Bradley Washfountain Co.

National Labor Relations Board - Board Decisions

May 31, 1950

89 N.L.R.B. 1662 (N.L.R.B. 1950)

In the Matter of BRADLEY WASHFOUNTAIN CO., A CORPORATION and
DISTRICT No. 10, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 13-CA-186.-Decided May 31, 1950
DECISION
AND
ORDER
On January 31, 1950, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Union filed exceptions to the Intermediate Report and sup-
porting briefs; and the General Counsel filed a statement and brief
in support of the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case.2 We adopt the findings, conclusions, and recommenda-
tions of the Trial Examiner but with the substantial additions and
modifications hereinafter set forth.
1. The Trial Examiner found that the Respondent's unilateral
granting of wage increases to its employees on June 30 and October 5,
1948, and the granting of certain holiday pay benefits on July 12,
1948, did not indicate a lack of good faith in bargaining on the part
of the Respondent. For another reason, however, the Trial Examiner
found that on and after October 21, 1948, the Respondent did not
bargain in good faith.3 Although we agree with the Trial Examiner's
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Styles].
2 The Respondent 's request for oral argument is denied , because the record, the exceptions,
and the briefs, in our opinion, adequately present the issues and the positions of the parties.
8 The letter , set forth in the Intermediate Report, which the Respondent addressed to its
employees on October 21, 1948, provided the basis for the Trial Examiner 's conclusion that
89 NLRB No. 215.
1662
BRADLEY WASHFOUNTAIN CO . 1663
conclusion that the Respondent did not bargain in good faith with
the Union, we differ with his resolution of the issues presented by
the Respondent's June 30, July 12, and October 5 announcements.
As set forth in the Intermediate Report, the Respondent and the
Union were, in 1948, parties to a collective bargaining contract which
by its terms remained operative at least until October 1, 1948. The
contract contained a provision giving both parties the privilege of
requesting, during the life of the contract, the negotiation of all
adjustment of wage rates. On June 15, 1948, pursuant to a request
by the Union, the Respondent and the Union met to discuss a new
wage schedule. At that meeting, the Union requested an over-all
increase of 16 cents per hour. In reply, the Respondent offered a
10-cent per hour increase, upon condition that the existing contract
would be renewed for an additional year. The proposal was rejected
by the Union, although its representatives stated that they never-
theless would submit the proposal to the union membership. The
Respondent thereupon offered an unconditional 10-cent per hour in-
crease. This proposal, too, was rejected by the Union.
The Respondent and the Union also discussed vacation pay at the
June 15 meeting.' In this connection, the Union requested payment
for holidays that occurred during vacation periods plus an additional
day off for each such holiday; the Respondent offered payment for
the holidays alone. The June 15 meeting was adjourned without
attaining agreement on either a wage adjustment or the matter of
vacation pay.
On June 30, the Respondent, having earlier on that same day in-
formed two of the three employee members of the Union's negotiating
committee of its intended action, announced a 10-cent per hour increase
in wages effective as of June 21 and applicable to all employees with
more than 60 days' service.6 On the same day, the Union, by letter,
notified the Respondent of its intention to terminate the existing
the Respondent did not bargain in good faith on and after that date . Our findings, as set
forth in the text, that the Respondent violated Section 8 ( a) (5) of the Act before October
21, 1948, make it unnecessary for us to pass upon the Respondent 's letter of that date. We
do not , therefore , rely upon , or adopt, the Trial Examiner 's views or findings with
respect to any of the issues raised by the October 21 letter.
° Conflicting testimony was introduced at the healing as to whether the Respondent in,
fact made a second , unconditional , offer of a 10 -cent increase . The Trial Examiner did
not resolve this conflict in the evidence . We credit the Respondent 's witnesses , and find
that an unconditional 10-cent offer was made and rejected at the June 15 meeting. Such
finding , however, in the view we take, does not excuse the Respondent 's subsequent
unilateral acts.
6 The then existing bargaining contract between the Respondent and the Union included'
a provision dealing with employee vacations ; the contract was silent , however, with respect
to the subject of holidays that occurred during vacation periods.
6 As set forth in detail in the Intermediate Report, the announcement also stated that the
10-cent per hour increase had not been accepted by the Union , but was being placed in effect
in fairness to the Respondent 's employees.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract presumably on its expiration date of October 1, 1948, and
of its willingness to negotiate a new agreement.
On July 12, the Respondent announced to its employees that
payment would be made for holidays that occurred during vacation
periods.
On July 13, and thereafter at various times during August and
September, the Respondent and the Union met to negotiate the terms
of a new bargaining contract. At a meeting held on September 22,
the Respondent offered an additional increase of 5 cents per hour.
The offer was not accepted. by the Union. Nevertheless, on October
5, the Respondent announced a new wage schedule granting its em-
ployees an additional 5-cent per hour increase, effective as of Sep-
tember 27?
'The Trial Examiner, viewing each of the Respondent's three uni-
-lateral announcements of employee benefits in isolation, rested his
;acceptance of the Respondent's contention that it bargained in good
faith upon a number of factors here present. Thus, he noted that
the Respondent had informed members of the Union's negotiating
committee of its intended action before the June 30 increase was
announced; that the wage increases and holiday payments announced
by the Respondent were in fact less than those requested by the
Union; that the changes put into effect by the Respondent had pre-
viously been proposed by the Respondent to the Union; that the an-
nouncements of the changes stated that the Union had rejected such
changes; and that the Union did not protest the announcements of
June 30 and July 12 $ However, we do not regard these factors as
determinative, where, as here, they are outweighed by other, more
significant, considerations.)
One consideration that compels attention in this case is the absence,
prior to the Respondent's unilateral action, of such hardening in the
attitudes of the negotiators as is customarily recognized as a bargain---
7 Like the announcement of June 30 , the October 5 announcement also stated that an
increase previously offered to the Union was being placed in effect in fairness to the
Respondent's employees.
8 The Respondent's witnesses, Parker and Duesing, testified that at the July 13 meeting
the Union protested the Respondent ' s unilateral action of June 30. The Respondent's
witnesses , Mullett, Muckelberg , Tank, and Hoebreckx , testified to the contrary . The Trial
Examiner , without making specific credibility findings in this respect found that no protest
was made. We adopt the Trial Examiner 's finding.
9 See, for example , the following cases in which violations of the Act were found to have
occurred despite the presence of exculpatory factors : N. L. R. B . v. Crompton -Highland
Mills, Inc., 337 U . S. 21.7, Tomlinson of High Point , Inc., 74 NLRB 681, 687 , 715, and Allen-
Morrison Sign Co. , Inc., 79 NLRB 904, 908 ( notification of proposed action given union
before , or simultaneously with, unilateral wage increase ) ; Landis Tool Company , 89 NLRB
503 (unilateral wage increase less than that requested by the union) ; Tower Hosiery
Mills, Inc., 81 NLRB 658, 662, 691-692, enfd. 180 F. 2d 701 (C. A. 4) (no immediate
protest by union of unilateral wage increase).
BRADLEY WASHFOUNTAIN CO. 1665
ing impasse, and which, under certain circumstances, may justify uni-
lateral ' action by an employer . 10 The Respondent 's first unilateral
action occurred directly after the initial formal meeting with the
Union-the only occasion on which the parties had discussed the
Union's requests ."' At that meeting , moreover, the parties, while
rejecting one another's proposals, had not adopted positions of such
inflexibility as to warrant a belief that further negotiations would be
futile. On the contrary, the Union 's representatives had announced
that they would submit the Respondent's original, conditional, pro-
posal with respect to wage adjustments to the union membership for
consideration ; and the Respondent , receding from its original posi-
tion, had made a second offer to the Union.
A similar situation existed on the occasion of the Respondent's
announcement of October 5. As found by the Trial Examiner, "there
was mutual give and take" between the parties in the bargaining
that took place during July, August, and September. And, although
by September 22 the attitudes of the parties had stiffened, the Re-
spondent's offer of that date to the Union had cut the existing differ-
ence between the parties over wages from 6 cents per hour to only 1
cent. Occurring when it did, more than 3 months after the beginning
of the negotiations, this concession by the Respondent necessarily
enhanced the possibility of a mutually satisfactory settlement. Ac-
cordingly, we are of the opinion, and find, that the Respondent and the
Union had not reached a bargaining impasse on any of the three dates
on which the Respondent took its unilateral action.
The absence of an impasse on the critical dates removed any
necessity for precipitous action by the Respondent-especially on
June 30 and July 12 when there still existed a bargaining contract
that established the terms of employment for the Respondent's em-
ployees.12 We also regard as highly significant the fact that the
"See N. L. R. B . V. The Sands "Manufacturing Co., 306 U . S. 332 ; J. I. Case Co. v.
N. L. It. B., 321 U . S. 332 . 336-337 ; W. IV. Cross and Company, Inc., 77 NLRB 1162; West-
chester Newspapers , Inc., 26 NLRB 630, 642.
11 See N. L. It. B. V. Whittier Mills Co., 111 F. 2d 474 , enforcing 15 NLRB 457 , 465-466,
in which the Board , in finding a violation of the Act, emphasized that an employer's uni-
lateral action had been taken at the very beginning of negotiations.
12 See W. W. Cross Company , 77 NLRB 1162 , and Exposition Cotton Mills Company,
supra , where, an impasse having occurred , the employers ' good faith was held not to have
been impugned by the application of "its policy of granting a nominal cost of living
increase," or by an increase that " had already been put into effect by many textile Mills
in the area."
The Respondent 's announcements of June 30 and October 5 gave as the only reason for
the wage increases then being placed in effect that they were "only fair " to employees.
At the hearing , however , Howard Mullett, the Respondent ' s vice president , gave other
reasons. Mullett testified that in both instances the Respondent wished to avoid being
faced with retroactive wage payments , and also wished to better its position in a labor
market in which it was difficult to attract help. We note, in passing , as bearing on the
Respondent 's good faith, the inconsistency between the reason for the raises as stated to
employees and the reasons for them ascribed by Mullett.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent took its unilateral action, not once, but three times in the
course of the negotiations. Such action shows, we are convinced, that
the Respondent was bent upon undermining the Union's prestige 13
For, although the Respondent apparently took pains to surround its
action with the indicia of a contrary purpose, the ultimate result of
the Respondent's repetitive acts was that the employees received a
wage increase only 1 cent less than that which the Respondent had
originally refused, as well as a large part of the Union's original
holiday pay demand. This, we think, necessarily had the effect of
undermining the prestige of the employees' selected bargaining rep-
resentative, and of depriving the Union of the credit which clearly
would have accrued from the Respondent's acceptance of that much of
its original demands. Under all the circumstances, therefore, we
conclude, and find, that by its unilateral action of June 30, July 12,
and October 5, 1948, the Respondent did not bargain in good faith,
and thereby violated Sections 8 (a) (5) and 8 (a) (1) of the Act14
2. The Trial Examiner, resting upon his findings that the Respond-
ent's above-discussed unilateral announcements did not constitute
unfair labor practices, and further relying upon evidence indicating
that an object of the strike of the Respondent's employees was to obtain
a contract satisfactory to the Union, concluded that the strike orig-
inated solely for the purpose of achieving an economic goal.
Although economic considerations undoubtedly were involved in
the beginnings of the strike, the evidence in the record, not set forth
in the Intermediate Report, shows that the Respondent's unilateral
granting of benefits was in fact the primary cause precipitating and
prolonging the strike. Thus, Parker, the Union's business repre-
sentative, and two other witnesses called by the General Counsel,
Loebig and Beilke, whose testimony we credit, testified that a union
membership meeting on October 19, a motion calling for a strike
because of the Respondent's unilateral announcements prefaced the
strike vote taken at the meeting.15 We therefore find that the strike
of the Respondent's employees was caused by conduct which, as found
13 See J . B. Cook Auto Machine Co ., Inc., 84 NLRB 688, and Consumers Cooperative
Refinery Association, 77 NLRB 528 , 531, in which a series of unilateral increases were
held to have violated the Act.
14 Medo Photo Supply Corporation V. N. L. R. B ., 321 U. S . 678; May Department Stores
Company V . N. L. R. B., 326 U . S. 376 ; N. L. R. B. v . Crompton-Highland Mills, Inc., 337
U. S. 217 ; Inland Lime & Stone Co. v . N. L. R. B ., 119 F. 2d 20 (C. A. 7), enforcing 24
NLRB 758, 772 ; Southshore Packing Corporation, 73 NLRB 1116 , 1117-1118: George P.
Pilling & Son Co., 16 NLRB 650, 658; Wilson and Company , 19 NLRB 990, 999.
15 The testimony of Loebig and Beilke is corroborated by the minutes of the Union's
October 19 meeting. To the same effect as to the reasons of each for striking Is the
credible testimony of the General Counsel's witnesses , Duesing, Lilly , Reib, Solvang,
Anderson , Meyer, Datka , Fisher, and Zamfel.
BRADLEY WASHFOUNTAIN CO. 1667-
above, constituted a violation of the Act; and that the strike was, from;
its inception on October 19, 1948, an unfair labor practice strike 18
As the strike was an unfair labor practice strike,17 we also conclude,.
like the Trial Examiner, that the striking employees-except Enders
and Mrozek, whose cases are discussed below-were entitled, upon,
their unconditional request, to immediate reinstatement to their former.
positions, even though the Respondent had hired new employees dur-
ing the strike.18 Accordingly, we adopt the Trial Examiner's finding:
that the Respondent discriminated against those striking employees
who, on April 13, 1949, applied for, and were refused, reinstatement;.
and, as the Trial Examiner recommended, we shall order the Respond
ent to offer reinstatement to these employees, and to make them whole-
for the loss of pay suffered as a result of the Respondent's discrimina--
tion against them."
3. We disagree with, and reverse, the Trial Examiner's finding that
Enders and Mrozek had been discriminatorily denied reinstatement.
On December 23, 1948, a number of other pickets and Enders and-
Mrozek surrounded an automobile that had stopped on the Respond--
ent's premises to discharge its passengers, nonstriking employees going:
to work. Mrozek forced open the rear door of the automobile, ripping
off the handle in the process; then he and Enders reached in, struck two.
of the occupants, and sought to pull them from the automobile. They
then attempted to overturn the vehicle. Subsequently, for these acts,.
16 An unffair labor practice strike does not lose its character as such because economic
reasons may also have brought it about. N . L. R. B. v. Remington Rand, Inc., 94 F. 2d'
862, 871-872 ( C. A. 2), cert. denied 304 U. S. 576 ; N. L. R B. v. Stackpole Carbon Co.,.
105 F . 2d 167, 175-176 (C . A. 3), cert. denied 308 U. S. 605 ; Republic Steel Corporation
V. N. L. R . R. 107 F. 2d 472 , 478 (C . A. 3), modified as to other provisions 311 U. S. 7 ;
Brown Radio Service and Laboratory, 70 NLRB 476.
11 The Trial Examiner found that the back -to-work movement sponsored by the Respond-
ent, and the Respondent's refusal after March 28, 1949 , to recognize the Union because.
of the Union 's alleged loss of status as majority representative , both constituted unfair
labor practices ; he further found that such actions prolonged the strike by the Respond-
ent's employees . We agree that those acts constituted unfair labor practices . However,
in view of our determination that the strike in question was an unfair labor practice
strike from its inception , it is unnecessary for us to pass upon the Trial Examiner 's finding
that the strike was prolonged by the unfair labor practices committed after the strike-
began.
In passing , we note that the evidence does not support the Trial Examiner ' s finding
that Mullett , the Respondent's vice president , "parceled out" the names of employees at
the mid -November meeting arranged by the Respondent . This correction does not affect-
our ultimate conclusion with respect to the Respondent -sponsored back-to-work movement.
19 N. L. R. D. v. Remington Rand, supra; Polish National Alliance of the United States,
42 NLRB 1375 , 1397, enforced except as to other provisions , sub. nom. Polish National
Alliance v. N . L. R. B., 136 F . 2d 175 ( C. A. 7), affirmed 322 U. S. 643.
19 The evidence shows that four striking employees, Philip Anderson , Robert Hause,
Felix Pokerzewinski , and Sylvester Gillick , although denied reinstatement on April 13,
1949, were in fact reinstated sometime thereafter by the Respondent. Accordingly, we
shall limit our order as to these employees to a direction that they be made whole for any
loss of pay they may have suffered.
889227-51-vol . 89-106
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they pleaded guilty in a Milwaukee court to a charge of disorderly
conduct.
We hold, on the foregoing facts , that Enders and Mrozek engaged
in activity which justified their discharge. As it appears that such
:activity was, in fact, the reason for the Respondent's denial of rein-
statement to them, we shall not order their reinstatement or the pay-
ment to them of back pay 2°
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
-Relations Board hereby orders that the Respondent, Bradley Wash-
fountain Company, Milwaukee, Wisconsin, its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with District No. 10, Inter-
national Association of Machinists as the exclusive representative of
all production and maintenance employees of the Respondent at its
Milwaukee, Wisconsin, plant, excluding office and clerical employees,
guards, watchmen, the janitress, and supervisors as defined in the Act;
(b) Discouraging membership in District No. 10, International
Association of Machinists, or in any other labor organization of its
-employees, by refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self organization, to form
labor organizations, to join or assist District No. 10, International
Association of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any and
all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District No. 10, In-
ternational Association of Machinists as the exclusive bargaining
agent of the production and maintenance employees of the Respondent
" National Grinding Wheel Company, 75 NLRB 905.
BRADLEY WASHFOUNTAIN co. 1669
at its Milwaukee, Wisconsin, plant, excluding office and clerical em-
ployees, guards, watchmen, the janitress, and supervisors as defined
in the Act, with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement;
(b) Offer to the persons whose names appear upon Appendix A,
attached hereto, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing, if necessary, all persons
hired on or after October 19, 1948;
(c) Make whole the persons whose names appear upon Appendix
A, attached hereto, for any loss of pay each may have suffered by
reason of the Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which he
normally would have earned as wages from the date of Respondent's
discrimination to the date of the Respondent's offer of reinstatement,
.less his net earnings during said period;
(d) Make whole Philip Anderson, Robert Hause, Felix Pokrze-
winski, and Sylvester Gillick for any loss of pay each may have suf-
fered by reason of the Respondent's discrimination against them, by
payment to each of them of a suln of money equal to the amount which
he normally would have earned as wages during the period from the
date of the Respondent's discriminaion to the date of the Respondent's
offer of reinstatement, less his net earnings during said period;
(e) Post at its plant in Milwaukee, Wisconsin, copies of the notice
attached hereto, marked Appendix B.2' Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being signed by the Respondent's representative, be posted by
the Respondent and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material ;
(f) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (1) of the Act by the conduct
of its officials in driving at excessive speeds through picket lines, be,
and it hereby is, dismissed.
21 In the event that this Order is enforced by decree of fa United States Courts of Appeals
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals enforcing."
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Alfred Bauers
Wilbur Fisher
Elmer Anderson
Alfred Anderson
Paul _Meyer
Walter Loebig
William Regall
Russell Mattson
John Tadych
Robert Schmidt
Fred Spankowski
Gustav Reib
Harvey Steele
Morris Solvang
Rudolph V. Klar
Elroy P. Beilke
John Kuczkowski
John Zamfel
Stanley Anczak
Mike Sansone
Robert Pulvermacher
Ed Kuczkowski
Al Menzel
Norbert Datka
Edward Lilly
Stanley Novey
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with,, restrain, or co-
erce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist DISTRICT No..
10, INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for-
the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All our production and maintenance employees, at our Mil
waukee, Wisconsin, plant, excluding office and clerical em-
ployees, guards, watchmen, the janitress, and supervisors as
defined in the Act.
BRADLEY WASHFOUNTAIN CO. 1671
WE WILL MAKE WHOLE the employees named, below, in the
manner provided in the Decision and Order, for any loss of pay
suffered as a result of our discriminatory delay in offering to
reinstate them :
Philip Anderson
Sylvester Gillick
Robert Hause
Felix Pokrzewinski
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent po-
sitions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and we will make them whole, in the
manner provided in the Decision and Order for any loss of pay
as a result of the discrimination.
Alfred Bauers Harvey Steele
Wilbur Fisher Morris Solvang
Elmer Duesing Rudolph V. Klar
Alfred Anderson Elroy P. Beilke
Paul Meyer John Kuczkowski
Walter Loebig John Zamfel
William Regall Stanley Anczak
Russell Mattson Mike Sansone
John Tadych Robert Pulvermacher
Al Menzel Ed Kuczkowski
Robert Schmidt Norbert Datka
Fred Spankowski Edward Lilly
Gustav Reib Stanley Novey
All our employees are free to become, remain, or refrain from be-
-coming or remaining, members of the above-named union or any other
labor organization, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act.
BRADLEY WASHFOUNTAIN COMPANY,
Employer.
Dated-------------- By --------------------------------
(Representative ) (Tide)
This notice must remain posted for GO days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1672 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Messrs. Edward T. Maslanka and Richard C. 8icander, for the General Counsel..
Messrs. O. S . Hoebreckx, Clark M. Robertson , and Fred Prosser, of Milwaukee,.
Wis., for the Respondent.
Mr. J, J, Denny, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by District No. 10, International Association of Ma-
chinists, herein called the Union, the General Counsel for the National Labor
Relations Board,' by the Regional Director for the Thirteenth Region, (Chicago,.
Illinois), issued a complaint dated July 22, 1949, against Bradley Washfountain=
Co., a corporation, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) of the National Labor
Relations Act, as amended, (61 Stat. 136), herein called the Act. Copies of the
complaint, charges, and a notice of hearing were duly served on the Respondent
and the Union.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance that the Respondent: (1) From about June 30, 1948,
has refused to bargain collectively in good faith with the Union; (2) during
a strike, caused and prolonged by its unfair labor practices, solicited its em-
ployees with promises of benefit and threats of reprisal to return to work ;
(3) in April 1949, and thereafter has refused to reinstate 32 named employees,
upon their unconditional offer to return to work, because they engaged in the
strike ; and (4) by these acts has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the Act.
In its answer dated August 2, 1949, the Respondent admitted allegations of the
complaint relating to the nature of its business, but denied commission of the
alleged unfair labor practices. By way of affirmative defense certain allegations
were included in the answer as to the conduct of the strikers.2
Pursuant to notice a hearing was held at Milwaukee, Wisconsin, before the
undersigned Trial Examiner, duly designated by the Chief Trial Examiner, on
November 1, 2, 3, 4, 5, 7, 8, and 9, 1949. All parties were represented, participated
in the hearing, and were afforded opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues. At the con-
clusion of the hearing ruling was reversed upon motions by the Respondent to
dismiss the complaint, in whole and in part. Said motions are disposed of by
the findings, conclusions, and recommendations below.
Briefs have been received from General Counsel and counsel for the Respond-
ent. An unopposed motion has also been received from counsel for the Respond-
ent to correct the official transcript of the hearing in certain particulars. The
motion is granted, and the proposed corrections are hereby incorporated in
the record.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
1 The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
2 Upon motion by General Counsel, certain allegations of the answer were stricken.
BRADLEY WASHFOUNTAIN CO.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
1673
Bradley Washfountain Co. is a Wisconsin corporation having its principal
office and place of business in Milwaukee, Wisconsin, where it engages in the
manufacture of industrial group washing equipment. During the year preceding
issuance of the complaint the Respondent purchased raw materials consisting of
copper, brass, steel, iron pipe, etc., valued at more than $300,000, more than 50
percent of which was transported to its Milwaukee plant in interstate commerce,
from and through States other than Wisconsin. During the same period, its
finished products, valued at more than $1,000,000, were sold and distributed to,
and through States other than Wisconsin.
11. THE ORGANIZATION INVOLVED
District No. 10, International Association of Machinists, is a labor organizationv
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Major events and issues
From 1937 until the fall of -1948 the Union and the Respondent enjoyed an
unbroken collective bargaining relationship under union-shop contracts. In
January 1948, the Union requested reopening of the wage clause in the contract
due to terminate the following October.3 Negotiations on wages and proposed
revisions in the agreement began on June 15 and at varying intervals continued
until October 18, when a negotiating meeting broke up in mutual ill-feeling. The
next morning the overwhelming majority of employees left the plant and remained
out until April 1:149, when they abandoned the strike unconditionally and sought
reinstatement. The employer refused reinstatement upon grounds, except in
the cases of two individuals, that their positions were already filled. The two
exceptions were strikers who, the employer claims, engaged in conduct on the
picket line which disqualified them as desirable employees.
Certain events occurred before and during the strike which, in addition to
the refusal to reinstate strikers, are raised by the complaint as alleged unfair
labor practices on the part of the employer. These include: (1) The unilateral
general increase of wages on two occasions and the granting of vacation benefits
before the strike; (2) the refusal of the employer to negotiate concerning the
union-shop issue immediately after the strike began; (3) the conduct of em-
ployer officials and foremen in trying to persuade employees to abandon the
strike; rind (4) the refusal of the employer on and after March 28, 1949, to
accord the Union continued recognition upon the claim that it no longer repre-
sented a majority of the employees.
B. The refusal to bargain
The complaint alleges, the answer admits, and the Trial Examiner finds that
all production and maintenance employees of the Respondent, excluding office
and clerical, guards, watchmen, the janitress, and supervisors, constitute, and
at all times material did constitute, a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
8 Unless otherwise indicated, events described in this Report all occurred in 1948.
X674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, the answer does not deny, and the Trial Examiner finds
that at all times material up to January 27, 1949,° a majority of the employees
in the above unit have designated the Union as their representative for the
purpose of bargaining collectively with the Respondent with respect to rates of
-pay, wages, hours, and other conditions of employment, thereby constituting the
Union their exclusive representative for said purposes within the meaning of
-Section 9 (a) of the Act.
The complaint alleges that the Respondent has refused to bargain, during
a period when it concedes the Union to have been the exclusive bargaining
-agent of its employees, by these specific acts :
1. Unilaterally granting wage increases on June 30 and October 5, and
granting certain vacation pay benefits on July 12, without consulting
or giving notice to the Union;
2. Refusing to negotiate in regard to union security on October 21 and
thereafter.
The complaint also claims that the Respondent likewise violated the Act by
questioning, in bad faith, the Union's majority status on and after March 28,
1949. This issue will be discussed in Section III D below.
As to the June 30 issue of wage rates, undisputed evidence establishes: (1)
That at the first negotiating meeting on June 1.5 the Union requested an increase
of 16 cents per hour and after discussion the company countered with an offer,
which the Union would not accept, of 10 cents if the existing contract were
otherwise extended for 1 year; (2) that on June 30, before posting the notice
quoted below, a company official told two employee members of the union nego-
tiating committee (the third being on vacation) of its planned action in posting
the notice; and (3) that the Union never formally made protest to the company
-that the notice contained any misstatement of fact. The June 30 notice to em-
ployees reads, in part, as follows :
The following wage schedule which was proposed to the Union June 15
will be effective as of June 21. While the Union has not accepted this wage
schedule, we believe it only fair that employees should enjoy the benefits
of this wage increase without further delay.
Thus it is plain, and is found, that the evidence does not sustain the claim
that this increase was granted without consultation with or notice to the Union.
Testimony is conflicting as to whether or not, at the same June 15 conference,
company officials made a second, unconditional, offer of a 10-cent increase which
the Union likewise declined to accept. The Trial Examiner considers it unneces-
sary to resolve the conflict, although he notes that the increase was in fact
granted without any condition attached. The Union made its demand, the
employer made at least one counter offer which the Union did not accept, and
later the offer was put into effect after the employees' committee was notified,
according to credible evidence. The wage increase was less than the employees
had instructed their committee to ask for. The notice fully apprised the
employees, in effect, that their bargaining agent was unsatisfied with the increase
and presumably would continue to ask for the greater amount. Nothing in the
notice reasonably could have been intcrpretcd by the employees as an indication
that the employer was seeking to deprive the Union of prestige. Since the
' The answer denies, in effect, that majority representation by the Union extended beyond
this date . This question will be considered in a later section.
BRADLEY WASHFOUNTAIN CO. 1675
amount granted was less than the employees, through the Union, had demanded,.
the action may hardly be construed as an effort on the part of the employer to
persuade them that they would benefit by withdrawing allegiance from the
Union, particularly since for many years all employees had been required to
be union members.
Whether or not the employer's action in effectuating an increase which the
Union had not accepted was consonant with amicable bargaining tactics is not
for the Trial Examiner to pass upon. As to the point of bad faith bargaining,
as defined by the Board and the courts, the Trial Examiner cannot ignore these
plain facts: (1) The Union recorded no protest either against the increase or
the accuracy of the notice at the time; and (2) in none of its three charges filed
in December 1948, and January and April 1949, did the Union claim the June
increase to be an unfair labor practice, although the October increase is so cited,
and the two amended charges are otherwise generously specific. Allegations
as to the June increase appear for the first time in the complaint. In summary,
the Trial Examiner finds that in granting the June 30 increase the Respondent
did not bargain in bad faith, and thus did not refuse to bargain.
As to the issue of vacation pay, credible evidence again fails to establish bad
faith bargaining as alleged in the complaint. Although testimony of all wit-
nesses on the subject is not in complete agreement as to details, according to
that of the union spokesman himself, B. J. Parker, it is clear that the question
of payment for holidays falling within an employee's vacation period was dis-
cussed by the negotiating parties, either on June 15 or before, and that the
issue was raised as a grievance apparently, concerning interpretation of the
contract then in existence. It is also plain from Parker's testimony that on
June 15 the company offered its solution, which was neither accepted nor rejected.
On July 12 the employer posted the following notice :
When the Company announced its wage adjustment on June 30, we
neglected to add that employees who are on vacation during a holiday week
will receive their holiday pay.
In this matter, as with the increase of June 30, the Respondent granted less than
the Union had requested, since the latter had demanded that the employees receive
both holiday pay and an additional day off. And there is no evidence that the
Union protested formally this disposal of the grievance.
Since it appears that the question of holiday pay was discussed by the parties
before the posting of the above-quoted notice it is clear, and the Trial Examiner
finds, that in this respect the allegations of the complaint are not sustained.
As noted in the preceding section proposals and counterproposals as to a
new contract were exchanged at negotiating conferences in July, August, and'
September. Parties at the hearing agreed that there was mutual give and take
during this period. Nothing occurred which is claimed as an unfair labor practice.
A sharper issue of credibility arises from testimony regarding a second general
wage increase of which employees were informed in a notice posted on October 5,
reading in part as follows :
As explained to the Union Committee, we thought it only fair to put into
effect, without further delay, the increase of 5 cents per hour we offered in
the last meeting. Thus as of September 27, all factory employees were work-
ing at the new rates which will be shown on the pay checks to be given out
October 8.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, witnesses for the employer, including a former union committeeman
who abandoned the subsequent strike under circumstances described below,
agreed that at the close of the negotiating conference on September 22, the Re-
spondent offered a further general increase of 5 cents per hour to become effec-
tive September 27. Witnesses for the General Counsel, on the contrary, flatly
denied that any such offer or proposal was made at the September 22 meeting.
.Although for reasons set forth below the Trial Examiner places scrum reliance
upon unsupported testimony of Vice-President Howard Mullett and Otto Muckel-
berg, the committeeman mentioned above, as to this issue the Trial Examiner is
persuaded by documentary evidence and the probabilities inherent in the undis-
puted status of negotiations at the time that the employer in fact did propose the
additional increase on September 22, and that the union committee did not voice
acceptance of the offer. It is unreasonable to believe that the Union would
have failed, at the time of its posting, to record by written protest any mis-
statement of fact in the October 5 notice. Furthermore, in its first amended
charge, filed in January 1949, the Union alleged only, as to the October 5 issue :
The increase in pay was instituted without the consent of the Union and
at a time when a greater increase was being demanded of the Company.
(Emphasis supplied.)
No claim appears therein that the offer or proposal was not made.
Under the circumstances revealed by credible testimony and contemporary
documents it appears that by September 22 the negotiations, were rapidly
approaching an impasse as to provisions to be included in a new contract. It is
undisputed that at this meeting Parker informed the employer representatives
that at the next meeting a U. S. Conciliator would be present. According to
one of the Respondent's officials it was immediately after this announcement by
Parker that the offer of the additional increase was made. It may well be that
the company's offer, as a tactical maneuver, was designed to place the Union
at a disadvantage before a Conciliator (the combined increases then being
only 1 cent below the Union's original and continued demand). But this design
alone does not establish bad faith bargaining.
It is found that the preponderance of credible evidence does not support
allegations that the October 5 increase was granted without consultation with
or notifying the Union.
Negotiating meetings with a Conciliator in attendance were held on October
.13 and 18. Concessions were made by both parties but a number of items of
,disagreement. still existed toward the close of the October 1S conference. Pa-
tience apparently reached the point of exhaustion. Parker made some comment
which Attorney Hoebreckx resented and the latter left the meeting.
The next morning the employees met at the union hall and an overwhelming
majority voted to strike after Parker and committeemen had described to them
what had occurred during the long period of negotiations.
Although many witnesses, both for General Counsel and the Respondent, testi-
fied as to why they struck, it appears unnecessary here to discuss their individ-
ual subjective reasons. Parker testified:
. . . We made a proposal. We were trying to reconcile that with the
thoughts of the company and had we been able to reconcile it and gotten the
agreement there would have been no strike.
While Parker's statement, as union spokesman, is somewhat negative as a factor
in determining whether or not it was all "unfair labor practice" strike at the
BRADLEY WASHFOUNTAIN Co. 1677
:beginning, as the complaint alleges, it does support a reasonable inference that
it was called in an effort to obtain a contract satisfactory to the Union, and
therefore was economic as contrasted with action seeking to remedy illegal
wrongs.
It has been found that the acts of granting wage increases and vacation
benefits were not unfair labor practices. Since these acts are the only ones
claimed by General Counsel as unfair labor practices before the strike, it follows
..and the Trial Examiner finds that the allegation that the strike was caused by
unfair labor practices is not sustained by the evidence.
The plant remained closed until mid-December.
Two days after the strike began, on October 21, Mullett sent all employees a
,copy of the following letter :
TO ALL SHOP EMPLOYEES :
We regret very much that you left your jobs. The manner in which the
strike was called indicates that your business agent was intent on rushing
you into this step. He took no chances on your hearing both sides of the
.story before the strike was on. We sincerely believe that, if you had had
all of the facts, you would be working now instead of striking. One of the
men, when asked on the first day of the strike as to why he was striking,
answered, "To get a decent contract, I guess" No employee should be
required to guess about why he is on strike.
In order that each employee may have a clear idea for what purpose he
is sacrificing his earnings, we enclose a copy of the offer we made to the
union. This contract, with one exception, was offered to the union at the
conciliation meeting on Monday, October 18. The exception is that the
Company now is withdrawing its agreement for a union shop, because ex-
perience has shown that further cooperation with Mr. Parker is not war-
ranted.
Read this contract carefully and determine, for yourself, whether there
is anything wrong with it. Compare, also, any possible gain as a result
of the strike, with your loss of earnings each week that the strike continues.
We think you have been given some bad advice.
A strike is a serious matter for the Company and for you. We both have
-much to lose. The paid union official who seems so anxious to have a strike
risks nothing. We honestly believe we have (made a liberal offer. Mr.
-Parker admits that our wage rates and other employee benefits compare
favorably with those of other plants in this community. That being the
-case, what can be the purpose of the strike? Is Mr. Parker trying to build
himself up at your expense?
In subsequent letters, we will fully explain the Company's position on
the issues. Keep the enclosed contract for reference. AGREEMENT HAS
BEEN REACHED ON ALL POINTS EXCEPT THOSE MARKED "IN
DISPUTE".
If you have any questions on these matters, I will be glad to give them
my personal attention.
Accompanying this letter was a proposed agreement with 5 provisions
marked as being in dispute. Although the point was not raised at the hearing,
and no explanation was offered by the employer, it appears that the above letter
misstates facts as to the issues in dispute, both in number and identity, which
remained unsettled at the time of the strike. For in a later letter the company
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed the employees that on October 22, 1 day after the first letter was=
sent, the company itself had agreed before the Conciliator as to at least 10 issues-
still in dispute, and there is no evidence of any meeting between October 18 and.
22. Thus it is clear that the Respondent, claiming on October 21 to be desirous
of providing its striking employees with facts, displayed little hesitancy in care-
lessly treating the truth in its communications. It is obvious that one letter-
or the other is inaccurate, and it may reasonably be inferred, in view of its un-
bridled attack upon Parker, that the October 21 document was designed to cause-
employees to believe that there were only a few differences between their nego-
tiating committee and itself when the strike was called. Since it is not alleged.
as an unfair labor practice in the complaint, the Trial Examiner makes no-
finding as to whether or not such misstatement constitutes an unfair labor prac-
tice. It is found, however, that this conduct on the part of the employer wholly-
negates its own claim that its sole purpose in sending these and a considerable-
number of other letters during the strike period to its employees was, in effect,
to acquaint them with facts.
As the text of the letter itself establishes, the proposal of October 21 had not,.
in that form and entire substance, been previously submitted to the Union itself,
the recognized bargaining agent of the employees. This act was manifestly-
inconsistent with the principles of collective bargaining defined by the Board:
and the courts.
The October 21 letter also bears upon the second point cited at the beginning
of this section as a refusal to bargain-"refusing to negotiate in regard to union
security on, October 21 and thereafter." The Trial Examiner believes that the-
term "union security" was inadvertently used in the complaint instead of "union
shop." In any event the issue of a union-shop provision was fully litigated at-:
the hearing and argued in the briefs.
As noted above, all previous contracts between the parties had contained a.
union-shop clause. Each proposal and counterproposal of the parties during
negotiations in 1948 before the strike apparently agreed upon continuing this-
arrangement. A few days before the strike the company forwarded to the
Board its agreement to a consent election for this purpose, an election being:
then required under the Act. Two days after the strike began, however, the
employer made it clear that, as punitive action, it would deprive the Union of
the union-shop protection and made the announcement: not to the Union, but
to the individual employees. The employer's intent to refuse is implicit in the-
letter. It is explicit in the examination of Mullett by his own counsel:
Q. And in all of our proposals up to October 21, they all contained the
union shop provision, did they not?
A. That is right.
Q. Did the company ever agree to a union shop proposal since Octo-
ber 21?
A. Since October 21?
Q. In our negotiations?
A. Have we agreed to a union shop?
Q. Yes.
A. No, we have not.
Q. Or indicated any intention to agree to one?
A. Never indicated that to any one.
* s * c a A o
BRADLEY WASHFOUNTAIN CO. 1679
Q. Why did the company decide to withdraw the union shop?
A. We felt there was no longer an advantage in cooperating with the
Union to the extent of giving them a union shop.
The trial Examiner concludes and finds that the Respondent, on and after
,October 21, 1948, refused to bargain in good faith with the Union by: (1) An-
.nouncing in the letter of that date ' its clear intention to so refuse ; and (2)
-sending to all employees a proposed contract which had not previously been
submitted to the union committee. By this conduct the Respondent interfered
with, restrained , and coerced employees in the exercise of rights guaranteed
,by Section 7 of the Act.
It is further found that on October 21 the hitherto economic strike became,
as a consequence of the Respondent's unfair labor practices of that date, an
unfair labor practice strike.
C. The back-to-work movement
Shortly after the strike began Mullett , two other officials of the company,
.and foremen began an intensive campaign of visiting individual employees at
their homes , soliciting their abandonment of the strike and their return to work.
The answer admits that the activities of its agents were conducted "without
.approval of the Union."
Employer officials concentrated much of their attention upon Otto Muckelberg,
.a union committeeman. Mullet admitted having made three or four visits to
:the employee 's home, and Muckelberg candidly said he went to Mullett's home
,because he was hungry . Credible evidence establishes that during Mullett's
first visit to Muckelberg's home the vice president told him: "Otto, I don't want
you to stand in my way for [ in] whatever I am doing ," plainly referring to his
effort to break the strike.' Muckelberg resigned as a committeeman , was among
the first to return to work in December , and thereafter , with advice of a company
-official in filling out forms, petitioned the Board for decertification of the Union.
Not only did the employer attempt to break the strike by visiting homes and
soliciting individuals to return, without consultation with the Union, but during
.at least five such visits officials made remarks clearly couched to discourage
union membership and to discredit Parker, the union leader . In substance, at
one or more of these five visits, workers were told that there would be no more
"union shop," that they need not worry about coming back because there prob-
ably would be no union at the plant, that the company could not deal with
Parker and would have nothing further to do with him.7
8 The Trial Examiner finds no merit in the Respondent ' s claim , raised in its brief, that
it had no obligation to bargain concerning the union-shop provision because no election
under Section 8 (a) (3) of the Act had been held. Merit is denied this position by evidence
submitted by the Respondent itself; its letter of October 11, a few clays before the strike,
informing the Regional Office that it was returning a signed agreement for a consent elec.
tion on this point . No issue as to an election actually existed at the last meeting of the
parties before the strike , and both were aware that the Act required a Board election before
a union -shop clause might legally be enforced.
9 The finding rests upon the credible testimony of employee Solvang, who was present on
the occasion . Mullett denied making this statement, Muckelberg was not questioned about
it. The Trial Examiner considers Mullett to have been a wholly untrustworthy witness,
both because of his demeanor on the stand and his evasiveness as recorded in the official
transcript. When questioned on the first day of the hearing, as an adverse witness by
General Counsel , he responded approximately 130 times in 50 pages of transcript, with
answers of "can't recall ," "not sure," "don't remember," "I don't know ," or "I wouldn't
remember ," with respect to these visits.
7 According to credible testimony of employees Anczak, filar, Solvang, Meyer, and Zamfel.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mullett admitted and it is found that the company arranged for and solicited!
striking employees to attend a meeting in mid-November with himself, other-
officials, and foremen at a local tavern for the purpose of ascertaining whether
they would return to work. The employer paid for the room, the food, and.
drinks. Neither the union committee nor Parker was invited. About eight em-
ployees attended. Mullett, according to his own testimony, told the employees..
that the company would do no more for them than proposed in the contract
mailed to their homes which, as pointed out above, differed from its previous.
proposal to the Union. It was then decided to hold another meeting at a later-
date. Mullett parceled out to the eight employees names, from a payroll list..
brought with him, of workers each was to see and invite to the second meeting.
A few days later a meeting of about 20 employees was held at a local club,..
where food and drinks were again provided by company officials. Means of.:
reopening the plant were discussed, without consultation with the Union. Fore-
men and officials called for and brought home the employees.
The foregoing conduct of the Respondent was violative of the Act. It was=
manifestly designed to undermine the Union as the exclusive bargaining agent
of the employees. By individual solicitation, by expressed intention no longer-
to deal with the union agent, by holding meetings and providing employees with.
food and drink, in its effort to persuade them to abandon their concerted action;
protected under the Act, the Respondent interfered with, restrained, and coerced.
its employees in the exercise of rights guaranteed by Section 7 of the Act'
D. Questioniiuj the Union's majority
The complaint alleges and the answer admits, in effect, that since March 28^.
1949, the Respondent has refused to recognize the Union as the exclusive bar-
gaining agent of its employees. The question remaining is whether or not on_
and after that date the company in bad faith questioned the union majority-
As noted above, the plant resumed operations in mid-December. A number
of the strikers were persuaded by company solicitation to abandon their con-
certed action, and new employees were advertised for and. hired. Early in.
February 1949, Muckelberg, with the assistance and knowledge of the Respond-
ent's officials, petitioned the Board for decertification of the Union of which he
had previously been a committee member.' The petition. was dismissed by the-
Regional Office and, following appeal, the Board sustained the dismissal.
The various grounds advanced by the Respondent as establishing the validity.
of its action in refusing to recognize the Union on March 28 and. thereafter,
mainly stem from its assumption that the strikers had lost their standing as.
employees." Since the assumption is without merit, it appears needless to re-
view and consider derivative contentions. It has been found that on October.
21, 1949, the concerted action became as a consequence of the employer's unfair
labor practices, an unfair labor practice strike. The unfair labor practices set.
out above plainly prolonged the strike. It is reasonably inferred, and found,.
that defection, if any, of union members after October 21 was caused by the
8 See Sam'l Bingham's Son Mfg. Co., 80 NLRB 1612, and cases cited therein ; also Ca they
Lumber Company, 86 NLRB 157.
0 Case No. 13-RD-3d.
10 The Respondent claims, inter alla, that the Union lost its majority status on January
27, 1949, because on that date the Union suspended 19 strikebreaking members. There is
no merit in the contention. Evidence establishes that at the beginning of the strike there
were 70 employees in the appropriate unit, all required by contract to be union members.
BRADLEY WASHFOUNTAIN CO. 1681
Respondent's unfair labor practices on that date and thereafter. That an em--
ployer may not justify refusal to bargain under such circumstances is well estab-
lished by the courts"
The Respondent's contentions are without merit. It is found that on March
28, 1949, and thereafter the Respondent has refused to bargain with the Union,.
the exclusive representative of its employees in the appropriate unit, and thereby-
has interfered with, restrained, and coerced its employees in the exercise ofi
rights guaranteed by Section 7 of the Act.
E. Refusal to reinstate strikers
After a number of meetings with employer representatives during the, strike',
unsuccessful as efforts to reconcile the dispute, the Union formally abandoned
its concerted action on April 13, 1949. Accompanied by Parker, about 30 strikers
visited Mullett and, according to the latter's testimony, unconditionally offered
to return to work. During the next day or two the employer received confirma-
tion of this collective offer in letters submitted and signed by 32 employees,,
whose names are listed in Appendix A.
Also according to Mullett, he rejected Parker's offer on behalf of the employees„
telling him that the jobs had been already filled, and that two of the men would.
not be employed because of violence on the picket line.
It is found that on April 13, 1949, the 32 strikers offered to return to work
unconditionally, but were refused reinstatement.
The Respondent's claim that reinstatement was justifiably refused because the
jobs were filled previous to the offer is wholly invalid. Since October 21, 1.949,
as found, the strike had been prolonged by the Respondent's own unfair labor
practices.
The two individuals denied employment because of picket line conduct are.
Alfred Enders and Joseph Mrozek. Divested of the obvious exaggeration by
company witnesses, the evidence establishes that the "assault" alleged in the,
company's letters to the two employees amounted to no more than disorderly
conduct on a single occasion during a long and bitterly contested strike. Enders.
and Mrozek opened the door of an automobile containing strikebreakers who had
driven through the picket line, reached in, and pummelled" two of the occupants.
on the back. Later at a local police court the two pleaded guilty of "disorderly
conduct" but no sentence or fine was imposed. The Trial Examiner is of the
opinion and finds that their conduct was not of a character rendering the two.
employees unsuitable for reemployment.12
The Trial Examiner further concludes and finds that employees listed in
Appendix A were discriminatorily denied reinstatement on April 13, 1949, because
they engaged in concerted activities and for the purpose of discourging member-
ship in the Union, and that thereby the Respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7
of the Act.
F. Other issues
Two minor issues remain for consideration.
(1) The complaint alleges that the Respondent's officials intimidated and
coerced the employees by driving at excessive speed through the picket lines.
n Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 687; Franks Brothers Co. V.
N. L. R. R., 321 U. S. 702, 705.
12 See Kansas Milling Company, 86 NLRB 925.
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The answer affirmatively alleges, after denying that the employer's unfair
labor practices prolonged the strike, that certain "unlawful" acts of the Union
actually caused its prolongation.
As to (1), it appears that on December 23, when both pickets and strikebreak-
ers engaged in some small disorder, Mullett drove through the picket line and
with his car struck Parker a glancing blow. Parker was not noticeably injured,
since he went to a policeman nearby and protested that Mullet had run off,
leaving his car on the sidewalk. The officer brought Mullett from the plant and
the car was removed. The Trial Examiner considers the incident trivial, isolated,
and of insufficient importance to support a finding of intimidation and coercion.
As to (2), despite the labored efforts of company witnesses to color their tes-
timony with distortion and exaggeration the evidence does not establish that any
employee who desired to work was deterred or prevented, by act or induced fear,
from entering the plant. Employee testimony was from those who had already
abandoned the strike and were working, a fact which lends scant support to a
conclusion that the strike was prolonged by any conduct of the pickets. Counsel
for the Respondent would apparently have it held as a premise that a union tries
to dissuade strikebreakers in order to lengthen a strike, when common knowledge
is to the effect that its purpose is to cause the employer to yield to its demands.
In any event, the record here falls short of providing support to the Respondent's
contention in this respect. The conduct complained of all occurred after the
employer had begun, by acts found above to be illegal under the Act, its campaign
to discourage union membership and concerted activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that on and after October 21, 1948, the Respondent has
refused to bargain collectively with District No. 10, International Association of
Machinists, as the exclusive representative of its employees in an appropriate
unit. It will be recommended that the Respondent, upon request, bargain col-
lectively with said Union.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of 32 employees listed in Appendix A, on April 13, 1949.
It will be recommended that the Respondent offer to each of them immediate and
full reinstatement to his former or substantially equivalent position (discharg-
ing if necessary any new employees hired since October 21, 1948), without
prejudice to his seniority or other rights and privileges, and make each of them
whole for any loss of pay he may have suffered by reason of such discrimination,
by payment to each of a sum of money equal to that which he normally would
BRADLEY WASHFOUNTAIN CO . 1683
have earned as wages from April 13, 1949, the date of the discrimination, to the
date of the offer of reinstatement,' less his net earnings during such period"
It has also been found that the Respondent, by various acts, interfered with,
restrained, and coerced its employees in the exercise of 'rights guaranteed by'
the Act. Because the Respondent's discriminatory refusal to reinstate its em-
ployees, its refusal to bargain, and its acts of interference, restraint, and coercion
go to the very heart of the Act and indicate a purpose to defeat self-organization
of its employees, the Trial Examiner is persuaded that the unfair labor prac-
tices committed are related to other unfair labor practices proscribed and
that the danger of their commission in the future is to be anticipated from the
Respondent's conduct in the past. Accordingly, in order to make effective the
interdependent guarantees of Section 7 and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist from in any'
manner infringing upon the rights of employees guaranteed by the Act.
Upon the basis of the above findings of fact, and upon the entire record ill
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District No. 10, International Association of Machinists, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent, excluding
office and clerical, guards, watchmen, the janitress, and supervisors, constitute,
and at all times material herein have constituted, a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. District No. 10, International Association of Machinists, was on October
21, 1948, and at all times thereafter has been, the exclusive representative of all
the employees in the above-mentioned appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on and after October 21, 1948, to bargain with the Union, the
Respondent has engaged in and is engaging in unfair,, labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By discriminatorily refusing to reinstate the 32. employees listed in Appendix
A, on April 13, 1949, the Respondent engaged in and.is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
6. B1' soliciting individual strikers to return to work, In derogation of the
exclusivebargaining status of District No. 10, International Association of Ma-
chinists, and by interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
13 Although the record is not entirely clear on the point , it appears that certain of the
strikers, refused reinstatement on April 13, were thereafter reemployed. Whether or not
they were accorded the same or substantially equivalent employment , were made whole, or
prejudiced as to . seniority and other rights, is not revealed . Others may be reinstated
before these recommendations are complied with. It is anticipated , of course , that any
problems thus arising may be settled by the parties upon compliance.
34 Crossett Lumber Company, 8 NLRB 440 , 497-498.
889227-51-vol . 89-107
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record of the case , the Trial Examiner recommends that Bradley
Washfountain Co., its officers, agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with District No. 10, International Asso-
ciation of Machinists, as the exclusive representative of all its production and
maintenance employees, excluding office and clerical, guards, watchmen, the jan-
itress, and supervisors, with respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment ;
(b) Discouraging membership in District No. 10, International Association
of Machinists , or in any other labor organization of its employees by refusing
to reinstate, or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations , to join or assist District No. 10, International Association of Ma-
chinists, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a 'condition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
.
(a) Upon request, bargain collectively with District No. 10, International
Association of Machinists, as the exclusive bargaining agent of all its employees
in the bargaining unit described herein, with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement ;
(b) Immediately offer to the 32 employees named in Appendix A full rein-
statement, each to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges , and make each whole for
any loss of pay he may have suffered by reason of the Respondent's discrimina-
tion against him, by payment to him of a sum of money equal to the amount
which he normally would have earned as wages from April 13, 1949, to the
date of the Respondent's offer of reinstatement, less his net earnings during said
period ;
(c) Post at its plant in Milwaukee , Wisconsin, copies of the notice attached
hereto marked Appendix B. Copies of said notice, to be furnished by the Re-
gional Director for the Thirteenth Region, shall, after being signed by the Re-
spondent's representative, be posted by the Respondent and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced,, or covered by any other material ;
(d) Notify the Regional Director for the Thirteenth Region in writing,
within twenty (20) days from the date of the receipt of this Intermediate Re-
port, what steps the Respondent has taken to comply herewith.
BRADLEY WASHFOUNTAIN'CO. 1685
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
As provided in Section 203.46 of, the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an'original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record'or proceeding
(Including rulings upon all motions or objections) as he relies upon, together'
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy thereof
pon each of the other parties. Statement of exceptions and briefs shall desig-u-
n; tte by precise citation the portions of the record relied' upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C.,.this 31st day of January 1950.
C. W. WHITTEMORE,
Trial Examiner.
APPENDIX A
Philip Anderson'
Alfred Enders
Joseph Mrozek
Alfred Bauers
Wilbur Fisher
Elmer Duesing
Robert Hause ..
Alfred Anderson
Paul Meyer .
Walter Loebig
William Regall '
Felix Pokrzewinski
Russell Mattson
John Tadych
Robert Schmidt
Fred Spankowski
Gustav Reib
Harvey Steele
Morris Solvang
Sylvester Gillick
Rudolph V. Klar
Elroy 1. Beilke
John Kuczkowski
John Zamfel
Stanley Anczak
Mike Sansone
Robert Pulvermacher
'Ed Kuczkowski
Al- Menzel
Norbert Datka
Edward Lilly
Stanley Novey
1686' DECISIONS OF • NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor'
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist DISTRICT No. 10, INTERNATIONAL Asso-
CIATION OF MACHINISTS or any other. Tabor organization, to bargain
collectively through representatives of their own. choosing , and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any , and . all such activities
except to the extent that such right may be affected by an agreement re=
quiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act. .
WE WILL OFFER to the employees named below , immediate and,; full .
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
WE WILL , BARGAIN collectively upon request with the above-named
union as the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay, hours of employment,
or other conditions of employment ; and if an understanding is reached, em=
body such understanding in a signed agreement . The bargaining unit is:.,
All production and maintenance employees, excluding office and clerical,„
guards, watchmen , the janitress , and supervisors.
Philip Anderson Gustav Reib
Alfred Enders Harvey Steele
Joseph Mrozek
Alfred Bauers
Wilbur Fisher
Elmer Duesing
Robert Hause
Alfred "Anderson
Paul Meyer
Walter Loebig
William Regall
Felix Pokrzewinski
Russell Mattson
John Tadych
Robert Schmidt
Fred Spankowsk
Morris Solvang
Sylvester Gillick
Rudolph V. Klar
Elroy P. Beilke
John Kuczkowski
John Zamfel
Stanley Anczak
Mike Sansone.
Robert Pulvermacher
Ed Kuczkowski.
Al Menzel
Norbert Datka ,
Edward Lilly
Stanley Novey
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
BRADLEY WASHFOUNTAIN CO. 1687
any employee because of membership in or activity on behalf of any such labor
organization.
BRADLEY WA$HFOUNTAIN CO.
Employer
Dated------------------------------ By ---------------------- ----------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.