Generac Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1964

149 N.L.R.B. 980 (N.L.R.B. 1964)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Generac Corp . and District Lodge No. 48, International Asso-
ciation of Machinists , AFL-CIO. Cases Nos. 30-CA-21 (for-
merly 13-CA-5764) and 30-CA-26 (formerly 13-CA-5959). No-
vember 20, 1964
DECISION AND ORDER
On February 19, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, the Respondent and the
General Counsel filed exceptions to the Decision and briefs in sup-
port thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning,
and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.
1. The Trial Examiner found and we agree that the Respondent
violated Section 8(a) (1) of the Act as explained in his Decision.'
2. The Trial Examiner also found that the Respondent violated
Section 8(a) (3) of the Act by discharging Jerry Pease and Artyce
Friday and by suspending James Jenista. We do not agree with
these findings?
Jerry Pease: The Trial Examiner found that the Respondent,
using a minor incident as a pretext, in fact discharged Pease on
June 13, 1963, because of his known union adherence.
,1 Member Leedom does not agree that Foreman Schneck's statement concerning the
possibility of layoffs was a threat of employer reprisal violative of the Act. He regards
this statement as no more than a permissible expression of opinion concerning one con-
sequence which could result from negotiation of a contract providing for departmental
seniority.
2 Contrary to his colleagues, Member Brown would adopt the Trial Examiner' s finding
that Respondent discriminated against Jenista, Pease, and Friday in violation of the Act.
He believes that the majority opinion which follows simply restates facts already fairly
recited by the Tiial Examiner and reappraises testimony which was heard by the Trial
Examiner and carefully examined by him in the proper context In the Trial Examiner's
Decision, he finds a reasoned evaluation of all the evidence which demonstrates that the
known union adherence and activity of the complainants, and not the plainly pretextual
reasons assigned, motivated Respondent's action against Jenista, Pease, and Friday.
149 NLRB No. 85.
GENERAC CORP. 981
The only union activity engaged in by Pease known to Respondent
was the wearing of a union button on April 11, 1963, more than 2
months before his discharge, at which time most employees wore
such buttons .3 The record also reveals that Pease was warned on
more than one occasion for being asleep on the job or for daydream-
ing. Shortly before his discharge, he was transferred for nondis-
criminatory reasons to work on a "lamination" press when his old
job was absorbed into another function. On the day of his discharge,
the machine which he was operating jammed, and Pease, in an effort
to get the machine in operation again, caused damage to the press.
Both a bolt on the press and the dies within the press were damaged,
and repairs were not effected until the following day. Assistant Gen-
eral Manager Seybold testified that the press in question supplies
material for 90 percent of the production line, and a breakdown at
that point could shut down the entire plant.
On these facts we are unwilling to find that Pease was discharged
for unlawful reasons. His discharge without compliance with the
"Blue Book" requirements 4 gives rise to a suspicion. However, con-
sidering the other evidence, such as the minor nature of Pease's union
activity, his work record culminating in his careless destruction of
property on June 13, and the fact that Respondent was provided an
opportunity for terminating Pease when his job was absorbed else-
where, but transferred him to laminating work instead, we are not
persuaded by a preponderance of the evidence that Pease was dis-
criminatorily discharged.
James Jenista: This employee was active on the Union's behalf.
A number of employees relied upon the output of the ovenroom
which he operated. As of May 20, 1963, slow production in the oven-
room was holding up subsequent operations. On May 20, Jenista
was given a written warning to the effect that he was: (1) visiting
fellow employees while they were working, and (2) consistently fail-
ing to meet minimum standards of production. When the warning
was given to him, Jenista was told he could do much better, and that
it was hoped that he would do so. Jenista only commented that he
needed help. Jenista asked his foreman whether or not he was
visiting with other employees more than anyone else, and his foreman
replied in the negative. After investigation, the first portion of the
warning was rescinded, but Jenista was told that his alleged failure
8 His only other union activity disclosed by the record is the securing of an employee's
signature on a union authorization card, and there is no evidence of Respondent's knowl-
edge thereof.
A The Employer's "Blue Book" requires a written warning and suspension preceding dis-
charge for incidents such as here involved . The "Blue Book" also provides for immediate
dismissal for willful destruction of company property without prerequisite written warn-
ing and suspension.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet production standards would be reviewed when a complete
time study was made s and that he would have to make a greater
production effort.
The May 20 warning, insofar as it concerned production, was dis-
cussed with the Union on June 25. Jenista's work was observed on a
random basis thereafter and, in July, Foreman Schneck again talked
to Jenista and accused him of spending too much time outside the
ovenroom. On July 18, Jenista was observed talking with an
employee. His foreman spoke to him about it. Later the same after-
noon he was again observed standing in the ovenroom doorway talk-
ing to another employee. - His 2-day suspension followed and was
later explained to the Union.
In concluding that the suspension was designed to discourage union
membership and activity, the Trial Examiner found that the May 20
warning to Jenista was itself issued for an unlawful purpose. But
the record does not convince us that this conclusion is warranted.
Certainly, the fact that Respondent had, after investigation, with-
drawn that portion of the warning relating to "visiting" is no indi-
cation of such unlawful motivation. The accusation of failure
to meet minimum production standards was based, according to
Respondent's explanation, upon time studies that had been made and
the subjective analysis by Jenista's supervisor of other functions of
his job. Respondent refused to cancel its warning with respect to
production, stating that it would be reviewed when a complete time
study had been made. But, contrary to the Trial Examiner, it does
not follow from this that Respondent had no meritorious reason for
issuing the warning.
The Trial Examiner also noted that Jenista was "deprived" of the
services of a helper before his layoff. However, the record shows
that modernization of the ovenroom made the helper dispensable in
January 1963, and it in no way indicates that the helper's removal
.was designed to embarrass Jenista.
The Trial Examiner also found that Jenista was "summarily" sus-
pended. In the circumstances described, however, we cannot find such
summary action as may give rise to an inference of a discriminatory
motivation. And, while the Trial Examiner chose not to believe-the
testimony of Respondent witnesses as to the July 18 suspension, or
the charts adduced in support thereof, for the reason that all "may
well have been fabricated," Jenista's own testimony establishes that
he was challenged on July 18 for the very offense attributed to him
on May 20 and his innocence in the matter is not established.
5 Time studies were made throughout 1963. At the time Jenista received the warning
notice, only a few of his functions had been timed.
GENERAC CORP. 983
As in Pease's case , we are not satisfied that the General Counsel
. has sustained his burden of proof with respect to Jenista s_
Artyce Friday: The Trial Examiner found that the Respondent
seized upon her absence under doctor 's orders as a pretext for ridding
itself of a known union adherent and discharged her in violation of
Section 8 ( a) (3) and ( 1) of the Act.
Friday secured permission to absent herself from work on Monday,
September 9, 1963, in order to attend to personal affairs. On Sep-
tember 9 she called Supervisor Schneck and said that she would be
absent the following day. On September 11 Friday 's mother called
and informed the Respondent that she was sick and would not report
for work that day. On September 13, and again on either Septem-
ber 16 or 17 , Friday called Schneck to tell him she was still unable to
return. On the latter occasion , Schneck advised her that she should
apply for a leave of absence ,? but, when assured that she would return
in a few days, he told her none would be required . Friday returned
to work on September 18, but was sent home as she had not acquired
a release from her doctor which was mandatory for any absence over
3 days. On September 20 Friday visited the doctor and then called
Foreman Schneck to, say that she could not return to work yet.
Schneck told Friday to keep him informed.8 -
At the September 23 meeting with the Union , management repre-
sentatives inquired about Friday and stated that she was in trouble
and that the Union should do something about it.
On September 24, after another visit to the doctor, Friday again
called Respondent to advise that she was not ready to return. She
was told that a letter , which could not be retracted , had been sent
notifying her that her failure to report back with a doctor 's certificate
after September 18 "leaves ..: no alternative but to conclude that
unless you come in and present some other condition or circumstance
... your name will be dropped from our employment list." At the
September 30 meeting with the Union , Respondent announced that
Friday was being taken off the payroll . 9 Later, during the first week
in October , the chairman of the employee negotiating committee was
advised of Friday's removal because of "excessive absence without
leave." On October 7, a union committeeman arranged a meeting
between Respondent and Friday but Friday did not appear. It was
e The Trial Examiner also asserts as evidence that Jenista was a satisfactory employee,
that he received periodic wage increases The record, however, reflects only one wage in-
crease which was occasioned by a job reevaluation
7 Respondent ' s "Blue Book" requires a written leave of absence for any absence likely to
exceed 2 weeks.
s After the hearing the Respondent moved to reopen the record to offer evidence that
Friday did not visit the doctor between September 13 and 23, 1963. Due to the nature of
our decision herein , no purpose would be served by granting such motion , and the Tiial
, Examiner 's denial thereof is hereby affirmed.
s About a week earlier at the Respondent ' s behest, Union Agent Johns called Friday in
an unsuccessful effort to resolve the problem.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not until October 29, 13 days after she was released by the doctor,
that Friday presented herself for work. She was told she had been
replaced.
The Trial Examiner's conclusion that Friday was the victim of
discrimination rests mainly upon his subsidiary finding that Friday
had frequently informed the Respondent of her doctor's unwilling-
ness to permit her to return. However, Respondent's rules, while
permitting sick leave, require an employee whose illness is likely to
exceed 2 weeks to secure a leave of absence, which Friday at no time
sought. No disparity of treatment as to Friday has been shown.
Moreover, we do not believe that a showing of discrimination has
been made as to Friday in the circumstances . related, particularly
taking into account Respondent's willingness indicated above to
return Friday to work and its efforts to secure her return.
3. We agree with the Trial Examiner's finding that Respondent
refused to bargain with the Union in violation of Section 8(a) (5)
of the Act. In so concluding, we rely upon all the factors recited by
the Trial Examiner in this connection except as follows. We do not
agree with the Trial Examiner's conclusion (section F, 1, paragraph
(g), and section F, 2, paragraph .(d)) that the Respondent violated
Section 8(a) (5) of the Act by conditioning the use of the plant
bulletin board upon the Union's relinquishment of the right to dis-
tribute union literature on company premises; 10 and, further, we do
not agree with his reliance in finding that Respondent refused to
bargain in good faith upon his holding (which we are not adopting)
that Respondent discriminated against Jenista and Friday in viola-
tion of Section 8(a) (3) of the Act.11 (See Trial Examiner's Deci-
sion, section F, 2, paragraph (f).) In agreement with the General
Counsel, however, we find that Respondent's unilateral acts of June 14
in reducing working hours and of November 29 in shutting the
plant independently violated Section 8(a) (5), and we shall remedy
such violations by making whole the employees who suffered a loss of
earnings as a result thereof.12
10 Cf. Gale Products, Div. of Outboard Marine Corp., 142 NLRB 1246, enforcement
denied 337 F. 2d 390 (CA. 7).
Member Leedom , who dissented from the invalidation of the contract clause in the Gale
Products case, agrees that the Respondent's position herein did not violate the Act.
n Consistent with the position taken by him in the cases of Jenista and Friday , Member
Brown would accept the Trial Examiner ' s disposition.
12 In view of this disposition , we need not decide whether , as the Trial Examiner found,
Respondent' s unilateral action of June 14 also violated Section 8 ( a) (3) of the Act.
Member Leedom does not agree that an employer is obliged to bargain concerning day-to-
day management decisions , such as to effectuate temporary layoffs of employees , and there-
fore disagrees with his colleagues ' conclusion that the economic layoffs involved herein
violated Section 8(a) (5) of the Act. Nor can he agree with the Trial Examiner's con-
clusion, in section III , D, of his Decision , that the Respondent's June 14 action was un-
lawfully motivated . Accordingly , he would dismiss the allegations of the complaint with
respect to these matters. He does agree , however, that the Respondent violated Section
8(a)(5) in the other respects as found by his colleagues.
GENERAC CORP. 985
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Generac Corp., Waukesha, Wisconsin, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with District
Lodge No. 48, International Association of Machinists, AFL-CIO,
as the exclusive representative of all employees in the following
appropriate unit :
All production and maintenance employees, but excluding office
employees, professional employees, guards, watchmen, and super-
visors within the meaning of the Act.
(b) Instituting changes in the terms and conditions of employment
in the appropriate unit without first consulting and bargaining with
the above-named labor organization concerning wages, hours, and
conditions of employment.
(c) Unlawfully interrogating employees as to their union sym-
pathies, threatening reprisals, or promising benefits to discourage
membership in any labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of the
employees in the above-described appropriate unit, and embody any
understanding reached in a signed contract.
(b) Make whole the following-named employees for loss of pay
occasioned by the June 1963 layoff and reduction in hours, as
described herein :
A. Bamford D. Muecke L. Holloway
N. Hart L. Sanchez H. Kennedy
E. Kennedy K. Bethke E. Kroll
L. Gromowski C. Ploehn P. Schaefer
B. Pease J. Jenista
986 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
(c) Make whole all those employees affected thereby for loss of pay
occasioned by the November 29, 1963, general layoff in the manner
set forth in the section of the Trial Examiner's Decision entitled "The
Remedy." -
(d) Preserve and, upon request, make available to the Board or its,
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary for the determination of the amounts of
backpay due under the terms described herein.
(e) Post at its plant in Genesee, Wisconsin, copies of the attached
notice marked "Appendix." 13 Copies of said notice, to be furnished
by the Regional Director for Region 30, shall, after being duly signed
by the Respondent's authorized representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained-by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 30, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the portion of the complaint alleging
violations of Section 8 (a) (3) of the Act in the cases of James Jenista,
Artyce Friday, and Jerry Pease, be, and it hereby is, dismissed.
18 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order "
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 National Labor
Relations Act, as amended, we hereby notify you that :
WE, WILL NOT unlawfully interrogate our employees, or
threaten them with reprisals, or promise benefits, to discourage
membership in any union.
WE, WILL NOT violate any of the rights you have under the
National Labor Relations Act to join a union of your choice or
not to engage in any union activities.
WE WILL NOT make any changes in the terms and conditions of
employment of any employees in the Board-certified appropriate
unit without first consulting with and bargaining in good faith
with District Lodge No. 48, International Association of
GENERAC CORP. 987
Machinists , AFL-CIO, the exclusive bargaining agent of such
employees.
WE WILL, upon request , bargain in good faith with the above-
named Union about terms of a contract , and, if agreement is
reached, sign such contract.
WE WILL make whole all employees for any loss of pay occa-
sioned them caused by our unilateral layoffs and reduction in
hours in June and November 1963.
GENERAL CORP.
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Commerce Building, 744 West Fourth Street, Milwaukee, Wis-
consin, Telephone No. 272-8650, if they have any question concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge, filed on July 24 and August 2, 1963,
respectively, by District Lodge No 48, International Association of Machinists, AFL-
CIO, herein called the Union, in Case No. 13-CA-5764, the General Counsel of the
National Labor Relations Board issued his complaint and notice of hearing on Septem-
ber 30, 1963. An answer dated October 9 was duly filed by Generac Corp., herein
called the Respondent On October 23, 1963, the same labor organization filed its
charge in Case No. 13-CA-5959. On November 6, 1963, the General Counsel issued
and served his order consolidating the two cases, an amended consolidated complaint,
and a new notice of hearing. An amended answer, dated November 12, was filed
by the Respondent. The amended complaint alleges and the answers deny that the
Respondent has engaged in unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, as amended. Pursuant to notice,
a hearing was held in Waukesha, Wisconsin, on December 2, 3, and 4, 1963, before
Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have
been received from General Counsel and the Respondent.
Disposition of the Respondent's motion to dismiss the complaint upon which ruling
was reserved at the conclusion of the hearing, is made by the following findings, con-
clusions, and recommendations.
On February 12, 1964, the Trial Examiner received a motion from the Respondent
to reopen the hearing to take the testimony of one individual and to include in the
record an affidavit from that individual Objection to said motion has been received
from General Counsel. The objection is sustained and the motion denied.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Generac Corp. is a Wisconsin corporation with principal plant and place of business
in Genesee, Wisconsin, where it is engaged in the manufacture, sale, and distribution
of generators.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the calendar year 1962 the Respondent made, sold, and distributed products
valued at more than $ 50,000 which were shipped from its plant to points outside the
State of Wisconsin.
The-complaint alleges, the answer admits , and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
- District Lodge No. 48, International Association of Machinists, AFL-CIO, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All of the events and conduct alleged by the complaint to be violative of the Act
occurred shortly before and after the Charging Union, by a Board-conducted election
in early June 1963, established itself as the lawful bargaining representative of all
employees of the Respondent in an appropriate unit The Respondent in its answer
concedes that since June 5, 1963, the Union has been the exclusive bargaining repre-
sentative of such employees.
That the Employer from the very beginning strenuously objected to its employees'
seeking to be represented by a union is manifested by a letter of April 26, 1963,
addressed to "All GenerAC Employees and Their Families" by the head of the
Company, Robert D. Kern. Its opposition was stated in the first paragraph:
We of GenerAC Management wish to advise you that WE DO NOT FEEL
THAT A UNION WOULD BE BENEFICIAL TO EITHER THE COMPANY
OR THE EMPLOYEES PRESENT OR LONG TERM OBJECTIVES.
The same letter pointed to the fact that:
Employment has always been provided in the past, even when temporary short-
age of materials has occurred, by providing other work or transferring to other
jobs. This is rarely the case in union shops.
Kern also stated in the same document:
Our older employees will recall that over the past two years, there have been
annual rate evaluations which have resulted in wage increases each year. Our
next annual evaluation is coming up this summer and could reasonably be
expected to result in further increases provided our business conditions continue
to improve. If the union were voted in, any change in rates would be subject
to union negotiations.
On May 10, 17, 27, and 31 and June 3 Kern issued and distributed similar letters
opposing self-organization. The Respondent offered in evidence no union circulars
or documents to which Kern's "letters" were plainly designed to meet or counteract.
It appears that much of his caustic comment was, in newspaper parlance, "doing it by
mirrors." For example, in his May 10 letter he stated:
During the period preceding the election, the Union politicians, like so many
politicians, will be making wild promises in order to get you to give them what
they want-that is, control over you and your jobs. [Emphasis supplied.]
What the Union does not tell you is that as a result of unions pricing their
members' work too high, over 6% of Americans wishing to work are unem-
ployed.'
* * * * * * *
Remember, a fancy union contract is worth nothing unless you have a job to
go with it.
In his May 17 letter Kern stated, in part:
This is a most important election for you. If a majority of you vote for the
Union, the existing easy relationship between you and your Company can no
longer exist. With a Union, we can no longer treat you as an individual; you
become a small part of a mass of people called the "Union...." We sincerely
believe that a union for our employees will result in an atmosphere which most
of us would prefer to avoid.
I It Is noteworthy that Kern failed to cite any authority for so fantastic an assertion
of fact.
GENERAC CORP. 989
In his May 27 letter Kern said, in part:
.. as we are sure you appreciate, we have maintained full employment for all
as has been the record of your Company to date.
Our recently completed Employee's Manual has been another major step
forward. . . . Our recent interviews have indicated that the manual has con-
tributed greatly to better undeistanding of our mutual problems, benefits, and
obligations.
* * * * * * *
In order to eliminate any problems which may arise from past interpretations,
we are modifying our standard policy (concerning vacations) to extend it to
those employees with six months or over, but less than one year employment.
As you know, we are continually working on additional improvements in our
plant to upgrade our overall working conditions . The vending machines have
recently been installed in the lunch room with an additional hot soup dispensing
machine to be added shortly
In his May 31 letter, Kern said, in part:
In our last letter, we pointed out that when you vote for a union, you vote to
give up the right to handle your own job affairs.
You may be told that the Union will foice the Company to grant higher wages
and greater benefits As to that, we assure you that a union will make no differ-
ence. We will continue to do those things which, in oui judgment, good business
practice requires.
Two days before the election of June 5 Kern summed up his series of letters point-
ing out benefits which the Employer had provided employees and which the Union
could not obtain for them, by stating:
You, of course, have a right to vote for the Union if you want to And, if a
majority of you employees want to drive a wedge between yourselves and man-
agement you create the dog-eat-dog basis which Union bargaining usually
involves, your management will be bound by your decision.
Without, at this point, determining whether any or all of the above-quoted declara-
tions, promises, and warnings by Kern were, per se, violative of the Act, in sum they
clearly depict a consistent and repeatedly avowed opposition by the head of the
Company to the employees' exercise of rights guaranteed by the Act to bargain
through representatives of their own choosing As to that the language of the letters
permits no reasonable doubt.
Shortly before the June 5 election, however, Foreman Richard Schneck, conceded
to be a management agent, told a number of employees that:
if the union got in and we were set in one department, under one classification,
that if we ran out of work, we would not be able to transfer to another depart-
ment, but we would be laid off.2
This threat of possible layoffs, especially in the context of Kern's repeated avowals in
his letters to employees that it had always been company policy not to lay off, but
to transfer, employees, plainly was designed to discourage union adherence and was
violative of the Act Schneck's threat, moreover, serves as a significant factor against
which to appraise certain later conduct by this foreman, to be described below
In this atmosphere of open hostility toward self-organization by the employees
(other details of which will be described in later sections) an election was held, which
resulted, as the Respondent concedes, in certification of the Charging Union as the
exclusive bargaining agent.
2 The quotations are from the testimony of employee Friday, which is corroborated by
that of employee Bertha Pease and is uncontradicted by Schneck. Nor did Schneck, as a
witness for the Respondent, dispute the testimony of employee Bamford, one of the em-
ployee organizational leaders, to the effect that when he challenged the foreman for mak-
ing such threats to the girls, Schneck merely evaded the matter by saying that he "didn't
know too much about the union."
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner adopts, as accurate, General Counsel's following summary of
the issues, as set forth in his brief:
1. Whether Respondent failed and refused to comply with the good-faith
collective bargaining duty imposed upon it by Section 8 (a) (5) and (d) of the Act.
2. Whether Respondent committed violations of Section 8(a)(5) of the Act
by:
(a) unilaterally changing wages, hours and working conditions;
(b) bargaining individually with its employees;
(c) bypassing and undermining the Union.
3. Whether Respondent suspended employee Jenista and discharged employees
Friday and Pease because of their membership in and support of the Union, in
violation of Sections 8 (a) (1) and (3) of the Act.
4. Whether Respondent interfered with, restrained and/or coerced its employ-
ees in violation of Section 8 (a) (1) of the Act by:
(a) promising and/or instituting changes in wages, hours and working
conditions;
(b) threatening, interrogating and promising benefits to its employees.
B. Interference, restraint, and coercion
Employees of the Respondent began efforts to have the Charging Union serve as
their bargaining agent late in March 1963. Signatures to authorization cards were
solicited in the plant.
About April 10 employees in favor of the Union began wearing buttons openly.
At the same time the Union notified management of its claim to majority representa-
tion and asked for recognition. The Respondent declined and demanded an election.
On April 12 a petition was filed in Case No. 13-RC-9349.3
Between that date and the election of June 5 the Respondent took certain action
claimed by General Counsel to have interfered with and restrained employees in the
exercise of rights guaranteed by Section 7 of the Act.
Especially does General Counsel urge that the distribution by the Respondent to
all of a so-called "Blue Book" on April 29, some 2 weeks after it had been clearly
notified of the Union's claim of a majority and was plainly aware of its own demand
for an election, was violative of Section 7 rights. The Trial Examiner agrees.
This employee manual, unilaterally prepared and effectuated, not only altered
existing working conditions but also increased wages. It included a "grievance pro-
cedure" for employees to follow and revised the pay schedules and work classifications
for many employees. New plant rules and regulations were announced for the first
time. An entire procedure of disciplinary measures not before then observed, was
put into effect. A vacation policy was also announced. Not only were such
major changes announced on April 29 but they were actually put into effect
thereafter. Wages in a number of instances were increased. Oral and written
warnings were issued.
Both the inauguration and effectuation of this "Blue Book," after the Union's claim
of majority representation and during pendency of the election, were clearly designed
to discourage union adherence. Particularly is this so when considered in the context
of the series of letters being distributed by Kern, urging the employees to reject even
the basic idea of collective bargaining. The issuance and implementation of the
booklet was, in effect, a concrete demonstration of Kern's blunt admonition, expressed
in his letter of May 31, to the effect that regardless of the Union as their bargaining
agent, in matters of "higher wages and greater benefits" the employer would continue
to "do those things" which he alone thought best.
As to the actual granting of benefits General Counsel appropriately cites language
from a recent decision of the United States Supreme Court,4 wherein the Court said,
regarding the granting of benefits when a representation election was pending:
The danger inherent in well-timed increases in benefits is the suggestion of a fist
inside a velvet glove. Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from which future benefits
must flow and which may dry up if it is not obliged.
8 The Trial Examiner has no reason to question General Counsel ' s statement in his brief
as to the case number or date of the filing , since both are a matter of public record.
*N.L.R.B. v. Exchange Parts Company, 375 U.S. 405.
GENERAC CORP. 991
Full support for General Counsel's contention that the announcement and imple-
menting of new plant rules during pendency of the election was also violative of the
Act is found in Dixie Gas, Inc., 135 NLRB 1051, 1088, and Hof}man-Taff, Inc., 135
NLRB 1319, 1325.
As to other acts of unlawful interference, restraint, and coercion, and in addition
to the threats of Schneck found in the preceding section to have been violative of the
Act, the Trial Examiner concludes that credible evidence establishes the following:
1. On the day of the election Foreman Robert Boehler approached employee
Freudenstein and told her that he hoped that the "Union doesn't get in " He added:
"But if the Union does get in, you girls can just figure you will all be out of a job."
Apparently to emphasize his point Boehler said that various operations then being
performed at the plant could be done by other companies, which he named.5
2. A few days after the election, which as noted the Union won, the same foreman
approached employees Freudenstein, Friday, and another employee at the lathe where
Friday worked, and, after asking them what "profit" they thought they would derive
from the Union, declared that "Kern will never sign a contract." 6
3. In mid-September, after protracted negotiating meetings had been held, Foreman
Schneck told employee Bertha Pease, an active leader in the organizational efforts
earlier, "I see your union is all dropping out " When she questioned his statement,
he declared, "I got information there was only two or three there (at a union meeting),
and I heard you are all cancelling out " He then asked her to "give me the names
of everybody that cancelled out and who didn't "
C. The discharge of Jerry Pease
Without according the employee the very rights under the new "Disciplinary Pro-
cedure" announced by management on April 29 to receive both written warnings and
suspension before discharge, employee Jerry Pease was summarily fired by Foreman
Rohrmeyer on June 13, about a week after the Union had won the election.
While it does not appear that Jerry Pease himself was as active a leader in the
organizational move as was his mother, Bertha Pease, credible evidence establishes
that his union adherence was well known to Rohrmeyer and was resented by that
management agent
When he began wearing a union button on April 11 Rohrmeyer asked him what it
was When told, the foreman commented that "he would have took the pin and
threw it in the person's face who gave it to him," and said that no union was needed
in the shop.
Two or three days before his discharge Pease was suddenly transferred to a new
job, operating a "lamination press." On June 13, apparently through no fault of
his, the machine jammed.8 Pease called employee Mindiola to the machine-
Mindiola having been the regular operator-to help "unjam" it. Mindiola instructed
him to place a certain piece of metal between the upper and lower plates of the
machine, and he did so. After the machine was cleared, Mindiola told him to start
it. Pease did so, but neglected to remove the "hunk of metal " It appears that no
serious damage was done, a single bolt requiring replacement which was done in less
than half an hour.
Yet the same afternoon Rohrmeyer summarily discharged Pease. According to
the foreman he took this action because Mindiola told him he "couldn't work with
the man ... This is too dangerous to be around the press " Mindiola, however, was
not called as a witness by the Respondent, and the Trial Examiner does not credit
Rohrmeyer's unsupported testimony.
In any event, it is plain that the incident was minor. Assistant General Manager
Seybold, as a witness, admitted that shortly after it occurred he, in company with
Foreman Boehler, a tool-and-die maker, and Mindiola also failed to remove the
safety bar, precisely as had Pease, with no substantial damage.
5 The employee's testimony concerning this June 5 threat was not specifically contra-
dicted by Boehler.
6 After stating that he could recall no conversation with these employees about contract
negotiations, Boehier then admitted that such might have occurred.
T The quotations are from the credible testimony of Pease, which is not specifically con-
tradicted by Schneck, who admitted the conversation about a union meeting, and com-
mented, "Curiosity killed the cat "
s The Respondent does not claim that the jamming was the employee 's fault.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner is convinced and finds that Rohrmeyer used a minor incident
as a pretext, and that the real reason for the summary discharge of Pease was his
known union adherence. Such unlawful discrimination interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
D. The layoff and reduction of hours
On June 14, the day after the unlawful discharge of Pease, and without notification
to the Union, then the exclusive bargaining representative of all employees, the
Respondent, through Seybold, posted a notice of reduction in work schedules to be
effective the following workday, June 17.
Despite the open boast of Kern in his letter to all employees a few days before the
election: ". . as we are sure you appreciate, we have maintained full employ-
ment for all as has been the record of your Company to date," a few days after
employees had failed to follow his urging to vote against the Union, some 14 em-
ployees were by layoffs and reduction in working time subjected to appreciable loss
of "full employment." 9
Reserving for resolution in a later section the question as to whether this reduction
in hours and accompanying layoffs without consultation with the Union constituted
a failure to bargain in good faith, the Trial Examiner here concludes and finds that
the Respondent's action was in overt reprisal for its employees having voted for the
Union as their representative. The threat to engage in such reprisals was implicit
in the letters sent all employees before the election. In his letter of April 26, quoted
in part above, Kern had bragged of the fact that, in the absence of a union, the
Company had always prevented loss of time, even when sales were off.
The Respondent failed to offer any credible record evidence to support the mere
oral claim of "slow orders" as the reason for the unprecedented layoffs and reduction
in hours. Therefore the Trial Examiner concludes that the discriminatory action
was for the purpose of retaliation and to discourage union membership and activity,
and interfered with, restrained, and coerced employees in the exercise of rights guar-
anteed by Section 7 of the Act. -
E. The suspension of James L Jenista
James L. Jenista was hired by the Respondent in early September 1962. He was
an ovenroom operator. He received periodical raises thereafter, according to man-
agement's policy, which obviously would not have been granted had his work
performance not been satisfactory.
He became one of the few employee organizing leaders early in April 1963. He,
Bertha Pease, and Artyce Friday (whose discharge is an issue in this case) distributed
union authorization cards in the plant during their noon breaks under the watchful
eye of Foreman Schneck. He wore a union button on April 11, and later the same
day this foreman asked him if the cards be had been passing out had "anything to
do with the Union." Jenista replied in the affirmative. It is found that management
was well aware of Jenista's leadership in the union movement.
On May 20 Schneck gave him a written warning notice, a few days after the
Respondent, as found above, unlawfully set up such practices during pendency of
the election.
This notice, signed by Schneck and in evidence, stated that Jenista was being
warned for:
1. Visiting fellow employees while they are working.
2. Consistent failure to meet min. standards of production-you have had a
considerable slow down in your work habits in the past 4-5 weeks.
Never before had he received such warning. According to the employee's credible
testimony he promptly approached the foreman and asked him if he had been "talk-
ing any more than any of the other people" and Schneck answered in the negative.
When Jenista asked what his production standards and production average were,
Schneck replied that he did not know. Shortly thereafter Jenista went to Assistant
Manager Seybold and reported his interview with the foreman. Seybold told him he
would "take up the time study and find out if I was not working up to the standard."
9 Employees affected by such loss of earnings include, according to a summary of com-
pany records in evidence: A. Bamford, N. Hart, E Kennedy, L. Gromowski, B. Pease,
L. Sanchez, K. Bethke, J. Jenista, L. Holloway, H. Kennedy, E. Kroll, D. Muecke, C. Ploehn,
and P . Schaefer . Bamford , Pease, and Jenista were known union leaders.
GENERAC CORP. 993
And a few days later Jenista received written notice to the effect that "because of
the technical error in a statement made to you, item one on the warning notice regard-
ing visiting is being removed." The same notice continued: "No change will be
made in item 2. This item will be reviewed after a complete time study has been
made in the oven room "
Thus this latter notice on its face establishes that (1) the warning about "visiting"
was wholly unwarranted and without foundation in fact, and (2) the warning about
production would be held over his head "until a complete time study had been made."
It follows that management had no meritorious reason for issuing any warning to
Jenista on May 20 The Trial Examiner concludes and finds that it was issued for
the unlawful purpose of discouraging union membership and activity
As found in the preceding section, Jenista was one of the several employees whose
working hours were unlawfully reduced beginning on June 17. According to a
summary of the Respondent's own records he was deprived of 17.8 hours of work
in the next 18 days.
During this period of continuing discrimination Jenista became an employee mem-
ber of the Union's negotiating committee-a fact well known to the Respondent.
And about this time he was deprived of the services of a helper in his ovenroom.
Shortly after he was permitted to resume his full 8 hours a day, he was summarily
suspended for 2 days on July 18 by Schneck. He received a notice stating*
You are given this notice and a 2-day suspension because of failure to meet
minimum standards of production. Your first written warning was on 5/20/63.
In view of the obvious falsity involved in the issuance of the "warning" of May 20,
his unlawful reduction in hours, and the removal of his helper, the Trial Examiner
can place no reliance upon any of the testimony of Seybold or Schneck concerning
the suspension of July 18. It appears needless to review their claims here, particu-
larly since such testimony is unsupported by other than prepared charts which, like
their testimony, may well have been fabricated in order to lend appearance of merit
to their claims.
The Trial Examiner concludes and finds that the 2-day suspension, like the
unfounded warning of May 20, was motivated by management's design to discourage
union membership and activity. Such discrimination interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
F. The refusal to bargain
1. Relevant facts
After the Union's certification the parties met several times between June 25 and
late in September, when contract negotiations ceased Jenista, whose unlawful sus-
pension in July has been described above, and Artyce Friday, whose discharge in
September will be reviewed below, were two of the three employee members on the
union negotiating committee. Seybold, previously identified, was the chief manage-
ment representative.
It appears unnecessary to the Trial Examiner to describe in minute detail the
exchange of comment and declaration of each participant in the several meetings,
as testified to by Seybold and Union Representative Allen Johns.
Certain outstanding facts, relevant to the bargaining issues, are summarized and
are based mainly upon Johns' credible testimony, much of which is undisputed, as
well as documents in evidence.
(a) Throughout such meetings Seybold maintained the position that the "Blue
Book," the imposition of which has been found to have been unlawful, would continue
to be governing company policy. When the union representative asked him if he
would be willing to sign this document as a union contract, however, Seybold declined,
stating that he had "full control" of this manual, and could "put things" into it which
he would not agree to include in a contract.
(b) Early in the sessions Seybold stated flatly that the employer would not nego-
tiate on reduction in hours or work force, although it would give "notice" of such
intended changes.
(c) Following his declaration of policy concerning the "Blue Book," Seybold said
that "the employees had made their choice, they had the Blue Book before them when
they made their decision to vote for the Union, and, therefore, they had to take the
consequences for having voted for representation by the Union."
(d) Throughout the negotiations the Respondent adamantly insisted upon its right
unilaterally to "install, alter or replace," any rate under an "incentive system," or
"discontinue or terminate all or any part of" such plan as it, alone, saw fit.
7 7 0-0 7 G-0 5-v o f 149-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) The Respondent refused to alter its insistence that it retain the right unilater-
ally to "establish new or changed jobs" and fix rates for such lobs. It insisted that
the Union would be permitted only to raise questions as "grievances," after the event
of any job or rate change.
(f) Despite the Union's written request on August 8 to negotiate production quotas
management consistently declined.
(g) At all times management conditioned permitting the Union to use plant
bulletin boards upon the prohibition of union literature elsewhere "on the company
premises "
(h) The last actual negotiating session was held on September 30. At this meeting
management offered a small general increase and then declared that the Union had
its entire proposal which, it insisted, be submitted to the union membership While
the union spokesman said he could not and would not recommend its acceptance by
the members, he would submit it. It was then agreed that the Employer would
prepare copies of the "written proposal" but would first submit it to the Union for
checking as to accuracy. Despite this understanding, management distributed copies
to employees before submitting them to the Union.
(i) A few days later, on October 8, the Respondent notified the union spokesman
that in view of its receipt of unfair labor practice charges, there was "no point in
continuing negotiations " The counterfeit nature of this pretext for halting negotia-
tions is established by the fact, noted on postal receipts in evidence, that as early as
July 26 and again on August 5, the Respondent had been served with a charge and
an amended chai ge alleging refusal to bargain in good faith and other unfair labor
practices No negotiating meetings have been held since September 30
(j) Without consulting with the Union, and over its protest upon learning of its
intent, management imposed a general layoff of employees on November 29, which,
so far as the record shows, was an unprecedented event.
(k) A few days before the opening of the hearing in this case, the Respondent
notified all employees, as well as the union representative, by letter, that it intended
to put into effect on December 2 its final wage offer of October 3, despite the docu-
mented fact that the Respondent itself, on October 8, had called a halt to negotiations.
The record, so far as the Trial Examiner has discoveied, does not reveal whether the
wage increase was actually effectuated
2. Conclusions
The Trial Examiner concludes and finds that from the date the Union won the
election, on June 5, 1963, the Respondent has consistently bargained in bad faith,
with no intent to negotiate and sign a contract with the Union-quite as Foreman
Boehler explicitly had warned employees, and as Kern's letters to employees had
implied.
While varying in some details, the history of bargaining in this case is, in the opinion
of the Trial Examiner, similar to that of both N.L R.B v. Reed & Prince Manufac-
turing Company, 205 F. 2d 131 (C.A. 1), cert denied 346 U.S 887, and Aztec
Ceramics Company, a division of the Texstar Corporation, 138 NLRB 1178, enfd.
sub nom International Brotherhood of Operative Potters v N.L R B , 320 F. 2d 757
(C.A.D C.).
Specific factors of refusal to bargain in good faith include:
(a) Failure to consult with the Union concerning the work ieduction and layoffs
of June 14
(b) Refusal to consult and discuss with the Union the setting of production quotas,
and the general layoff of November 29
(c) Bypassing the Union by submitting its final proposal directly to the employees
on October 3.
(d) Conditioning use of the bulletin boards upon the Union's relinquishment of
its lawful right to distribute literature on company premises
(e) Refusal to attend negotiating meetings pending the hearing in this case.
(f) Unlawful discrimination against employee members of the Union's negotiating
committee (Jenista as described above and Friday as described below).
There is no dispute and it is concluded and found that at all times since June 5,
1963, and continuing to date, the Union has been the exclusive bargaining represen-
tative of all employees for the purposes of collective bargaining in the following
appropriate unit:
All production and maintenance employees of the Respondent's Genesee, Wis-
consin. plant, but excluding office employees, professional employees, guards, watch-
men, and supervisors within the meaning of the Act
GENERAC CORP. 995
It is further concluded and found that by refusing since June 5, 1963, to bargain
in good faith with the Union the Respondent has interfered with, restrained, and.
employees in the exercise of rights guaranteed by the Act.
G. The discharge of Artyce Friday
There is no question but that the Respondent at all material times was well aware
of this employee's leadership in union activities. During the summer "negotiations"
she was one of the employee representatives on the union committee and met with
management at the sessions She was one of the employees told by Foreman Boehler
that management would not sign a contract.
She worked under Foreman Schneck, whose discriminatory action against Jenista
has been found above.
While admittedly her recollection of accurate dates, as a witness, was somewhat
confused, her credible testimony is the chief basis for the following facts-particularly
so since the testimony of both Seybold and Schneck has been found in so many
respects to be unreliable-
(1) Early in September, Friday was absent from work with full permission of
management-a fact conceded by Seybold.
(2) On September I1 or 12 she sent in word through her mother that she was
ill-also a fact conceded by Seybold.
(3) On Friday, September 13, she visited her local doctor, and that night tele-
phoned Schneck, informing him of such visit and that it would be a few days before
she had a report from him. The foreman merely told her to let him know as soon
-as she heard from the doctor.
(4) Early the following week she called Schneck again and said it would be a few
days before she could report for work. On this occasion Schneck suggested that
she should apply for a leave of absence, but when she said she would be in soon he
said not to bother.
(5) On September 18 she reported for work, was permitted to work for a time,
and then was sent home by Schneck on the grounds that she had not brought a
"release" from the doctor. She left, and when discovering that Wednesday was the
doctor's day off, she returned to the plant for her paycheck and told Schneck that
she would see the doctor as soon as possible.
(6) Her appointment with the doctor was on Friday, September 20. After her
visit there she called Schneck and reported that the doctor said she could not return
to work yet. The foreman merely told her to keep him informed.
(7) On September 24 after another visit to the doctor she telephoned to Seybold,
told him she was sorry she had been ill but the doctor would not permit her to return.
Seybold replied that he had just sent her a letter which he would not retract. That
letter, in evidence, reads:
I have been studying the circumstances involving your absence from work
for the last twelve days. Our records show that you returned to work on Sep-
tember 18th without a Doctor's signed authorization, which is necessary after
an absence of more than three days due to sickness. You were sent out on the
18th to get your authorization but have failed to return since that time.
Your failure to report back to work with your Doctor's authorization after
you advised us on September 18th that you were able to work leaves me no
alternative but to conclude that you have quit unless you come in and present
some other condition or circumstance to me. Accordingly, unless you see me
immediately, your name will be dropped from our employment list.
(8) Despite this letter, according to Seybold's own testimony, and before it was
sent, he was notified by Friday's doctor that she "was not available to return to work
at that time " The manager offered no explanation as to why, after receiving this
information from the doctor himself, he should have advised Friday later in the day
that "she was going to have to comply with that" letter.
(9) At the September 30 negotiating meeting, Seybold informed Johns, the union
representative, that she was then being taken from the company payroll.
(10) During the first week of October the chairman of the employee negotiating
committee received from Seybold a letter stating, in part.
As of September 30th, Artyce Friday has been dropped from our Employment
Records because of excessive absence without leave. Attached is a copy of a
letter sent to her on September 24th (quoted above). As you know, we have
had no word.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(11) The falsity of Seybold's claims in this letter becomes apparent when com-
pared with his own testimony. As a witness he admitted that in early September,
Friday had been absent with permission. And he also admitted that as late as Sep-
tember 24 he had received information direct from the doctor that she was under his
care and could not return.
(12) Late in October, when she finally received the doctor's release, she called
Seybold, who told her there was no work for her and that her job had been•filled.
Despite the clearly inconsistent claim that Friday had "quit" her job, urged during
the hearing by the Respondent, it is clear and is found, on the basis of Seybold's letter
quoted above, that she was in fact discharged as of September 30, 1963.
The Trial Examiner finds no merit in the Respondent's contentions-whether that
she quit, or that she was discharged because of "excessive absence without leave."
Even the testimony of both Seybold and Schneck establishes that the employee kept
them frequently informed of her doctor's unwillingness to permit her return.
In short, the Trial Examiner is convinced and finds that the Respondent seized
upon her absence under doctor's orders as a pretext for ridding itself of a union
leader, and to discourage union membership and activity. Such unlawful discrimina-
tion interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by 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 con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It has been found herein that the Respondent unlawfully discharged certain
employees, unlawfully reduced the working hours of others, and unlawfully suspended
another. It will be recommended that the Respondent make whole all employees
listed in footnote 9 above for any loss of earnings suffered by them as a result of the
unlawful reduction in hours as found herein, as well as employee Jenista for his loss
of pay during his 2-day suspension. It will also be recommended that the Respondent
offer employees Pease and Friday immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of earnings they may have
suffered by reason of the unlawful discrimination against them, by payment to each
of a sum of money he or she would normally have earned as wages from the date of
the discrimination 10 to the date of full offer of reinstatement, less net earnings during
said period, and in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and with interest on the backpay due in accordance with Board policy
set out in Isis Plumbing & Heating Co., 138 NLRB 716.
It will be recommended that the Respondent, upon request, bargain collectively
in good faith with the Charging Union, and, if an understanding is reached, embody
such understanding in a signed agreement.
In view of the seriotus and extended nature of the Respondent's unfair labor prac-
tices it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
I District Lodge No. 48, International Association of Machinists, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees of the Respondent, at its Genesee,
Wisconsin, plant, but excluding office employees, professional employees, guards,
watchmen, and supervisors within the meaning of the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
10 Since Friday was not available for employment while under her doctor' s care, her
backpay period should begin the day after she received his release.
HAMMOND ORGAN COMPANY 997
3. By virtue of Section 9(a) of the Act the said labor organization has been since
June 5, 1963, and now is, the exclusive representative of all employees in the said
appropriate unit for the purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
4. By refusing, since June 5, 1963, to bargain collectively in good faith with the
said labor organization as the exclusive representative of all employees in the said
appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating as to tenure of employment and working hours against
employees to discourage membership in and activity on behalf of the above-named
labor organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Hammond Organ Company and Upholsterers International
Union , AFL-CIO and Hammond Round Table . Case No. 13-
CA-6089. November 23, 1964
DECISION AND ORDER
On September 11, 1964, Trial Examiner Robert E. Mullin issued
his Decision 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 attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
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 McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order, the Order recom
mended by the Trial Examiner, and orders that Respondent, Ham-
149 NLRB No. 94.