Graber Manufacturing Co., Inc.

GRABER MANUFACTURING COMPANY, INC. 167 GRABER MANUFACTURING COMPANY, INC. and LODGE No. 1406, INTER- NATIONAL ASSOCIATION OF MACHINISTS . Case No. 13-CA-1442. January 10,1955 Decision and Order On June 15, 1954, Trial Examiner C. W. Whittemore issued his In- termediate Report in the above-entitled proceeding, finding a single instance of management interference with the employees' rights, but which he concluded to be too isolated to warrant the issuance of a cease and desist order, and further finding that the Respondent had not engaged in the other unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its en- tirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report, and submitted supporting briefs. 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 In- termediate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following exceptions and modifications : 1. The complaint against the Respondent alleged, among other matters, that the Respondent refused to bargain with the Union. At the outset of the hearing, the General Counsel indicated that he was proceeding with respect thereto on the ground that the Respondent had acted in bad faith when it refused the Union's bargaining re- quest and insisted upon an election. The Trial Examiner, however, without allowing evidence thereon, dismissed the refusal-to-bargain allegation because, the Union had not renewed its bargaining request after it participated in a Board-conducted election, which it lost. The Trial Examiner predicted his ruling solely on the Board's deci- sion in the Walmac Company case.' The Board's decision in the Walmac case does not appear to be in point. However, it is undis- puted that the Union proceeded to an election after it filed the unfair labor practice charges which form the basis of the General Counsel's present assertion that the Respondent was acting in bad faith. Thus, it appears that the Union was fully apprised of the Respondent's acts prior to the time of the election and, under the Board rules,2 is thereby precluded from asserting that the Respondent's refusal to grant it recognition constituted a violation of the Act. Accordingly, it follows 1 The Walmac Company, 106 NLRB 1355. 2 Aiello Dairy Farms, 110 NLRB 1365. 111 NLRB No. 20. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that no good purpose would now be served by reopening the record to admit evidence on the refusal-to-bargain allegation. 2. The Trial Examiner found that the Respondent's admitted inter- rogation of its employees concerning their union activities was not violative of Section 8 (a) (1) of the Act. We do not agree. On the next working day (March 30, 1953) after receipt of the Union's letter claiming to represent a majority of the employees, Joe Graber, Jr., one of the Respondent's officials, instructed Supervisor Hollfelder to "obtain any information [Hollfelder] possibly could" with respect to organizational activities. Pursuant to Graber's in- structions, Hollfelder asked employee Peterson that same day for information with respect to union activity at the plant. Concerning the March 30 conversation, Hollfelder testified that Peterson seemed a "little scared," but that she "did mention a few names . . . that she figured were involved in the overall trouble." Graber himself also questioned various employees, at least one of whom (Acker) had been pointed out to him by Hollfelder as the "most active person in union activity." Graber testified, with respect to his questioning of the employees, that employee Acker "admitted activity in the union organization"; that employee Stumpf "denied . . . any activity as far as aggressively going out and securing membership"; that employee Winters, who "was slightly neutral . . . divulged noth- ing of consequence," nor did employee Bachman; that employee Nel- son "made no accusations against any specific individual leading this group"; and, finally, that he (Graber) was "just searching in the blind" during his questioning. Because the evidence did not show that the Respondent questioned all the employees in the appropriate unit, the Trial Examiner in- terpreted the Walmac Company case 3 to preclude a finding that the Respondent violated Section 8 (a) (1) of the Act by its acts of inter- rogation. We perceive nothing in the Board's decision in the Wal- mac case warranting the interpretation the Trial Examiner has placed on it with respect to the interrogation of employees. In any event, the test set forth in the Blue Flash Express case,4 which the Board issued after the Walmac case, is controlling, i. e., under all the cir- cumstances, did the interrogation reasonably tend to restrain or inter- fere with the employees in the exercise of rights guaranteed by the Act.' The questioning of the Respondent's employees by Graber and Hollfelder was not limited to the matter of ascertaining the Union's majority status, as was the fact in the Blue Flash Express case, but pertained generally to the employees' union activities, and more particularly, to union leadership. Moreover, as the questioning 9 The Walmac Company, 106 NLRB 1355 4 Blnte Flash Express, Inc., 109 NLRB 591 e Cf N. L. R B v. Protein Blenders, 215 F 2d 749, 751 (C A. 8) GRABER MANUFACTURING COMPANY, INC. 169 of so many of the employees in this fashion was conducted systemat- ically by the Respondent's top officials, and was accompanied by the other antiunion conduct of the Employer herein found to be unlaw- ful, the questioning clearly tended, we find, to restrain or interfere with the employees in the exercise of their rights, and consequently is beyond the scope of the type of questioning we permitted in the Blue Flash Express case. Accordingly, we find the Respondent's interrogation of its employees to be violative of Section 8 (a) (1) of the Act. 3. As set forth in the Intermediate Report, Supervisor Holifelder told employee Meudt that she "would be sorry" if the Union came into the plant. The Trial Examiner recognized that a threat was clearly implied, but concluded that the Act had not been violated thereby because of the purging effect of Graber's general statement to the assembled employees, sometime later, that whatever happened the employees would maintain their jobs. We agree that Hollfelder threatened Meudt. However, in view of the extent and character of the Respondent's unlawful interrogation of its employees, described above, we cannot agree that Graber's speech had the purging effect ascribed to it by the Trial Examiner. Accordingly, we find that by Hollfelder's threat to Meudt, the Re- spondent also violated Section 8 (a) (1) of the Act. 4. As we have found that the Respondent violated the Act by inter- rogating and threatening its employees, we shall order the Respond- ent to cease and desist therefrom. The Trial Examiner found that Manager Showers' request of employee Maly to remove her union button was violative of Section 8 (a) (1), but was too isolated an instance of unlawful conduct to warrant the issuance of a Board order based solely thereon. We agree that Showers' request of Maly was violative of the Act.6 However, in view of the Respondent's other unlawful conduct, we shall include in our Order a directive that the Respondent refrain from curtailing the right of its employees to wear union buttons or to show their union affiliation by other similar means. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act as amended, the National Labor Relations Board hereby orders that the Respondent, Graber Manu- facturing Company, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their membership in, or activities on behalf of, Lodge No. 1406, International Association See Century Cement Manufacturing Company, Inc ., 100 NLRB 1323 , 1324 , footnote 5. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Machinists, or any other labor organization, in a manner con- stituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Threatening its employees with reprisals for engaging in union activities. (c) Curtailing the wearing by its employees of union buttons or other similar means of indicating their union affiliations. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Post at its plant in Middleton, Wisconsin, copies of the notice attached hereto and marked "Appendix A." 7 Copies of said notice to be furnished by the Regional Director for the Thirteenth Region shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) 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 be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (3) and 8 (a) (5) of the Act, and insofar as it also alleges that the Respondent violated Section 8 (a) (1) of the Act by conduct other than that herein found to be violative of the Act. MEMBER MURDOCK, concurring : I join my colleagues in the result of sustaining the dismissal of the 8 (a) (5) allegation of the complaint . I find it unnecessary to discuss the question whether the Trial Examiner's reliance on the Walmac case ( a three-member decision in which I did not participate) as the basis for this dismissal was or was not justified . Plainly the recently decided Aiello Dairy Farms case requires such dismissal and I agree there would be no point in reopening the record for further evidence on this allegation. I likewise join my colleagues in finding that the interrogation, Hollfelder 's threat to Meudt, and Showers' request to Maly to remove her union button, were violative of Section 8 (a) (1) of the Act. Again, however, I find it unnecessary to discuss the question whether the majority decision of two members of the Board on interrogation in the Walimac case warranted the interpretation the Trial Examiner placed upon it as a basis for dismissing the interrogation herein. 7 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." GRABER MANUFACTURING COMPANY, INC. 171 My views on interrogation remain the same as stated in the Blue Flash dissent. If my colleagues who were members of the majority therein construe it to permit them to find the interrogation herein a violation I am happy to see them come to this result. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to it Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their mem- bership in, or activities on behalf of, Lodge No. 1406, Interna- tional Association of Machinists, or any other labor organiza- tion, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with reprisals for engag- ing in union activities. WE WILL NOT curtail the wearing by our employees of union buttons or other similar means of indicating their union affiliation. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. GRABER MANUFACTURING COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of post- ing, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Charges having been duly 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 Re- spondent Company, a hearing involving allegations of unfair labor practices in vio- lation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Madison, Wisconsin, on April 27, 28, and 29, 1954, before the duly designated Trial Examiner. In substance the complaint, as amended at the hearing, alleges and the answer denies that the Respondent: Since March 31, 1953, has refused to bargain collec- tively with the Union, although since March 26, 1953, the Union at all times has been the majority representative of all employees in an appropriate unit; at various times since March 26, 1953, and through its officers and agents, has interrogated and threatened employees because of their union activities; on March 27, 1953, dis- criminatorily discharged employee Alden E. Allen in order to discourage union 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership; and by such conduct has interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed by Section 7 of the Act. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. Argument was waived. Briefs have been received from General Counsel and coun- sel for the Respondent. During the course of the hearing the Trial Examiner dismissed the 8 (a) (5) alle- gations of the complaint, for reasons fully set forth in the record. At the close of the hearing ruling was reserved upon a motion by the Respondent to dismiss all other portions of the complaint. Said motion is disposed of by the findings, con- clusions, and recommendations appearing below. After the hearing General Counsel submitted his request, concurred in by coun- sel for the Respondent, that the official transcript at page 209, line 24, be corrected to read "had not" instead of "had." The record is hereby corrected as requested. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Graber Manufacturing Company, Inc., is a Wisconsin corporation, maintaining its sole manufacturing plant in Middleton, Wisconsin, where it is engaged in the pro- duction and sale of drapery hardware. During 1953 the Respondent caused to be transported to its plant from States outside the State of Wisconsin materials purchased in total value of more than $100,000. During the same year it sold and caused to be shipped from its plant to States other than Wisconsin products valued at more than $200,000. The Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Lodge No. 1406, International Association of Machinists, is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharge of Allen Allen was hired by the Respondent in December 1952, and was discharged on March 27, 1953. Already a member of the Charging Union, during the month of his discharge he assumed leadership in organizational efforts at the plant. Some- time before his dismissal he informed his foreman, Don Lahti, that he was a union member and asked if there were any objections. Lahti told him he had none. On the day of his discharge, but after Allen was told he would be let go at the end of the day, the Respondent received a written claim of majority representation from the Union, and management representatives immediately began a campaign of inquiry among employees as to their interest in the Union. This bare statement of facts sup- ports a reasonable suspicion that Allen's services were terminated, as General Coun- sel contends, to discourage self-organization of the employees. Other facts, however, in the opinion of the Trial Examiner dissipate that suspi- cion, and lead to the conclusion that Allen was actually dismissed for legitimate reasons, as the Respondent claims. The evidence is credible and uncontroverted that Allen was hired as a machinist to work with and assist the few tool- and die-makers in the Respondent's toolroom, where theretofore only tool- and die-makers had been employed-and where, since the discharge, only tool- and die-makers have been employed. His hiring was un- usual and, according to the credible testimony of management witnesses, experi- mental. To perform the special type of work done in the toolroom, the Respondent continuously, both before and during Allen's hire, sought to obtain the services of a qualified tool- and die-maker. These were unobtainable. Finally, as a "stop-gap" measure, management decided to employ Allen who, as a skilled machinist, could assist and work under the supervision of a tool- and die-maker. Allen's claim, at one point in his testimony, that he was actually hired as a tool- and die-maker fails to find support in documentary evidence and admissions elsewhere in his testimony. He admitted that before being hired by the Respondent he "never actually worked on dies," and said thrt upon applying he told "them" he "had no experience on dies." GRABER MANUFACTURING COMPANY, INC. 173 His application-for-work form shows that he was seeking work as a "machinist" and that at each of his former places of employment he had worked as a machinist. Most of the time during the few months of his employment at the Respondent's plant Allen worked with a tool- and die-maker named Koep, although on occasions Foreman Lahti sketched or laid out his work for him. It is undisputed that a month or so after Allen's hire, "Pa" Graber, then the senior partner of the firm, complained to his son Joe that it was uneconomical to pay Allen the top-rate he was receiving when he was unable to produce as a qualified tool- and die-maker. Still unable to find a tool- and die-maker in the labor market, Joe persuaded his father to keep Allen on. During the latter part of February Koep quit. More of Lahti's time was then required to guide the machinist. The senior partner again insisted that Allen be let go. On about March 24, before leaving on a trip, Joe Graber yielded and told his father to do as he saw fit with the machinist. At the end of that week-on Friday noon, management decided to release Allen. Upon his return from lunch Foreman Lahti was called in and informed of the de- cision. General Manager Showers then went out to the toolroom and told Allen that his position as a machinist was being eliminated and he would have to let him go. As noted above, since that date no machinist has been hired to work in the Re- spondent's toolroom. The Trial Examiner concludes and finds that Allen was dismissed for economic reasons, and not discriminatorily to discourage union activity. B. Interrogation and threats As to interrogation, Joe Graber readily admitted as a witness that he and his father queried several employees, immediately after receipt of the Union's request for recognition on March 27, about their knowledge of union activity in the plant. Joe Graber also admitted that "I asked Mr. Hollfelder to obtain any information he pos- sibly could for me." Hollfelder is a foreman. The Trial Examiner agrees with General Counsel's contention, in his brief, that this campaign of interrogation was not idle "curiosity," but indicated a serious at- tempt to obtain information about the Union. However, the Trial Examiner also considers himself bound, since he was therein reversed, by the Board's Decision and Order in Howard W. Davis, d/b/a The Walmac Company (106 NLRB 1355). In that case, the head of the company ordered his chief engineer to conduct a written poll among each and all of the employees and require them to sign as to whether or not they wished to be represented by the union there involved. The instructions were carried out. "Because of the isolated nature of those interrogations," said the Board, "we do not believe that any useful purpose would be served by issuing a cease and desist order based on them. Accordingly, we shall not find a violation of Section 8 (a) (1)...." Here not all employees in the appropriate unit, so far as the evidence shows, were orally questioned. Under the circumstances the Trial Examiner is unable to find that the interrogations conducted by the Grabers and by Hollfelder were violations of Section 8 (a) (1) of the Act. Two employees testified concerning alleged threats of reprisal, Stella Stumpf and Leona Meudt. As the record plainly shows, and as the Trial Examiner observed in watching her as a witness, Stumpf testified reluctantly. Only after considerable prompting did she say that one Graber or the other had told her, during their inter- rogation in March, that she would lose her job if the Union came in. She plainly was ill at ease in testifying within a few feet from Joe Graber. But whether her lack of forthrightness was caused by fear of losing her job for telling the truth or for making a misstatement of fact in front of her employer the Trial Examiner was unable to determine from his observation. He cannot, therefore, find that Stumpf was in fact threatened by either of the Grabers. Meudt's testimony is not disputed by Hollfelder, to the effect that she "would be sorry" if the Union came in. A threat was clearly implied. As the single instance of a threat, however, it is reasonable to believe that the Board would also consider this "isolated." In any event, later action by Hollfelder's superior effectively negated whatever coercive effect the foreman's remark may have had upon Meudt. In April Joe Graber called all employees together and among other things specifically told them: Whether or not you join the union is for each one of you to decide individually. When an election is had, whether you vote yes or no, you will still keep your job. Don't let anyone advise you otherwise. Under the circumstances the Trial Examiner is unable to find that this threat of Hollfelder's warrants a finding of violation of the Act. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The raise of June 1 On about June 1, 2 weeks or so before a Board election was held at the plant, a general increase was granted to employees . The Respondent concedes that no such general increase had ever before been granted. It is General Counsel's contention that this wage increase, which accompanied announcement of a more liberal holiday and vacation plan, was granted for the purpose of discouraging employees from voting for the Union. "That they achieved their purpose," says General Counsel in his brief, "is indicated by the tally of ballots which is in the record." Apparently the Union was not of that mind, at the time, since no objections were filed to the election and no charge referring to the raise has been filed by the Union at any time-although the record shows that two amended charges were filed since June 1. While the Union's failure to file objections or charges on this point is of course not determinative of the purpose of the raise, which is in issue, nevertheless the Trial Examiner cannot ignore such failure . It is reasonable to assume that the Union, actively campaigning for the election, was well aware of the raise. Since it filed two separate charges after that event, but did not mention it, it is reasonable to assume that the Union itself did not arrive at the conclusion that the purpose of the raise was violative of the Act. Nor is there any evidence that the Union at any time protested to the Respondent itself that granting the raise was in interference of its rights. On the other hand, it appears to the Trial Examiner that the Respondent adequately explained the raise, through its witnesses, and that their credible testimony prohibits a finding that the purpose was illegal. In brief, Showers was employed as manager during the latter part of 1952. It became part of his duties to undertake what apparently had not theretofore been done-set up some sort of a formalized personnel policy, including job classifications, rates, and study of possible benefits. It appears that such plans were ready for effectuation about the time the Union demanded recognition. Management held up putting its plans into effect. In May a strike occurred at the plant and after its conclusion a number of employees did not return. After consultation with counsel, the Respondent finally decided to inaugurate its previously approved plan. Under these circumstances, the Trial Examiner concludes and finds that the general increase of June 1 was not violative of the Act. D. The button incident It is undisputed that early in the Union's campaign Manager Showers asked em- ployee Charlotte Maly to take off her union button and she complied. No threats were uttered. Maly said, as a witness, "He asked me to take it off." Even if such a request were to be considered, coming from the manager of the plant while an employee is at work, as a direct order or instruction-and such a conclusion is clearly not unreasonable-the Trial Examiner is of the opinion that this single item of management interference with employees ' rights is not sufficient basis for a cease and desist order. ' E. The refusal to bargain In his brief General Counsel moves that the Trial Examiner reverse his ruling, given early in the hearing, dismissing allegations of the complaint relating to refusal to bargain, and to order reopening of the hearing. Upon review of the record, and in view of the foregoing conclusions that the evi- dence does not sustain the complaint in other respects, the Trial Examiner hereby denies said motion to reverse and reopen. Upon the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6) of the Act. 2. Lodge No. 1406, International Association of Machinists, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (a) (1), (3), and (5) of the Act. [Recommendations omitted from publication.]