Kelco Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1951

94 N.L.R.B. 1766 (N.L.R.B. 1951)

1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All of the Respondent's production and maintenance employees, including
the truck driver, but exclusive of supervisors as defined in the Act, buyers,
salesmen, and office employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
• 4. The Union was on October 2, 1950, and at all times since has been, entitled.
to act as the exclusive representative of the employees in the aforesaid unit, for
the purposes of collective bargaining, within the meaning of Section 9 (a) of
the Act.
.
5. By his refusal, on October 3, 1950, ahd at all times thereafter, to bargain
collectively with the Union as the exclusive representative of his employees in
a unit appropriate for collective bargaining, the Respondent engaged and has.
continued to engage in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
6. By his interrogation of the employees with respect to their union affilia-
tion, and by his course of conduct in connection with the negotiation and execu-
tion of an agreement with his employees, directly, the Respondent interfered
with, restrained, and coerced his employees, and has continued to interfere with,
restrain, and coerce them; thereby he did engage and has continued to engage
in unfair labor practices within the meaning of Section 8. (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
KELCO CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA, CIO ' Case No. 5-C-2218. June 29,1951
Supplemental Decision , Order, and Recommendation
On April 3, 1951, Trial Examiner William F. Scharnikow issued
his Supplemental Intermediate Report in the above-entitled proceed-
ing, pursuant to a remand order of the Board, finding that three
claimants, Raymond A. Fronckowski, Marion A. Kolb, and William
B. MacMillan, had participated in a physical attack upon a fellow
employee, thereby forfeiting their right to reinstatement and back
pay; and that two other claimants, Harold W. Ruth and Milton A.
Popiolek, had not engaged in any conduct which would justify such a,
forfeiture, as set forth in the copy of the Supplemental Intermediate
Report attached hereto. Accordingly, the Trial Examiner recom-
mended that the Board amend its Order herein, which had been condi-
tionally denied enforcement by the United States Court of Appeals
for the Fourth Circuit pending proceedings on remand,2 by deleting
from paragraphs 2 (a) and 2 (b), which provided for reinstatement
' Since this proceeding originally arose the Union has severed its connections with
the CIO.
2 N. L. R. B. v. Kelco Corp ., 178 F. 2d 578.
94 NLRB No. 247.
KELCO CORPORATION 1767
and back pay, the names of Raymond A. Fronckowski, Marion A.
Kolb, and William B. MacMillan.
Thereafter, the Respondent filed exceptions to the Supplemental
Intermediate Report and a brief. The General Counsel filed a brief
in support of the Supplemental Intermediate' Report. The Respond-
ent's request for oral argument is denied, as the record and briefs
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Intermediate Report, including the credibility findings of the
Trial Examiner, the Respondent's exceptions and brief, the General
Counsel's brief, and the entire record in the case. We hereby adopt the
findings,3 conclusions, and recommendations of the Trial Examiner.4
In addition, the court, on July 6, 1950, entered an order . directing
the Board "to proceed to pass upon specific questions as to the rein-
statement and back pay" of the remaining 17 claimants, and to "in-
corporate specific provisions with regard thereto in its amended
Order." Thereafter, the General Counsel and counsel for the Re-
spondent reached agreement upon terms for the settlement of the
reinstatement and back-pay rights of these 17 claimants, and incorpo-
rated their agreement in a stipulation dated January 30, 1951, which
was approved by the Board on March 27, 1951. That stipulation
provides in part:
No further action will be required of the Respondent under para-
graph 2 (a) and 2 (b) of the Board's Order with respect to all
persons named therein, except Harold W. Ruth, William B. Mac-
Millan, Raymond M. Fronchowski (sic), Milton A. Popiolek and
Marion A. Kolb, whose cases are now pending before a Trial
Examiner of the Board.
Because there are therefore no longer any specific questions remain-
ing as to the 17 complainants mentioned above, we shall amend our
Order herein of September 21, 1948, to delete from paragraphs 2 (a)
and 2 (b) each of their names, as well as those of the three complain-
ants (Fronckowski, Kolb, and MacMillan) who, we have found,
forfeited their rights to reinstatement and back pay.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
and (e) of the National Labor Relations Act, as amended, the Na-
8 The Trial Examiner inadvertently stated in his Supplemental Intermediate Report
that the Board ' s Order was issued September 20, 1948 , and provided in paragraphs 2 (a)
and 2 ( b) for reinstatement and back pay for 18 rather than 17 additional claimants.
4 Member Reynolds on the entire record would also deny reinstatement to Ruth and
Popiolek.
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Board hereby orders that its Order in this
proceeding dated September 21, 1948, be, and it hereby is, amended
to delete from paragraphs 2 (a)- and 2 (b) the following names:
Marvin Baseman
James Stephen Bowen
Pat Compello
Raymond Frankell
George E. Fich
Raymond A. Fronckowski
Walter Hasenei
Harry F. Hecker
Marion A. Kolb
William B. MacMillan
William C. Marvell
Edwin J. Mooney'
Nelson W. Neal
William H. Rixham
James E. Rutledge
Richard Sebeck
W. M. Stratton
Charles J. Sturgill
Robert T. Zellers
Joseph Z. Ziemlak
Recommendation
The Board respectfully recommends to the United States Court of
Appeals for the Fourth Circuit that the said Order, as thus amended,
be enforced.
MEMBERS MURDOCK and STYLES took no part in the consideration of
the above Supplemental Decision, Order, and Recommendation.
Supplemental Intermediate Report Upon Remand
Mr. Sidney J. Barban, for the General Counsel.
Messrs. Edward L. Rich and David D. Merrill, of Baltimore, Md., for the
Respondent.
STATEMENT OF THE CASE
On September 20, 1948, the National Labor Relations Board, herein called
the Board, issued a Decision and Order' in the above-entitled proceeding, which
provided, among other things, that 23 employees of the Respondent, herein
called the Claimants, who had been discriminatorily discharged, should be re-
instated to their former or substantially equivalent positions and should be made
whole by the Respondent for any loss of earnings suffered by them during the
period of discrimination against them.
On December 20, 1949, upon petition by the Board for a decree enforcing its
order, the United States Court of Appeals for the Fourth Circuit remanded
the case to the Board (1) for the purpose of taking and considering evidence
proffered by the Respondent but rejected by the Trial Examiner and the Board
in the original hearing, that, as found by a Maryland circuit court judge in
issuing an injunction against them, five of the Claimants (i.e., Raymond A.
Fronckowski, Marion A. Kolb, William B. MacMillan, Harold W. Ruth, and
Milton A. Popiolekl had engaged in acts of violence of a serious character dur-
ing a strike at the Respondent's plant in November 1946; and (2) for the pur-
pose of considering possible amendments of its order with respect to the
1 79 NLRB 759.
KELCO CORPORATION 1769
reinstatement and indemnity of these five Claimants before making further
application to the court for its enforcement.2
On July 6,.1950, the court entered a further order directing the Board also
"to proceed to pass upon specific questions as to the reinstatement and back
pay" of the 18 Claimants other than the 5 whom the Respondent alleged to
have engaged in violence and to "incorporate specific provisions with regard
thereto in its amended order to the end that this Court may enter a final order
enforcing same as an entirety if this shall appear proper."
Pursuant to these orders of the court, the Board issued an order on April 13,
1950, and an amending order on July 11, 1950, by which it reopened the record
in the case and remanded the proceeding to its Regional Director for the Fifth
Region (Baltimore, Maryland) for the purpose of conducting a further hearing
to take the additional evidence as directed by the court.
Pursuant to a notice of further hearing, and orders postponing and rescheduling
such hearing from time to time, all of which were issued by the Regional Director
and duly served upon the Respondent, the hearing was held on December 11,
1950, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel for the Board' and the Respondent were
represented by counsel and participated therein. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence was afforded
all parties.
At the opening of the hearing, the General Counsel and counsel for the
Respondent told the undersigned that they had reached agreement upon terms,
which the Regional Director would immediately recommend to the Board, for
the settlement of the reinstatement and back-pay rights of the 13 Claimants
other than the 5 who allegedly committed acts of strike violence. They asked
that they be permitted at that time to adduce evidence on the strike-violence
issue only, and that the hearing then be adjourned without further (late pending
the Board's approval or disapproval of the settlement of the other issues as
recommended by the Regional Director. The undersigned granted this request
upon condition that the Regional Director immediately submit the proposed
partial settlement to the Board, and that counsel keep the undersigned advised
of their action and the action of the Board with respect to the partial settlement
proposal. Accordingly, on December 11, 1950, both the Respondent's counsel and
the General Counsel submitted evidence on the strike-violence issue, rested their
cases on that issue, and waived oral argument with respect thereto. The under-
signed thereupon adjourned the hearing indefinitely.
On March 27, 1.951, the Board approved a stipulation entered into between the
Respondent and the General Counsel, dated January 30, 1951, for the settlement
of the back-pay and reinstatement claims of the 18 Claimants other than the
5 whose alleged acts of misconduct were tried before the undersigned.4 Since
IN. L. R. B. v. Kelco Corp., 178 F. 2d 578.
The General Counsel and the staff attorney appearing for him at the hearing are
herein referred to as the General Counsel.
4 The undersigned, of course, takes notice of the Board's minutes concerning this action.
On March 30, 1951, he also received from the chief law officer of the Fifth Region, a
copy of a letter written by the latter to the Respondent's counsel on March 29, 1951, and
advising the Respondent of the Board's approval of their stipulation. Copy of this letter
is incorporated in the exhibit file as Trial Examiner's Exhibit 1. Before that, in com-
pliance with their promise to advise the undersigned of their progress in presenting and
securing the Board's approval of their stipulation, the General Counsel (through the chief
law officer) and the Respondent's counsel had forwarded to the undersigned copies of a
number of letters which passed between them in the course of resolving difficulties which
arose concerning the final form of their stipulation.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this action by the Board left as the only issues to be decided by the undersigned,
those which had been fully tried on December 11, 1950, the undersigned issued
an order closing the hearing on April 2, 1951, and caused copies thereof to be
served on the General Counsel and the Respondent.
In the meantime , the undersigned had received briefs from the General Counsel
and the Respondent on February 21, 1951.
Upon the entire record ` in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE ISSUES AND THE APPIICA13LE PRINCIPLES
The only issues presented to the Trial Examiner are whether Raymond A.
Fronckowski , Marion A. Kolb, William B. MacMillan , Harold W. Ruth, and
Milton A . Popiolek , or any of them engaged in conduct during the 1946 strike
which should, as a matter of policy, deprive them or any of them of the rights
to reinstatement and back pay set forth in paragraphs 2 (a) and 2 ( b) of the
Board's order.°
In its opinion remanding the present case to the Board for further action,
the court of appeals clearly stated the standards to be applied to the evidence ;
i. e., that only "serious acts of violence on the part of striking employees," and
not merely acts exceeding the bounds of lawful conduct "in a moment of animal
exuberance ," should bar reinstatement and back pay.'
II. THE INCIDENTS
A. The incident involving nonstriker Merrick
Truck driver Anthony Merrick, who continued driving the Respondent 's truck
to and from the Respondent ' s plant during the strike , testified , but Claimant
Milton A. Popiolek denied , that on one occasion in the middle of October,
Popiolek came up to the truck which Merrick was about to drive out of the yard,
and said either , "Tony, you want to watch out . We are going to get rough." or
"Tony, you want to watch out. The boys are going to get tough ." The under-
signed credits . Merrick 's latter version of the remark made to him by Popiolek
and finds no basis therein for excluding Popiolek from reinstatement or back
pay.
° The transcript contains two obvious misspellings of names . The correct spelling in
each case is used in the briefs as well as in the previous record, the original Trial
Examiners ' Intermediate Report , the Board 's Decision , and the Opinion of the Court. The
undersigned accordingly orders that the following corrections be made in the present
transcript : Myron Montello to Mire Monacelli ; and James Hergehan to James Hergenhahn.
° In his brief, the General Counsel states:
Of the five employees involved here only Milton A. Popiolek appeared at the hearing
and testified in his behalf . The renraining four employees have either stated that
they desired to have no further part in the proceedings or have failed to cooperate
with the Agents of the Board and the General Counsel upon request. For these
reasons the General Counsel is pressing at this time only the rights of Milton A.
Popiolek under the Order and Decision of the Board.
However , the issues as to all five of these men were fully tried at the hearing and
the General Counsel in later portions of his brief argues in effect that all of them are
entitled to reinstatement and back pay . The undersigned, therefore , deals in this Report
with all the questions raised at the hearing.
1 178 F . 2d at 580-582, and authorities therein cited.
KELCO CORPORATION 1771
B. Incident involving nonstriker Monacelli
After work, on or about November 1, 1946, Miro Monacelli, a welder, who
continued working during the strike, passed through the picket line at the Re-
spondent's plant at the corner of Baltimore Street and Haven Street and, walk-
ing half a block south on Haven Street, was stopped there by a group of about
10 strikers including Popiolek, MacMillan, Ruth, Kolb, and Fronckowski.
Popiolek and a few others in the group asked Monacelli to join the strike
and Monacelli refused. MacMillan said, according to Monacelli's uncontradicted
testimony on this point, "You better watch your step from now on." Monacelli
further testified that Popiolek told him, "We are getting desperate. This is
all the talking we are going to do." Popiolek denied making this statement to
Monacelli, but testified that he first asked Monacelli to tell an investigator for
the General Counsel about a foreman's having questioned him about their union,
and that when Monacelli refused, Popiolek then told Monacelli "that would be the
last time I was going to ask him about it." Monacelli and Popiolek were the
only witnesses who testified as to this conversation. Although the undersigned
-credits Monacelli's testimony and finds that MacMillan told him "You better
watch your step from now on," he also credits Popiolek's testimony and finds that
.after Monacelli refused to give information to the General Counsel's investigator,
Popiolek told him that was the last time he would ask Monacelli about it.
At the conclusion of this conversation, Monacelli continued walking homeward,
:first to Lombard Street (the next intersection), then left on Lombard Street a
block and a half, and then across a vacant lot to the back gate of his yard. In
the meantime, a number of the strikers with whom he had just spoken, including
MacMillan, Fronckowski, Kolb, and Popiolek, walked rapidly after him to catch
up with him. When they reached the point where Monacelli entered the lot
Popiolek and all of the following group except MacMillan, Fronckowski, and
one other man who was not identified, stopped on the sidewalk. MacMillan,
Fronckowski, and the unidentified man went halfway across the lot and, when
Monacelli stopped at his gate, they told him that he "had better not come to
work the next day, it would just be too bad."
The undersigned finds nothing in the evidence concerning these incidents to
justify withholding reinstatement or back pay from MacMillan, Fronckowski,
Kolb, or Popiolek. The striking group was admittedly attempting to induce
Monacelli to join them in their strike. MacMillan's remark on Haven Street and
his later remark in the lot behind Monacelli's home can be regarded only as his
spontaneous expressions of bitterness at their failure and not as a threat that
the group intended to commit any violence upon him. While the Respondent
argues that the group "chased" Monacelli, the evidence as already summarized,
shows clearly that Monacelli had no difficulty in leaving them and that they
merely walked rapidly after him in an apparent desire to continue talking with
him. Certainly, if they intended to assault him, they would at least have run
after him.
C. First incidents involving nonstriker Hergenhahn
Sheet metal worker James Hergenhahn, who worked throughout the strike,
testified that on October 24, 1946, strikers Ruth and Popiolek "got in front of"
him at the plant gate as he was leaving for home. On direct examination,
Hergenhahn testified that either Ruth or Popiolek (he couldn't remember which)
told him that he "had better get sick tomorrow and not come to work." On
cross-examination, however, he testified first that they said, "If you know what is
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good for you, you will get sick tomorrow and stay home," but then he testified
that he was not sure about the exact words and that it could have been, "Why
don't you get sick and don't come in tomorrow?" Ruth did not testify but
Popiolek denied that he, or anyone who. was ever with him, made the remarks
to which Hergenhahn testified. The undersigned credits Popiolek's denial.
Hergenhahn further testified that as he was about to enter the plant on the
following morning, October 25, 1946, he met Ruth and Popiolek, that Ruth
stepped in front of him, but that before Ruth did or said anything, a policeman
arrested Ruth and took him away. As already noted, Ruth did not testify.
Popiolek denied having been with Ruth when he was arrested, and the under-
signed credits his denial. The undersigned, however, finds in accordance with
the undenied portion of Hergenhahn's testimony, that on the morning of October
25, 1946, Ruth stepped in front of him as he was entering the plant but that
Ruth was arrested before he said or did anything.
Here again, the undersigned finds nothing in the evidence to justify withhold-
ing reinstatement or back pay from either Popiolek or Ruth. The undersigned
has credited Popiolek's denial that either he or anyone with him suggested to
Hergenhahn that if he knew what was good for him, he would "get sick tomorrow
and not come to work," and his further denial that he was with Ruth when the
latter was arrested. At to Ruth, Hergenhahn's testimony at most would sup-
port findings that on October 24, Ruth said merely, "Why can't you get sick and
don't come in tomorrow," and that on the following day Ruth stepped in front
of him and was arrested before he said or did anything.. Upon these findings,
there clearly appear to have been no "serious acts of violence" or threats thereof
on the part of either Ruth or Popiolek which should bar their reinstatement
or back pay.
D. Assault upon Hergenhahn
Hergenhahn testified that, as he walked along Baltimore Street to a bus stop,
after work on election clay, November 5, 1946, strikers MacMillan, Fronckowski,
and Kolb set upon and beat him 3 or 4 blocks from the Respondent's phuat
and then left the scene of the assault (as they had arrived) in an automobile
driven by a fourth man. Although Hergenhalin could not see the driver clearly
enough to recognize him, he testified that the car was striker Ruth's blue Ford.
Notwithstanding the apparently intended implication of his testimony that
striker Ruth was the driver of the "get-away" car and thus a participant in the
assault, Respondent's counsel stated at the hearing that he would attempt to
proved, by striker Popiolek's testimony, that Popiolek had in fact been the driver
of the car. In response to questions put to him in this connection, however,.
Popiolek testified that after the nonstriking workers, including Hergenhahn,
had left the Respondent's plant on that election day, Popiolek took strikers
Fronckowski and Kolb in his 1937 Dodge car from the Respondent's plant where
they had been picketing, and that he drove them along Baltimore Street and
deposited them at various points beyond the scene of the alleged assault, but
that he neither witnessed, nor participated in, any assault. As has been noted,
neither MacMlillan, Fronckowski, Kolb, nor Ruth testified at the hearing.
The undersigned finds no reason for not believing either Hergenhahn's testi-
mony or Popiolek's testimony so far as they thus relate to the assault upon
Hergenhahn on November 5, 1946. Although Popiolek testified that he drove
Fronckowski and Kolb along Baltimore Street after Iergenhahn had left work
that afternoon, the relative times of Hergenhahn's leaving work, Popiolek's
leaving the plant and depositing Fronckowski and Kolb on Baltimore Street at
AMERICAN WRITING PAPER CORPORATION, ET AL. 1773
some point beyond the scene of the assault, and the time of the assault were
not clearly enough fixed to enable the undersigned to judge whether, consistently
with both Hergenhahn's and Popiolek's testimony, Fronckowski and Kolb might
not have returned in another car after leaving Popiolek. The undersigned
-therefore credits both Popiolek's denial that he witnessed or participated in
the assault, and Hergenhahn's testimony that he was assaulted by Fronekowski,
Kolb, and MacMillan. The undersigned, however, rejects any implication that
Ruth was the driver of the "get-away" car merely because it was a blue Ford
which Hergenhahn believed was Ruth's car.
Upon this evidence as to their assault upon Hergenhahn the undersigned will
recommend that the Board amend its order to withhold from Fronekowski, Kolb,
and MacMillan any right to reinstatement and back pay.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. By their assault upon James Hergenhahn on November 5, 1946, Claimants
Raymond A. Fronckowski, Marion A. Kolb, and William B. MacMillan forfeited
their rights to reinstatement and back pay under the Board's Order.
2. The evidence does not warrant the conclusion that either of the Claimants
Milton A. Popiolek or Harold W. Ruth engaged in any misconduct which jus-
tifies a forfeiture of their rights to reinstatement or back pay under the Board's
Order.
Recommendations
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Board amend its Order issued in the present
proceeding on September 20, 1948, by deleting from paragraphs 2 (a) and 2 (b),
the names of Raymond A. Fronckowski, Marion A. Kolb, and William B. Mac-
Millan, and thus excluding these three men from the benefits of these provisions.
AMERICAN WRITING PAPER CORPORATION, ET AL. and UNITED PAPER
WORKERS OF AMERICA, CIO, PETITIONER
CROCKER-MCELWAIN COMPANY and UNITED PAPER WORKERS OF AMER-
ICA, CIO, PETITIONER. Cases Nos. 1-RC--9177 and 1-RC-2176.
June 29, 1951
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Robert S. Fuchs, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
94 NLRB No. 248.