Cleaver-Brooks Mfg. Corp.

National Labor Relations Board - Board Decisions

May 26, 1958

120 N.L.R.B. 1135 (N.L.R.B. 1958)

CLEAVER-BROOKS MFG. CORPORATION 1135
Under these circumstances we shall direct an election on the basis of
the cross petition, treating the Petitioner as though it were the inter-
venor in this proceeding.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer with-
in the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
the Act.
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All production, maintenance,
and toolroom employees at the Employer's plant, Tecumseh, Michigan,
excluding time-study men, methods engineers, office and plant clerical
employees, professional employees, guards, and all supervisors as
defined in the Act.
[Text of Direction of Election 8 omitted from publication.]
8 The Petitioner's appearance on this ballot shall be conditioned upon its renewal of
compliance with Section 9 (g) of the Act within 10 days after the issuance of the
Decision and Direction of Election and no election shall be scheduled to be held prior
thereto.
Cleaver-Brooks Mfg. Corporation and United Steelworkers of
America, AFL-CIO and Claire A. Houk, Thomas Zivkovich,
Carl J. Holston , and Carl R . Olson and United Steelworkers of
America, AFL-CIO and Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation , Party to the Contract. Cases
Nos. 13-CA-2399, 13-CA-2400, 13-CA-2400 (a), 13=CA-2400 (b),
13-0.4-2400(c), and 13-CA-2425. May 26, 1958
DECISION AND ORDER
On October 29, 1957, Trial Examiner Lee J. Best issued his Inter-
mediate 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, a brief in support of the excep-
tions and a reply brief, and the Charging Parties filed a brief in
support of the Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
'The Respondent has requested oral argument. In our opinion the record, exceptions,
and briefs fully present the issues and the positions of the parties. Accordingly, the
request is denied.
120 NLRB No. 152.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions.
1. We agree with the Trial Examiner that employees Houk, Ziv-
kovich, Holston, and Olson engaged in protected concerted activities
when they participated in a temporary work stoppage to protest the
appointment of a supervisor, and that the Respondent violated Sec-
tion 8 (a) (1) and (3) of the Act by discharging them for having
engaged in such activities 2
2. We also agree with the Trial Examiner's finding that, by recog-
nizing and entering into a collective-bargaining agreement with Em-
ployees' Independent Union of Cleaver-Brooks Mfg. Corporation
while a question concerning representation was pending before the
Board, the Respondent violated Section 8 (a) (1) and (2) of the Act .3
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
It appears that the Respondent curtailed its operations for legiti-
mate business reasons. However, in selecting employees for layoff or
discharge it unlawfully discriminated against Claire A. Houk,
Thomas Zivkovich, Carl J. Holston, and Carl R. Olson. It is pos
sible that some of the employees discriminated against might have
been affected in the reduction of operations absent the Respondent's
unfair labor practices, but the record furnishes no basis for deter-
mining the order in which they might have been paid off or discharged.
Under these circumstances, we shall order the Respondent to offer
such employees immediate and full reinstatement` to their former or
substantially equivalent positions,' without prejudice to their seniority
and other rights and privileges, and, in the event that there is insuffi-
cient work for all such employees entitled thereto, to dismiss, if
necessary, all persons newly hired after the Respondent's discrimina-
tion. If there is not then sufficient work available for the remaining
'N. L. R. B. v Phoenix Mutual Life Insurance Company, 167 F. 2d 983 ( C. A. 7) enfg.
73 NLRB 1463, cert. denied 335 U. S. 845; Hearst Publishing Company, Inc., 113 NLRB
384; Lloyd A. Fry Roofing Company, 109 NLRB 1297 , 1314, enfd. 222 F . 2d 938 (C. A 1) ;
Wood Parts, Inc, 101 NLRB 445; Ace Handle Corporation, 100 NLRB 1279. See also
Summit Mining Corporation, 119 NLRB 1668.
We note that Leupold testified that he had not discharged the four leaders of the protest
meetings because of the language they had used at the meetings . In corroboration, he
admitted that Houk, one of the dischargees ,,had not made any abusive statements.
8 Scherrer and Davisson Logging Company, 119 NLRB 1587.; Novak, Logging Company,
119 NLRB 1573.
4 The Chase National Bank of the City of New York, etc., 65 NLRB 827.
CLEAVER-BROOKS M•FG. CORPORATION 1137
.employees and those to be offered reinstatement, all available, positions
shall be distributed among them without discrimination against any
employee because of concerted activities, in accordance with,the sys-
tem of seniority or other nondiscriminatory practice -heretofore
-applied by the Respondent in the conduct of its business. The Re-
spondent shall place those employees, if any, for whom no employment
is available after such distribution on a preferential list, with priority
in accordance with such system of seniority or other nondiscrimina-
tory practice heretofore applied by the Respondent in the conduct of
-its business, and thereafter offer them reinstatement as such employ-
ment becomes available and before other persons are hired for such
work.
We shall also order the Respondent to make whole those employees
against whom it has discriminated for any losses that they may have
suffered because of the Respondent's discrimination, by payment to
each of them of a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on a preferential
list, as the case may 'be, less his net earnings during said period,' the
back pay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company.6 Earnings in
one particular quarter shall have no effect upon the back-pay liability
for any other such period. We shall also order the Respondent to
preserve and make available to the Board, upon request, payroll and
other records necessary to determine employment rights and the
amount of back pay due:
As it is possible, however, that one or more of these employees
might have been discharged in the reduction - of the work force even
if the Respondent's selection had been made on a nondiscriminatory
basis, this possibility will be taken into consideration in determining
the amounts of back pay due to these employees, in compliance with
our Order herein?
We have found that the Respondent recognized Employees' Inde-
pendent Union of Cleaver-Brooks Mfg. Corporation, and entered into
an agreement with it effective April 2, 1957, during the pendency of a
question concerning the representation of the employees covered
thereby. By such conduct, the Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their right freely
to select their own bargaining representative, and has accorded unlaw-
ful assistance and support to Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation. In order to dissipate. the effect
5 Crossett Lumber Company , 8 NLRB 440.
9 90 NLRB 289.
See U. and S . Lumber Company, 92 NLRB 160, 164-165.
483142-59-vol. 120-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these unfair labor practices , we shall order the Respondent to
withdraw and withhold all recognition from Independent Union of
Cleaver-Brooks Mfg. Corporation , and to cease giving effect to the
aforementioned agreement , or to any renewal or extension thereof,
until such time as Employees ' Independent Union of Cleaver -Brooks
Mfg. Corp. shall have been certified by the Board as the exclusive
representative of the employees in question . Nothing herein shall,
however, be construed to require that the Respondent vary or , abandon
any existing term or condition of employment.
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated . We shall , therefore , make our order herein
coextensive with the threat by ordering the Respondent to cease and
desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
ORDER
Upon the entire record in this 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 , Cleaver-Brooks
Mfg. Corporation , Waukesha, Wisconsin , its officers , agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
AFL-CIO , or in any other labor organization , by discharging or
otherwise discriminating against employees in regard to hire or tenure
of employment or any term or condition of employment because em-
ployees have engaged in concerted activities for mutual aid or
protection.
(b) Assisting or contributing support to Employees ' Independent
Union of Cleaver-Brooks Mfg. Corporation, or to any other labor
organization.
(c) Recognizing Employees ' Independent Union of Cleaver-Brooks
Mfg. Corporation, as the bargaining representative of its employees,
unless and until said labor organization shall have been certified as
such by the National Labor Relations Board.
(d) Performing or giving effect to its April 2, 1957 , agreement
with Employees' Independent Union of Cleaver-Brooks Mfg. Cor-
poration , or to any renewal, extension , modification , or supplement
thereof, unless and until said labor organization shall have been certi-
fied as exclusive bargaining representative of its employees in an
appropriate unit by the National Labor Relations Board.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form,
CLEAVER-BROOKS MFG. CORPORATION 1139
join, or assist United Steelworkers of America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Claire A. Houk, Thomas Zivkovich, Carl J. Holston,
and Carl R. Olson immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their sen-
iority and other rights and privileges, and make each of them whole
for any loss of pay suffered by reason of the discrimination against
them, in the manner set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and reproduction, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze amounts of back pay due
and the rights of reemployment under the terms of this Order.
(c) Withdraw and withhold all recognition from Employees' In-
dependent Union of Cleaver-Brooks Mfg. Corporation as the collec-
tive-bargaining representative of its employees, unless and until said
labor organization has been certified as such representative by the
National Labor Relations Board.
(d) Post at its Waukesha, Wisconsin, plant, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent and maintained by it for a period of sixty (60)
consecutive days thereafter 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.
(e) Notify in writing the Regional Director for the Thirteenth
Region (Chicago, Illinois), within ten (10) days from the date of this
Order what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges other violation of Section 8 (a) (1).
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in United Steelworkers
of America, AFL-CIO, or in any other labor organization, by
discharging or otherwise discriminating against employees in
regard to hire or tenure of employment or any term or condition
of employment because employees have engaged in concerted
activities for mutual aid or protection.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to seniority and other rights and
privileges previously enjoyed, and make each of them whole
for any loss of pay suffered by reason of the discrimination
against them.
Claire A. Houk
Thomas Zivkovich
Carl J. Holston
Carl R. Olson
WE WILL NOT assist or contribute support to Employees' Inde-
pendent Union of Cleaver-Brooks Mfg. Corporation, or to any
other labor organization.
WE WILL NOT recognize Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation as the bargaining represent-
ative of our employees, unless and until said labor organization
has been certified as such by the National Labor Relations Board.
WE WILL NOT perform or give effect to our April 2, 1957,
agreement with Employees' Independent Union of Cleaver-
Brooks Mfg. Corporation, or to any renewal, extension, modifi-
cation, or supplement thereof.
WE wiLL withdraw and withhold 11 recognition from Em-
ployees ' Independent Union of Cleaver-Brooks Mfg. Corpora-
tion as the collective-bargaining representative of our employees,
unless and until said labor organization has been certified by the
National Labor Relations Board.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-organ-
ization, to form, join, or assist United Steelworkers of America,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
CLEAVER-BROOKS MFG. CORPORATION 1141
bargaining or other mutual aid or protection , or to refrain from
any or all of 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.
CLEAVER-BROOKS MFG . CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized and conducted under Section 10 of the National
Labor Relations Act, as amended , 61 Stat. 136, herein called the Act, were heard
before the duly designated Trial Examiner at Milwaukee , Wisconsin , on July 23, 24,
and 25 , 1957 . Upon charges ' filed by United Steelworkers of America , AFL-CIO
(herein called the Steelworkers), Claire A. Houk , Thomas Zivkovich , Carl J . Holston,
and Carl R. Olson , the General Counsel of the National Labor Relations Board on
June 19 , 1957 , issued a consolidated complaint against Cleaver -Brooks Mfg. Corpora-
tion of Waukesha , Wisconsin , herein called the Respondent , alleging that Respondent
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1), (2 ), and (3 ) of the Act, affecting commerce within the meaning of Section
2 (6) and (7) of the Act. The consolidated complaint more specifically alleges in
substance that Respondent ( 1) by specified acts and conduct of its officers , agents,
and supervisors interfered with, restrained , and coerced its employees in their exercise
of the rights guaranteed in Section 7 of the Act ; (2) on and after February 15, 1957,
rendered unlawful assistance and support to Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation ( a labor organization ), herein called the Independ-
ent; and ( 3) did on or about October 12, 1956, to encourage or discourage member-
ship in a labor organization , discriminatorily lay off and thereafter refuse to reinstate
its employees , Claire A . Houk; ' Thomas Zivkovich , Carl J . Holston , and Carl R . Olson,
because they engaged in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
Copies of the charges , order of consolidation, complaint, and other pertinent
process were duly served upon the Respondent.
In due course , Respondent filed an answer to the consolidated complaint admitting
jurisdictional data with respect to commerce but denied all allegations of unfair labor
practices.
Pursuant to notice , all parties appeared at the hearing in person and were repre-
sented by counsel . Full opportunity was afforded for all parties to be heard, to
examine and cross-examine witnesses , to introduce evidence pertinent to the issues
involved , to argue orally upon the record , and within a fixed time after the close of
the hearing to file written briefs and proposed findings and conclusions with the Trial
Examiner. All parties waived oral argument . In due course , written briefs were
filed by counsel for the General Counsel and the Respondent , and have been given
due consideration.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Cleaver-Brooks Mfg. Corporation is a corporation duly organized and existing by
virtue of the laws of the State of Wisconsin having its principal plant and place of
business located in the city of Waukesha , Wisconsin , where it is engaged in the manu-
facture of water distilling units , special products , and tooling for its parent company,
Cleaver-Brooks Company, which is also a Wisconsin corporation . In the course and
conduct of its business during the year 1956 , Respondent manufactured , sold, shipped,
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and caused to be transported in interstate commerce outside the State of Wisconsin,
finished products valued in excess of $2,000,000.
I find , therefore , that Respondent is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and Employees' Independent Union
of Cleaver-Brooks Mfg. Corporation are labor organizations within the meaning of
Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The plant organization
At all times pertinent to this case management control of Respondent 's plant in
Waukesha, Wisconsin, including labor relations, was exercised by Glenn W. Leupold,
works manager for the Cleaver-Brooks Company, Milwaukee, Wisconsin, and its
subsidiary corporations. Resident full-time supervision of the Waukesha plant was
assigned to Production Manager Chester J. Tambert as an assistant works manager.
Production operations within the Waukesha plant were subdivided by partitions into
(1) the machine shop area; (2) the component parts area; (3) the layout and
fabrication area; and (4) the general assembly area. Foreman Daniel J. Schwager
was the supervisor in charge of fabrication, layout, and maintenance. Foreman
Frank Unold supervised the assembly department. Welders employed in the plant
worked both in the component parts and assembly areas, wherever their services were
required, and during the period from May to October 1956 were assigned to Foreman
Schwager for supervision and work assignments.
During the spring and summer of 1956 the workload of Respondent was augmented
by reason of two sizable Government contracts (nearing completion), and other com-
mitments. In June and July of that year the number of hourly paid employees in the
plant ranged from a minimum of 80 to a maximum of 86. Thereafter, the minimum
and maximum respectively, decreased in August to 72-80, in September to 59-72,
in October to 47-59, and in November became stabilized at approximately 47
employees.
Soon after his appointment as works manager at Waukesha in May 1956, Leupold
apprehended that the group of welders employed in the plant lacked proper
supervision and control with respect to the assignment of work and loitering on the
job. Thereupon, he sent Robert Willis (production control supervisor and welding
foreman at the Milwaukee plant) on a visit of one week to the Waukesha plant to
observe and make recommendations for improvements in the welding situation.
Willis was a certified A. S. M. E. code welder with many years of experience in
the trade. He reported to Works Manager Leupold that the welders at Waukesha
lacked enthusiasm in their work, loitered all over the plant talking to everybody,
made an errand boy out of their foreman, and performed approximately 21/2 hours
of actual welding time during a shift period of 8 hours. Based upon that report,
the Respondent relieved Foreman Elmer Rosenberg from duty in that connection
and assigned the welders group to the exclusive supervision of Foreman Daniel J.
Schwager in the layout and fabrication department. Following this assignment
Works Manager Leupold urged both Foreman Schwager and Production Manager
Tambert to exercise closer supervision over welding work assignments and require
the leadman to perform production work instead of devoting his full time to
directing the activities of other welders. Leupold emphasized the • fact that a
leadman should work alongside the other welders and not" direct their activities,
except when instructed to do so by the foreman.
Thereafter, the situation improved, but from the testimony of Group Leader
Claire Houk it is apparent that this policy did not conform to his ideas of operating
the welding section. In several conversations during the summer of 1956, Works
Manager Leupold told Houk that he should be at work on a particular job assignment
rather than roving around the plant to direct the activities of other welders. On
one occasion Houk told the works manager that he could not stand that type of
work-that it was ruining his home life. Thereupon, Works Manager Leupold
told Houk that if he felt that way about his work in the plant there was no point in
his remaining on the job. Nevertheless, Houk continued his employment with the
Respondent, but his relationship with Works Manager Leupold became somewhat
strained.'
'The appointment of Claire Houk as leadman for the welders dates back to former
Plant Manager Clarence Gruber . Since that time he had often been consulted by the
CLEAVER-BROOKS MFG . CORPORATION 1143
B. The concerted activities
Effective October 10, 1956, the Respondent relieved Foreman Daniel J . Schwager
of his jurisdiction over the welders , and assigned the entire group to the supervision
and control of Frank Unold , foreman of the assembly department . Shortly after 9
a. m. on the effective date, Foreman Schwager told individual welders that he was
no longer their supervisor and that Frank Unold would be the new foreman. When
told about it, Carl R . Olson (welder ) threw down his tools and said "I will never
work for that two faced son of a bitch ." Others freely expressed their dissatisfaction
with the appointment . The entire group of 15 welders left their places of work,
assembled around Foreman Schwager , and demanded a meeting with management
to protest the change . Foreman Schwager immediately arranged for them to see
Production Manager Chester J. (Chet ) Tambert , and conducted the group to his
office at approximately 10 a. in.
At the meeting with Tambert the chief spokesmen for the group were Claire A.
Houk, Thomas Zivkovich , Carl J . Holston , and Carl R . Olson. All expressed the
opinion that Frank Unold was personally and professionally unfit for the job, and
not acceptable to the welders as their foreman . Holston asserted that they would
not work under his supervision . Olson referred to him as a double crosser and
backbiter . Production Manager Tambert explained to them that the selection of
the new foreman had been made by Works Manager Glenn W . Leupold , and that
he had nothing to do with it. Thereupon , the group demanded a meeting with the
works manager , and Zivkovich asserted that they would stay there until Leupold
came out to see them . Tambert agreed to make arrangements for a conference
with Leupold , and told them to go back to work. All of the welders then went
back to work . No disorder occurred.
Works Manager Leupold, met the welders group in the plant cafeteria at approxi-
mately 1 p. m. that same day. Again Houk , Zivkovich , Holston , and Olson were
the chief spokesmen for the group. Holston stated the purpose of the meeting.
Again they expressed their objections to Frank Unold as foreman-that be was a
pan they could not trust-that he was two faced-that the welders would be
unhappy working under his supervision-and that someone else should be appointed.
Leupold asserted that the appointment of the foreman was the prerogative of man-
agement , and declined to reconsider his appointment . He explained to the group
that work was scarce , and that he would try to stabilize the workload by bringing
in subcontracts from the Milwaukee plant, and thereby provide full -time employ-
ment for the present working force . Among other things, he suggested the employ-
ment of a time-study man. Thereupon , Zivkovich pointed to Production Manager
Tambert, saying "we don't need a time study man, we have got one right there."
Olson cynically asserted "promises , promises , promises-that's all we ever heard
since the union was voted out." Thereupon , the works manager told Olson in
substance "that if he did not like or believe what he (Leupold ) was saying , that he
could get the hell out." Thereupon , the protests subsided , and Holston announced
that they would give the new foreman a tryout . The meeting adjourned at approxi-
mately 2:30 p. in., and the welders again returned to work. Works Manager
Leupold detained Houk for further conference , and urged him as leadman to help
keep things on an even keel and get along with the new foreman . Houk agreed to
cooperate , but expressed some doubts that things would work out. He then
returned to his work in the plant.
C. The discriminatory discharges
Following the protest meetings on October 10, 1956, Works Manager Leupold
discussed the situation with Vice President E. H. Wegner , and decided to discharge
Claire A. Houk, Thomas Zivkovich , Carl J. Holston, and Carl R. Olson. On the
afternoon of October 11, 1956, he instructed Production Manager Chester J. Tambert
to terminate their employment . Tambert called the four employees to his office on
October 12, 1956, at approximately 2 p. m. and notified them that their services were
no longer needed by the Respondent . Each man was handed his final paycheck and
a blank form (UC-15) for use in filing claim for unemployment benefits under the
laws of Wisconsin . In each case Respondent made a written report-"REPORT OF
EMPLOYMENT SEPARATION"- indicating discharge for lack of work, and
entered thereon the remark , "Undesirable for rehire."
foreman as an experienced and capable welder, and admittedly regarded himself as an
overseer rather than a production worker. He contends that the policies and instructions
received by him from his foreman and Works Manager Leupold with respect to his duties
were conflicting.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Works Manager Glenn W. Leupold credibly testified in substance that these four
employees were discharged "because [of] the incident they created by stopping work
and by denouncing the company and denouncing the foreman, which verified in my
mind very clearly what I had suspected for a long time, that that group of men
would never accept management or any foreman presented or placed over them,"-
that Respondent had just finished up certain Government contracts, had been reducing
its working force, and reported that discharges as a layoff to save them embarrass-
ment in obtaining employment elsewhere.
Concluding Findings
8 (a)' (1) and 8 (a) (3)
The Board has held, and counsel for Respondent concedes in his brief, that em-
ployees have the right under Section 7 of the Act to submit a grievance and protest
the appointment of a supervisor.2 Respondent contends, however, that the temporary
work stoppage and refusal to work under the supervision of a new foreman on,
October 10, 1956, constituted insubordination and rebellion against managerial
authority, which deprived all of the participating welders of the protection of the
Act. Under the circumstances of this case, I do not agree with that contention. Not-
withstanding the temporary work stoppage and use of intemperate language in pre-
senting their protests, all of the welders, including the dischargees, acquiesced in
the final action taken by Respondent and returned to work at approximately 2:30'
p. m. on October 10, 1956. The Respondent at that time failed to assert the right,
if any it had, to discharge employees for refusal to work or other misconduct. In
any event the Board has consistently held that an orderly work stoppage for the
purpose of presenting a grievance is a protected concerted activity for which par-
ticipating employees may not be disciplined by the employer.3 The "mutual aid"
and "concerted activities" protected by Section 7 of the Act, include, I think, the
right to join other workers in quitting work to protest the appointment of a foreman
or any other action taken by the employer affecting the working conditions of its
employees.4 Under the test laid down by the Board in Elk Lumber Company, 91
NLRB 337, and other cases cited therein, I cannot find that the conduct engaged in
by the welders on October 10, 1956, by stopping work and protesting the appointment
of the new foreman, or the intempeiate language engaged in, was so indefensible
as to warrant the Respondent in discharging Houk, Zivkovich, Holston, and Olson
as the leaders in such concerted activities.
Nor is the protection of Section 7 of the Act limited to union activities. Under
similar conditions in Buzza-Cardoza Company, 97 NLRB 1343, the Board held that
employees engaged in such concerted activities thereby constituted themselves a
labor organization, and by discharging them the employer discriminated in regard
to their hire and tenure of employment to discourage membership in such
organization.5
Notwithstanding the intemperate language uttered by the dischargees, and
especially by Carl R. Olson, I am not persuaded that either of them forfeited the
protection guaranteed in Section 7 of the Act to employees engaged in concerted
activities for their own mutual aid or protection. I find, therefore, that Respondent
discriminated in regard to the hire and tenure of employment of its employees by
discharging Claire A. Houk, Thomas Zivkovich, Carl J. Holston, and Carl R. Olson
to discourage membership in a labor organization. By so doing Respondent also
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. Whether the conduct of Respondent be held a
violation of Section 8 (a) (1) and (3) or only a violation of Section 8 (a) (1),
the remedy will be the same.
D. The representation question
Employees of the Respondent have not been represented by an affiliated union
since expiration of a contract with International Association of Machinists, AFL„
- B N. L. R. B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 ( C. A. 7) enfg.
73 NLRB 1463 , cert . denied 335 U. S 845; Hearst Publishing Company, Inc., 11S
NLRB 384.
8 Textile Machine Works, 96 NLRB 1333; John H. Barr Marketing Company, 96 NLRB
875; Kennametal, Inc., 182 F. 2d 817 (C. A. 3).
4 Carter Carburetor Corporation v. N. L. R. B., 140 F. 2d 714 ( C. A. 8) ; Culiett Gin
Company Inc. v. N. L R. B., 179 F. 2d 499.
5 See also Kennametal, Inc., supra.
CLEAVER-BROOKS MFG. CORPORATION 1145
on December 5, 1954, and its subsequent loss of majority in the Board-ordered
-election of February 4, 1955. In October or November 1956 the employees elected
a representative in each department of the plant to serve on a Health and Welfare
Committee, composed of Joseph Pavlons, William C. Day, Philip J. Steir, and Oscar
Stuberg. Shortly thereafter in December, Pavlons and Day conceived the idea of
organizing an independent union, and discussed their plans with Works Manager
Glenn W. Leupold. Following this conversation they employed Attorney Richard
S. Hippenmeyer to draw up a charter, and by notice on the bulletin board called a
meeting of employees at the Fox Head Brewery in Waukesha on the night of
January 21, 1957.
In the meantime the Steelworkers by letter of January 14, 1957, requested the
Respondent to recognize that union and bargain with it as exclusive representative
of all production and maintfnance employees in the plant. On January 15, 1957,
the Steelworkers also filed a petition with the Board for certification in Case No.
13-RC-5338. By letter of January 16, 1957, the Respondent refused to recognize
the Steelworkers. On January 17, 1957, the Regional Director for the Thirteenth
Region issued a notice of representation hearing in Case No. 13-RC-5338, and on
that same day the Steelworkers, Claire A. Houk, Thomas Zivkovich, Carl J. Holston,
and Carl R. Olson filed unfair labor practice charges against Cleaver-Brooks Mfg.
Corporation. Consequently, the Regional Director on January 18, 1957, issued an
order postponing indefinitely the scheduled representation hearing.
Pursuant to previous notice, the employees of Respondent held their organiza-
tional meeting at the Fox Head Brewery on the night of January 21, 1957. Joseph
Pavlons presided, and Attorney Richard S. Hippenmeyer presented a prepared
charter for consideration. Carl J. Holston and Thomas Zivkovich were present,
and urged affiliation with the Steelworkers rather than the formation of an in-
dependent union. Ballots were taken and the charter for the Independent Union
was adopted by a substantial majority. Thereupon, Holston and Zivkovich walked
out of the meeting, but returned shortly thereafter with Representative Anderson
of the Steelworkers and Representative Johns of the Machinists. These repre-
sentatives openly condemned and berated employees for the action taken, began
to take pictures of the proceedings, and Johns physically attempted to destroy the
charter document. A scuffle ensued, and police were called in to quell the disturb-
ance. Upon arrival of the police and consequent departure of the intruders, the
business of the meeting continued. Officers of the Independent Union, including a
shop steward, were elected, and Joseph Pavlons was installed as the first president.
Approximately 35 employees affixed their signatures to the charter as charter
members. Thereafter, on January 24, 1957, the Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation also filed with the Board a separate representation
petition in Case No. 13-RC-5356. Thereafter, by letter of February 6, 1957,
Attorney Richard S. Hippenmeyer outlined the subject matter for discussion and
requested Respondent to meet with representatives of the Independent Union for
the purpose of negotiating a labor contract. Answer of the Respondent filed herein
admits that it recognized said union on or about February 15, 1957, and entered
into negotiations which culminated in the execution of a written agreement effective
April 2, 1957. (Respondent's Exhibit No. R-2.)
Concluding Findings
8 (a) (1) and 8 (a) (2)
Section 9 (c) (1) of the Act provides:
Whenever a petition shall have been filed in accordance with such regulations
as may be prescribed by the Board-
The Board shall investigate such petition and if it has reasonable cause to
believe that a question of representation affecting commerce exists shall provide
for an appropriate hearing upon due notice. . . If the Board finds upon the
record of such hearing that such a question of representation exists, it shall
direct an election by secret ballot and shall certify the results thereof.6
Investigation of the aforesaid rival petitions was postponed and delayed by the
pending unfair labor practice charges filed against the Respondent. Such delay
did not authorize the Respondent to arrogate to itself the resolution of the repre-
9 Congress thereby clothed the Board with the exclusive power to investigate and deter-
mine representatives for the purpose of collective bargaining.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation dispute in favor of the Independent and against the Steelworkers. Neither
is the Trial Examiner presently authorized to make such a determination.
The existence of a real question of representation is normally evidenced by the
filing and processing of a representation petition, and it is the continued existence
of the claim that determines whether the situation calls for the application of the
doctrine enunciated by the Board in Midwest Piping & Supply Co., Inc., 63 NLRB
1060, 1071. In the absence of an incumbent union or other novel situation, not
present in this case, this general rule of the Board prohibits the recognition of one
union by an employer in the face of the rival claim of another union. I am, there-
fore, convinced and find that Respondent, by recognizing and executing a collective
bargaining agreement with the Independent Union while representation proceedings
were pending before the Board, indicated its approval of the Independent, accorded
it unwarranted prestige, encouraged membership therein, discouraged membership
in the Steelworkers and thereby rendered unlawful assistance to the Independent,
which interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
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 II, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States tending to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in and is engaging in certain unfair labor
practices, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, I shall recommend that it
cease and desist therefrom, and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminated in regard to hire and tenure of
employment to discourage its employees from engaging in concerted activities for
their mutual aid or protection, and to discourage membership in a labor organization,
by discharging Claire A. Houk, Thomas Zivkovich, Carl J. Holston, and Carl R.
Olson, it will be recommended that Respondent forthwith offer to each of said dis-
chargees immediate reinstatement to his former or substantially equivalent position 4
without prejudice to seniority and other rights and privileges; and make each of
them whole for any loss of pay suffered by reason of the discrimination by the pay-
ment to each of them of a sum of money equal to the amount he would have earned
from the date of his discharge to the date on which Respondent shall offer proper
reinstatement as herein provided, less net earnings 8 to be computed on a quarterly
basis in the manner set forth in F. W. Woolworth Co., 90 NLRB 289, and N. L. R. B.
V. Seven-Up Bottling Co., 344 U. S. 344. Earnings in one particular quarter shall
not affect the back-pay liability for any other such period.
It will be further recommended that Respondent preserve and upon request make
available to the Board or its agents, for examination and reproduction, all payroll
records, social-security payment records, timecards, personnel reports, and other
records necessary to analyze, compute, and determine the amounts of back pay and
other employment rights and privileges to which each of the dischargees herein may
be entitled by reason of the discrimination against them.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent, Cleaver-Brooks Mfg. Corporation, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, and Employees' Independent
Union of Cleaver-Brooks Mfg.- Corporation are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Claire
A. Houk, Thomas Zivkovich, Carl J. Holston, and Carl R. Olson to discourage
membership in a labor organization and participation in concerted activities with
other employees for their mutual aid or protection, the Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
7 See Chase National Bank, 65 NLRB 827.
8 See Crossett Lumber Co., 8 NLRB 497-498.
BOWMAN TRANSPORTATION, INC. _ 1147
Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By recognizing and entering into a collective -bargaining agreement with the
Independent Union while rival petitions of that union and the Steelworkers were
pending before the Board , the Respondent interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act and
contributed illegal assistance and support to a labor organization , and thereby
engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) and (2) of the Act.
5. With respect to other conduct of Respondent alleged in the complaint , I find no
independent violations of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Bowman Transportation , Inc. and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,
Local No. 612
Bowman Transportation, Inc. and Truck Drivers & Helpers Local
No. 515, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
Bowman Transportation, Inc. and Highway & Local Motor
Freight Employees Local Union No. 667, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America. Cases Nos. 10-CA-1950,1 10-CA-1985, 10-RC-3745,
and 32-RC-983. May 27, 1958
SUPPLEMENTAL DECISION, ORDER CONSOLIDATING
CASES AND DIRECTING HEARING, AND AMENDED
ORDER
The above-entitled complaint proceedings are before the Board on
remand from the Supreme Court. The remand directs the Board to
reframe its remedial order to permit District 50, United Mine Workers
of America, a noncomplying labor organization which was assisted by
the Respondent Company in violation of Section 8 (a) (2) of the Act,
to demonstrate in an election conducted pursuant to the Board's
remedial powers under Section 10 (c) that the effects of assistance
have been dissipated and that the Company's employees desire to be
represented exclusively by that union.
In its original Decision and Order,' the Board found, inter alia,
that the Company illegally assisted the UMW in becoming the ma-
jority representative of the Company's employees. To remedy the
effects of this assistance, the Board ordered the Company to withdraw
and withhold recognition from the UMW as exclusive bargaining
1 For the reasons set forth in our decision herein, Cases Nos . 10-RC-3745 and
32-RC-983 are being consolidated with Cases Nos. 10-CA-1950 and 10-CA-1985.
2 112 NLRB 387.
120 NLRB No. 154.