Kearney & Trecker Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1145 (N.L.R.B. 1955)

KEARNEY & TRECKER CORPORATION 1145
Kearney & Trecker Corporation and International Union , United
Automobile, Aircraft and Agricultural Implement Workers of
America, CIO , .Local 1083 . Case No. 13-CA-1433. August 26,
1955
DECISION AND ORDER
On May 13, 1954, Trial Examiner Robert L. Piper issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions.
We agree with the Trial Examiner's conclusion that the Respondent
violated Section 8 (a) (1) by disciplining seven employees who col-
lectively sought to present a group grievance to the Employer.
The principal issue of this case involves the legality of the Respond-
ent's disciplinary action against seven employees who, as a group, in-
sisted that the Company explain to their satisfaction the mechanics of
an incentive system under which their weekly earnings were calcu-
lated. The record fully supports the Trial Examiner's finding that
the employees were so punished because they chose to press their griev-
ance as a concerted action instead of dealing with the Company in-
dividually, a method which the Respondent preferred. We agree with
the Trial Examiner's conclusion that by its action the Respondent vio-
l ated Section 8 (a) (1) of the Act.
Among the many defenses urged by the Respondent is the conten-
tion that because the seven shipping department employees did not
constitute the majority of employees in an appropriate unit, the con-
certed activity was not protected by the statutory proscriptions against
employers and they were exposed to retaliatory action. On this point
the statutory language is clear. Section 8 (a) (1) makes it an unfair
labor practice for an employer to "coerce employees in the exercise of
the rights guaranteed in Section 7"; and Section 7 guarantees to em-
ployees the right to engage in "concerted activities for the purposes of
collective bargaining or other mutual aid or protection." [Emphasis
supplied .] Apparently, the Respondent misconstrues the scope of the
113 NLRB No. 113
1146 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
foregoing language of Section 7 as being limited to protecting the right
of a majority group to bargain collectively. The Respondent's con-
tention that an employer is not required to bargain with an employee
group which falls short of a majority is not responsive to the complaint
in this case. That an employer is not obliged to bargain under certain
circumstances is no defense to a charge that it violated Section 8 (a)
(1) of the Act by interference with the employees' right to engage in
concerted activity. It is now well settled both by Board precedent and
court interpretation of the statute as a whole that the statute also pro-
tects "concerted activities" for "mutual aid or protection," albeit by
a minority group, against coercive restraints.
In Phoenix Life Insurance Company, the Board found unlawful
coercion against a group of employees acting in concert to present a
grievance concerning the selection of a cashier whose job affected their
working conditions. The Board commented, "Our holding is not to be
construed as meaning that the respondent would have been under any
obligation ultimately to comply with the wishes of the salesmen in
selecting or rejecting a particular cashier." 1 In enforcing the Board's
order, the Seventh Circuit Court conceded that the employees "had no
authority to appoint a new cashier or even recommend anyone for the
appointment" and construed Section 7 of the Act as follows:
... Congress must have intended to include within the Act what
the usual meaning of these unambiguous words conveys. A
proper construction is that the employees shall have the right to
engage in concerted activities for their mutual aid or protection
even though no union be involved or collective bargaining be
contemplated 2
Similarly in Kennametal, Inc., where a group of employees left
their work to present a request for a wage increase, the Board pointed
out that it was "immaterial" that "the Respondent could have refused
to meet with the employees during working hours . . . for the real
issue involves the right of the employees to engage in a work stoppage
to compel the Respondent to entertain their grievance."' There the
Board expressly said that the employees were privileged to ignore the
employer's back-to-work plea by continuing their concerted ac-
tivity until the employer agreed to meet with them .4 Again, the Third
Circuit agreed with the Board, and stated: "What occurred in this
case was certainly concerted activity . . . which is expressly protected
by Section 7 of the Act." 5
173 NLRB 1463.
2 N. L. R. B. v. Phoenix Mutual Life Ina. Co., 167 F. 2d 983, 988 (C . A. 7) ; cert. denied
335 U. S. 845
a 80 NLRB 1481, 1483.
Ibid.
6 N. L. R. B. v. Kennaretal, Inc, 182 F. 2d 817, 819 (C. A 3)
KEARNEY & TRECKER CORPORATION 1147
The irrelevance of the Respondent's contention that it was not
,obliged to bargain is also borne out by the Ninth Circuit's conclusion
in Buzza-Cardozo. There, where a spontaneously formed group struck
over wages in spite of a pending representation petition, the employer
argued that it was not obliged to bargain in view of the Mid-Vest
Piping doctrine. The court said : "We assume that respondent was not
obliged to treat with them, and for present purposes we may assume
that it might have been improper to grant them a wage increase.
But it does not follow that respondent had a right to consign them to
the category of outlaws and so discharge them... ." 6
We see no warrant for deviating now from these clear Board and
court precedents?
We note that our dissenting colleague Chairman Farmer's only
comment on the application of the foregoing precedents is the criticism
that not only the Board, but "the Courts have gone quite far, perhaps
too far" in holding minority group actions to be protected. The
Chairman also adverts to the dire consequences which might ensue
from minority groups running rampant in pursuit of their interests,
in derogation of the principles of majority rule and industrial stabil-
ity. Such a situation however is not presented in this case and was
not presented in controlling authorities we have cited above. We
cannot see how this case can be decided but on its own facts and under
established judicial authority. Here, in a plant of 1,700 employees,
we have a group of 18 shipping room employees whose only "demand"'
was for a group explanation of exactly how their paychecks were
computed under the Employer's incentive plan. Far from contending
that the group made "bargaining demands," the Respondent protests
in its brief that the incident is a mere "gripe" not even worthy of
classification as a "grievance." Thus, the Respondent argues in its
brief that the "controversy out of which this incident arose .. .
actually . . . consisted of the claim that, after numerous exhaustive
explanations, the men were still unable to check the accuracy of their
pay because they did not understand the application of the Halsey
50-50 system under which they worked, and wanted it further ex-
"N. L. R B. v. Buaza-Cardozo, 205 F. 2d 889, 891 (C A. 9), enfg 97 NLRB 1342; cert
denied 3 -16 U S 923
7 Accord : Carter Carburetor Corp. v. N. L. R. B., 140 F. 2d 714, 718 (C. A. 8) :
Section 7 gives employees the right to engage in concerted activities . . . or other
mutual aid. . . . This "mutual aid" and "concerted activities" include, we think,
the right to join other workers in quitting work in protest over the treatment of a
cnemployee, or supporting hum in any other grievance connected with his employer's
conduct.
Modern Motors, Inc. v. N. L. R. B, 198 F. 2d 925, 926 (C. A. 8) :
The object , scope ," attributes , and consequences of what the three discharged em-
ployees did cannot in the situation be declared to have been beyond the scope of the
statute . . . [T]he matter in all its incidents had amounted to nothing more on the
part of the employees ' than a stopping of work, the concerted presenting of a grievance
concerning conditions of employment , and a reasonable attempt to get the grievance
solved
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained to them, but only as a group." Nor does the record show that
this group sought to "deal" with the employer or to "bargain" over
conditions of employment as our dissenting colleagues seem to imply.
All that was demanded here was information-not a concession in
condition of employment.
We also reject, as did the Trial Examiner, the Respondent's con-
tention that the "grievance" was-in the language of our dissenting
colleague, Member Rodgers, who espouses this position-"nothing
more than just another contrivance in the checkered history of this
controversy," between two unions and not "a good-faith action on
the part of the employees involved." As the Trial Examiner pointed
out, the record establishes that the computations involved in the Halsey
incentive system are extremely difficult to understand and to explain.
Its computation includes such factors as the fixing of a job rate for the
individual employee, the fixing of a Halsey rate for the work per-
formed, the fixing of standards for the performance of particular jobs
in terms of hours, translation of the group's production into produc-
tion hours in excess of hours worked as shown by amount of produc-
tion, computing the bonus by taking the excess of hours produced over
hours worked and dividing by two, and then dividing by the Halsey
rate, anct then separately computing the nonrated work bonus from
a percentage obtained by application of a special formula to the payroll
of 2 weeks prior to the computation date, and computation of indirect
bonus from hours of indirect labor. There is good reason to suppose
that all of the shipping department employees, some of whom are
illiterate, may never understand the computations no matter how
many explanations are provided. Foreman Hartfield of the shipping
department did not deny testimony of several employees that Hartfield
himself was unable to explain the computations and that he lacked
the necessary data for such computations. In view of the fact that the
dollar amounts of the employees' paychecks varied each week with
reference not only to hours worked but also with reference to several
other variables, it is not difficult to understand that such a complicated
and seemingly mysterious system should baffle unlettered working
men and give rise to complaints on payday on the amount of their
checks. We can find no warrant in the record for concluding that the
employees involved were not in good faith collectively seeking a
satisfactory explanation of how their paychecks were computed. We
are unwilling to find to the contrary on the basis of conjecture. We
likewise cannot accept Member Rodgers' view that "the only reasonable
construction" to place on the incident is that it was another effort on
the part of Local 1083 "to break down the Company's rule not to-recog-
nize either labor organization so long as the controversy over the pro-
-priety of the certification of Local 1083 remained undetermined."
KEARNEY & TRECKER CORPORATION 1149
Apart from the question of motivation, as we have already made plain,
giving the shipping room employees the information they sought in a
group would not have involved bargaining or recognition of a union.
After the close of the hearing, the Respondent filed a motion with
the Board for reopening of the record to enable it to introduce into
evidence certain testimony adduced in a later representation proceed-
ing in Kearney & Trecker Corporation, 112 NLRB 69. The purpose
of this testimony was to add support to the Respondent' s assertion at
the hearing in the instant case that the seven disciplined employees
were in fact acting as agents of the UAW-CIO while attempting to
process their grievance. Also, through this testimony the Respondent
sought to attack the Trial Examiner's credibility findings. The sub-
stance of the proffer of proof is that these employees, after the Com-
pany had imposed a 2-week disciplinary layoff on them, had received
financial assistance from the UAW-CIO.
The Board unanimously grants the motion to reopen the record and
hereby makes the testimony abstracted from pages 488 through 496,
inclusive of the transcript of testimony in Kearney di Trecker Cor-
poration, 112 NLRB 69, part of the record in this case. However, this
additional evidence does not affect the conclusion of the majority that
all that was involved here was group action constituting protected
concerted activity under Section 7 of the Act. We reject the Respond-
ent's contention that this additional evidence and the record as a whole
show that the disciplined employees were not attempting to present a
bona fide grievance or were not otherwise engaged in protected activity
but rather were attempting to force the Respondent to bargain with
the UAW-CIO. To the extent that this additional evidence is put
into the record for other purposes including credibility, we also reach
the same conclusion as the Trial Examiner, particularly in view of the
fact that there is no substantial disagreement among the witnesses as
to what happened on February 26, 1953, when the disciplined em-
ployees engaged in a work stoppage for which they received the 2-week
disciplinary layoff.
Our dissenting colleague, Chairman Farmer, asserts that the Re-
spondent was in a dilemma where "short of granting exclusive rec-
ognition to one union or the other, or abandoning the plant to an in-
definite period of instability, it is difficult to conceive of any other
course the employer could reasonably have pursued" to maintain a
neutral position between two competing unions. Assuming, though
not conceding, that adjustment of the grievance of this group some-
how involved dealing with Local 1083 with respect to a grievance of
some of its members, this assertion ignores well-established doctrine as
,to the rights of an employer in the middle of two competing unions.
"The Board has said that, `The Employer faced with rival demands,
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may without violating the Midwest Piping doctrine, grant recogni-
' tion to each of the claimants on a members only basis'."
We also reject the Respondent's defense that in any event the seven
employees had removed themselves from protection of the Act be-
cause they 'were engaged in a strike in violation of the express pro-
visions of an existing collective-bargaining agreement between the
Respondent and the Employees Independent Union. The contract,
first executed in 1950, was extended to 1954 by a supplement dated
April 30, 1951. The work stoppage by the seven employees occurred
on February 26,1953.
In addition to the no-strike clause the contract provides that "any
individual employee or group of employees shall have the right to
present grievances. . . ." [Emphasis supplied.] The contract estab-
lishes in this section a 5-step grievance procedure in which the in-
dividual employee participates in the first 2 steps only. The third
step consists of a meeting between the union bargaining committee
and the personnel department, when requested in writing by the bar-
gaining committee's chairman. A meeting between the union bar-
gaining committee and the works management comprises the fourth
step. -The final step is arbitration with costs shared equally between
union and management.
On the record, it is clear that the Respondent no longer considered
itself bound by any of, the provisions of the contract long before the
work stoppage in 1953. Thus, as early as November 1951, the Re-
spondent advised all employees that the Respondent would refuse to
recognize any labor organization until all pending litigation was
finally resolved, and it takes the position even now that the grievance
procedure clause, like the recognition provision, was one which it
could not follow "in the manner strictly set out in the contract"°
Thus, the assertion of an existing contract must rest on the fact that
the Respondent chose to continue in effect certain substantive condi-
tions of employment, such- as wages, while not abiding by other pro-
visions of the contract. Indeed, it is admitted that the Respondent's
adherence to certain contract terms was purely voluntary and uni-
lateral.
The Respondent's assertion of the no-strike clause as binding on
the employees and as an affirmative defense to otherwise unlawful
suspensions is obviously inconsistent with its earlier position rejecting
the contract and unilaterally breaching the grievance clause to which
the no-strike clause is a corollary. In effect, the Respondent argues
that while it is relieved of the material contract obligations of rec-
ognition of the Union, union presentation of grievances, and arbitra-
8 Sunbeam Corporation, 99 NLRB 546, 551 , quoting from Hoover Company, 90 NLRB
1614, 1618.
9 Respondent's brief, p 17
KEARNEY & TRECKER CORPORATION 1151
tion, the employees are nevertheless bound under the agreement not
to use the strike weapon which they surrendered in exchange for,
inter alia, the grievance machinery.
On the foregoing facts and the entire record, we can only conclude
that by February 1953, there was no longer an effective no-strike
clause at this plant, and that the employees were free to engage in
any activity permitted and protected by the statute without fear of
violation of a contract which had been either wholly breached or
effectively suspended during this period by the Respondent's own
action. A conclusion that the Company's suspension of material
portions of the contract could not affect the continued application of
the contract would be contrary both to fair play and to fundamental
principles of contract law which hold that a failure to give perform-
ance on one side deprives the party in default of a right to enforce
performance of a contract on the other side.'°
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Kearney & Trecker Corpora-
tion, West Allis, Wisconsin, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Laying off without pay or otherwise discriminating against
any of its employees for engaging in concerted activities for their
mutual aid or protection.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to :refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the. Act. -
2. Take the following affirmative action which the Board finds
necessary to effectuate the policies of the Act :
(a) Make Clemins, Plichta, Landolt, Greyling, Herman, Knabe, and
Karjala whole for any loss of pay each of them may have suffered by
reason of the discrimination against them in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents,upon
request, for examination and copying, all payroll records, social-se-
20 Williston , On Contracts (1936), Vol. III, Sec. 812, 813.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(c) Post at its plant in West Allis, Wisconsin, copies of the notice
attached to the Intermediate Report marked "Appendix A." 11 Copies
of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being signed by Respondent's repre-
sentative, be posted by Respondent upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notice is not altered, defaced, or covered by
any other material.
(d) Notify the aforesaid Regional Director in writing, within ten
(10) days from the date of this Order, what steps Respondent has
taken to comply herewith.
CHAIRMAN FARMER, dissenting :
I would dismiss the complaint in this case.
The issue is whether an employer has violated the Act by suspending
seven employees for 2 weeks because they stopped work and demanded
the right to a group discussion of a real or contrived grievance. After
their suspension, they were reinstated to their jobs, so the case comes
before us only because of their claim for the 2 weeks' wages which they
lost. The theory of the complaint is that they were suspended for en-
gaging in a concerted activity which is protected by Section 7 of the
Act.
The circumstances were these : Prior to, during, and following this
incident, there existed a bitter, hard-fought rivalry between two
unions at this plant. At the time the contest began, 1 of the 2 unions
was the recognized representative of the employees and had an agree-
ment with the Employer covering wages, hours, and working condi-
tions . In mid-term, "schism" was brought about in the incumbent
Union. The outside union then petitioned this Board for an election
which was ordered by the Board 12 in the middle of the contract term
by virtue of the Board's application of the "schism doctrine." The
petitioning union won this election and was certified by the Board.t3
The Court of Appeals for the Seventh Circuit later set aside this
election 14 on the basis of interference by the certified union, and this
n This notice shall be amended by substituting for the words " The Recommendations
of a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order
" 95 NLRB 1125.
15 The union was certified on October 31, 1951.
14 210 F. 2d 852 (C. A. 7)
KEARNEY & TRECKER CORPORATION ' - 1153
Board has recently dismissed 15 a new petition by the same union be-
cause the influences found by the court to be coercive had not yet been
dissipated.
Pending the outcome of the court proceeding, eventually resolved in
its favor, the Employer took the stand that there was an unresolved
question as to which of the two competing unions was the lawful ma-
jority representative of its employees. The Employer accordingly re-
fused to grant exclusive bargaining rights to either, and notified its
employees that, pending determination of the representation dispute,
it would not handle grievances with any groups of employees, but
only with the individual employees.
It was while this situation prevailed that the incident giving rise to
this proceeding took place. This is a plant employing about 1,700 peo-
ple, and it is agreed by all parties that the appropriate bargaining unit
consists of the entire plant. On February 26, 1953, 18 persons in the
shipping department stopped work without prior notice and pursuant
to prearranged plan demanded to have a purported grievance dis-
cussed on a group basis. Their specific demand was that an official of
the Company meet with them as a group and "explain" to them an in-
centive bonus system which had been in effect for 11/2 years and which
had previously been explained to them individually and in groups on
one or more occasions. The Employer offered to explain the system to
each of them individually, but the group spokesmen insisted upon a
group explanation. They were then told by management that they
must return to their work places. Some of the employees complied
but the seven employees in question continued to insist on their pre-
sumed right to a group discussion of their grievance and continued to
insist upon compliance with their demand. Thereupon, they were sus-
pended for 2 weeks, after which period they were reinstated to their
former positions.
Following their reinstatement, 1 of the 2 competing unions filed
this charge on their behalf. The Employer offers to prove that this
union actually reimbursed them for the wages which they had lost'
during their suspension, and, in fact, advised them before their work
stoppage that they had a right to insist on a group presentation of their
alleged grievance. It also appears that the seven employees were mem-
bers of this union.
It is a fundamental principle of.this Board that an employer who'
is confronted by rival claims by two or more unions must maintain a
neutral position and refrain from dealing with any union until it is
determined which union, if any, represents a majority of big employees.
This Employer takes ' the position that his action in this case was die-'
tated by his desire to comply with this principle. The Employer'also
15 su pra
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserts that the action of these employees constituted an attempt to
force bargaining with one of the competing, unions, contrary to his ob-
ligation under the statute, and that the entire incident was carefully
contrived by 1 of the 2 unions in an effort to secure back-door bargain-
ing rights.
I do not find it necessary to pass on this latter contention because
I am convinced that there is a more compelling reason why this case
is without merit.
There is no claim here that the Employer penalized these employees
because of membership in or activity on behalf of one of the competing
unions. The sole statutory basis for this complaint is Section 7 of the
Act which guarantees to employees the right to engage in concerted
activities for their mutual aid and protection. This is a fundamental
right which is entitled to jealous protection, but it is much too late in
the day to view that right as unlimited. The right to engage in con-
certed activities by majorities has been subjected by the Board and the
courts to reasonable restrictions, so that sitdown strikes, slowdowns,
intermittent strikes, partial strikes, and violence have been held outside
,the pale of statutory protections. Much less, it seems to me, is all con-
duct by minority groups entitled to affirmative legal protection. It
seems to me that it is an absolute necessity to construe Section 7 in
such a way as to harmonize the rights of minorities with the basic
purposes of the statute of which that provision is a part. In this re-
gard, I doubt that anyone could quarrel with the view that the theme
of the statute is majority rule and that its ultimate objective is stability
of labor relations and industrial peace. The basic concept is that the
union selected by a majority of the employees as an appropriate unit
shall make ,the bargain for all of the employees and that the wages,
hours, and conditions of work so established shall bring about stabi-
lized and peaceful labor relations. It is thus quite plain that the range
for disruptive activities by individuals or minority groups is neces-
sarily less comprehensive, and while the minority groups still have
significant rights, their activities in derogation of the principle of
majority rule must be made to harmonize with the Act as a whole.'
'I agree that, with appropriate limitations, concerted activity is
protected even where a minority is involved. The primary purpose
of protecting minority concerted activity is to create that atmosphere
of freedom of expression and action necessary for the democratic se-
lection or rejection of a bargaining agent. Its function is to permit
organizational activities and discussion within the democratic frame-
work of the statute. On the other hand, protection of any and all
such groups in every circumstance would have the effect of establish-
ing minority rather than majority rule and create industrial chaos
rather than industrial peace. The right of minorities to engage in con-
certed activities must not, therefore, be construed to give indiscrimi-
KEARNEY & TRECKER CORPORATION 1155
nate protective umbrage to atomized work stoppages which paralyze
plant operations for purposes not endorsed by the majority of em-
ployees.
There is no doubt that any individual or group of employees may
seek to present a grievance to the employer. It is equally clear, how-
ever, that the employer is under no legal obligation whatsoever to
meet with them or entertain their grievance 16 unless it is presented
by' a union which is the exclusive representative under the statute.
While the proviso of Section 9 (a) permits an employer to adjust
grievances of individuals or groups of employees, it imposes no obliga-
tion upon him to do so. His only duty is to meet and bargain collec-
tively with the union which has been designated as the representative
of a majority of the employees. In fact, an employer who makes a
bargain with any minority group in circumstances such as these en-
counters the grave risk of violating other provisions of the statute
which have been interpreted by the Board as prohibiting him from
rendering assistance to a minority group or undercutting the exclusive
representative. Indeed, a United States court of appeals has refused
to countenance dealing with a minority group on wages under the
guise of an adjustment of "grievances" within the meaning of the pro-
viso to Section 9 (a) .17
I do not think that an employer may proscribe employees in their
privilege, either singly or in groups, to proselytize for or against a
union or for different unions, or for that matter, to attempt to enlist
others to make common cause with them. It is thus that the minority
of today becomes the majority of tomorrow. But while still an
amorphous, unrecognized minority, I do not think that the law contem-
plates that the minority group can arrogate to itself all of the rights
that the Act preserves for the majority representative of the employees.
An employer is obligated to deal with the majority representative in
good faith, and the Act protects the right of the bargaining agent to
strike to enforce its demands. But here the Employer is under no such
obligation, and on the contrary, is under a duty to refuse to deal with
a minority group. This places him on the horns of a dilemma. He
may refuse, as here, to deal with the minority group and accept as a
consequence an interruption of a part of his operations costly to him
and the majority of his employees, or he may give in to the minority
demands to the detriment of majority rights and even in violation
of the law. So interpreted, the uninhibited right of makeshift mi-
nority groups becomes a monster, devouring the basic purpose of the
16 "It is not an unfair labor practice within the meaning of Section 8 subdivisions (1)
and (5 ) of the Act for an employer to refuse to discuss grievances with employee repre-
sentatives when such representatives do not represent a majority of his employees."
Mooresville Cotton Mtills, 2 NLRB 952, 955. Accord : The New , York , Times Company,
26 NLRB 1094, 1105.
17 West Texas Utilities Co . v. N. L. R. B., 206 F. 2d 442 ( C. A., D. G).
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Act: industrial peace achieved through collective bargaining by a
majority in an appropriate unit.
It is quite clear to me that this calls for some reasonable-restric-
tions on the activities of minority groups. In the area of industrial
relations as in all fields of human conduct, complete freedom becomes
license, and license leads to anarchy. If any and all combinations of
employees are free to make demands and enforce them by engaging in
work stoppages at will, the superior rights of the majority would be
undermined and industrial peace would give way to industrial chaos-
all in contravention of the spirit and intent of the Act.
I agree that the Board and the courts have gone quite far, perhaps
too far, in holding that minority groups, pursuing their own special
interests, and not acting on behalf of all the employees, have a pro-
tected right to attempt to force their demands upon the employer even
against the interests and wishes of the majority and of their chosen
representative. I would certainly uphold the rights of minorities to
engage in activities looking toward securing majority status,-includ-
ing the right to engage in an organizational strike. I would also pro-
tect the right of a union which has not yet demonstrated its strength
to mount a recognition strike. It is clear to me that Congress intended
to preserve these rights.
But I regard it as quite a different thing to assume that Congress in-
tended that this or that minority group-acting in the interest of an
inappropriate segment of the employees and not even claiming or
looking toward the achievement of majority status in -an appropriate
unit-should have the same rights. The trouble I have with this
concept is that it contemplates resort to self-help by a countless variety
of minority combinations, working not only against the interests of
the majority, but against one another as well. To give so literal and
all-encompassing an interpretation to the term "concerted activities"
as it appears in Section 7 of the Act would lead not to industrial peace
but to industrial chaos instead. The amount of sheer disorder which
can result from encouragement of any and all combinations of minori-
ties, pursuing selfish minority interests, to take matters in their own
hands in this fashion is almost indescribable.
In this case, I think "this group of 18 employees went too far when
they stopped work without permission and demanded that the Em-
ployer immediately yield to their demand as a condition of resuming
work. They did not even walk out of the plant in orderly fashion
and go on strike. Rather, they remained in the plant but refused to
work unless they got their own way.
I regard it as appropriate for the Employer to instruct them to re-
turn to their work places, and upon their refusal, discipline them by
a 2 weeks' suspension from their jobs. This I think lie was'entitled to
do in the interest of-the orderly operation of his•plant, and as a demon-
KEARNEY & TRECKER CORPORATION 1157
stration of his stated desire to maintain a neutral position between
two competing unions, one of which was obviously supporting the
attempt of this particular group to force recognition of their group
status and their group cause. Had the Employer done otherwise, he
might well have been courting a charge of unlawful favoritism under
the Act.
I have already indicated that my view of this case would be different
of it were charged and proved that this Employer was motivated by
a desire to take reprisals against these individuals because of their
membership in or activity for or against 1 of the 2 competing unions.
But, no such charge is made, and the evidence is that the Employer
was attempting to chart a careful course between the two rival organi-
zations while pursuing his legal right to a court review. Short of
granting exclusive recognition to one union or the other, or abandon-
ing the plant to an indefinite period of instability, it is difficult to
conceive of any other course the Employer could reasonably have
pursued.
MEMBER RODGERS, dissenting :
I cannot agree with the majority that the Respondent violated Sec-
tion 8 (a) (1) of the Act in disciplining the seven employees involved
in this case.
In my opinion a true understanding of what transpired or its legal
effect cannot be had without reference to the circumstances existing
at the plant at the time the February 26, 1953, incident occurred. As
the Intermediate Report relates only such background as falls within
the Trial Examiner's theory of the case, and as the majority decision
does not detail the facts of the case, I find it essential to advert to the
complete factual background to show why I am in disagreement with
the conclusions reached by my colleagues.
In 1945, EIU was certified by the Board and recognized by the
Respondent as bargaining agent of its approximately 1,700 employees.
On July 2, 1950, EIU and the Respondent executed a collective-
bargaining agreement for a period of 2 years. On September 10,
1950, at a regular meeting of EIU called for another purpose , a motion
was carried to disaffiliate from EIU's parent union. The officers
thereupon returned the charter and served notice of this action on the
parent organization. But shortly thereafter a number of members
requested a return of the charter, which was done. EIU continued
to function and meetings were regularly held. At a special meeting
on January 21, 1951, another vote was taken which resulted in 68 for
the CIO,-28 for the AFL, and 3 for the EIU. It appeared, however,
that the union membership had no notice that this special meeting was
called for the purpose of voting on affiliation with an international
union . The officers of EIU then applied for a charter from the
1158 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
UAW-CIO and after receiving it became known as Local 1083 of
that International. The assets of EIU were seized by the new Local,
and the Company was notified that all deductions of union dues from
wages should be delivered to treasurer of Local 1083.
On March 9, 1951, Local 1083 requested the Board to amend the
existing certification by substituting its name for that of EIU. The
motion was denied. Local 1083 then filed a representation petition,
and the Board, finding schism, -directed an election with Local 1083
and EIU on the ballot. Local 1083 won and was certified on October
31,, 1951. On November 2, 1951, the Respondent announced that it
wduld suspend recognition of EIU and, pending a determination of
the propriety 'of the election, as to which serious objections were
raised, refused to recognize Local 1083. Thereupon, Local 1083 filed a
charge under Section 8 (a) (5), and after proceedings before the
board, the Board issued a decision finding a violation of Section 8
(a) (5) with the usual remedial provision. On petition for review,
however, the Seventh Circuit 18 held that the certification issued to
Local 1083 was invalid, predicating its determination particularly
upon the activities engaged in by that labor organization prior to
the election. Taking into consideration the seizure of EIU assets,
the possession, control, and use of EIU funds, the "improper use
of the Board's Decision and Direction of Election," the court found
that Local 1083's preelection conduct constituted "coercion, open, di-
rect and no doubt effective." The court concluded by stating,:- -
In view of what we have said and the conclusion we have reached,
we see no occasion to discuss the situation further. Our- study
of this record leaves us with the firm conviction that Local 1083
was conceived under a heavy cloud of suspicion and that its con-
duct was such as to preclude the inalienable right of the employees
to select their bargaining representative in an election free from
coercion and intimidation. In our judgment, the result of the
election should not have been acquiesced in by the Board, and it
should have refused to certify Local 1083 as the bargaining
representative.
With this background, the incident of February 26, 1953, becomes
more understandable. While the proceeding under Section 8 (a) (5)
was being litigated before the Seventh Circuit, some of the employees,
asserted that, despite many explanations, they were nonetheless unabld
to understand the application of the bonus system in effect at the
plant. On February 25, 1953, the employees in the shipping depart-
ment asked, for an appointment with the payroll department for an
explanation of the bonus system. They were told that the Company
' Kearney & Tricker Corporation v. N. L. R. B , 210 F. 2d 852, cert. denied 348 U. S.
824.
KEARNEY & TRECKER CORPORATION 1159
-would explain it to them as individuals, but not as a group, and that
they could go to the personnel office, one at a time, and the company
officials would again go over the bonus formula and show them how
their pay was computed. Clemins and Plichta, officers of Local 1083
and spokesmen for the shipping room employees of that union, re-
fused. .They notified the rest of the men in that department of what
had occurred, and the group decided to meet early the next morning
before going to work at 7 a. in. to determine what course to pursue.
They met shortly after 6: 30 the following morning and decided that
after the 9: 30 a. in. coffee break they would cease work until the Com-
pany agreed to meet with them as a group. This action was carried
out and a total of 18 employees in the shipping department gathered
in the carpenter shop of the plant as prearranged. Dawe, the traffic
manager, thereafter came to see them and asked each of the 18 whether
he wished to return to work. Eleven returned to work and seven
refused. After consultation with other company officials, Dave then
told the seven employees that they would be disciplined for their
conduct. Each was thereafter advised that he was being laid off
without pay for 2 weeks for engaging in the work stoppage.
I deem it most significant, in the light of the history of this case
which reveals, in the words of the Seventh Circuit, "a succession of
events which supply the ammunition for this unfortunate contro-
versy," that the seven complainants were the only ones in the shipping
department known to belong to Local 1083 and the only ones who
refused to return to work when ordered to do so; that Plichta and
Clemins, who were their spokesmen, were officials of Local 1083-
Plichta being one of the trustees and Clemins the Local 1083 shop
steward in the shipping department-and led in the work stoppage
of February 26; that Local 1083 filed the complaint in this proceeding;
that 6 of the 7 complainants received sums of money from Local 1083
during the disciplinary layoff ; and that a few weeks before the inci-
dent of February 26, one of these employees was told by a Local 1083
official that "one or all of us can stop. working right there, and then
ask the foreman what is going to be done about the grievance."
One cannot view this chain of events glibly and in isolation. Was
this really a good-faith action on the part of the employees involved?
Or was it part of the deliberate scheme of Local 1083 to further its
interests at the plant? The Seventh Circuit in discussing one of the
means employed by Local 1083 in the preelection campaign stated that
"The minimum weight which can be given to this incident is that it is
a further indication of the intention of Local 1083 to win the election by
means foul or fair." I cannot but feel that the so-called "grievance"
was nothing more than just another contrivance in the checkered his-
tory of this controversy. As early as 1951', Personnel Manager Kertz
379288-56-vol. 113-74
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spent considerable time with Plichta and Clemins and two other
employees in the group of Local 1083 members in explaining the bonus
formula in great detail. Both advised Kertz at that time that they
fully understood it. Again in the month of January 1953-less than a
few weeks before the February 26 incident-Plichta and Clemins went
over in detail the same subject matter with Foreman Hartfield. Pay-
roll Supervisor Shepard also explained it to them. The collective-
bargaining agreement then in effect in article V, section 1, provided
that: " . . . A grievance, within the meaning of this agreement, is a
claim of an employee, or group of employees, that his, or their, rights
as employees, have been violated by the Company, contrary to the
provisions of this agreement." This definition clearly did not embrace
a request for an explanation, as urged by the Charging Party.
The very controversy itself on February 26 boiled down to a dispute,
not over the bonus formula, but rather over the insistence of the Local
1083 spokesmen and members on a group meeting. It seems to me that
the only reasonable construction one can place on the February 26
incident is that it was but another determined effort on the part of
Local 1083, wholly consistent with its graphically demonstrated
strategy described by the Seventh Circuit in its decision, to break down
the Company's rule not to recognize either labor organization so long
as the controversy over the propriety of the certification of Local 1083
remained undetermined. In view of the Seventh Circuit's decision
branding the certification invalid and setting aside the bargaining
order upon which it was based, no doubt remains that the Company's
position was well taken. Not to see through the stratagem of the Local
1083 group in the action it took on February 26, is to shut our eyes to
the realities of the situation and to place administrative fact finding
on the narrowest of technical planes . I cannot subscribe to such a
deterioration of the administrative process.
Accordingly, for the foregoing reasons , I would find merit in the
Respondent's exceptions, and dismiss the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge having been duly filed and served , a complaint and notice of hearing
thereon having been duly issued and served by the General Counsel of the Na-
tional Labor Relations Board , and an answer having been duly filed by Kearney &
Trecker Corporation (hereinafter called Respondent ), a hearing involving allegations
of unfair labor practices in violation of Section 8 (a) (1) and ( 3) of the National
Labor Relations Act, 61 Stat . 136, was held in Milwaukee , Wisconsin , on December
14 and 15 , 1953, before the duly designated Trial Examiner . In substance , the com-
plaint alleges and the answer denies that on or about February 26, 1953 , Respondent
discriminatorily laid off until March 12, 1953 , seven employees because they had en-
saeed in certain concerted activities and because they had joined or assisted Inter-
national Union , United Automobile , Aircraft and Agricultural Implement Workers
of America, CIO, Local 1083 (hereinafter called the Union ), thereby discouraging
membership in and activities on behalf of the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed by the Act.
At the hearing all parties were represented by counsel and were afforded full op-
KEARNEY, & TRECKER CORPORATION 1161
portunity to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and proposed
findings of fact and conclusions of law. Counsel for all parties waived oral argu-
ment. Briefs have been received and considered from counsel for all parties.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
:.Re'spondent is a Wisconsin corporation with- its principal office and plant in West
Allis, 'Wisconsin, where it is engaged•in the manufacture and sale of milling•machines
and related parts. During 1952 Respondent purchased raw material for use at its
plant of a value in excess of $5,000,000, of which approximately 50 percent was
shipped to it from points outside the State of Wisconsin. During 1952 Respondent
sold finished products of a value in excess of $10,000,000, of which more than 50
percent was shipped by Respondent from its plant to points outside the State of Wis-
consin. Respondent admits, and I find, that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's motion that I take official notice of all facts and findings in a previous
Board hearing and decision, 101 NLRB 1577, involving Respondent and the Union,
was granted. For some years prior to 1951, Respondent's employees had been repre-
sented by the Employees Independent Union (hereinafter called EIU). The
Board had certified EIU as the exclusive representative of Respondent's employees
in 1945. ' On July 2, 1950, a contract between Respondent and EIU was executed.
Around September 10, 1950, a schism occurred in the ranks of Respondent's em-
ployees and a number of them resigned from the Confederated Unions of America,
with which EIU was affiliated. This schism included most of the officers of EIU.
A substantial number of the employees remained loyal to the former organization.
On March 4, 1951, the new group including the majority of the officers of EIU
joined the Union. On April 4, 1951, the Union filed a representation petition with
the Board. During the early months of 1951, Respondent continued to bargain
with EIU. On April 30, 1951, Respondent entered into a supplemental contract
with EIU extending the contract of July 2, 1950, to 1954, and granting certain addi-
tional benefits to the employees. On August 14, 1951, the Board, after a hearing and
overruling Respondent's objections, ordered an election to determine the exclusive
bargaining representative. The election was held on September 12, 1951, at which
time the Union received a majority of the votes. The Board overruled Respondent's
objections to the election and certified the Union as the exclusive bargaining represen-
tative on October 31, 1951. This certification and order was received by Respondent
on November 2, 1951. Thereafter Respondent, because it disagreed with the Board's
action, refused to recognize or deal with either the Union or EIU, but continued uni-
laterally to observe the substantive provisions of the contract as far as possible with-
out recognizing either union. Subsequently a complaint was issued alleging a refusal
to bargain by Respondent, and on December 31, 1952, after a hearing and decision
the Board found Respondent guilty of a refusal to bargain with the Union (101
NLRB 1577). Thereafter Respondent filed an appeal from the Board's decision with
the United States court of appeals, and continued its policy of refusing to recognize
or deal with either union. On February 26, 1954, after the hearing in the present
case, the Court of Appeals for the Seventh Circuit reversed the decision of the Board
and dismissed the former case.
B. Chronology of events
Substantially all of the facts, with minor variations as to some of the details, are
undisputed. The sole issue in this case is narrow and clear: whether Respondent
was justified, or on the contrary violated the Act, in disciplining certain employees
for engaging in concerted activities on February 26, 1953.
Sometime during the years 1936 to 1939, Respondent introduced into its plant
a wage system known as the Halsey 50-50 group incentive plan. However, Harold
Langlois, Respondent 's wage administrator , testified that this group incentive plan11
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not adopted in the shipping department until the summer of 1951 after approves,
by the Wage Stabilization Board . Shortly thereafter Respondent 's employees in the
shipping department began to complain to Respondent that ' they did not under-
stand how their bonus pay was computed and why it varied from week to week.
,Pursuant to Respondent 's decision not to recognize or deal with either union after it
had received the Board's certification of the Union as the exclusive representative of
its employees on November 2, 1951, and its further decision to continue unilaterally
the substantive provisions of the contract entered into with EIU, Respondent took
steps to so notify its employees. Respondent offered and there were received in
evidence three letters from it to its employees dated March 21, April 7, and July
2, 1952, in which these matters were discussed, and which according to the record
constituted Respondent 's notice to its employees.. of, this decision. In the letter, of
March 21, Respondent advised its employees:
Because of the litigation now pending to test the certification of a collective
bargaining representative of your unit by the National Labor Relations Board
on October 31, 1951, your company is, as you know, not recognizing either
union involved in the dispute.
In the meantime, the company's position concerning its labor relations with
you is that it will continue to deal in hours, wages and working conditions along
the same lines provided for in the contract which the company now has with
the Employees' Independent Union.
If there is any question in your mind concerning grievances, you should'
know that we are handling them on an individual basis, following the pro-
cedure which is set forth in the contract-except that there is no union recogni-
tion involved. If you have a grievance, you may, as an individual, present
it orally to your foreman, as you have in the past, or on forms which will be
furnished to you by him.
In its letter of April 7, which dealt primarily with a certain wage increase authorized
by the Wage Stabilization Board, Respondent also advised its employees:
This is an appropriate time to repeat that in regard to other aspects of our
labor relations, we will continue to deal in hours, wages and working condi-
tions along the same lines that we have in our existing contracts.
In the letter of July 2, which again dealt primarily with Wage Stabilization Board
approval for a pending wage increase , Respondent also advised its employees:
The company's position in the current labor dispute is clear and has been
often stated to you-namely , it will not meet or negotiate with any union until
the present case between the company and the National Labor Relations Board
is settled, if necessary, through a hearing and review before a U. S. Court.
In the meantime, however, we repeat, the company will continue iii'its'labor
relations to observe the terms and conditions of existing contracts as they
apply to hours, wages and working conditions.
The foregoing quotations are set forth because Respondent contended that they
also constituted notice to the employees that they could not present grievances to
Respondent in groups, because Respondent had decided not to recognize or deal with
either union.
Although Respondent also contended that the disciplined employees did not
have a legitimate or bona fide grievance concerning the Halsey 50-50 group in-
centive plan or, more particularly, the method of computation of their bonus,
and were in fact only attempting to harass Respondent into recognizing the Union,
the record establishes beyond dispute that the employees in the shipping depart-
ment did not understand the method of computation of their bonus and had a
legitimate and continuing complaint concerning it almost from the time of its adop-
tion in the summer of 1951. Although Respondent made some attempt to prove
that the employees in the shipping department understood, or should have under-
stood, the method of computation of their bonus pay because of certain pay slips
furnished to the employees when they were paid, the testimony of Respondent's
own witnesses , as well as that of the seven employees disciplinarily laid off, estab-
lishes beyond question that the employees in the shipping department did not in
fact understand how their bonus pay was computed. The record reveals clearly that
the Halsey 50-50 group incentive plan is an extremely complicated and complex
system of computing upon a group basis an incentive bonus for work performed.
Although it is not essential to this case , some of the factors involved in the Halsey
method of bonus computation include the fixing of a job rate for the individual em-
ployee , the fixing of a Halsey rate for the work performed , the fixing of standards
for the performance of particular jobs in terms of hours, so that the production of a-
KEARNEY & TRECKER CORPORATION 1-163
group can be translated into'hours of production in excess of hours worked based
upon the amount produced, the computation of a bonus on a group basis by
dividing the excess of the hours produced from the hours worked by two and multi-;
plying by the Halsey rate, a separate calculation of nonrated work and a bonus
thereon based upon a percentage arrived at from an involved formula using certain
payroll data from 2 weeks prior to the week of the computation, and a computation
of an indirect bonus based upon hours worked on indirect labor for bonus. An
examination of the record establishes that the method of computation of the Halsey
group incentive bonus is both difficult to understand and to explain.
During the period of time after the adoption of the plan in. the shipping depart-
ment and up to the incident of February 26, 1953, the employees in that depart-
ment at various times complained to Respondent that they were unable to under-
stand how their bonus pay was computed and wanted to have it explained so that
they could understand it from week to week. While the employees were furnished
with payroll slips which contained the dollar and hour computations, the testimony
of Respondent's witnesses as well as that of the employees reveals that from such
information they were unable to ascertain how their bonus pay was computed.
Langlois admitted that when the employees received such payroll slips questions
frequently arose as to the computation of the bonus and its correctness. Rudolph
Kertz, Respondent's personnel manager, said that shortly after the adoption of the
plan in the shipping department in 1951, four of the employees from the shipping
department saw him with regard to their complaint about determining how the
bonus was computed. He also said that Adolph Hartfield, foreman of the shipping
department, advised the personnel office periodically that the employees in the
shipping department were complaining about not understanding how their bonus
was computed. James Shephard, Respondent's payroll supervisor, testified that in
1951 several employees came to his office seeking an explanation of how the
bonus pay was computed. Both he and Kertz said that in 1951 they explained
the computation to the employees. Kertz said that after his explanation in 1951,
Stephen Clemins and John Plichta, Jr., 2 of the 7 employees involved in this case,
advised him that they then understood the method of computation. However, it
is clear from the record that neither they nor the rest of the employees in the
shipping department at any time understood the involved method of computation
of the bonus pay. All seven of the employees involved testified that they did not
understand how their bonus was computed. Clemins testified that during the latter
part-of 1952 and the first 2 months of 1953, the employees had a grievance about
not understanding the bonus computation, that he had spoken about it to Hart-
field and Harold Dawe, Respondent's traffic manager, and that Clemins had never
been able to understand it himself. Clemins was the steward of the Union and
apparently one of the leaders and spokesmen of the employees in the shipping de-
partment. Plichta, another leader and spokesman of the group, testified that he
talked to Hartfield about it from time to time but that Plichta never received an
explanation that he could understand. Both Plichta and Clemins said that while
Hartfield told them that he was doing the best he could, he was not able to explain
it so that the men could understand it. James Landolt and Aloysius Hermann,
another 2 of the 7 employees involved, also said they spoke to Hartfield about the
computation and he was unable to explain it to them. The pay slips furnished
to the employees with their pay contained only the arithmetical result and no ex-
planation of how the bonus was computed.
Langlois testified concerning, and there was received in evidence, a set of in-
structions, called a supervisory reference sheet, explaining the computation of the
Halsey incentive bonus. - This exhibit contained 3 pages and 30 specific steps in
an explanation of the computation of the pay, and in turn referred to another
schedule necessary to compute the Halsey and job rates, which schedule was not
a part of the exhibit and was not offered or received in evidence . It constituted a
point-by-point explanation of the data contained on the payroll slips. Langlois
explained that this set of instructions was furnished to the supervisors in order that
they might be able to explain to the employees how the bonus was computed. He
also testified that such instruction sheets were not given to the employees, that
'the supervisors were instructed to explain the computation to the men , and that
in order to understand the computations on the payroll slips it was necessary to
have the set of instructions. He did testify that in his opinion an explanation of
the method of computation by him to a group would - in most instances clarify the
method of computation to them. The testimony and the exhibit itself establishes
that it was not in existence in 1951 when Kertz and Shephard attempted to explain
to some of the employees in the shipping department how the bonus was computed.
Dawe said that the material necessary to compute the bonus was very voluminous,
1164 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
because many bonus tickets were made out in connection with every job done.
Hartfield admitted that a number of the employees had from time to time asked
him about the computation of their bonus and complained that they could not
understand it. He said that he tried to explain it to them to the best of his ability
but admitted that he did not use the supervisory instruction sheet which Langlotis
testified was, furnished to all supervisors to assist in such explanations. Hartfield
said that he used no papers in trying to explain the computation to his employees.'
It is apparent from the record and the testimony of all of the employees concerned
that Hartfield at no time was able to explain to them the method of computation
of the bonus so that they could understand it. The Halsey plan is so complex that
I seriously doubt whether Hartfield could explain it, and if he could, that the
employees could understand it. Hartfield did not deny Clemins' testimony that
Hartfield had nothing in his office with which to explain the plan to the men, nor
the testimony of several of the employees that Hartfield was unable to explain
the computation. The amount of bonus varied from week to week, not necessarily
in relation to the hours worked but rather to other factors, and hence the employees
did not understand it and frequently complained about it.
In addition to the grievance concerning the method of computation of the in-
centive bonus, proof was received concerning two written grievances filed through
the Union by the employees, which proved to be irrelevant because they dealt with
another matter entirely. They were dated July 9, 1952,' and January 27, 1953,
and concerned the rate of pay for the loading of boxcars in the shipping depart-
ment. It developed that this was a separate matter unrelated to the grievance
concerning the incentive bonus. Kertz testified that they dealt with a different
matter than the computation of the bonus, and accordingly no further discussion
of them is necessary herein.
On February 25, 1953, Clemins spoke to Hartfield and requested him to arrange
an appointment with Respondent's payroll department to explain to the ship-
ping department employees the method of computation of the bonus pay. Hart-
field said that he would arrange the appointment. Later the same day shortly be-
fore noon Hartfield advised Clemins that Respondent had decided the employees
could come up to the payroll department for an explanation of the computation,
but that they could come only one at a time, and Respondent would not receive at the
same time two employees or any larger group for such an explanation. Plichta
in substance corroborated this testimony. He said that around 11:30 a. in. he
spoke to Hartfield about going up to the office, and that Hartfield said he would
make the appointment and that Plichta could take someone with him. Plichta said
that Hartfield again told him that Respondent was working on the complaint con-
cerning the bonus However after lunch when Hartfield advised Plichta that the
appointment had been made, Hartfield informed him that he would have to go
alone and could not take Clemins or anyone else from the department with him.
Clemins testified that the employees wanted to secure the material or data necessary
to compute the bonus payments. According to Clemins and Plichta, the employees
in the shipping department had decided to request an audience in a group to secure
an explanation of how the bonus was computed and were -unwilling to go to the
office individually because some of the,men in the group were not well educated'
and might not understand Respondent's records and explanations, and one of them
could not read or write.
Hartfield admitted that on the morning of February 25, as well as an occasion
several weeks prior thereto, the employees in the shipping department, particularly
Clemins and Plichta, wanted to know how their bonus was computed and asked
him to make an appointment with the office for the employees to have it explained.
Hartfield said that he complied with their request and made the appointment with
Kertz. However, Hartfield was instructed by Kertz to advise the employees that they
would be received individually but not as a group. Hartfield said he so told Plichta
and Plichta refused to go alone. Hartfield said that thereafter he spoke to Clemins,
that Clemins and Plichta wanted to go together, that he told Clemins that they
would have to go alone and thereupon Clemens also refused. Hartfield said that
he told them that was all he could do for them. According to Plichta, the rest of
the men in the shipping department were told about Respondent's refusal to meet
with and explain the bonus computation to them as a group, and they decided to
meet early the next morning before going to work at 7 a. in. to reach a decision as
to what course of action to pursue. The men in the department met shortly after.
6:30 a. m. the following morning. They decided that after the coffee break in their,
department at 9:30 a. in., they would cease working until Respondent agreed to
meet-with) themand ^explain• the method of computing their incentive bonus. All oft
the-employees in'the'deparfinent mutually agreed°to follow that course of.action.-
0
KEARNEY & TRECKER CORPORATION 1165
They decided to ask Hartfield to request someone from Respondent's office to come
down to the shipping department to explain to the employees how the bonus was
computed. Respondent had a regular coffee or luncheon break from 9:25 to
9:30 a. m., at which time most of the employees in the shipping department gathered
in a portion thereof known as the carpenter shop and drank their coffee. A few of
them as usual remained at the benches where-they worked instead of joining the
majority in the carpenter shop. Hartfield, whose office was adjacent to the carpenter
shop, could see into it. At 9:30, after the whistle to return to work blew, the few
employees who had not taken their break in the carpenter shop joined the others,
there, and none of them returned to work. Clemins then went to Hartfield's office
to ask him to get somebody from the payroll or personnel department to come down
and explain to the men how their bonus pay was computed. At approximately the
same time Hartfield, having observed that the men had not returned to their work
when the 9:30 whistle blew, started to the carpenter shop to find out why they had
not. Clemins and he met at or near the entrance to Hartfield's office, and together
proceded to the carpenter shop where the other employees were gathered. Clemins
told Hartfield that the men had decided that because Respondent would not meet
with them about their grievance concerning the bonus pay, they wanted him to
request some official to come down to the department to explain the bonus pay to
them, and they were not going to return to work until their grievance was con-
sidered by Respondent. Hartfield replied that he would comply with their request.
He returned to his office and called the payroll department in an attempt to get
somebody to come down and explain the bonus computation to the shipping depart-
ment employees. Hartfield said that he called Kertz in response to this request of
the.striking employees. The employees saw Hartfield use his telephone but were
not able to hear the conversation. Hartfield returned to the carpenter shop, said
that no one was available at the time to come down to the department to explain
the computation, and that the men might as well return to work. At that point
Plichta suggested to Hartfield that he call again, try to make an appointment with
some official for the afternoon, that the men would then return to work, and they
could meet on the explanation of the bonus in the afternoon. Hartfield said that was
agreeable and returned to his office to call again.
Hartfield, according to the employees, was in his office making the second call
when Dawe arrived in the shipping.department. Dawe called Hartfield out of his
office and into the carpenter shop. Dawe spoke to each man in turn and asked him
directly, "Do you want to work9" There were 18 employees in the shipping de-
partment all gathered in the carpenter shop at the time. The first several replied,
"Yes," were instructed to return to work, and did so. Seven of the employees either
replied, "No," or indicated in some manner to Dawe that they were unwilling to
return to work until their. grievance was settled. As each of them did so Dawe
instructed Hartfield to punch out the card of that employee on the time clock in
the carpenter shop. Hartfield did this. Eleven of the employees returned to work
and seven of them refused to do so. They were Clemins, Plichta, James Landolt,
Milton Greyling, Aloysius Hermann, Frank L. Knabe, and Edward Karjala. Some
of the employees, particularly Clemins and Plichta, remonstrated with Dawe when
asked the direct question, "Do you want to work," and advised him that they wanted
to settle their grievance and were not engaging in a sitdown strike, but Dawe refused
to hear them on the subject and ordered their cards punched out immediately.
Dawe admitted this with respect to 'Plrchta. Dawe told the seven employees who
had refused to return to work to wait in the carpenter shop until he returned. Dawe
went to the offices of Respondent where he and other officials of Respondent decided
that they would discipline the employees for refusing to return to work by laying
them off for 2 weeks without pay.
Andrew Wilson, Respondent's director of industrial relations, testified that Dawe
was instructed to tell the employees that they were being laid off because (1) they
had refused to obey the orders of their supervisor to return to work, (2) they had
engaged in a strike, and (3) they had failed to follow the announced and proper
grievance procedure Dawe returned to the shipping department about 11 a. m.
and had each of the seven employees sent in to him individually. Dawe advised
each employee that he was being laid off without pay for 2 weeks for engaging in
the conduct previously described. The employees were reinstated on March 12,
1953, and were not paid for the 2 weeks during which they were laid off.
All of the seven employees who were laid off in substance corroborated the fore-
going sequence of events on February 26. Hartfield contended that, after he saw
that the men in the carpenter shop had not returned to work at 9:30, he went out.
there and, nobody came to the office for him., However the seven employees agreed
that Clemins went to the office for Hartfield, and Tallar, Hartfield 's assistant who was:.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called by Respondent, said that as Hartfield walked out of the office Clemins ap-
proached the office and they met in the passageway just outside the office door.
According to Tallar they both started towards each other at about the same time.
Hartfield admitted that when he started out to the carpenter shop Clemins was walk-
ing toward the office at the same time. Hartfield admitted Clemins' request on
behalf of the shipping department employees to have someone from the office'explain
the bonus computation to them, and that Hartfield complied with it. According to
Hartfield, on 3 or 4 occasions when he was in the carpenter shop between various
phone calls he made from his office, he told the employees to return to work., A
preponderance of the credible evidence in the entire record convinces me and I find
that the only occasion when the subject of returning to work was mentioned by
Hartfield was after his first call, when he returned to the carpenter shop, told the
men that he couldn't get anyone to come down at that time, and then said that they
might as well return to work. Hartfield testified that after his first call he told the
men at Kertz' instruction that they could not go up to the office in a group because
it was against Respondent's rules. Why this statement was made is not clear, inas-
much as it is undisputed that the men then were not asking to go to the office in a
group or in any other manner, but were requesting Respondent to send some official
down to the shipping department to explain the bonus computation to them. "Hart-
field admitted that after he conveyed this message to the employees, he complied
with their second request that he try to arrange a meeting at a later time and again
called Kertz. Hartfield said that on the second occasion because he couldn't reach
Kertz he called Langlois. According to Hartfield, Langlois also advised him that
the employees could not come up to the office in a group but could come up
individually, and he returned to them and so told them. I do not find this credible,
although it may well be, in view of Respondent's policy, that Hartfield advised the
employees that Respondent would not meet with them in a group . At the time
there was no request from the employees to go up to the office. According to
Hartfield, after his second message to the assembled employees, he then called Dawe,
who said he would come right down and to tell them to return to work. Hartfield
admitted, and it is undisputed in the record, that neither he nor Dawe ever told the
employees to either go back to work or leave the plant. Hartfield said that he told
the employees that Dawe would speak to them about their bonus problem. This is
contrary to the testimony of not only the employees who were laid off but also that
of Dawe, who said that Hartfield had not asked him to speak to the men about their
grievance. Dawe said that Hartfield told him the men were in the carpenter shop
and would not return to work, and that Dawe told Hartfield he would be right down
and to tell them to return to work. There is no dispute that the men had a right to
be in the carpenter shop and had a regular practice of taking their coffee break there.
Dawe in substance corroborated the testimony of the laid-off employees. He said
that after Hartfield called him he went down to the department in a few minutes,
asked Hartfield to go with him into the carpenter shop after advising Hartfield that
it was contrary to Respondent's practice to discuss a grievance with the men in a
group, and that when he entered the carpenter shop he asked each employee in-
dividually if he wanted to go back to work. Dawe also said that when any em-
ployee said "No" or attempted to discuss the grievance with him and did not reply
"Yes" to his question, he advised Hartfield to punch out his card. Dawe told the
seven men to wait and they did so. Dawe testified that he returned to the depart-
ment in about 45 minutes, called each of the men into Hartfield's office individually,
and told each that he was being laid off for 2 weeks without pay as discipline for
not obeying the supervisor's orders to return to work, engaging in a sitdown strike,
and failing to follow Respondent's standard grievance procedure. Dawe admitted
that the reason the employees were laid off was because they had refused to return
to work.
Upon this record, it is undisputed and in substance admitted that Respondent
disciplinarily laid off the seven employees for engaging in concerted activities in
support of their grievance concerning the method of computation of Respondent's
incentive bonus. There can be no question but that Respondent's shipping depart-
ment employees were engaging in concerted activities with respect to their wages and
working conditions, and that Respondent disciplined them for doing so. Respondent
advances several reasons why its conduct is not violative of the Act, which more or
less coincide with the three reasons determined upon by Respondent and furnished
to Dawe at the time of the layoff . Respondent relies upon its adoption of a policy
not to recognize or deal with either union after the Board's certification of the
Union in 1951 as a justification for its alleged rule against meeting with employees
in a group upon grievances . Respondent contends that because of this policy of
KEARNEY & TRECKER CORPORATION 1167
not recognizing or dealing with either union, it decided that all- grievances would
have to be processed-by each employee individually, that to meet with any group of
employees concerning grievances would amount to recognizing or dealing with one
of the unions, and that it had so announced this policy and decision, to its employees.
This is incorrect in two respects. In the first place, I am unable to perceive in.what
.manner meeting with employees in groups of two or more concerning grievances
would in any way constitute recognition of or dealing with either of the unions.
Any group of employees with a grievance might be composed of members of one
union, members of the other union, members of both unions, or members of neither.
There is no logical basis for Respondent's contention that to deal with employees in
groups concerning their grievances would or could constitute dealing with or recog-
nizing either union. Obviously, if Respondent dealt with one of the unions concern-
ing the grievance of a group of employees, that might well constitute recognition of
or dealing with that particular union, but such cannot be equated with dealing with
any group of employees which might have a grievance. In effect, Respondent's con-
tention is that it adopted a rule prohibiting employees from processing grievances in
a group, because Respondent as a matter of policy had decided not to deal with or
recognize either union. Such a rule, even if it had been adopted and conveyed to
the employees, could not constitute a defense in view of the specific provisions of
the Act guaranteeing to employees the right to "engage in concerted activities for
the purpose of collective bargaining or other mutual aid and protection." Respond-
ent cannot, by the simple expedient of adopting a rule or policy, prohibit employees
from exercising rights guaranteed by the Act. It follows therefore, that in disciplining
the employees for violating such a policy or rule, Respondent was disciplining them
for exercising a right guaranteed by the Act.
The second reason why this particular position or defense of Respondent is incor-
rect is established by the facts introduced by Respondent itself concerning the policy
and rule. Respondent contended that it had adopted this rule prohibiting any group
of employees from presenting grievances to it in conformity with its policy of non-
recognition of either union, and had by its letters sent to the employees notified them
of its rule against grievances by any group of employees. Instead of establishing
that Respondent had notified its employees that they could not process grievances
with Respondent in groups, on the contrary the letters sent to the employees, together
with their reference to the provisions of the contract concerning grievances, establish
that the employees were advised that they could present grievances to Respondent in
groups. The pertinent portions of the three letters to the employees concerning this
matter have been quoted above. The first letter, dated March 21, 1952, advised
the employees of Respondent's policy of not recognizing either union. With respect
to grievances the letter informed the employees that Respondent was handling them
on an individual basis, following the procedure which is set forth in the contract,
except that there is no union recognition involved. The letter of April 7, 1952, re-
iterated to the employees that Respondent would continue to deal in hours, wages,
and working conditions along the same lines that it had in its existing contracts. The
letter of July 2, 1952, in substance repeated the same thing. Section 2 of article 5 of
the contract referred to by Respondent provides as follows:
It is understood that any individual employee, or group of employees, shall have
the right to present grievances to the Company, and to have such grievances
adjusted without the intervention of the Union or Union representatives, if the
adjustment is not inconsistent with the terms of this agreement , and that the
Union has been given an opportunity to have a representative present at such
adjustment . [ Emphasis supplied.]
It will be noted that this provision is substantially similar to the proviso to Section 9
(a) of the Act, which reads:
Provided, That any individual employee or a group of employees shall have the
right at any time to present grievances to their employer and to have such griev-
ances adjusted , without the intervention of the bargaining representative, as
long as the adjustment is not inconsistent with the terms of a collective bargain-
ing contract or agreement then in effect: Provided further, That the bargaining
representative has been given opportunity to be present at such adjustment.
By its letters of March 21, April 7, and July 2, 1952, Respondent , instead of advising
its employees that they could not present grievances in groups , actually informed them
that the grievance procedure , except with respect to union recognition , would be that
set forth in the contract. Three times Respondent reiterated that it would continue
to deal with the employees along the same lines set forth in the contract . The pro-
vision in the contract gives groups of employees the right to present grievances to
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent. While, as stated above , Respondent cannot prohibit rights guaranteed
by the Act by the adoption of rules, actually the facts establish that the employees
involved here did not violate the procedure adopted by Respondent and conveyed to
them by its letters , in presenting their grievance to Respondent as a group.
In addition to the foregoing defense, which was one of the reasons adopted by Re-
spondent and conveyed to the employees at the time of the layoff, counsel for Re-
spondent in their brief also contend that the employees did not in fact have a genuine
or bona fide grievance , and in fact had no grievance within the meaning of that term.
I have discussed the evidence in the record which establishes that for many months
prior to February 26, 1953, the employees in the shipping department had a grievance
concerning the method of computation of their bonus pay and had frequently pre-
sented this grievance to various officials of Respondent. Respondent's brief concedes
that the employees had made numerous complaints for 18 to 24 months concerning
this method of computation and had taken it up with Respondent upon various oc-
casions, including February 25 and 26, 1953, that the computation was complex and
the employees did not understand it, and in fact states, in connection with this very
contention, that the employees did not understand the formula by which their pay
was computed and were unable to understand the fluctuations in the amount of their
bonus that took place from week to week. That this complaint of the employees con-
stituted a grievance as that term is used in the Act seems too clear to require ex-
tended discussion. Webster refers to a grievance as, among other things, a com-
plaint. For a rather complete collection of authorities concerning the definition of
a grievance, the reader is referred to the Board's decision in the Bethlehem Steel
Company case,' which in turn refers to a Supreme Court decision? In both cases
it is pointed out that a grievance may involve matters not specifically included within
the provisions of the contract. In support of their contention that this complaint
of the employees was not actually a grievance, counsel for Respondent refer to sec-
tion 1 of article 5 of the contract, which provides:
A "grievance," within the meaning of this agreement, is a claim of an employee,
or group of employees, that his, or their, rights as employees, have been violated
by the Company, contrary to the provisions of this agreement
As previously noted, the definition of a grievance within the meaning of the Act is
considerably broader than the contractual provision above quoted, according to both
the Board and the Supreme Court. In fact, in the Bethlehem Steel Company case,
.supra, a footnote at page 344 refers to types of grievances and specifically includes
the particular type of grievance in this case. It states: "Grievances may relate
to . . . the operation of an incentive system and countless other measures."
Respondent cannot, by the unilateral observance of a contract to which these
'employees are not a party, limit the definition of a grievance to something less than
the meaning of that term as used in the Act. Even within the definition contained
in Respondent's contract, the employees clearly had a complaint concerning the
method of computation of their incentive pay, which was covered by a provision of
the contract. Counsel for Respondent make the rather ingenious argument that the
employees were not complaining that Respondent had violated any of the provisions
of the agreement because they were not contending that the computation of the pay
was incorrect or that Respondent had done anything wrong. Obviously, employees
who are unable to understand the method by which their pay is computed and are
not furnished the information for the basis of the computation are in no position to
contend that any mistakes have been made in such computation. It is for this
very reason that the employees sought the information, because they were unable
to understand the fluctuation from week to week in the incentive pay they received.
It seems quite clear that this was a grievance concerning their wages, a condition of
employment covered by a provision of Respondent's contract. Respondent's con-
tention that the employees' complaint was not a grievance within -the meaning of
that term is also inconsistent with one of its stated reasons for disciplining the
-employees: namely, that they had failed to process their grievance in the proper
manner established by Respondent, i. e., had attempted to process their grievance as
a group. If this was not a grievance, then the employees could not have violated
Respondent's alleged rule prohibiting the processing of grievances in a group.
Respondent, by discharging the employees for improperly processing their grievance
in a manner contrary to Respondent's policy, admitted that the employees had a
grievance.
1 Bethlehem Steel Company, 89 NLRB 341.
2 Elgin, Joliet and Eastern Railway v Burley, 325 U. S. 711.
KEARNEY & TRECKER CORPORATION 1169
Respondent 's second reason for disciplining the employees was that they had
refused to return to work when ordered to do so by their supervisor. This contention
merely begs the question. Obviously, if the employees were engaging in a concerted
activity protected by the Act, Respondent had no right to discipline them for violating
an order to cease doing so. There is no difference between discriminating against
employees for engaging in activities protected by the Act, and discriminating against
employees for violating an order to cease engaging in such protected activity. If
there were , Respondent could, for example, order its employees not to join a union,
and then after they had joined a union , discharge them for insubordination and
refusing to obey its orders. As in the case of the first reason discussed above,
Respondent cannot deprive employees of rights guaranteed them in the Act either by
adopting a policy or rule prohibiting such activities, or by ordering its employees to
cease engaging in such activities.
The third and final reason advanced by Respondent in defense of its action with
respect to the employees was that they had engaged in a sitdown or illegal strike,
and therefore their concerted activities were unprotected and they could be disciplined
for engaging in them. Contrary to its other reasons , Respondent's premise here is
correct. If the employees were engaging in illegal or unprotected concerted activities,
Respondent could discharge or discipline them for so doing. However, this record
clearly establishes that the employees were engaging in peaceful concerted activities,
a right guaranteed and protected by the Act. There is no evidence in the record to
support the contention that this was an illegal sitdown strike. At no time did Respond-
ent ever request or order the employees to either leave the premises or return to
work, and in fact Dawe ordered them to remain on the premises and wait for his
return, which they did. There was no unauthorized seizure of Respondent 's premises
,or refusal to yield them to Respondent upon demand. The essential elements which
make a sitdown strike illegal and unprotected are not present in this case . Respond-
ent, however, relies primarily upon its contention that the strike' was illegal and
unprotected because of the provisions of section 111.06 (2) of the Wisconsin statutes.
Subsection (h) thereof provides:
It shall be an unfair labor practice for an employee individually or in concert with
others to take unauthorized possession of property of the employer or to engage
in any concerted effort to interfere with production except by leaving the premises
in an orderly manner for the purpose of going on strike.
Respondent contends that the concerted activities of the employees on February
26 interfered with its production and, because they did not consist of leaving the
premises in an orderly manner for the purpose of going on strike, are prohibited by
the Wisconsin statute and therefore are unprotected concerted activities. It must now
be considered well settled by the Supreme Court that States may not by legislation
prohibit concerted activities protected or prohibited by the Act.3 These cases clearly
establish that because Congress, in the exercise of its commerce power, has pro-
tected the right to engage in peaceful concerted activities, State laws or action pro-
hibiting such concerted activities conflict with the Federal Act and must yield to it
because of the supremacy-clause of the Constitution. It is of course true that certain
concerted activities are unprotected by the Act. In such cases the States may pro-
hiliit such conduct, because the prohibition is then not in conflict with the Federal
Act .4 Where the concerted activities are neither protected nor prohibited by the
Federal Act then the States are free to act because legislation concerning such ac-
tivities would not conflict with the Federal Act. It is now well established that certain
concerted activities, such as sitdown strikes, intermittent work stoppages, slowdowns,
strikes in violation of contracts, and others, are unprotected and in certain circum-
QHill v Florida, 325 U S 538 (1945) ; Bethlehem Steel Company v. New York Board,
330 U. S 767 (1947) , La Crosse Telephone Corporation v. Wisconsin Employment Rela-
tions Board, 336 U. S 18 (1949) ; Plankinton Packing Company v. Wisconsin Employ-
ment Relations Board. 338 U S 953 (1950) ; United Automobile Workers v. O'Brien, 339
U S. 454 (1950) , Electric Railicay Bus Employees v Wisconsin Employment Relations
Board, 340 U. S. 383 (1951) ; Garner v Teamsters Union, 346 U. S. 485 (1953) , and
Building Trades Council v. Kinard Construction Company, 346 U. S. 933 (1954)
'Allen Bradley Local v. Wisconsin Employment Relations Board, 315 U. S 740 (1942)
UAW, AFL, v. Wisconsin Employment Relations Board, 336 U. S. 245 (1949) ; Algoma
Plywood v Wisconsin Employment Relations Board, 336 U 9 301 (1949)
1170 DECISIONS. OF,-NATIONAL LABOR RELATIONS BOARD
:stances ;State legislation prohibiting such conduct does not conflict with the Federal
Act. However, regardless of the existence of State legislation, employees who engage
in such unprotected concerted activities are not protected-by the Act and may be
discharged or disciplined by the employer, with or without the existence of a State
act prohibiting such conduct. Section 7 of the Act guarantees employees the right
to engage in concerted activities, and as long as these activities are peaceful and have
not been found to be unprotected by either the Board or the Federal courts, em-
ployers may not discriminate against employees for engaging in them, nor may
State legislation prohibit such activities. Here the employees were engaging in a
peaceful and traditional form of concerted activity because of Respondent's refusal
to process their grievance, a right given them by the Act. If the Wisconsin statute
relied upon by Respondent prohibits conduct of this nature which has never been held
by the Board or Federal courts to be unprotected, it conflicts with the Federal Act,
and is pointed out by the Supreme Court in the recent Garner case and the other
cases referred to above, cannot stand in view of the supremacy clause. Other pro-
visions of this same Wisconsin statute have been found by the Supreme Court to
conflict with the Federal Act and hence to be unconstitutional. In the UAW-AFL
case, supra, relied upon by Respondent, the employees were engaging in intermittent
work stoppages, a form of concerted activity found to be unprotected by the Federal
Act, and hence the Wisconsin Act prohibiting such conduct was found not to interfere
with the Federal Act. The court pointed out that previous decisions of the Board
and the Federal courts had established such conduct to be an unprotected con-
certed activity. The vice of Respondent's contention is apparent. If States are per-
mitted to prohibit concerted activities guaranteed by the Federal Act, those guaran-
tees have been rendered meaningless. Numerous decisions of the Board and the
courts have found concerted activities of the type here engaged in by the employees
to be protected 5
A final argument made by Respondent is that this strike was not a protected con-
certed activity because it was planned rather than 'spontaneous. While it is undis-
puted in the record that the strike was "planned," and had been decided upon by the
employees that morning shortly before they started to work, Respondent's conten-
tion is without metit. A protected concerted activity is not rendered any less pro-
tected because it is planned rather than spontaneous. If this were true, substantially
all strikes, and particularly economic strikes, would be unprotected concerted ac-
tivities because they are normally planned or decided upon by the employees in
advance of their occurrence. Nothing in the guarantees of Section 7 concerning the
right to engage in concerted activities limits such right to spontaneous as distinguished
from planned activities. Respondent misconstrues the meaning of the cases upon
which it relies. In those cases planned activities such as intermittent work stoppages,
slowdowns, and refusals to work overtime, were found to be unprotected because
of the nature of the concerted activities involved. In such situations, the question of
whether the concerted activity was planned or spontaneous is necessarily important.
Naturally, if employees plan to engage in unprotected or illegal concerted activities,
they are not entitled to the protection of the Act when they do so, as the Board and
the courts have frequently held. However, when employees engage in a pro-
tected concerted activity, which has been found to be such by both the Board
and the courts on many occasions, the fact that they planned to engage in such
activity can have no bearing upon the fact that the activity is a right protected by
Section 7 of the Act.
A preponderance of the credible evidence in the entire record convinces me, and
I find, that Respondent discriminatorily laid off Clemins, Plichta, Landolt, Greyling,
Hermann, Knabe, and Karjala because of their concerted activities, thereby discrim-
inating against them in regard to their hire and tenure of employment and inter-
fering with, restraining, and coercing its employees in violation of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It has been found that Re-
spondent discriminatorily laid off Clemins, Plichta, Landolt, Greyling, Hermann,
Knabe, and Karjala. For the reasons pointed out by the Board in the Cowles,
6 See, for example, N L. R. B. v. Southern Silk Mills, Inc., 209 F 2d 155 (C. A '6) ;
Southern Oxygen Company, Inc., 107 NLRB 894, and cases cited in both ; and Mac Smith
Garment Company, Inc., 107 NLRB 84.
K.EARNEY & TRECKER CORPORATION 1-171
Mac Smith,, and, Southern Oxygen cases,6 it is unnecessary to decide whether or not
this conduct was violative of Section 8 (a) ^ (3) of the Act, inasmuch as I'find that it
violated Section 8 (a) (1) of .the Act, and the remedy necessary to effectuate the
policy of the Act is identical in either case. I shall therefore recommend that
Respondent make Clemins, Plichta, Landolt, Greyling, Hermann,_ Knabe, and
Karjala whole for any loss of earnings they may have suffered by reason of the
discrimination against them, by payment to each of them of a sum of money equal
to that which he normally would have earned as wages from February 26 to March
12, 1953, less his net earnings during such period.? The back pay shall be computed
in the manner established by the Board and Respondent upon request shall make
available to the Board payroll and other records to facilitate the checking of the
amount due.8
The character and scope of the unfair labor practices engaged in indicate an intent
to defeat self-organization of the employees. I shall therefore recommend that
Respondent cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed by the Act?
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By discriminating in regard to the hire and tenure of the seven above-named
employees because they engaged in concerted activities for their mutual aid or pro-
tection, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
6 Cowles Publishing Company, 106 NLRB 801 ; Mao Smith Garment Company, Inc., 107
NLRB 84, and Southern Oxygen Company, Inc, 107 NLRB 894
7 Crossett Lumber Company, 8 NLRB 440.
"F W Woolworth Company, 90 NLRB 289
Y May Department Stores v N. L R B , 326 U. S. 376
APPENDIX A
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT lay off without pay or otherwise discriminate against our em-
ployees for engaging in concerted activities for their mutual aid and protection.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the Act.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make the employees named below whole for any loss of pay
suffered as a result of the discrimination.
Stephen A . Clemins Milton Greyling
John Plichta, Jr. Aloysius Hermann
James E. Landolt Frank L. Knabe
Edward Karjala
All our employees are free to become , remain , or refrain from becoming or re-
maining members in good standing of any labor organization.
KEARNEY & TRECKER CORPORATION,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.
Glenn Koennecke, d/b/a Sunset Lumber Products and Interna-
tional Woodworkers of America , Local 5-5, CIO . Case No.
36-CA-489. August 26, 1955
DECISION AND ORDER
On February 7, 1955, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed in that
respect. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
'The Respondent excepted to the Trial Examiner 's refusal to sustain its motion that
all evidence relating to its unlawful discharge of Charles Rilea be stricken from the record
on the ground that, at the time of the discharge , the Respondent was not engaged in com-
merce within the meaning of the Act The Respondent commenced construction of its
lumber mill early in 1954 . This work was completed on June 30, 1954, the date of Rilea's
discharge . The Respondent 's operations consist of cutting lumber to specified dimensions
which is then sent to a local independent mill to be planed and loaded for shipment to
the Respondent 's customers . During the 10 working days prior to July 1, 1954 , the Re-
spondent ran 40,000 feet of lumber through its mill which was valued at $2,000 prior to
being planed . On July 2, the day on which full-scale production commenced , the first
shipment of lumber left the Respondent 's mill for the planer . Intermingled with the
shipment of lumber that day was the 40,000 feet of lumber previously cut. The parties
stipulated that the Respondent 's out-of- State shipments from July 2 to September 3,
1954, totaled $157,594.66. We do not agree with the Respondent 's contention that its
activities at the time of Rilea's discharge involved nothing more than local construction
work, nor do we agree that its operations subsequent to Rilea's discharge should not be
considered in assaying the impact of the Respondent 's unfair labor practice upon Inter-
113 NLRB No. 115.