General Machine Co., Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1969

174 N.L.R.B. 1023 (N.L.R.B. 1969)

GENERAL MACHINE CO.
General Machine Co ., Inc. and District No. 10,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 30-CA-778
March 5, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 24, 1968, Trial Examiner Stanley N
Ohlbaum 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 National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and
recommended that such allegations be dismissed.
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
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as herein modified.
AMENDED CONCLUSION OF LAW
1. Delete the Trial Examiner's Conclusion of Law
13, and substitute in lieu thereof the following:
"13 By coercively polling employees regarding
their intentions, desires, or sentiments concerning
Union representation, the Respondent has interfered
with, restrained, and coerced its employees in the
exercise of rights guaranteed to said employees by
Section 7 of the Act, and has thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, General Machine Co., Inc.,
Milwaukee, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
1023
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete paragraph A, 1, (b) of the Trial
Examiner's Recommended Order, and substitute in
lieu thereof the following-
"b Refusing to bargain collectively with District
No. 10, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining agent of the employees in the appropriate
unit."
IT IS FURTHER ORDERED that those allegations of
the complaint as to which no violations have been
found are hereby dismissed.
TRIAL EXAMINER'S DECISION
Preliminary Statement, Issues
STANLEY N. OHLBAUM, Trial Examiner: This
proceeding under the National Labor Relations Act as
amended, 29 U.S C. Sec. 151, et seq. (Act), brought on by
complaint issued by the Board's Regional Director for
Region 13 (Milwaukee, Wisconsin), on April 30, based
upon an original and amended charge filed by the above
Union on February 29 and April 30, 1968,' was heard
before me in Milwaukee on June 5 and 6. The parties, all
of whom appeared and participated throughout by counsel
or other representative, were afforded full opportunity to
present evidence and contentions, proposed findings and
conclusions, and briefs Subsequent to the hearing, a brief
was received from Respondent and letter memorandums
were received from General Counsel and Respondent;
these, together with the evidence, have been carefully
considered
The basic issues presented are whether Respondent
Employer violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain collectively in good faith
with the Union, notwithstanding its Board-certified status
and the requirements of a subsisting collective agreement;
while, instead, engaging in sundry actions - including
promises to employees of economic benefits, threats of
economic loss, unilateral subcontracting with unit
employees, coercive interrogation, conducting an unlawful
poll of employees, enlisting employees to withdraw from
the Union, denying Union access to the plant, and filing
an "RM" petition in bad faith - in derogation of the
Union's collective bargaining representative status so as to
undermine the Union and so as to bargain with unit
employees individually while obligated to bargain with the
Union collectively
Upon the entire record' and my observation of the
witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
Respondent, a Wisconsin corporation with a place of
business in Milwaukee in that State, the locus of the
events here involved, during the 12-month representative
period immediately preceding issuance of the complaint
sold and shipped products valued in excess of $50,000 in
interstate commerce therefrom to points outside of
Wisconsin
'Unless otherwise specified, all dates herein are 1968
'Hearing transcript corrected as to obvious and typographical errors
174 NLRB No. 153
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7), and the Union a
labor organization within the meaning of Section 2(5), of
the Act, and that assertion of jurisdiction herein is proper
II. ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent is a family-held business with less than 10
production employees, operating a machine shop in
Milwaukee for the manufacture of tools and component
parts Its president, director, general manager and overall
head is Thomas Hebem, Stefan Blum, Jr is its chief
production engineer, production manager, and plant
superintendent, and Jack Zabler is its shop foreman.
On April 14, 1958, the Board certified the Union as
exclusive collective bargaining representative of
Respondent's toolroom unit employees here involved
(Board Case 13-RC-5868) Thereafter, Respondent and
the Union entered into a series of collective agreements
governing wages, hours, and other terms and conditions of
employment of these employees The most recent such
agreement expired on March I, 1968
It is conceded that Respondent and the Union met on
or about February 13 for the purpose of negotiating a new
collective agreement to supplant the one due to expire on
March 1. That negotiating meeting was followed by the
chief of the alleged unfair labor practices to be described.
B. Supervisory Status of Jack Zabler
The pleadings raise a preliminary issue, also pressed by
Respondent at the hearing, as to the supervisory and
agency status of Jack Zabler, who concededly was
Respondent's shop foreman at the times here material
The Act itself (Sec 2 [11] and [13]) furnishes yardsticks
for the resolution of this issue
(11) The term "supervisor" means any individual
having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibility to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of merely routine or clerical nature, but
requires the use of independent judgment
(13) In determining whether any person is acting as
an "agent" of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling
Since the requirements in each of the quoted subsections
are listed disjunctively, no more than one need be fulfilled
in order to satisfy the statute
At the outset, note is taken of the parties' stipulation at
the hearing, to the effect that Respondent's personnel
record for Zabler contains the entry "Steward to Shop
Foreman" in or around June or July, 1967, at which time
Zabler's hourly wage rate was raised from $4.15 to $4 30,
and that on May 18 (1968) he received a further raise to
$4.40, making him the highest paid of Respondent's
employees (excluding managerial-executives)
Called by General Counsel as an adverse or hostile
witness, Respondent's President Hebein testified
extensively on the subject of Zabler's activities and
authority Even without more, Hebein's testimony clearly
establishes that at all times here material Zabler was a
supervisor and agent of Respondent within the quoted
statutory definitions. Thus, Hebein testified that when
Stefan Blum (Respondent's production manager and plant
superintendent, with whom Hebein shares general
management of the business) began "spending a greater
portion of his time in the office" commencing around
March - July, 1967, "we gave Jack [Zabler] an area of
responsibility in the shop, because Mr. Blum could only
spread himself so thin " Accordingly (as Hebein further
testified), a notice was posted on the bulletin board
"announc[ing] to the shop employees that in fact Mr.
Blum and Mr Zabler had undergone a change in their
positions [and] that Mr Zabler had become the shop
foreman ... [and] that . Mr. Blum had been elevated
to a higher managerial position in the company " Prior to
this announcement, Hebem' had informed Zabler that
Zabler "would be in charge of following up the orders
that we received in the office And, in other words he
would distribute the work to the men as he [Zabler]
saw fit to distribute it . in his own discretion . in his
own judgment," which was final, subject only to the
higher authority of Hebem and Blum themselves. At the
time Zabler was promoted to Shop Foreman, he was also
"told that he could recommend people for hire, after
interviewing them," Hebem conceding at the hearing that
those recommendations carried weight with him
According to Hebem, although initially Zabler could not
himself, without consultation with Hebein, hire employees,
at least "in a broad sense of the term" (Hebem', way of
expressing it in his testimony), there admittedly came a
time when Zabler did "hire[d] somebody on his own
weight "4
Hebein also testified on the subject of Zabler's powers
responsibly to direct, as well as to discipline and discharge
(or effectively so to recommend), other employees Thus,
when Zabler was made Shop Foreman, Hebein instructed
him that "he [Zabler] would also have to watch the men
and their work and see that it was done properly
oversee the men " In response to a question by his
own counsel, Hebein testified that Zabler possessed
authority to transfer employees from job to job without
consulting Hebem or Blum Hebein also conceded that a
recommendation from Zabler to discharge an employee
would carry weight with him and that he would follow it,
since "After all, I'm not in the shop myself and I have to
rely on information that I get through him [I e , Zabler]."
Hebein further conceded that Zabler possessed authority
"to discipline employees on his own " Still further
according to Hebein, before accepting the position of
Shop Foreman, Zabler "in fact said that in order to take
that position, and in order to fulfill it and effectively
perform that position, he [Zabler] had to have the right to
fire employees," and, accordingly, Zabler was indeed
given that authority Although, according to Hebein, he
(Hebein) "would like to at least help weigh Jack's [I e.,
Zabler's] decision in firing somebody," nevertheless
'Still - as also, unless otherwise noted, the further facts which follow
relating to Zabler's authority - as testified by Hebein
In response to a leading-type question by his own counsel on
"cross-examination" (Hebein having been called by General Counsel),
Hebein later attempted possibly to qualify this by indicating that Zabler's
authority to hire was "basically subject to our [i e , Hebem ' s and Blum's]
review, I would say " However, it is obvious that the fact that executive
heads of a company possess ultimate power to "review" or override actions
taken by a subordinate, does not mean that the subordinate is not a
"supervisor" as defined in the Act
GENERAL MACHINE CO. 1025
Zabler "did have the authority to do it And I
also felt that I would back him up if it came right down
to cases, rather than let his [i.e., Zabler's] authority in the
shop be watered down we would back him up, properly "
By way of example of the actual exercise of Zabler's
authority in this regard, Hebein acknowledged that on or
about February 5, 1968, three employees (Resop, Reilly,
and Semrad) were in fact discharged on Zabler's
recommendation. In response to a question by his own
counsel, Hebein testified that after March, 1967 Zabler
was authorized to discharge without the consent of Hebein
or Blum Hebein also acknowledged that when he and
Blum "are absent from the shop, Mr Zabler has full
authority over all shop operations."
Various shop employees cast additional light on
Zabler's activities, status, and how he is regarded by the
employees themselves. Thus, shop employee Hartfelder
(General Counsel's witness) testified that he receives his
job assignments from Zabler and goes to him (or to Blum,
but usually to Zabler) with job problems, and that Zabler
assigns overtime and, without consultation elsewhere,
sanctions early departures Employee Fritsch
(Respondent's witness) acknowledged Zabler's status in
February as foreman, and employee Schoen (also
testifying as Respondent's witness), likewise
acknowledging Zabler to be his foreman and supervisor,
testified that he "regarded him as boss."
It is apparent from the foregoing that Zabler squarely
satisfies the statutory requirement for being considered as
a supervisor and agent of Respondent Upon the basis of
Hebein's own testimony, Zabler possessed "authority, in
the interest of the employer, to hire, transfer
discharge, assign . . or discipline other employees, or
responsibly to direct them . or effectively to
recommend such action . [in his] independent
judgment" (Act, Sec. 2[111), with such actions and
recommendations being effective
It is accordingly found, contrary to Respondent's
denial , that, as alleged in the complaint, at all material
times Jack Zabler was Respondent's supervisor and agent
within the meaning of the Act 5
C Events Constituting the Alleged Unfair Labor
Practices , Rationale and Findings
As has been mentioned, since the Union's official
Board certification in 1958 as the unit employees'
collective bargaining representative, Respondent has had a
series of collective agreements with the Union, the last of
which was operative until March 1, 1968 6
February 13' It is conceded that about 2 weeks before
the expiration of the last collective agreement, on
February 13, the Union and Respondent met in order to
'Respondent ' s counsel conceded at the hearing that the fact that Zabler
was a member of the Union is not controlling on the question of his
supervisory status under the Act
'The collective agreements appear to have been with Tool and Die
Makers ' Lodge No 78 of the International Association of Machinists or
with Tool and Die Makers Lodge No 78 of the International Association
of Machinists and Aerospace Workers Testimony of General Counsel's
witness Poweleit ( the Union ' s Business Representative for 13 years)
indicates that Milwaukee District 10 of that Union includes Lodge No 78
(Charging Party here and, according to Poweleit ' s uncontradicted
testimony , the Board ' s certificate holder as the result of a 1958 election), in
turn comprised of some 32 shops Respondent 's answer in this proceeding
expressly admits the complaint allegation (par "6") that on April 14,
1958, the Board certified the Union named in the caption of the complaint
as exclusive collective - bargaining representative of Respondent's unit
employees here
negotiate a new collective agreement ' At this meeting,
Respondent apparently felt that the Union's wage
demands ' were excessive ,' since Respondent ' s President
Hebein characterized the Union's proposals - which were
the same as to four other area shops , based upon "skilled
trades settlements in the UAW in Detroit" - as a "very
tremendously costly package" which he did not "feel that
this company could absorb " in view of its being
"confronted with some very, very serious problems""
Union Business Representative - negotiator Poweleit offered
to supply survey data and other "substantiating"
documentation and indicated that "in the next meeting
we'll sit down and see at least how far you possibly can go
with this , and eventually perhaps we ' ll come to terms
without too much excitement We did feel that we
couldn ' t go any further The company wasn't willing to
make any counter -proposal at that point. I suggest
another meeting date and we did agree to a meeting date
about ten days later " The meeting date for continued
negotiations was fixed as February 23
The discussion then veered to a grievance concerning
unit work which Respondent had "subcontracted" out to
certain unit employees (Cyrs and Fritsch ) unilaterally
without consulting , informing , or bargaining with the
Union , and in breach of the subsisting collective
agreement " According to Poweleit's testimony
(uncontradicted by Hebein or Blum, neither of whom took
the stand to testify to the contrary , without explanation
for the failure). -
'Present for the Company were Hebem and Blum, for the Union,
Business Representative Poweleit and Shop Committeeman Hartfelder
This meeting followed a negotiation reopener letter from the Union on
December 19, 1967, and a Union letter on January 18, 1968 containing
1968 proposals with a negotiating request According to Union Business
Representative - negotiator Poweleit 's credited uncontradicted testimony,
following his January 18 letter he attempted about 10 times without
success to reach Hebein, and was only able to arrange a meeting with him
for February 13 when he ( Poweleit ) was alerted on February 9 by Shop
Committeeman Hartfelder that Hebein was there Telephoning
immediately, Poweleit reminded Hebein that time for negotiations was
running short Stating he was "aware of it," Hebein blamed his delay on
"personal illness and unusually busy with customers " It was then
that the February 13 negotiating meeting was arranged
'Consisting of or based upon a timely survey of tool and die maker wage
rates prevailing in the area According to Union Business
Representative-Negotiator Poweleit , the Union' s requests , submitted to all
five area shops, were in economic impact "considerably higher than
anything we had submitted to the company for consideration in any
previous negotiations , almost double , I would say "
'The February 13 meeting opened with a discussion of Respondent's
termination of three unit employees, allegedly for poor quality work
ascribed to them by Shop Foreman Zabler This matter was tabled
pending further investigation or consideration
'°Hebem conceded that he "expressed some surprise at the relative size
of those demands ," characterizing them as "husky" and "pretty extensive
with regard to cost , [and that we ] probably could not afford them "
"According to Poweleit , this matter had first been reported to him by
Shop Committeeman Hartfelder on or about February 5 Hartfelder
testified credibly that he had initially observed fellow employee Cyrs
working overtime on dies in the machine shop in the fall of 1967,
continuing work Cyrs had been doing during regular working hours Upon
becoming Union steward or committeeman in January 1968 (Cyrs had
apparently had that capacity before), Hartfelder requested Hebein to
discontinue giving "contract" work "on two machines" to Cyrs, but rather
to spread it around as overtime among the other employees Hebein's
response was that "Jerry Cyrs wasn' t working overtime then, he was
working on the contract , because Kenny Fritsch [another unit employee]
was helping him out " Also, at the same time, Hebein told Hartfelder
"that it wasn ' t necessary to have the union in the shop, and said that
it would be the same without the union , that we would make the same
money with the union there or not, maybe more , see, and that actually we
didn't have that much problem , so that we don't need the union, that
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I [Poweleit] pointed out that the [collective]
agreement does require the company to equalize
overtime work opportunities and that employees were
being given preferential treatment in that they were
allowed to stay and work overtime while the other
employees were going home. And Mr. Hebein
indicated, well, this was because of a very separate and
special arrangement, away and apart from the
agreement That this was an agreement between him, as
the company representative, and the employees involved
on a separate contract. I said, well, I thought that that
was still a matter of violation of the agreement And,
certainly, we would pursue this further in the grievance
procedure, if he intended to maintain that position.
I also pointed out to him that I thought this was a
violation of Federal law under the Wages and Hours
Division, that we had occasion to hear of shops doing
this, although I didn't personally know of any shops
that did it, but having heard our attorney expound on it
in newly organized shops occasionally finding it, that it
certainly was his opinion that this was a violation of
Federal law. And that unless this practice was
immediately discontinued, I would have no alternative
but to file an official complaint with the Wages and
Hours Division.
Mr Hebein was much surprised to hear that this was
a violation of the law and he said that wasn't important
to him; however, he requested if he were to discontinue
this practice that would he be alloted the courtesy of
completing the one job that was in the shop I asked
how long that job would run; he said about a week, and
I said I thought that was reasonable, and that I could
live with that kind of an arrangement, providing that
the employees involved also understood and agreed to
discontinue this work, now that we had an arrangement
with the company and I had another problem with the
employees.
Company President Hebein conceded that among the
subjects discussed at the February 13 negotiating meeting
was "the contractual work that was being done by one of
our employees in the shop . . Jerry Cyrs," as well as
employee Kenny Fritsch, both of whom "were doing some
machine work for us . . . in the shop . . . for a set
price," agreeing also that this was Company work which
the Company had contracted out to these two employees
to perform on Company machines "for a set price" as
"contract work . in our shop after their regular
hours," after the employees had completed their regular
day's work and earned their regular pay. Hebein also
conceded that this work was "the same general type of
work" as was being done in the shop normally, although
allegedly not within the capability of all of the employees.' _
According to Hebem, Cyrs and Fritsch started this work
in the fall of 1967, continuing it in 1968, including the
time of the February 13 negotiating meeting In response
to questions by his own counsel, Hebein testified that
although this "subcontracting" was probably generally on
the initiative of the employees concerned, at times Hebein
himself would bring it about, since, as Hebein testified,
"If we were going to subcontract it anyway on the
outside, why, there it was." Asked whether this work
could also be performed during regular workhours,
Hebein's response was "Well, normally, if a man does
this job on company time it could be done during the day,
yes. But if he does this job on his own time for a fixed
without the union we could go along , too " This testimony was
uncontroverted by Cyrs or Hebein
price, he usually makes a greatly increased rate of pay per
hour So, it's been beneficial to the men to do this type of
work, he makes out a little better, in other words That's
the only thing there is to it." Hebein conceded that at no
time had he discussed this practice with the Union before
engaging in it.
In accordance with the discussion of this subject at the
February 13 negotiating meeting, Poweleit requested to be
allowed to speak to Cyrs, the "subcontracting employee,
and Hebein agreed Accordingly, Poweleit, accompanied
by Shop Committeeman Hartfelder, went into the shop,
where - it being after 3.30 - most employees had left or
were in process of doing so. However, "Cyrs was running
a machine " It was pointed out to Cyrs that the Company
had agreed to discontinue this "unequal distribution of
overtime" upon Cyrs' completion of the extra job he was
in process of working on, which Cyrs acknowledged would
take about a week. " . [U]pset and disappointed,
[Cyrs] felt that this was an encroachment on his individual
rights, constitutional liberties " According to Poweleit,
Cyrs agreed to desist from further such "contract" work
upon completion of his current job although he said he
was "not happy" about it
February 20-21-11 During paid working hours on
February 20 - 3 days before the February 23 date which
had been agreed upon for resumption of the collective
bargaining of a new contract to take effect on the March
1 expiration of the existing collective agreement
[Shop Foreman] Jack Zabler called everybody"
together right in front of Jerry Cyrs' bench, and said
that he would like to talk to us about voting out the
union . So, then, he started talking, he says, well, that
we did have a lot of problems in there and that the
company couldn't afford to pay what the union was
demanding, because those demands were too high,"
that if the company pays them that - this kind of
money, it would go broke, or something, then the union
would vote to go to strike So, after the union votes to
strike, nobody would go out on the streets and strike,
see
At Hartfelder's suggestion, the matter was postponed until
the following day ' 6
Early the following morning (February 21), again
during paid worktime, Zabler.
"During "cross-examination " questioning by his own counsel, Hebein
added that "there ' s other people in the shop that are qualified to do it but
they didn't really care to do it", and that Zabler also performed such work
on occasion
"Based primarily upon testimony of General Counsel's witness
Hartfelder , whose demeanor I closely observed and who impressed me as
worthy of belief Other employees , testifying as Respondent's witnesses in
response to general , leading-type questions put to them by Respondent's
counsel under its watchful eye, as discussed below, presented a far less
factually complete picture of the events of February 20-21 Inexplicably,
the perhaps principal actor in these events, Respondent ' s Shop Foreman
Zabler , did not testify , nor did Respondent in any way account for its
failure to produce him
"AII shop employees except Derpinghaus and Habeck were present
"it will be recalled that this was almost precisely the position taken by
Company President Hebein at the February 13 negotiating session with
Union Business Representative -Negotiator Poweleit
"in the totality of the entire record , including the testimony of all of the
witnesses ( including Respondent ' s) and Zabler's described actions and
unexplained failure to testify, I do not regard the idea for the poll which
took place the following day, as will be described , as realistically
emanating from or sponsored by Hartfelder Furthermore , whether or not
Hartfelder suggested the poll, any poll conducted by the employer had to
satisfy lawful requirements for such polls , as discussed, infra
GENERAL MACHINE CO. 1027
called everybody" around . in front of my
[Hartfelder's] bench And, so . then he
[Zabler] went over again about the union business, that
they were demanding too much, and the company
couldn't afford to pay that much money1e that the
union would vote to strike . . I [Hartfelder] said,
"Who wants to go on a strike'?" . And I asked him,
"Well, what about it, if we vote the union out, what
then9" That if we voted the union out, I would like to
have something signed by Tom Hebein or that he
would come out and talk to us, so that we got
something that we can hold on, that if today or
tomorrow he can fire anybody who wants the union,
and he fires anybody, we have nothing to catch on to
say, well, how can we hire him back
Zabler replied that he thought "everything would stay the
same." However, Hartfelder insisted that Hebein come
out of the office and address the men directly. Zabler
thereupon went into Hebein's office and soon returned,
stating that Hebem "was talking on the phone with his
lawyer and that he couldn't come out." But Hartfelder
persisted in wanting to "know before I vote where we're
standing" and in receiving "something written down that
we can hold on," particularly since the employees did not
want to "lose" their "other benefits." At this point,
Zabler reentered Hebein's office and when he emerged he
"said that Tom [Hebein] said that everything would stay
the same, that he wouldn't take any benefits away
the vacation and everything would be the same, that he
would talk to us every year renewing the contract 11
Zabler thereupon announced, "Okay. If everybody wants
to vote now," and passed out a slip of paper to each
employee to vote for or against the union, and then
Zabler "counted the pieces of paper," seven being "yes"
and one "no " (Apparently in this voting a "yes" vote
meant "no union .") Then Zabler "signed a piece of paper
he had already printed [i e., typewritten]," stating that
"after we signed it, he would send it to the union, and
then the union, that way, will be automatically out." All
-- including the employee who had voted against the
proposition -- then signed the previously prepared typed
sheet which Zabler had brought with him even "before the
vote." The document, which is typewritten, states. -
"This time all shop employees were there
"See fn 15, supra
"Hebein conceded that Zabler came into his office on this occasion and
reported to him "that the employees were holding a meeting in the shop "
Further according to Hebein 's testimony, Zabler "asked me [Hebein], he
said that the men in the shop were discontented with things as they were
and that they were taking some kind of a vote And he - - I forget what he
asked me some questions and I told him pointblank, 'You do what you
have to do,' in other words, leave me out of it And, so that ' s about the
extent of it, it was a short meeting there and that was it " Hebein also
conceded that Zabler told him "that the employees were holding this
meeting to decide whether they wanted the union to continue to represent
them" and that Zabler told him that "they were going to take a vote to see
if they could vote the union out" After this (still according to Hebein),
Zabler left the office , but returned and "indicated to me that the men were
taking a vote on this union , and, of course , that they were wondering
whether or not I would, in effect , lower wages , or eliminate holidays, or if
I would take anything away from them in this regard And I didn ' t answer
him But I didn't answer yes or no that question. I told him, I said, I
can't, you know , consciously say one thing one way or another, you just
-- you fellows do what you want to do , and based on our past relationship
I think you can base your judgment on that " Asked if he told Zabler, "I
cannot and will not take anything away from the men if they do vote the
union out," Hebein responded , " I may have said that I honestly can't
recall I would say no " Thereupon , the following colloquy ensued -
Q [By Counsel for General Counsel] Mr Hebem, have you ever made
Confronted at this point with his pretrial affidavit sworn
to by him on March 13, 1968, which he conceded he had
read over in the presence of his attorney, he conceded that
he had sworn therein that "Zabler asked me [Hebein]
about their [i e , employees'] present benefits, what would
happen in regard to these benefits if the union left I said
that I could not and I would not take anything away from
the men", and he then testified that this was what he had
told Zabler that morning
February 19, 1968
To Whom It May Concern.
We the undersigned, Employees of General Machine
Company and members of Tool & Die Makers Lodge
No 78, would at this time like to inform Lodge No.
78, that we have taken a vote to drop it's representation
in our behalf, for we feel that it's services are no longer
needed in this company.
There follow seven pretyped numbered and blank
signature lines, and an eighth hand-numbered blank
signature line. (It does not appear that Zabler sent this to
the Union as he had said he would Respondent produced
it in evidence here )
Also with regard to this document and the
circumstances surrounding its execution, six other shop
employees, who were called by Respondent to signify that
they signed it, agreed in response to leading-type questions
by Respondent's counsel that they did so of their "free
will" without "promise" or "threat " Observing closely
their testimonial demeanor within the frame of rcference
of the underlying circumstances as described, I have
carefully evaluated their answers to such leading
questions, delivered under their employer's watchful eye.T'
I have also given consideration to other testimony of these
witnesses For example, tool and diemaker Schmidt (in
Respondent's employ 35 years and now a Union member)
testified that Zabler had the aforequoted typewritten
document with him at the meeting at which Zabler's lust
words were "something to the effect of getting the union
out", and that since "everybody signed, so I signed, too,"
while conceding on cross-examination, after much
hesitation, that Zabler "asked me to sign it, yes"
Machinist Habeck (employed by Respondent 7 months
and never a Union member), after first testifying nobody
asked him to sign the document, changed this to say
Zabler asked him to sign it after he had "brought it out of
the office," at the meeting to which he was summoned
(while working) by Zabler, who "said that we were going
to vote the union, so we voted " (Habeck was impeached
by General Counsel through contradictory statements
made by him in his pretrial affidavit of April 17, wherein
he had sworn that because of a sick child "I can't
remember too much about what went on during this
meeting " No redirect examination by Respondent
followed this impeachment.) Diemaker Fritsch (in
Respondent's employ less than 2 years) testified that while
at work he was approached by Zabler, who said, "[I'd]
like to talk to [you]"; and that when the shop employees
assembled, Zabler "asked us if we'd like to drop the
union. And he [Zabler] said it's up to us if we'd like to
drop it," while he had with him the foregoing document,
which he placed on a bench, stating, "Whoever wants to
a contrary statement'?
A [By Mr Hebem] I probably have, yes
Q You have made a contrary statement'?
A Sure
"Cf Wright, J , in international Union , United Automobile. etc.
Workers /Preston Products Company , Inc I v N L R B , 392 F 2d 801,
807 (C A D C ), cert denied 392 U S 906
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign it, sign it," Zabler remaining while every shop
employee signed Tool and die apprentice Derpinghaus (in
Respondent's employ since February, 1967, and a Union
member) testified that Zabler informed him at work "that
there [is] going to be a meeting right in the shop
to vote on the union", that Zabler told the assembled
employees "that he [Zabler] suggested that he had this
petition [i e , Resp Exh 1, quoted supra) and he wanted
to know if we wanted to sign it", that Zabler instructed
the men to vote "yes" or "no" on the "ballots," which
Zabler then counted, and that Zabler asked those voting
"yes" to "sign it " Although Derpinghaus swore he saw
all of the ballots and that nobody had "voted no" and the
"vote was unanimous," this is clearly contrary to fact
(Witnesses were segregated during the hearing.) Tool and
diemaker apprentice Schoen (in Respondent's employ
about a year and a member of the Union) testified that
Zabler approached him at work on the day of the
"voting" and said "we would have the vote if we
would want to vote the union out," but that Zabler told
the assembled employees to "make up our own minds, '
while he "also told [us] that if [we] in fact did vote out
the union the company would probably not take away any
benefits", and that Zabler conducted the vote, counted the
ballots, and "ask[ed] us to sign" the aforequoted
document, which the employees did in Zabler's presence
Finally, tool and diemaker Cyrs - the beneficiary of
Respondent's described "subcontracting" of unit work -
testified that after the shop employees were assembled by
Zabler with "everybody [having] a chance to voice their
opinion for or against, and we were going to take a vote
and sign a paper and present it to the union," nevertheless
Zabler "was the only one" who spoke, and that it was
Zabler who passed out and counted the "ballots" and who
produced and asked all employees to sign the aforequoted
document, to Zabler's presence
I was well impressed with Hartfelder's testimonial
candor and courage while testifying at risk of employer
reprisal 21 1 received a generally somewhat contrasting
impression that the other employee witnesses, produced by
the employer and testifying under its eye,22 were visibly
hesitant and holding back, except to the extent that
admissions were wrested from them on cross-examination
After careful consideration of all circumstances, including
comparison of testimonial demeanor as observed, I credit
Hartfelder's version as the more complete and accurate
account of the events of February 20-21 as recounted
above
Hartfelder telephoned Union Business Representative
Poweleit later that morning (February 21) about Zabler's
poll Poweleit asked to speak to Zabler, who was
"standing there" by Hartfelder. Poweleit asked Zabler
What was happening in the shop, and he [Zabler]
said, "Well, we've just taken a vote and decided we
don't want the union here " And I said, "Well, that
wasn't very courteous of you The least you could have
done was to tender me the privilege of being there for
the meeting " He said, "Well, if that would have been
the case, you'd have turned them around the other
way." And I said, "Well, I certainly intended to do
that, anyway," whether he had me at this particular
meeting or not Individually and perhaps collectively,
some other time, I expected to be doing this anyway
"That this is a factor properly to be considered in credibility resolution,
see Georgia Rug Mill , 131 NLRB 1304, 1305, fn 2, enfd as modified 308
F 2d 89 (C A 5), Wirtz v B A C Steel Products , Inc . 312 F 2d 14, 16
(C A 4)
"See fn 20, supra
And he said, "Well, you do what you want. I'm doing
what I'm doing "
And I said, "Well, Jack, do you realize, as a union
member," - he was a union member at the time -
"this is going to sit bad, certainly, with respect to your
other union members9 They're not going to appreciate
an act of this kind And, in addition to that, I think, as
to the question of your being supervisory or not, it's
certainly up in the air here If you've done it in behalf
of the company, you you're committing an unfair labor
practice " He said, "Well, whatever the reason, I've
done it, and I've got to live with it "23
February 22-29 On February 22, Union Business
Representative-Negotiator Poweleit informed
Respondent's executive Blum on the telephone that the
Union had decided not to proceed with grievances on the
three discharged employees 21 As of this date, the
negotiating meeting scheduled for February 23 still stood
and Blum indicated nothing to the contrary
On February 23, Powelett went to Respondent's office
to keep the negotiating appointment for that date He was
met there by Blum, who said, "Rudy [Poweleit], I'm kind
of surprised to see you.' [Powelett] thought he [Blum] was
kind of joking about it. I says, 'Well, where's Tom
[Hebein]9' I And he said, 'Well, Tom isn't even in town.'
I said, 'Well, how are we going to proceed with our
negotiations9' And he said, 'Well, didn't you get a letter?'
I said, 'No, I have no letter ' He said, 'Well, the fellows
in the shop have taken some sort of a vote and have
decided not to have the union, and, consequently, you
should have received a letter ' I said, 'Well, I heard about
the rump meeting you had and I didn't think too much of
it, and I'll certainly have another meeting with the fellows
in the shop somewhere along the way to straighten them
out, but, in the meantime, we've got the responsibility to
continue with our negotiations ' I said, 'Is there any way
you can reach Tom [Hebem]''' He said, 'Yes, I think I
know where I can reach him ' So, he dialed a number and
got Tom on the phone, and Tom was asking me the same
question, whether I'd received a letter I said, no, I had no
letter And he said, well, he'd been advised through legal
counsel that he shouldn't be meeting with the union any
further at this stage of the events, and as a result of this
meeting in the shop with the people And I told him that
I've gone through situations like this before, people do
change their mind, from time to time, under varying
circumstances, I didn't consider the group meeting of the
employees as a legal meeting And, frankly, I really felt
that the company had allowed a very unfair labor practice
situation to develop in that meeting Well, he [Hebein]
didn't want to get into any further discussion I said,
'Well, Tom, we've got to meet and consider further our
job shop policy situation and see where we can go, on
negotiations' He said, 'Well, I've been advised not to
arrange any further meetings, or do anything further
about this thing, until we can clear up this question of the
representation ' I said, 'Well, my thinking on that would
be that you would be committing an unfair labor practice,
and if you maintain the position I'll have no other
recourse but to file an unfair labor practice charge.'
I said, 'Come on back and we'll talk about it.' And he
said, no, he wasn't amenable to that I said, 'Let's arrange
a further meeting ' And he told me he wasn't agreeable to
"Credited testimony of Poweleit, uncontradicted by Zabler, who did not
testify and whose failure to do so was in no way explained
"It will be recalled that this subject had been brought up and tabled at
the February 13 negotiating meeting
GENERAL MACHINE CO 1029
that, either 25 So, I said, the only thing you can do is to let
me know on Monday [this being Friday] If your position
still stands , I'm going to file an unfair labor practice
charge . And then I turned the phone back over to Stefan
Blum. I told Stefan that I was going to go on out and
let the shop committeeman know what had happened in
the office here and why we weren ' t meeting [with the
Company for collective bargaining , as arranged], and
what to expect . And he [Blum ] didn ' t respond to that, he
just took the phone . From the office where the
phone was I walked through a door immediately in the
shop and I walked over to where Committeeman Warner
Hartfelder ' s work place was and began to tell him about
what had happened and where we were situated Well,
within a minute or so Mr. Blum came out and said,
`Rudy, I'm sorry, but I've got to ask you to leave the
shop ' And I said , ` Well, here you go again committing
another violation of the contract You know very well that
I've got a right to speak to the committeeman in the shop
here. ' He said, No matter what your rights are, I'm
under orders from Mr Hebein to demand that you leave
the premises immediately ' And I didn't like it, but I left "26
The parties ' collective agreement provision authorizing
such right of access ( G C Exh 2(a), p 20, art IX, sec 5)
was still in effect at this time (Cf N L R B v Great
Dane Trailers , Inc , 388 U S 26, 30-33 ) Prior to this
date, Powelett had visited the shop "quite frequently,"
without ever having been stopped or asked to leave
"Hebein 's version of this conversation is that on February 23 he was in
Menomonee Falls, when he received a telephone call from Blum informing
him "that Mr Poweleit was at the office for a meeting I was surprised to
hear this because I had written him a letter telling him , cancelling the
meeting Had I known he was coming , I would have definitely been
there " No reason is apparent why Poweleit would go to a meeting which
he knew had been cancelled (There is some indication that a letter had
been sent but had miscarried or possibly been delayed because of an
intervening holiday ) Also, it is difficult to reconcile Hebein 's testimony
that "Had I known he [Powleit ] was coming , I would have definitely been
there" with his testimony that he had "written him a letter cancelling
the meeting " Furthermore , according to Hebein ' s testimony, he was
driving and Menomonee Falls is a mere 18 miles from Respondent's
Milwaukee premises
"Since, without explanation , Blum was not called to testify, the
foregoing testimony of Poweleit with regard to Blum was wholly
uncontradicted Hebein 's version of the latter aspect of the matter,
concerning Poweleit ' s being asked to leave the premises, was that Hebein
instructed Blum "to ask Mr Poweleit if he would, instead of going into
the shop, set up another appointment with me so we could meet at another
date " In view of contrary testimony of Poweleit , Poweleit 's evident
continued interest in meeting with Hebein , and the undisputed fact that
they never did meet, I do not credit Hebein 's version The following
colloquy ensued after the quoted testimony of Hebein on this subject -
Q [By Counsel for General Counsel] Why didn ' t you want Mr
Poweleit in the shop at that time'
A [By Hebein ] Well, as I said , the men had indicated in this previous
vote that they had taken that they didn't want his representation, and
Mr Poweleit had indicated that he was going into the shop and talk to
the men And, of course, I had no idea what was in his mind In my
mind , I had a business to run, and I didn't want anything interfering
with the normal flow of work there And, so, rather than create a
situation which might interfere with the normal operations of the shop, I
thought that the matter could be handled in a separate meeting, and so I
asked that he wait until we could get together and discuss it again, you
know
Q Did you think he was going into the shop to stir something up"
A Possibly, yes
Q Did you tell Blum to tell Poweleit to leave the shop'
A Well, I bust indicated that I asked Steve [ Blum] to tell him
[Poweleit] to leave the shop, yes
Q Has Poweleit ever been out in the shop prior to this time' Has he
gone out in the shop on previous occasions"
A Oh, yes
Since February 23, Poweleit has not returned to
Respondent's premises for negotiations, nor has there
been any meeting [or that purpose at any time other than
the one and only described meeting of February 13.
Poweleit received no telephone call from Hebein on
Monday, February 26, in response to his invitation to
Hebein in their conversation of Friday, February 23, to
call him in case of any change in Hebein's position
refusing to meet further with the Union However, on or
about February 27 or 28, Poweleit received a letter from
Hebein, dated February 21, stating -
It has been brought to my attention that our
employees no longer wish your representation on their
behalf.
Further negotiations with your lodge would be
against their wishes.
In this regard I am cancelling our scheduled meeting
for Friday, February 23, 1968 If you have any further
discussion concerning this matter, feel free to contact
me
On February 29, the Union filed the charges resulting
in the Regional Director's issuance of the complaint in
this proceeding.-
Conceding that the one and only negotiating meeting
with the Union was the one on February 13 and that after
he cancelled the further meeting which had been scheduled
for February 23 he has been "unwilling to meet any
further with the union," Hebein testified that his reason
was that "I wanted to wait till we cleared this thing up
with the men " He then hastily added, "Well, have I been
unwilling to meet with the union9 Well, I - not
myself I'm following the - what the men want, it's what
they want "
In assessing Respondent's conduct, several salient
circumstances stand out
(1) Zabler was a supervisor and agent of Respondent as
defined in the Act
(2) Zabler's described actions were undertaken (a) on
Respondent's behalf, (b) in Respondent's interests, (c)
with Respondent's knowledge, and (d) if not with
Respondent's express approbation, at any rate without
Respondent's disapproval or disavowal, although
Respondent could readily have "cleared the air" in this
respect, had it desired to do so, in order to disassociate
itself in the employees' minds from what Respondent
knew its Shop Foreman Zabler to be doing
(3) Zabler's actions actually furthered what Respondent
has at all times regarded as its interests.
(4) The actions of Zabler and Respondent occurred at a
time when Respondent was under legal obligation to
bargain with the Union.
(5) (a) The meetings called by Zabler on February 20
and 21 were instigated , convoked, and presided over by
Respondent's supervisor and agent Zabler, in
Respondent's premises on Respondent's time and expense
Q Has he ever been asked to leave , before'
A No
Q Has he talked to employees in the shop before'
A Yes
2'On March 4, Hebein telephoned Poweleit, indicating awareness of the
charges and asking whether there was "any way we can reconcile this
matter " When Poweleit said there was, by meeting and bargaining in good
faith, Hebein declined to do so Poweleit invited such a meeting in case of
any change of heart Respondent has not accepted the invitation, instead,
on March 19 it filed an "RM" petition with the Board, seeking an
election The petition (Case 30.RM- 128) was dismissed by the Board's
Regional Director for Region 30 on May 15 , Respondent ' s petition for
review was subsequently denied
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) There is no showing, claim, or reason to believe that
such meetings would have been held, or any action of that
nature, by the rank-and-file employees. (c) There is no
showing or claim that at any time any petition has been
presented to the Board by the employees or any of them,
seeking decertification of the Union (d) There is no
showing or claim that any petition seeking a
determination of representative status was at any time
presented to the Board by Respondent prior to Zabler's
described actions.
(6) The Board's polling requirements were not complied
with at the meeting called and presided over by Zabler. In
Struksnes Construction Co , Inc , 165 NLRB No. 102, the
Board clearly explicated the requirements governing
employer polls of the union sentiments of employees,
cautioning:
Absent unusual circumstances, the polling of
employees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards are
observed. (1) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this purpose is
communicated to the employees, (3) assurances against
reprisal are given, (4) the employees are polled by
secret ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a coercive
atmosphere
These requirements were not met here
(7) Zabler's described activities took place only after
Hebein had commenced bargaining with the Union and
had contended that the Union's requests were excessive
Zabler's argument to the employees whom he directed to
assemble to "vote" on renouncing the Union was likewise
that the Union's requests were excessive Zabler thereafter
passed on to Hebein the results of that "vote," which
Hebein gave as his excuse for cancelling a scheduled
further bargaining session within the life of the subsisting
collective agreement and for refusing to bargain any more
with the Union.
(8) Respondent's described conduct in contracting or
subcontracting unit work to certain of its employees
without notifying or bargaining with the Union, while the
Union was the exclusive collective bargaining
representative of the employees, was so clearly violative of
the Act as to brook of no argument. See Fibreboard
Paper Products Corp v N L.R.B, 379 U S 203.
(9) Respondent's conduct in totally denying plant access
to the Union's representative on February 23 under the
circumstances described was improper and in further
violation of Section 8(a)(1) of the Act
(10) Since the Union was still the exclusive collective
bargaining representative of the employees, Respondent
remained legally obligated to bargain with the Union and
was not free to disestablish or avoid that obligation by
conducting or relying upon the results of its unlawful poll
Accordingly, its subsequent failure and refusal to meet
with the Union in order to bargain collectively in good
faith were, under the circumstances, in violation of
Section 8(a)(5) and (1) as charged
(11) In view of the foregoing, it is unnecessary to pass
upon other specific allegations of the complaint, such as
Respondent's assurances to employees - in the frame of
reference of the factual congeries of inseparably
accompanying actions presented - that it would not
withdraw any benefits from them if they renounced the
Union as their collective bargaining representative, since
such conduct would in any event be cumulative and would
not enlarge the scope of any remedial order herein 28
The pacification of industrial relations which Congress
sought to achieve through the Act can hardly be
considered to be promoted if, in the face of presumed
certified status as well as a subsisting collective
agreement, an employer simply disregards these and
"subcontracts" work out to certain unit employees, or if
an employer may parry a lawful bargaining position taken
by a collective bargaining representative by unlawfully
polling his employees in the manner described and
producing a private "decertification," so to speak, during
the period when the union enjoys statutory and
contractual bargaining exclusivity, and then refusing to
continue the bargaining If uncontrolled, such inherently
coercive private "polls," interposed during bargaining,
could be utilized as the simple reprise to any bargaining
position or request during the official certification period
and contractual period, eliminating the statutory necessity
to bargain further or at all, overriding Board certificating
authority as well as contractual requirement. It is not
difficult to envision the turbulently unstable industrial
relations climate which would ensue, undermining a
cornerstone of the Congressionally declared public policy
upon which the Act is built
In justification of its described conduct (i e., the
polling-balloting itself, as well as its words to its
employees, since the two cannot be disentangled),
Respondent urges that it comprised no more than exercise
of its constitutional "right of free speech " Within the
spirit of total dedication to that constitutional protection
as interpreted by authority controlling upon the Trial
Examiner, the Trial Examiner does not concur with its
alleged applicability here The "speech" aspects here are
inseparable from the actions which formed their matrix.
They can no more be filtered out of the totality of what
occurred than a color can be filtered out of a liquid
without changing the color of the liquid Furthermore, the
constitutional guarantee of freedom of expression does not
operate as a talisman automatically to sanction every.hing
which has been said, regardless of the circumstances under
which said It is not a universal countersign, mere
utterance of which opens every door or sterilizes every
action, so as to avoid all answerability for anything said
and done 29 To apply it as Respondent here appears to
suggest would enable employers and unions alike through
mere invocation of the talismanic formula "free speech"
to override Board certifications and the collective
bargaining obligation as well as other provisions of the
Act.
Respondent's "free speech" contention also fails under
the very wording of the Act, Section 8(c) of which
explicitly excepts from the area of permissible "expressing
of any views, argument, or opinion" the utterance of any
"expression contain[ing] . threat of reprisal . or
promise of benefit " The validity of this provision has
likewise been tested and upheld N.L R B. v. United
Steelworkers of America, 357 U.S 357, 362; N L.R B v
Eastern Die Co , 340 F 2d 607, 608 (C A 1), cert denied
381 U S. 951 '°
"Cf, e g , Hecks , Inc, 172 NLRB No 255, In 3 Accordingly,
Respondent's motion, upon which decision was reserved at the hearing, to
strike out these portions of the complaint is dismissed as moot
"Respondent ' s citations of decisions emphasizing employer freedom
during a union election campaign to counter union propaganda with its
own utterances , are accordingly inapposite
"The point here again raised by Respondent has met with consistent
GENERAL MACHINE CO. 1031
Respondent seeks further to justify its actions upon the
basis that its supervisor Zabler was himself a member of
the Union However, in view of Zabler's supervisory
status, this contention is unavailing It is clear that union
membership is not a license to violate the Act The fact
that Zabler, with Respondent's knowledge, chose to place
or maintain himself in a position where there were or
could be conflicting calls upon his loyalty does not
immunze Respondent from the consequences resulting
from Zabler's dual administration of those loyalties 11 It is
no defense to lawbreaking that the circumstances were
opportune Since Respondent could not lawfully do
through its supervisor and agent what it could not lawfully
do itself, I reject Respondent's contention that the
described actions of Zabler on its behalf must be
exempted from condemnation because Zabler was a
member of the Union.
Rejecting, therefore, Respondent's contentions in
alleged justification of its described conduct, I find that by
that conduct Respondent violated its statutory obligation
under the Act to bargain collectively in good faith with
the Union as the bargaining unit's representative, and that
at the same time Respondent, also in derogation of the
Union's representative status and in order to undermine
that status, as well as in interference with, restraint and
coercion of employees' rights under Section 7 of the Act,
subcontracted out unit work and, further, improperly
proscribed plant access to said Union as such
representative, all in violation of Section 8(a)(5) and (1) of
the Act 11
Upon the foregoing findings and the entire record, I
state the following
CONCLUSIONS OF LAW
1 At all material times , Respondent General Machine
Co , Inc , has been and is an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.
2 At all material times , District No 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO, Charging Party herein , has been and is a labor
rejection See, e g , Holly Hill Lumber Company v N L R 8 , 380 F 2d
838, 841 (C A 4), Wausau Steel Corporation v N L R 8, 377 F 2d 369,
372 (C A 7), N L R B v McCormick Concrete Company of S C, Inc,
371 F 2d 149, 152-153 (C A 4), N L R B v Associated Naval Architects,
Inc . 355 F 2d 788, 791 (C A 4), Florence Printing Co v N L R B , 333
F 2d 288, 290-291 (C A 4), N L R B v Realist , Inc , 328 F 2d 840, 843
(C A 7), cert denied 377 U S 994, N L R B v Marsh Supermarkets,
Inc, 327 F 2d 109, 111 (C A 7), cert denied 377 U S 944, NLRB. v
Tru-Line Metal Products Company , 324 F 2d 614, 616 (C A 6), cert
denied 377 U S 906 , N L R B v Imperial-Eastman Corporation , 322 F 2d
679, 680-681 (C A 7) With regard to threat of plant closure , Textile
Workers v Darlington Co , 380 U S 263, is not to the contrary Speaking
for the unanimous Court , Mr Justice Harlan there explicitly cautioned, fn
20 at 274 "Nothing we have said in this opinion would justify an
employer's interfering with employee organizational activities by
threatening to close his plant , as distinguished from announcing a decision
to close already reached "
"" `Collective bargaining becomes a delusion and a snare if the
employer, either directly or indirectly, is allowed to sit on both sides of the
bargaining table; and, with the great advantage that he holds as the master
of pay and promotions , he will be on both sides of the table if he is
allowed to take any part whatever in the choice of bargaining
representatives by the employees ' " N L.R.B v Stow Manufacturing Co ,
217 F 2d 900, 904 (C A 2), cert denied 348 U.S 964. See also The
Powers Regulator Company v N L R B , 355 F 2d 506 (C A 7).
"As has been indicated , I refrain from further findings as unessential,
since they would at best be of academic interest, cumulative , and without
effect on the remedy See fn 28, supra
organization within the meaning of Section 2(5) of the
Act
3. Assertion of jurisdiction herein is proper.
4 At all material times, including the entire month of
February, 1968, the following has been and is a unit of
Respondent's employees at its Milwaukee, Wisconsin,
machine shop, appropriate for purposes of collective
bargaining under the Act
All of Respondent's toolroom employees, engaged in
the making, assembling, erecting, dismantling and
repairing of machinery, tools, dies, jigs and fixtures,
and equipment and/or parts thereof, of all descriptions,
but excluding office clerical employees, guards,
professional and supervisory employees as defined in the
Act, as amended, and excluding all other employees
5. At all material times, including the entire month of
February 1968, the above Union has been and is the duly
certified and authorized collective-bargaining
representative of Respondent's employees in the
appropriate collective bargaining unit described in
paragraph 4, supra
6. On and since February 13, 1968, said Union
requested and has been requesting Respondent to bargain
with it collectively in good faith, as such representative of
said employees of said unit, in regard to wages, hours,
and other terms and conditions of employment
7. On and since February 23, 1968, Respondent has
failed and refused to bargain collectively in good faith
with said Union as such representative of said employees
of said unit, concerning wages, hours, or any term or
condition of employment, or in any other respect, or to
recognize said Union as such representative
8. Respondent's said failure and refusal to bargain
collectively with said Union has been and is in violation of
Section 8(a)(5) and (1) of the Act
9. Without informing or bargaining with the Union
thereon, at times when the Union was the duly certified
and authorized exclusive collective-bargaining
representative of said unit employees, Respondent has
contracted or subcontracted out work of said bargaining
unit
10 Respondent's said action in contracting or
subcontracting out said unit work has been and is in
violation of Section 8(a)(5) and (1) of the Act.
1 l Respondent has totally denied and refused to permit
plant access to said Union as the duly certified and
authorized exclusive collective-bargaining representative of
said unit employees, on and since February 23, 1968.
12. Respondent's said total denial and refusal of plant
access to said Union on and since February 23, 1968, was
in interference with, restraint, and coercion of its
employees' rights under Section 7, in violation of Section
(a)(l), of the Act.
13 By its conduct set forth in section III, supra, herein
found to have comprised and constituted unfair labor
practices, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
to said employees by Section 7 of the Act, and has
thereby engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
14 Said unfair labor practices and each of them were
engaged in by Respondent for the purpose of undermining
said Union's bargaining representative status and so as,
through such interference, restraint and coercion, to cause
said employees to repudiate said Union and to induce
them not to exercise their rights under the Act to bargain
collectively, and were and are in violation of Respondent's
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to bargain collectively under the Act, and in
interference with, restraint and coercion of its employees'
rights, all in violation of Section 8(a)(5) and (1) of the
Act.
15 The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, it will be recommended that it be required to
cease and desist therefrom and to bargain collectively with
the Union in good faith, reducing to writing and signing
any agreement which may be reached The recommended
order will also require that Respondent take certain
affirmative action (viz, the usual notice posting
conventionally required in cases of this type) designed to
effectuate the policies of the Act The recommended order
will further stipulate that the required actions on
Respondent's part shall be without prejudice to any
economic benefits or betterments which Respondent may
have placed or arranged or promised to place into effect
in the period intervening between the Union's bargaining
demand and the date of Respondent's compliance with
said recommended order. Finally, inasmuch as the unfair
labor practices here involved strike at the vitals of rights
guaranteed to employees by the Act, viz, the right of
employees to engage in collective bargaining free from
employer interference, restraint, or coercion, the
Recommended Order will include a provision requiring
Respondent to refrain from infringing in any manner upon
the rights of employees as guaranteed by Section 7 of the
Act
Upon the basis of the foregoing finding, of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following:
RECOMMENDED ORDER
A General Machine Co ., Inc., its officers , agents,
successors , and assigns shall.
1. Cease and desist from:
(a) Polling or otherwise interrogating or requiring
employees to express their intentions , desires, or
sentiments concerning their membership or continuation
of membership in, or desire to continue to be represented
for collective bargaining by District No 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, under any
circumstances or in any manner other than as authorized
by law.
(b) Failing or refusing to meet and bargain collectively
in good faith with said Union (or any other union
representing its employees ), upon the basis of any polling
or interrogation conducted by or on behalf of Respondent
in violation of the National Labor Relations Act, as
amended.
(c) Contracting or subcontracting out, or otherwise
arranging for the performance of work usually or
normally performed by any unit , or by any member of
any unit, of its employees represented for
collective -bargaining purposes by said Union (or by any
other union), whether with any employee or employees
within said unit or in any other manner, without
informing and bargaining with said collective bargaining
representative
(d) Totally denying or refusing lawful and reasonable
plant access to said Union (or any other union
representing Respondent's employees), so as to interfere
with, restrain, or coerce its employees in the exercise of
their rights under the National Labor Relations Act as
amended
(e) Directly or indirectly interfering with, restraining, or
coercing any employee in the exercise or attempted
exercise or enjoyment of his right to designate and bargain
collectively through any labor organization of his own free
and unfettered choice
(f) Dealing directly or indirectly with any employee
concerning wages, rates of pay, hours, or other terms or
conditions of employment, in such a manner as to bypass
or derogate from the representative status of said Union,
or any other duly designated exclusive collective
bargaining representative of the employee in any
appropriate collective bargaining unit, or with an object of
preventing, dissuading, or discouraging employees from
union affiliation, support or activity, or from free and
untrammeled exercise or attempted exercise or enjoyment
of self-organizational rights under the National Labor
Relations Act as amended
(g) Interfering in any other manner with, or restraining
or coercing, any employee in the exercise of his right to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through
representatives of his own choosing; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to refrain
from any and all such activities, except to the extent that
such rights may be affected by a "union shop agreement"
(as authorized by Section 8(a)(3) of the National Labor
Relations Act as modified by the Labor-Management
Reporting and Disclosure Act of 1959)
2 Take the following affirmative actions necessary to
effectuate the policies of the Act-
(a) Recognize, and upon request meet and bargain
collectively in good faith with District No 10,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of Respondent's employees in the following
appropriate unit, with respect to wages, rates of pay,
hours of employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached:
All of Respondent's toolroom employees, in its
Milwaukee, Wisconsin, machine shop, engaged in the
making, assembling, erecting, dismantling and repairing
of machinery, tools, dies, jigs and fixtures, and
equipment and/or parts thereof, of all descriptions, but
excluding office clerical employees, guards, professional
and supervisory employees as defined in the Act, as
amended, and excluding all other employees.
(b) Abrogate any and all contracts, subcontracts, and
other arrangements for the performance of work or jobs
performed by the foregoing unit employees or any of
them, unless first bargained about in good faith with said
Union (or other labor organization collective bargaining
representative of said unit employees).
(c) Admit and permit reasonable access to its premises
for lawful and proper purposes to said Union (or other
labor organization representative of said unit employees)
on a nondiscriminatory basis in accordance with the
agreement and practices heretofore prevailing between
Respondent and such employees' representative (unless
GENERAL MACHINE CO.
such agreement and practices are modified through
collective bargaining in good faith with such representative
or for other lawful reason)
(d) Post in its machine shop in Milwaukee, Wisconsin,
copies of the notice attached hereto marked "Appendix ""
Copies of said notice, on forms provided by the Board's
Regional Director for Region 13, shall, after being duly
signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 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 said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended
Order, what steps Respondent has taken to comply
therewith "
B The foregoing provisions and requirements shall be
without prejudice to any economic benefits or betterments
which Respondent may have granted, placed into effect,
or arranged to grant or place into effect, in the period
intervening between Respondent's negotiation session with
said Union on February 13, 1968, and the date of
Respondent's compliance with this Order
C The complaint herein, dated April 30, 1968, is
hereby dismissed as to all violations alleged but not herein
found
" in the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words ' the
Recommended Order of a Trial Examiner ' in the notice In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, as to what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, as
amended, an agency of the United States Government.
After a trial at which all sides had the chance to give
evidence, it has been decided that we, General Machine
Co., Inc. violated the National Labor Relations Act, and
we have been ordered to post this notice
The National Labor Relations Act gives you, as an
employee, these rights. -
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection;
and
If you wish, not to do any of these things
Accordingly, we give you these assurances
WE WILL NOT do anything that interferes with any of
your rights listed above
WE WILL recognize, and upon request meet and
bargain collectively in good faith with District No 10,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as your exclusive bargaining
1033
representative in the following appropriate bargaining
unit, regarding wages, rates of pay, hours of
employment, and other terms and conditions of
employment, and sign our name to any agreement
reached- -
All of our toolroom employees in our Milwaukee,
Wisconsin, machine shop, engaged in the making,
assembling, erecting, dismantling and repairing of
machinery, tools, dies, jigs and fixtures, and
equipment and/or parts thereof, of all descriptions,
but excluding office clerical employees, guards,
professional and supervisory employees as defined in
the Act, as amended, and excluding all other
employees.
WE WILL NOT conduct any poll or vote, or otherwise
question you or require you to express your desires
regarding union membership or representation, in any
manner other than as authorized by law
WE WILL NOT permit our Shop Foreman or any
other supervisor or agent to conduct a vote on the
Union in the way that Shop Foreman Zabler did on
February 20-21, 1968 We disavow that poll and its
results and will base no action regarding the Union
thereon
WE WILL NOT contract, subcontract, or otherwise
arrange to have your work done by anybody, whether
one of you or otherwise, in any manner not covered by
your collective agreement, without notifying and
bargaining with your Union about it This means that if
there is any extra work to be done which you cannot
complete inside of your regular working hours, we will
not make private deals to have it done by any of you
after hours, or by anybody on the outside on a contract
basis, but we will bargain with your Union about this in
good faith and place in a signed agreement any
understanding reached
WE WILL NOT refuse to permit your Union
representative to come into the shop at reasonable
times for proper purposes in the same way as he has in
the past WE WILL allow him to do so as he used to
WE WILL deal with you on all employment matters
through your Union as long as you are represented by a
Union, and we will not do anything to interfere with
your complete freedom of choice, which the law
guarantees to you, to be represented by a Union
WE WILL NOT bypass or otherwise try to undermine
your Union or deal or try to deal with any of you
independently of the Union in regard to your terms or
conditions of employment
WE WILL NOT take back or cancel any benefit or
improvement which we have given or promised you
between the date we last negotiated with your Union on
February 13, 1968, and the present time
All of you are free to belong or not to belong to, support,
assist , be active in or on behalf of, and to be represented
for collective bargaining by, District No 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other union , as you see fit in your own
independent judgment, without any interference , restraint,
or coercion from us or from any of our officials,
supervisors, foremen or agents, in any way, shape or
form.
GENERAL MACHINE CO,
INC
(Employer)
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By or covered by any other material
(Representative) (Title) If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Second Floor
This notice must remain posted for 60 consecutive days Commerce Building, 744 North Fourth Street,
from the date of posting and must not be altered, defaced, Milwaukee, Wisconsin 53203, Telephone 414-272-3861.