Automotive Supply Co., Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1957

119 N.L.R.B. 1074 (N.L.R.B. 1957)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice in selecting a collective-bargaining representative, therefore the Em-
ployer did allegedly engage in the conduct which affected the results of the
election; .. ,
In the opinion of the Regional Director, this objection lacks reasonable specificity
of the grounds upon which the objection is based, other than those previously con-
sidered, and therefore raises no issues to be considered on their merits.4 Further,
no evidence was submitted by the Union as to the other acts to which reference is.
made in this objection. It is recommended that this objection be overruled.
CONCLUSIONS AND RECOMMENDATION
As previously stated , the Regional Director concludes that the Union 's objections
do not raise substantial or material issues with respect to conduct affecting the
results of the election and it is, therefore , recommended that the objections be
overruled and that a certification of results be issued.
4 Don Allen Midtown Chevrolet, Inc., 113 NLRB 879.
Automotive Supply Co., Inc. and General Drivers and Dairy Em-
ployees Union , Local 563, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 13-CA-92203. December 17, 1957
DECISION AND ORDER
On April 29,1957, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, a copy of which
report is attached hereto, finding that Respondent had engaged and
was engaging in certain unfair labor practices, and recommending
that it be required to cease and desist therefrom and to take certain
affirmative action. He also found that the Respondent had not en=
gaged in certain other, unfair labor practices, and recommended that
the complaint be dismissed insofar as it alleged such unfair labor
practices. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report.
Pursuant to, 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 [Members Rodgers, Been, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner except insofar as they are inconsistent with this decision.2
i The Board having been notified by the AFL-CIO that it deems the Teamsters ' Certifi-
cate of affiliation revoked by convention action, the identification of this Union is hereby
amended,
aNo exceptions having been filed to the Trial Examiner 's finding -that the discharge of
Roy Glass violated Section 8 (a) (3) and (1), of the Act, we shall adopt it pro forma.
119 NLRB No. 113.
AUTOMOTIVE SUPPLY CO., INC. 1075
We agree with the Trial Examiner that Respondent's failure to
reply to the Union's bargaining demand was motivated solely by a
complete rejection of the principle of collective bargaining, and there-
fore violated Section 8 (a) (5) and (1) of the Act. We find that such
violation began on March 29, 1956, when Wickert, Respondent's presi-
dent, asked the assembled employees which job classifications were in
the unit which the Union sought to represent, and employee Staedt
told him what they were. Because Wickert's decision to ask only the
employees to describe the unit shows that he would accept their
answers as reliable, and because no official of Respondent thereafter
expressed any doubt as to which job classifications were included in the
unit sought by the Union or testified at the hearing that he thereafter
had any doubt, we find that Staedt put Respondent on notice thereof.3
In any event, we find that Respondent's continued failure to respond
to the Union's bargaining demand after receiving the Union' s repre-
sentation petition in early April violated Section 8 (a) (5) and (1),
since the petition set out the job classifications in the unit sought .4
In view of Respondent's unlawful refusal to bargain with the Union,
we find that an order directing it to bargain with the Union on' request
will effectuate the policies of the Act notwithstanding Respondent's
contention that since the hearing the Union has lost its majority.
Because any such loss of majority is attributable to Respondent's
violations of Section 8 (a) (1), (3), and (5), were we to refrain from
issuing a bargaining order on such grounds Respondent would be per-
mitted to profit from its own unfair labor practices.'
ORDER
Upon the entire record in the 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, Automotive Sup-
ply Co., Inc., and its officers, representatives, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership and activity in General Drivers and
Dairy Employees Union, Local 563, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization of its employees, by discriminating in
regard to the hire and tenure of their employment or any term or
condition of employment.
8 See Scott & Scott, 113 NLRB 911, 916-917, 930-931, enfd. 245 F. 2d 926 (C. A. 9) ;
N. L. R. B. v. Clearfield Cheese Co ., 213 F. 2d 70, 73-74 (C. A. 3).
4 See N. L. R. B. v. Sunrise Lumber & Trim Corp., 241 F. 2d 620, 623 , 624 (C. A. 2),
cert . denied, 355 U. S. 818.
s Franks Bros . Company v . N. L. R. B., 321 U. S. 702, 704-705; The M. H. Riizwotier
Co. v. N. L. R. B., 114 F. 2d 432, 438 ( C. A. 7) ; Geigy Company, Inc ., 99 NLRB 822, 824,
enfd. 211 F . 2d 553 ( C. A. 9), cert. denied, 348 U. S. 821.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain collectively with the above-named Union
as the exclusive bargaining representative of Respondent's employees
in the appropriate unit with respect to rates of pay, wages, hours of
work, and other conditions of employment.
(c) Interrogating employees concerning their attitude towards,
their membership in, or activities on behalf of, the Union, or any
other labor organization, or why they want the Union and what they
expect to gain from it, in a manner constituting interference, restraint,
or coercion.
(d) Polling employees concerning their attendance or their non-
attendance at a meeting of the Union, or any other labor organization,
in a manner constituting interference, restraint, or coercion.
(e) Threatening to reduce the number of working hours or to
close down the shop or to reorganize under a different name, for the
purpose of discouraging membership or activity in the Union.
(f) Advising employees to form their own "inside" or "company"
union, for the purpose of discouraging membership or activity in
the Union.
(g) Threatening employees with loss of employment or bodily
harm, for the purpose of discouraging membership or activity in the
Union.
(h) Unilaterally putting into effect a wage increase for the pur-
pose of discouraging membership or activity in the Union and
undermining the Union.
(i) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights of self-organization, to
form labor organizations, to join or assist the above-named Union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and 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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with General Drivers and
Dairy Employees Union, Local 563, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees comprising the appro-
priate unit, with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
(b) Make whole Roy Glass for any loss of pay he may have suf-
fered by reason of the Respondent's discrimination against him, in
AUTOMOTIVE SUPPLY CO., INC. 1077
accordance with the recommendations set forth in that part of the
Intermediate Report entitled "The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(d) Post at its store and shop in Appleton, Wisconsin, copies of
the notice attached hereto marked "Appendix A." 6 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 Respondent and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted in all departments.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) 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,
dismissed insofar as it alleges that the Respondent violated Section
8 (a) (1) of the Act by threatening its employees with the loss of
benefits if the Union were successful in obtaining representation of
the Respondent's employees.
a 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."
APPENDIX A
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 interrogate our employees concerning their at-
titude towards, their membership in, or activities on behalf of,
General Drivers and Dairy Employees Union, Local 563, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, in a
manner constituting interference, restraint, or coercion.
WE WILL NOT take a poll of our employees as to whether or not
they, or any of them, attended or did not attend a union meeting,
in a manner constituting interference, restraint, or coercion.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to reduce the number of working hours,
or to close down the shop, or to reorganize under a different name,
for the purpose of discouraging membership or activity in the
above-named Union or any other labor organization.
WE WILL NOT advise our employees to form their own "inside"
or "company" union, for the purpose of discouraging member-
ship or activity in the above-named Union or any other labor
organization.
WE WILL NOT threaten employees with loss of employment or
bodily harm, for the purpose of discouraging membership or
activity in the above-named or any other labor organization.
WE WILL NOT unilaterally put into effect a wage increase for
the purpose of discouraging membership or activity in, or under-
mining, the above-named Union or any other labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purposes 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 membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL NOT discourage membership in the above-named or
any other labor organization of our employees, by discriminating
in any manner with regard to their hire and tenure of employ-
ment, or any term or condition of employment.
WE WILL make whole Roy Glass for any loss of pay suffered by
him by reason of the discrimination practiced against him, in ac-
cordance with the recommendations of the Intermediate Report.
WE WILL bargain collectively, upon request, with General
Drivers and Dairy Employees Union, Local 563, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all
employees in the bargaining unit described below with respect to
rates of pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All of our employees at the Appleton store, excluding
countermen and outside salesmen, office clerical employees,
guards, professional employees, and supervisors as defined
in the National Labor Relations Act.
AUTOMOTIVE SUPPLY CO., INC. 1079
All our employees are free to become, remain, or refrain from becom-
ing members of the above-named Union or any other labor organiza-
tion except to the extent that this right maybe affected by an agreement
in conformity with Section 8 (a) (3) of the amended Act.
AUTOMOTIVE SUPPLY Co., INC.,
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
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 194/, 61 Stat. 136 (herein called the Act), was heard in Appleton, Wis-
'consin , on December 5, 6, and 7, 1956 , pursuant to notice to all the parties. The
complaint , issued on November 1, 1956 , by the General Counsel of the National
Labor Relations Board 1 and based on charges duly filed and served , alleged that the
Respondent , Automotive Supply Co., Inc .,2 had engaged in unfair labor practices
-proscribed by Section 8 (a) (1), (3 ), and (5 ) of the Act . The complaint alleged
that Respondent threatened , interrogated, and polled its employees concerning their
union activities , suggested that its employees form their own union instead of belong-
ing to the General Drivers and Dairy Employees Union, Local 563, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO,3 and accelerated the granting of a wage increase in order to discourage
union activity . The complaint alleged further that Respondent discriminatorily
discharged one Roy Glass, and refused to bargain collectively with the Union. In
its answer Respondent admitted the commerce allegations of the complaint , admitted
the complaint allegations as to what classifications of employees constituted an
appropriate unit, and denied the commission of any unfair labor practices.
All parties were represented at the hearing and were afforded opportunity to be
heard, to examine and cross-examine witnesses , to introduce relevant evidence, to
argue orally , and to file briefs . The General Counsel and Respondent each made
extensive oral arguments and the General Counsel filed a short brief. After the
hearing the General Counsel filed a motion to correct record . No objections to
this motion having been received , and the corrections therein conforming to my
understanding and remembrance of the testimony , the motion is granted. This
motion has been placed in the exhibit file as General Counsel's Exhibit No. 25.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Automotive Supply Co., Inc., a Wisconsin corporation operating eight stores in
Wisconsin and having its principal office and place of business in Appleton, Wis-
.consin , is engaged in the wholesale distribution of automotive parts and accessories.
During 1955 Respondent purchased and had transported to it in Appleton, from
outside of Wisconsin , goods or materials valued at more than $900,000. During the
same period Respondent sold merchandise valued at more than $1,500,000, of which
$1,500 was sold and shipped by Respondent from Appleton to points outside of
Wisconsin. The facts indicated, Respondent admitted, and I find that Respondent
is engaged in commerce within the meaning of the Act.
1 The General Counsel and the staff attorney appearing for him at the hearing are
'referred to herein as the General Counsel, and the National Labor Relations Board as
the Board.
2 Referred to herein as Respondent and the Company.
3 Referred to herein as the Union.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Dairy Employees Union , Local 563 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Thumbnail chronology (all dates are 1956 unless otherwise noted)
During March, and possibly for a little before, there was talk among some of
Respondent's employees of getting a union to represent them for collective-bargaining
purposes with Respondent.
March 22, Respondent posted a notice concerning a wage increase, and a meeting
of employees to be held in late April.
March 23, the Union sent a letter to many of Respondent's employees inviting
them to a meeting at the labor hall on Monday evening, March 26. One or more
recipients of the letter showed it to Respondent's president, Harlow W. Wickert.
March 26, some 13 of Respondent's employees attended the Union's meeting at
the labor hall and signed cards applying for membership in the Union and authorizing
it to be their representative for the purposes of collective bargaining.
March 27, the Union wrote Respondent that it represented a majority of its em-
ployees, and that it requested to meet with Respondent for the purpose of negotiating
a contract covering the employees in the Appleton store.
March 28, President Wickert received the union letter and made certain statements
'concerning and to employee Carl Pickering, considered below.
March 29, the Union filed. a petition in the Board's Chicago Regional Office in
Case 13-RC-4942.
March 29, several employees suggested to Wickert that he hold that afternoon
the employee meeting announced for late April. A meeting was held that afternoon,
at which Wickert engaged in certain statements and actions.
April 2, the Union filed the original charge herein.
The first or second week of April Wickert called in a number of employees and
made inquiries and statements concerning the Union.
April 16, Respondent unilaterally put into effect a general wage increase of 5
cents an hour.
B. Events leading up to the unfair labor practices
The initiative for organizing the employees of the Appleton store came from the
employees rather than the Union, and the moving reason behind the initiative was
primarily wages. Employee Charles Fritsche testified that for a month or two
before the March 26 meeting there had been talk among the employees about the
possibility of having a union represent them . James VanDenElsen stated that,
"this didn 't all happen overnight ," and that "primarily . it was money that was
at an issue . . . In their conversation with Wickert during early April , according
to the uncontradicted and credited testimony of Harold Staedt and Richard Pekel,
the former told Wickert as the reason why the men wanted a union , that the men
"downstairs " in the "basement" were all "harping about the wages," and that "there
had been an awful lot of discussion downstairs all the time ." Respondent occupies
a two-story building , in the basement of which are the shipping and receiving rooms
and the counter where merchandise is dealt out to the public at wholesale. Also
the employees wanted some equalization of wages.
The Union 's first contact with the employees was a short time before March 23,
1956 , when three of the employees , Harold Staedt, Richard Pekel , and Robert
Kaufman talked with the Union 's secretary -treasurer, Robert Schlieve, at the labor
hall.
On March 22 Respondent posted on its bulletin boards , where notices to em-
ployees were customarily posted, the following notice:
AUTOMOTIVE SUPPLY CO., INC.
Wholesale
300 N. Appleton St., Phone 4-2651
To Our Employees: MARCH 22, 1956.
As it has been customary to have a general employees meeting as early as
possible in the new year,4 we are sorry this has not been done as of this time.
The evidence established that the Company usually held at least one meeting each
year, but not necessarily in the early part of the year.
AUTOMOTIVE SUPPLY CO., INC. 1081
A general meeting will be held sometime in the last week of April, and at
that time we will discuss and plan for the benefits of all concerned. A salary
increase is contemplated at present and the increase in pay will be figured as of
February 1st at least, [sic] if not from January 1st, 1956.
We feel sure of your consideration and you can expect our cooperation as
in the past.
AUTOMOTIVE SUPPLY COMPANY, INC.
The following day, March 23, 1956, the Union sent the following general letter
to many, but not all, of Respondent's employees:
MARCH 23, 1956.
DEAR SIR: You yesterday received a letter from your employer with an
apology for not having held the general employee meeting as yet, and even
further stating that an increase in wages is being "contemplated", even retro-
active pay. You note of course that this increase and back pay is just being
`contemplated'. That in plain english is "thought about" We all think about
many things. In fact, in many cases of employees with low earnings, it's just
plain wishing.
Your employer is following a pattern. All employers react one of two ways
when they learn of their employees considering joining a labor union. Your
employer either becomes real sweet, like this. . `Here you are . . . How
have you been . Is everything all right . . . Is there something I can help
you with . . . Oh! I am going to give you a raise . Aren't you getting good
wages now . We like you . I promise . I promise . I promise.
HE DOES THIS BECAUSE HE KNOWS THAT UNDER A UNION CON-
TRACT HIS PROMISES WILL BE COMMITTED TO WRITING AND IT
WILL COST HIM MORE, AND HE THINKS YOU WILL MAYBE FORGET
ABOUT THE TEAMSTERS UNION. Or else if this treatment fails, he
becomes real mean. .
He trys to find out who started the ball rolling toward the Union . . . he trys
to have a straw vote to find out who is for the Union . He tells you he
will close the plant if the Union gets in . also tells you that he is watching
the meeting hall and anyone seen going in may lose his job. HE WILL TRY
TO SCARE YOU.
Don't be afraid . don't very definitely, don't be misled by any promises.
YOUR RIGHTS TO ORGANIZE ARE PROTECTED BY LAW. ONCE YOU
HAVE MADE YOUR DECISION, STICK WITH IT. All of you have
seen the function of the employees meeting with management . . . he tells you
all that they are going to do for you . . . if you aren't satisfied .. . well .. .
you can always quit. He always has the last word.
Our wages and conditions in organized places are no secret . . . many of
you know these employees . we have never put anyone out of business.
We only ask that the Employees be guaranteed certain fair and equitable
wages and conditions. LEARN FOR YOURSELF . . . ATTEND THE
MEETING
MONDAY, MARCH 26,1956,7:30 P. M.
LABOR HALL, 527 APPLETON ST., APPLETON
Sincerely, AGAIN, WE URGE YOU TO
Robert Schlieve (signature) ATTEND. DON'T LET YOU
Robert Schlieve, B. A. AND YOUR FELLOW WORKER
General Drivers Local #563 DOWN.
On the evening of March 26, some 13 of Respondent's employees went to the labor
hall and participated in the meeting called by the Union. This was the only meeting
held by the Union for employees of Respondent, and the only meeting at the labor
hall attended by employees of Respondent. At the meeting, according to the uncon-
tradicted and credited testimony of Robert Schlieve, there was a general discussion
of wages and working conditions; Schlieve explained "that we would have to have
a showing of 30 percent to petition the National Labor Relations Board to come in
and hold a representation election, which would give us the certification to bargain
as their representative." At the end of the meeting, which lasted about an hour and
a quarter, the employees present voted (without a dissent insofar as appears) to ask
the Union to represent them, and all of them signed their signatures at the bottom
of so-called "application for membership" cards, which cards recited that the under-
signed hereby applied for membership in the Union and voluntarily chose and
designated it as the undersigned's representative for purposes of collective bargaining.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some of the employees filled out other blanks on the cards than their signatures-
such as the "Date of application," the "Occupation," the "Home Address," the
"Employer and Place Employed," etc... . Many of the blanks not written in by
the employees were filled out by Schlieve or the president of the local Union, who
was also present, using information supplied to them by the employees.
One of the employees who signed a union card that evening at the labor hall,
Charles Fritsche, testified that he had had "at least five or six beers" that evening
before going to the meeting, and that "we were drinking before the meeting started."
The witness stated that he would not say that they had been drinking to excess, and
that "I wouldn't know how much" the others had had. Nevertheless, he stated that
"I remember I signed the card. I signed the application with the idea it was
for an application-we were to vote on whether we want to be in the union or not."
Twelve of the thirteen employees who attended the union meeting testified herein.
but none other than Fritsche made any mention of the men having been drinking
before the meeting. At least two other employees testified that they signed their
cards knowing the purpose of them. Harold Albert stated that he signed the card
knowing it was for representation by the Union. Robert Kaufman testified he
signed his card knowing the purpose of it and knowing that it was an application.
There was no drinking at the union meeting itself, and Robert Schlieve testified in
answer to questions on cross-examination by Respondent's counsel that in his opinion
the men were not a bit "high" during the meeting. In any case, at the meeting of
employees on March 29, considered in detail below, no management representative
and no employee uttered any suggestion that the employees had been under the
influence of liquor at the union meeting a few nights before; and Respondent did not
contend at the hearing that the union cards were invalid because signed by men
under the influence of liquor. Under all the circumstances of the case I conclude
that the 13 employees who signed union cards on March 26 did so knowing what
they were doing and while not in any degree under the influence of liquor.
The following day, March 27, the Union mailed the following letter to President
Wickert, care of Automotive Supply Company.
DEAR SIR: This is to inform you that we now represent a majority of your
employees for the purposes of collective bargaining.
A representative of this Union will be pleased to meet with you for the pur-
pose of negotiating a labor agreement covering the wages and working condi-
tions of said employees in your Appleton store.
Sincerely,
GENERAL DRIVERS UNION #563
Robert Schlieve (signature)
Robert Schlieve
Business Representative
RS: h
Registered Mail
Return Receipt Requested
Respondent received this letter the following day, March 28, and never answered
it in any way. Although the Union's address is 527 N. Appleton Street and Respond-
ent's address is 300 N. Appleton Street-being about two blocks apart-neither
Wickert nor any other officer or representative of Respondent ever contacted the
Union either orally or in writing with reference to the Union's claim to represent a
"majority of your employees," or its request to meet with Respondent to negotiate
an agreement covering the "employees in your Appleton store." Instead, on March
28 and 29, and also later, Wickert, and another alleged supervisor of Respondent,
Marvin Schroeder, engaged in actions and statements alleged by the General Counsel
to be unfair labor practices.
C. Whether Marvin Schroeder and Max Kroiss were supervisors
In the record shipping and receiving were sometimes referred to as separate de-
partments, and sometimes as the shipping and receiving department. In fact the
two were separated by a partition, and in fact if either or both departments had a
supervisor, that supervisor was Marvin Schroeder. The record suggests no other
person as the supervisor of either department.
When Carl Pickering went to work in receiving in 1953, President Wickert told
him he would take his orders from Schroeder. When Roy Glass went to work in
shipping in early March 1956, Wickert told Glass that Schroeder would be the man
he was working "with" or "for"-Glass did not remember which word was used.
AUTOMOTIVE SUPPLY CO., INC. 1083
In March 1956, about 7 or 8 employees worked in shipping, including those who
drove the Company's trucks, and about 2 worked in receiving. Schroeder told these
men what to do while they were on the job. He determined the order in which the
orders should be filled and told the men which order or orders they should handle.
He directed which employees should drive which trips, although on local runs he
would usually ask who wanted to make the run. He directed what time they
should leave on their trips. He directed who should wash which truck.
When the employees in shipping and receiving needed some assistance they spoke
their need to Schroeder and he assigned someone to help them. When they wanted
to take off for a short time, they spoke to Schroeder and he gave them permission
to take off. When they wanted off for a long time, they spoke to President Wickert.
If the men made any mistakes, Schroeder would talk to them about the mistakes.
Once Jerome Murphy had an accident, presumably with a company truck, following
which he had an argument with Schroeder about it. Schroeder told Murphy that
"if I did not be quiet, he would fire me." Pickering, who worked under Schroeder
for nearly 3 years, testified on cross-examination that anytime anyone was fired or
laid off "Mr. Schroeder was consulted."
Some days President Wickert would be in shipping and receiving once, some days
several times. He would talk to the men and ask them how things were going, but,
according to Pickering, he never gave them any specific orders with reference to
their day-to-day work. Unless Schroeder was their supervisor, then, they worked
without supervision.
By a considerable margin, Schroeder received the highest wages per hour of any
employee in shipping and receiving. Schroeder received $1.86 per hour. The other
wages ranged from $1.50 down to $1.10 per hour.
On the above evidence I find and hold that Marvin Schroeder had authority, in
the interest of the Company, responsibly to direct the employees in shipping and
receiving, and that the exercise of such authority required the use of independent
judgment. It follows that Schroeder was and is a supervisor within the meaning of
Section 2 (11) of the Act.
Respondent's automotive machine shop performed work for others, including
garages and filling stations, who did not have the equipment to do the specific work.
Max Kroiss was the shop's principal contact man with the public, and he directed
the work of the some six mechanics. Kroiss told the mechanics what jobs to work
on, and on difficult jobs, precisely how to go about making the required repairs.
Some jobs he worked on himself.
When President Wickert introduced Richard Pekel to Kroiss in about May 1950,
Wickert told Pekel that Kroiss was the foreman and that he would tell Pekel what
to do. There was no showing of any change in Kroiss' authority since that time.
Asked on cross-examination who could discipline employees in the shop, Harold
Staedt testified, "Well, Max could and can very good." Asked, "You mean because
he has got a better tongue than the rest . . ?" the witness replied, "It is possible."
As to Kroiss' authority to lay off someone, Staedt said, ". . if Max complained
about anybody that was not doing their work or something like that, or was doing
it good and needed a reward, Mr. Wickert would do that after Max's consulting
with him, perhaps yes." Asked whether, if something was not satisfactory, he would
also take it up with Mr. Wickert or one of the Dietz brothers, Staedt replied, "Well,
we don't always run right to the office for everything that comes along . If we are
having trouble, we go over and talk to Max first. We don't like to go over his head
if we don't have to."
Kroiss took his orders from Wickert, who customarily visited the shop daily-
sometimes more than once a day. Kroiss received the highest wages in the shop,
$2.24 per hour. The other wages ranged from $1.99 down to $1.30 per hour.
On the above evidence I find and hold that Max Kroiss had authority, in the in-
terest of the Company, responsibly to direct the employees in the shop, and that
the exercise of such authority required the use of independent judgment. It follows
that Kroiss was and is a supervisor within the meaning of Section 2 (11) of the Act.
D. Interference, restraint, and coercion, and the discharge of Glass
1. Prior to the meeting of March 29
On Wednesday, March 28, according to the uncontradicted and credited testimony
of Carl Pickering, a very honest and credible witness, Wickert came up to Pickering
as the latter was working,
and he approached me in this manner: he asked me if I considered myself a
good Christian; and I told him I did. Then he made some mention of shooting
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holes in my head during Holy Week, which I did not understand. . . Then,
he asked me if I was going to a meeting Monday night. Well, I did not know
this meeting he was talking about at the time, but I had been to a meeting at
church, also, earlier in the evening. So I answered him yes, and then finally
he told me that he had received a letter and it had my name on it. I did not
know right at that time what he meant by a letter with my name on it.. .
Well, then, Marv Schroeder walked past, and he (Wickert) pointed at me and
said, "That is one of them." .. .
A short time later, during the conversation, an employee, Kenneth Springer, went
by and Wickert, again pointing and looking at Pickering, said, "That is one of them."
A few moments later, during the course of his work the witness came nearby
Wickert in the shipping department. Marvin Schroeder and Jerome Kuschel, an
employee who once served in the United States Marine Corps, were also present.
According to Pickering, Wickert said to Kuschel in the presence of Schroeder and
Pickering,
Jerry, you want to get your own [sic] Marine fighting spirit up.... You
want to hang these guys by the neck that want to endorse a union.... You
don't want to let them bring the union in here."
Then Marv Schroeder related an episode that had happened some years prior
of how he ushered somebody that was trying to organize a union out the back
door; and Mr. Wickert also stated if he had been a few years younger, he would
also get in on the act of hanging union organizers by the neck. . . . He also
stated that he would close the place down; he would reorganize under a dif-
ferent name and hire different guys.
On cross-examination Pickering testified that Wickert said,
I'll close the damn place down. . . If necessary, I will reorganize. .
I got plenty of money. . . He just said if the union organizes, that he would
close down. . He said that he would close down or reorganize under a dif-
ferent name, if necessary.
After having his memory refreshed on direct examination, Jerome Kuschel, a re-
luctant witness, and an incredible one compared to Pickering, testified in substance
that on that occasion Wickert said, "Come on, Jerry, get your old Marine spirit up.
If worse came to worse, we are not too old-I am not too old to take them on one
by one."
Neither Wickert, who sat at the counsel table with his counsel during the entire
hearing, nor Schroeder, testified in this proceeding, nor was any reason offered as
to why they were not called as witnesses.
As Pickering was a credible witness, and in the light of the entire record of the
case as a whole, I credit Pickering's testimony and find that on March 28, 1956,
President Wickert, in two conversations closely related in point of time, (1) told
employee Carl Pickering that he had received a letter and that it had Pickering's
name on it; (2) remarked to Marvin Schroeder and Kenneth Springer, pointing at
Pickering, that "that is one of them"; (3) stated to Jerome Kuschel, in the presence
of employee Pickering, that he ought to get his Marine fighting spirit up, "You want
to hang these guys by the neck that want to endorse a union. . . . You don't want
to let them bring the union in here"; that if he were a few years younger he would
get in on the act of hanging union organizers by the neck; that, in substance, if the
Union organized the plant, he would close it down or reorganize under a different
name and hire different employees, if he found that to be necessary. I find further
that during one of these conversations, Marvin Schroeder, in the presence of two
employees-Pickering and Kuschel-related how, some years before, he had ushered
someone who was trying to organize a union out the back door.
On Thursday morning, March 29, at the initiative of a number of office employees
and others who discussed the matter with Wickert, it was decided to have a meeting
of all employees in the Company's upstairs sales office. Gordon Kraus, one of the
office employees, suggested to Wickert that he advance the meeting announced for
late April to that afternoon. Word of the meeting was passed verbally among the
employees, and all, or all but one, of the employees attended, including the office
employees but excluding the outside salesmen. It began about 4 o'clock. No
employees were docked for the time of the meeting. Normal quitting time was 5:30
o'clock.
2. The March 29 meeting
In his complaint the General Counsel alleged in substance that at this meeting
President Wickert interrogated employees concerning their membership in, and
AUTOMOTIVE SUPPLY CO., INC. 1085
activity on behalf of, the Union; polled employees concerning their membership in,
and activity on behalf of, the Union; threatened to close his business if the Union
were successful in obtaining representation of the employees; threatened to reduce
working hours if the Union were successful; promised that in the event of a reduc-
tion of working hours, employees who did not join the Union would be assigned
the available work and would receive wage increases; suggested that the employees
form their own union instead of belonging to the Union; and that Wickert discrimina-
torily discharged employee Roy Glass because he had engaged in concerted activities
and joined and assisted the Union.
The testimony concerning this meeting absorbs a large number of the 589 pages
in the record. In all, some 17 witnesses were asked questions about some portions
or all of it. All of the witnesses did their best to relate what they remembered of
the meeting. Some remembered some portions of it, and others other portions.
The following is a composite of all the testimony on the meeting, including a resolu-
tion of the significant points of divergence between the General Counsel's view of the
facts and Respondent's view of the facts-all treated within the framework of the
alleged unfair labor practices asserted in the-complaint.
Wickert opened the meeting and presided over it for awhile. He was accom-
panied by Louis Dietz, vice president of Respondent, and Harry Dietz, secretary-
treasurer. Then Wickert and the two Dietz brothers left, and the employees had a
disorderly discussion among themselves, with Marvin Schroeder present and presiding.
Then Wickert and the Dietz brothers returned and the meeting continued a while
longer with Wickert presiding.
At the beginning Wickert informed the employees that he had received a letter
from the Union claiming to represent a majority of them. Then, according to wit-
ness Gordon Kraus, he asked if any employees present represented the Union. When
there was no answer he asked who was there from the Union who could inform
him about this claim of a majority. At the beginning, according to Respondent's
witness, VanDenElsen, Wickert asked how many had joined the Union. Several
witnesses called by the General Counsel (Roy Glass, Harold Staedt, Carl Pickering)
and at least one called by Respondent (Alvin Krabbe) testified that Wickert asked
who had attended the union meeting. Then he asked who had not attended it.
Then he asked all who had attended the union meeting to stand up. When none
stood up he asked all who had not attended the union meeting to stand up. At
this point all the employees stood except three, including a number who had in fact
attended the union meeting.5 Observing that somebody must be lying, Wickert
then addressed questions and remarks to the three employees whose failure to rise
indicated that they had attended the union meeting-to Roy Glass, Carl Pickering,
and Robert Kaufman. He also addressed himself directly to Richard Pekel.
President Wickert asked employee Glass several times if he had been at the union
meeting, who were the fellows who had been at the meeting, who were the 51 percent
of them. Glass parried his questions and refused to divulge any information con-
cerning the Union. According to Gordon Kraus, Wickert asked Glass a couple of
times "if he was with the Union and he said he wouldn't answer. . . . Well then,
another time, Wick (Wickert) said, `You must be with the Union according to the
different things that you say.' " Glass observed that he did not want to squeal on
his buddies, and stated, in substance, that if Wickert wanted to find out so much he
should go over to the union hall and find out himself.
Then Wickert asked Carl Pickering if he had been at the union meeting and what
his feelings were towards the Union. Pickering did not answer. Then Wickert
told all the assembled employees, in substance, that Pickering did not work Saturday
mornings, that the demands of the business required that all employees work Satur-
day mornings unless they have specific permission to be off. Then he asked Pick-
ering how the latter would like to work part time, and, according to the uncon-
tradicted testimony of Pickering, observed that anyone who joined the Union might
be subject to working fewer hours. Four other witnesses called by the General
Counsel testified that sometime during the meeting Wickert threatened to reduce the
5 John Cotton's version was that this poll included not only those who had or had not
attended the meeting, but also those who had or did not have any affiliation with the
Union. The version of Max Kroiss was that the poll covered those "who was for it" and
those "who didn't." The credited version is that of all the other witnesses who testified
on the subject-that the polling related to attendance at the union meeting. To this
effect was the testimony of Harold Staedt, Richard Pekel, Robert Kaufman, Kenneth
Springer , James VanDenElsen.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of working hours. According to Roy Glass, Wickert said, "If we do get a
union in here ... the fellows that have been loyal will be the ones that work all
the time; and the guys that are not will just be working a couple of days a week,
and that will be it." On cross-examination, Harold Staedt testified that Wickert
said that if business was bad in the future, all employees would have to take a reduc-
tion in hours. Richard Pekel's version was that Wickert said that,
if the Union would get in and they couldn't see eye to eye, they couldn't operate
under those conditions; that they would either have to cut the hours down or
switch around so one man-some men would come in on Monday and the next
would come in on Tuesday, and then split the work week up that way. If it
didn't go right that way, he would have to probably close the shop or turn it
over to Max (Kroiss) and let him run it and hire his own help . . . the ones
that would be the first to be laid off would be the younger employees and that
the ones to get the work would be the older and loyal employees.
Jerome Murphy's version was that Wickert said that if the Union came in , the Com-
pany would probably work only 40 hours a week and that the lowest employees in
seniority would probably have to work just part time. Wickert did not connect
this with any slacking off in business, but with the coming in of the Union. At
this time the employees were normally working about 50 hours per week, with
time-and-a-half for all over 40 hours.
Carl Pickering testified that Wickert also asked Robert Kaufman if he had been at
the union meeting and if he had any affiliation with the Union. To the latter
question Kaufman replied that he had had an affiliation,
but he had dropped everything as of that day-he had dropped any further
notion of joining the Union due to the fact that he . . . could not live on wages
derived from shorter working hours.
Although in testifying Kaufman did not mention this interrogation of himself by
Wickert, I credit Pickering's testimony in view of the fact that Pickering was a
more impressive witness than Kaufman, and as Pickering's version is consistent with
the unquestioned fact that Wickert questioned the other two who indicated they had
attended the union meeting by remaining seated.
According to the uncontradicted testimony of Carl Pickering and Richard Pekel,
at the meeting Wickert also asked Pekel if he had been at the union meeting.
The testimony indicated that during the meeting Wickert reviewed the history
of Respondent's relations with its employees and gave it as his opinion that the
Company had done well by the employees. In the words of Gordon Kraus, called
as a witness by Respondent:
Well, he talked about the whole company, from the time it started up to the
present time. He was relating all the facts of how the company grew, and what
they did for the employees, regardless of how it was depression, or if they were
sick, or vacations, and things like such.
Wickert mentioned that the Company had given sick leave to a number of named
individuals even though, in substance , there was no official arrangement for the
granting of sick leave.
At least three employees in addition to Richard Pekel (whose testimony has been
set forth above) testified that during the meeting Wickert threatened to close down
the plant. Harold Staedt stated that,
Mr. Wickert said that if we did not [sic] get a union in there that would come
in and try to tell him how he had to run his business, or something like that,
that he just couldn't operate that way; because, apparently, there isn't that
much profit in the business. He would have to run things differently. He,
perhaps, would have to turn the shop over to Max Kroiss and let him hire some
of us, or all of us, whichever he deemed was needed or necessary to keep it in
operation. Perhaps he would have to rent the shop, or something like that, but
he would have to [sic] run it himself. Of course, he didn't say definitely. He
said he might have to do it. . Well, he said that in case anything like that
should happen, like turning the shop over to Max or to anyone else, that we
would probably be more or less taking our chances on employment; because
the fellows who had been faithful and done their work the best would probably
get the work that was available.
AUTOMOTIVE SUPPLY CO., INC. 1087
On cross-examination asked if Wickert threatened to close the place up, Staedt
replied,
Well, he said if the Union came in and tried to tell him how to operate the
business and how much money we would have to earn, probably-and things
like that-if it got too tough, he would probably have to make some changes
like closing down the shop or leaving someone else operate it. And that would,
maybe, [sic] Max Kroiss. He [sic] would probably have to work for him.
Staedt denied that Wickert prefaced his statement about closing down the shop with
any condition like, "If business gets bad."
Jerome Murphy, who testified that Wickert said if a union came in he might
have to close down, stated that he did not recall any precondition to the closing
down like, "if business slacked off."
The version of Roy Glass was that Wickert flatly said that if the Union got in
he would close the place down and the loyal men would get preference and the others
would suffer as a result.
A number of employees testified that during the meeting Wickert suggested that
the employees form their own union. Roy Glass testified that Wickert suggested a
"company union"; that he said,
We don't need any `goddamn' outsiders. . . We don't know that goddamn
outsider. We will form our own little union. . . . We don't need those out-
side unions. . Ten years ago . . . I threw out one-out the back door .. .
I don't see why they don't come and try to organize like a group insurance,
instead of going behind my back and trying to organize the fellows.
Glass added that as Wickert and the Dietz brothers were leaving the meeting Wickert
said,
This meeting is getting no place. . . . Maybe you fellows can talk together and
you can form your own union.... You fellows discuss it-discuss among
yourselves.
Harold Staedt testified that:
Mr. Wickert wondered why we would have to have that or why we did not-
if we did think we needed a union, why we did not try to have a company union,
or something on that order, instead of under a national outfit.
Later, Staedt stated:
Well, there was a lot of discussion, pro and con, back and forth there from
everybody; but it seems that around that time Mr. Wickert turned the meeting
over to Marvin Schroeder and said we should kind of discuss it between our-
selves and see if we couldn't come to some conclusion between ourselves-
whether we-if we wanted to have a company union or any union, or if we
could decide with the entire group, or something on that order. So, he and
Mr. Dietz went into their office and we had quite a conversation-all of them.
The testimony of Carl Pickering and Jerome Murphy was corroborative that Wickert
suggested the men form their own inside union. James VanDenElsen testified in
substance that Wickert's suggestion that they form their own union came in part
from his previous suggestion to some of the men (prior to their going to the union
office) that they do just that. Louis Dietz testified that upon the return to the meeting
after an absence of Wickert and the Dietz brothers, President Wickert asked
If they had reached any kind of agreement . . . had taken a vote or anything
that would determine of anybody being a spokesman or who would be repre-
senting them as a bargaining agent. . . . There was no answer from anybody.
During the interim between Wickert's leaving and his reentering the meeting, the
employees, in the presence of Marvin Schroeder and Max Kroiss, discussed the situa-
tion. Those who had not been invited to the union meeting wanted to know what
groups of employees were to be included in the Union. Harold Staedt explained that
for the present the included groups were to be the automotive shop, the shipping and
receiving departments, the glass and paint departments, and the special mechanic,
Jake Schuh. Alvin Krabbe and John Cotton testified, in substance, that Staedt said
that just now only the above groups would be in the Union, but later on all of the
employees would be included. Harold Staedt testified that during the interim
Schroeder suggested they take a vote as to whether a majority of the employees were
in favor of a union. Max Kroiss testified that during the interim "a bunch of us got
together and we were trying to guess who was with the Union and who wasn't... .
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharge of Roy Glass
During the meeting Wickert discharged Roy Glass-to discourage membership
and activity in the Union according to the General Counsel, for other reasons accord-
ing to Respondent. The latter's answer asserted in two places that:
Roy Glass was employed on a probationary basis, and . his work did
not prove satisfactory and . .. he was discharged because of that reason . . .
and also that:
Roy Glass was employed on a probationary basis at the time he was dis-
charged . he was discharged because his work was not satisfactory, his atti-
tude towards his fellow employees was not cooperative and . he was dis-
courteous, insulting and used obscene language in the presence of employees and
officers of the Respondent.
Four of the General Counsel's witnesses, Glass, Staedt, Pickering, and Pekel, testi-
fied that Wickert discharged Glass immediately at the conclusion of Wickert's un-
successful effort to extract information from him prior to the interim, and without
any reference to Glass being on probation or to his attitude or use of obscene
language. The Respondent's witnesses testified, in substance, that prior to the interim,
in telling Wickert he could go over to the union hall himself Glass used the word
"damn" in some form-"if you want to find out so damn much, why don't you go
over to the Union"; "go your own damn self over to the union hall and find out"; "if
you are so damn nosey go out and find out for yourself"; "if you want to know so
damn much go down there and find out." Then upon his return after the interim,
according to Respondent's witnesses, Wickert addressed Glass and said in substance
that Glass being a new employee (Glass had worked for Respondent only about 3
weeks) and being in a probationary status and having the attitude he had, Respond-
ent had no further need for his services. No witness attributed any obscene language
to Glass on this occasion. Many of the witnesses testified that just before discharg-
ing him Wickert asked Marvin Schroeder if he could get along without Glass and the
latter replied that he could.
As has been seen above, Glass attributed the phrase, "goddamn outsiders" to
Wickert during the meeting. In addition Robert Kaufman stated that during the
meeting Wickert said, "God damn it, fellows, let's get something done here."
The record contains two versions of a conversation on about the morning of
March 29, between Roy Glass and Kenneth Springer, during which Marvin Schroeder
probably overheard the utterance of a vulgar expression uttered by one or both of
the participants. The subject of the conversation was the probable amount of raise
Wickert might be apt to grant the employees. According to Glass, it was Springer
who first uttered a vulgar phrase. According to Springer it was only Glass who
uttered a vulgar phrase, and it was a different phrase. In any case Springer testified
that the use of the expression he attributed to Glass did not offend him, and that he
did not mention it to Wickert. The record does not establish that Schroeder ever
mentioned the incident to Wickert. Nor does the record reflect any consideration
by management of the possibility of discharging Springer for his use of the vulgar
expression attributed to him.
Shortly after the conversation considered in the paragraph just above, according
to the uncontradicted and credited testimony of Roy Glass, Schroeder called him
to the side and said:
Now, look, Roy, . You don't realize all the good things about this com-
pany. . . . Mr. Wickert lets the boys use the trucks . . . to deliver their furni-
ture or to move; . . . He gives them sick leave when they haven't got it; so
the best thing you can do is go back to work and forget about the Union.
On about March 14, 1956, after Glass had been working for Respondent about a
week, he asked Marvin Schroeder to tell him just how he stood. Schroeder replied,
"Well, if all the fellows worked as fast as you, we would have a good organization."
About a week later, when word came that President Wickert wanted to have a talk
with Glass soon, Schroeder said to Glass, "Roy, you haven't nothing to worry about
your job; you are a gcod employee." A few days later Wickert had a talk with
Glass in the former's office. Wickert asked Glass about a rumor that Glass was
going to leave the company and find a better job. Glass replied in substance that if
he had an opportunity to get a better job he would be foolish not to take it. Wickert
asked how he felt about the Respondent and Glass replied, "Well, if the Company
plays ball with me I will stay with the Company." Wickert replied, "All right, fine."
AUTOMOTIVE SUPPLY CO., INC. 1089
On Saturday, March 24, 1956, about 5 workdays before Glass' discharge, Marvin
Schroeder told Carl Pickering that "Roy was doing a very good job for the short
time that he had been there."
Shortly after the meeting of March 29, Pickering was talking with Schroeder about
the discharge of Glass. Schroeder told Pickering that he thought the discharge was
"an injustice," and that "Roy had been doing a good job."
4. Events after the meeting
One day during the first 2 weeks in April, Wickert called the employees, or at least
some of them, into his office in groups. Harold Staedt and Richard Pekel were
asked to go in and they went in together and had a conversation with Wickert.
According to the former, Wickert
still wondered why we wanted to have a union and what we wanted to gain
about [sic] it, and things like that; and I said that we in the shop did not need
the union so much, because we were being paid fairly well, but there had
been an awful lot of discussion downstairs all the time. You would meet the
fellows in the basement or in the aisles downstairs, and all were harping about
the wages and that. So I said, "We just thought it would be maybe better for
all of of them-for the entire place, not just for one group.... . And I said
at that time, I guess, something about equality in wages between some of the
fellows. It seems one should be brought closer together. One was Richard
Pekel, I thought, because he is doing a type of work that was done by older
men for a number of jobs and doing a good job; and I thought Dick should be
brought closer to some of the rest of us. Mr. Wickert said at that time that
he had considered that too, and he thought maybe he would do something about
that in the near future. . . . He told us we could go back to work, and shook
hands and asked us if we were friends. We said we were and hoped to be,
and we went back to our jobs.
During this conversation Wickert offered to show Staedt and Pekel a financial state-
ment of the Company. Staedt replied that he would not understand it anyway, and
that if that was the financial statement, Staedt would have to accept it. There was a
discussion of the Company's "condition."
Effective April 16, Respondent gave employees a general wage increase of 5 cents
an hour. The General Counsel contends that this was the wage increase referred
to in Respondent's posted announcement of March 22, and that the granting of this
wage increase was accelerated in order to discourage union activity among the
employees.
5. Conclusions on interference, restraint, and coercion, and the discharge of Ghass
It has been found above that on March 28, 1956, President Wickert stated to
Jerome Kuschel, in the presence of employee Pickering, that he ought to get his old
Marine fighting spirit up, "You want to hang these guys by the neck that want to
endorse a union . . ."; that, in substance, if the Union organized the plant, he would
close it down or reorganize under a different name and hire different employees, if
he found that to be necessary. It has been found above further, that on the same
occasion, Supervisor Marvin Schroeder related, in the presence of two employees,
how he had, some years before, ushered someone who was trying to organize a
union out the back door. In the light of the events which transpired on the following
and subsequent days, and in the light of the record as a whole, it is evident, and I
find, that these statements by Wickert and Schroeder were motivated by a rejection
of the principle of collective bargaining, and by a desire to discourage union mem-
bership or other activities protected by the Act-and were reasonably calculated to
effectuate that result. On the record as a whole I find that these statements by
Wickert and Schroeder interfered with, restrained, and coerced employees in the
rights guaranteed by Section 7 of the Act, Respondent thereby violating Section 8
(a) (1) of the Act.
At the meeting of all employees the following day, March 29, 1956, held on com-
pany time, President Wickert asked his employees as a group how many had joined
the Union, who had attended the union meeting, who had not attended it. Failing
to get any information by these questions, he had the employees stand to indicate
whether or not they had attended, and by this method discovered three employees
who, in effect, admitted that they had attended. Then he directed questions at each
of these three individuals in the presence of all the other employees-such questions
as whether you attended the union meeting, who were those who were there, are
476321--58--vol. 119-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you with the Union, what are your feelings towards the Union, have you any affiliation
with the Union.
During this meeting Wickert also stated in substance, that if the Union "came in"
it would try to tell him how to run his business, that he could not operate that way,
that if he and the Union did not agree with each other completely, he would have
to run things differently: he would have to reduce the number of working hours, or
possibly, close the automotive shop or turn it over to Max Kroiss and let him
hire his own help-in which case the older and loyal employees would probably get
the work and the newer employees would have to work part time or be laid off.
During this meeting President Wickert suggested that the employees form their own
"inside" union rather than join the "outside" Union, that' they form their own
"company" union rather than be under a "national outfit," and when he left the
meeting with the Dietz brothers for a few moments he urged them to discuss among
themselves whether they wanted to have any union represent them and whether they
wanted to have a company union among all the employees. Upon his return to the
meeting, Wickert asked if the employees had agreed among themselves as to who
would be their bargaining agent.
In substance the Respondent contended that at this meeting President Wickert
was simply trying to ascertain whether in fact the Union represented a majority of
the employees as asserted in the Union's letter to him which he had received the day
before; he was simply testing the Union's claim of a majority. But it is clear
from the entire record considered as a whole that he was attempting to do a great
deal more than that. He could have initiated conversations with the Union, located
just 2 or 3 blocks away, designed to discover whether in fact the Union represented a
majority as a precondition for bargaining. Rather he was attempting to influence his
employees in their choice of a bargaining agent by threats and by interrogations. On
the entire record it is held that the following actions at the March 29 meeting were
motivated by a desire to discourage union membership or other activities by his
employees, thereby undermining the Union, and by a rejection of the principle of
collective bargaining: Wickert's questioning of employees as to how many had
joined the Union, who had attended the union meeting, who had not attended it;
his asking those who had attended the union meeting and who had not attended
the union meeting, to stand; his questioning the three individuals who admitted attend-
ing the meeting as to who was there, whether they were "with" the Union, what their
feelings were towards the Union, and whether they had any affiliation with the
Union; his threatening in effect, that if he and the Union did not see "eye-to-eye" he
would reduce the number of working hours (the employees then worked about 50
hours per week with time-and-a-half for all over 40 hours) or, possibly, close down
the shop or turn it over to Max Kroiss and let him hire his own employees; and his
suggesting that the employees form their own "inside" union. By these actions of its
president, Respondent interfered with, restrained, and coerced employees in the
rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) of
the Act.
During this meeting, in the presence of other employees, Wickert summarily dis-
charged Roy Glass, a relatively new employee who was considered by his immediate
supervisor, Marvin Schroeder, to be doing a good job for a new employee, and
who had had some indication a few days before. from President Wickert, himself,
that the latter was interested in keeping him as an employee. As has been seen above,
Glass, Staedt, Pickering, and Pekel each testified that Glass was discharged im-
mediately at the conclusion of Wickert's unsuccessful effort to get information from
him concerning the union meeting. These four employees impressed me as honest
and credible witnesses, and their memories as to what transpired at the March 29
meeting were more retentive than the memories of the Respondent's witnesses.
Further, Glass stood right up to the company president and took the solid position
that the information Wickert was seeking from him could be gotten at the union
hall and that Glass did not want to "squeal" on his fellow workers; and he openly
refused to give Wickert the requested information. Wickert's probable reaction to
this complete rebuff by a new employee in front of all the other employees must have
been frustration and anger. In view of these considerations I find, as contended by
the General Counsel, that Wickert discharged Glass immediately after interrogating
him and prior to the interim in the meeting, and without any reference to Glass' being
on probation or to his attitude or use of improper language. Although in answering
Wickert, Glass may have used the word, "damn," I find on the entire record that
this was not the cause for his discharge. The cause for the discharge was the refusal
by Glass, in the presence of the other employees, to divulge information concerning
the union membership and activities of his fellow workers.
AUTOMOTIVE SUPPLY CO., INC. 1091
As the record does not establish that Schroeder informed Wickert of the use
,earlier that morning by Glass, or by Glass and Springer, of vulgar language, and as the
record does not indicate that any thought was given to discharging Springer for the
use of vulgar language, I find that there was no connection between the earlier inci-
dent and the discharge of Glass.
On the entire record considered as a whole I hold that Wickert discharged Glass
as and when he did, because of his union and concerted activities and for the purpose
•of discouraging union membership and activities by the employees, Respondent
thereby violating Section 8 (a) (3) and (1) of the Act.
As has been seen above, on the morning of March 29, Schroeder called Glass to
,one side and said,
Now, look, Roy, . You don't realize all the good things about this com-
pany . Mr. Wickert lets the boys use the trucks . . . to deliver their furni-
ture or to move; . . . He gives them sick leave when they haven't got it; so
the best thing you can do is go back to work and forget about the Union.
'The General Counsel contends that by these words Schroeder threatened employees
with the loss of benefits if the Union were successful in obtaining representation of
Respondent's employees. I.do not so find. Rather these words appear to me to
have been views, arguments, or opinions which were privileged under Section 8 (c)
of the Act, and I so find.
Sometime during the first 2 weeks in April, as has been seen above, President
Wickert summoned Staedt and Pekel to his office and asked them why they wanted
to have a union and what they wanted to gain through a union "and things like
that." When they indicated that primarily they wanted more wages and wanted to
bring the lesser paid employees up closer to the higher paid employees, Wickert
said that "he thought maybe he would do something about that in the near future."
Effective a few days later, on April 16, Respondent put into effect a general wage
increase of 5 cents an hour. This increase was unilaterally put into effect with the
knowledge that the chief reason the employees had sought the Union was to get a
raise, and after the Union had made a demand for recognition which Wickert had
ignored. In view of these facts, and the aggravated nature of the offenses which
intervened between the demand for recognition and the wage increase, I find that
this wage increase was "calculated to cool the employees' ardor for collective bar-
,gaining," 6 and was put into effect at this time in order to discourage union member-
ship and activity among the employees and to undermine the Union. Under all the
circumstances the interrogations of the employees , and the unilateral granting of
this wage increase at this time interfered with, restrained, and coerced employees
in the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section
8 (a) (1) of the Act.
E. The refusal to bargain
1. The appropriate unit
The Union's original letter to President Wickert, which the latter received on
March 28, stated that the Union represented a majority "of your employees" and
that the Union wished to meet with him to negotiate a labor agreement covering
the employees "in your Appleton store." Thus, as early as March 28, Wickert knew
that the Union was seeking to bargain for the employees of only the Appleton store.
In substance the General Counsel contended that at the March 29 meetin H^rold
'Staedt informed Wickert what groups in the Appleton store would be included in
the Union and what groups not included. Harold Staedt so testified, and so did
Carl Pickering and Richard Pekel. Max Kroiss remembered Staedt explaining this,
but did not remember at what point in the meeting it was said. Vice President Dietz
testified that Staedt did not name the groups the Union claimed to represent, in the
presence of Wicker. Gordon Kraus testified that after Wickert and the Dietz
'brothers returned to the meeting some men informed Wickert that the Union was
claiming only shipping, and still others reported the Union was claiming the entire
Appleton store. As Staedt, Pickering, and Pekel were credible witnesses, and as
'their testimony reflects stronger remembrance of the meeting by them than by the
other witnesses, I credit their version and find that in Wickert's presence Staedt in-
formed him that the Union was claiming the shop, the glass department, receiving
and shipping, the truckdrivers, and Jake Schuh, the special mechanic. I make this
.finding notwithstanding that, as found above, Staedt explained the same position
e Cf. Motorola, Inc. v. N. L. R. B ., 199 F. 2d 82 , 83 (C. A. 9), enfg. 94 NLRB 1163,
cert. denied 344 U. S. 913.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over again to the employees during the interim in the March 29 meeting in the
absence of Wickert. During the interim there was a free-for-all discussion, and it
is not improbable that some of the employees wanted to hear again and to understand
just which groups the Union was seeking to represent.
In early April the Respondent received a copy of the Union's petition in Case No.
13-RC-4942, which for the address of the establishment involved gave the address.
of only the Appleton store; and which described the unit as including automotive
machinists, shipping and receiving clerks, all shipping, receiving, and auto glass de-
partment help, and as excludng salesmen, office clerical, professional and supervisory
employees, and countermen.
The original charge herein did not allege a violation of Section 8 (a) (5) of the
Act. The first amended charge, filed on June 4, 1956, and received by Respondent
on June 6, alleged a violation of Section 8 (a) (5) and asserted a unit consisting of
all employees of the Appleton store with certain exclusions.
The complaint alleged that:
All employees of the company, excluding inside and outside salemen, office
clerical employees, guards, professional employees and supervisors as defined
in the Act constitute a unit appropriate for the purposes of collective bargaining-,
within the meaning of Section 9 (b) of the Act, and is hereinafter referred to,
as the unit.
Respondent's answer admitted this allegation of the complaint. At the beginning,
of the hearing the General Counsel amended his complaint to allege that Respondent
owns and operates eight stores in Wisconsin. During the General Counsel's case
it was clear that the other stores than the Appleton store were in no way involved.
in the alleged unfair labor practices being processed, and that the General Counsel
was contending there was a refusal to bargain concerning the Appleton store only..
Near the conclusion of his case the General Counsel moved to amend his complaint
so that it would include in the appropriate unit all employees of the Company at
the Appleton store, but excluding inside and outside salesmen, office clerical em-
ployees, guards, professional employees, and supervisors. Respondent having no,
objection, this motion was granted.
At the hearing herein the Respondent did not contend, in substance, that any
other unit than that alleged by the complaint as amended, was an appropriate unit,
and it did not move to amend its answer which admitted the complaint's allegation:
that the included groups in an appropriate unit were all employees excluding inside
and outside salesmen, office clerical employees, guards, professionals, and super-
visors. In fact, at the hearing Respondent's counsel, after some earlier doubt, stated'
that the complaint's allegation of the appropriate unit "is one hundred per cent cor-
rect." At the hearing his position was, in effect, that none of Respondent's employees:
at the Appleton store fit into any certain category of employment, that all of them-
just worked wherever they were needed and had no specific assignments, and that
Respondent has never known which of them are in an appropriate unit.
Under all the circumstances of the case it appears to me and I find that Respondent.
has not refused to answer the Union's letter of March 27, 1956, received by Re-
spondent the following day, because of any good-faith doubt by Respondent as to
what categories of employees the Union was claiming to represent. Upon receipt
of this letter Respondent knew that the Union's claims related solely to the Appleton
store. At the meeting with the employees the following clay, March 29, President
Wickert learned from the employees that the Union intended to take in and bargain
for the employees in the Appleton store who worked in shipping and receiving, the
shop including the special mechanic, Jake Schuh, and the glass department. He
did not immediately thereafter, or ever, seek confirmation of that unit from the
Union, if he had any doubt as to what was being claimed. A few days later, in
early April, he received a copy of the Union's petition, which in essence defined the-
claimed unit as including, at the Appleton store, all automotive machinists, shipping:
and receiving clerks, and glass department help, but excluding salesmen, office clerical,
professionals, supervisory employees, and countermen. Thus as of early April 1956,
the Union defined with reasonable clarity the unit it sought to bargain for and peti-
tioned for an election in. If there had been any good-faith doubt in Wickert's mind
theretofore, it was answered at this time.
Under all the circumstances of the case I find that an appropriate unit consists-
of all employees at the Appleton store, including shipping and receiving, the shop
(including the special mechanic, Jake Schuh), the glass department and the paint
department, but excluding inside and outside salesmen, office clerical employees,
guards, professional employees, and supervisors as defined with reasonable clarity
AUTOMOTIVE SUPPLY CO., INC. 1093
by the Union at least by early April 1956, and as alleged in the complaint, admitted
in the answer, and understood by all sides during the hearing.
On March 27, 28, and 29, 1956, Respondent employed 18 employees in the appro-
priate unit as found above, as follows: in shipping and receiving, including the truck-
drivers-Roy Glass, Carl Pickering, Harold Albert, Jerome Murphy, Burton Dono-
van, Ralph Witthuhn, Jerome Kuschel, Kenneth Springer, James VanDenElsen,
and Arthur Park, the janitor who worked part time in shipping and receiving; in
the automotive machine shop-Harold Staedt, Richard Pekel, Robert Kaufman,
Charles Fritsch, George Robert Flease, and Jake Schuh; in the glass department,
Woodrow Coon; in the paint department-Eugene Tischhauser, who mixes paint
about three-quarters of his time.
Marvin Schroeder and Max Kroiss are excluded from the unit because, as found
above, they were, .and are, supervisors.
Although carried on the payroll for that period, Duane Hanneman voluntarily
quit his employment with Respondent on March 24, 1956, and so was not an employee
on and after March 27.
Roy Glass is included in the unit because his discriminatory discharge on March
:29 was illegal and did not affect his status as an employee.
Jake Schuh, who is included in the unit, is a specialized mechanic who repairs such
-things as hydraulic equipment, grease guns, and speedometers.
The office employees, including Gordon Kraus, who was principally an office
employee, are excluded.
The four countermen, Joseph Bartol, John Cotton, Alvin Krabbe, and Walter
Mueller, are excluded from the unit as inside salesmen. Jerome Murphy testified
that these four were countermen and that the duty of a counterman is to take "care
of all customers that come up to buy parts." Asked if it was "sales work," Murphy
replied, "Well, no. A customer comes in and he buys parts. He waits on him."
'Gordon Kraus testified that he "presumed" that Cotton, Krabbe, and Bartol were
countermen. Bartol testified that he works all over the place, and that being a
counterman is a part of his job. Kraus testified that he helps out at the counter on
Friday nights "when there's an awful lot of customers in.. . Krabbe explained
that during the March 29 meeting the "store" was still operating, and that in the
absence of himself and the others, "there were several salesmen at the counter
taking charge of the counter while the store was still operating." Gordon Kraus
stated that under normal conditions the countermen spend their workday working at
the counter.
In addition to their counter work the countermen have the responsibility to see
that the stockroom is kept stocked with parts, and it is their duty, with the help
of the "purchasing agent, Harry Dietz," to place orders for new parts which are
running in low supply. On occasion when the receiving department is very busy,
such as when a carload of merchandise arrives, some of the countermen help unload
the merchandise.
The two groups, the countermen on the one hand, and the receiving and shipping
employees on the other hand, are on the same floor of the plant, and they com-
mingle somewhat on the occasions when the countermen are assisting a rushed
receiving department, and somewhat in the stockroom when the receiving men are
presumably putting away stock and the countermen are filling orders for customers
or working out a new order to be placed for stock.
Respondent contends that selling over the counter is a small part of the Com-
'pany's business (there was no evidence to this effect but only a statement of counsel)
and that the countermen are not salesmen but "wholesaling dealers." It is clear
,on all the evidence, however, that the primary function of the countermen is to serve
customers and that the customers are in the "store" for the purpose of buying mer-
chandise. Whether the purchases are wholesale or retail, whether they are paid for
in cash or when billed, does not change the function of the countermen, which is
basically selling something. The shipping and receiving employees have no such
function, and, insofar as the evidence shows, the countermen have no contact at all
with the shop employees.
Under all the evidence I find that the countermen are inside salesmen and should
be excluded from the unit. But, as will be seen below, even if the countermen are
included in the unit, this would not affect the Union's majority in the unit.
2. The Union's representation of a majority in the appropriate unit
As has been pointed out above, at the conclusion of the meeting at the labor hall
-on March 26, 1956, the 13 employees of Respondent who were present signed their
signatures on cards designating the Union as their collective-bargaining representa-
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive. These employees were Roy Glass, Harold Staedt, Carl Pickering, Harold
Albert, Richard Pekel, Jerome Murphy, Jake Schuh, Burton Donovan, Robert Kauf-
man, Ralph Witthuhn, Charles Fritsch, George Robert Flease, and Woodrow Coon--
all of whom were in the appropriate unit.
The evidence raised a question concerning the date on two of these cards, the:
cards of Harold Staedt and Ralph Witthuhn. Staedt's card was dated "4-2-56,"'
which would have been one week after March 26. Witthuhn's card was dated-
"4/26/56," and then there was a strikeover changing the month from "4" to "3,
so that the date as changed read "3/26/56."
The Union held only one meeting for employees of Respondent and that was on
March 26. Both Staedt and Witthuhn testified that they signed their cards at the
union meeting at the same time that the others signed their cards. Robert Schlieve,
the union secretary-treasurer who was present, testified there were 13 present at the.
union meeting and that each of them signed a card that evening. Harold Albert
testified that he saw Staedt sign his card that night at the meeting, and so did Pekel.
Staedt put the date on his card. The president of the Local, Richard Hinz, who was.
present, put the date on Witthuhn's card, and the changeover from "4" to "3" appears
to be in his handwriting also. There was no evidence except what appears on,
the cards that they were signed on any other date than March 26. On this evidence
I have no doubt and I find that the cards of Staedt and Witthuhn were signed on
March 26, that the date appearing on Staedt's card reflected his mistaken notion
of the date but not the actual date, the card was signed, and that the strikeover on
Witthuhn's card reflected Hinz' original error in the dating of that card and his cor-
rection of it. As Hinz dated many of the other cards correctly, it may well have
been that Witthuhn's was the first card Hinz dated.
It follows from the above and from the totality of the evidence that on March 26,
1956, and on March 28, 1956, when Respondent received the Union's request to bar-
gain, the Union in fact represented a voluntary and uncoerced majority of Respon-
dent's employees in an appropriate unit.
3. The refusal to bargain,
As has been seen above, Respondent never answered the Union's request to,
bargain, never raised a question with the Union as to whether the unit asserted by
the Union to be an appropriate unit was in fact an appropriate unit, never asked the
Union to prove to the Company's satisfaction that the Union in fact represented
a majority in the appropriate unit. Instead, as has been found above, the Respond-
ent, mostly through its highest officer, President Wickert, immediately engaged in a
course of unlawful conduct designed to undermine the Union in violation of Section
8 (a) (1) and (3) of the Act, which unlawful conduct is, as yet, uncorrected..
During the 2 days following its receipt of the Union's request to bargain, on March'
28 and 29, the Respondent committed at least nine unfair labor practices, as found
above, consisting of interrogations of its employees as to how many had joined the
Union, who had attended the union meeting, who had not attended it; polling the
employees as to who had and who had not attended the union meeting by asking
them to stand; interrogating specific employees as to their feelings towards an
affiliation with the Union; threatening to reduce the number of working hours or to,
close down the shop or to reorganize under a different name if he did not see "eye-
to-eye" with the Union; suggesting that the employees form their own "inside"
union; suggesting to an employee in the presence of another employee that he ought
to get his old Marine fighting spirit up and hang by the neck the guys who want to
endorse a union, that they ought not "let them bring the Union in here"; inform-
ing employees that Respondent's supervisors had, in the past, ushered out the back
door someone who was trying to organize a union; discriminatorily discharging an
employee to discourage union membership and activity. Effective about 2 weeks.
later Respondent timed and unilaterally put into effect a wage increase for the
purpose of discouraging union membership and activity among its employees and
undermining the Union. In view of the timing of Respondent's unlawful conduct,
and its aggravated nature and broad scope, I find that Respondent's failure to respond.
to the Union's request to bargain was motivated by a complete rejection of the.
principle of collective bargaining, and not by any good-faith doubts as to the appro-
priateness of the unit or the Union's representation of a majority.
Respondent contended that the Union had a duty to prove its majority to the
Company. This would be true only if the Company had any good-faith doubts,
AUTOMOTIVE SUPPLY CO., INC. 1095
which here it did not have . Joy Silk Mills, Inc., 85 NLRB 1263 , enfd . as modified
185 F. 2d (C. A., D. C.), cert. denied 341 U . S. 914. Artcraft Hosiery Company,
78 NLRB 333 ; Merchandiser Press, Inc., 115 NLRB 1441, 1449 ; N. L. R. B. v. Idaho
Egg Producers, Inc., 229 F. 2d 821 (C. A. 9), enfg . 111 NLRB 93.
Respondent contended , in effect, that it was relieved of the duty to bargain when
the Union filed its unfair labor charge against it . This is another way of saying that
Respondent may condition bargaining on the withdrawal or dismissal of unfair labor
practice charges. The law is just the reverse . Lion Oil Company , 109 NLRB 680,
688, reversed on other grounds , 221 F. 2d 231 ( C. A. 8), reversed and remanded to
the Court of Appeals , 352 U. S. 282; Clinton Foods , Inc., 112 NLRB 239, 240, 267;
Thomason Plywood Corp., 109 NLRB 898 , 921, 922 , enfd. 222 F . 2d 364 (C. A. 4).
On the record considered as a whole I find that on March 28, 1956, and at all
times thereafter , including the unilateral wage increase of April 16 , 1956, Respondent
refused to bargain collectively with the Union in violation of Section 8 (a) (5) and
(1) of the Act . Cf. cases cited above, and also Harrisburg Building Units Co., Inc.,
et al., 116 NLRB 334.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities, set forth in section III, above, occurring in connection with
Respondent's operations 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 Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the Act.
Respondent having discharged Roy Glass on March 29, 1956, because of his
union and concerted activities, and not having offered him reinstatement until a later
date.? I recommend that Respondent make Glass whole for any loss of pay he may
have suffered by reason of Respondent's discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned from
March 29, 1956, until the date Respondent offered him reinstatement, less his net
earnings during said period.8 Said back pay shall be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
The violations of the Act committed by the Respondent are persuasively related
to other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall recommend that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights guaranteed in 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. Automotive Supply Co., Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. General Drivers and Dairy Employees Union , Local 563, International'
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,.
AFL-CIO, is a labor organization within the meaning of the Act.
7 The General Counsel's complaint stated in effect that Glass was offered reinstatement
on September 12, 1956. The General Counsel stated on the record at the hearing that an
offer of reinstatement had been made but did not name the date. Respondent did not
deny this statement.
8 Crossett Lumber Company, 8 NLRB 440, 497-498; Republic Steel Corporation v.
N. L. it. B., 311 U. S. 7.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employment of Roy Glass,
thereby discouraging membership in the labor organization named just above, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
4. At all times material herein, the following employees of Automotive Supply
Co., Inc., have constituted and now constitute a unit appropriate for the purposes
of collective bargaining: all employees of the Respondent at the Appleton, Wisconsin,
store, excluding inside and outside salesmen, office clerical employees, guards, pro-
fessional employees, and supervisors as defined in the Act.
5. On March 26, 1956, and at all times thereafter, General Drivers and Dairy
Employees Union, Local 563, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, was, and now is, the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
6. By refusing on March 28 and 29, 1956, and at all times thereafter, to bargain
collectively with said Union as the exclusive representative of all its employees in
the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) and 8 (a) (1) of the Act.
7. In March and April 1956, by interrogating its employees generally, and certain
employees specifically, concerning their feelings and attitudes towards the above-
named Union, their union affiliation, membership and activity, and why they wanted
the Union and what they expected to gain from it, Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
8. In March 1956, by polling its employees concerning their attendance and their
nonattendance at a union meeting, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
9. In March 1956, by threatening to reduce the number of working hours or to
close down the shop or to reorganize under a different name, for the purpose of dis-
couraging membership and activity in the Union, Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
10. In March 1956, by suggesting that its employees form their own "inside"
union, for the purpose of discouraging membership and activity in the Union, Re-
spondent interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
11. In March 1956, by suggesting to employees that they hang by the neck those
who endorse the Union, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
12. In March 1956, by informing employees that Respondent's supervisor had in
the past ushered out the back door someone who was trying to organize a union,
thereby threatening employees who were trying to organize with physical harm or
loss of employment, Respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
13. In April 1956, by unilaterally putting into effect a wage increase after receiving
and ignoring a demand for recognition from the Union, Respondent unlawfully re-
fused to bargain with the Union, and interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 (a) (5) and 8
(a) (1) of the Act.
14. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]