Central Wisconsin Motor Transport Co.

National Labor Relations Board - Board Decisions

May 8, 1950

89 N.L.R.B. 1204 (N.L.R.B. 1950)

In the Matter of CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY
and LA VERNE HABECK
In the Matter of CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY
mid OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL No. 95, AFL
Cases Nos. 18-CA-92 and 18-CA-162.-Decided May 8, 1950
DECISION
AND
ORDER
On January 25, 1950, Trial Examiner David London 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. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices, and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the Respondent and
the General Counsel each filed exceptions to the Intermediate Report
and supporting briefs.
The Board,' has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor. Relations
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].
89 NLRB No. 143.
1204
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1205
Board hereby orders that the Respondent, Central Wisconsin Motor
Transport Company, Wisconsin Rapids, Wisconsin, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Office Employees International
Union, Local No. 95, AFL, or in any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment;
(b) Interrogating its employees concerning their union member-
ship or activity or the reason's for their desire to join a union;
(c) Threatening its employees with economic reprisals if Office
Employees International Union, Local No. 95, AFL, or any other
labor organization, succeeds in organizing its office;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist' Office Employees Inter-
national Union, Local No. 95, AFL, 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 protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to La Verne Habeck immediate and full reinstatement
to her former or a substantially equivalent position, without prejudice
to her seniority, and other rights and privileges;
(b) Make whole said La Verne Habeck for any loss of pay that
she may have suffered by reason of the Respondent's discrimination
against her, by payment to her of a sum of money equal to that which
she normally would have earned as wages during the period from the
date of her discharge to the date of the Respondent's offer of reinstate-
ment, less her net earnings during such period;
(c) Post immediately at its plant at Wisconsin Rapids, Wisconsin,
copies of the notice attached to the Intermediate Report and marked
Appendix A.2 Copies of said notice, to be furnished by the Regional
2 Said notice , however, shall be, and it hereby is, amended by striking from line 3
thereof , the words "The recommendations of a Trial Examiner," and substituting in lieu
thereof , the words : "A Decision and Order ." In the event that this Order is enforced by
decree of a United States Court 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."
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for the Eighteenth Region , shall, after being duly signed
by the Respondent 's representative , be posted by the Respondent im-
mediately upon receipt thereof 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 Eighteenth Region in
writing, within ten (10 ) days from the date of this Order, what.steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed , insofar as it alleges that the Respondent discriminated in
regard to the hire and tenure of employment of Rosella Smith.
INTERMEDIATE REPORT
Erurin A. Peterson, for the General Counsel.
R. S. Felhaber and John J. Ryan, Felhaber & Larson, St. Paul, Minn., for the
Respondent.
Harry R. Slappa, Wisconsin Rapids, Wis., for the Union.
STATEMENT OF THE CASE
Upon charges filed on February 14 and October 24, 1949, by La Verne Habeck
and Office Employees International Union, Local No. 95, A. F. of L., respectively,
the General Counsel for the National Labor Relations Board, by the Regional
Director for the Eighteenth Region (Minneapolis, Minnesota), on October 28,
1949, issued an order consolidating said cases , and a consolidated complaint
against Central Wisconsin Motor Transport Company. The complaint alleged
that Respondent had engaged, and was engaging, in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, as amended.' Copies of the
charges, the complaint, and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about January 14, 1949, and on or about October 17, 1949, Respondent
discharged La Verne Habeck and Rosella Smith, respectively, because each of said
employees joined and assisted the Union, and engaged in concerted activities
with other employees for the purposes of collective bargaining and other mutual
aid and protection ; that by such conduct Respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed to them by Section
7 of the Act. The complaint further alleged that from on or about December 1,
1948, to the time of the issuance of the complaint, Respondent interrogated its
employees with respect to their union affiliations and activities, and warned
them against joining, assisting , or supporting the Union and against engaging
I For convenience , the following contractions or symbols will be observed in later portions
of this report : Central Wisconsin Motor Transport Company will be referred to as Respond-
ent; Office Employees International Union, Local No. 95 , A. F. of L. as the Union ; the
National Labor Relations Board as the Board ; and the National Labor Relations Act, as
amended, as the Act.
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1207
in concerted activities for the purposes of collective bargaining and other mutual
aid and protection.
The Respondent thereafter duly filed its answer, admitting the allegations of
the complaint with respect to its business operations, but denying the commission
of any unfair labor practices. With reference to the discharges, the answer
pleaded that the services of La Verne Habeck were "terminated by reason of
economic necessity," and that "the employment of Rosella Smith was self-
terminated."
Pursuant to notice, a hearing was held on November 17 and 18, 1949, at Wis-
consin Rapids, Wisconsin, before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and Respondent were
represented by counsel and the Union by its representative, all of whom partici-
pated in the hearing. Full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing upon the issues was afforded all
parties 2 At the close of the hearing, the General Counsel moved to conform
the pleadings to the proof relative to names, dates, and places; there being no
objection, the motion was granted. The parties waived oral argument. Since
the close of the hearing, Respondent has submitted a memorandum brief.
Upon the entire record in the case and my observation of the witnesses at the
hearing, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation, engaged in the trucking business, hav-
ing its principal office and terminal at Wisconsin Rapids, Wisconsin. It main-
tains terminals in Appleton, Madison, Milwaukee, and Beaver Dam, all in the
State of Wisconsin, and in Minneapolis, Minnesota, and Chicago, Illinois. In
the course and conduct of its business during the calendar year 1948, Respondent
made purchases of operating supplies and raw materials amounting, in value,
in excess of $100,000, of which over 50 percent represented purchases of ship-
relents from points outside the State of Wisconsin. During the calendar year
1948 Respondent's volume of business was in excess of $1,000,000, of which amount:
approximately 90 percent was revenue derived from the carriage of goods in;
interstate commerce. Respondent admitted and 1 find that it is engaged int
commerce within the meaning of the Act.
P II. THE LABOR ORGANIZATION INVOLVED
Office Employees International Union, Local No. 95, A. F. of L. is a labor or-
ganization admitting employees of Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
As above indicated, Respondent is and since 1934 has been engaged in the
trucking business with principal offices located in Wisconsin Rapids where all
2 Ruling was reserved at the hearing on the admissibility of Respondent's Exhibit 3, a
collective bargaining agreement tendered by the Union, and Respondent's Exhibit 2,
Respondent's counterproposal thereto. Both Exhibits are hereby rejected on the ground
that they are immaterial to any issue involved in this proceeding.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the events hereinafter related took place. At the time of the hearing Respond-
ent had a total payroll of 300 employees. Arthur Clark, its president and general
manager, maintained offices at. Wisconsin Rapids. Though Respondent had labor
contracts with approximately 15 labor unions affiliated with the International
Brotherhood of Teamsters, it had no such contract with any labor organization
representing its office employees. Except for "union talk" among Respondent's
clerical employees, the first effective step looking to the organization of office
employees at its Wisconsin Rapids office occurred in December 1948, when Habeck,
one of the charging parties herein, circulated union application blanks among the
office workers. In March 1949, after Habeck's discharge, Harry Klappa, presi-
dent of the Union, requested Rosella Smith to again distribute such application
blanks. On March 11, the Union filed its petition with the Board, as Case No.
18--RC-362, requesting certification as the representative of Respondent's office
employees. On July 20, the Board ordered an election to ascertain whether
these employees desired to be so represented. At the election conducted on
August 18, the employees voted 8 to 4 to be represented by the Union. On August
25, the Union was certified as the legal representative of Respondent's office
employees for the purpose of collective bargaining under the Act. On.October 17,
the services of Rosella Smith were terminated under circumstances hereinafter
found.
Three issues are presented for determination herein : (1) Did Respondent dis-
charge La Verne Habeck because of her union membership or activity, or by
reason of "economic necessity" as pleaded in its answer; (2) Did Respondent
discharge Rosella Smith because of her union membership or activity, or were
her services "self-terminated"; (3) Did Respondent interfere with, restrain, or
coerce its employees in the exercise of rights guaranteed by Section 7 of the Act
by interrogating its employees with respect to their union activities and beliefs,
or warn them against joining the Union or engaging in concerted activities for
the purposes of collective bargaining and other mutual aid and protection.
B. The Habeck discharge
Habeck was employed by Respondent as a file clerk in April 1947, and dis-
charged on January 14, 1949: On the latter date, while employed in the claim
department, she was told by Arthur Rodau, Respondent's office manager, that
due to a "slack in business" she would be laid "off for a while." She was never
recalled. The General Counsel alleges that the termination was due to her
union activities. To sustain a charge of such discriminatory conduct, 'the
burden of proof rests on the General Counsel to show that Respondent had
knowledge of Habeck' s union activities and that it was because of'such activities,
rather than "economic reasons," that Habeck was discharged.
There is no doubt in my mind that Respondent had knowledge of Habeck's
efforts in behalf of the Union. From the time she was first employed in April
1947 until she was discharged almost 2 years later she "talk[ed] for the Union,"'
and when, in December 1948, "the girls in the office-decided to organize" and
were desirous of finding ways and means of doing so, Habeck was selected as
the medium. It was Habeck who first secured application blanks for union
membership and distributed them among the girls. "In a small [office] like
`Based on the undisputed testimony of Geraldine Whitrock, sometimes referred to as
Jerry Whitrock.
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1209
the present one, it is a reasonable inference that the information [as to her
union activities] came to the notice of the higher management officials." 4 More
over, there is direct evidence that Respondent had knowledge of Habeck's union
activities. Sherman Pryne, Respondent's supervisor of accounts payable, testified
he was asked to join the Union and was told that it was Habeck who brought
the application blanks into the office. Upon the entire record I am convinced,
and accordingly find, that Respondent had knowledge of Habeck's union activities.
Nor can there be any question that Respondent did not approve of the union
organization of its office employees. Thus, Arthur Clark, its president, testified
frankly he was "opposed to it-as any business man would be."' This, of
course, was his right and privilege, so long as he did not seek to consummate
his desires through means proscribed by the Act. Respondent, however, exceeded
the legal bounds within which it could urge its employees to abstain from union
membership or activity. Its open hostility to such activities was manifested
by overt interference with, and restraint and coercion of its employees found
to be violative of Section 8 (a) (1) of the Act in Section III D, infra. That
such unlawful hostility was not openly revealed until after Habeck's discharge,
I consider to be of little moment. It would be utterly unrealistic to assume it
did not exist several months earlier when Habeck was discharged.
The facts above found and referred to, coupled with Rodau's testimony that
at the time of Habeck's discharge four other girls with less seniority were
retained, one of them doing work that Habeck could have performed, made it
"Respondent's duty to go forward with probative evidence to establish that the
discharge was not discriminatory, but for cause."'
To substantiate Respondent's pleaded defense that Habeck was discharged for
"economic reasons," Clark testified that for a long time prior to 1949 he was
aware that the office was not being operated efficiently. In the fall of 1948,
Rosella Smith, in whom he placed the greatest confidence, confirmed his view
that the office staff could be reduced by two or three employees without impair-
ment of its operations. It was during the same period that he had a similar
talk with Rodau who expressed the same opinion. No action was taken, however,
to reduce the staff until the week ending January 14, 1949, a short time after
Habeck circulated the union application cards in the office and Supervisor Pryne
was informed of her activity in that field. During that week, Clark gave Rodau
instructions to discharge at least two office employees, specifically naming Habeck
as one of those to be released, and authorizing Rodau to designate the other'
If reliance is to be placed on Respondent's claim that Habeck's discharge was
due to overstaffing of its office force, no explanation is found in the record for the
reduction not being made until January 14, 1949, rather than 3 or 4 months earlier
when such overstaffing was the subject of discussion between Clark, Rodau, and
Smith. Nor was any witness able to give any explanation whatsoever, for the
fact that if the office was overstaffed in the fall of 1948, 2 new girls were never-
theless hired in the following December or January, and why there was an
4 N. L. R. B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C. A. 1) ; Quest-Shop
Mark Brassiere Co., Inc., 80 NLRB 1149; Samuel S. Brody, d/b/a Standard Service Bureau,
87 NLRB 1405.
The reasons for his opposition were amplified in a speech delivered to his employees
shortly before the election.
G Sioux City Brewing Company, 82 NLRB 1061; Universal Camera Corporation, 79
NLRB 379.
7 One other girl, Kay Rider, was discharged the following week.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase in the number of office employees from 17 in November 1943 to 18 in the
following month.
Clark testified that Habeck's discharge on January 14, 1949, was precipitated
by the decline in operating revenue from $196,000 in November 1948, to $165,000
in the following month, a decline which he testified created an operating loss and
prompted him to also order reductions in the office staffs of the branch offices
operated in other cities. However, a consideration of the magnitude of Respond-
ent's operations during 1948 and 1949 to the date of hearing throws doubt on
the sincerity of the fears expressed by Clark. Thus, he testified that Respondent's
operating revenue for these periods was as follows :
1948 1949
January-------------------------------- $146,000 $152,000
February------------------------------- 148,000 162,000
March---------------------------------- 184,000 205,000
April----------------------------------- 172,000 197,000
May------------------------------------ 174,000 202,000
June----------------------------------- 178,000 215,000
July------------------------------------ 152,000 176,000
August--------------------------------- .168,000 223,000
September-------------------------- -- 177,000 245,000
October--------------------------------. 193,000 256,000
November------------------------------. 196,000 X256,000
December ------------------------------- 165,000
*In excess of.
In giving consideration to this phase of the case, it must be remembered that
the central office of Respondent was maintained at Wisconsin Rapids and that
presumably its claim department, where Habeck was last employed, was central-
ized there. No attempt was made to break down the operating revenue between
Wisconsin Rapids, the main terminal, and the branch terminals located in six
other cities. It may therefore well be that the reduction ordered by Clark for
the branch terminals was justified by reduced operating revenue suffered by such
branch terminals. Furthermore, Supervisor Lepley testified that gross volume,
as well as the number of claims handled by his department, fluctuated with the
seasons of the year, and "the evidence did not establish that it was customary
for the Respondent to lay off employees in this slack period."' Indeed, it is only
if the month of December 1948 is considered in isolation that there is any basis
for the fears expressed by Clark. Thus, the tabulation noted above shows that
there was a steady increase in operating revenue from $152,000 in July 1948 to
$196,000 in November 1948. It would be unrealistic to assume that a business
enjoying an annual operating revenue in excess of $2,000,000 would demand a
reduction of its office staff because of a single month's seasonal decline in gross
revenue. Significantly, no such reduction was effected in July 1949 when there
was a reduction of $39,000 in operating revenue from that enjoyed in the
preceding month.
While the record is silent as to whether or not Respondent had any established
policy recognizing seniority as a factor governing layoffs, its general applica-
tion in industry justifies me in giving consideration to Respondent's failure to
apply it in the instant case. Thus, Habeck testified without contradiction that
8 Sioux City Brewing Company, supra.
C'E'NTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1211
when she was discharged on January 14, 1949, Respondent kept on its payroll
two girls first employed either during December 1948 or January 1949, and
Rodau, testifying for Respondent, admitted that four girls with less seniority
were given preference over Habeck and that the latter "could have done the work
of one of the girls that was retained." And, though Clark admitted that there
may have been some additional turn-over in the office staff during November-
December 1948, due to resignations with the resultant employment of new em-
ployees, my suggestion that detailed information on that subject be furnished was
not complied with.'
Nor is there any reasonable basis for concluding that Habeck was selected
for termination because her work was less satisfactory than that of some of the
girls retained. Indeed, the objective factors present point in the opposite direc-
tion. Thus, in the 21 months of her employment, Habeck was granted three wage
increases, each in the sum of $2.50 per week. The first of such rewards, ap-
proximately 6 months after she was first employed, was unsolicited and came
as a complete surprise to her. The next increase was granted in January 1948
as part of an office-wide plan. The third raise was granted pursuant to her in-
dividual request just before she was transferred to the claim department. In
the light of this record, the disparagement with which some of Respondent's wit-
nesses characterized her work loses most of its significance. Lepley, her last
supervisor, though given an opportunity to do so, did not describe her as incom-
petent, but merely testified she was not as competent as Virginia Ranson, a
much more experienced employee in the. same department. In any event, Rodau
admitted that Habeck was competent to do the work of one of the four girls
with less seniority who was retained when Habeck was discharged. No testi-
mony was offered that Habeck was ever criticized for her work during her ten-
ure or was any claim of incompetence asserted at the time she was discharged.
On the contrary, Rodau then told her that she would be rehired "in a month or
so" if need arose.10 And Clark, on or about March 22, 1949, told Smith that while
he objected to Habeck's vehemence in discussing her discharge with him on Jan-
uary 14, "if she [would] come back and talk decently [he] would give her her
job back."
Upon the entire record, I am convinced and find that Habeck was discharged
on January 14, 1949, because of her union activity and that thereby Respondent
discouraged union membership and activity on the part of its employees, all in
violation of Section 8 (a) (1) and (3) of the Act.
C. The Smith discharge
Rosella Smith, employed by Respondent since January 1943, was without
dispute one of Respondent's most competent and reliable employees, and enjoyed
Clark's confidence to a greater extent than any other female employee. Though
she apparently had no technical status as a supervisor, because of her seniority
and popularity among the employees, her advice and assistance were frequently
sought, especially by new employees. Smith, however, was outranked in sen-
iority by Geraldine Whitrock, who, except for a short interval in the winter of
9 The failure to do so "permits the inference that its tenure is unfavorable to the party's
cause." [ Emphasis in text.] Wogmore on Evidence , 3d Ed., Sec. 285 , and cases cited
therein.
10 The failure to do so has been held , under circumstances similar to those here presented,
to be violative of Section 8 (a) (3) of the Act. H & H Manufacturing Company, Inc.,
.87 NLRB 1373.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1945, has been steadily employed by Respondent since August 1942, and since ap-
proximately March 1946 has been in charge of Respondent's accounts receivable
department.
Smith and 'vW'hitrock were very friendly until several years before the date
of the hearing when, for undisclosed reasons, the relationship became extremely
strained. On.or about September 29, 1949, Whitrock came to Clark and threat
ened to quit her job because, in her opinion, her authority with rank-and-file
employees was being undermined. Clark called a meeting of the entire office
staff on October 3, pleaded for cooperation and for an end to the bickering that
undoubtedly interfered with the efficient operation of the staff. He also insisted
that the employees stop union solicitation in the office. During the conference
the strained relationship between Smith and Whitrock flared into the open, and
accusations pertaining to office conduct were exchanged between the two women.
Clark brought the acrimonious discussion to an end by the following statement:
"There has been some question about Jerry ^^'hitrock's authority-I want this
understood : Jerry Whitrock right now, and I want you all to understand it, is
without question in charge of the accounts receivable department, and in the
absence of Mr. Rodau she is in charge of this complete office and if she wants
to, she may fire anyone-that she feels is incompetent." Because one source of
irritation between Smith and Whitrock had been Smith's practice of taking
work papers from Whitrock's desk during the latter's absence and without her
knowledge, Clark publicly instructed Smith "never to go into [Whitrock's] desk
or never to take things off her desk again" without Whitrock's consent, which
he felt certain would be granted upon request 11
On the following morning, Whitrock came to Clark and complained that Smith
had again taken papers off her desk. Clark went to Minneapolis and on October
.6 consulted his attorney who told him that the situation would undoubtedly
have its repercussions and advised that Clark's further instructions in the matter
should be reduced to writing." Upon his return to Wisconsin Rapids, Clark
gave Whitrock a draft of the letter prepared by his attorney and asked her to
retype it. He was then called to Milwaukee on business. On October 14, 1949,
Whitrock left her desk while working on the "C. O. D. listings." Upon her
return, the listings were not there. Inquiry of Smith brought an admission from
the latter that she had taken the papers. At about 11: 45 a. in. of the following
work day, October 17, Rodau, under instructions from Clark, handed Smith the
letter drafted by Respondent's attorney. It read as follows :
OCTOBER 17, 1949.
Mrs. NESTER SMITH
351 Oak Street
Wisconsin Rapids, Wisconsin
DEAR MRS. SMITH, In my absence I understand that you almost imme-
diately violated instructions by removing office data from the desk of Mrs.
Whitrock without authority.
11 While Smith denied that Clark had given her this specific instruction on October 3,
both Rodau and Whitrock corroborated Clark in this respect. Furthermore, all the wit-
nesses who testified on the subject were in agreement that the subject was discussed between
Smith and Whitrock at the meeting. Under the circumstances, and in view of the apparent
-seriousness attributed to the situation by Clark, Smith, and Whitrock, Clark's testimony
that the instruction was given is credited.
12 That Clark chose to consult his lawyer before taking further action creates no "iriler-
ence adverse to Respondent-such action was certainly a reasonable precaution in view of
[Smith ' s] union affiliation ," a fact disclosed to Respondent under circumstances hereafter
detailed . See Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439 , fn. 14,
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1213
You must remember this was expressly discussed as not to be done at
our group meeting Monday, October 3rd, at which time I also informed
all the office personnel that Mrs. Whitrock would be in charge of accounts
receivable. Also, in the absence of Mr. Rodau, she would then be in com-
plete charge of all female office personnel. Certainly those oral state-
ments should be recognized as completely as anything in writing.
While I believe this merits immediate discharge, I am asking that you
communicate with me at once so that I will have available all facts from
all possible viewpoints.
Sincerely,
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY,
(s) Arthur Clark,
ARTHUR CLARK, President.
The letter aroused Smith's anger. She picked up two little ornaments, a foun-
tain pen, and a package of Kleenex from her desk (these being her personal
belongings) and after showing the letter to two employees proceeded to Clark's
office. She asked him what the letter "meant" and was told by Clark that she
"had been taking things out of Jerry Whitrock's desk." Upon asking Clark for
identification of the "things taken," the latter called Whitrock into the con-
ference. The resulting conversation, principally between the two women, en-
gendered crimination and recrimination. According to Smith's own testimony
"lots of unkind things [were] said." Clark told Smith she "wasn't doing what
[she] was told and if that happened again [she] wouldn't last 5 minutes." Smith,
again according to her own testimony, replied she would "have nothing to do with
a stool pigeon." She left the office immediately thereafter and never returned.
She called Klappa, president of the Union, the same evening and told him she
had "walked out of the office." He advised her to "contact the company" and
to report for work the following morning.
At about 9 a. in. of October 18, Smith telephoned Rodau from her home, ad-
vised him she was ill, and that "she would try to be in at 1: 00." Rodau, speak-
ing from Clark's office where he was then engaged, offered no objection. Clark,
after hearing Rodau's version of the telephone conversation, called Smith on the
phone about an hour later and informed her that "so far as he was concerned
[she] had quit when [she] walked out" and that he didn't "want [her] to come
in at 1 o'clock."
Upon the entire record and from my observation of the witnesses, I am
convinced and find that Smith voluntarily terminated her employment and that
she was not discharged. Both Smith and Whitrock impressed me as strong-
willed women, with apparent authority which each sought to assert. When per-
sonal differences and animosity arose between them,. the resultant clash, could
have no other effect than a deterioration in, the morale and efficiency of the
entire office staff. Clark met the situation as any reasonably competent business
executive would when confronted with such' a dilemma.. He made his decision
clear in the meeting with the staff on October 3. Certainly from that date on,
according to Smith's own testimony, she understood clearly that Whitrock had
"greater responsibilities of supervision than [she] did." Nor, because it was
the source of so much irritation, could there be any doubt in her mind that
from that date on she would be violating Clark's specific instructions if she
thereafter removed papers from Whitrock's desk without the -latter's consent.
Whether Clark acted wisely or prudently in vesting supervisory power in Whit.
rock rather than in Smith, or in promulgating the rule against the removal of
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers (a practice which apparently had previously been generally indulged in),
is not for me to judge or determine. Such action was purely within the domain
and among the prerogatives of management. For present purposes, it is suffi-
-cient to find that the selection of Whitrock over Smith was made and that the
rule against the removal of papers was promulgated.
Both decisions undoubtedly rankled Smith deeply and from my observation
of the two women I can conclude only that Smith was determined not to change
her attitude or conduct. Instead she had made up her mind to quit rather
than observe Clark's instructions. The removal of her personal belongings
serves as silent but unequivocal expression of her intent. That she was not
discharged is further evidenced by her own testimony that Clark at the opening
of the conference with her on October 17 told her, in effect, that the letter was
another warning that if her conduct was repeated she "wouldn't last 5 minutes."
On the other hand, the removal of her personal belongings, her statement to
Clark and Whitrock that she would not take orders from the latter, followed by
her innnediate exit from the office and her statement to Klappa that "she had
walked out of the office," compel a finding that she voluntarily terminated her
employment with Respondent on October 17.
Nor is there any basis for finding that Respondent violated the Act in refusing
to reemploy Smith when she telephoned Clark on October 18. Even if it be
assumed that Smith had not voluntarily terminated her employment, the record
warrants a finding that Smith violated Clark's instructions of October 3 with
respect to the removal of papers, and on October 17 engaged in conduct to destroy
the discipline which Respondent was entitled to maintain in its office. Under
the circumstances, Respondent would be justified in discharging her for such
conduct. In that state of the record, it follows that Respondent was within its
legal rights in refusing reemployment to Smith on October 18.
In arriving at my conclusions, due consideration has been given to Smith's
union activities and the effect that they may have had on Clark's decision not
to reemploy her. Thus, the evidence is undisputed that it was Smith who
brought union application blanks to the girls just before the Union's petition for
certification was filed, a fact she readily disclosed to Clark on March 23, 1949,
and thereafter to J. J. Ryan, one of Respondent's attorneys, under circum-
stances hereafter related. Furthermore, it is undisputed that she was on the
Union's committee to negotiate a contract with Respondent. Union membership
or activity, however, did not immunize Smith against rules and instructions
imposed by management, or foreclose Respondent from taking appropriate action
to maintain discipline in its office. "Respondent may well have welcomed the
opportunity of getting rid of [her] but neither [her] activities nor the Respond-
ent's attitude, gave [her] privileges greater than those of other employees." u
I therefore find that Respondent neither discriminatorily discharged Smith
nor refused to reemploy her by reason of her union membership or activity.
D. Interferen6c, restraint , and coercion
After Habeck's charge against Respondent was served on Respondent on
February 14, 1949, one Carrier, a field representative of the Board, interviewed
Smith and several other of Respondent's office employees with reference to Ha-
13 Lloyd A. Fry Roofing Company, 85 NLRB 1222; Chance Vought Aircraft Division of
United Aircraft Corporation , 85 NLRB 183 ; McKinney Lumber Company , Inc., 82 NLRB
38. See also The Linde Air Products Company, 86 NLRB 1333.
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1215•
beck's discharge. On March 23, 1949, Clark asked Smith, because he wanted
"some protection" when he went "into court," what she told Carrier when she
was interviewed. She told Clark that she didn't know why Habeck was dis-
charged and that she had informed Carrier that she knew "very little about
[Habeck's] trying to organize a union in the office." Upon being told by Smith,
that the latter had brought union application blanks into the office and had se-
cured signatures thereto, Clark urged upon her the view that there was no need
for union organization in the office.
Sometime in May 1949, J. J. Ryan, already identified as one of Respondent'g^
attorneys, called Smith and a number of Respondent's female office workers into-
Clark's office and, in individual interviews, inquired what each of them knew"
about Habeck and her discharge. In the course of the interview with Smith and'
some of the other girls, most, if not all, received the impression that Ryan was;
highly critical of their work and that in his opinion they were incompetent;
overpaid, and receiving higher wages than the girls working in Respondent's
Chicago and Milwaukee terminals. On the following day Ryan called Smith to
the office and told her he had been misinformed on the comparative salaries paid
Respondent's employees in Wisconsin Rapids, Chicago, and Milwaukee. The
question of the girls' competence was drawn into the discussion and Ryan denied
he had told Smith the girls were "incompetent and overpaid." Her veracity
being challenged, Smith called five of the girls previously interviewed by Ryan
into Clark's office. All of them, in Clark's presence, confirmed the fact that
Ryan had made to each of them the statement attributed to him by Smith. Clark
informed them that Ryan had no authority to say that the girls had been over-
paid. The need for union organization was discussed pro and con. In the.
course of the conversation Clark told the assembly of girls that if the Union,
won the election "things will be tough, things will be very tough. You don't
know how tough we can make it.""
In Ryan's interview with Smith, he asked about her "union activity," why she
was interested in the Union, and why she had brought union application blanks
to the girls. In his interview with Fay Herman, Virginia Ranson, and Lucille
I{och, he asked each of them why they wanted a union in the office. There was
no denial by Ryan of any of the statements or inquiries attributed to him.
While Ryan and Clark were "privileged to interview employees for the pur-
pose of discovering facts within the limits of the issues raised by [the charge
filed by Habeck]-" for the purpose of preparing its case for trial, it cannot
"go beyond the necessities of such preparation to pry into matters-[which]
interfere with the stautory right to self-organization." 10 I find that Clark, by
warning the girls as to how "tough" it would be for them if the Union won the
election, and Ryan, by interrogating them as to why they wanted a union and
why Smith had brought union application blanks into the office, interfered with,
restrained, and coerced Respondent's employees in the unfettered exercise of
rights guaranteed by Section 7 of the Act and that by such conduct Respondent
violated Section 8 (a) (1) of the Act 1°
"This incident is based on the credited testimony of Smith and Alice Knudson. Fay
Herman testified that Clark said that if the girls had a Union "there would be some
changes made and-[they] would be surprised at what changes would be made." Clark
did not deny making any of the statements attributed to him.
Is May Department Stores Company, 70 NLRB 94, 95.
14 Standard-Coosa-Thatcher Company, 85 NLRB 1358; The Linde Air Products Company,
supra.
1216 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 connection with its operations as described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
'Having found that Respondent has and is engaged in certain unfair labor prac-
.tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action which the undersigned finds will effectuate the policies
of the Act.
Because Respondent has discriminated against La Verne Habeck in regard
to her tenure of employment, it is therefore recommended that Respondent offer
her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights and privileges. It
will be further recommended that Respondent make La Verne Habeck whole
for any loss of pay she may have suffered by reason of Respondent's discrimina-
tion against her, by payment to her of a sum of money equal to that amount which
she normally would have earned as wages during the period from the date of
discharge to the date of offer of reinstatement, less her net' earnings, during
said period.
It is further found that the unfair labor practices committed by Respondent
potentially relate to other unfair labor practices proscribed, and that danger
of their commission in the future is to be anticipated from Respondent's past
conduct. The preventive puiposes of the Act will be thwarted unless the order
is coextensive with the. threat. Accordingly, in order to make effective the inter-
dependent guarantees of Section 7 and thus effectuate the policies of the' Act,
it will be recommended that Respondent cease and desist from in any manner
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act"
CONCLUSIONS OF LAW
1. Office Employees International Union, Local No. 95, A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in-regard to the tenure of employment of La Verne
lRabeck, thereby discouraging membership in and activities on behalf of Office
Employees International Union, Local No. 95, A. F. of L., Respondent has
,engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not violated Section 8 (a) (3) of the Act in regard to the
tenure of employment of Rosella Smith.
11 May Department Stores v. N. L. R. B., 326 U. S. 376; Anchor Rug Mill, 85 NLRB 764.
CENTRAL. WISCONSIN MOTOR! TRANSPORT COMPANY 1217
RECOMMENDATIONS
Upon the basis of the above findings,of fact and conclusions of law, I recom-
mend that Respondent, Central Wisconsin Motor Transport Company, its officers
and agents shall:
1. Cease and desist from :
(a) Discouraging membership in Office Employees International Union, Local
No. 95, A. F. of L., or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by discriminating in
any other manner in regard to their hire or tenure of employment or any term
or condition of employment ;
(b) Interrogating its employees concerning their union membership or activity
or the reasons for their desire to join a union ;
(c) Threatening its employees with economic-reprisals if Office Employees
International Union, Local No. 95, A. F. of L., or any other labor organization,
succeeds in unionizing its office ;
(d) . In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist Office Employees International Union, Local No. 95, A. F.
of L., or any other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection or to refrain from any
or all such activities, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to La Verne Habeck immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority and other
rights and privileges, and to make her whole for any loss she may have suffered
by reason of Respondent's discrimination against her,'in the manner set forth
in the section entitled "The remedy," above ;
(b) Post immediately at its office at Wisconsin Rapids, Wisconsin, copies of
the notice attached hereto and marked Appendix A. Copies of said notice, to
be furnished by the Regional Director for the Eighteenth Region, shall, after
being duly signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for sixty (60) consecutive
days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Eighteenth Region in writing within
twenty (20) days from the.date of receipt of this Intermediate Report what steps
Respondent has taken to comply herewith.
It is recommended that unless on or before twenty (20) days from the date
of the receipt of this Intermediate Report, Respondent notify said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent has discriminated with respect to the hire and tenure of employ-
ment of Rosella Smith.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) relied
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 and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed , and if mimeo-
graphed 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 25th day of January 1950.
DAVID LONDON,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to 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 discourage membership in OFFICE EMPLOYEES INTERNATIONAL
UNION, LocAL No. 95, A. F. of L., or any other labor organization of our
employees, by discharging any of our employees, or in any other manner
discriminating as to their hire and tenure of employment , or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning their union affiliations,
activities, or sympathies or those of their coworkers, or threaten our emn-
ployees with economic reprisals for their union affiliation or activities, or in
any other manner interfere with, restrain, or coerce our, employees in the
exercise of the right to self-organization, to form labor organizations, to
join or assist OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL No. 95,
A. F. of L., 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 protection,
or to refrain from any or all of such activities except to the extent that
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY 1219,
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.
WE WILL OFFER La Verne Habeck immediate and full reinstatement to her
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make her whole for
any loss of pay suffered as a result of the discrimination against her.
All our employees are free to become, remain, or refrain, from becoming.
members of the above-named union or any other labor organization.
CENTRAL WISCONSIN MOTOR TRANSPORT COMPANY,
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.
889227-51-vol- 89-78