Kiekhaefer Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1960

127 N.L.R.B. 1381 (N.L.R.B. 1960)

KIEKHAEFEF CORPORATION' 1381
members of said Local 525 rather than to employees who are not
members of said labor organization.
2. Within 10 days from the date of this Decision and Determination
of Dispute, said Local 525 shall notify the Regional Director for the
Fourteenth Region, in writing, whether or not it accepts the Board's
determination of these disputes and whether or not it will refrain from
forcing or requiring E. A. Weinel, by means proscribed by Section
8 (b) (4) (D) of the Act, to assign the work in dispute' to its own
members rather than to other, employees.
Kiekhaefer Corporation and International Association of Ma-
chinists, AFL-CIO. Case No. 13-CA-3011. June 21, 1960
DECISION AND ORDER
On December 22,1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Leedom and Members
Bean and Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this-ease, and hereby adopts the findings,2 conclusions, and recom-
1 The Respondent excepted to the Trial Examiner ' s refusal ( 1) to strike portions of the
complaint not specifically mentioned in the charges , ( 2) to require production of certain
pretrial statements , ( 3) to permit interrogatories or a continuance sufficient to prepare a
defense as to violations alleged in the complaint but not specifically set forth in the
charges, and (4 ) to permit the Respondent to present evidence to sustain its defense We
find no merit in these exceptions . As to ( 1), Section 10(b) does not require the striking
of complaint allegations which , although not specifically mentioned in the charges , are, as
here, sufficiently related thereto As to ( 2) the Trial Examiner need not require the pro-
duction of a pretrial statement where, as here , timely request therefor was not made or
where the statement was sought in order to cross-examine a witness other than the author
of the pretrial statement . As to ( 3) and ( 4), we find that the Trial Examiner did not
abuse his discretion in denying interrogatories , in limiting the Respondent's defense to
relevant matters , and in denying the Respondent a continuance , of longer duration.
awe hereby correct minor inaccuracies in the Trial Examiner 's findings as follows :
(1) Section III, B , 1 of the Intermediate ' Report should show that the number of
signatures to the petition there mentioned exceeded half the number of employees in the
unit rather than that there were an "undetermined number of signatures"; (2) section
III, B, 1 of the Intermediate Report should read "within a few weeks of this announce-
127 NLRB No. 162. •
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner with the following modifications,
exceptions, and additions.
1. We find, in agreement with the Trial Examiner; that: (a) The
Respondent violated Section 8(a) (3) and (1) of the Act by laying off
employees Schoen and Hopfensberger, by transferring employee
Owen to a lesser position, by issuing a, disciplinary letter to employee
Hunt,' and by reducing the hours of work of employees Hahn and
Morganroth; (b) the Respondent assisted and supported Kiekhaefer
Independent Workers Association, herein sometimes called •KIWA,
in violation of Section 8(a) (2) and _,(1) by the above conduct and by
threats of reprisal made both before and after September 29, 1958, as
more fully set forth in the Intermediate Report, except as noted here-
inafter;- and (c) the Respondent independently violated Section
8 (a) (1) by the above threats of reprisal, promulgation of an illegal
no-solicitation rule, and withdrawal of parking privileges, as more
fully set forth in the Intermediate Report.
2. Although stating that the evidence would support a fording that
the Respondent's general reduction of hours in the toolroom was
reprisal for the disaffiliation vote of Septemper 29, 1958, in violation
,of Section 8(a) (3) and (1); the Trial Examiner did not make such a
finding on the ground that no such allegation was made in the com-
plaint: In our view, however, the absence of such allegation precludes
us only from finding violations of Section 8(a) (3) and (1) as to
those employees in the toolroom, other than Hahn and Morganroth,
as to whom the complaint did not specifically allege that their hours
had been unlawfully reduced. Accordingly, we find the general re-
duction of hours, as well- as the discrimination against the named
individuals, Hahn and Morganroth, a violation of Section 8(a)'(3)
and (1).
3. The Trial Examiner found that Assistant Manager Brubaker
.told employee Waters the day after the disaffiliation vote that em-
ployees had made a mistake in voting for IAM and that -Foreman
Fischer stated that, with the IAM "in," overtime would be cut and
employees would• "possibly be laid off for a while." As the Trial
Examiner overlooked denials of such statements by Brubaker and
Fischer and, therefore, made no credibility resolution of the conflicting
testimony, we shall not rely on these particular threats in finding that
the Respondent violated Section 8(a) (1) of the Act.
ment the employer ' granted KIWA a contract , providing for a substantial increase in the
amount of the wage increase which had been offered before the disaffiliation vote, " rather
than that "within a few days after this announcement the employer granted a contract
providing for nearly twice the amount of the wage increase which had been offered before
the disaffiliation vote" ; and (3 ) the date on which the contract was executed , wherever it
appears, in the Intermediate Report , should be November 1, 1958, instead of October 1, 1958.
3 Although alleged in the complaint , the Trial Examiner found no violation as .to issu-
ance of a similar letter to ' employee Nickel . because unsupported by the evidence. As no
exception was taken thereto, we adopt this finding pro forma
KIEKHAEFER CORPORATION' 1383
4. The Trial Examiner found violation of Section 8(a) (1) in that
Superintendent Trapp stated, "Well, now that you voted for the TAM
you or no one is going to get anyone a raise unless I give- it to them."
As this statement is ambiguous, we shall not rely on it in finding that
the Respondent violated Section 8 (a) (1).
ORDER
Upon'the entire-record in this case, and pursuant to Section 10(c)
of the National Labor Relations At, as amended, the National Labor
Relations Board - hereby orders that the Respondent, Kiekhaefer
Corporation, Milwaukee, Wisconsin, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Giving effect to the collective-bargaining agreement entered
into on November 1, 1958, with Kiekhaefer Independent Workers
Association, or any extension, renewal, or modification thereof, or any
other contract or agreement with said Association, unless and until
said Association, shall have been newly certified as the majority repre-
sentative of the Respondent's production and maintenance employees
at its Cedarburg, Wisconsin, plants by the National Labor Relations
Board 4
(b) Recognizing the Association as the representative- of any of
its employees at, its Cedarburg, Wisconsin, plants for the purpose of
dealing with it concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until said labor organization shall have been newly certified as
the majority representative of the Respondent's, production , and
maintenance employees at .its Cedarburg,, Wisconsin, plants by the
National Labor Relations Board.
(c) Assisting or contributing support to the Association or any
other labor-organization. - -
(d) Discouraging membership in -International Association of
Machinists, AFL-CIO, or 'any. other labor organization of its employ-
ees, by discriminating in regard to hire or, tenure of employment or
any term or condition of employment, except to the extent permitted
by the proviso to Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(e) Threatening employees with economic reprisals to discourage
membership in the -International ,Association of Machinists, AFL-
CIO, or any other labor organization. - .
4 ,Nothing in our Order, however, shall be construed as requiring the Respondent to
abandon or vary those wage, hour, seniority, or other lawful substantive features of the
relationship between the Respondent and its employees which may have been established
pursuant to such agreement or extension, renewal, or modification thereof,' or any other
contract or agreement with the Association.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Association of
Machinists AFL-CIO, 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
all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the. Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Kiekhaefer Inde-
pendent Workers Association as the representative of its production
and maintenance employees at its Cedarburg, Wisconsin, plants for
the purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and other conditions of
employment, unless and until the said labor organization shall have
been newly certified by the Board as the majority representative of the
said production and maintenance employees.
(b) Make whole Leonard Hahn, Allen Morganroth, Sr., Oswald
Schoen, Vilas Hopfensperger, and Ernest D. Owen for any loss of
earnings they may have suffered by reason of the discrimination
against them, as found herein, and in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon- request, make available to the National
Labor Relations Board' or its agents, for examination and copying,
all records necessary for the determination of the amounts of back-
pay due under the terms of this Order.
(d) Post at its plants at Cedarburg, Wisconsin, copies of the
notice attached hereto marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted and maintained for a period of 60 consecu-
tive days. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
,words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order,"
KIEKHAEFER CORPORATION . 1385
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 give effect to any and all agreements and con-
tracts, supplements thereto or modifications thereof, or any
superseding contract or agreement with Kiekhaefer Independent
Workers Association, unless and until the Association shall have
been newly certified as the majority representative of the pro-
duction and, maintenance employees at our Cedarburg, Wiscon-
sin, plants by the National Labor Relations Board.
WE WILL withdraw and withhold recognition from the above
Association or any successor thereto, unless and until such
Association shall have been newly certified as the majority rep-
resentative of the production and maintenance employees at our
Cedarburg, Wisconsin, plants by the National Labor Relations
Board.
WE WILL NOT assist, or contribute assistance or` other support
to, the Association or any other labor organization.
• WE WILL make whole employees Leonard Hahn, Allen Morgan-
roth, Sr., Oswald Schoen, Vilas Hopfensperger, and Ernest D.
Owen for any loss of earnings caused by the discrimination
against them.
WE WILL NOT threaten economic reprisal to discourage mem-
bership in the International Association of Machinists, AFL-
CIO, or any other labor organization.
WE WILL NOT discourage membership in or activities on behalf
of International Association of Machinists, AFL-CIO, or any
other labor organization, by discriminating against employees in
regard to hire, tenure, or any term or condition of employment,
except to the extent authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959. .
WE WILL NOT'in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organization, to join or assist International
Association of Machinists, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
1 386 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection
or to refrain from any and all such activities , except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become, ' remain, or refrain from
becoming or remaining members of any labor organization , except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section ' 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
KIEI{HAEFER CORPORATION,
Employer.
Dated- --------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served, a complaint and notice of hearing thereon
having been issued and -served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section
8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, was held
in Milwaukee, Wisconsin, on October 26, 27, 28, and 29, 1959, before the duly
designated Trial Examiner.
All parties were represented at the hearing and participated. All were afforded
opportunity to be heard, to present evidence pertinent to the issues, and to examine
and cross-examine witnesses. Opportunity for oral argument was waived. Briefs
have been received from General Counsel and the Respondent.
Upon the basis of the entire record in the proceedings and from his observation of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Kiekhaefer Corporation is a Wisconsin corporation, with principal office and
place of business at Fond du Lac, Wisconsin , where it is engaged in the manufacture,
sale, and distribution of outboard marine motors. It also owns and operates plants
in Florida, as well as the two plants here involved which are in Cedarburg, Wisconsin.
During the calendar year . 1958 the Respondent purchased and received at its
Cedarburg, Wisconsin, plants directly from outside Wisconsin materials valued at
more than $1,000,000, and during the same period shipped products outside
Wisconsin valued at more than' $ 100,000.
The Respondent concedes and it is found that it is engaged in commerce within
the meaning of the Act. . . -
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists , AFL-CIO , and Kiekhaefer Independent
Workers Association are labor organizations admitting to membership employees of
the Respondent.
KIEKHAEFER CORPORATION - - ' 1387
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Chiefly at issue in these proceedings is the question as to whether or not in the fall
of 1958 the Respondent by conduct of its management agents illegally interfered
with the statutory rights of employees to be represented by a labor organization of
their own , and not the employer 's, choosing , and to be free of the employer 's unlawful
discriminatory conduct in making such choice.
Revelant to the present issue of interference in the latter part of 1958 is the
Board 's order of March 14, 1958 (Kiekhaefer Corporation , 120 NLRB 95), setting
aside an election held at the same Cedarburg plants in August 1957, • on the ground
that by various acts the Respondent had interfered with the employees ' right of
free choice between the same two labor organizations here involved . The Board
found that the Respondent then favored the Independent . In the present proceedings
it is General Counsel's contention that in the fall of 1958 such continued favoritism
took the form of unlawful conduct, requiring a remedial order.
In its order setting aside the 1957 election , the Board directed that a second election
be held, and shortly thereafter this direction was carried out. It appears that again
the Independent polled a majority of the votes . Bargaining eventually began between
the Respondent and the Independent . By' mid-September 1958, competent and
substantial evidence establishes that employees became dissatisfied with the bargaining
progress , rejected at an Independent meeting the wage offer which the Respondent
had made at the fourth negotiating meeting, and at an Independent meeting on Sep-
tember 16 instructed its president , Ernest Owen, to call a special meeting on or
before October 6 in order that they might - vote -as to whether or not they would
"disaffiliate", from the Independent and "affiliate" with the Charging Union.
On September 23 President Owen of the Independent sent with covcring letter to
L. A. Lohmann , vice president and general manager of the, two Cedarburg plants,
the following notice, which was posted at the plants:
NOTICE OF SPECIAL ; MEETING
Please take notice that on Monday , September 29, 1958, a Special Meeting is
being called at 7:30 P.M., at Legion Hall, Cedarburg , Wisconsin.
The purpose of this meeting is to discuss and vote upon disaffiliation from the
Kiekhaefer Independent Workers' Association and the National Independent
Union Council , and to further discuss and vote upon affiliation with the Inter-
national Association of Machinists ; and to discuss and take all necessary steps
in relation to the above two questions.
This is a very important meeting and we would like to see you at the meeting
to express your views and cast your ballot in true democratic fashion.
Upon receipt of this letter Lohmann promptly sent to all employees - in both plants
the following, dated September 26:
Most of you old timers know the origin of this business . After three bank-
ruptcies in the buildings you are now in, Carl Kiekhaefer , from a nearby farm,
..and local High School graduate , organized the business which has given you
steady and increasing employment and pay checks over the past 20 years.
You, your children , and your community have prospered as a direct result. -
This business has grown from ideas , imagination and hard work . We have
had no help from International unions or any other agency. Together we stood
on our own feet. Together we have built this business and together we can
continue to build it unaided and without need for outside organizations. Under
the leadership of Kiekhaefer we have built over one million engines; and
together we can build the greatest name in outboards!
If it is -no longer your wish to continue on this present basis , namely, a basis
of teamwork between ourselves , and you feel that you can do better with outside
management which knows nothing of this business , then we can not continue to
take the responsibility of operating this business.
We are competing with one large family of companies that are building 80
percent of -all outboard motors, several plants of which do not have an , inter-
national union , such as Johnson and McCulloch . Neither of these operate
within the state of Wisconsin which has a state as well as a federal income tax.
While we have gone forward in some respects, we have had to sacrifice, other
products and reduce our line of business. 'Where competitors went into the
1388 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
chain saw business, we had to retrench: Where we at one time built chain saws
and motors for mail order and chain stores and also defense contracts, now we
build only Mercurys. This is not true of any'other outboard manufacturer. All
other major manufacturers have plants in foreign countries. We have none. We
have not made enough money to invest in foreign plants, or to go into lawn-
mowers or scooters. We don't have palatial homes or yachts.
Just as many major auto companies have fallen by the wayside, just as more
than 20 other names of outboard motors have gone out of existence in the
last 30 years, so could Mercury.
The Cedarburg plant, because of its past loyalty, has seen our greatest
expansion. The unsettled prospects of the future and the lack of a vote of
confidence, however,-will necessarily curtail further expansion. The lack of
vote of confidence has caused us not to accept orders because they would
require further expansion. As you well know, jobs come only from orders
The company cannot accept the responsibility that goes with huge orders if
there is no guarantee the motors will be produced in time or with satisfactory
quality.
You are being asked Monday to vote whether the KIWA will represent you.
You have already made your choice twice by an overwhelming vote. Now, it
appears certain leaders in the KIWA have joined with the TAM and are forcing
you to vote again, the third time within a year.
You may say the 2-year history of the company's growth is all very fine
but that you are interested in tomorrow instead of yesterday. The fact is, that
without yesterday there would be no today or tomorrow. And without a vote
of confidence in the company, there certainly will be no tomorrow. Take your
choice
Nothing in this world can force us to continue this business. We can and
always have in the past negotiated. This past year, because certain members
of your present board apparently wanted the JAM no contract resulted.
Subsequently, we were powerless to negotiate and settle as in the past. This is
not of our doing.
We would not want to take the very serious responsibility of destroying a 2-
year association of productive benefits. Do you wish to destroy it? Do you.
wish to take this responsibility? For the sake of your jobs, your children and
your community, why vote for an outside organization that never has, and
never will have, any part in the building of this business or your job. Vote
KIWA.
Before turning to other events stemming, at least chronologically, from Lohmann's
letter, the Trial Examiner concludes and finds as the complaint alleges, that the
letter itself constitutes both unlawful interference and assistance. In its context,
the third paragraph was a plain threat to all employees that if they chose to vote for
affiliation with the Charging Union continued operation of the plants might well
cease. To warn employees, as Lohmann did, that if they did not vote for the
Independent, "there certainly will be no tomorrow," was oral support exceeding
permissible free speech by a substantial degree. Aside from statements widely
departing from the truth (negotations had not ceased, as his own sworn testimony
shows, and the employees, not the KIWA board, voted to consider affiliation with
the TAM because of the Employer's belated and small offer of a wage increase
which, as the record shows, was nearly doubled after the employees had voted to
shift affiliations), it appears to the Trial Examiner that no more overt and potent
interference with employees' statutory rights could have been devised than to state
that they must, in effect, vote "KIWA" or jeopardize their job security.
Following the vice president's lead, Lohmann's subordinate supervisors promptly
issued like warning orally. It is undisputed that about the same time Lohmann
sent the above letter Cortland Abel, who the Respondent does not deny was an
agent of the Respondent, warned employee Allen Morganroth, then vice president
of the Independent, that he could not understand why the employees wished to
affiliate with a national organization and that "there probably would be a cut back
in work" and that they could "get our dies 'and fixtures made on the outside."
Nor did Assistant Manager Brubaker specifically deny having told the same em-
ployee, in effect, that if they voted for the IAM "new work would be sent out and
the repair work could be done here." Moreover, it is undisputed that about the
same time Foreman-Elmer Fischer told Morganroth that if the employees did not
"stay" Independent, "there could be a- cut back in work, and probably, even a
moving of the plant." Finally, John Kaiser, then in charge of employee relations,
KIEKHAEFER CORPORATION , -'t OP 1389 - 2-:,^
also warned Morganroth that if they joined a national organization .the plant could
be moved south , where labor was cheap.'
Also before the scheduled election , it is undisputed that Foreman Schiller warned
employee Hopfensperger that "If IAM gets in , we are going to move the plant to
Texas."
It is concluded and found that the above-quoted threats of Abel, Brubaker,
Fischer, Kaiser, and Schiller constituted unlawful coercion. '
Despite the fact that the Respondent , from top management down , loaned the
full weight of its employer power to the proposition of retaining the Independent
as its selection of the employees ' bargaining agent, a majority of some 500 em-
ployees voted at the special meeting on September 29 to disaffiliate from that
organization and affiliate with the IAM.
That Lohmann 's strong and threatening message of September 26 was neither
idle nor vacant of intent was demonstrated by the course of events which quickly
followed the disaffiliation vote.
B. Retaliatory measures involved
1. Management 's insistence upon retention of an independent union
The day after the vote Ernest Owen , previously identified as head of the Inde-
pendent, and Archie Denou , a board member of the same organization , went to
Lohmann , informed him of the action ; and requested him to bargain with the
Charging Union as the representative of the employees . Lohman replied that
since the Board had certified the Independent he would not bargain with any other
labor organization.
On the same day Owen formally confirmed his oral request by a letter to Lohmann,
stating that the members of the Independent had voted to affiliate with the IAM,
and had been chartered as Mercury Lodge 20, JAM. He informed Lohmann also
that the officers and bargaining committee were the same , and requested continued,
negotiations for a contract.
Lohmann withheld reply to Owen 's letter . for some 2 weeks, and during this
period management permitted an undetermined number of signatures to be obtained,
during working hours, to petitions of unrevealed text, but apparently upon the
basis of which Lohman , on October 13, announced by plant bulletin in-part as
follows:
The Company will continue to negotiate with the bargaining committee and-
officers of the Kiekhaefer Independent Workers Association so that -a new con-
tract , fair and reasonable to both the Company and the employees, can be
worked out as soon as possible.
Within a few days after this announcement the Employer granted this organization
a contract , providing for nearly twice the amount of-the wage increase which had-
been offered before the disaffiliation vote.
Lohmann sent a copy of the bulletin to, Owen , as reply to his letter of September 30.
2. Threats of retaliation
After the 'vote to affiliate with the IAM various management representatives
warned employees that reprisal measures. would be invoked . Assistant Manager
Brubaker told.employee Waters the day after the vote that employees had made a
mistake in voting for the IAM , that jobs would be lost, the toolroom force cut, and
work sent out.z -
On the same day Foreman Fischer told employee Gramoll that he believed that
with the IAM "in " overtime would be cut and employees would "possibly be laid
off for a while." 3
Shortly after ' the vote, employee Horneck , approached Superintendent Trapp
regarding a raise for another employee which they had discussed before the vote.
1 Kaiser, as a witness , admitted discussing the subject of disaffiliation with Morganroth,
but denied the threat to move - The denial is not credited . The threat is implicit in
Lohmann 's letter and , as noted, it is, undenied that other supervisors , voiced similar
threats - i+ ,
-a Brubaker admitted the conversation which lie said Waters was "certainly referring
to,"-and admitted that he "stated some views that I hold about international unionism
in general "
3 Fischer agreed that he talked with G-ramoll on this occasion and did not deny the
remarks above attributed to him '
.1390 DECISIONS OF'. NATIONAL LABOR : RELATIONS BOARD
Horneck,.wearing;an JAM .button. on;the latter occasion, asked Trapp why. there
should be so long,a delay in processing a raise. It is undisputed'that Trapp replied;
"Well, now that • you voted. for the,IAM you or no one is going to get anyone a
raise unless I give it-to them."
The above-quoted statements by supervisors constituted interference, restraint,
and coercion.
3. Reduction of hours in toolroom, specifically as .to Hahn and Morganroth
Although toolroom employees, numbering about 45, had been working 50 hours
or more a week for at least 3 months before the election on September 29, imme-
diately after that date practically all such employees, as had been threatened by
supervisors, were suddenly cut down to 32 hours. At the end of 2 weeks on what
amounted practically to half-time, a number of such employees were laid off and the
others- permitted to work about 40 hours a week. -
The complaint fails to allege tat this general reduction in hours was an unlawful
reprisal, although the undisputed•evidence adduced by General Counsel would, in
the opinion of the Trial Examiner, sustain such an allegation.
General Counsel alleges only that two employees of the total in the toolroom
were discriminatorily reduced `in worktime: Leonard Hahn and Allen Morganroth.
- Credible testimony, much of it uncontradicted, leads to the reasonable conclusion
that both suffered loss of employment as a result of the Respondent's effectuation of
its openly announced resolution to retaliate if the employees voted for the TAM.-
Included among the several factors supporting this conclusion are:
(a) Hahn had been an observer for the TAM at the second Board election in
the spring of 1958. Shortly after this election he approached Foreman Schiller for-
a raise. Schiller referred him to Abel, in charge of the toolroom. When Hahn
went to Abel, it is unrefuted that the latter told him that he would never get any
more money because "you have been sticking up for the TAM." He further told
Hahn, "You.will never get, anything from this company any more. You have been,
on the wrong side of the fence." "Believe me," added Abel, "I know this company,-
they do not go along with an. international union."
(b) It is also undisputed that on September 30, the day after the vote, Abel
came to Hahn and said, ""I have some bad news for you fellows. . . . I just came
from a meeting with the old man [Kiekhaefer]. He wants me to go along with
him to look for a new factory site." Abel then added, "You know how the com-
pany feels about an international union."
(c) Shortly after the toolroom hours were cut, Hahn asked Foreman Schiller why
this reduction and other matters were happening. Schiller replied, "We warned
you what would happen if you joined an international union. This is all you guys'
fault in the toolroom. You have to take the consequences." 4
(d) As noted heretofore, Morganroth was threatened by many management
representatives as to what would happen if the Independent, of which he was then
vice president, turned JAM. Since Owen's letter of September 30- informed'
Lohmann that- the previously elected officers of the' Independent had become
officers of the TAM Local, it follows that management was aware of Morganroth's
shift to the TAM.
(e) Lohmann's claim that the reduction in toolroom hours was caused by "lack
of work" is without any 'su'pport of company records, a fact detracting appreciably
from its acceptance as credible, particularly in view of (1) his admission that work
was- sent out to "7, 8, different places," and the above-quoted undisputed statements
by Schiller and Abel. - -
The Trial Examiner concludes and finds that the preponderance of credible evi-
dence -sustains the allegations of the complaint to the effect that both Hahn and,
Morganroth were reduced in the number of working hours permitted them because,
of their activities on behalf of the Charging Union: By such discriminatory 'action'
the Respondent interfered with, restrained, and coerced employees in the exercise-
of legal rights. - ' .
4. Layoffs of Schoen and Hopfensperger in toolroom
Although company records in evidence show that several toolroom employees were
laid off after management had first reduced their working hours, and although as,
noted above the Trial Examiner believes that such mass action:was taken in reprisal,
the complaint alleges layoff discrimination only as to two employees: Oswald Schoen'
on October 24 and Vilas Hopfensperger a week later.
4 Schiller was not a witness
KIEKHAEFER CORPORATION 1391
,- As 4o,Hopfensperger, it is uncontradicted'that before his layoff; when he• asked
Foreman Schiller why_ the hours had been reduced, this management representative
replied that "seeing' we had choose'to'affiliate with the IAM that they, were shipping
their work out. . . . I told you this would happen."
For the same reasons noted in the section immediately above as to-the reduction
of hours for the two employees there named the Trial Examiner concludes and
finds that both Schoen and Hopfensperger were discriminatorily laid off, as part of
the, Respondent's unlawful reprisal campaign.. Such action also constituted unlawful
interference, restraint, 'and coercioni5
5. Withdrawal of parking privileges
Within a week after, the employees voted to affiliate with the Charging Union,
they were suddenly deprived of parking privileges on company property-a privilege
which had been accorded-them for some years before then.
Assistant Manager Brubaker endeavored to explain this abrupt withdrawal of a
long-enjoyed privilege by claiming that it was done because "bulky items" had been
stolen from the plant, such articles having been taken out "under cover of darkness
and into-a car which parked-in the parking lot or possibly over the-fence under the
cover of darkness." ,The•clarm was false on its face. .Company records in evidence
show that employees were working three shifts. The Trial Examiner takes official
notice that Cedarbuig, Wisconsin, is not afflicted with 24 hours of darkness the year
round.
The real explanation, the Trial Examiner believes, was given by Schiller to
employee Hahn, according to the latter's uncontradicted testimony, to the effect
that such privileges wefe removed because employees had voted for the IAM.
Such deprivation of privileges previously enjoyed as part of their working
conditions was clearly discriminatory and violative of the Act.
6. Discrimination against Owen
Also retaliatory, in the opinion of the Trial Examiner, was management's sudden
and summary action, in transferring Ernest Owen-back to a job he had performed
as a beginner in the 'paint department. The action was taken without previous
warning on the day Owen, as described above, visited Lohmann to report the vote
taken the night before. -
Although it does not appear that Owen's actual rate of pay or classification has
been changed, company records reveal clearly that the -transfer was not only a
demotion -in prestige but also in the amount of 'gross earnings. For example, in
February 1958, when he was still in management's favor as head of the Independent,
Owen'received about $450.,, During the same month in 1959-his pay was only
about $357.
The testimony of Foreman Darrall„to 'the effect that he put Owen back to a
beginner's job because he was doing unsatisfactory work, defies, reasonable belief
on its face. Darrall himself had been working at the plant only a week. - His claim
that he consulted with two superiors before making the transfer lacks the corrobora-
tion of either.
.. The Trial Examiner concludes and finds that Owen's demotion was discriminatory,
because of his 'IAM- activity,- and that it thereby constituted interference, restraint,
and coercion:6 '
•7. Other' acts of reprisal; unjustified reprimand of Hunt; no-solicitation rule
The circumstances leading to a written reprimand of employee Eugene Hunt are
established -byhis uncontradicted testimony. Hunt is a diecaster in plant 2, on the
second shift. -In the early pait of 1958 he was permitted to' attend 'Independent
meetings--occurring in' the evening, and, allowed-to make up time so- spent. On or
about October. 21, he asked for and received permission from his 'foreman, Anthony
Bath, to-go to_ an'IAM meeting that night. ' Bath gave such permission to both Hunt
and employee Anthony Nickel, who worked nearby, but told them to take with them
their lunch buckets because they would not be allowed to come through the gate on
Hopfensperger' was recalled in May and Schoen, in 'July` 1959. Under the circum-
stances described above-that of a general reprisal-the Trial Examiner believes it un-
necessary to determine whether or not either employee-was laid off out of seniority
U
The complaint also alleges that Owen was discriminatorily laid off for 5 days in
October or November 1958 - The Trial Examiner finds no substantial evidence in the
record to support this allegation. '
1392 . DECISIONS OF NATIONAL` LABOR -RELATIONS BOARD
return . Hunt and Nickel went to the meeting . The next day Bath handed Hunt a
written warning, threatening him with disciplinary action if he again walked off the
job "without receiving permission." 7
Since the Respondent made no apparent effort to explain why Bath gave Hunt
this letter , and since it is undisputed and unchallenged that Hunt did have permission
to attend the meeting , the Trial Examiner concludes and finds that the written
reprimand may reasonably be inferred to have been placed in-the employee's per-
sonnel file as part of the Employer 's open reprisal campaign , and was both
discriminatory and coercive.
As to the no-solicitation rule. On January 21, 1959 , Lohmann had posted a notice
stating, in part:
PARTICIPATION IN ORGANIZATIONAL ACTIVITIES OF ANY
KIND ON COMPANY TIME OR PROPERTY IS PROHIBITED
This notice remained posted until May 1959, when it was. replaced by another with
the words "or property" deleted. Lohmann 'explained that the change was made
because Kaiser, in charge of personnel relations , had discovered that such language
was questionable under Board policy. ,^
There can be small question but that for the months posted the above-quoted rule
unlawfully restrained all employees in the exercise of rights guaranteed by the Act.
C. Conclusions in summary
The Trial Examiner concludes and finds that the preponderance of credible
evidence in the record sustains the following allegations of the complaint that:
1. The Respondent rendered unlawful support and assistance to the Independent
by the threats described above , and by the various acts of reprisal including the
reduction in working hours, layoffs , and demotion of specific employees as described
above, as well as the discriminatory reprimand of employee Hunt.
2. The Respondent discriminated in regard to the hire and tenure and conditions
of employment , thereby discouraging membership in a labor organization, by its
various acts of reprisal , including the reduction in working hours, layoffs, and
demotion of specific employees as described above.
3. The Respondent interfered with , restrained , and coerced employees in the
exercise of rights guaranteed by the Act by the above -described conduct and by the
posting of the no-solicitation rule, described above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent - has engaged in unfair labor practices , it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Under the circumstances described herein , the Trial Examiner believes and finds
that the continued maintenance of the contract between the Respondent and the
Independent, which Vice President Lohmann testified was .entered into on October
1, 1958, would effectively bar full restoration to the employees of their right freely.
to choose their, own bargaining agent. The Trial Examiner further is - of the opinion
that here, where the Employer has utilized its employing power to restrain and
coerce employees in their statutory rights, the circumstances constitute a genuine
exception to the so-called 1-year certification vile. To hold otherwise , it appears,
would be to invite employers to take over independent or other organizations, lock,
stock, and barrel the day after certification issues, and by continued domination and
coercion defeat for the next 12 months the very purposes of collective bargaining.
It will therefore be recommended that the agreement entered into between the Re-
7 The complaint alleges that Nickel was similarly reprimanded. The answer denies the
allegation as to both employees Nickel was not a witness , and only by inference might
it be found that he received a letter -Under the circumstances the Trial Examiner con-
siders it unnecessary to make a finding on this point.
MOUNTAIN PACIFIC CHAPTER OF THE A.G.C. 1393
spondent and the Independent on October 1, 1958 , be set aside , and that the
Respondent cease and desist from giving effect to it or to any extension , renewal, or
modification thereof , or any other contract or agreement between said Respondent
and the Independent which may now be in force, unless and until the said Inde-
pendent shall have demonstrated its exclusive representative status pursuant to a
Board-conducted election among said employees.
It has been found that the Respondent discriminatorily reduced work hours and
laid off certain named employees , in order to discourage membership in and activity
on behalf of a labor organization . It will therefore be recommended that the
Respondent make whole these named employees for any loss of pay they suffered
as a result of the discrimination against them , by payment to each of them of a sum
of money equal to that which he normally would have earned as wages during the
period of discrimination against him , and in a manner consistent with Board policy
set out in F. W. Woolworth Company, 90 NLRB 289 , and Crossett Lumber Com-
pany, 8 NLRB 440.
In view of the gravity and substantial nature of the Respondent 's violations of
certain sections of the Act , it will be recommended that it cease and desist from in
any manner infringing upon the rights guaranteed to employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists , AFL-CIO, and Kiekhaefer Independent
Workers Association are labor organizations within the meaning of Section 2(5) of
the Act.
2. By contributing support and assistance to Kiekhaefer Independent Workers
Association the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment of employees , thereby discouraging membership
in a labor organization , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with , restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
(Recommendations omitted from publication.
Mountain Pacific Chapter of the Associated General Contractors,
Inc.; The Associated General Contractors of America , Seattle
Chapter, Inc.; and Associated General Contractors of America,
Tacoma Chapter and International Hodcarriers, Building and
Common Laborers Union of America , Local No. 242, AFL-CIO
and Western Washington District Council of International
Hodcarriers , Building and Common Laborers Union of Amer-
ica, AFL-CIO and Cyrus Lewis, Charging Party. Cases Nos.
19-CA-1374, 19-CB-4?4, and 19-CB-445. June 21, 1960
SUPPLEMENTAL DECISION AND ORDER
On December 14, 1957, the Board issued its Decision and Order in
these cases 1 in which it found that the Respondent Employers vio-
1119 NLRB 883.
127 NLRB No. 156.
560940-61-vol. 127-89