A. R. Gieringer Tool Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1961

134 N.L.R.B. 1214 (N.L.R.B. 1961)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that , unless within 20 days from the date of the
receipt of this Intermediate Report , the Respondent , the Sheet Metal Workers'
union , notifies the said Regional Director that it will comply with the foregoing
recommendations , the Board issue an order requiring the said Respondent Union
to take the aforesaid action.
Finally, I recommend that the complaint be dismissed with respect to the Re-
spondents, the Carpenters Union , and the Millwrights Union.
APPENDIX
NOTICE TO ALL MEMBERS OF SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION, LOCAL 299 , AFL-CIO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT induce or encourage ' employees of Fairmont Aluminum
Company, Schurman Construction Company , Pittsburgh Bridge and Iron
Works, Stark Electric Company , Tri-State Roofing Company , Swindell-Dressler
Company , A. J. Boynton Company , or of any other employer, to engage in
a strike or a refusal in the course of their employment to use, manufacture,
process, transport , or otherwise handle or work on any goods, materials,
articles, or commodities , or to perform any services , or threaten , coerce, or
restrain any of the said companies , or any other employer or person, to cease
doing business with the partnership of S. M . Kisner & Sons.
SHEET METAL WORKERS ' INTERNATIONAL
ASSOCIATION, LOCAL 299 , AFL-CIO,
Labor Organization.
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.
A. R. Gieringer Tool Corp . and Tool & Die Makers Lodge No.
78, International Association of Machinists , AFL-CIO. Cases
Nos. 13-CA-3878 and 13-CA-4080. December 13, 1961
DECISION AND ORDER
On March 8, 1961, Trial Examiner Stanley Gilbert issued his Inter-
mediate Report in Case No. 13-CA-3878, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices in
violation of Section 8(a) (1) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. He also found that
the Respondent hadnot committed other violations of Section 8 (a) (1)
and had not discriminatorily discharged Clarence Ballsieper as alleged
by the General Counsel. Thereafter, the General Counsel filed ex-
ceptions to the Intermediate Report and a supporting brief.
On June 22, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in Case No. 13-CA-4080, finding that the Re-
spondent had not engaged in the violations of Section 8 (a) (3) alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
134 NLRB No. 124.
A. R. GIERINGER TOOL CORP. 1215
The General Counsel filed exceptions to- the Intermediate Report and
a supporting brief.
On June 30, 1961, the General Counsel filed a motion with the Board
to consolidate these two cases for purposes of decision. As none of
the other parties now has any objection to the motion for consolidation,
and as the violations alleged in the two complaints are related to the
same organizational campaign of the Union, we hereby grant the
motion of the General Counsel to consolidate these two cases for pur-
poses of decision.
The Board has reviewed the rulings of the Trial Examiners made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the exceptions and briefs, and the entire record in
these cases,- arid, hereby adopts the findings, conclusions, and recom-
mendations of Trial Examiner Gilbert in Case No. 13-CA-3878, and,
finding merit in the General Counsel's exceptions to Trial Examiner
Whittemore's Intermediate Report, adopts his findings, conclusions,
and recommendations only to the extent consistent herewith.
Early in September 1960, the Charging Union began organizing
the' Respondent's toolroom, where about 18 employees worked. On
September 12, 1960, the Union demanded that the Respondent recog-
nize it as bargaining representative of these employees. On Septem-
ber 29, the Union filed its charges in Case No. 13-CA-3878; a com-
plaint was thereafter issued alleging violations of Section 8 (a) (1)
and the discriminatory discharge of one employee in violation of
Section 8(a) (3). The hearing was held on December 6, 1960. On
February 21, 1961, the Union filed charges in Case No. 13-CA-4080,
and on March 28, 1961, the General Counsel issued his complaint
alleging the unlawful discharge of three additional employees in Oc-
tober and November 1960, arising out of their activities in behalf of the
Union. Meanwhile, on March 11, 1961, Trial Examiner Gilbert had
issued his Intermediate Report in Case No. 13-CA-3878, finding some
acts of interference, restraint, and coercion but recommending dismis-
sal of the allegation respecting the discriminatory discharge of Clar-
ence Ballsieper.
1. The Respondent has not excepted to the findings of the Trial
Examiner in the earlier case that it had violated Section 8(a) (1) by
engaging in certain acts of interrogation, threatening reprisal if the
Union were successful in its organizational campaign, and surveillance
of the activities of its employees on behalf of the Union. In the ab-
sence of such exceptions, we adopt the Trial Examiner's findings and
his conclusions that they reveal the Respondent's opposition to union
organization.
2. The General Counsel has excepted to the failure of Trial Ex-
aminer Gilbert to find that certain other incidents and conversations
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute violations of Section 8 (a) (1). We agree with the Trial
Examiner that these incidents do not amount to violations of Section
8 (a) (1) and, in any event, we note that they would be merely cumu-
lative to our finding that Respondent has engaged in other violations
of that section.
3. The two complaints allege the discriminatory termination of four
individuals. They are Clarence Ballsieper, whose termination was
effected September 14; David Fletcher, laid off on October 6; Gary
Hetzer, laid off the week ending November 6; and Irving Groves, laid
`off on or about November 10. It is the General Counsel's contention
that all were terminated because the Respondent believed them to be
engaged in activities on behalf of the Union's organizational 'campaign.
As noted above, the Trial Examiners in both cases recommended that
the 8(a) (3) allegations be dismissed. We agree with` Trial Examiner
'Gilbert that Ballsieper was not discharged for union activities, but
contrary to Trial Examiner Whittemore's conclusions, we find that
Fletcher, Hetzer, and Groves were discharged for that reason.
Ballsieper applied for a job with Respondent in April 1960 and
was asked whether he was a member of the Union. He answerd that
he was and Mohr, Respondent's plant manager, told him that there
was no union in the plant and that they didn't intend to have one,
but nevertheless hired Ballsieper. Respondent had at various times
knowingly employed union members in its toolroom. Ballsieper was
Apparently a slow worker and one particular job of his on which the
Company had lost money was called to his attention ;at least a month
before his termination, before union activity had begun:'
The Respondent received the Union's letter requesting recognition
on September 13. The same day, in reviewing Ballsieper's work
records in connection with the Respondent's bonus system, Respond-
ent determined that it often lost money on jobs assigned to Ballsieper.
Mohr instructed Hansen, a working foreman, to talk to Ballsieper
and get the matters straightened out. Mohr testified "that he did not
instruct Hansen to discharge Ballsieper. The'next day, -Ballsieper
was told that the situation arising from the losses on his jobs would
have to be corrected. There is some conflict in testimony, which the
Trial Examiner found unnecessary to resolve, as to whether Ballsieper
voluntarily quit, in protest to the rebuke, or was discharged. The
Trial Examiner believed that even if Ballsieper had been discharged,
it was without discriminatory motivation since there was no evidence
that he had been active in the Union's campaign or that the Respond-
ent had any reason to suspect him of being active. The Trial Ex-
1 Trial Examiner Gilbert states that there is no evidence that Ballsieper had been given
any prior warning, but this finding is at least partially negated by Ballsieper 's own ad-
mission that Hansen had spoken to him about this job. Hansen also testified that he had
. spoken to Ballsieper a number of times about defective or slow work.
A. R. GIERINGER TOOL CORP. 1217
aminer also relied for his finding of nondiscriminatory motivation on
the fact that Respondent had not discharged others who, known by
it to have been active 'in the Union's campaign, had not been dis-
charged. In view of the fact that after the issuance of the complaint
in this case, Fletcher, Hetzer, and Groves were also discharged, it is
clear that this inference of Trial Examiner Gilbert is not fully sup-
ported by the evidence. But despite this, we believe that the evidence
does not preponderate in favor of a finding that Respondent dis-
charged Ballsieper merely because he was a union member at a time
when the Union was beginning its campaign. We note that Respond-
ent had no reason to believe, at the time of his termination, that
Ballsieper had instigated or was even supporting the Union's organi-
zational drive while it did have an adequate reason, as evidenced
from Ballsieper's work record, for discharging him.
The situation as to the other three alleged discriminatees is, how-
'ever, in our opinion, quite different. The Respondent knew that
Groves was active in the union campaign and that the apprentices,
among them Fletcher and Hetzer, were in the forefront of the move-
ment to organize the plant.
Fletcher was an apprentice tool- and die-maker who had served
31/2 years of his apprenticeship with the Respondent. He was laid
off on October 6, allegedly because of lack of work, and was then dis-
charged the following Monday because of a foreman's complaint about
some improper work. Trial Examiner Whittemore, although finding
that the General Counsel had established a prima 7 f acie case of un-
lawful discharge because of the Respondent's hostility toward the
Union, nevertheless believed that this was nullified by the testimony
of Mohr that Fletcher had begun displaying an attitude of indiffer-
ence toward his work; and by the fact that the Industrial Commission
of Wisconsin, upon being requested to cancel Fletcher's indenture as
an apprentice, had decided that his dismissal was with just cause.
The Trial Examiner, however, failed to note that Fletcher's layoff
was not in the order of seniority, although, when one of the other
apprentices with less seniority was laid off, the Respondent had fol-
lowed the Industrial Commission's suggestion that seniority be used in
determining the order of layoffs. He also' failed to note that Fletcher
credibly testified that Mohr had told him there was no question of
his ability to do the work but that there was friction in the shop
and that it would be better if he sought other employment. Mohr
also offered to give him a good recommendation. These factors con-
siderably weaken the Trial Examiner's inference that Fletcher was
discharged because of his indifferent attitude toward his work or be-
cause of a decline in business. In view of Respondent's knowledge
of Fletcher's extensive activities on behalf of the Union, and the Re-
630849-02-vol. 134-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's opposition to the Union, we find that Fletcher's deficien-
cies, if any, were not the true reason for his discharge.
Hetzer, an apprentice, was laid off on November 6, 1960, with Rie-
mer, also an apprentice, in order of seniority. Both were known to
be union proponents' and had been identified as such by the Respond-
ent. Trial Examiner Whittemore, in finding that the preponderance
of evidence failed to sustain the allegation of a discriminatory dis-
charge in Hetzer's case, relied on the following facts and suppositions :
(1) that the General Counsel's case was based solely on the Respond-
ent's general hostility toward the Union and to the identification of
Hetzer as being in favor of the Union; (2) that no charges were filed
concerning, Riemer who appeared to be one of the most active of
the union adherents; (3) that the decision to lay off these'two appren-
tices was based on a decline of business about this time; (4) that their
layoff was made on the basis of seniority as recommended by the Wis-
consin Industrial Commission; and (5) that no new apprentices were
hired after Hetzer's layoff.
We believe that the Trial Examiner's conclusion is founded on a
failure to consider other relevant testimony. Thus, the record dis-
closes that Mohr twice discussed, the Union with Hetzer, most re-
cently just 2 weeks before his layoff when he stated that he knew who
was for the Union and that he knew that all of the apprentices were
for it. The testimony also reveals that Hetzer was considered to be
an able, efficient employee and had the second highest incentive rating
as an apprentice; that he was working as a jig-bore operator when he
was laid off while Respondent was advertising for a jig-bore operator;
and that he was laid off precipitately while-in the midst of a job that
had to be completed by someone else. If business was declining at
this time, it led to no general layoff of any employees but those active
for the Union. These additional factors persuade us that the Trial
Examiner's inferences as to the reasons for Hetzer's layoff are un-
warranted. We cannot agree with the Trial Examiner that Riemer's
layoff indicates the absence of improper motivation on the part of
the Employer solely because no charge was filed on his behalf, nor
that seniority was the true basis for the layoffs in view of Fletcher's
discharge a month earlier despite his greater seniority.
Irving Groves was terminated on or about November 10, 1960, at a
time when the job on which he was working was incomplete. Groves
had been identified by the Respondent as the leader of the union
campaign. The Trial 1 xaminer believed that the Respondent had
overcome the General Counsel prima facie case by establishing that
there were reasonable grounds for a reduction in force during this
period since four other employees had also been laid off. However,
the record shows that of these four (none of them the subject of
charges), one had voluntarily quit, the second had been replaced, the
A. R. GIERINGER TOOL CORP . 1219
third was later recalled, and only Riemer, the active union adherent,
was permanently discharged on grounds of lack of work.. Groves was
admittedly a highly competent employee who was also an experienced
jig-bore operator, available for such work while Respondent was ad-
vertising to fill such a position. The Trial Examiner accepts as con-
vincing the Respondent's contention that Groves was selected for lay-
off because he had expressed his intention to leave the following
March to start his own business. The record does not substantiate this
contention since Groves did not tell the Respondent that he was going
into business at any time nor did the Respondent so understand it,
since Mohr testified that Groves had merely said that he might "be
going north to work" after the layoff. There is no indication that
Groves acquiesced in the layoff because he was thinking of starting
his own business.
Based on the foregoing, we are persuaded that the General Counsel
has established by a preponderance of the evidence that Respondent
was opposed to the Union's organizational campaign, that its stated
reasons for the discharge of three active adherents of the Union were
pretexts, and that it discharged them because of their union adherence.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the
Act.
We will order that the Respondent offer David Fletcher, Gary
Hetzer, and Irving Groves immediate and full reinstatement to their
former orrsubstantially equivalent employment, without loss of senior-
ity or other rights and privileges, and make them whole for any loss
of pay they may have suffered, by payment to each of them a sum of
money equal to that which each would normally have earned from the
date of the discrimination against him to the date of offer of rein-
statement, less net earnings during such period, and in a manner con-
sistent with the policy enunciated in F. W. Woolworth Company, 90
NLRB 289. Backpay will be abated,from the date of Trial Examiner
Whittemore's Intermediate Report to the date of this Decision and
Order, in accordance with our usual policy in cases, such as this,
where the Board orders reinstatement of employees contrary to the
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, A. R. Gieringer Tool Corp., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns, shall :
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Tool & Die Makers Lodge No. 78,
International Association of Machinists, AFL-CIO, or any other
labor organization of its employees, by laying off or discharging them
or in any other manner discriminating against them in-regard to hire
or tenure of employment or any term or condition of employment.
(b) Interrogating employees regarding union membership, activi-
ties, or sentiments in a manner constituting interference, restraint,
or *coercion in.violation of Section 8 (a) (1) of the Act.
(c) Threatening employees with economic reprisals if the Union
should be successful in its organizational campaign.
(d) Engaging in surveillance of the 'organizational activities of
employees.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Tool & Die Makers Lodge No. 78,
International Association of Machinists, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing,,and'to engage in concerted activities for the purposes of
collective bargaining or mutual aid or protection, or to refrain from
any such activities, except to the extent that such rights may be af-
fected 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 Dis-
closure Act of 1959.
11 .2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : ,
(a) Offer to David Fletcher, Gary Hetzer, and Irving Groves im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for any loss of
pay they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of this Decision and Order
entitled "The Remedy."
• (b) ,Preserve and,.upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security records, timecards, personnel records and reports, and other
records necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Milwaukee, 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 duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
A. R. GIERINGER TOOL CORP. 1221
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 13-CA-3878
be dismissed insofar as it alleges violation of Section 8(a) (1) of the
Act in respects other than found violative herein, and violation of
Section 8 (a) (3) and (1) of the Act as to Clarence Ballsieper.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Order.
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, we hereby notify our employees that :
WE WILL NOT discourage membership in Tool & Die Makers
Lodge No. 78, International Association of Machinists, AFL-
CIO, or any other labor organization of our employees, by laying
off or discharging our employees or in any other manner discrim-
inating against them in regard to hire or tenure of employment
or any term or condition of employment.
WE WILL NOT interrogate our employees regarding union mem-
bership, activities, or sentiments in violation of Section 8(a) (1)
,of the Act.
WE WILL NOT threaten employees with economic reprisal if the
Union should be successful in its organizational campaign.
WE WILL NOT engage in surveillance of the organizational ac-
tivities of our employees.
WE WILL NOT in any other manner interfere with, restrain, or co-
erce employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Tool & Die
Makers Lodge No. 78, International Association of Machinists,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or mutual aid or protection, or to refrain from any such
activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
:as a condition of employment, as authorized in Section 8(a) (3)
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, as modified by the Labor -Management Reporting and
Disclosure Act of 1959.
WE WILL offer to David Fletcher, Gary Hetzer , and Irving
Groves immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their senior-
ity or other rights or privileges previously enjoyed, and make
them whole for any loss of pay they may have suffered by reason
of the discrimination against them.
All our employees are free to become or to refrain from becoming
or remaining members of Tool & Die Makers Lodge No. 78, Interna-
tional Association of Machinists , AFL-CIO, or any other labor
organization.
A. R. GIERINGER TOOL CORP.,
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
A charge 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 Rela-
tions Board, and an answer having been filed by A. R. Gieringer Tool Corp., herein
called the Respondent, a hearing involving allegations of unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as,
amended, was held in Milwaukee, Wisconsin, on May 10, 1961, before the duly
designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally, and to file briefs.
Briefs have been received from the General Counsel and the Respondent.
Upon the record thus made, and from his observation of the witnesses, the TriaF
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
A. R. Gieringer Tool Corp. is a Wisconsin corporation, having its principal office
and place of business in Milwaukee, Wisconsin, where it is engaged in the manu-
facture, sale, and distribution of dies, jigs, and fixtures.
During the calendar year 1960, the Respondent made, sold, and distributed prod-
ucts valued at more than $100,000, and shipped directly such products of at least
$25,000 in value to States other than the State of Wisconsin. During the same pe-
riod it made, sold, and distributed products valued at more than $100,000 to firms
themselves engaged in interstate commerce. And during the same period it pur-
chased within the State of Wisconsin goods valued at more than $50,000 which
originated outside that State.
The Respondent concedes, and it is found, that it is engaged in commerce within
the meaning of the Act.
II. THE CHARGING UNION
Tool & Die Makers Lodge No . 78, International Association of Machinists, AFL-
CIO, is a labor organization admitting to membership employees of the Respondent.
A. R. GIERINGER TOOL CORP. 1223
III. THE'ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues
Early in September 1960 , the Charging Union began organizing the Respondent's.
tool shop employees, then numbering 18. On September 12 the Union demanded
recognition and the Respondent declined.
On September 29 the Union filed charges in Case No. 13-CA-3878, and on De-
cember 6 a hearing was held before Trial Examiner Stanley Gilbert on issues raised
in a complaint duly issued by General Counsel. On March 11, 1961, Trial Examiner
Gilbert issued his Intermediate Report, finding some acts of interference, restraint,
and coercion , but recommending dismissal of the 8(a)(3) allegation , involving a
single employee , Ballsieper , who had been dismissed on September 14, 1960.
On February 21, 1961, the Union filed charges in these proceedings and on
March 28 General Counsel issued his complaint alleging the unlawful discharges of
employees David Fletcher in October 1960, and Irving Groves and Gary Hetzer
in November-all three dismissals having taken place before the hearing held by
Trial Examiner Gilbert.
The complaint in these proceedings contains no claims of interference , restraint,
and coercion other than derivative of the 8(a)(3) allegations.
At the hearing in these proceedings General Counsel adduced some testimony
also given at the previous hearing, making it clear on the record that it was not
offered to support any 8 ( a)(1) findings , but only as background evidence pertinent
to the 8 ( a)(3) allegations here involved.
As to such "background" credible evidence establishes the following.
(1) In April 1960, when Clarence Ballsieper applied for a job, Production Man-
ager Donald Mohr questioned him about his union membership, which Ballsieper
admitted, and then remarked: "We never had a union here, we don't have a unionT
here now, and we never intend to have a union." Ballsieper insisted that he came
there for work, not to organize the plant, Mohr replied: "Well, as long as we-
have that understanding, everything was [is] all right." He then told the applicant
that the plant would not remain open if it meant having a union.
(2) In the latter part of September, after the Union's demand for recognition,
had been declined, Mohr asked employee Max Limmer if he knew anything about
the Union. When Limmer said he did not, Mohr remarked that he knew em-
ployees Groves, Fletcher, Hetzer, and Riemer were "for the Union" and named)
an equal number who he said were against it . He advised Limmer then that since
he had an "important job" he should vote "no" if an election were held. The man-
ager also told Limmer that he believed Groves started the organization and added:
"but we can't put him out because he is too smart."
(3) In the latter part of October, after he had been laid off, employee Fletcher-
was told by Mohr that he knew those who were "for the Union" and named,
Groves and Hetzer.
(4) Also in the latter part of October, Mohr asked employee Groves directly if'
he had started the union organization. Groves denied that he had . Shortly there-
after Mohr told the same employee that he knew of five employees who had attended
a union meeting and that he was going to "fight " organization "to the end."
(5) On October 26, Mohr stood outside the union meeting place for the admit-
ted purpose of finding out how many employees were interested in the Union.
As noted heretofore General Counsel seeks no 8(a ) ( 1) findings as to the above
incidents but urges that the facts be here considered as showing the Respondent's.
hostility toward the Union. The Trial Examiner concludes and finds that Mohr,
a responsible member of the Respondent 's management , clearly expressed hostility
toward the Charging Union. Such hostility is a relevant factor in appraising the
claim that the three employees listed in this complaint were discharged to dis-
courage union membership.
B. The discharges
1. David Fletcher
Fletcher was an apprentice tool- and die-maker , employed by the Respondent in,
1957 . In early September 1960 , he signed a union authorization card . As noted
in the preceding section , in the latter part of that month Manager Mohr told em-
ployee Limmer that he knew that Fletcher , among others , was "for the Union." It
is reasonable to infer , and it is found, that by October 6 , 1960 , when he was laid
off for lack of work , Fletcher's union adherence was known , or at least suspected,.
by management.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fletcher was told by his foreman when laid off during the day of Thursday,
October 6, that there was no more work for him for the rest of that week. When
he came in the following Monday the same foreman confronted him with a piece
of work on which he had made a mistake and told him there was no more work
for him. He has not been recalled to employment.
When the foregoing facts are considered only in the light of the Respondent's
expressed hostility toward union organization it would appear that General Counsel
established a prima facie case of unlawful discharge.
The credible testimony of Mohr, however, in the opinion of the Trial Examiner
effectively nullifies the prima facie case. His testimony is undisputed that for
some time before his dismissal, and long before union organization began, Fletcher
began displaying an attitude of indifference toward his work, reported for work late,
and declined to work overtime when requested. Among other things, according
to Mohr, Fletcher told "other apprentices" that "they shouldn't run stamping
presses because this was not part of their contract." As a witness, Fletcher admitted
.that he had objected to doing "certain types of machine work."
Soon after Fletcher's layoff, the Respondent filed with the Industrial Commission
of Wisconsin a petition for the cancellation of the "tool and die making indenture"
of this employee on the ground that it had "just cause" to terminate his employment
under "Apprenticeship Law, Chapter 106 of Statutes." After hearing, on February
20, 1961, the Commission issued its decision finding that Fletcher's dismissal "was
with just cause," and terminated the indenture.
While neither the Trial Examiner nor the Board is bound by the Commission's
decision, the fact that it was made is relevant in determining whether or not there
is merit in the General Counsel's allegation of unlawful discharge.
Under all the circumstances, including the fact that no charge was filed on
Fletcher's behalf until many months later, the Trial Examiner does not believe that
the allegations of the complaint to this employee are sustained by the preponder-
ance of credible evidence.
2. Gary Hetzer
Hetzer was one of two apprentices laid off by the Respondent during the week
,ending November 6. Both were told by their foreman that their layoff was due
to shortage of work and that the period of such layoff might be from 3 weeks
to a year. And both were assured, upon their inquiry, that they were not being
discharged, as Fletcher had been.
About the only evidence adduced by General Counsel tending to support the
inference, in the absence of other facts, that Hetzer was laid off to discourage union
activity, establishes these two points: (1) Mohr's general hostility toward the
Union, and (2) the manager's telling employee Limmer in September that he knew
Hetzer, among others, was "for the Union."
Other facts are established, however, by equally credible evidence. And such facts
militate against the inference sought by General Counsel. They include:
(1) Apprentice Riemer was laid off at the same time as Hetzer. He also was
named as a known union adherent by Mohr in his talk with Limmer-and in fact
appears to have been the most active among the employee organizers. Yet General
Counsel raises no question as to his layoff, and no charge was filed on his behalf.
(2) Due to the falling off of business in the fall of 1960, which an industry
-chart in evidence shows was consistent with the national trend, management decided
to lay off two more apprentices-Fletcher having been discharged previously, as
-noted above.
(3) Before laying off Riemer and Hetzer, Mohr checked with the Wisconsin
Industrial Commission as to the proper method of selecting from the four remaining
apprentices, and was advised to lay them off in order of their seniority. The advice
was followed.
(4) No new apprentices have been hired since the layoffs of Riemer and Hetzer
and the discharge of Fletcher. Only one has been added to the two remaining
after the November 6 layoffs- Schaeffer, who returned from military service and
apparently claimed his reemployment rights.
In summary, the Trial Examiner concludes and finds that the preponderance
of evidence fails to support General Counsel's allegation as to the layoff of
-apprentice Hetzer. V
3. Irving Groves
Groves is a journeyman tool- and die-maker, employed by the Respondent in
March 1960. He was laid off on or about November 10 by Mohr, who told him,
-according to Groves' own testimony, that he had to lay someone off and was select-,
A. R. GIERINGER TOOL CORP . 1225
ing him because Groves had earlier expressed his intention to leave in March 1961
to start his own business.
While there is no question but that Mohr knew of Groves ' adherence to the
Union , and indeed before the layoff had asked him if he had started the organiza-
tion , such facts do not lead inescapably , the Trial Examiner believes , to a finding
of unlawful layoff.
The Respondent established reasonable grounds, in the opinion of the Trial
Examiner, for a reduction in force during this period . Four other employees: Fry,
Blumreiter , Huss, and Riemer were also laid off for lack of work during the same
period, and General Counsel raises no question as to such action.
At the time of his layoff Groves made no protest against his selection-his own
testimony makes it clear that he acquiesced readily because of his expressed intent
to open his own shop . Groves, along with the others named in the present com-
plaint, testified at the hearing in December 1960 , yet General Counsel then made
no claim of discriminatory layoffs although they had been made some time before
the hearing.
The circumstances above related , in the opinion of the Trial Examiner, do not
.warrant the conclusion that Groves was laid off discriminatorily and to discourage
union membership.
[Recommendations omitted from publication.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner, in Milwaukee, Wisconsin, on December 6, 1960, on complaint
of the General Counsel and answer of A. R. Gieringer Tool Corp. (hereinafter re-
ferred to as, Respondent), as amended.' The issues litigated were with respect to
alleged violations by the Respondent of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein referred to as the Act). All parties waived
oral argument. General Counsel and Respondent filed briefs.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, has its principal office and place of
business in Milwaukee, Wisconsin, where it is engaged in the manufacture, sale,
and distribution of dies, jigs, and fixtures. As admitted by Respondent, during the
year of 1959, a representative period, Respondent manufactured (or caused to be
manufactured), sold, and distributed products of a value in excess of $300,000 of
which products of a value in excess of $100,000 were furnished to firms engaged in
interstate commerce, and products of a value of at least $25,000 were shipped
out of the State; also, Respondent purchased goods of a value in excess of $50,000
from firms within the State of Wisconsin, but which goods originated outside said
State. Therefore, I find, as conceded by Respondent, that it is, and has been at all
times material herein, engaged in commerce and its operations affect, and have
affected, commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Tool & Die Makers Lodge No . 78, International Association of Machinists,
AFL-CIO ( hereinafter referred to as the Union ), is, and has been at all times
material herein , a labor organization within the meaning of Section 2(5) of the
Act, as admitted by Respondent.
1 Respondent , at the commencement of the hearing, moved to amend its answer "to
allege that the matters set forth in paragraph 6-A of the complaint are barred by statute
of limitations and are outlawed " There being no objection the motion was granted The
issue raised by this amendment (which apparently refers to the 6-month period provided'
in Section 10(b) of the Act), was not litigated ; Respondent thereafter made no reference
thereto and said paragraph of the complaint referred to action of Respondent occurring
prior to the 6-month period preceding the charge filed herein.
P
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
On September 6, 1960, the Union commenced organizing Respondent's employees
and on September 12, 1960, sent a letter to Respondent requesting that it recognize
.the Union as their bargaining representative. The letter was received on Septem-
ber 13. By letter dated September 15 counsel for Respondent, on its behalf, ad-
vised the Union that Respondent doubted the Union represented a majority of the
employees and "declined" the request. In the complaint General Counsel alleges
.that on or about April 17, September 14, 15, and 25, and October 24 and 26, 1960,
Respondent violated Section 8(a)(1) of the Act by acts of interrogation, threats of
economic reprisal, a promise of economic benefits, and surveillance of union activi-
ties of its employees. In addition, the complaint alleges the discriminatory discharge
on or about September 14, 1960, of one of the Respondent's employees, Clarence Ball-
sieper, in violation of Section 8 (a) (3) and (1) of the Act.
A. The violations of Section 8(a) (1)
About the middle of April, Ballsieper applied for a job with Respondent and
during the course of his interview with Donald Mohr, Respondent's plant manager,
Mohr asked him, according to Ballsieper, whether he was "in the Union." Upon
receiving an affirmative reply, Mohr told him, "Well we don't have a union here.
We never had one and we don't intend to have one." He also made a statement to
the effect that "Mr. Gieringer would rather close the doors than to accept a union in
the plant." Ballsieper answered that he was there "to work and not to organize"
to which Mohr replied, "Well, just so long as we have that understanding from the
start." Mohr, in testifying, did not deny Ballsieper's testimony as to this episode
and to some extent corroborated it. Therefore I credit Ballsieper's testimony, as
.above outlined, in its entirety which, to my mind, sustains the allegation contained
in paragraph VI(a) of the complaint of a violation of Section 8(a)(1) of the Act.
The next allegation of a violation of Section 8(a) (1) in point of time is stated
in the complaint (paragraph VI(b)) as having occurred on or about September 14
and having been committed by Chester Hansen, Respondent's foreman. It is
alleged that Hansen threatened certain employees with discharge or other economic
reprisal if they became or remained members of the Union or rendered it any
assistance. Respondent challenged the supervisory status of Hansen (as defined in
Section 2(11) of the Act) but it does not appear necessary to resolve this issue.
The only conduct on the part of Hansen disclosed by the record which I can relate
to this allegation consists of his announcement to various employees that he had just
discharged Ballsieper. There is some conflict in the testimony as to whether or
not he indicated that Ballsieper was discharged, but it does not appear necessary
to resolve this conflict either to dispose of this issue. Even assuming that Hansen
was a supervisor within the meaning of the Act and that he clearly indicated that he
had discharged Ballsieper, I cannot find anything upon which to base the conclusion
that he indicated to the other employees that Ballsieper was discharged for union
activities or partisanship and thus impliedly threatened them with discharge should
they be guilty of similar transgressions. The record discloses without contradiction
that the reason he gave for the discharge was Ballsieper's unsatisfactory work and
there is nothing in the record to indicate anything the employees could have related
to his announcement which would have logically led them to believe the reason was
'union activities or partisanship on the part of Ballsieper. Therefore, I do not find
that this allegation of a violation of the Act was sustained.
In paragraphs VI(c), (d), and (e) of the complaint several acts of interrogation
and threats by Mohr on or about September 15 are alleged as violations of Section
'8(a)(1) of the Act. I find nothing in the record which can be related to these
allegations except a conversation between Mohr and Max Limmer which was held,
according to Limmer, in the third week of September. Limmer's testimony as to
Mohr's statements to him was essentially as follows: Mohr asked him if he knew
about the Union (referring to a "letter on the blackboard") and then said that a
"few guys" are "going to make the Union" and named some who he thought were
"in" and some who he thought were "not in"; that if it came to a vote, Limmer
should vote "no Union"; that he [Mohrl thought Irving Groves was the one who
started the Union's organizational activities, but that "we have no reason to throw
him out because he is a good tool and die maker and he is very smart": and that
if the Union came in there would be among other things a timeclock and no
overtime.
Mohr testified with respect to his conversation with Limmer that, since Limmer has
'difficulty in understanding English, he attempted to determine whether Limmer
A. R. GIERINGER TOOL CORP. 1227
understood what the letter on the blackboard "was about and why it was there." 2
The letter referred to is the one above-mentioned which was sent by the Union to
the Respondent requesting recognition. Mohr further testified that his statements to
Limmer were by way of explanation and that he pointed out people who he thought
were interested in the Union and who were not, so that Limmer would get an idea of
who was in each category. Mohr further testified that with reference to voting he
told Limmer that he should not vote for the Union if he was not interested in what
it had to offer. He also testified that he did point out certain disadvantages if a
union came in, such as a timeclock and a strict accounting of time worked. Mohr
denied that he made the statement attributed to him by Limmer with respect to
Groves.3
I do not believe that, in his conversation with Limmer, Mohr was attempting
to interrogate the latter, but rather was trying to explain the action of the Union
and persuade him to adopt an antiunion attitude. Limmer should logically so have
understood Mohr's statements, but may have misunderstood them because of his
unfamiliarity with English. In his attempt to persuade Limmer I am of the opinion
that Mohr did threaten economic reprisal of no overtime and a strict accounting
of time worked with use of a timeclock, if the Union were successful in its campaign.
This is the only respect in which I find the allegations with regard to the date of
on or about September 15 (paragraphs VI(c), (d), and (e)) to have been sustained.
It is alleged in the complaint that on or about September 25, 1960, Hansen prom-
ised an employee economic benefits if he refrained from union partisanship (para-
graph VI(f)). Groves testified that, about the middle of September, Hansen in
a conversation with him remarked that "he didn't see what they [the employees]
had to gain with the Union" in view of Respondent's "present bonus system."
Groves replied that he had not, as yet, received a bonus. Later in the day, Hansen
told him that "this time" he would receive a bonus and stated that "it would be
two-thirds of a quarter." The record discloses that Respondent had an established
"bonus system" and, to my mind, Hansen's statement that he would receive a bonus
was not a p{Wmise but rather a report of what there would be due to Groves accord-
ing to the system. Thus, it does not appear that General Counsel has sustained
this allegation of the complaint.
With respect to the allegations contained in paragraphs VI(g) and (h) of the
complaint, Groves testified that, in the middle of October, Mohr said to him that he
would like to ask him a question, but did not know whether he should. Groves
replied that he could ask anything, and, if it did not involve something he had
promised not to tell, he would answer. Mohr asked him if he was responsible for
starting the union organizational campaign and Groves answered in the negative.
In the course of their further conversation about the Union, Mohr "said that he
figured that there was a few people that wanted the Union, and the rest were going
along with it, and on that basis he was going to fight it." 4
In his testimony Mohr denied the allegation that he threatened any employee on
or about October 24, 1960, but corroborated Groves' testimony with respect to inter-
rogation. It was pointed out by the Trial Examiner to counsel for the Respondent
that a bare denial of an allegation without testifying as to the episode to which it
refers is of little probative value since it merely constitutes a conclusion of the
witness. However, despite the inefficacy of the denial, I do not believe that a
statement that the Respondent would "fight" the Union amounts to any more than
evidence of antiunion animus and, without more, cannot be considered as a threat
to take some reprisal against employees. Therefore, I am of the opinion that while
General Counsel did sustain the allegation with respect to interrogation (paragraph
VI(g) of the complaint), he did not sustain the allegation with respect to a threat
{paragraph VI(h) of the complaint).
Finally, the complaint alleges (paragraph VI(i)) that on or about October 26,
1960, Mohr "kept certain of Respondent's employees under surveillance while they
were engaged in union or concerted activities.... . In the evening of October 26
there was a meeting of the Union at its headquarters which was attended by several
2 Limmer is German-speaking and displayed on the stand only a fair comprehension of
the English language. Mohr testified that he (Mohr) speaks a "feeble" German.
31 do not resolve this conflict at this point , but do so in a following portion hereof
where I find the statement to be of some materiality.
413y motion dated January 5, 1961, General Counsel sought to have the transcript cor-
rected on page 58, line 15, by substituting the words "fight it" for the word "fire." It
appearing that copies of said motion were duly served on the parties and there being no
objection interposed , said motion is granted.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's employees. ' Mohr admitted on the stand that he' knew there was
to be a meeting and that he "went down there" to get an indication of what percent-
age of the employees were interested in the Union, since he was unable to ascertain
the number from talking to people in the shop. Clearly, this allegation of the com-
plaint is sustained by the record.
In summary, with respect to the allegations contained in paragraph VI of the
complaint I am of the opinion that subparagraphs (a), (d), (e), (g), and (i) have
been sustained by the record, but that subparagraphs (b), (c), (f), and (h) have
not been.
B. The alleged discriminatory discharge
General Counsel contends that Ballsieper, who accepted employment from Re-
spondent about May 1, 1960, was discharged on September 14, 1960, for his union
partisanship, and Respondent, in its answer, takes the position that it did not discharge
him, but that he quit.
The record discloses these elements which tend to support General Counsel's
contention: (1) Respondent was hostile to the Union and engaged in conduct vio-
lative of Section 8(a)(1) of the Act; (2) its plant superintendent had elicited from
Ballsieper in a preemployment interview that he was a member of the Union and
was told that his employment would be with the understanding that he would not
attempt to organize Respondent's employees; (3) there is credible testimony that
Ballsieper was considered by management to be a capable worker; (4) there is no
evidence that Ballsieper was given prior warning and, if he were discharged, the
action was taken precipitately, shortly after he had taken over a complicated job
which required several additional weeks of work; (5) the alleged discharge occurred
the day after Respondent received a request for recognition from the Union; and
(6) there is credible testimony that Hansen announced to other employees immedi-
ately after the alleged discharge action that he had discharged Ballsieper.
On the other hand by the testimony of Mohr and Hansen Respondent attempted
to establish its contention that Ballsieper quit. According to their testimony, in
reviewing Ballsieper's work records on September 13 in connection with the Re-
spondent's bonus system (then in the process of being computed) they found that
Respondent often lost money on the jobs it assigned to Ballsieper. Therefore, Mohr
instructed Hansen to tell Ballsieper "what the difficulty was and get it straightened
out." Mohr testified that he did not instruct Hansen to discharge him. Hansen
testified that he called Ballsieper into the office and told him about losses on his
jobs and that the situation would have to be corrected. According to Hansen, Ball-
sieper said, "Well, if that's the way you want it, that's the way you want it," and
walked out of the office. He testified that Ballsieper did not ask if he was being
fired or challenge the assertion that the Respondent lost money on his jobs. On the
other hand, Ballsieper testified that Hansen, after pointing out the loss of money on
his jobs, stated that "it would be best if we parted company." He asked Hansen,
"As of now?" and Hansen responded, "Yes."
Respondent's contention is weakened by credible testimony that immediately
following the episode above described, Hansen informed other employees that he
had just discharged Ballsieper. Hansen testified that he had told the other em-
ployees that he had "left him go," and ineffectually explained that he meant by it
merely that he had not prevented Ballsieper from leaving. On the other hand
Respondent's contention is strengthened by Ballsieper's admission on the stand
that he was insulated by the criticism of his work and "walked out" in a "gesture
of surprise." Mohr testified that Hansen telephoned him that morning and advised
him that Ballsieper had quit. However, it does not appear necessary to resolve
the conflict as to whether Ballsieper was discharged or quit.
The above summary of the elements in the record supporting General Counsel's
contention and of the testimony with respect to the episode in which Ballsieper's
employment was terminated must be considered in the context of other factors
disclosed by the record. Mohr testified "we have others [other than Ballsieperl
working with us who are cardholders and this did not concern me and T appreciate
the fact that some people look on this as a type of insurance in that if we should
lay them off, that they would then have a field open that they could go into a union
shop whereas if they dropped their card, there is a potential that they would
limit their field of employment." He further testified without contradiction that he
hires union members and that presently union members work in the shop. Hansen
testified without contradiction that he, himself, is a member of the Union. Gen-
eral Counsel's witnesses testified that on at least two occasions Mohr stated to then
A. R. GIERINGER TOOL CORP. 1229
the names of those employees he believed were for the Union and those who were
not. Limmer testified that Mohr told him just a few days after Ballsieper's em-
ployment terminated that he believed Groves was the person who started the
Union's organizational campaign, but that he could not fire him. Mohr denied
making the statement, but I discredit his denial in view of Groves' credible testi-
mony that sometime later Mohr asked him if he was responsible for bringing in
the Union, thus indicating that Mohr did entertain the belief which Limmer testi-
fied Mohr had expressed to him.
Even assuming that I were to find that Ballsieper was discharged, I am of the
opinion that it would not be appropriate to make the further finding that it was
unlawfully motivated. I am not greatly persuaded by the fact that the Respondent
had knowledge of Ballsieper's union membership in view of the further fact that
Mohr knew or was sharply suspicious of the union membership or partisanship
of other employees and of Groves' leadership in the union campaign, but there is
nothing in the record to show that he took discriminatory action against them.
There is no showing that Ballsieper was active in the Union's campaign and the
record fails to reveal what purpose Respondent could have entertained in discharg-
ing him except for the possible inferences that he was suspected of being active or
that it was to accomplish the ieduction of the number of union members employed
by one. I am not convinced of the validity of either of such inferences.
Thus, I am of the opinion that General Counsel has not sustained the burden
of proof with regard to the allegation of Ballsieper's discriminatory discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent which I have found in section III , above, to
be in violation of Section 8(a)(1) of the Act, occurring in connection with the
operations of 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the record does not sustain certain allegations in the com-
plaint of violations by Respondent of Section 8(a) (1) and (3) of the Act, I shall
recommend that the complaint be dismissed with respect to such allegations.
In view of the nature of the unfair labor practices committed , the commission
of similar unfair labor practices may be anticipated . I shall , therefore , recommend
that the Respondent be ordered to cease and desist from in any similar manner in-
fringing upon the rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. As alleged in paragraphs VI(a), (d), (e), (g), and ( i) of the complaint, Re-
spondent interrogated its employees with respect to their relationship to and at-
titude toward the Union; threatened an employee with loss of economic benefits,
or other economic reprisals, in the event the Union succeeded in its campaign;
and engaged in surveillance of the union activities of its employees thereby violat-
ing Sections 8(a) (1) and 2(6) and (7) of the Act.
2. The Respondent has not engaged in the conduct alleged in paragraphs VI(b),
(c), (f), and (h) of the complaint.
3. The Respondent did not discriminatorily discharge Clarence Ballsieper as al-
leged in paragraph VII of the complaint.
4. The Respondent did not violate Section 8(a)(1) of the Act as alleged in
paragraphs VIII and XI of the complaint insofar as said paragraphs relate to the
allegations contained in paragraphs VI(b), (c), (f), and (h) and paragraph VII
of the complaint.
5. The Respondent did not violate Section 8(a)(3) of the Act as alleged in
paragraphs IX and XI of the complaint.
[Recommendations omitted from publication.]