Berger Polishing, Inc.

National Labor Relations Board - Board Decisions

May 20, 1964

147 N.L.R.B. 21 (N.L.R.B. 1964)

BERGER POLISHING, INC. 21
Question: Will the Company go out of business if organized by the United Steel-
workers of America?
Answer: One plant, your neighbor , the Warren Metal Decorating Company, which
was organized in 1960, told the employees that they would have to move out of the
area or close the plant . At that time , they had 74 employees with a very low wage
rate and no fringe benefits. Today the Warren Metal Decorating Company employs
around 150 people, and has more and better benefits than the basic steel companies.
Question : What is the financial status of the Halsey-Taylor Company
Answer: The Company has sales amounting to $3,000,000 annually. Stock hold-
ers in December 31, 1962 received a total of $2 , 350,807. At the present time the
current assets are four times the current liabilities . It is considered that when the
assets are two times the current liabilities a company is making a substantial profit.
The Company is using this profit , not to compensate the employees for their work
with the Company , but for the purpose, now, of reprisal against their employees,
such as has been going on with one of the employees of the Company at the present
time.
If you continue to allow this Company to shirk its responsibilities you may be the
next employee unjustly discharged , and forced into poverty, with the Company will-
ing to spend thousands of dollars to defy the Federal Agencies. How can you cope
with a Company that is defying the National Labor Relations Board , which is an
agency of the Federal Government?
Question : Will there be a pure wage inequity program for job classification estab-
lished in the Company?
Answer: During contract negotiations , the Steelworkers will have an industrial
engineer who will accompany the committee , that will negotiate a true classification
for jobs in the plant, which will standardize the wage scale.
RUSSELL THOMAS,
Sub-District Director, United Steelworkers of America.
Berger Polishing, Inc. and Local 10 , Metal Polishers , Buffers,
Platers & Helpers, International Union , AFL-CIO . C, cases Nos.
13-CA-5515 and 13-CA-5515-2. May 20, 1964
DECISION AND ORDER
On November 4, 1963, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices, and recommended
that the allegations of the complaint pertaining thereto be dismissed.
Thereafter, Respondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief, and the General Counsel filed a brief
in support of the Trial Examiner's Decision, and a brief in answer to
Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Clia.irma.n McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
147 NLRB No. 7.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recoln-
Inendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner and orders
that Respondent, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recomm'enc'ed Order.
1 When the Union, on March 29, 1963, offered to abandon its strike if Respondent would
reinstate all strikers as a group, Respondent offered to recall only employee Rattler. Rattler
chose to remain on strike because Respondent would not reinstate all strikers. In accord
with the Board's majority decision in Robert S. Abbott Publishing Company, 139 NLRB
1328, the Trial Examiner found that Rottler's refusal to accept Respondent's offer of re-
instatement in these circumstances did not toll his backpay. The Board agrees.
Although Member Fanning stated in the Abbott case that, in the circumstances of that
case, he would cut off the backpay of employees as to whom a valid offer of reinstatement
was made, he herein adopts pro forma the Trial Examiner's recommendation insofar as it
applies to Bottler, in view of the fact that the record is not clear as to whether the offer
to Ruttier was an offer of an equivalent job, and in view of the absence of any specific
exception to the Trial Examiner's recommendation.
TRIAL EXAMINER'S DECISION
The initial charge herein was filed on March 29, 1963. A consolidated complaint
issued on May 14, and the case was heard before Trial Examiner Sidney Sherman
at Milwaukee, Wisconsin, from July 8 through 12. After the hearing briefs were
submitted by the Respondent and the'General Counsel.' The issues litigated were
whether Respondent violated Section 8(a)(1) of the Act by interrogation, threats,
and promises of benefits; Section 8(a)(3) and (1) of the Act by discrimination
against employees in the matter of discharge, layoff, and recall; and by refusing to
reinstate strikers, and Section 8(a)(5) and (1) of the Act by refusing to bargain in
good faith and by unilateral changes in working conditions.
Upon the entire record,2 and from my observation of the witnesses, I adopt the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Berger Polishing, Inc., herein called the Respondent, is a Wisconsin corporation,
and is engaged at its plant in Wauwatosa, Wisconsin, in the business of polishing
stainless steel. During 1962, Respondent received at its plant goods valued at more
than $50,000, which were either shipped directly to it from out-of-State points or
1 The parties also submitted certain exhibits, after the close of the testimony, in com-
pliance with an order Issued by me on August 2, 1963, providing that the hearing would
be closed upon receipt of such exhibits. These exhibits consist of the following:
(1) A copy of an insurance policy covering the Respondent's employees, which has
been marked as "Trial Examiner's Exhibit No. 1."
(2) A stipulation as to Respondent's production per man-hour from December 1, 1962,
to May 31, 1963, which has been marked "Trial Examiner's Exhibit No. 2."
(3) A copy of Respondent's payroll records for the period January 1 to July 1, 1963,
which has been designated as Joint Exhibit No. 1(a) through (eee).
Subsequently, pursuant to my letter of October 15, the parties submitted a stipulation
on jurisdiction, which has been marked as "Trial Examiner's Exhibit No. 3." All these
exhibits are hereby ordered incorporated into the record of this case and admitted into
evidence, and the bearing Is hereby closed.
2 Various obvious typographical errors in the record are hereby ordered corrected.
BERGER POLISHING, INC. 23
furnished to it by firms which received such goods from out-of-State sources? Dur-
ing the same period, Respondent shipped from Wisconsin to out-of-State points
goods valued at or about $30,000.
The Respondent is engaged in commerce and it will effectuate the policies of the
Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 10, Metal Polishers, Buffers, Platers & Helpers, International Union, AFL-
CIO, herein called the Union, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended at the hearing, alleges that Respondent (1) violated
Section 8(a) (1) of the Act by interrogating employees concerning their union
activities, and by threats of reprisal and promises of benefit, (2) violated Section
8(a)(3) of the Act by discharging three named employees because of their union
activities and by discharging and refusing to reinstate striking employees, and (3) vio-
lated Section 8(a)(5) of the Act by refusing to bargain in good faith with the
Union, by unilaterally changing certain terms and conditions of employment, and
by the threats of reprisal and the discharge of the three named employees referred
to above.
The answer denies the foregoing allegations, and, as an affirmative defense, alleges,
inter alia, that throughout its negotiations with Respondent the Union insisted upon
an "all-union" agreement, in contravention of State law, and that the strike was
called to force Respondent to execute such an illegal agreement.
1. Sequence of events
The Respondent operates a steel polishing plant with -about 15 employees. About
November 1, 1962, some of the employees, including Friday, met with Pearson,
the president of the Union, and discussed the organization of Respondent's plant.
A week or two later Friday passed out union authorization cards to the six employees
on the night shift,4 and all the cards were signed and returned to him.
On November 23, 1962,5 the Respondent received a demand by the Union for
recognition and a copy of a petition for a representation election which had been
filed with the Board. An election, held on December 26, was won by the Union by
a vote of seven to six, and on January 5 the Union was certified as the representative
of Respondent's employees. On December 31, Respondent notified Friday and two
other employees (Archey and Miller) that they were being laid off effective Janu-
ary 2. Archey returned to work on February 13, but was discharged for alleged
cause on March 18. Friday was recalled on March 20 and worked for 3 days.
Meantime, the Union and Respondent began to negotiate on January 15, and con-
tinued to meet until April 2, but no agreement was reached.. On or about March 10,
the employees rejected Respondent's proposed contract and on March 25 the majority
of the employees struck because of dissatisfaction with the progress of negotiations.
On March 28, the Union sent the Respondent, on behalf of the strikers, a written
request for reinstatement. On March 29, the Respondent offered reinstatement to
one of the strikers, Rottler, who, however, refused to return, and Respondent was
advised that none of the strikers would return unless all were recalled at the same
time. Respondent thereupon notified the Union that it was not economically feasible
for it to rehire all the strikers at that time. Subsequently, on May 6, the employees
through the Union made another request for reinstatement -and the Respondent
thereafter recalled some, but not all,. of the strikers.
2. Discussion
A. Coercion
As already related, early in November, Friday was active in soliciting for the
Union. A few days before the election, Friday's supervisor, Hoots, asked him how
he would vote. When Friday gave a noncommittal answer, Hoots remarked, "I
know damn well how you are going to vote." A few days after the election, Hoots
asked Friday, in effect, who "started" the union campaign at the plant. Friday pro-
8 See Trial Examiner's Exhibit No. 3.
* Friday, himself , worked on the day shift.
5All events hereinafter related occurred between November 1962 and May 1963.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fessed ignorance.6 I find that by such interrogation Respondent violated Section
8(a)(I) of the Act.
Slipper, an employee, testified that on December 26, shortly after the result of the
election was announced, Berger, Respondent's president, addressed the six employees
on the night shift, including Slipper, stating that he inferred from the fact that there
were six "No" votes that they were the ones who so voted, that no union was going
to tell him how to run his business, that as long as his listeners played along with
him, there would be work, and this would be true even in.the event of a strike, and
that, if they had to cross a picket line to go to work, he would protect them against
economic or other reprisals by the Union.
Berger denied that he told the night-shift employees that he inferred that they had
voted against the Union, but admitted that, in response to a question, he told the
night shift that the plant would continue to operate in case of a strike and they would
have a job if they chose to work.
Insofar as Slipper imputes to Berger merely an assurance that he would continue
to operate in case of a strike and that his listeners would not have to fear loss of
employment during a strike, I find nothing unlawful in such assurance. As an em-
ployer is privileged to operate in the face of a strike, he is entitled to inform his
employees that he intends to exercise this privilege.
However, Berger did not specifically deny Slipper's testimony that Berger told the
night shift, even before any reference was made to the possibility of a strike, that, if
the night-shift employees "played along" with Respondent, there would be work for
them. As this was in effect a promise of continued employment for those employees
who aligned themselves with management, or, conversely stated, a threat to deny
employment to those, who cast their lot with the Union, I find that the Respondent
thereby violated Section 8(a) (1) of the Act.
However, I find no such violation in the testimony of Slipper that in mid-January
Berger offered him and another employee, both of whom were then classified as
helpers, an opportunity to learn to operate one of Respondent's steel polishing ma-
chines, and that, when they accepted this offer, Berger notified them that he was
raising their pay to $2.05 an hour, adding that there was "now a chance of advance-
ment, and if we more or less carried the ball on this thing we would be the ones that
would get the better end of the deal."
Berger did not contradict the foregoing testimony, nor did he deny that he gave
Slipper a raise, but he explained that this was because Slipper had expressed a desire
to learn to operate a machine. There was other evidence in the record, not disputed
by the General Counsel, that it was Respondent's practice to promote its helpers to
the higher paid grade of assistant machine operators whenever they expressed a de-
sire for training as such operators.
Under these circumstances, I am not satisfied, upon the preponderance of the evi-
dence, that Berger's offer of advancement to Slipper was motivated by his supposed
allegiance to management, or that this was implied by Berger's accompanying am-
biguous references to "carrying the ball" and "the better end of the deal." In any
event, in view of my other findings herein, any violation finding based on the fore-
going incident would be cumulative and would not affect the remedy.
Slipper testified further that about February 1, his wife, from whom' he had been
.separated, returned to live with him, and that the next day Berger remarked that
Slipper "now had a wife and family, two more mouths to feed, and more responsi-
bility," and that he "should know who to go along with in this Union business," and
that Berger added that "he was still going to fight this thing, the men were backing
into the buzz saw . and he would beat this thing." Although Berger testified
extensively at the hearing, he was not asked about this incident. Slipper's foregoing
testimony, therefore, stands uncontradicted, and I credit it. I find that Berger's re-
marks implied that Slipper would be jeopardizing the security of his family if he did
not align himself with management rather than the Union, and I find that the Re-
spondent thereby violated Section 8(a) (1) of the Act.
About January 15, employee Rottler was called into the office of Berger, Respond-
ent's president, and questioned about a name-calling incident involving Harenda,
the union steward, and another employee, Embrick. After Rottler gave his version
of the incident to Berger, the latter, according to Rottler, said to him, ". . . you are
an older man here, why don't you go and talk to these other fellows about this
Union business." In addition, according to Rottler, Berger, after again referring to
the fact that Rottler was an "older man there," 7 inquired how he would take care
6 The findings in the above paragraph are based on Friday's uncontradicted testimony.
Hoots did not testify.
7 Rottler was in late middle age.
BERGER POLISHING, INC. 25
of his family if he lost his job, and declared that Berger "would not have a Union
in there telling him what to do, that he was the boss."
On the same occasion, according to Rottler, Harenda asked Berger if he was going
to rehire Friday, Miller, and Archey, and Berger rejoined that he would not take
them back "because of Union business there."
With regard to the foregoing incident, Berger testified that he called Rottler into
his office to verify Harenda's version of the name-calling affair, which involved the
charge that Harenda had called another employee a "scab," and that Berger then
told Rottler that he should do all he could "as a senior citizen within the plant" to
prevent controversy between the employees for and against the Union. Berger
denied that he referred to the difficulty Rottler would have in providing for his
family if he lost his job, explaining that he said only that, if it became necessary to
discharge an employee for making derogatory remarks or causing controversy, the
penalty would be more obvious if the employee was a man with a family than if he
was single. Berger admitted, however, that he told Rottler that he was not going'
to let a union tell him how to run the "internal affairs" of his plant, but categorically
denied that he told Harenda be would not take back the three above-named em-
ployees because of the "Union business."
It thus becomes necessary to resolve the foregoing conflicts between Berger and
Rottler. Berger, himself, aptly described Rottler as "quiet, reserved." In addition
Rottler impressed me, on the whole, as a sincere and candid witness. Berger, on
the other hand, had many shortcomings as a witness. Moreover, his version of his
remarks to Rottler appears contrived, particularly his supposed allusion to the family
status of as yet unidentified employees who might be discharged for creating con-
troversy. Rottler's version, on the other hand, places in a• more plausible setting
Berger's reference to the plight of a family man who had lost his job, since, accord-
ing to Rottler, the remark was addressed to him as a family man and raised the
specter of the problems he would encounter if unemployed. Moreover, there is a
striking similarity between Berger's reference to family responsibilities as a reason
for siding with management, as related by Rottler, and the statement, which, as
found above on the basis of uncontradicted testimony, Berger made to Slipper only
a week or two later.
Accordingly, I credit Rottler's version of Berger's remarks to him, and find that
Berger solicited Rottler to talk to the other employees about the "Union business,"
warned him of the consequences of loss of employment, and that such remarks were
delivered in the context of a statement of Berger's attitude toward unions, which,
whatever else it connoted, could hardly be construed as friendly to the Union. Even
more clearly indicative to Rottler of Berger' s union animus was his alleged explana-
tion on the same occasion of his reason for not recalling the three former em-
ployees. Here, again, I credit Rottler against Berger and find that the reason given
was ."Union business." Accordingly, I find that Berger's remarks to Rottler were
reasonably calculated to be construed as soliciting Rottler to dissuade other em-
ployees from adhering to the Union, and as a veiled threat to discharge Rottler if
he cast his lot with the Union rather than management.
I find further that by the foregoing remarks, as well as by the explanation given
for not recalling the three former employees, the Respondent violated Section
8(a)(1) of the Act.
Archey was one of the three employees laid off on December 31, 1962. Pursuant
to a recall notice, he returned to work in mid-February, and received his first pay-
check on February 18. Observing that the check contained no deduction for in-
surance,8 Archey sought to ascertain the reason therefor from Berger. According
to Archey, Berger first asked him how he felt about the Union, and, when Archey
answered that he had no comment to make, Berger asked him how he voted, to
which Archey rejoined that Berger would never know. Berger then stated, accord-
ing to the witness, that there would be no insurance deductions from Archey's pay
because he was "not on [Berger 's] side" and was not "a loyal employee."
While admitting that he discussed with Archey in mid-February his insurance
coverage, Berger's version was that he merely explained to Archey that the insurance
policy did not apply during a waiting period, which in Archey's case would not have
expired until April 1. Berger testified further that coverage of all his full-time
employees was mandatory, under the policy and that he had no discretion to with-
draw any employee from coverage. He categorically denied the interrogation im-
puted to him by Archey or that he told Archey he was being denied insurance
coverage for discriminatory reasons.
8 Respondent 's employees were covered by an insurance plan, financed in part by em-
ployee contributions , which were deducted from their weekly paycheck.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears from a copy of the insurance policy, submitted in evidence that in
Archey's case, the policy would not in fact have been effective until April 1.9
Accordingly, the Respondent argues that , since the statement attributed by Archey
to Berger (that Archey was not covered because of his union activity) could not
have been true, such statement could not have been made. The fallacy in this argu-
ment is that it assumes that Berger was incapable of misrepresenting to Archey the
reason for the deferral of insurance deductions in his case . However, it would have
been entirely consistent with Berger 's course of conduct , as outlined above, including
his interrogation of, and threats of reprisal against , other employees , for him to
avail himself of the opportunity presented by Archey's inquiry about his insurance
deductions to explain the absence of such deductions in terms that would tend to
dampen Archey's enthusiasm for the Union. Accordingly, I do not consider Archey's
testimony to be inherently incredible merely because it attributes to Berger a mis-
statement of the reason for not deducting insurance premiums from Archey's pay;
and, as I was favorably impressed by Archey's demeanor, and, as the coercive re-
marks attributed by him to Berger conform to the pattern of conduct exhibited by
him in his dealings with other employees , I credit Archey, and find that , as testified
by him, Berger interrogated him regarding his union sentiments and led him to be-
lieve that he was being denied the benefits of Respondent 's insurance plan because
of his union activity. I find further that by such conduct Respondent violated Sec-
tion 8 (a) (1) of the Act.
B. The violations of 8(a)(3)
The amended complaint alleges that Respondent violated Section 8(a) (3) and (1)
of the Act by discharging Miller on January 2, Friday on January 2 and March 25,
and Archey on January 2 and March 18. The Respondent contends that its action
on January 2 as to all three was due to lack of work, that the subsequent termina-
tion of Archey was for cause , and that Friday was not discharged on March 25, but
merely advised on that date not to report for work until the following day.
1. The initial layoffs
Friday had worked for Respondent a total of about 21/2 years , advancing to the
grade of relief machine operator and a rate of $2.15 an hour. Miller had worked
for Respondent about 1 year, and had advanced to the grade of assistant machine
operator, earning $2 .05 an hour . Archey, who had been ' in Respondent 's employ
for more than 1'h years, was earning $ 1.95 an hour as a helper when laid off. On
December 31, Respondent notified all three that they were not to report for work
on January 3 or 4, but were to contact Respondent on January 4 regarding their
further employment . All three were subsequently offered reemployment , but the
first such offer, to Archey, was not made until February 8.
As already related , Friday was prominent in the Union 's organizing campaign,
having successfully solicited all six employees in the second shift, early in November,
to sign union cards. Archey and Miller signed a union card at that time , and, during
the last week in December , Miller worked on the same machine with Friday, and I
credit his uncontradicted testimony that during this period both he and Friday asked
Hoots how he felt about the Union . and discussed the Union in Hoots' presence.
That Respondent was aware of Friday's union activities when he was laid off is
amply attested by the tenor of Hoots ' remarks to Friday in late December , as related
above, as well as by the uncontradicted testimony of Crow, a former employee of
Respondent , which I credit , that a few days before the election he heard another
employee (Hubert Clifford) tell Hoots that Friday was passing out union cards.
Moreover , the fact that Miller openly discussed the Union with Friday in Hoots'
presence , and attempted to draw him into such discussion , gave Hoots ample cause
to believe that Miller was sympathetic to the cause of the Union . It may be in-
9Archey was discharged for alleged cause on March 18, so that the policy never became
effective during the second period of his employment.
While it appears that the Respondent , nevertheless , in the case of other employees made
insurance deductions during their "waiting period ," such deductions could not alter the
fact that the insurance policy by its terms did not become effective as to them until a
later date, so that Respondent could not have conferred on such employees during the
waiting period any benefit that was denied to Archey . While it is arguable that by making
such premature deductions in other cases , but not in Archey's case , Berger evinced an
intent to discriminate against Archey in the matter of insurance coverage , I am not per-
suaded that such was in fact Berger 's intent, as such discrimination was precluded by the
mandatory terms of the policy.
BERGER POLISHING, INC. 27
ferred, in any event, from the small size of Respondent's operation (about 15 em-
ployees), that Respondent became aware of the union activities of all 3 employees
about the time that such activities occurred.
To prove that such union activities motivated the layoffs, the General Counsel,
as already related, adduced Rottler's testimony, which I have credited, that in mid-
January Berger told Harenda that he was not going to recall Friday, Miller, and
Archey because of the "Union business." Moreover, there was testimony by Miller
that, when he asked Berger late in January whether he and the other two had been
laid off because of the Union, Berger declared that "he wouldn't answer that if he
had a gun pointed at his head." Berger did not unequivocally deny making such a
statement, observing merely that he had no recollection thereof. For this reason, as
well as demeanor and the circumstantiality of Miller's testimony, I credit Miller..
It is clear, moreover, that, while Respondent eventually offered reemployment to
all three, it did so in the case of Friday only after hiring a number of new em-
ployees, wholly inexperienced in its operations. Thus, Respondent's records show
that, before recalling Friday on March 20, Respondent hired eight new employees
on a part-time or full-time basis, and that, when Friday finally returned, it was only
as a part-time or intermittent employee on the less desirable second shift, with a
20-cent per hour reduction in his basic pay. As to Miller, there is conflicting testi-
mony as to the time and nature of Respondent's offer to recall him. According to
Berger, there were two such offers, the later one on February 11, and they consisted
of offers of work on the day shift, which Miller rejected because he was already
employed elsewhere during the day, indicating that he was available only for work
on the second shift. According to Miller, there was only one offer, in March or
April, which was limited to part-time work on the day shift, and, while rejecting
such work because of his existing employment, he offered to work full-time on the
day shift or part-time on the second shift. As I regard Miller as a more candid
witness, and, as there were some inconsistencies and evasions in Berger's testimony
on this point, I credit Miller and find that, whatever the date of Berger's offer, Miller
did not say he was unavailable for full-time work on the day shift, and it is clear
from Respondent's records that it had abundant opportunity in March and there-
after to offer Miller such employment but failed to do so, preferring to hire, instead,
new and inexperienced employees.
Accordingly, the disparate treatment of Friday and Miller in the matter of recall
without any credible explanation, lends support to the General Counsel's contention
that the Respondent's motivation with regard to their layoff, as well as their recall,
was discriminatory.
In defense, the Respondent contends (1) that the reduction in force of Decem-
ber 31 was necessitated by the introduction of a new machine, which eliminated
three jobs, and (2) that the three instant employees were selected for layoff because,
on the basis of a comprehensive evaluation of Respondent's work force, it was
determined that they were the least desirable employees. The General Counsel
challenges both these contentions. They will be considered seriatim.
(1) As the reason for the reduction in force, Respondent cited the productive
capacity of its new "Acme" machine, installed on December 17, and, according to
Berger, subjected to a 10-day trial run. This machine was designed to be operated
in tandem with Respondent's old "Hill" machine, so that a crew of four men could
operate both machines, where formerly such a crew was required to operate each of
the old machines. To aid a determination whether the new machine in fact in-
creased Respondent's productive capacity, the parties submitted a stipulation 10 show-
ing Respondent's total man-hours and output in each of 6 months beginning with
December 1962. If one compares the data for December 1962 with that for Janu-
ary 1963, it appears that, while total man-hours declined more than 25 percent in
January, output during that month declined less than 5 percent, and the figures for
February show an increase of nearly 20 percent in output, as compared to December,
despite a decline of more than 10 percent in man-hours. However, the results for
the next 3 months do not conform to this pattern. In any case, the critical question
here is not the Respondent's productivity after December 31, but whether, as Berger
testified, the new tandem operation demonstrated its efficiency during the 10-day
trial run late in December, for, according to Berger, it was the result of this trial
run alone which induced him to reduce his force. No figures were submitted show-
ing the productivity of Respondent's operations' during that 10-day period so as to
permit a comparison with prior periods. If, however, one compares the figures in
Respondent's Exhibit No. 7-B for the entire months of November and December
10 Trial Examiner 's Exhibit No. 1.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, it would appear that productivity actually declined in December as compared
with November."
In view of the foregoing, I deem the records submitted to be inconclusive on the
question whether Respondent in fact believed at the end of December that its new
machine had eliminated the need for three employees.
(2) As for the reason for selecting Friday, Archey, and Miller for layoff, such
selection was allegedly based on a survey made by Hoots, which rated each employee
on the basis of 11 factors, including various aspects of his performance, his attend-
ance, cooperativeness, and appearance. Mallien, an officer of the Respondent and
its legal adviser, testified that the institution of the survey was discussed by him and
Berger in the summer of 1962, and that one of its objects was to obtain an evalua-
tion of all the Respondent's employees as a basis for making promotions and de-
motions, as well as layoffs. Mallien added that he gave Berger a specimen survey
form in the summer of 1962 and had the form duplicated late in October or early
in November 1962, when a decision was presumably reached to use the forms.
Berger confirmed that he received the forms from Mallien early in November, and
testified that he gave the forms to Hoots in mid-November, that the survey was
completed by Hoots on November 28, that the results, as tabulated by Berger on
December 1, showed that Archey, Miller, and Friday received the lowest overall
ratings, and that, when he was satisfied late in December, after operating with the
new machine for 10 days, that he could dispense with the services of three men, he
selected for layoff the three aforenamed employees on the basis of their ratings in
the survey. The ratings allegedly made by Hoots were placed in evidence and con-
firm that, of Respondent's 13 employees, Friday received by far the lowest rating,
and that Archey and Miller were the next lowest.12 There was also placed in evi-
dence a tabulation of the results of the survey, made by Berger, which bears the
date of December 1, 1962.
However, several circumstances raise a doubt whether the survey was made in
good faith and whether Berger regarded it as an accurate evaluation of his em-
ployees. Although, according to Berger, the survey was prompted by the projected
installation of the new machine and the anticipation that it would require a reduc-
tion in force, the survey was delayed until mid-November, more than 4 months
after the new machine was ordered, and a time which coincided with the Union's
organizational campaign. When asked to explain this delay, Berger answered only
that the time selected for the survey was "convenient" for him. Moreover, Berger
admitted that this was the only survey ever made, and there is apparent conflict
between his testimony and Mallien's as to the purpose of the survey. According to
Berger, its only purpose was to afford a basis for layoff in the event the new machine
was effective. Thus, when asked why no later surveys had been made.13 Berger
explained that he had had no further occasion to purchase new machinery. How-
ever, Mallien asserted that the purpose of the survey was to establish a record basis
for promotions and demotions. as well as layoffs.14 But this explanation is contra-
dicted not only by Berger's aforestated insistence that there was no need for a survey
apart from reduction-in-force situations, as well as by the admitted fact that none
of the employees newly hired in 1963 were subjected to the survey procedure as a
basis for promotions or demotions. The fact that the two individuals who ad-
mittedly were responsible for the institution of the survey were unable to agree on
]1 According to that exhibit, Respondent produced 137 tons In November with 2,742 man-
hours as against 131 tons in December with 2,776 man-hours.
'= At the hearing, I overruled General Counsel's objection on hearsay grounds, to the
admissibility of the written ratings made in the survey, stating that such ratings were
being received in evidence only for the purpose of showing Berger's reason for selecting
Friday and the two others for layoff, and not to prove that they were in fact inferior to
the other employees ; and the Issue of the actual competence of the three employees was
not in fact litigated. Accordingly, I have considered the ratings only insofar as they bear
on the question whether, in selecting Friday, Archey, and Miller for layoff, Berger honestly
believed that they were the least desirable employees, and not as proof that they were in
fact inferior.
13A number of new employees were hired in 1963, who admittedly were not subjected to
the survey procedure.
34 Mallien also gave an additional, rather curious, reason for the survey-namely, that.
It was first proposed by him as a means of forcing Hoots to rate himself, In the hope that
it would bring him to realize his deficiencies in certain areas. This reason is nowhere
mentioned by Berger.
BERGER POLISHING, INC. 29
its function, and that one of them-Mallien-demonstrably overstated that function,
raises a serious doubt as to the genuineness of any of the reasons assigned by Re-
spondent for making the survey.
In view of the foregoing considerations militating against the, cogency of the
reasons assigned by the Respondent for its layoff action, I find that the evidence
preponderates in form of a finding that such reasons were pretextual and that the
true reason was the one implied in Berger's remarks to Harenda and Miller-namely,
the union activity of the three laid-off employees. Accordingly, I find that by such
layoffs the Respondent violated Section 8(a)(3) and (1) of the Act.
2. The discharge of Archey
Archey was notified on February 8 to report to work on February 11.15 He in
fact reported on February 13, and was given full-time work on the day shift at his
former rate.
As found above, on February 18, Berger interrogated Archey about his union
sentiments, and, upon receiving evasive answers, told Archey in effect that he was
not covered by Respondent' s group insurance plan because he was not a "loyal
employee." 16 He was discharged on March 18. Respondent contends that he
was discharged because of absenteeism and tardiness, as stated in his discharge
notice.17 The record, including Archey's timecards, shows that between February 13
and March 18, Archey was late on three occasions, for periods varying from one-
half hour to 2 hours, and absent twice, the last such absence occurring on March 18.
According to Berger, it was this absence that finally moved him to discharge Archey.
Although Archey testified extensively, he failed to offer any explanation of these
derelictions.18 Archey denied, however, that he was ever warned about his tardiness
or absences. Berger, on the other hand, testified that he instructed Hoots early in
March to warn Archey of discharge for continued absences or tardiness. As there
was no contradiction of either of the foregoing statements, the conclusion is war-
ranted that Berger did so instruct Hoots but that he did not carry out the instruction.
Berger testified credibly that the absence of any member of Respondent's four-
man crews substantially reduced the efficiency of the rest of the crew, and Respond-
ent's personnel records for 1963 show at least two other instances of discharges for
absenteeism.19
The General Counsel's theory appears to be that, after rehiring Archey despite
his known union proclivities, the Respondent had a change of heart and decided to
discharge him as soon as it could find a convenient pretext. However, the record
suggests no reason for this change of heart other than the possibility that Archey's
unsatisfactory answers to Berger's interrogation on February 18 may have dashed
any hopes that Archey could be weaned away from the Union. If so, it is not clear
why Respondent withheld any action until March 18. Archey was one-half hour
late on February 16, 2 hours late on February 21, three-quarters of an hour late on
February 23, and he was absent all day on February 25. It would seem that, if it
were merely seeking a pretext to discharge him, Respondent would have done so on
February 25 or shortly thereafter, and would not have tolerated him for another
3 weeks.'°
Accordingly, while the matter is not free from doubt, I am not satisfied that the
evidence preponderates in favor of a finding that Archey was discharged for dis-
criminatory reasons.
1s See General Counsel's Exhibit No. 11.
19 As noted above, however, there. is insufficient basis for finding that Berger in fact ln=
tended to exclude Archey from the insurance plan.
17 Although that notice also makes reference to Archey's failure to wear glasses at work,
the Respondent denied at the hearing that this was a substantial factor in his discharge.
Accordingly, I do not deem it necessary to evaluate the evidence adduced by the General
Counsel to justify Archey's failure to wear such glasses.
18 He adverted only to an occasion (not reflected in his timecards) when he was allegedly
permitted to leave work at 2:30 p.m. to renew his automobile license plates.
19 See "Dale Johnson" and "Wayne LaGarde" in the joint exhibit.
=9 Another reason suggested in the General Counsel's brief for Archey's discharge is that
it was part of a plan by Respondent to recall each of the laid-off employees in succession,
but not simultaneously, so as to avoid restoring the Union 's majority status. I find no
merit in this contention. See footnote 21 below.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Friday's second "layoff"
As already noted, Friday was recalled on March 20 and worked through the 22d.
On that date, he indicated to Berger that, due to a prior commitment, he preferred
not to work the next day, a Saturday, and he did not report that day. The next
Monday morning, March 25, Berger telephoned Friday, and, according.to Berger's
testimony, hold him not to report until the following day. However, according to
Friday, Berger told him on Monday morning that he was being laid off due to a
change in work schedule and would be notified when to return to work. About
4 o'clock that afternoon, most of Respondent's employees struck, one of the reasons
for the strike being the alleged layoff of Friday. He joined the strikers and has not
since been recalled.
It is General Counsel's position that Friday was laid off until further notice on
March 25, and that such layoff was because of his union activity. Respondent, on
the other hand, contends that he was merely notified that his workweek would begin
on Tuesday instead of Monday.
While I have found that Respondent discriminated against Friday by laying him
off on December 31, and by delaying his recall until March 20, I fail to perceive
why, after recalling him despite his past union activities, the Respondent would want
to lay him off again, only 5 days later, because of such past activities.21
Moreover, the record shows, and I find, that about 4 p.m. on March 25, when in
a bargaining session Harenda raised the issue of Friday's "layoff," he was told by
Berger that Friday had not been laid off but merely notified not to report for work
until the next day 22
Under all the circumstances, I am disposed to credit Berger here, and find that he
did not notify Friday that he was being laid off pending further notice, but only
that he was not to report for work until the next day.23 I conclude therefore that
there was no discrimination against Friday on March 25.
C. The refusal to bargain
1. The appropriate unit: The Union's majority status
There is no dispute that, as found by the Board in the representative proceeding,
all Respondent's production and maintenance employees at its Wauwatosa, Wiscon-
sin, plant, excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for collective bargain-
ing. On the basis of the election held by the Board on December 26, the Union
was certified on January 5 as the exclusive bargaining representative of the em-
ployees in the foregoing unit.
2. The negotiations
a. The pleadings
The complaint, as amended at the hearing, alleged that: (1) Respondent has since
January 15 refused to negotiate with the Union in good faith concerning terms and
conditions of employment; (2) on or about January 2 and thereafter Respondent
n There is no evidence that Friday engaged in any new union activities during the
period of his recall.
At the hearing, and in his brief, the General Counsel suggests that Respondent's plan
was to recall the laid-off employees in rotation to avoid restoring the Union's numerical
majority of one, and that this explains why Respondent discharged Archey before re-
calling Friday. Presumably, the General Counsel's theory is also that Friday was "laid
off" to make room for Miller (who, however, declined rehire, as found above). The diffi-
culty with this theory, apart from its speculative character, is that Respondent could
have simultaneously rehired any two of the three without restoring the Union's majority
status, as shown by the election results. Moreover, in view of the relatively high turnover
in February and March, the results of the December election were no longer a reliable
measure of the Union's strength.
22 Mallien's testimony to this effect is corroborated by the admission of Pearson, the
president of the Union, that Respondent stated at the March 25 bargaining session that
Friday had been told to report the next day.
23 It is clear, in any event, that, even if Berger in the morning of March 25 did lay
Friday off indefinitely, for whatever reason, such action was in effect rescinded at 4 p.m.,
the same day, when, as found above, Berger announced to the union representatives that
Friday had not been laid off but was scheduled to work the next day.
BERGER POLISHING, INC. 31
unilaterally changed existing wage rates; and (3) on or about March 25, Respond-
ent unilaterally changed the existing workweek. The complaint charges that by the
foregoing conduct Respondent violated Section 8(a)(5) and (1) of the Act.
Respondent denies the foregoing allegations and pleads certain affirmative de-
fenses, which will be considered below.
b. Chronology
It is undisputed that the first bargaining meeting occurred on January 15, and
that there were subsequent meetings on February 5 and 19, March 1 and 25, and
April 2 .24 Berger and Mallien represented the Respondent at all these meetings.
The Union was represented at all meetings by Pearson, its president, and' at the
January 15 and March 25 meetings by International Representative Reinhardt. The
Union's attorney, Shneidman, attended the April 2 meeting.
It is clear that in mid-March the Union submitted Respondent's contract pro-
posals to the employees, who voted to reject them, and that on March 25 the em-
ployees struck because of their dissatisfaction with the progress of the negotiations.
c. The contract issues
Shortly before February 5, the Union submitted a complete contract proposal and
on that date and on March 1, the Respondent submitted various counterproposals.
Agreement was reached on a number of matters, including recognition, vacation
pay, grievance procedure, seniority, and probationary employment, and at the hear-
ing the General Counsel conceded that there was full discussion of these and other
matters.25 He contended, however, that with regard to the contract issues, the
Respondent's bad faith was evidenced by its position on wages, arbitration, plant
relocation, subcontracting, and union security. These topics will be considered
seriatim.
(1) Wages
Berger testified that' on November 26, after receiving the Union's request for
recognition, he consulted with Mallien as to what position to take on the Union's
request for recognition and expressed to Mallien the view that he (Berger) was the
"best determiner" of wage rates but was willing to make an effort to raise such
rates. He elaborated at the hearing that he felt that he had to be the "prime
determiner" of wage rates because of certain geographic factors which placed his
operations in Milwaukee at a competitive disadvantage with those of his competitors
in Chicago. Specific wage proposals were submitted by both parties at the Febru-
ary 5 meeting. The Union's written proposals called for general increases in the
minimum rates of each classification, which amounted to at least 35 cents an hour
for machine operator, 45 cents an hour for assistant machine operator, and 55 cents
an hour for helpers. However, during the negotiations the only specific figure men-
tioned by the Union, according to Pearson, was a 25-cent general increase. The
Respondent countered with a proposal for an increase in the minimum hourly rate
for assistant machine operator (or learner operator) from $2.05 to $2.10 and for
no other change in the existing minimum rates.26 According to Berger, the fore-
going 5-cent increase for assistant machine operators was placed into effect on or
about February 5. In fact, the record shows that during the negotiations two em-
ployees (Clifford and Fassell) were raised to $2.15, which was 5 cents more than
24 Pearson testified, contrary to Mallien and Berger, that the parties also met on Febru-
ary 1 and March L8 or 19. As Pearson indicated some confusion about the date of the
alleged meeting on March 18, I find that he was in error as to that date, and that there
was no such meeting. Also as to February 1, I deem more reliable the recollection of
Berger and \Iallien that, while a meeting was scheduled for that date, it was postponed
until February 5.
25 Tr. 712.
-Except that Respondent's proposal of a uniform starting rate of $1.85 an hour for
helpers was arguably more favorable to the employees than the existing practice, which
was to pay from $1.75 to $1.85, depending on Respondent's judgment of the applicant.
(While under the "probation" clause proposed by the Respondent, during the first 60 days
of employment an employee's rate was fixed at 10 cents below the minimum for his classi-
fication, which would mean that helpers would actually start at $1.75, Respondent offered
to waive this 10-cent differential for probationary employees. The net effect was to re-
instate the original proposal for a flat $1 .85 starting rate.)
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's proposal. Berger attempted to explain the extra 5-cent increase to I
Clifford on the ground that it was in the nature of a merit increase given simultane-
ously with the increase in job rate. As to Fassell, Berger explained that he was
given the extra 5 cents because he had shown exceptional aptitude in learning to
operate machines, thereby implying that before the raise Fassell was already a
learner operator. However, the record shows that immediately prior to his raise
to $2.15, Fassell's rate had been $1.95, which was the rate of a helper and not the
$2.05 rate which was then paid to learner operators. I find therefore that it was
not until he received the raise that Fassell became a learner operator and that his
new rate of $2.15 was therefore necessarily the new minimum rate for learner
operators and not to any extent based on merit.
Berger admitted that the Union was not consulted with regard to the foregoing
raises. I conclude therefore that Berger, during the negotiations, unilaterally in-
creased the minimum rate for assistant machine operators and that the amount of
such increase was 5 cents greater than that offered to the Union. I find that such
unilateral increase constituted a per se violation of Section 8(a) (5) of the Act.27
The "Management Rights" clause: In addition to the foregoing minimum rates,
the Respondent included in its wage proposal a reservation of (1) "the right to
establish or pay rates of pay in excess of" such minimum rates "whenever it-con-
siders it advisable to do so" and (2) the right to adopt incentive pay and bonus
plans "whenever and to the extent it deems prudent." According to Mallien, the'
union representatives on February 5 voiced no objection to this language. Pearson
disputed this. At any rate, there is no contradiction of the testimony of Shneidman,
the Union's attorney, which I credit, that at the final meeting on April 2, which he
attended, he pointed out that the foregoing clauses were incompatible with the prin-
ciple of collective bargaining, and that Berger rejoined only that the Respondent
wanted to be free to base increases on individual merit. The bearing of these cir-
cumstances on Respondent's good faith will be considered later.
Merit increases: It is undisputed that, after the Union's certification, Respondent,
in accord with its preexisting practice, made a number of merit increases 23 and
that the Union was not apprised of the specific increases. . The General Counsel
contends that such unilateral action was unlawful. The Respondent seeks to justify
such increases on the basis of (1) its past practice, (2) the fact that the Respond-
ent did not decline to discuss the merit increases with the Union, and. (3) the fact
that International Representative Reinhardt, at the first bargaining session (on Janu-
ary 15), indicated that he was not concerned with any increases to individual em-
ployees above their minimum rates, but only with the establishment of minimum
rates. As to (1) and (2), the Supreme Court's holding in the Katz case, supra,
appears to be a sufficient answer. As to (3) Pearson admitted' that at the Janu-
ary 15 meeting Respondent explained its practice of giving merit increases, and that
Reinhardt indicated indifference to the matter. Pearson insisted, however, that he
took a different view, demanding that the Union be consulted about such increases.
Mallien disputed this, saying that the only reaction to the Respondent's explanation
of its policy was Reinhardt's statement that the Union was interested only in mini-
mum rates and had no objection to the Respondent's paying more than the minimum.
As I deem Mallien's recollection to be more reliable than Pearson's, I credit him and
find that Reinhardt, without any dissent from Pearson, indicated to Respondent, in
effect, that it was free, pending the negotiation of a contract, to continue its practice
of granting merit increases, and that Respondent's failure to consult the Union
thereafter about specific increases was therefore not per se unlawful.29
(2) Arbitration
While the Union had at the initial meeting on January 15, indicated a desire for
an arbitration provision, its proposed contract provided only for a 3-step grievance
procedure, culminating in submission of the grievance by the Union and a shop
n N.L.R.B. v. Benno Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736.
In view of this finding, it is not necessary to consider whether it was also per se unlaw-
ful for the Respondent to place in effect unilaterally. the flat $1.85 starting rate discussed
above. (While Berger testified that he did so, about February 5, Respondent's payroll
records show hirings at $1.75 thereafter.)
n Berger's own testimony , as supplemented by payroll records, shows 20 increases since
January 5, of which 5 were attributable to night-shift premiums, and others appear to
have been due to changes in classification . However, at least nine are explainable only as
merit increases.
29 Lloyd F. Richardson , Sr., et al., Richardson Manufacturing Company, 109 NLRB 136 ;
Montgomery Ward cE Co ., Incorporated, 137 NLRB 418.
BERGER POLISHING, INC. 33
committee to Respondent. The Respondent proposed a 2-step procedure, culminat-
ing in presentation of the grievance by the aggrieved employee to Respondent's
president, and authorizing the Union to intervene. Thus, neither proposal provided
for arbitration. Mallien's testimony that the Union on March 1 at least tentatively
accepted the Respondent's proposal is corroborated by Pearson.
As it is clear that the Union did not include a request for arbitration in the
written proposals presented to the Respondent early in February, and as there is no
evidence that it thereafter made'such a request, there is no basis for finding that
Respondent's position with respect to arbitration reflected bad faith.30
(3) Plant relocation
On March 1, the Respondent submitted a proposal that it be "the sole judge of
the appropriate location of its place or places of business and of the work to be
performed at all such locations." According to Mallien, it was explained to the
Union that Respondent had in the past considered the advantages of operating in
Illinois and had in fact obtained a license to do business there, and that the purpose
of the provision was to avoid the effect of certain court decisions limiting the right
of an employer to move his plant, in the absence of an expense reservation of that
right in its collective-bargaining contract. The proposal was again discussed on
March 25 and April 2, without any agreement being reached. According to Pearson,
the Respondent insisted that the contract would have to contain the foregoing pro-
visions. Mallien denied that the Respondent took the position that it would not
execute a contract unless it contained the foregoing clause.
While the plant relocation clause itself is not clear on this point, Berger admitted,
and Respondent's brief concedes,31 that its purpose was, inter alia, to relieve the
Respondent of any obligation to bargain with the Union about a decision to move
the plant. As the Act, as construed by the Board,32 imposes such a duty, it is clear
that the Respondent was seeking by the plant relocation clause to exact from the
Union a waiver of its bargaining rights under the Act. Whether or not Respondent
expressly took the position that there could be no contract without the foregoing
clause, it is clear that it adhered to this proposal as late as April 2, when negotiations
were.broken off, despite repeated rebuffs by the Union.
(4) The subcontracting clause
On March 1, Respondent proposed a clause giving it "sole discretion" to sub-
contract any of its work to any other firm. Mallien admitted that the purpose of
this clause was to avoid the effect of "recent decisions" requiring employers to bar-
gain about a decision to subcontract, and that this was explained to the Union.
Presumably, he had reference to such Board decisions as Fibreboard,33 which hold
that an employer may not subcontract work performed by employees in the bargain-
ing unit without first affording their statutory representative an opportunity to bar-
gain about the matter. It is thus clear that Respondent's object was to exact a
waiver of the Union's right to bargain about subcontracting. Mallien stated that
the foregoing clause was rejected by the Union on March 1 and not discussed there-
after. However, he admitted that on March 25, subcontracting was still one of the
unresolved issues, and there is no evidence of any offer by Respondent on March 25
or thereafter, to modify its position on that issue, notwithstanding that it is clear
that at least one of the reasons for the strike on that date was the unsatisfactory
state of the negotiations.
(5) Union shop
In its initial proposed contract, the Union included a provision requiring all the
employees to join the Union after the statutory grace period. It is undisputed that
30 It appears, In any event, that General Counsel has abandoned his contention on arbi-
tration, as his brief makes no reference thereto.
31 See page 20 of that brief.
32 E.g., Brown Truck and Trailer Manufacturing Company, Inc., et al.. 106 NLRB 999;
T. A. Tredway and S. E. Taylor, partners d/b/a Diaper Jean Manufacturing Company,
et al., 109 NLRB 1045, 1065.
°3 Fibreboard Paper Products Corporation, 138 NLRB 550 , enfd . sub nom. East Bay
Union of Machinists , Local 1304, United Steelworkers of America, AFL-CIO, etc. v.
N.L.R.B., 322 F. 2d 411 (C.A.D.C.) ; Town & Country Manufacturing Company, Inc.,
et al., 136 NLRB 1022, enfd. 316 F. 2d 846 (C.A. 5).
756-236-65-vol. 147-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this clause was discussed at most, if not all, meetings, that the Union insisted on its
adoption, and that the Respondent rejected it on the ground that it did not believe
in coercing its employees with regard to union membership.
In its brief Respondent contends that the union-shop proposal was not a manda-
tory bargaining subject, in view of its alleged illegality under Wisconsin law and
hence under the Federal Act. Under the latter Act, the legality of any union-shop
agreement covering Respondent's employees would, depend upon the construction of
Section 8(a)(3), in conjunction with Section 14(b), of the Act. Section 8(a)(3)
forbids any employer-discrimination against employees to encourage (or discourage)
union membership, but permits, under conditions not here relevant, the execution
of union-shop agreements. Section 14(b), however, provides that nothing in the
Act "shall be construed as authorizing the execution or application of agreements
requiring membership in a labor organization as a condition of employment in any
State" where such execution or application is "prohibited."
The Wisconsin Employment Peace Act permits union-shop agreements if approved
by two-thirds of the employees in a secret ballot election conducted by a State
agency.34 The Board early held that State laws, like that of Wisconsin, which do
not categorically outlaw union-shop provisions but permit them if certain conditions
are met do not "prohibit" such provisions within the meaning of Section 14(b), and
that in such States union-shop agreements are lawful under the Federal Act, whether
or not the conditions prescribed by State law are met 35 However, the subsequent
decision of the Supreme Court in the Algoma Plywood case,36 cited by Respondent,
casts serious doubt on the continuing validity of these Board precedents. Accord-
ingly, for the purpose of this discussion, it will be assumed that, if the Respondent
could not have accepted the union-shop proposal without violating State law, such
action by the Respondent would also have been illegal under Federal law.
It is clear that, if the Union had in fact proposed unconditionally that the Re-
spondent execute a contract containing a union-shop clause, without an election,
Respondent would have violated State law had it agreed to such proposal; and it
is true that the Union's written union-shop proposal was unconditional, and made
no reference to a union-shop election. However, Pearson testified that at one of
the meetings the parties "discussed the fact that we would have to have a State
election sooner or later" to validate any union-shop provision, and that on various
occasions Berger and Mallien asserted that Respondent would not grant a union
shop even if all the employees voted for it in a State referendum. While Mallien
denied that there was any such discussion, Berger's testimony is silent on this point.
Moreover Respondent fails to explain why, as Mallien admitted, the issue of the
legality of the Union's proposal was not raised by him until March 25, and then
only in conjunction with a discussion of the legality of the strike called on that date.
Nor was there any explanation for the fact that, as Mallien and Berger conceded,
Respondent, on April 2, indicated that it was willing to consider maintenance of
membership as an alternative to union shop, and invited the Union to submit appro-
priate language, although under Wisconsin law maintenance of membership was sub-
ject to the same restrictions as union shop.37 Absent any other explanation for
Respondent's apparent indifference to the illegality of the union shop or of Respond-
ent's solicitation on April 2 of a maintenance-of-membership proposal, I credit
Pearson, and find that the parties recognized during the negotiations that any agree-
ment that might be reached on a union-security clause would be conditioned on the
result of a State referendum.
Respondent contends that, even so, a union-shop proposal so conditioned would still
violate State law, the proper procedure being to hold an election before submitting
any proposal on a union shop to the employer. However, Respondent fails to cite
any persuasive authority on this point,38 or, at least, any authority that is more
39 Sec . 111.06(1) (c)1 of the Wisconsin Employment Peace Act.
35 Northland Greyhound Lines, Inc., 80 NLRB 288 ; Safeway Stores, Inc., 81 NLRB 387.
33 Algoma Plywood v. Wisconsin Employment Relations Board, 336 U.S. 301, 314. While
the precise question there was the validity of the Wisconsin Board's finding that the
"application" of a union-security clause by discharging an employee was unlawful, it seems
arguable that the rationale of the Court's decision upholding such finding would support
the invalidation of the clause, itself, because it did not meet the requirements of State law.
37 See Algoma Plywood v. Wisconsin Employment Relations Board,- supra. .
33 The two State board cases cited in Respondent's brief merely hold that it is proper to
conduct a union-shop referendum, even though the employer is opposed to a union shop.
Respondent relies on dicta in those cases , which might be construed to imply that it would
be illegal to seek a union-shop agreement without such a referendum.
BERGER POLISHING, INC. 35
persuasive than the language of Section 111.06 ( 1) (c) 2 of the Wisconsin Employ-
ment Peace Act , itself, which provides that no employer may petition for a union-
shop referendum unless he has "made an agreement with [a union] that he will
make a contract for an all-union shop if it is determined as a result of the referendum
held by the Board that his employees duly approve such all-union shop." [Emphasis
supplied.]
It is clear therefore that Wisconsin not only does not forbid , but expressly sanc-
tions, conditional union-security agreements in advance of a referendum.
Accordingly , I find , that the Union 's proposal for a union shop was understood
by the parties to be conditioned on the results of a State referendum , that Respond-
ent's assent to the proposal , as so conditioned , would have constituted a legal
union-security agreement under State law, and , hence, under Federal law , and that
such proposal was therefore a mandatory bargaining subject.
The question remains whether Respondent refused to bargain in good faith con-
cerning union security . As indicative of its good faith , Respondent cites the testi-
mony of Mallien , partly corroborated by Berger , that , soon after receiving the
Union's request for recognition, Berger conferred with Mallien and it was tentatively
agreed that , while Respondent would oppose any demand for a union shop, Re-
spondent would accept some lesser form of union security if that was necessary in
order to secure an agreement . It is undisputed , moreover, that maintenance of
membership as an alternative for union shop, was discussed at the final meeting of
April 2, and, as already noted, Mallien indicated some interest in the matter , inviting
the Union to submit a proposal . So far as appears from the record, none was ever
submitted . As the Union thus failed to test the genuineness of Respondent's interest
in a maintenance -of-membership clause, there is insufficient basis for finding that
Respondent was inflexible on the subject of union security generally. While it is
undisputed that Respondent was adamantly opposed to union shop, as such , that fact
alone does not suffice to demonstrate bad faith 39
The General Counsel, however , relies on a particular aspect of Respondent's
bargaining on union shop as evidencing bad faith-namely, alleged threats to close
the plant rather than agree to a union shop. Pearson testified that on February 1,
in rejecting the union-shop proposal , Mallien remarked to Berger that, if the Union
was going to insist on such a proposal , Berger might be well-advised to move the
plant to Illinois or close it and take an extended vacation in Florida ; and that simi-
lar remarks were made at subsequent meetings whenever union shop was discussed.
However, Mallien and Berger asserted that the only reference to a move to
Illinois was made in connection with the discussion of the Respondent 's reason for
proposing a plant relocation clause 40 Berger admitted that some reference was
made to a Florida "vacation," but explained that this was in the context of a facetious
offer by him to sell the plant to the Union, in view of its wage and union-shop de-
mands. It appears therefore that it is not disputed that the foregoing remarks about
moving to Illinois or retiring to Florida were made, the only issue being as to their
context. As I have found Pearson 's unsupported recollection unreliable on other
points, I am not persuaded that the evidence preponderates for a finding against
the Respondent on this point. Accordingly , I find no merit in General Counsel's
contention that Respondent threatened to move or shut down rather than yield on
union shop.
In sum, therefore , on the union-shop issue, I find that it was a mandatory subject
of bargaining , but that Respondent 's position on that issue, considered above, does
not afford any evidence of bad faith.41
(6) Conclusions on 8(a ) ( 5) issue
(a) "Per se" violations
It has been found that Respondent violated Section 8 ( a)(5) and ( 1) of the Act
by its unilateral institution for at least one classification of a wage increase higher
39 McCulloch Corporation , 132 NLRB 201, 211.
40 See discussion of this clause , above.
111 find no merit in the further allegation of the amended complaint that on March 25,
Respondent unilaterally changed the existing workweek . This apparently has reference to
the circumstances of Friday 's alleged second layoff . The only evidence of such a change
in workweek consists in Friday's testimony that that was the reason assigned to his layoff.
However, I have found that all that happened was that Friday , rehired as a part-time
employee on March 20 , was told on March 25, there would be no work for him until the
next day. In any case, this contention seems to have been abandoned as it is not men-
tioned in General Counsel 's brief.
36 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
than that offered to the Union. It seems arguable also that other such per se viola-
tions are established by Respondent's insistence on removing from the area of
collective bargaining such matters as wage increases, the institution of incentive
plans, subcontracting, and plant relocation.
While the Supreme Court has held that an employer's insistence on a manage-
ment prerogative clause is not per se unlawful,42 the clause in that case was not as
far-reaching as those here involved but sought to remove from the area of collective
bargaining only such issues as work scheduling, promotions, demotions, hire, dis-
charges, and discipline. Here, the management prerogative clause on wages would
have permitted the Respondent to grant unilaterally general, as well as individual,
increases during the term of the contract and even to make unilaterally such a radical
change in the entire wage structure as the institution of an incentive plan. In-
sistence on such broad unilateral power would seem to go beyond the limits contem-
plated by the Court in American National,43 as it involves curtailing the Union's
bargaining rights not merely in peripheral areas, but at their very core. This is
also true of the Respondent's efforts to eliminate the Union's bargaining role in the
area of subcontracting and plant relocation, so as to deny to the employees such
protection as the Union was entitled to afford them against mass discharge, a matter
of no small concern to them. However, in view of my other violation findings
herein, and, as I am not aware that the Board has heretofore considered the impact
of American National on clauses such as were here proposed, I do not undertake
to resolve that issue here.
(b) Good faith
It remains to be considered whether Respondent's entire approach to bargaining
was permeated by bad faith=that is, a desire to avoid, rather than reach, agreement.
The mere fact that Respondent insisted on the Union's abdication of its role in cer-
tain areas, including the vital area of wages,44 concessions which Respondent could
not reasonably expect any self-respecting union to make, is persuasive evidence that
Respondent had no sincere desire to reach agreement.
Moreover, it is appropriate to evaluate Respondent's conduct at the bargaining
table against the background of its other conduct.45 The record shows that the
Respondent conducted a vigorous and carefully planned preelection campaign, that
after the election Berger repeatedly avowed to employees his hostility to the Union
and his determination to resist its demands, and, even, to ignore its views,46 that
he discriminatorily laid off three union adherents, including Friday, an outstanding
proponent of the Union, and discriminatorily delayed rehiring Friday and Miller,
and that Respondent interrogated employees, threatened reprisals, and offered them
inducements to abandon the Union, and that it unilaterally changed the rate for
assistant machine operator.
As stated by Trial Examiner Leff in "M" System, Inc., etc., supra, "It is difficult
to reconcile the Respondent's efforts to defeat its employees' statutory rights with a
simultaneous sincere desire . . . to find some mutually satisfactory basis for agree-
ment with the Union."
Nor does the fact that, as General Counsel in effect conceded, Respondent reached
agreement with the Union on a number of issues on the basis of give-and-take dis-
cussions negate the view that Respondent was thereby engaging merely in surface
"N.L.R.B. v. American National Insurance Co., 343 U.S. 395.
43 Indeed, the Court there made it clear that it was passing only on the particular clause
before it and not on one that would involve, as here, evasion of an employer's duty to
bargain about wages. See N.L.R.B. v. American National Insurance Co., supra, at 409.
44 See "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB
527, 551, 552.
ss The Cambria Clay Products Company, 106 NLRB 267; "M" System, Inc., Mobile
Home Division Mid-States Corporation, 129 NLRB 527, 548.
4° Witness, his statement to Rottler, which, even if one credits Berger's version, was to
the effect that no union was going to tell him how to run the "internal affairs" of his
plant. In view of this admitted statement to Rottler, I credit Slipper's tesimony, dis-
puted by Berger, as to a similar statement made by Berger to the night shift on Decem-
ber 26. However, I do not rely on Slipper's testimony that on the same occasion Berger
declared that he would fight '.'to keep the Union out" of,the plant. As the Union had just
won the election, it seems more likely that, as Slipper testified elsewhere, Berger said
only that he would fight the Union. However, even this statement implied , if nothing
else, a determination to retain unilateral control of working conditions and to reject any
union demands.
BERGER POLISHING, INC. 37
bargaining. Such agreements as were reached did not, so far as the record shows,
necessarily involve any substantial modification in Respondent' s existing practices.
Thus, even the new grievance procedure merely permitted presentation of a griev-
ance, without curtailing Respondent's ultimate discretionary power over the disposi-
tion of the grievance. The seniority clause, while proposing to give weight to
seniority where "skill and ability are equal," is debilitated by the proviso that the
Respondent will be the "sole judge" of ability 47 Mallien admitted at the hearing
that the "Probation" clause was not necessarily more favorable than past practice,
and there was no affirmative showing that this was true of any of the other clauses48
There remain only the arguable 49 increase in the hiring rate for helpers, and the
5-cent an hour increase for assistant machine operators, offered to the Union, which
together could have affected only a minority of the employees, and, in any event,
would have had only a negligible total impact on earnings in comparison with the
Respondent's unilateral largesse in the matter of merit raises.
Accordingly, upon consideration of the totality of Respondent's conduct, it is
found that Respondent since January 15, bargained in bad faith, thereby violating
Section 8(a)(5) and (1) of the Act.
D. Refusal to reinstate strikers
As noted above, on or about March 10, the employees voted to reject the Re-
spondent's contract proposals and on March 25, they struck. Some, but not all, of
the strikers have since been rehired. The General Counsel contends that the strike
was prompted by Respondent's unfair labor practices and that all the strikers are
entitled to reinstatement with backpay from March 28, when they allegedly made a
valid offer to abandon the strike. The Respondent contends, inter alia, that the
strike was merely economic and that the March 28 offer was not valid in any event,
as it was conditioned on the Respondent's taking back all of the strikers simultane-
ously. The reason for the strike'will be first considered.
About noon on March 25, Harenda, the union steward, who had attended some, at
least, of the bargaining sessions , received a telephone call from Friday, claiming that
he had been laid off due to a change in "work schedule." This news was reported
by Harenda to the other employees, who decided to strike at 2 o'clock that after-
noon. This deadline was later extended at the suggestion of Harenda, who pointed
out that there.was a bargaining session scheduled for 4 o'clock that afternoon, and
proposed in effect that, if Respondent before 4:15 gave Harenda a "satisfactory
answer" on the issues of wages, union security, and the reemployment of Friday,
Archey, and Miller, Harenda would so advise the employees at that time, in which
case there would be no strike, but that, if Harenda did not emerge from the meeting
by 4:15, the employees should walk out 50
According to Pearson, Harenda opened the March 28 bargaining meeting with the
announcement that the men would strike unless Respondent indicated it was willing
to change its position, or (as Pearson put it elsewhere) discuss a change of position,
on union security, wages, "and other conditions of employment," and that some
reference was also made by Harenda to a change of position on Archey, Friday, and
Miller.
According to Mallien, Harenda announced at the opening of the March 25 meet-
ing that, unless Respondent "agreed to wages and union shop," there would be a
strike at 4:15, and that Harenda also inquired about Friday's status.51
47 See Respondent's Exhibit No. 10 and tr. 726.
48 While there was a suggestion in Mallien's testimony that the agreement reached on a
10-cent differential for the second and third shifts represented a concession by Respondent,
it is clear from Berger's testimony, and I find, that it was existing practice to pay such
differential on both those shifts.
As for vacation pay, Berger testified in effect that it was existing practice to grant
1 week's paid vacation to those employed for 5 months to 1 year, and 2 weeks to those
employed 1 year or more, which is essentially all that is allowed under the parties' agree-
ment, except for a provision, requested by the Union, for 3 weeks' pay for those employed
15 years or more. As no current employee had more than 4 years' service, this last provi-
sion had no practical significance.
While Mallien testified that there was agreement on insurance 'benefits such agreement
admittedly consisted merely in Berger's undertaking to ascertain whether it would be
possible to increase existing benefits without increasing Respondent's contribution.
49 See footnote 26, above.
50 The foregoing findings are based on Rattler's testimony, which is substantially cor-
roborated by Schoonover. 13arenda did not testify.
51 Berger was not asked about any of the foregoing events.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude from the foregoing that Harenda's ultimatum was that by 4:15 the
Respondent would either have to announce some concessions on union shop , wages,
and the status of Friday , Archey, and Miller,52 or would have to indicate a willing-
ness to consider granting such concessions.
As to the reaction of Respondent to this ultimatum , Pearson testified that Mallien
indicated that Respondent would not change its position on union shop, wages, or
the three aforenamed employees, and that soon thereafter the men walked out.
Mallien, on the other hand, testified that, after receiving Harenda's ultimatum, he
asked what the Union 's position would be if agreement was reached on wages but
not on union shop, whereupon Reinhardt rejoined in effect that this would not alter
the decision to strike ; that Mallien then invited a discussion of wages, but Harenda
raised the issue of Friday's status; that Berger explained that Friday was not laid off
but was told to report the next day; and that at this point Harenda left the meeting .53
Whichever of the foregoing versions is credited, it is clear that the strike, while
initially planned solely because of Friday's supposed layoff, was postponed pending
a determination by Harenda whether the Respondent was willing to modify its posi-
tion on union shop and wages as well as the status of Friday, Archey, and Miller,
and that Harenda reached the conclusion from the brief discussion at the bargaining
table that followed his ultimatum that there would be no such modification. It is
found therefore that the strike was due to the foregoing issues mentioned in Harenda's
ultimatum.
Insofar as the strike was due to resentment over Friday's "layoff" on March 25, or
Archey's discharge on March 18, both of which have been found not to have been
discriminatory, it would be necessary to hold that it was merely an economic strike.54
Furthermore , as I have found that Respondent 's bargaining with respect to union
security , considered by itself, did not transcend the limits of hard bargaining, it is
arguable that, if the strike was due solely to Respondent 's intransigence on that
issue, it may not be deemed an unfair labor practice strike. As proof that union
shop was the sole cause of the strike , Respondent points to Mallien's testimony that
Reinhardt asserted that the strike would continue until the union -shop demand was
granted . On the other hand, the gist of Pearson 's testimony was that union shop was
not the sole issue. Moreover, neither Pearson nor Reinhardt called the strike, it
having been agreed upon by the employees themselves , without consulting their
representatives , and the ultimate decision whether to strike was left by the employees
to their shop steward , Harenda, who admittedly raised the issue of wages , in addition
to union shop. In view of this, it is manifest that union shop was not in fact the
sole cause of the walkout but that a substantial motivating factor was Respondent's
position on wages, particularly its insistence that any upward change in wages be
based primarily on its unfettered discretion rather than on collective bargaining,
and its concomitant refusal to grant a cost-of-living wage increase to the bulk of the
employees . As such insistence was, as has been found , inherent in Respondent's
unlawful approach to collective bargaining , I find that the strike was due, at least, in
part, to Respondent 's breach of its bargaining obligation , and was therefore an un-
fair practice strike.55
52 Although Mallien makes no reference to any discussion of Archey and Miller on
March 25 , I credit Pearson on this point, particularly in view of Rottler's testimony, cited
above, that Harenda proposed that the status of all three employees be taken up with
Respondent.
53 The meeting continued thereafter with further discussion of wages, but without any
result.
54 Moreover , as to Friday , I credit Mallien 's testimony that Berger told Harenda , before
he left the room, that Friday had not been laid off but told to report the next day . Accord-
ingly, even if Friday had previously been laid off, Berger ' s statement was tantamount to a
rescission of such layoff , thereby eliminating it as a strike issue.
55 Moreover, to the extent that Respondent's discriminatory refusal to recall Miller In-
fluenced the employees ' decision to strike, that factor rendered the strike an unfair labor
practice strike. While the 15-minute strike notice may not have given Respondent ade-
quate opportunity to reconsider its bargaining position, I do not deem that to be material.
There is no requirement that employees , under the circumstances here present , give any
prior notice of intent to strike. N .L.R.B. v. Washington Aluminum Company , Inc., 370
U.S. 9. Accordingly , had the employees struck without any prior notice because of Re-
spondent 's unlawful bargaining tactics, a finding would not thereby be precluded that the
strike was an unfair labor practice strike. A fortiori , the 'fact that the employees did
give prior notice , however brief , does not require a different result.
BERGER POLISHING, INC. 39
It now becomes necessary to consider whether, as the General Counsel alleges, the
Respondent unlawfully refused reinstatement to the strikers. It is undisputed that
on March 29, Respondent received a letter from the Union, on behalf of all the
strikers making an "unconditional" request for their reinstatement, and offering to
abandon the strike if the request was granted. However, this was admittedly in-
tended as an offer to abandon the strike only if all the strikers were recalled as a
group. Although it was in the process of recruiting replacements for the strikers,
Respondent determined that it would not at that time recall any of the strikers other
than Rattler, but, when it offered him reemployment on March 29, Respondent was
told that it must recall all or none. Accordingly, on the same day, Respondent
wrote the Union in effect that, while it would have been willing to recall the strikers
in order of seniority as work became available, it could not rehire them at that time
as a group because of the curtailment of its operations due to diversion of customers'
orders as a result of the strike. On May 6, the Union again wrote the Respondent,
repeating its unconditional request for reinstatement, but this time announcing that
the strike had been abandoned, and Respondent thereafter rehired some of the
strikers. There is no evidence that this second request was meant to be conditioned
on the recall of all the strikers as a group nor is there any credible evidence that it
was so construed.56
The record shows that on March 25 the Respondent's prestrike complement was
15, that, of these, 8 participated in the strike on that date 57 and were listed in the
Union's March 28 letter as desiring reinstatement. Between March 25 and 29, the
Respondent hired 3 new helpers,58 3 more were hired on March 30; 59 and 2 more
on April 6 60 and 10,61 respectively. It is thus clear that, but for such new hires,
the Respondent on March 29 or 30 could have offered immediate reinstatement to
most of the strikers and would have been able to recall the balance within the next
10 days. As already noted, Respondent on March 29 in fact offered reinstatement
to only one of the strikers, Rottler.
As I have found that the strike was due to Respondent's unfair labor practices,
the strikers were entitled, upon appropriate request, to be reinstated to all available
positions, displacing any employees hired after March 25. Moreover, they were
entitled to condition their offer to return upon the recall of all the strikers as a
group 62 That is not to say that Respondent was required to recall them as a group
whether or not it had work for all (after displacing the new hires), but that it was
incumbent upon Respondent to recall immediately as many as it could use (after
displacing new hires) and place the rest on a preferential hiring list.63 This the
Respondent admittedly did not do. Accordingly, I find that Respondent, on March 29,
and, again on May 6, refused to honor a valid request for reinstatement of the
strikers, thereby violating Section 8 (a) (3) and (1) of the Act.64
10I do not credit Berger's inherently implausible testimony that, while recalling some of
the strikers after May 6, he failed to recall others because he believed that they would
return only as a group.
W The Union's March 28 letter lists Archey as a ninth striker. However, as I have
found him to have been validly discharged on March 18, I do not count him as a striker,
entitled to reinstatement.
Kauba and Starling joined the strike on an unspecified date between March 28 and
May 6.
se Geiger, D. Johnson, and Sheevy.
69 Macholl, Grabske, and LaGarde.
80 T. Johnson.
81 Verlinde.
63 Robert S. Abbott Publishing Company, 139 NLRB 1328.
83 There is no reason to believe that the Union would not have acquiesced in such an
arrangement. It is clear from the record that all the Union desired was that the Respond-
ent comply with the Board's ruling in the Abbott case, supra, on the reinstatement rights
of unfair labor practice strikers.
es Respondent contends that the strike was not a protected concerted activity because it
was a "wildcat" strike, not sanctioned by the Union. Respondent here relies on N.L.R.B.
v. Draper Corporation, 145 F. 2d 199 (C.A. 4), and later cases, holding that, when em-
ployees resort to a strike because of dissatisfaction with some action taken by their bar-
gaining agent and to compel it to modify such action, the strike is not protected. However,
that was not the case here. The instant strike stemmed from dissatisfaction with the
Respondent's, not the Union's, conduct and Harenda's ultimatum was addressed to the
Respondent only. Neither Pearson nor Reinhardt dissented from this ultimatum nor made
any effort to head off the strike. In fact, according to Mallien's own testimony, which
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and (5)
of the Act, it will be recommended that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain in good faith with the
Union, which represented a majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be ordered to bargain, upon
request, in good faith with the Union as the exclusive representative of the em-
ployees in the appropriate unit.
Having also found that the Respondent unlawfully refused on March 29 to comply
with the Union's request for reinstatement of the strikers, I shall recommend that,
to the extent it has not already done so,85 Respondent be required to reinstate all
the former strikers (except Friday) 66 to their former or substantially equivalent
positions, without impairment of seniority or other rights and privileges, discharging,
if necessary, any replacements hired on or after March 25. I shall also recommend
that Respondent be required to make the former strikers whole for any loss of
earnings suffered by reason of the discrimination against them, by payment to each
of a sum of money equal to that which they normally would have earned as wages
from March 29,67 to the date of any past or future offer of reinstatement, less their
net earnings during such period. Backpay shall be computed in accordance with
the formula stated in F. W. Woolworth Company, 90 NLRB 289; interest shall be
added to backpay at the rate of 6 percent per annum. Isis Plumbing & Heating Co.,
138 NLRB 716.
It has also been found that Respondent discriminatorily laid off Archey, Friday,
and Miller effective January 2, discriminatorily failed to recall Miller, and dis-
criminatorily delayed recalling Friday until March 20, at which time he was given
a lower paid and less desirable job than he formerly held.68 I shall recommend
I have credited, Reinhardt indicated his adoption of the strike by announcing that it would
continue until the union-shop demand was granted. Finally, It Is clear that a majority of
the employees in the bargaining unit joined in the walkout and that their action, within a
few weeks, received official union sanction. Accordingly, I find no merit in Respondent's
contention that the strike was not protected. See Sunbeam Lighting Company, Inc.,
136 NLRB 1248, enforcement denied 318 F. 2d 661 (C.A. 7) ; R.C. Can Company, 140
NLRB 588.
As for the Respondent's further contention that the strike was unprotected because of
the illegality of the union-shop clause, which was one of the objectives of the strike, it
suffices to note that, as found above, the Union's proposal, as understood by the parties,
was that the union shop be instituted only if approved in a referendum, and that the
proposal was therefore lawful. There Is no evidence that the strikers sought anything
different from such proposal.
As for General Counsel's contention that the Respondent unlawfully discharged the
strikers on March 25, I found no merit therein. 'There was testimony by Pearson that
when the men walked out, Berger exclaimed that be would "fire the whole bunch." This
was denied by Berger. In any event, there Is no evidence that, even if Berger announced
such an intention, it was implemented by giving the employees any actual notice of their
discharge.
ac At the hearing Crowe rejected an offer of reinstatement. Moreover, there is no sub-
stantial dispute that he ignored a prior offer made on May 11. Accordingly, his backpay
will be tolled as of that date. There was conflicting evidence about the circumstances
under which Schoonover failed to report for work, in response to an offer of reinstatement.
That Issue can best be resolved in compliance proceedings.
66 As to him, see the text below.
e7 Except that for the two strikers for whom no positions were available on March 29
or 30 ( see discussion , above), backpay will run from April 6'and 10, respectively, on which
dates replacements for them were hired, and for Kauba and Starling, who first applied for
reinstatement in the letter received by Respondent on May 7, backpay will run from that
date.
08Accordingly, I will not toll backpay for the period of such reemployment.
BERGER POLISHING, INC. 41
that the Respondent be required to reinstate Miller and Friday to the positions they
occupied immediately prior to January 2, or to substantially equivalent positions,
without impairment of seniority or other rights and privileges. I shall also recom-
mend that Respondent be required to make all three whole for any loss of pay
resulting from the discrimination against them, such loss to be computed in the same
manner as provided above with respect to the former strikers 69
In view of the Respondent's unfair labor practices, particularly the discriminatory
conduct found above, there exists a threat of future violations, which warrants a
broad cease-and-desist order.
CONCLUSIONS OF LAW
1. All Respondent's production and maintenance employees at its Wauwatosa,
Wisconsin, plant, excluding office clericals, professional employees, guards, 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.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively in good faith with the aforesaid labor
organization as the exclusive representative of its employees in an appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. By interrogation, threats of reprisals for engaging in concerted activities, and
offering inducements to refrain from such activities, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, and has engaged in unfair labor practices within the meaning
of Section 8 (a)( 1 ) of the Act.
5. The strike of Respondent's employees, called on March 25, was caused by Re-
spondent's unfair labor practices.
6. The Respondent has violated Section 8(a) (3) and (1) of the Act by dis-
criminating against Archey, Miller, and Friday, in the matter of their layoff on Janu-
ary 2, 1963, by discriminating against Friday and Miller in the matter of their recall
from layoff, and by rejecting the reinstatement requests of striking employees re-
ceived on March 29 and May 7.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Berger Polishing, Inc., Wauwa-
tosa, Wisconsin, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with Local 10, Metal Polishers,
Buffers, Platers & Helpers International Union , AFL-CIO as the exclusive representa-
tive of all its production and maintenance employees, excluding office clericals, pro-
fessional employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 10, Metal Polishers, Buffers, Platers &
Helpers International Union, AFL-CIO, or in any other labor organization, by dis-
criminating against employees in regard to their hire or tenure of employment or
any term or condition of employment.
(c) Coercively interrogating employees about, and threatening them with reprisals
for engaging in, concerted activities, and offering them inducements to refrain from
such activities.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right is affected by
the provisos'in Section 8(a)(3) of the Act.
01 In the case of Friday, the period of discrimination runs from January 2 to March 25,
and thereafter from the date that Respondent received his request for reinstatement as a
striker (March 29) to the date of a valid offer of reinstatement. In the case of Archey,
his backpay was tolled by his reinstatement in February to his prior position. As for
Miller, I have found that he was offered only part-time work during the period of his lay-
off. As he was a full-time employee when laid off, such offer was Inadequate to toll
backpay.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
.(a) Upon request, bargain collectively in good faith with Local 10, Metal Pol-
ishers, Buffers, Platers & Helpers International Union, AFL-CIO, as the exclusive
representative of all production and maintenance employees of the Respondent, ex-
cluding office clericals, professional employees, guards, and supervisors as defined
in the Act, with respect to rates of pay, wages, hours of employment, or other con-
ditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) To the extent it has not already done so, offer to the employees named in
Appendix A attached hereto, immediate reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges.
(c) Make whole the said employees, and Leonard Archey, in the manner set forth
in the section of the Trial Examiner's Decision entitled "The Remedy," for any loss
of pay they may have suffered by reason of the Respondent's discrimination against
them.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(e) Post at its plant in Wauwatosa, Wisconsin, copies of the attached notice
marked "Appendix B." 70 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of receipt of this Decision, what steps the Respondent has
taken to comply herewith 71
,0 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the word "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order Is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the word "a Decision
and Order."
nIn the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Robert L. Crowe Herbert R. Rottler
Martin Conners Kenneth C. Slipper
Jack Friday Leland Schoonover
Donald A. Fassell James R. Kauba
Richard Harenda Lloyd E. Starling
Richard Miller
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain in good faith, upon request, with Local 10, Metal Polishers,
Buffers, Platers & Helpers, International Union, AFL-CIO, as the exclusive
representative of all employees in the bargaining unit described below in respect
to rates of pay, wages, hours of employment, or other conditions of employ-
ment, and, if an understanding is reached, embody it in a signed agreement.
The bargaining unit is:
All production and maintenance employees at our Wauwatosa, Wiscon-
sin, plant, excluding office clericals, professional employees, guards, and
supervisors as defined in the Act.
SHURE BROTHERS INCORPORATED 43
WE WILL NOT discourage membership in Local 10, Metal Polishers, Buffers,
Platers & Helpers, International Union, AFL-CIO, or in any other labor organi-
zation, by discriminating against employees in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT threaten our employees with reprisals for engaging in con-
certed activities, nor interrogate them coercively about such activities, nor offer
them inducements to refrain from such activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
Local 10, Metal Polishers, Buffers, Platers & Helpers, International Union,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right
may be affected by the provisos in Section 8(a)(3) of the Act.
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions, to the extent that we have not
already done so, and we will make them and Leonard Archey whole for any
loss of pay suffered by reason of the discrimination against them:
Robert L. Crowe Herbert R. Rottler
Martin Conners Kenneth C. Slipper
Jack Friday Leland Schoonover
Donald A. Fassell James R. Kauba
Richard Harenda Lloyd E. Starling
Richard Miller
All of our employees are free to become, remain, or refrain from becoming or
remaining members of Local 10, Metal Polishers, Buffers, Platers & Helpers, Inter-
national Union, AFL-CIO, or any other labor organization.
BERGER POLISHING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Shure Brothers Incorporated and (I.U.E.) International Union
of Electrical , Radio and Machine Workers of America, AFL-
CIO, Petitioner 1
Shure Brothers Incorporated and (I.U.E.) International Union
of Electrical , Radio and Machine Workers of America, AFL-
CIO. Cases Nos. 13-RO-9622 and 13-ISM-696. May 20, -1904
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election,
executed on August 19, 1963, an election by secret ballot was con-
i Herein called the I.II.E.
147 NLRB No. 10.