Globe-Union, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1952

97 N.L.R.B. 1026 (N.L.R.B. 1952)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees of the Employer at its Orange,
Connecticut, plant constitute units appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
(a) All employees in the photo offset department, excluding all
other employees, guards, professional employees, and all supervisors
as defined in the Act.
(b) All employees including copy holders, messengers and clerks
in the proofroom, proof boys, galley boys, cut boys, copy runners,
smelter employees, lunkers, and wrappers in the composing room, but
excluding all other composing room employees currently represented
by Typographical Union No. 47, all bindery room employees cur-
rently represented by New Haven Local No. 134, pressmen, assistant
pressmen, and apprentices, currently represented by New Haven
Printing Pressmen and Assistants Union No. 74, truck drivers, guards,
watchmen,,' office and clerical employees, professional employees, photo
offset department employees, and all supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
5 This does not include the janitors , all of whom , according to the record , spend more
than 50 percent of their time performing general janitorial work.
GLOBE-UNION, INCORPORATED and LUCILLE EVERSON BROWN , AND INTER-
NATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL
322, AFL. Case No. 13-CA-5&5. January 14,1952
Decision and Order
On April 5, 1951, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (5) of the National Labor Re-
lations Act and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto.' Thereafter, the
Respondent and the Union filed exceptions, with supporting briefs,
to the Intermediate Report, and the Respondent filed an additional
brief in support of that part of the Intermediate Report which dis-
missed other allegations in the complaint.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error has been committed.
i The Trial Examiner also found that the Respondent had not violated Section 8 (a) (3)
of the Act by refusing to rehire Lucille Everson Brown. As no exceptions have been filed
to this finding cf the Trial Examiner, we adopt this finding, without passing upon the
merits of the matter , and shall dismiss the complaint as to Brown.
97 NLRB No. 158.
GLOBE-UNION, INCORPORATED 1027
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the exception noted below.
1. The complaint upon which this case went to hearing set forth
various forms of unilateral action by the Respondent, during the
term of its collective bargaining agreement with the Union, alleged
to constitute refusals to bargain with the Union in violation of Section
8 (a) (5) of the Act. The Trial Examiner found no merit in these
allegations and recommended dismissal of the complaint to that extent.
For the reasons set forth in the Intermediate Report, we agree with
the Trial Examiner's disposition of this phase of the case. However,
the Trial Examiner permitted the General Counsel to amend the com-
plaint at the hearing in order to include, as an additional ground on
which to base a Section 8 (a) (5) violation, the alleged refusal by the
Respondent to bargain with the Union concerning the failure to rehire
Brown. The Trial Examiner found that the record supported this
allegation. For the reasons hereafter set forth, we disagree.
2. The pertinent facts with respect to the Brown matter are not
substantially in dispute. Summarized briefly, they are as follows : In
January 1950, Brown, a former employee of the Respondent, applied
for reemployment. The Respondent, for nondiscriminatory reasons,
refused to rehire Brown. A few weeks later, at the conclusion of a
meeting on a grievance not material herein, the Union asked the
Respondent's representatives why Brown had not been reemployed.
Schindler, the Respondent's employment manager, started to explain
the circumstances of the Brown case but was interrupted by Havnen,
Respondent's personnel director and Schindler's superior. Havnen
stated that the Respondent hired whom it pleased, and that, as Brown
was not an employee of the Respondent, the matter was not a proper
subject for discussion. Havnen thereupon dismissed Schindler from
the meeting, and that was the end of the discussion.
So far as the record shows, the Union never brought the Brown case
up again in discussion, by way of grievance or otherwise. Not until
almost a year later, during the litigation of this case,' did the Re-
spondent have the opportunity to consider whether it was obligated,
as a matter of law, to explain to the Union its nondiscriminatory fail-
9 The original charge in this case was filed on April 10, 1950 , by Brown, not the Union,
and alleged only a violation of Section 8 (a) (3). -An amended charge was filed on
August 8, 1950 , by the Union and alleged a violation of Section 8 (a) (3) The amended
charge was silent with respect to the matter here under consideration . The complaint
issued by the General Counsel on September 5, 1950, made no reference to a refusal to
bargain concerning the Brown case. The second amended charge , filed by the Union on
November 16, 1950, and the General Counsel's amended complaint of November 21, 1950,
are likewise silent in this regard . Not until the last day of the hearing before the Trial
Exalminer , on January 17, 1951 , was a claim made by anyone that the Respondent had
refused to bargain with the Union concerning the nonhiring of Brown.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ure to hire an individual applicant for employment, and to bargain, if
called upon to do so, about the validity of its reasons. Although it
is claimed here, in effect, that the Respondent was afforded full op-
portunity to consider the matter at the meeting in question, we are
not satisfied that such a claim can fully be supported by the record
before us. More specifically, we cannot regard the Union's mere
mention of the Brown case at a meeting called for other purposes, and
the Respondent's just as casual expression of its view that such a
matter was not within the Union's "bargaining" province, as warrant-
ing a conclusion that there was a clear request, and a deliberate refusal
to bargain on the refusal to hire Brown, assuming, without deciding,
that there was an obligation to bargain.
Accordingly, we shall dismiss the complaint in its entirety.
• Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued herein against the
Respondent, Globe-Union, Incorporated, Milwaukee, Wisconsin, be,
and it hereby is, dismissed.
MEMBER HousTON took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The above-captioned matter involves allegations that Globe-Union Incorpo-
rated, herein called Respondent, unlawfully refused to rehire Lucille Everson
Brown, herein called Brown, and allegations that Respondent unlawfully refused
to bargain with International Union, United Automobile Workers of America,
Local 322, AFL, herein called the Union. The issues, framed by the complaint
(as amended) and answer (as amended), were fully litigated at a hearing before
the undersigned in Milwaukee, Wisconsin, on January 15, 16, and 17, 1951.
Counsel for the General Counsel of the National Labor Relations Board, herein
called the General Counsel, and for the Respondent, and the recording secretary
of the Union participated fully in the afore-mentioned hearing. Well-prepared
briefs have been received from the General Counsel and from Respondent and
have been considered. These briefs reveal that considerable time, thought, and
study were given to their preparation and the undersigned takes this oppor-
tunity to express his appreciation'
There is no dispute concerning the following matters and the evidence reveals
and the undersigned finds (1) that Respondent is engaged in commerce within
the meaning of section 2 (6) and (7) of the National Labor Relations Act, as
amended, herein called the Act,2 (2) that the Union is a labor organization within
1 Respondent also submitted a motion to correct transcript . This motion is hereby
granted.
2 Respondent engages in the manufacture and sale of storage batteries , spark plugs,
electric switches , and other products and maintains and operates plants in Milwaukee,
GLOBE-UNION , INCORPORATED 1029
the meaning of Section 2 (5) of the Act, (3) that all employees of Respondent
in its plants located in Milwaukee , Wisconsin , who are paid on a point -rate or
day-rate a basis, excluding guards, office and clerical employees , professional and
supervisory employees as defined in the Act , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of the Act, (4) that
at all times material herein the Union has represented for the purposes of col-
lective bargaining a majority of the employees in the aforesaid unit, ( 5) that
Brown was employed by Respondent in its Milwaukee plants from 1940 to No-
vember 1943 and during this period of employment was an employee within the
afore-mentioned bargaining unit, ( 6) that from November 1943 to April 1945
Brown was on leave of absence, ( 7) that on or about April 21, 1945, Brown vol-
untarily terminated her employment with Respondent , ( 8) that in January
1950 Brown filed with Respondent an application for employment , and (9) that
Respondent on or about February 3, 1950, refused and failed to rehire Brown.
It is alleged that Brown was denied employment on or about February 3, 1950,
and thereafter "for the reason that she, during her earlier employment by the
Respondent, had joined and assisted the Union and had engaged in concerted
activities on its and her own behalf ." Respondent alleges that its refusal to
rehire Brown "was for cause and was based upon Brown 's record of employment
with Respondent , and was in no way prompted by any activity (or lack of
activity) by Brown with respect to any union."
It is alleged that Respondent unlawfully refused to bargain by engaging in
certain specified conduct which for convenience may be itemized as follows : (a)
By unilaterally changing the rate and method of pay applicable to one of the
timekeeping jobs, a job within the afore-mentioned bargaining unit; (b) by
adjusting , without notice to and without giving the Union an opportunity to be
present, rate grievances presented by employee Mildred Martin ; ( c) by uni-
laterally assigning overtime Saturday work customarily performed by employees
within the aforesaid bargaining unit to an employee ( Giles Lello ) not within
said unit and by refusing to discuss , negotiate , or bargain with the Union con-
cerning such assignment of Saturday work; and (d) by refusing to negotiate
with the Union concerning Respondent 's refusal to reemploy Brown. Respond-
ent denies that it unlawfully refused to bargain. Respondent contends , in effect,
that the evidence is insufficient to establish as a fact that Respondent refused to
bargain and that if such fact can be determined from the evidence that such
refusal was not a refusal to bargain within the meaning of Section 8 (a) (5)
of the Act.
Lucille Everson Brown
The pertinent facts' concerning the refusal to rehire Brown are as follows-
As noted above Brown worked for Respondent from 1940 to November 1943 -
and was an employee within the afore -mentioned bargaining unit. During this
Wisconsin , and in other States of the United States. This proceeding concerns only the
Milwaukee plants of Respondent . In the course of its business operations in Milwaukee,
Wisconsin, Respondent receives annually materials valued in excess of one million dollars
and approximately 50 percent of said , materials is received by Respondent from States
of the United States other than Wisconsin . Products valued in excess of one million
dollars are shipped from Respondent 's Milwaukee plants annually and approximately
50 percent of these products is shipped in interstate commerce to and through States of
the United States other than Wisconsin
9 Incentive basis or hourly basis-in general terms production and maintenance workers.
4 The findings of fact made in this Report are based upon my consideration of the
entire record and my observation of witnesses . All evidence on disputed points is not
described so as not to burden unnecessarily this Report However , all has been con-
sidered and where required conflicts have been resolved.
986209-52-vol 97--66
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of employment Brown served as department stewardess on behalf of the
Union. She was one of approximately 20 such union representatives in Re-
spondent's Milwaukee plants. • During her tenure as stewardess Brown was
not especially outstanding and she testified she did not know whether during
the time she was such representative there was "any occasion in which the
company was made aware of" her position as stewardess. Brown could not
recall handling any grievances although she did recall one instance in 1942
when she and 3 or 4 other girls conferred with her department foreman 6 Brown
testified that she did not "remember what it was about, but I know we went
back to work and everybody was satisfied."
In 1944 it was determined that Brown should go to a tuberculosis sanitarium.
She attended such an institution until 1945 and during her stay there secured
from Respondent a leave of absence. Upon her release from the sanitarium
Brown was advised by a physician "to stay out of factory work, to get a job
on the outside" and, Brown, on or about April 21, 1945, voluntarily terminated
her employment with Respondent because of her physical condition. She con-
ferred with Robert Schindler, then 4 representative of Respondent in its per-
sonnel department, and told him about the physician's advice.
Brown testified that in 1947 she applied for a job with Respondent and conferred
with Helen Oberndorfer, then Respondent's employment manager e Concerning
this conference Brown testified :
Q. Can you give us all the details of everything that occurred at the time
you applied to Miss Oberndorfer in 1947?
A. Well, I called her-one day over the phone, and asked her if there was
any chance of coming back, and she said, "Why yes, we would be glad to see
any of our old employees."
So the following morning I went up there and I talked to her. She took
my records, and she was looking at them for quite a while, and she came
back and told me, "Well, I am sorry, Lucille, we cannot take you back
because of your union activities.'
Q. Those were her exact words, as near as you can recall them?
A. That is right.
Q. What did you say?
A. I said, "Well . . ."
-Q. In reply to that, if anything.
A. Pardon?
Q. What did you say in reply to that, if anything?
A. I said, "Well, if I had known that, I would not have bothered to come
up here. 11
Oberndorfer, as a witness for the General Counsel and prior to Brown's testi-
mony, testified she had no recollection of Brown applying for reemployment and
no recollection of any conversation she may have had with Brown regarding
such an application. Oberndorfer, as a witness for Respondent and after
Brown's testimony, testified :
By Mr. FILACHEK :
Q. Now, Miss Oberndorfer, did you hear the testimony given, by Mrs.
Brown sometime ago this morning?
A. Yes, sir.
6 Bartel was the foreman involved. He left the employ of Respondent on August 21,
1943, and was not thereafter employed by Respondent.
6 Oberndorfer terminated her employment with Respondent in June 1948 and at the
time of the hearing herein did not have "any connection whatsoever " with Respondent.
GLOBE-UNION, INCORPORATED -1031
Q. Did you hear the testimony by Mrs. Brown to the effect that during a
conversation with her a statement was made by you that the company could
not reemploy Mrs. Brown because of union activities?
A. Yes.
Q. Did you make such a statement to Mrs. Brown?
The WrrNESS. I did not make that statement to Mrs. Brown, because I
never made a statement such as that to anyone.
Oberndorfer further testified that Respondent's employment records do not
reflect the union activities of any employee of Respondent.
Respondent's employment records concerning Brown reflect that Brown filed
a written application for employment dated January 20, 1953 However these
records do not reflect any written application by Brown in 1947 although it was
customary in 1947 for job applicants to fill in an application form.
Robert Schindler,? Respondent's employment manager since June 1948, testl-
fled that in 1950 he examined Respondent's employment records concerning
Browne in connection with her then pending application for employment and on
the basis of reports therein determined not to rehire Brown. He testified fur-
ther that these records do not indicate whether or not Brown was a union mem-
ber, whether or not Brown was a union steward, or whether or not Brown -,ever
engaged in any union activity."
The details concerning Respondent's refusal to rehire Brown in 1950 differ
depending upon whose version is accepted-Brown's or Schindler's. According
to Brown, about the second week of January 1950, she went to see Schindler
and told him she would like to have a job and Schindler told her that the records
of former employees were in the basement and that he would have tc get them
out and look them over and that she should call him on Tuesday of the following
week. At one point in the conversation, according to Brown, she told Schindler
that she had been turned down once before by Helen Oberndorfer, because of my
[Brown's] union activities and Schindler said "Well Miss Oberdorfer is no
longer with us." Brown testified that she thereafter called Schindler but he had
not had time to get the records and requested that she call him later in the week,
which she did. Brown testified that at this meeting her physical condition was
discussed and she agreed to have X-ray pictures made and submit the results
to Respondent, which she did the following Monday. According to Brown, on or
about February 3, 1950, she conferred with Schindler and he started looking over
the records [employment records] and said "it looks kind of bad" and then
explained that the records indicated a lot of absences during her prior employ-
ment, that there was a complaint that she "was seen talking to a girl during
working hours," and that there was a complaint from a foreman that she [Brown]
"had told a girl not to work so fast, that the rate of the machine ® would be cut."
Brown testified that Schindler told her the report from the X-ray would be given
to Respondent's physician and that he (Schindler) would call her (Brown)
before quitting time that day. At about 4: 30 that day, according to Brown, she
called Schindler and he told her that he "had not had a chance to talk to his boss,
but that he would call me [Brown] back before 5:00 o'clock." About 5 o'clock
Schindler, according to Brown, called her and told her "Well, I am afraid the
answer is going to be no" and when she asked what he meant, said "Well, they
thought, the company thought that it would be too great a risk to take me back."
Brown testified that she responded "Why, what do you mean, because of my
7 The same individual that conferred with Brown in 1945 when Brown terminated her
employment because of her physical condition.
These records were available in the hearing room during the hearing herein,
Machine operated under an incentive system.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities?" Schindler said "Well, yes." Brown testified she then said
"Okay, or something like that" and hung up.
Schindler testified that on or about January 21, 1950, he interviewed Brown
in connection with her application for employment, that at this time he recalled
that Brown had previously resigned because of her physical condition and
concluded that he should have "some proof that the girl was now employable
from a physical standpoint." Schindler testified further that thereafter Brown
supplied evidence of good physical condition. Schindler testified that after his
initial conference with Brown he sent for her employment record, which was
stored in the basement and upon examination thereof noted a large number
of absences during 1942 and 1943 (38 days in 1942 and 5 days between January
1 and March 10, 1943), a report from Brown's foreman dated June 28, 1942,
concerning an adjustment of a grievance contrary to Brown's contention that
she (Brown) should be the exclusive operator of a particular machine when
work was slow rather than alternating with another operator who had seniority,
and noted a criticism from Brown's foreman dated November 14, 1942, stating
that Brown had told another employee she (the other employee) "was turning
in too many pieces" and that "she would not get along well." Schindler testified
that he concluded that these reports "would probably be indicative of what her
(Brown's) behavior could be in the future." According to Schindler, thereafter-
he and Brown went over her employment record together and discussed the-
afore-mentioned absence record and reports and Brown "disclaimed knowledge,
or at least recalling," the incidents mentioned in the reports.10 Schindler testi-
fied that he told Brown "that did not look too good, it was the type of record that
I don't like to see when I am considering someone for employment," and that
the record was such that to his mind she should not be considered for reemploy-
ment but that he would review it. Schindler testified that Brown replied it did
not surprise her that he would come to such a decision, inasmuch as Oberndorfer•
had turned her down previously on the basis of union activity and that he
(Schindler) responded that he doubted very much whether a person in this par-
ticular work would ever make such a statement. Schindler testified he thereafter
reviewed Brown's employment record with Carl Havnen, Respondent' s personnel
director, and that Havnen after looking over the employment record confirmed
his (Schindler's) decision not to rehire Brown. Havnen's testimony corroborates.
Schindler's version of this incident. According to Schindler, thereafter in a_
telephone conversation he told Brown that the "answer would be no, and we
would not consider her for reemployment" and Brown said "okay" or "all right"
or something like that. Schindler did not specifically deny answering "Well,
yes," meaning that Brown would not be taken back because of her union activity.
In evaluating the facts to determine whether Oberndorfer and Schindler stated'
to Brown that her union activities caused them not to rehire her the undersigned-
is impressed with the fact that both Brown and Schindler testified that during
one of their conversations, at a time when Brown had no cause to be untruthful,.
Brown mentioned that Oberndorfer had turned her down previously on the-
basis of union activity. In view of this evidence, Brown's limited union activities,
and the lack of evidence establishing antiunion animus, the undersigned has.
considered the possibility that Oberndorfer and Schindler did make the state-
ments attributed to them but that each of them meant something other than,
activity on behalf of the Union. In this connection, it is noted that Oberndorfer
30 Brown testified she did not remember any incident during the time that she served
as union stewardess in which any representative of the Company had occasion to reprimand
her for any conduct.
GLOBE-UNION , INCORPORATED 1033
and Schindler , after observing the reports in Brown's personnel file, including
the report that Brown had encouraged a "slowdown ," concluded not to rehire her.
It appears to the undersigned that possibly Oberndorfer and Schindler, con-
sciously or unconsciously , associate "slowdown activity " with union activity,
and that possibly when talking to Brown they made reference to union activity,
meaning thereby Brown 's slowdown activity and not lawful concerted activity
or activity on behalf of the Union. Or it may be that Brown , consciously or
unconsciously , associates her "slowdown activity " with union activity and in that
light - interpreted . Oberndorfer 's. statement as referring to union - activity, and
then applied this misnomer when talking with Schindler . Obviously "slow-
down activity" and union activity are not synonymous and slowdown activity
should not be loosely associated with union activity. Furthermore there is
no evidence herein that the Union was associated in any way with any such
activity . Nevertheless in this light full significance can be given to the afore-
mentioned mutually corroborative testimony of Brown and Schindler . If this
is the true situation and Oberndorfer and Schindler did refer to "union activity"
the evidence may establish discrimination to discourage slowdown activities
but does not establish discrimination to discourage membership in, or activity on
behalf of, the Union . In any event on the basis of an evaluation of all the facts,
the undersigned is not persuaded that Oberndorfer and Schindler indicated to
Brown that they were refusing to rehire her because of her activities on behalf
of a labor organization ( the Union).
In view of the foregoing the undersigned finds that the evidence is insufficient
to establish that Brown was denied employment on or about February 3, 1950,
and thereafter "for the reason that she, during her earlier employment by the
Respondent , had joined and assisted the union and had engaged in concerted
activities on its and her own behalf."
Refusal to Bargain
For convenience the facts concerning the various incidents which allegedly
establish Respondent 's unlawful refusal to bargain will be assembled separately.
Nevertheless , in determining whether Respondent unlawfully refused to bargain,
the undersigned has considered each incident in isolation and also in relation
to the other incidents involved . It should be borne in mind while considering
the incidents hereinafter discussed that at all times material herein there has
existed between Respondent and the Union a written agreement wherein the
Union is recognized as the exclusive representative of the employees in the
afore-mentioned bargaining unit "for the purpose of collective bargaining in
respect to rates of pay wages , hours of work or other conditions of employment."
(a) Unilateral change of rate and method of pay applicable to timekeeping job
Since about 1919 Respondent has operated in Milwaukee a plant known as the
main plant , located on Keefe Avenue. A department of the main plant, known
as the Badger department , is and at all times material herein has been located
in a separate building within a few blocks of the main plant. In the early part
of April 1950 , Respondent opened another plant, known as the Villard plant,
located at Thirty -second and Villard Avenue, a considerable distance from the
main plant . The Villard plant was first put into operation by transferring
from the main plant to the Villard plant a department known as the switch
department . With the passing of time other departments were put into operation
at the Villard plant and it gradually became a regular operating plant of
Respondent.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the switch department was located in the main plant (prior to the
opening of the Villard plant), a timekeeper, Vernita Anderson, f'did time keep-
ing work for the switch department, along with other departments" " and, as
of March 15, 1950, kept the appropriate time records for approximately 261
employees." Timekeepers, including Vernita Anderson, are within the afore-
mentioned appropriate unit and are paid on a day-rate basis. Respondent's
job description of the work of timekeepers states :
Records employees time cards, enters operation number, rate, production,
and elapsed time for each operation. Checks starting and stopping time.
Follows up questions for payroll department, such as excessive variations
in earnings. Enters training allowance time. Secures foreman's approval
of boosts. Consults with time study department on questions of application
of rates. May assist payroll department in computing earnings.
With the opening of the Villard plant and the transfer of the switch depart-
ment, in which approximately 74 production employees worked, Ruth Ulrich,
a cardloader in the Badger department (an employee within the afore-mentioned
appropriate unit), was also transferred to the Villard plant and her basis of
pay was changed to a salary basis. At the Villard plant Ulrich performed
several functions including the keeping of time records for the switch depart-
ment. The job descriptions of the work performed by Ulrich at the Villard plant
read: '
Extends and posts daily point earnings. May compute individual point
earnings from group sheets. Computes and posts wages (gross deductions
and'net). Enters wages and deductions on check stubs and payroll sheets
and balances. May prepare social security quarterly report. May prepare
employees annual withholding statement. [Job description of a payroll
clerk 1 who is compensated on a salary basis.]
Performs payroll work similar to machine operator. In addition per-
forms variety of special duties, such as computing gross payroll, entering
wage changes, computing reports, et cetera. [Job description of a payroll
machine operator who is paid on a salary basis.]
In addition, Ulrich acted as confidential clerk for the manager ( Howard
Mann) of the Villard plant, kept records on anticipated people to be employed
and possibly some cutbacks, over-all minor production records, kept records for
the foremen as to the results of Scrap, answered the telephone and located people
in the plant, placed time cards in the time racks, kept track of absenteeisms and
tardy reports, and kept track of group production reports.
When first employed at the Villard plant, approximately 2 hours per day were
consumed by Ulrich in performing timekeeping duties, but as more departments
were added at the Villard plant more time was required for timekeeping func-
tions. By October 1950, Ulrich was devoting from 4 to 5 hours per day to time-
keeping functions and around October 1, 1950, Ulrich was relieved of her
timekeeping duties and a full-time timekeeper, paid on a day-rate basis, was
transferred to the Villard plant and took over these duties.
Respondent did not consult or advise the Union prior to the transfer of Ulrich
from the Badger department to the Villard plant concerning this transfer and
11 Switch department, printed electric circuit department, punch press department, spark
plug insulator department, and CRL shipping and finished stores department. Time-
keepers normally keep time records for more than a single work area ( department).
x2 The record does not establish that Anderson or other timekeepers perform payroll or
other office clerical duties.
13 The job description for timekeepers is set forth above and will not be repeated here
although it applies.
GLOBE-UNION, INCORPORATED 1035
union officials were not aware of this transfer until the union steward at Villard
notified them that Ulrich was no longer on a day-rate basis and therefore not
in the unit. Upon receipt of this notice union offcials sought to have the job of
time-keeper at the Villard plant "returned to the hourly payroll." Respondent
took the position "they could not have a part time timekeeper out there on a
permanent basis." On or about June 1, 1950, the Union filed a grievance" con-
cerning this transfer and the Union and Respondent conferred about this matter.
The Union contended "that the timekeeper at Villard should be on the hourly
payroll and be included in the bargaining unit." Respondent answered that
"The girl who handles the time keeping at Villard was hired as a payroll clerk
with the following duties : 1. compute point earnings on time cards ; 2. compute
point earnings of groups; 3. answer the telephone; 4. perform clerical duties
for H. Mann, as required ; 5. mark up time cards in the factory. We believe that
the time spent on straight time keeping is considerably less than one-half of the
clerk's total time, and that her work is more in the nature of a payroll clerk
and confidential clerk for H. Mann, which is classified as a salaried position."
The parties again conferred concerning this matter on or about June 14, 1950,
at which time the Union contended :
The removal from the hourly -payroll of the timekeeping job at Villard is
a violation of the contract . This job should be returned to the bargaining
unit where it belongs.
Season : This action by the company is a violation of paragraph 2, page
1, of the contract , which states:
"The company recognizes the union as the exclusive representatives of the
employees in the Milwaukee plants who are paid on a point rate or day rate
basis, excluding guards, for the purpose of collective bargaining in respect
to rates of pay, wages , hours of work or other conditions of employment."
In addition , this constitutes removal of work from the occupational group
in which it belongs.
Respondent renewed its contention that Ullrich did not spend enough time
doing timekeeping work and stated that it was a temporary condition that would
be rectified when production increased to such an extent that a full -time time-
keeper could be used . By letter dated June 21, 1950, Respondent advised the
Union :
Inasmuch as the time-keeping in our Villard plant is less than 25 percent
of the duties of the payroll clerk at Villard at the present time, we feel there
is no justification for the union's contention of a violation of the contract in
removing a time-keeping job from the bargaining unit.
When production increases to such an extent that a full time timekeeper
is needed at Villard , a timekeeper will be put on the job.
Thereafter , pursuant to the contract, this matter was submitted to arbitration
where it is now pending.
During the discussions of the Ulrich matter the Union argued that consistency
required Respondent to treat Ulrich as a timekeeper since Respondent, in the
spring of 1949, had refused a higher classification to Florence Helfrich , a time-
keeper who was then also performing clerical duties. Respondent contended. that
the two situations were not the same in that Ulrich was a permanent payroll
14 The provisions of the contract concerning grievances is set forth in Appendix A
attached hereto. In practice , grievances filed by the Union , although the employee
involved does not complain , are processed in accordance with the grievance procedure of
the contract.
1036 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerk doing timekeeping work temporarily, whereas the earlier matter involved
a permanent timekeeper doing some payroll work temporarily.
The General Counsel contends that Ulrich's duties at the Villard plant were
essentially the same as the duties performed by Helfrich in 1949. Concerning
her duties Helfrich testified :
The WITNESS. I say, there is some variation now from what they have
consisted of previously, but that is because I am not called upon to do all of
the things that I can be.
As I understand it, my time keeping job consists of recordingon a card
whether or not a person is on day work or point rate work. If the individual
is on a point rate job I have to identify the point rate with the operation
being performed, with the correct work order and operation number, and
then at the end of the shift I procure from the operator the correct count
on each point rate operation performed.
I also complete the elapsed time between punches, the punches on the
card indicating either the change from day work to point rate, or from
point rate to point rate, if on one of the jobs the operator gets a training
boost, or there is a punch for any other reason.
Then on the following day, on the previous day's cards I total the hours
to see that they coincide with the in and out pay clock punches.
In addition to that part of the job, which is what I call marking the cards,
I have been called on to extend points on cards, computing the total point
earnings of the individual for the previous day, writing in training boosts,
boosts for other reasons, like faulty material, machine trouble, and so forth ;
checking for the accuracy of all information on the cards, getting the fore-
man or work area supervisor's signature on boosts of any kind, excessive
variation in earnings will first have to be checked, and then if they are sent
through as is they must be okayed by the foreman.
In addition to'that I have also been called on to work in the payroll office,
computing the actual earnings of the individual at the end of the pay
period.
This occurred at a time when the actual time keeping duty which covered
everything, including the figuring of points and so forth, did not 311 the
entire day. For the remainder of the time then I was required to report to
the payroll office to do the other payroll work, as I said, computing earnings
at the end of the pay period, making out check stubs from which information,
the checks are then completed.
I have also helped work on reports intended for the social security agency,
and I have also helped work on computing the total gross earnings of the
payroll department of the employees in the plant.
There may be other things, but offhand I cannot think of them all
individually.
The record herein reveals that during World War II the Badger department
was devoted to war work and that after the war Respondent "ended up with
hardly anyone in the department" but with great hopes for television and radio
items which later materialized. During this changeover period Respondent
worked on experiments and sample orders and Helfrich (a timekeeper since
February 1946) performed the duties mentioned above. Shortly after Helfrich's
grievance in 1949, Respondent employed a full-time payroll clerk in the Badger
department and Helfrich was relieved of her clerical duties.
The record herein does not contain a sufficiently detailed analysis of Helfrich's
duties to enable the undersigned to make an adequate comparison of Helfrich's
GLOBE-UNION, INCORPORATED 1037
and Ulrich's duties with a view toward determining whether Ulrich was a pay-
roll clerk doing timekeeping duties temporarily or vice versa. The record does
establish however that at the time the Villard plant opened timekeepers were
not performing payroll work. In any event, this issue has been taken to arbitra-
tion-and is not before the undersigned except as an incidental matter.
The General Counsel contends :
... Respondent unilaterally changed the rate and method of pay applicable
to one of the timekeeping jobs in the unit without. first having either notified
or bargained with the Union concerning the change [paragraph 9 (a) of
the complaint].
* * * * * *
.. . that the company changed a point rate job, and took it out of the unit,
without consulting the union about the change, and that such action was a
violation of Section 8 (d) (5). . . .
... that the job that Ulrich was given to perform at the Villard plant was
essentially a timekeeping job, that as such it was a continuation of the
timekeeping job for the switch department, which had been in the main
plant, and which had been within the unit, and that by taking what essen-
tially was the same job out of the unit, without bargaining it, that by making
the change in the method of pay-perhaps I had better put it in the method
of pay for the same job, without bargaining the issue with the union, in
effect, was a violation of A (5) ( sic).
In its simplest form, the General Counsel contends that Respondent employed.
a timekeeper at its Villard plant and unilaterally excluded her from the bargain-
ing unit and thereby violated Section 8 (a) (5) of the Act. There is no contention
by the General Counsel that during the discussions of the Ulrich matter Re-
spondent bargained in bad faith.
Undoubtedly Ulrich performed some timekeeping duties. The record is equally
clear that during the period involved herein Ulrich also performed some duties
not then being performed by regular timekeepers. Whether Ulrich was a time-
keeper or a payroll clerk within Respondent's job descriptions is not before the
undersigned . The question herein is : Did Respondent violate the Act by unilater-
ally eliminating from the bargaining unit an individual (Ulrich) who devoted
part of her workday to timekeeping? The evidence does not establish clearly
that all individuals doing timekeeping duties, regardless of the amount of such
duties performed, are within the unit which the parties agreed is appropriate
for the purposes of collective bargaining. The inference, if any, from the record
is that individuals devoting less than a substantial (and the record does not
reveal the meaning of substantial) portion of their workday to such duties are not
within the unit, unless they are regular timekeepers temporarily assigned other
duties during a period when there is not sufficient timekeeping duties to keep
them occupied. The undersigned is not aware of any decision of this agency
to the effect that all individuals performing timekeeping duties regardless of
the amount of such duties are within a unit similar to the unit involved herein.
Under the circumstances it apears to the undersigned that the General Counsel
has not sustained his premise that Ulrich performed a specific job within the
unit and that therefore Respondent violated the Act by removing her from such
unit.
While Respondent may have evidenced less than wholehearted cooperation
with the Union by not consulting it before excluding Ulrich from the bargain-
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lag unit but assigning her work some of which would normally be performed
by employees within such unit, the undersigned cannot conclude upon this record
that Respondent was motivated by a desire or intent to evade Its obligations
under the Act or by a desire or intent to frustrate collective bargaining. To the
contrary, it appears that Respondent, not acting in bad faith, during the early
stages of operation of the Villard plant sought to economize on personnel by
having one individual perform tasks that- at the main plant would be performed
by two or more individuals, some of whom would be within the bargaining unit.
In addition, under the facts presented, the issue posed is academic since Re-
spondent, after its unilateral conduct, bargained with the Union concerning this
matter and thereafter employed a full-time timekeeper, clearly within the unit,
and, on or about October 1, 1950, relieved Ulrich of all work within the limits of
the bargaining unit.
In view of the foregoing, it will be recommended that the allegations of the
complaint with respect to this matter be dismissed.
(b) Unilateral adjustment of rate grievances
In June 1950 Respondent discontinued certain operations which resulted in a
decrease in the number of persons required to do cardloading work. At that
time Mildred Martin, a cardloader who had previously worked as an inspector,
was made an inspector of tubular condensors. Prior to becoming a cardloader
Martin worked as an inspector of tubular condensors but became a cardloader
when Respondent changed its method of assembly and discontinued the inspec-
tion work Martin was doing. While Martin was working as a cardloader, Re-
spondent again changed its method of handling tubular condensors and as a
result had need for an inspector (a new inspection operation) to do the work
which Martin had previously done (general vision and appearance inspection)
and in addition, to inspect for things not in the previous job (for loose wires).
Martin was assigned to perform this inspection work. Shortly after Martin had
assumed her duties as inspector and about the third week in June 1950, Nord-
strand and Manhardt, supervisors in this department, conferred and decided
that this operation should be on a point-rate (incentive basis) instead of a day-
rate basis. In this connection Martin was called into a conference by these
supervisors and described to them, the details of her job as inspector. Subse-
quent to this discussion Martin asked Nordstrand whether the job was going to
be point rated and when. During the lunch-period that day Janet Neitzel, union
steward, talked to Martin and asked "what is the matter, are you having
trouble?" and Martin answered, "yes, this job." Within the next day or two
Neitzel approached Manhardt and asked if she "could have the information on
the complaint that Millie Martin had made." Manhardt responded "Janet, it
is none of your business. You had better get back to work." Neitzel told Man-
hardt she was the "steward in this department and wanted to know." Manhardt
replied "Well, it still isn't any of your business, and what went on is not your
business, and you had better get back to work." Neitzel then told Manhardt he
"was violating the National Labor Relations Board" (sic) and Manhardt said,
"That still does not concern you. You just go right back to work." Thereafter
Florence Helfrich, the Union's recording secretary, Manhardt, Nordstrand,
Neitzel, and Viola Cummings, union chief steward, met and Neitzel repeated the
conversation which she had had with Manhardt. Nordstrand affirmed and re-
peated Manhardt's statements that it was none of the Union's business "regarding
what Martin had to say" and refused to say what the conference with Martin was
about. Within a day or two union officials met with Harold Len, superintend-
GLOBE-UNION, INCORPORATED 1039
ent, and asked him, to state what the meeting with Martin was about. Len refused
to so state and told the union officials it was none of their business.
Following the discussion with Martin concerning the elements (details) of the
new inspection job Nordstrand determined to have a time study made with a
view toward establishing a piece-rate basis of pay for this job and took appro-
priate action to initiate such a study. After completion of the time study a point
rate of 50 points was tentatively established for this job. When the job was
tentatively rated 50 points, Martin expressed dissatisfaction to Manhardt and
on or about July 17, 1950, filed a complaint (grievance). As a•result of further
study this job was rerated as a 73-point job, retroactive to the date of the 50-point
establishment (July 17, 1950).
The Union was not advised or consulted concerning the time studies or the
establishment of the 50-point rate although Helfrich, as timekeeper, received
information indicative that the matter was under consideration. The first notice
the Union received occurred on or about July 31, 1950, when Nordstrand told
Neitzel, "Janet, Mildred has had a rate put on this new job. She put it in dis-
pute. She disputed the rate, and now an adjustment has come -through, and I
want to give you the answer before I go over and give it to Mildred." Nord-
strand then handed Neitzel a memorandum "relating to a proposed correction
of the point rate" indicating a rate increase of from 50 to 73 points. Neitzel did
not voice any objections. Nordstrand after talking to Neitzel went immediately
to where Martin was working and told her about the adjustment.
The Union did not follow the grievance procedure of the contract or otherwise
complain to Respondent about this matter, I. e., the establishment of a point-rate
basis of pay or the adjustment from 50 to 73 points.
The complaint alleges that Respondent violated the Act by adjusting "rate
grievances presented by employee Mildred Martin, who is in the unit represented
by the Union, without notice to and without giving the Union an opportunity to
be present at the time the said adjustments were made" and by twice unilaterally
changing "the point rate of pay applicable to the job then being performed by
employee Mildred Martin, the said job then being one within the unit repre-
sented by the union, without first having either notified or bargained with the
Union concerning either of said pay rate changes." The answer alleges that
there was an adjustment of a point-rate grievance in accordance with the terms
of the contract and in addition, that the Union was notified and given an oppor-
tunity to be present at the time said adjustment was made.
The Act provides that where there is an exclusive bargaining agent any indi-
vidual employee may nevertheless "present grievances to their employer" and
"have such grievances adjusted, without the intervention of the bargaining rep-
resentative, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided further,
That the bargaining representative has been given opportunity to be present at
such adjustment" (Section 9 (a) of the Act).
The contract herein provides inter alia
1. If any employee feels that he or she has a just complaint with respect
to any matter under the terms of this contract, he may, either with or
without his steward, first take it up with his foreman or department head,
and the Company will act upon complaints concerning general hours of work,
rates of pay varying from those set up in accordance with this contract,
and other conditions of employment only through the Union. Other con-
ditions of employment shall be deemed to mean any complaint which cannot
be settled between an employee and the head of his department.
• t e s * s •
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. In the event of a complaint concerning point rates or job classifications,
the pertinent data applicable will be discussed and explained to the union
representatives during the second step 15 of the grievance procedure if re-
quested. When a written grievance is submitted concerning point work rates
or base wage classifications and an increase in either is granted as a result
of the grievance, such increase shall be made retroactive to the date of the
first step of the grievance.
The Company agrees that it will explain new or adjusted rates to the
available workers affected.
The evidence reveals that in practice the Company frequently (daily) estab-
lishes point rates for new operations without consulting the Union and then,
in addition to notifying the employee directly involved, posts the proposed rate
on a regular form on a bulletin board. The Union has been aware of this prac-
tice for a considerable length of time but has not objected to this procedure.
The Union was aware of this procedure at the. time the contract was negotiated
and evidenced an interest in time-study methods and setting of rates for new
operations. Nevertheless, the contract does not specifically cover the initial as-
signment of point rates. If point rates constitute rates of pay, as contended by
the General Counsel, then consideration must be given to the contract provision
which requires Respondent to explain new rates to the workers affected to deter-
mine whether the Union waived whatever right it might otherwise have to be
consulted before the initial assignment of point rates. If the point rates on new
operations were bargained there would be no additional necessity to explain the
rates since the affected employees would be familiar with the rates which they
have discussed during the setting thereof In the bargaining procedure. The
inference from the above contract clause is that even if establishment of point
rates results in new wage rates the contract does not require advance bargaining
so long as the new rate does not conflict with other provisions of the contract.
Furthermore, when this provision of the contract is considered in the light of
the contract provisions concerning grievances, it appears that the parties antici-
pated that point rates would-be established initially without consulting the
,Union. Otherwise the parties would not have provided in the contract for an
explanation to the employee affected and for adjustment of complaints (including
complaints concerning point rates) in the first step of the grievance procedure
with or without the participation of the union steward and that the Company
upon request of the Union during the second step of the grievance procedure
discuss and explain data applicable to complaints concerning point rates.
Consideration of the above-quoted contract clauses reveals that under the
contract the foreman or department head, without the participation of the
Union, may settle or adjust a complaint (including complaints concerning
point rates) filed by an employee, provided the complaint does not concern
general hours of work or rates of pay varying from those set up in accordance
with the contract.
There is no evidence that Martin wanted her steward present when she took
up her complaint with her foreman or department head. There is no evidence
ss Under the contract, If a complaint by an employee is not settled by the foreman or
department head involved, the division superintendent and the chief steward may be called
into the discussion. Discussions at this stage are discussions under the second step of the
grievance procedure. If a settlement or adjustment is not reached during the second step
of the grievance procedure the matter becomes a "grievance" (instead of a complaint) and,
after being reduced to writing by the Union, Is discussed pursuant to the third step of
the grievance procedure.
GLOBE-UNION, INCORPORATED 1041
that Martin's complaint concerned general hours of work and the evidence does
not establish that Martin's complaint concerned rates of pay varying from those
set up in accordance with the contract. Since Martin's complaint was settled
between her and her foreman or department head it did not involve "other
conditions of employment" as those terms are defined in the contract.
The contract provides that when the complaint concerns point rates the
pertinent data applicable will be discussed and explained to the union repre-
sentative during the second step of the grievance procedure if requested. This
clause when read in the light of the other contract clauses quoted above indi-
cates clearly that the foreman or department head may handle complaints
concerning point rates during the first step of the grievance procedure and may
settle or adjust such complaints without the participation of the Union. The
reference to the second step of the grievance procedure implies that there may
be a first step and the requirement that Respondent upon request discuss and
explain to the union representative the pertinent data applicable indicates that
it was anticipated that there would be instances where such complaints were
handled initially without union participation. Obviously if the union representa-
tive participated in the first step of the grievance procedure he would be aware
of the pertinent data applicable and there would be no necessity for a request
for a discussion and explanation of such data during the second step of the
grievance procedure.
While Martin's complaint concerned "point rates" it never reached the second
step of the grievance procedure and when the adjustment was announced, during
the first step of the grievance procedure, the Union did not then or thereafter
request a discussion or explanation of the pertinent data applicable.
Upon the basis of the foregoing discussion and the entire record herein, the
undersigned concludes and finds that the evidence is insufficient to establish
that the adjustments made were inconsistent with the terms of the contract 1°
It appears to the undersigned that assuming, arguendo, the correctness of the
General Counsel's theory, the Union herein waived whatever rights it might
have to be present under the circumstances involved herein
Respondent contends that where the adjustment is not inconsistent with the
terms of the contract it may take whatever action appears appropriate without
the intervention of the Union except that the Union must be advised of a con-
templated change and be given opportunity to be present (to have a representa-
tive physically present) when such adjustment is made effective, and that the
latter requirement can, be (and herein was) waived. According to Respondent,
in such incidents it may adjust such grievances without the intervention of
the Union and therefore is not required to discuss or negotiate with the Union
concerning such adjustment before it is made. Under the theory advanced by
Respondent, after such an adjustment is made effective, if the Union is not
satisfied with the adjustment it can treat the matter as a grievance. Respondent
contends herein that, although not required, the Union was given opportunity
to be present and did not thereafter grieve about the matter. The General
ie The General Counsel contends, in his brief, that establishment of any change of "pint
rates" is a matter involving "rates of pay" and "wages" within Sections 8 (d) and 9 (a)
of the Act, that by virtue of these sections of the Act the Company was ob'iged by law
to bargain collectively with the Union whenever it initially established a point rate or
adjusted point rates, that the effect cf these sections of the Act, "was to insert in the
then existing contract between the parties the implied requirement that the Company
`bargain collectively with the Union concerning" any establishment of or change in point
rates, that Respondent did not bargain collectively concerning point rates, and that the
adjustment of point rates was an adjustment "inconsistent with the terms required by
law to be deemed a portion of the terms of the existing contract."
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel does not attack the theory advanced by Respondent that when the
adjustment is not inconsistent with the terms of the contract the Union need
only be accorded opportunity to be physically present' at the making of such
adjustment. The General Counsel urges herein that by virtue of the Act 17 the
adjustment was inconsistent with the terms of the contract and that therefore
the Union should have been given opportunity to be present, to participate,
and to negotiate at every stage of the grievance. As indicated above and here-
inafter the undersigned is not persuaded that the adjustment herein was incon-
sistent with the terms of the contract.
In the circumstances here presented it does not appear necessary to determine
the meaning of "opportunity to be present," under the second proviso of Section
9 (a) of the Act. There is no contention herein that the contract is. invalid
and there is no evidence that the Union was required to surrender any of its
rights as a condition to the execution of the contract. Nevertheless the contract,
as noted above, does provide for adjustment of complaints (including complaints
concerning point rates) during the first step of the grievance procedure without
the participation of the Union. It seems to follow that the Union voluntarily
agreed that certain adjustments (including the type involved herein) might be
made without its participation and thereby waived whatever right it might
otherwise have to be present at such adjustment.
In view of the foregoing, it is believed that the contract should be honored,
and that Respondent's conduct not inconsistent with the terms thereof should
not be found violative of the Act. (See Shell Oil Company, et at., 93 NLRB 161,
and Midland Broadcasting Company, 93 NLRB 455.) It will therefore be recom-
mended that the allegations of the complaint with respect to this matter be
dismissed.
(c) Saturday work
One of the departments of Respondent located in Milwaukee is a battery test
laboratory where tests are made on batteries. In this department there are a
number of laboratory attendants who work under the direction of William
Thompson, battery engineer, and Giles Lello, assistant battery engineer. The
laboratory attendants are paid on a day-rate basis and are within the afore-
mentioned bargaining unit. Thompson and Lello are supervisors, are salaried
employees, and are excluded from the unit.
From time to time, and especially during the period from August to December,
the employees in this department are required to work on Saturdays, which is
considered as overtime work. On some of these occasions Lello has performed
some of the work which is normally performed by regular laboratory attendants.
The complaint herein alleges that Respondent unilaterally assigned the afore-
mentioned work to Lello and has refused "to discuss, negotiate or bargain with,
the Union concerning the pay, wages, and other terms and conditions of em-
ployment applicable to the performance to such overtime Saturday work."
The job description for Lello describes his duties as follows :
He assists the battery test lab supervisor. Checks tests in the process of
proper scheduling and method. Trains and directs work of test operators.
He makes and records daily quality control tests of separators, acids, paste,
and so forth. He selects daily production batteries by types for testing. He-
prepares test result reports, graphs, et cetera. He performs special tests and
carries out engineering requests, such as preparation of test batteries,
et cetera.
11 See footnote le,
GLOBE-UNION , INCORPORATED 1043
Lello's supervisor , William Thompson, summarized Lello's duties as including
the securing of batteries from the production line for test purposes , spot check-
ing and scheduling those batteries for tests ; building special experimental bat-
teries to manufacturer 's specifications , following those tests through their manu-
facturing schedules , following some of those tests through, and doing tests him-
self on those particular batteries or assigning tests to some other man in the
department ; spot checking on production control processes ; securing batteries
from outside plants, which are shipped in for tests, and scheduling those bat-
teries for tests ; testing on competitive batteries , experimental batteries, and
special experimental batteries ; securing and recording battery test results ;
helping break in new men on the job , by following them through their testing,
showing them the procedure to be used in the testing , and checking upon their
work ; checking upon the work of the other men performing in the laboratory,
helping test batteries in cases of emergency , in cases of men being absent, sick,
or on vacation , or for any other cause, such as being called to a union meeting,
or personal business , in the absence of Thompson , being in charge of the labora-
tory, assigning the men their work to do and in all cases following up on their
work.
Lello is responsible for the testing of experimental batteries , having direct
responsibility for experimental and developmental work. In that connection, he
assembles and breaks down batteries . Although in experimental work he might
run through an entire experiment himself, taking care of all tests, he explained
that all tests on experimental batteries are not run by him. Some tests on spe-
cial or experimental batteries differed from tests on production batteries while
other tests were similar ; so that he assigned some work to others ; the readings
which fall into categories of laboratory attendants are taken by them. Lello
also assigns the work to another employee where his tests run over a 24-hour
period. As to the finished product and the actual test reports, in most cases
Lello , carries the job all the way through so that any questions brought up about
the test from the engineering department can be answered by him, he being
responsible therefor ; the tests he does on such models are not customarily per-
formed by the laboratory attendants . But there is a difference between what he
does and what the laboratory attendants do in that he takes the assembled bat-
tery and the test up to the point before actual capacity tests are run. Where
the Company is just interested in the raw material , and if the regular tests
will give the Company what it wants to know, the tests are assigned to labors-
tory attendants ; but if the battery is so new that the Company has no figures
or data of capacity , or where the Army sends certain specifications which the
batteries are to meet , then Lello follows the tests all the way through , following
them more closely than the normal testing.
On regular work, Lello runs tests where necessary . The attendants run tests
continuously ; if a question arises about a test, the correctness cannot be deter-
mined merely by looking at the test report and definite figures are needed ; Lello
runs tests . Not the same test run by laboratory attendants but further tests.
When laboratory attendants come in on Saturdays , Lello also comes in. He
does not come in on Saturdays when production work is not scheduled for that
day and production work is not scheduled unless regular laboratory attendants
are coming in to work . Lello's duties are substantially the same on Saturdays
as they are during the regular workweek . On both occasions he gives assistance
to hourly employees if requested to do so. Lello is not called in on Saturday to
do the work of a laboratory attendant although he may do such work when an
attendant is falling behind or when an attendant leaves for illness or some
such cause . In the latter incident Lello usually does such work until another
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attendant can take over the work. Obviously Respondent has no way of knowing
in advance that an attendant might ask for assistance.
James Wareing, a laboratory attendant, testified that his (Wareing's) duties
consist of testing batteries and that Lello "makes graphs, some typing, special
testing of batteries, takes batteries off the production line, special readings."
Wareing differentiating his duties from Lello's testified :
By M. MCLEOD :
Q. And what are your specific duties? What do you do?
A. We test the batteries that are received from the outside plants, and
from the Milwaukee plant daily. We run certain tests on them, sort of
general testing, nothing special.
Q Does Lello do the same sort of work that you do?
A. No.
Q. What is the difference?
A. Well he runs tests on special batteries, such as Army batteries,
experimental.
Wareing also testified that from time to time, both during the regular work-
week (Monday through Friday) and on Saturdays, Lello performs the same
sort of work that laboratory attendants perform but that Lello performs such
work more frequently 18 on Saturdays than during the regular workweek. As
hereinafter noted, Wareing complained that because of this work by Lello, Re-
spondent was depriving regular laboratory attendants of overtime work.
Lello testified that from time to time, both during the regular workweek and
on Saturdays, under particular circumstances (usually upon request from lab-
oratory attendants when they need a hand and in emergencies for a few minutes
at a time), in addition to his own work, he performs the same sort of work that
laboratory attendants perform and that he did not perform such work more
frequently on Saturdays than during the regular workweek. Lello further
testified that he has followed this method of operation since the spring of 1947.
On or about October 2, 1950, Wareing and other laboratory attendants, pur-
suant to the grievance procedure of the contract, filed a complaint claiming that
on Saturdays Lello was doing testing work normally performed by laboratory
attendants and was thereby taking overtime work away from them. Respond-
ent's representatives answered by stating that this grievance was brought up
"last year, and it was decided that Lello can do any work in the battery labora-
tory that is assigned to him." Thereafter on or about October 9 or 10, 1950, the
laboratory attendants, in accordance with the grievance procedure of the con-
tract, registered a complaint that Lello "does work that they should be doing,
and as a result they do not get as much overtime as they would if he did not do
this work." Respondent's officials answered : "Lello is used wherever he is
needed, and if a man is absent he may do part of his work. He may also do
some testing on Saturday, if necessary" and that Respondent would continue to
use Lello "wherever he was needed and when needed." On or about November
6, 1950, the Union filed a written grievance (see third step of grievance pro-
cedure-Appendix A) stating:
Five hourly men in battery laboratory claim that Giles Lello, who is a
salaried employee, does work in their occupational group, and as a result
they do not get as much overtime as they would if he did not do this work.
The union demands that this work be kept in the occupational group and
bargaining unit where it belongs.
18 Wareing could not say how much more frequently-only "I would say a little more."
GLOBE-UNION, INCORPORATED 1045
As Giles Lello is a salaried employee, he is not part of the occupational
group of battery attendants, nor is he part of the bargaining unit, as the
work in question is neither experimental nor for purposes of instruction, it
cannot be taken out of the occupational group by letting Giles Lello do it.
When the Union attempted to discuss this written grievance at a meeting,
Respondent 's representatives stated that the grievance was not filed within the
time specified in the contract, "so we don't have to meet on it." Apparently
there was a difference of opinion as to how to calculate the time within which
the grievance was to be filed, but it is not clear from this record that the Union's
views as to how the time was to be calculated was discussed with Respondent's
representatives. In any event, after being told that the grievance was not filed
"soon enough, so we don't have to meet on it" the Union did not take further
action with respect to the grievance.
Respondent's answer asserts that since Lello "is not within the appropriate
unit" Respondent "has no duty to bargain with the Union with respect to the
work which is performed by said employee." The answer further asserts that
in any event a grievance concerning this matter was processed and disposed of
in accordance with the contract and that therefore Respondent performed its
obligations, if any, "under said agreement and the provision of the act with
respect to said matter."
Lello does production work on occasion, as when called upon by the laboratory
attendants when they need a hand ; 19 in addition, being responsible for their
work, he runs tests to check their work The record reveals that the functions
which Lello performed during the period in question, in or about July 1950, did
not differ substantially from what he had been performing since 1947.
While Lello did occasionally do some work comparable to that of laboratory
attendants, this did not occur with regularity but only in emergency situations
or when an attendant requested a hand for a few minutes. There can be little
doubt that supervisory employees may be required to do production work in
emergency situations . Furthermore, it appears to the undersigned that they
may be required to do a modicum of such work to avoid or prevent waste. In
such situations it is believed that the unilateral assignment of such work, in the
absence of evidence of bad faith,20 is not violative of the Act. The undersigned
is of the opinion that under the circumstances revealed by this record Respondent
did not violate the Act by its unilateral conduct referred to above.
However, a grievance that a supervisor is performing more than a modicum
of production work or is being utilized to deprive regular production workers
of overtime pay is a matter affecting wages, hours of employment , and other
terms and condition of employment of such production workers and a proper
subject for the purposes of collective bargaining. Nevertheless, the undersigned
believes the evidence herein insufficient to establish that Respondent refused
"to discuss, negotiate or bargain" about this matter.21 Respondent did not fore-
"There is no evidence that attendants were assigned more work than they could handle
so that as a matter of necessity Lello was frequently called upon to lend a hand. Such
occurred usually when a test had to be run within a specified period of time and because
of unusual circumstances an attendant required assistance for only a few minutes or in
emergency situations.
20 There is no evidence that Respondent 's "unilateral assignment of work to Lello" was
motivated by a desire or intent to evade its obligation under the Act or was taken in
bad faith.
21 The undersigned is not concerned with the merit or lack thereof of the claim that
because of Lello's activities laboratory attendants are being deprived of work normally
assigned to them. The sole issue before the undersigned is whether Respondent refused
to bargain within the meaning of the Act with reference to the afore -mentioned activities
of Lello.
986209-52-vol. 97-67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close the use of the grievance procedure which the parties established as a
means for handling grievances. To the contrary, Respondent met and conferred
concerning this matter. Although the record reveals the positions taken by
the parties at these meetings and that Respondent may have taken an adamant
position, it does not reveal details as to what actually occurred when the parties
met. Under these circumstances the undersigned cannot find that Respondent
met and conferred in bad faith. As noted above, Respondent in the third step
of the grievance procedure asserted that the grievance at that stage was not filed
timely and that therefore Respondent did not have to meet and confer concerning
the grievance. In view of the contract provisions such an assertion (such as
interpretation of the 15-day requirement of the contract) if not made in bad
faith cannot be called arbitrary or an attempt by Respondent to reserve to itself
the unilateral power to decide matters concerning earnings or grievances. Al-
though Respondent may have been in error as to whether the grievance was filed
timely there is no evidence that its contention was advanced in bad faith or
with intent to discourage the employees in the exercise of the rights guaranteed
by the Act. In this connection it is noted that the Union did not invoke the
arbitration provisions of the contract or any other means to test the soundness
of Respondent's position.
On the basis of the entire record herein, the undersigned believes and finds
that the evidence is insufficient to support the allegations of the complaint that
Respondent refused to bargain with respect to the performance of Saturday
work by Giles Lello.
(d) Refusal to bargain re: Brown
On or about February 21, 1950, officials of Respondent and the Union conferred
about a grievance not material herein. At the conclusion of the discussions
concerning that grievance Warren Gritzmacher, president of the Union, stated
there was another matter he wanted to bring up before Schindler, who was not
a regular member of this committee, departed. Gritzmacher then inquired as to
why Lucille Everson Brown had not been employed. Schindler started to relate
the sequence of events (set forth above) and explained that Brown was a
tubercular case and there was a question of X-rays. Gritzmacher remarked that
Brown had taken an X-ray at her own expense to prove she was no longer a TB
hazard. Schindler stated that in any event he had told Brown he "could not
rehire her because we considered her too great a risk." Before Schindler could
explain what he meant by "too great a risk" Havnen broke up the discussion by
stating that Respondent hired whom it pleased and that since Brown was not
an employee of Respondent (was not hired) the matter was not a proper subject
for discussion. Havnen then dismissed Schindler from. the meeting. Before
leaving the room, Schindler, in response to a question, shook his head to Indicate
he had not refused to rehire Brown because of her union activities and at that
juncture Havnen facetiously remarked that if he (Havnen) had known that
Schindler had denied Brown employment because of her union activities he
(Havnen) would have given Schindler a raise.:a
At the hearing herein a motion was made to amend the complaint, to allege
that Respondent refused to bargain in violation of the Act by refusing to negotiate
22 It is apparent from the record that this remark NN as made in a jocular manner and
was not treated as serious at the time In the setting in which it was made the under-
signed does not accept the contention of the General Counsel that "it contained inherent
implications that any conduct which was anti-union in character, had maagement's approval
and would be rewarded "
GLOBE-UNION, INCORPORATED 1047
with the Union "upon the subject of respondent's refusal to reemploy Brown."
This motion was taken under consideration and the parties proceeded as though
the motion had been granted. It is hereby granted. Respondent contends
Brown was not an employee within the meaning of the Act, that if she was an
employee for the purposes of Section 8 (a) (1) and (3) that she nevertheless
was not an employee for bargaining purposes, that if she was an employee
within the meaning of Section 8 (a) (5) Respondent nevertheless was not
obliged to process the refusal to rehire Brown, and that as a matter of fact-
the Company did not refuse to bargain with respect to Brown. At the hearing;
Respondent also contended that these allegations are barred by the 6-month,..
limitation of Section 10 (b) of the Act 23 The undersigned, on the aitbQxlt$ of_
Cathey Lumber Co., 86 NLRB 157, and subsequent cases on the point, rejected
Respondent's contentions concerning the application of the 6-month limitations
of the Act. This ruling is hereby affirmed.
It is now settled, under Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, that
the Act extends to applicants for work and bars discrimination against them
because of union membership or lack thereof. It can hardly be questioned that
terms and conditions which may be required of applicants for work may reflect
upon the terms and conditions of employment of those already employed. Ob-
viously, employees currently active in a union are interested and concerned with
any conduct by their employer which indicates that possibly their own employ-
ment may be jeopardized if they continue to exercise the rights guaranteed by
the Act. Accordingly discriminatory terms and conditions which may be re-
quired of applicants for work have a direct connection with and relationship
to working conditions of those already employed. It follows that a complaint
that an applicant for employment was denied employment because of union
membership and activity is a grievance having a direct bearing upon the terms
and conditions of employment of those already employed and is a proper subject
for bargaining.
Furthermore, the contract provides inter aria
The Company will not interfere with the right of its employees to become
members of the Union nor will it use coercion, discrimination or restraint
against any member of the Union on account of such, membership. [Em-
phasis applied.]
As noted above this was, in effect, a complaint that the Company discriminated
against a member of the Union on account of such membership. There may be
a difference of opinion as to the meaning and interpretation of the above-quoted
clause and a question as to whether it applies to applicants for employment or
only to employees of Respondent. Nevertheless, the contract is subject to an
interpretation that it prohibits discrimination against all union members,
whether employees or applicants for employment, and it may be reasoned that
the grievance herein, involving and concerning the meaning and interpretation
of the above-quoted clause, was a proper grievance and could not be summarily
dismissed.
Respondent urges that it was not required to bargain with respect to Brown
because of the recognition clause of the agreement wherein the Union is recog-
nized "as the exclusive representative of employees in the Milwaukee plants
who are paid on a point rate or day rate basis," because there is no evidence the
Union participated in the hiring or "instatement" of applicants for employment,
and because there is no evidence that Brown was a union member in February
1950.
21 This same contention is made in Respondent's brief.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above it is the opinion of the undersigned that the Union was seeking
bargaining as a representative of the employees in the unit, and not necessarily
as a representative of Brown or of Brown only. The Board has declared its
reluctance "to deprive employees of any of the rights guaranteed them by the
act in the absence of a clear and unmistakable showing of a waiver. of such
rights." (See The Standard Oil Company (an Ohio Corporation), 92 NLRB 227.)
The evidence herein does not reveal a clear and unmistakable waiver of a right
to represent individuals allegedly denied employment for unlawful reasons or to
represent employees clearly within the appropriate unit concerning their interest
in such an alleged denial of employment.
Respondent's contention that it did not as a matter of fact refuse to bargain
with the Union with respect to Brown is rejected by the undersigned. Havnen's
dismissal of Schindler from the meeting and position that the refusal to employ
Brown was not a bargainable issue because Brown was not an employee pre-
cluded any possibility of considering the issues raised. Respondent thus made
it unequivocally clear to the Union that it did not intend to bargain with the
Union regardless of the procedure followed by the Union to bring this matter to
Respondent's attention and that a complaint or grievance in accordance with
the grievance procedure of the contract would be a useless gesture and a futile
act. (See Old Town Shoe Company, 91 NLRB 240, and Toolcraft Corporation,
92 NLRB 655.) 24
The fact that the belief which motivated the grievance-that Brown was
denied employment because of union activities-was an erroneous one does not
lessen any of the grievance's qualities as a proper subject for bargaining or
obviate the obligation "to meet at reasonable times and confer in good faith."
Many grievances after discussion are found to lack the merit which the pro-
ponent of the grievance believed it possessed. Nevertheless, that is no reason
for eliminating the procedure which the Act encourages-a friendly adjustment
of industrial disputes. A rigid determination not to consider the grievance is
productive of the very industrial strife and unrest which Congress sought to
alleviate by passage of the Act.
While the Board is the proper forum for adjudication of issues concerning
alleged infringements of statutory rights and the Union may not have been re-
quired to seek adjustment of this issue through the procedure of collective bar-
gaining 26 there is nothing in the statute barring such a procedure. To the con-
trary, the Act encourages the elimination of sources of industrial strife through
the practice and procedure of collective bargaining and creates the Board as
the agency to safeguard this procedure.
In view of the foregoing and upon consideration of the entire record the under-
signed finds that by refusing to discuss the grievance outlined, Respondent re-
fused to bargain within the meaning of the Act. It should be noted however
that the issue herein is a narrow one, i. e., whether a refusal to discuss is vio-
lative of the Act, and the finding made is limited to that issue. No effort is
made to delineate the obligations of the parties where discussion is not fore-
closed. No such issue is present and it is believed that determination of this
latter problem should only be made in cases where that issue is properly
presented.
84 In this connection it is noted that grievances are not always initiated in accordance
with the procedure established in the contract. For example, in the Ulrich matter the
grievance procedure of the contract was not invoked until after a: preliminary conference
with Respondent. In that instance however, Respondent did not foreclose bargaining.
25 See The Standard Oil Company , 92 NLRB 227.
GLOBE-UNION, INCORPORATED 1049
The Remedy
While the record suggests that Respondent manifested less than wholehearted
cooperation with the Union and an infringement upon the rights guaranteed
by the Act, the undersigned is unable to conclude upon this record that Respond-
ent was motivated by a desire or -intent to evade its obligations under the Act or
by a desire or intent to frustrate collective bargaining. Rather, it appears that
the violation herein resulted from misapprehension as to the applicability of
the Act under the facts here present. I am not persuaded that Respondent's
past conduct is indicative of a predilection to commit other unfair labor prac-
tices in the future. Accordingly, it is believed that the Act will be adequately
effected if Respondent ceases and desists from the unfair labor practices found
and from any like or related conduct and takes the affirmative action hereinafter
recommended.
[Recommended Order omitted from publication in this volume.]
Appendix A
GRIEVANCES:
1. If any employee feels that he or she has a just complaint with respect to
any matter under the terms of this contract, he may either with or without his
steward, first take it up with his foreman or department head, and the Company
will act upon complaints concerning general hours of work, rates of pay varying
from those set up in accordance with this contract, and other conditions of
employment only through the Union, Other conditions of employment shall be
deemed to mean any complaint which cannot be settled between an employee
and the head of his department. If the matter is not settled, the employee, if
he wishes to carry his complaint further, shall refer it to his steward, and the
two of them will meet with the designated foreman or department head and
another Company representative for the purpose of making a settlement within
four working hours. ,
2. If no satisfactory settlement is reached as above, the division superintendent
and chief steward shall be called into the discussion. Any settlement at this
stage shall be put in writing and copies given to both the Company and the,
Union. If neither is notified in writing within 15 working days that this settle-
ment is not acceptable, the matter will be considered closed.
3. If no satisfactory settlement has been reached within one working day,
the matter will constitute a grievance , and the Union shall reduce it to writing
over the signature of the employee or employees having the grievance and give
it to the Company. A meeting will be called within two working days at a time
convenient to both parties to discuss the grievance and attempt to effect a
mutually satisfactory settlement of the matter. Such meetings will be held
from 10:00 A. M. to 12:00 Noon or from 2:00 P. M. to 4:00 P. M. The final
result of the meeting will be given to the Union in writing. Unless the Union
notifies the Company within 45 days in writing that the matter is being taken
to arbitration, that grievance will be considered closed in accordance with the
written settlement.
4. Any dispute or controversy within the scope of this contract which is not
settled through the grievance procedure described above may be submitted to
arbitration.
a. The party desiring arbitration shall notify the other party in writing.
In the event the grievance is taken to arbitration, there shall be a board of three
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitrators , one to be appointed by each party to this contrac£ and the third to
be selected by these two arbitrators . If they cannot agree on the appointment,
the third party shall be selected by the Federal Mediation and Conciliation
Service. The decision of the majority of such arbitration board shall be final
and binding upon both parties.
b. The arbitration board shall hear all evidence and render a decision within
seven days of the arbitration bearing unless this time is extended by mutual
consent. No decision shall be made by the arbitration board without the par-
ticipation of the representative of both the Union and the Company , unless in
the judgment of the chairman either the Company or the Union is unnecessarily
delaying arbitration proceedings ( after due notice of such judgment by the
chairman to both parties hereto ) in which case decisions may be reached without
the participation of the party causing the delay.
c. The arbitration board may only interpret the contract and apply it to the
particular case presented to it and shall have no power to add to or subtract
from or modify any of the terms of this contract or any agreements made
supplementary hereto.
d. In the event that either party should challenge the propriety of the par-
ticular grievance, the board of arbitration shall rule as to whether the matter
is arbitrable under a, b and c.
e. If more than one issue or case is pending before one arbitration board,
either party may demand that the issues be heard and adjudicated separately.
f. The costs of arbitration , exclusive of the parties' representatives , shall be
borne equally by the Company and the Union.
5. Stewards, chief stewards , members of the bargaining committee , and in cases
of emergency , members of the executive committee , will be permitted to leave
their work to attend meetings or handle grievances arising under this contract
after duly notifying their foreman and punching their time cards out. If
necessary , a reasonable amount of time will be allowed to permit the foreman to
arrange for necessary work to be carried on before they leave. Upon entering
a department other than their own, in the fulfillment of their duty , stewards or
committee members shall notify the foreman of that department of their presence
and purpose.
6. In the event of the discharge of an employee who believes he has been
unjustly dealt with , such discharge shall constitute a grievance arising under
the method of adjusting grievances above provided . Such grievances , however,
must be presented by the employee within seven days after discharge , and upon
receipt of such grievance , the Company will give the Union a written statement
of the reasons for this discharge . If the discharged employee is reinstated, he
will be paid at the average earned rate for his group for the time he has unjustly
lost, or if an individual at his previous week 's average earned rate for average
time worked.
7. The Company will notify the Union of an employee being discharged 48
hours prior to the removal of such employee's name from the seniority list, unless
the employee 's presence in the plant might jeopardize the safety of himself or
others.
& The Company agrees to pay at their day work rate to Union stewards a
maximum of two hours per week and to members of the bargaining committee
and chief stewards three hours per week for time lost when handling griev-
ances in the manner provided in this contract . The Union shall keep the
Company informed of the stewards in each department , and the number of
stewards paid shall not exceed one for each 40 employees eligible for the bar-
gaining unit.
GLOBE-UNION, INCORPORATED 1051
9. In the event of a complaint concerning point rates or job classifications, the
pertinent data applicable will be discussed and explained to the Union repre-
sentatives during the second step of the grievance procedure if requested. When
a written grievance is submitted concerning point work rates or base wage
classifications and an increase in either is granted as a result of the grievance,
such increase shall be made retroactive to the date of the first step of the
grievance.
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to meet and confer in good faith with INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 322, AFL, with
respect to grievances alleging discrimination against applicants for employ-
ment because of membership in the above-named union.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed them by Section
7 of the Act.
WE WILL upon request meet at reasonable times and confer in good faith
with the above-named union with respect to grievances alleging discrimina-
tion against applicants for employment because of membership in said
union.
GLOBE-UNION, INCORPORATED,
Employer.
By --------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
ST. REGIS PAPER COMPANY and LODGE #1009, INTERNATIONAL Associ-
ATION OF MACHINISTS, PETITIONER. Cases Nos. 3-RC-701, 3-RC-
702, 3-RC-703, 3-RC-704, 3-RC-705, and 3-RC-706. January 15,
1952
Decision and Order
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Ralph E. Kennedy, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce 'within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
97 NLRB No. 157.