WILL NOT require or request employees to furnish us
with copies of affidavits given to agents of the National
Labor Relations Board.
WE WILL NOT interrogate employees as to why they had
filed charges with the Board or as to content of affidavits or
other statements given by them to agents of the Board.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act.
JOHN OSTER MANUFACTURING CO.
(Employer)
Dated By
(Representative (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions , they may communicate direct-
ly with the Board's Regional Office, 2nd Floor Commerce
Building, 744 North 4th Street, Milwaukee , Wisconsin 53203,
Telephone 272-3879.