Kisco Co., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 899 (N.L.R.B. 1971)

KISCO COMPANY, INC.
Kisco Company, Inc. and Robert Williams and Local
Union 93, Sheet Metal Workers International
Assolciation, AFL-CIO., Cases 14-CA-5273,14-
CA-53117, and14-CA 5399
August 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 4, 1971, Trial Examiner Wellington A:
Gillis issued his Decision in the above-entitled
proceeding, finding that Respondent had'engaged in
and. was engaging in certain unfair labor practices
and recommending that -it-cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's ' Decision. He also found
that- Respondent had not engaged in other unfair
labor practices alleged in the complaint and recom-
mended that 'the' complaint be dismissed as to such
alleged violations. Thereafter, Respondent and Local
Union-93, Sheet Metal Workers International `Asso-
ciation, AFL-CIO, herein called Local' 93, filed
exceptions to the Trial Examiner's Decision. Respon-
dent'also filed a'supporting brief.
Pursuant to-the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed'The Board has considered the, Trial
Examiner's' Decision, the exceptions and brief, and
the entire record' in 'these cases, and hereby adopts
the `findings, conclusions, and recommendations of
the Trial Examiner to the extent they are consistent
with the following:
We agree with the Trial Examiner that Respondent
did not engage in certain violations of the Act, as
alleged in the complaint., We further agree with the
Trial Examiner that Respondent, by withholding
vacation benefits from its employees Leslie Holloway
and RobertBradford, violated Section $(a)(3) and (1)
of the Act.
We are unable to agree, however, that Respondent
violated the Act in two respects.
1. The constructive discharge of Robert Williams.
Williams was employed by Respondent as a porter
on January 22, 1969.1 The Trial Examiner found that
for several years Respondent has' had a policy
against hiring part-time employees. Nevertheless, the
' Unless otherwise indicated, all dates occurred in 1969.
899
Trial Examiner credited Williams and found that at
the time he was hired Respondent's - employment
counselor was aware that Williams was em'ployedfull
time by another employer,and thus could work only
7 of the regular 8 hours a- day ,for Respondent.
On August 4, Williams and his fellow porters were
permanently transferred to Respondent's assembly
line due to a shortage of personnel., The - Trial
Examiner found that, it was not until after Williams'
transfer that his 'supervisors on the, assembly line
became aware of his practice of working -a 7-hour
day. Williams was then told -by_ his -foreman, Carl
Martin, in the presence of Assistant Foreman Joseph
Hougland and Superintendent Al Sadler, that Re-
spondent had a policy against part-time help, and that
he should choose between his job with Respondent
and that with his other employer.
Later during the day • of August 11, after Williams'
supervisors had been unable to ^ verify his claim that
he had received permission to work part time,
Williams was again advised by Martin to-make a
choice between his two jobs: Williams, in Sadler's
presence, said that he would not give up, his other job
and would quit his employment with Respondent
first. Sadler then told Martin and Hougland that he
would take care of this matter.
On 'August 14, Williams filed a grievance with
Local 93's shop steward, Hillman Hill, alleging that
Williams and his fellow porters, had not, been
receiving the correct amount of pay for their work on
Respondent's - assembly line.- On- August 15, Sadler
set forth Respondent's position, on Williams.' griev-
ance by writing thereon:
This employee is [a] part-time worker and, leaves
at 6 a.m. each morning. The, rate of pay.[for the
two jobs] is the same . So:if this employee cannot
devote full 8 hours, he will have to work as
prescribed or quit.
Sometime during Williams' shift on August 15, he
was approached by Sadler. and was asked if he
(Williams) was - going to withdraw - the grievance.
Williams' replied in- the negative and - stated that he
would take it to the next step.
Sadler went on vacation the last 2,weeks in August
and, was replaced -by Donald King. On August 18,
the first- Monday of Sadler's absence, Williams spoke
to Local 93 Business Representative Joseph Rowley
concerning his grievance. The next day'Rowley took
up, this matter with ' Respondent's Director of
Industrial Relations Donald Schicker. After examin-
ing Respondent's records, Rowley , learned that
Williams had been receiving the -correct amount of
pay. '
On'August 28 Williams asked King fora gate pass
192 NLRB No. 118
DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
to leave ' Respondent's ' plant' before 'the r end 'of his
shift. King' asked''Williams`-the ``reason for' this
reguest,`and, upon being in' formed-that Williams had
to go to another jab,"King` said'=that he Would give
Williams, the remainder of, the week,to make other
arrangements and that, under-Respondent's'policy,
Williams had to-'wdrk> a full 8 hours: Williams''said
that he Would'riot-gi'e up hisother job and that King
might "as well terminate,him: -King said that he-did
not wislil'to terminate' Willia`fns,' that` Williams should
make other arrangements so that he ,could work a full
shift, and` that'the matter was entirely up to Williams.
The following," day; Williams -quit' his employment
with Respondent.
Adopting; pro' 'for the"Trial Examiner's findings
discrediting King's- testimony to the ,effect that he
received no instructions -to terminate Williams' or
force him to work a^full' shift," that King had never
`seen Willianis" grievance, and that he (King) was
unaware of',any previous conversations between
Williams and his `supLrvisors, we are unable to adopt
his,-finding arid' conclusion that King's ultimatum to
Williams was motivated by considerations other than
the enforcement, of-Respondent's employment, poli-
cy.,
The Trial Examiner, would infer that Sadler held
animus r toward -Williams because of,,his _ filing' a
grievance,, and that King, in presenting an ultimatum
to - Williamss, . was.-carrying, out Sadler's design, to
discriminate against ehim; The record shows, -howev-
er, that Sadler.merely''asked Williams if heintended
to, withdraw 'his, nonmeritorious grievance. This
question, standing alone, is insufficient, in our 'view,
to support a-,substantial.infererice of animus. More-
over; the fact that Sadler, addressed a portion of his
Written-answer, -to William' grievance to `irrelevant
matters'^other- than'the merits of'.the grievance does
not tend to supply the missing - support for or, lend
credence to the Trial Examiner's;,€inding. In. our
view, Sadler's discussing Williams' part-time status in
his answer to the-grievance was_animplementation of
his promise to-Martin and Hougland that he would
handle this problem.
=Although. King might 'tell 20 ,employees ,a month
that they had to^ work,,,&.- hours , #a, day, the case
involving Williams, was-the,first time he-had ever told
an ,employee who worked less than 8 hours that he
must wprktheafull shift sir quit. The Trial Examiner
would infer, from this that King.-afforded Williams
disparate,treatment:-We xdisagree-with:this inference:
Considering,, King''s , testimony in :its,_entirety,, it y is
clear that prior to; his statement=, to , Williams Keg
had been dealing with employees who were absentee
problems; ,Williams„waS,thesfirst part-time employee.
Inasmuch as, General Counsel has failed to prove
animus or disparate treatment on the part of
Respondent against Williams because ofshis-filing a
grievance on August 14,''we find,' coat ary to the
TrialExaminer, that Respondent did not violate the
Act by requiring him to conform with Respondent's
policies or quit his employment. Accordingly, we
shall dismiss, that allegation 'of the complaint.
2. The refusal to, discuss a grievance with Local 93.
On December 17 James Russell, president of Local
93, ,met with Respondent's president,, Jerome Hol-
den, and Director' of Industrial Relations Schicker to
discuss Respondent's' alleged 'failure to pay Thanks-
giving holiday pay to several,of its employees. One -of
these employees not receiving holiday pay wa's-Tim
Smith. This failure,; to pay' Smith was alleged by the
General Counsel toybe in violation' of Section; 8(aX3)
and (1) of the Act and the Trial Examiner, correctly
as we have found, supra, 'dismissed, Phis of legation on
finding' that, 'Smith was ineligible for this;; pay.
On, December' 17 Russell ' asked Schicker and
Holden what Respondent-was going to`do about'the
holiday pay issue: Iloldeu,replied"that if-employee's'
had' been deprived of 'this- pay, it was because they
had been discharged before the holiday, atLocal'93's
request. In accordance - with the union-security
provision in the agreement between' Respondent` and
Local 93.) Schick
_
er then "added that-'since °Local493
had filed unfair labor practice, charges ;over this
subject of holiday pay, the matter wa in the hands of
Respondent's attorneys and they ;(Holden and
Schicker)' ','were' not doing , anything about it.
The Trial Examiner found that by, Schicker's
remark outlined above, Respondent violated the Act.
We find, however, that. Respondent was not required
to -further discuss`. the grievance after, explaining its
reason, for failure to grant holida_ypay.
Having-given Local 93' Respondent's,'explanation
on, the grievance, we find, notwithstand'ing_Schicker's
remark,.'that Respondent satisfied `its dbliga,`tion_to
bargain over,this grievance and, thus, committed no
violation of the Act. -Consequently,, we shall'dismiss
that allegation of the complaint.
Because of, the considerations outlined above, 'we
shall dismiss the-complaint, with the exception of the
allegation that Respondent violated Section 8(a)(3)
and (1) -of the Act`by withholding vacation benefits
from its 'employees Leslie' Holloway and Robert
Bradford. ' I
ORDER ' ,
Pursuant to Section -10(c) of the,National, Labor
Relations- Act- ,as -amended, tire" National, Labor
Relations Board herebyor4ers,,that the Respondent,
Kisco Company, Inc., St... Louis"', Missouri,,, its
officers , agents, successors, and assigns,, shall:
1'. Cease and desist from.,
KISCO COMPANY, INC. 904
(a) Withholding vacation benefits from its employ-
ees as a means of enforcing the requirements of the
union-security, clause in its agreement, with Local
Union,93, Sheet Metal Workers International Asso-
ciation, AFL-CIO.
,,(b) In any like or related manner interfering with,-
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its place of business in St. Louis,
Missouri, copies' of 'the' attached' notice marked
"Appendix."2 Copies -of 'said- notice, on forms'
provided by the Regional Director for Region 14,
after being duly signed by its representative, yShall be
posted. by d t immediately upon receipt thereof,,and
be-maintained by it for 60 consecutive days thereaf-
ter, in-conspicuous, places, including all places where
notices to its employees are customarily posted.-
Reasonable steps shall be taken by Respondent to
insure that said notices-are not' altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region_ 14, in
writing,' within 20 days' from the date' of this Order,
what, steps, the Respondent has taken to comply
herewith.
It is further ordered that the complaint be, and it
hereby is, dismissed insofar as it alleges that
Respondent violated the Act otherwise than as found
herein.,,-,
MEMBER JENKINS , dissenting-in part:
I disagree with my colleagues' failure to find that
the-Resiondent violated Section- 8(a)(1) and (3) of
the Act- in the `;constructive "discharge, of Robert
Williams. Like the Trial Examiner, I" find that,', in
filing a grievance on behalf of himself and his fellow-
porters, Williams was engaged in concerted protected
activity, and Respondent's demand that he work a
full 8-hour -day 'or'quit was motivated, at least in part,
by his having,--filed and thereafter refusing to
withdraw the grievance.
The credited r"ecordevidence reveals, as found by
the Trial Examiner, thatWilliams, 'af the time of his,
hire,, informed Marvin Trimble,, Respondent's em-
ployment counselor and the man who hired him, that,
he needed a part-time, job, and could only work 7
hours per, night. Respondent hired him under these
conditions, and during his entire ^ tenure with the
Respondent he"was permitted to work a 7-hour day.
Indeed,` on August-11, although apprised of Resp'on-
denf's policy against part-time work and after
notifying Respondent's officials, Sadler and Martin,
that he would not giveup his railroad job,in order to
work full time for Respondent, nevertheless Williams
was permitted to continue, working only 7 Sours per
night. - It wasp- not ^ until after Williams filed the
grievance and thereafter refused to withdraw it that
Respondent determined to-require Williams to work
a full 8-hour day or quit.
In, view of. the foregoing,, and for the additional
reasons=fully set forth by'the Trial Examiner, I -find
that Respondent violated =Section 8(a)(1)-and (3) in
the'constructive discharge of Williams, and further
find, as'did;the Trial°Examiuer, that Respondent has
failed to reinstate Williams to previous "or
substantially equivalent position 'of employment..
2 In the ' event that this order is enforced by a- Judgment of ,a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE, NATIONAL LABOR,,RELATIONSBOARD " shall be.
changed to read. "POSTED, PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD.'"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR, RELATIONS, BOARD : ,,
An Agency of the United, States Government
WE WILL NOT withhold vacation benefits from-
our employees ' as a, means of enforcing the,
requirements of the union= security clause in' our
agreement with Local Union 94' Sheet 'Metal
Workers International Association, , AFL-CIO.
WE, WILL NOT in any like- or _ related ,manner
infringe upon therights of our . employee's,guaran-
teed-by Section 7-of the Act.
All our employees are free to become or remain or
refrain from becoming or remaining' members of
Local Union 93, Sheet Metal Workers International
Association, AFL-CIO,' or any other labor organiza-
tion, except to the extent that such, right may be
affected by an agreement as' authorized ^ in Section
8(a)(3) of the Act, as modified by ° the Labor-
Management Reporting and Disclosure Act of 1959."
Kisco COMPANY, INC.
(Employer).
Dated By
(Representative) (Title)=
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive'
days froth the date of posting and- must riot be,
altered, defaced, or covered- by any-other material. 11
Any questions concerning this notice or 'compli
ance with its provisions, may be directed to,, -the
Board's Office, ` 210 North' 12th Boulevard, Rohm'
448, St. Louis, Missouri 63101, , Telephone 314,x622-,
4174.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, ,Trial, Examiner: This, case,
heard by- me at St. Louis, Missouri, is based upon a charge
filed September, 5, 1969 , by Robert Williams, an individu-
al; and upon charges filed, on October 1, and amended
October 17 and November 18, and a charge filed on
December 8, 1'969, by Local union 93, Sheet Metal
Workers International Association, AFL-CIO, hereinafter
referred to as the Union, or as Local, 93;, upon three
separate complaints issued on October , 31, 1969, November
28, 1969, and, January 29, 1970, thereafter consolidated for
hearing by order-dated January 29, 1970, by the, General
Counsel for, the- National Labor Relations Board, here-
inafter referred to as the Board, against Kisco . Company,
Inc., hereinafter referred to as the Respondent or the
Company, alleging violations of Section 8(a)(1), (2), (3),
and (5), and Section 2(6) and (7) of the National Labor
Relations Act, as amended (61 Stat. 136); and upon an
answer timely filed by the Respondent denying the
commission of any unfair labor practices.
At the hearing, all-parties were represented by counsel,
and were afforded opportunity-, to examine and cross-
examine witnesses, to introduce evidence pertinent to the
issues and -to ,engage ,in oral argument 1- Subsequent to the
close of.hearing, timely ,briefs were filed by counsel for the
General Counsel and for the Respondent.
Upon the, entire record in this case , and, from my
observation of the witnesses , and their demeanor on the
witness stand , and upon substantial reliable evidence
"considered along with the consistency and inherent
probability 'of testimony" (Universal Camera' Corp.' v.
N.L.R.B, 340 U.S. 474, 496), , make- the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Missouri corporation maintaining'
its office and. place' of., business at St. Louis, Missouri,
where it is engaged in , the manufacture , sale and distribu-
tion of, ammunition and related products. During the
calendar year ending August 6, 1969 , the Respondent
purchased and caused to be transported and delivered at
its St. 'Louis plant, , the only plant involved in this
proceeding, metal and other goods and materials valued in
excess of $50,000, which goods and materials were
transported and delivered to its plant directly from points
located outside the State of Mis souri. During the same
period, the Respondent manufactured, sold, and distribu-
ted at its plant,,,-products .- valued in excess of $50,000, of
which, products valued in excess of $50,000 were shipped
from said .plant directly to points located, outside the State
of Missouri. The parties admit, and I find, that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
i Counsel for the Congress of Independent Umons, named as party in
interest in the ,complaint issued in Case -14-CA 5317, was permitted to
examine and cross -examine 'witnesses and to introduce evidence to the
extent that' the matter involved the - complaint in that case Similarly;'
counsel for the charging union in Case 14-CA-5317 and 14-CA-5399 was
II. ,THE LABOR ORGANIZATION INVOLVED
The parties admit, and! find, that Local Union 93, Sheet
Metal Workers International Association, AFL-CIO,
hereinafter referred to' as Local -93 or the Union, and
Congress of Independent Unions, hereinafter referred to, as
CIU, arelabor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
The issues raised , by the, three complaints in this
consolidated proceeding involve questions concerning
whether:
1. During the month of July 1969,2 by specific conduct,
the Respondent rendered unlawful aid and assistance to
the CIU in violation of Section ' 8(ax2) of the Act;
2. 'During ' the month of July 1969, the Respondent
interrogated employees concerning union-,activities and
otherwise engaged , in restraint and coercion of employees
in violation of,Section 8(axl) of the;Act;, ,
3. -,on, July 14, and during,-,the last week. in May,
respectively, the Respondent , refused to pay,, employees
Robert Bradford and Leslie Holloway, vacation pay due
them because, they failed to pay dues to Local, 93, in
violation'of Section 8(aX3) of the Act;
4.' On August 29, the Respondent discharged employee
Robert Williams because said employee engaged in union
or concerted activities in violation of Section 8(ax3) of'the
Act;
5. Since November 27, the Respondent failed, to pay
employee Timothy Smith Thanksgiving holiday ,.,pay
because he failed to join Local 93, in violation,of -Section
8(aX3) of the Act; and
6. During November , and December, the Respondent
engaged in certain alleged conduct constituting -a' refusal to
bargain with Local` 93 in violation of Section 8(aX5) of the
Act.
Background
The Respondent in this proceeding , engaged for the most
part in the manufacture of 105 millimeter, cartridge cases
for the United States Armed Forces , employs some 600
production and maintenance employees . for reasons
apparently related to the'fact ihat it draws heavily'from the
hard core unemployed' areas of- the St., Louis region, the
Respondent annually experiences,a 700'percent turnover'in
its unit employee complement.'3 Becauseof `its employment
policy, the Company is certified by the, Department of
Labor for preferential treatment on certain ,government,
type contracts. The, Respondent also,participates in the
MA4 program which exists for the purpose of hiring
disadvantaged, people, from the inner-city or ghetto areas
and training them to handle jobs requiring some degree of
skill.
permitted to;, take part , in the proceeding to the extent that matters
involved-, issues in those two complaints. _I,
2 Unless otherwise noted ,'all dates herein-refer to 1969.'
3 ^ During the year 1969, for example , in order to maintain its 600.
employee level, the Respondent , hired close, to 4,000 employees.
KISCO COMPANY, INC 903
Since its certification in 1963, Local 93 has been the
contractual bargaining representative for these employees,
the most recent contract, containing a union-security
provision, having expired on March 29, 1970.
Facts
A. , Case 14-CA-5317
1. Alleged violations of Section 8(a)(2)
The, complaint in this proceeding alleges that during the
summer of 1969 the Respondent rendered unlawful
assistance and support to the CIU by: a) arranging for
contact between an employee and a CIU agent for the.
purpose of developing ,a, union campaign on behalf of the
CIU; b) arranging for-this same employee to work. on a
swing, shift basis to facilitate.such a campaign; and c)
having a foreman present-at a CIU meeting.
The evidence in this regard reveals that just prior to May
15, at a time when there appears to have been, an attempt
by the Teamsters Union to sign up plant employees,
Edward "Doe" Williams; chief shop steward for Local 93,4
spoke ,to Donald Schicker, ,Respondent's director of
industrial relations; stating that he had heard that there
was some kind of-a list with names,on it being circulated
on other shifts. When in reply to his question, Williams
indicated that -he did not. know, what it was. all about,
Schicker suggested- that they try to find out. Shortly
thereafter, Local 93 Business Representative Joseph
Rowley called • Williams, asking him about the Teamsters
petition, and querying Williams as to which employees
were interested in the Teamsters Union.
A day_ or two later, at a meeting on May 15 held at the
Cheshire Inn Restaurant, scheduled by the Company at the
request of Rowley, with Rowley, Schicker, Jerome Holden,
and Lee Deters present;5 Rowley asked that Edward
"Doc" Williams be permitted to transfer from shift to shift
in' order to check on undercover efforts by the Teamsters
Union to get in the plant, and to protect the interests of 'the
bargaining representative, Local 93. "Holden acquiesced in
the request, "and -advised Schicker to proceed with the
transfers . Subsequently, during an, office conversation with
Williams., Rowley, and-Schicker, Williams was told of the
decision to put him on the swing shift "in order to settle the
men about this Teamster Union thing :.. and to tramp
out the Teamsters Union." 6
On May 26, Williams was transferred from his third shift
job to the second' shift, and two weeks later was transferred
again to the first shift. Approximately one month after his
initial transfer, Williams was transferred back to' his
regular third shift position. At some point during this
period; while still chief-shop steward for Local 93; Williams
changed -his union allegiance and, by his own admission,
unknown to any company official, commenced working
for the CIU by holding three or four meetings at his home.
s Williams . was employed by the Respondent from August 1968 to
August 1969, when he was discharged.
s Holden, although president 'today, was at the time vice president of
Kisco Company, and Deters-is unidentified.
a When this testimony was volunteered by Williamson direct examina-
tion, and counsel for the General Counsel was asked by the Trial Examiner
how this testimony coincided with par . 7B of the complaint in 14-CA-5317,
Just what prompted his turnabout is not apparent, but
according to Williams, shortly after his transfer and
ostensible campaigning against the Teamsters, he was
contacted by Truman Davis, business agent -for the CIU,
who, apparently having heard of the Teamsters efforts,
expressed an interest in determining whether the Respon-
dent's employees might be interested in the CIU. Accord-
ingly, unknown to, the Company, as well as to Local 93
officials, instead of protecting the interests of Local 93
during his shift transfers, Williams in fact was working for
the CIU. Davis attended a couple of meetings at Williams'
homer
With respect to Davis and his relationship with Williams,
the latter testified that, in connection with his transfer to
the swing shift, Schicker told him that he "know [sic] a
man who would contact me maybe about the Union, ..
that, maybe could help." Williams further testified that
after Davis, talked with him, he told Schicker that a fellow
had contacted him and that he was for-the CIU, that his
name was Truman Davis: Schicker assertedly replied that
that was good, that he had heard a lot about Truman
Davis,, that "he probably might have been the man that I
spoke of contacting you.", -
I do not, credit any of Williams' uncorroborated
testimony in this regard. Schicker emphatically denied
making these, statements, and, any-knowledge of Davis.
Williams, whose demeanor while being administered the
oath on the witness stand gave rise to a lack of confidence
in his testimony from the beginning, appeared confused
while testifying on this matter, .changing back and forth on
direct examination with the assistance of his pretrial
affidavit.
Williams could recall the names of but two employees
attending the meetings at his home, one of whom was Lou
Wallach. Wallach, according to Williams, was present at
one. meeting around .the latter part of July or early part of
August. Contrary to the complaint allegation,-however, the
record fails to ; substantiate Wallach to have been a
supervisor within the meaning of the Act. While at a much
earlier time, Wallach appears to have been a supervisor in
the welding department, during the period here in question
and just prior to his discharge, Wallach, whobelonged-to a
steamfitter's-union and was not a member of Local 93, was
an assistant foreman- a the maintenance department where
he worked on(special = developmental and -technical ' projl-
;ects. He worked under the supervision of Wally Kisling; a
company vice president, and was.a salariedemployee, as
are some of the production employees including assistant
foremen, receiving clerks, and tool crib attendants.
According to Schicker, Wallach performed creative type
functions with -the Company, working -on individual
projects such as, developing-a safety guard for presses that
fabricate the 105` millimeter cartridges in order to protect
the hands of machine operators. As such, with the possible
exception of using a helper when periodically engaged in a
(asserting that Respondent arranged for an employee to work on swing shift
to facilitate a campaign on behalf of the CIU), the latter admitted that he
was surprised-,by,the testimony.
T The above factual recitation is taken from the credited testimony of
Schicker, Holden, and Williams . Rowley, although, appearing as a witness
for the General Counsel , did not testify as to any of these matters.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welding, operation, Wallach-.had no oneassignedto him in
conjunction with his ..work. Thus,,in the absence of
evidence that -Wallach, during ythe year 1969, the period
here involved,, had the authority. to hire, fire, transferor,
effectively to recommend such action,-,or possessed any
other , indicia of supervisory status As. set forth under
Section 2(i 1) of, the, Act,8 I find him not to be a supervisor
within the .meaning of,tfieAct.
_ Accordingly, without additional evidence revealing an'
agency , relationship between Wallach and the ` Respondent,
his presence at',a,CIU meeting sometime during the month
of July and' August neither constitutes interference,
restraint„or coercion of, employees within the meaning of
Section 8(a)(1) of the act nor supports the assertion that,
by such conduct, the Respondent rendered unlawful
assistance ' in support to a Iabor ' orgapiiation withe
prohibition of Section a)(2 of the Act.
In conclusion;`:with' respect to the, unlawful assistance
and support allegations, the facts' reveal` that - while
Williams did`acainpaign fr the' CIU, he not only was not
acting pursuant' to the Respo`ndent's request, but did sooon
His' own, and by` hi"o, n admission, ' unknown to the
Respondent . `Schiele. firsf^isecame `aware "of 'Williams'
switch from Local 93 to the CIU several weeks after his
return' to his 'original- shift when,- one morning, Williams
went to Schickerand -told -him that ' he ^ was interested' in
starting an independent- union: Williams testified that at no
time' did 'aiione from ,the Responmdent--ask him to conduct
a campaign for' He` CIU, sand that the purpose he was Out
on the' change of shifts was •̂"to tramp out-the' Teamsters
Union," 'that this wai'done'at the request, of Local-93's
Rowley, and iii order-to mend fences among the employees
for Local 93. The evidence, particularly from Williams, is
overw elming'-that the Company had , no' connection with
the, ClU and-in, fact, on one, occasion, requested, that the
CIU'Officials,'leave-coinpan .premises: Accordingly, I find
that the' General', Counsel has failed to -prove by a
preponderance of the, evidence paragraphs 7A,'B, and; C;
containing , "9(ax2) ' 'allega'tions, ' in,--Case, 14-CA-5317.
-2., Alleged violations of, Section 8(a)(1)
At, some point, in connection with the Teamster's,raiding
efforts,j$,chicker asked Local 93's,chief shop,steward, Doc
Williams, if, I he were aware, that some ,of the employees
were trying to. get the Teamsters-Union in the plant, and
fpllowedhis^question with,a.further inquiry-as to whether,
Williams knew,whq.they were.,This,, theGeneral Counsel
asserts,,, constitutes interference, restraint,. and coercion of
employees, within the meaning of Section 8(a)(1).mI can
think rof ' nothing *so_ ridiculous as to conclude, under these
circumstances, and in this context, that a companyofwficial's
inquiry along thesejinesmadeof the-recognized bargain-
ingrepresentatives' chief shop steward;eonstituYes restraint
and coercion of employees within the proscription of
Section,, S(a)(I). ,. ,Accordingly, I - shall recommend, that
paragraph' 6A of the complaint in Case 14-CA-5317 be
dismissed.
8 To the extent that the testimony of Williams or' employee Leslie
Holloway, might, appear to warrant a "different result, I, find it to be
ebhehisionary and of no probative value.
'° "Cebit ,̂a' college student, was brought into the Respondent 's employ
Archie,,Bell, an employee , with , the Company between, the
middle of June and the middle of September when he,wvas
discharged ' for leading a walkout, testified that about 3'
weeks after he went to work, Harry Cecil, counsellor for
the MA4 training program at the Respondent's plant, told
some of the employees that they would have to put up $5 a
week for union dues. As a result , Bell put up $5 one time,
which amount was refunded to -him when he left the
Respondent's employ.
Cecil testified that experience had shown, that it was
difficult for these trainees to get together a $60 union
initiation fee that was required ofu them after45°-days of
employment, and therefor Cecil helped to implement` a
procedure to assist these imployees'in meeting their"union
obligation.9, It was` a voluntary procedure whereby each
employee so desiring, would ' contribute- $5 from his,
paycheck-to a special fund in the'State Bank, and receive
in return a receipt therefore. The employee could'take the
money out any time=he wanted;-or'he could'leave,it-= in-so'
that'he could pay his union initiation ' fee at the-end ofthe
45-day', period. Each 'new- employee was =apprised of this
program and of its voluntary nature.
Cecil denied that he ever' required. Bell topay money into.
this account. Bell, in testifying 'to the:contrary, contradict-
ed his-, pretrial affidavit in- this regard, and, on cross-
examination admitted that Cecil told him' that the
initiation fee. was :$60 and that. it would-be a'go6d idea for
him and. the other. men in the MA4 program to_ startle
contributing $5 a week to the bank account in order to be'
able to pay the: fee. when the time had elapsed. -I credit
Cecil, a most'forthright witness, discredit Bell-to the extent
that his testimony contradicts Cecil, and find without merit,
the General Counsel's assertion as to` a. Section- 8(axl)
violation contained in paragraph 6B of the complaint in
Case 44-CA-5317.r,
3. Alleged violations of Section 8(a)(3)
Employee--Leslie Holloway during ;the -spring of 1969
submitted a vacation slip requesting ,a vacation commence
ing the last week of;-May When the time, camp, aymaster
Lewis 'Scott informed him that he had: no vacation. ,coming
because he was behind in his union dues. °..
During ,the summer Holloway became,,,current in this
union dues. Toward the latter part of November, Iolloway
talked with Russell,,president, of Local 93,.and.,told him
that he had not received his vacation. Russell told,hini that
he would receive his vacation. Shortly thereafter„ in `early
December, Schicker, called Holloway into his _of f icem and,
asked him =his ,desires as to a vacation. A'week or,two later,
on December ^12„,Holloway received a week's vacation'plus
vacation pay.
,As in,,the case of Holloway, employee Robert ,Bradford
was,,originally scheduled to take ,his vacation commencing
July 7,,but was not granted-the vacation andvacationrpay.
until the'followingNovember 30.,'
Concerning this matter. Schicker testified that during.the
spring of 1969 the Company-posted, an -eligibility list of
solely to administer the MA4 program at the Respondent 'splant,, and was
there between May 26 and the last of September :-During this period, some
90 employees were trained under this MA4 program
KISCO COMPANY, INC.
people qualified to receive vacations. The list, with some
270 names ori-it, had been on the bulletin board for several
days where Local 1`93's business representative, Joseph
"Rowley, asked him if he realized that some 110 of these
'employees on the list were` not members of the Union.
Schicker said that he "lid not, that they had been working
there for over a year and that if "they were not members of
the' Union, he did not know it. Because , according to the
testimony of Schickei, - Rowley ^"thought there were too
many people -involved-to request immediate termination of
everyone . . `. " Schicker told him he would' check into it
and see what"he could= do. Thereafter; the Respondent
checked each one of the -employees, 6n-the list and.- with
respect, to each one `who was not a member of the Union,
told him to call the union office immediately and have his
union membership problem corrected, in turn apprising
him that the Company would then reschedule his vacation.
It first came to `Schicker's attention late in November
that -Bradford and Holloway had not received their
vacations. -Sehicker told Rowley on this occasion that he
would check and find out if they were-eligible and if they
had not received their vacations the Company would grant
them` vacations as soon - as, possible. ,This was done.
When questioned on, cross-examination as to how the
decision was made to postpone vacations as a means of
encouraging compliance with the union contract Schicker
testified, "Well, actually I never intended to postpone a
vacation at all. All we wanted these 110 people to do was
to-contact the union office, get their-tell me that- their
situation was straightened out, come back probably in the
next day or two and they could have their vacation
immediately. We had, no intention of even postponing
vacations."
Contrary to the assertion of the Respondent that the
initial refusal of vacation pay was based upon a union
request that the vacation be delayed until these men were
in, compliance with the union security clause of the
contract, the record shows that whether intended or not,
the decision to withhold vacation was that, of Schicker. It is
axiomatic at this point that an employer may not use
something less than discharge in,enforcing the require-
ments of a -valid union security clause.10 The fact that the
error was corrected when brought to the Company's
attention several Months later does notrender ,it,any less a
violation of the Act., Accordingly, I find that, in withhold-
ing :,vacation benefits under these circumstances, the
Employer discriminated against Holloway and Bradford in
violation of Section 8(aX3) of the Act, as alleged- in
paragraphs 8 A and B, as -amended at the hearing,, of the
complaint in Case 14-CA--5317.
B. Case 14-CA-5273
Alleged violation of Section 8(a)(3)
Robert Williams, an alleged , discriminateeherein," went
to work for the Company on January 22 as a porter
10 See Association of Western Pulp & Paper Workers, Local 78, 170 NLRB
No. 8; Marcus Trucking Company, Inc., 126 NLRB 1080; and Kranrbo Food
Stores Imorporate4_106 NLRB-870.
r1 Robert Williams should not , be confused with Edward "Doc'
Williams whose testimony , herein relates, to the Section 8(a)(2) allegations.
905
earning $1.94 per hour on the third shift, 11 p.m. to 7 a.m.
Contrary to the testimony of Marvin Trimble, who as
Respondent's employment counsellor hired him, Williams
testified that when he was hired,1he told Trimble that he
needed -a part-time job, and could work only 7 hours a
ght: Trimble testified{ that he'hired Williams;=as in the
se of all production and maintenance employees, as a
ull-time employee ; that Williams -did not advise him that
he could not work a full 8-hour day, and, that the Company
had a -,,.policy,,, against using . part-time help. 'Trimble
admitted that : Williams' application, revealed that he was
working at, the Illinois Terminal at that time-and that he
(Trimble) understood that Williams, was - a full-time
employee at the Illinois Terminal,_but'denied that Williams
told him that the hours would overlap. On cross-examina-
tion, Trimble's recollection of the matter seemed hazy and
his testimony was, not convincing. I credit Williams.
On March 1, Williamsreceived.a 10-cent raise . Sometime
in June, because of a shortage of personnel; Williams,
along with the-rest of , the third shift porters; started to
spend part of his time, on loan to,the 105 shell line.,Thus,
the porters would -,report at the, beginning of the shift- to, the
shell line where they worked on production.„.anywhere from
2 to 6 `hours, , taking bases and collars off of the paint line,
before returning to their normal porter duties -under
Leadman Hillman Hill. While working on the shell line the
porters worked under the third shift foreman, Carl Martin,
and his,assistan, t foreman, Joseph Hougland. , ;
On or about August 4, the ,porters' were permanently
transferred to the shell line, where, although still perform
ing .some porter duties, they continued to receive the sane
rate, of pay. According to Hougland, shortly after Williams'
permanent transfer to the shell line ,and,afew days before
he filed a grievance, which would,placeit early in-the week
of. August 14_Hougland was walking past,the press,on
which Williams was, working and Williams called him over,,
asking for -relief. When Hougland expressed surprise at
Williams' statement , that he, was "going , htme," calling his
attention to the fact that it,was .only 6 a.m., Williams
apprised Hougland that he only workeda 7 -hour day, that
he had permission to, leave every morning at 6 a.m. At that,
Hougland took Williams to the office and discussed the
matter with Foreman Martin and with Superintendent Al
Sadler. Hougland asked Williams who -had:given him
permission to work,a-7-hour day. Williams refused, to name
anyone and repliedronly that personnel had done so. When
asked by Martin why Williams had to leave at 6 a.m.; the
latter,,told him that he^ had.a,full-time job,-at the I11inois
Railroad Terminal and that he had to leave the plantby <6
a.m. in order to make it on: time. At this, Williams was
apprised of the Company's policy against part-time help
and was told the basis-for the policy. Williams was,then
advised to choose between his job at Kisco and his job with
the railroad, suggesting that he stay-with the-one that,was
best for him.12
Thereafter, around 7 am. this same morning, Hougland,
accompanied by Martin, went to see Marvin Trimble in
12 1 do not credit Williams' testimony, to the effect that Hougland first
found out that he left early sometime in June, and that the first few nights
Hougland got someone to replace him , and Hougland's later saying, upon
being informed that Williams left early every morning, "okay, let me or
somebody know-that you have- to leave'and we will get'somebrodyelse-in
(Continued)
906 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
personnel., Trimble, who had hired Williams back in
January, denied having granted Williams permission to
work a 7-hour day.. The sane reply was subsequently
elicited from Schicker. Martin then went back to Williams
and,told him that, he had,-checked on his story and could
find no truth.in it: Martin again asked Williams to--make a
choice between his jobs. Williams, ; in Sadler's presence,
said that he would not give up his railroad job and that he
would quit Kisco.13 Superintendent Sadler then told
Martin that he would take care of the matter from that
point on. Williams continued to work as usual, leaving at 6
a.m._Sch'icker testified that he left the matter'of correcting
Williams' 7-hour day up to Foreman, Martin, and Martin
and Hougland both testified that they did nothing about it
because of Sadler's statement that he,would take care of it.
When, in=talking with other employees on'theshell line,
Williams found that they were receiving more money than
the porters; Williams, on August 14, filed a written
grievance with the Union's shop steward, Hillman Hill.
The grievance in effect complained that during the portion
of time that they worked, on the shell lineeach night, the
porters were doing assembly line work and, therefore, they
should be paid on a piecework or bonus' basis.
The following night, August 15, Sadler asked Williams
whether he was going to withdraw the grievance, to which
Williams replied in the negative, saying that he would take
it to, the next step.
On Monday, August 18, Williams and Hill went down to
Local 93's office. Business Representative Rowley was
given a copy of the grievance by-Hill, and, after discussing
the matter, Rowley promised to take it up with manage-
ment at a meeting set for the next day. Williams never
received any response as to what transpired at the
meeting,14 but on Wednesday night, August 20, Hill gave
Williams his grievance with the company position written
on it by Sadler. Sadler's remarks, dated August 15, stated
that "this employee is part-time worker and leaves at 6 a.m.
each morning. The rate of ' pay is '.the same: So if this
employee cannot devote full 8 hours, he will have to work
as prescribed or quit."
During the last 2 weeks of August, Superintendent Sadler
went-on vacation, and, in fact, terminated his employment
with the Respondent the first part of September. He was
replaced during this period by Second' Shift Foreman
Donald King, as acting superintendent of 'the third shift.
King testified that he first became, aware of the fact that
Williams was not working a 'full 8-hour day-when, after he
had been on the shift a few days and had signed a gate pass
for Williams a few times, Williams, in person, requested a
gate pass on August 28 to leave at 6 am King then asked
him why he was leaving the plant every day at 6 a.m.
Williams told him that he had another job to go to and he
had to leave at 6 a.m. in order to get `there on time. When
Williams, in reply to King, stated that he could not work 8
hours a day, King told him he would give him the
remainder of the week to make other arrangements, that he
your place before you leave."
1s The transcript is hereby corrected by adding the word "not" after the
word "would" on line 11 , P. 378,which correction reflects my recollection of
Martin's testimony and is consistent with that of Williams.
14 Rowley testified, however ,, that he took the matter up with Schtcker a
was;,,afraid that under company policy, whereby no part-
time help was, hired, he was going to: have. to require that
Williams work 8 hours a day.15 Williams, stated that he
would not give up his-other job under any conditions and
that King might as well go ahead and terminate him right
there. King told him that he did not wish to terminate him,
that he should make other arrangements so that he could
work 8 hours a day,for the Company, that it_was entirely
up,to him. Williams left rather disgruntled,. ,
The next night, August 29, it being Friday,, a payday,
Williams went to the,plant to claim his, weekly paycheck,
and to, turn in-his , goggles , and badge.- According to King,
Williams told him he quit. King told him he could not
release his check because-, under, company policy, if an
employee doesn't work his shift on payday, he cannot pick
up his check until the following Monday morning.
Williams reiterated, "I quit. I want my check." Afteran
alleged few vulgar remarks by Williams, King, informed
him that he could leave-the-Company's premises and if he
chose not to do, so he would have the security guard escort
him off, the property. Williams left.
On October 28, , and again on November 5, the
Respondent wrote to Williams offering him his old job
back on an 11 p.m. to 7,a.m. basis, to which Williams did
not reply.
Conclusion
The General Counsel contends that Williams was
terminated by the Respondent for filing the grievance
concerning the rate of pay for the porters working' on the
shell line . Respondent asserts that such is not the case and
that Williams quit when confronted with the alternative of
working an 8-hourday.
Condensed, the facts disclose that Williams was hired on
a 7-hour work day basis, that during his entire-tenure with
the Respondent he worked a 7-hour day a majority of the
time,16 that in June he, along with other porters, com-
menced splitting his time on a production line, that on
August 4, Williams and his fellow porters were-permanent-
ly transferred to that line, and that on or about August l 1,
he was, for the first time, apprised of a company policy
against part-time work and told to choose between his job
at Kisco `and the, one he had with Illinois Terminal. When
on this, same day; August 11, Williams told Sadler and
Martin that he would rnot give up his railroad job, Sadler
indicated that he would `take' care of the matter. Sadler,
however,' did not take care' of the matter, but rather
permitted Williams to continue' working on his usual 7-
hour basis.
A few days later, Williams filed his grievance on behalf
of all the porters, and-almost immediately, on August 15,
was asked by Sadler if he was going to, withdraw it.
Williams indicated that he would not-The grievance
document, executed on this same date by Sadler, reveals
that Sadler'did not even address his remarks to the merits
couple of days later and in checking Williams' records, found that he Was
receiving the correct amount of pay.,
15 Williams testified that,King told hum only that "the Companyis not
going to have any more part-time employees . If you can't work = eight hours,
you have to look elsewhere for employment"
i 16 By stipulation , company records .so disclose.
KISCO 'COMPANY, INC. 907
of the complaint, but rather confined them to the'fact that
Williams was a part-time worker who must work an 8-hour
shift or quit.--Finally, 2 weeks later, Williams was forced
into his decision when a substitute foreman, assertedly on
his own, `told Williams he must work an 8-hour day or
make other arrangements.
-While I find the record to substantiate the existence of a
company policy against hiring ' part-time help, and that
under such policy, the Company had earlier phased out
many part-time employees, I also find, notwithstanding
such policy, that as a porter, Williams had always worked
less than the 8 hours a day and that such was known, at
least by Leadman Hillman Hill, during that period of his
employment . The credible evidence also reveals that
Sadler, Hougland, Schicker, Martin, and King were not
aware of Williams' 7-hour - shift prior to his permanent
transfer to the - production line. Notwithstanding these
facts, however, the record, reveals that once company
management became aware of Williams' short workday,
nothing was done about it until after Williams had filed his
grievance on behalf of his fellow porters . Sadler's reaction
to the grievance undoubtedly reflected his true feeling on
the matter . The fact that he himself did, not follow up on
his ultimatum to Williams may . well•be explained by-the
fact that he (Sadler) left that very night on vacation, as,it
turned out, never to return again . , Under these circum-
stances, with Hougland, Schicker, and Martin well aware
of Sadler's viewst as expressed on the , grievance itself, it is
difficult to accept King's testimony , to ,the effect that, in
giving Williams the alternative , he was enforcing company
policy . King admitted that, while he might tell 20
employees a month they had to work 8 1ours a day, this
was the first time :he had ever told an employee Who
worked less than 8 hours that he must work the full shift or
quit.
For a temporary substitute foreman , under these
circumstances, to enforce company policy against an
employee who had always been part-time without first
checking with other responsible management people is less
than realistic. Thus, contrary to King's testimony,17 I find
that King was wel l aware of , Sadler's decision, that he was
in fact, enforcing Sadler's decision , and that Sadler's
decision on August 15 (as distinguished from his earlier
statement to the effect that he would take care of the
matter) was based upon Williams' action in filing a
grievance (one of very few filed against "the Company in
months)-
I find that , in filing a grievance on behalf of himself and
his fellow porters concerning their rate of pay, Williams
was engaged in concerted protected activity, and that the
Respondent's ultimatum to work an 8-hour day or quit was
motivated by his having filed such 'grievance, thus resulting
in Williams ' constructive discharge .18 Accordingly, I find,
as alleged in paragraphs . A and C of the complaint in Case
14-CA-5273, that the Respondent discriminatorily dis-
17 Ring testified that he had received no instructions from any of, his
superiors to discharge Robert Williams or to force him to work an 8-hour
shift. lie also testified that he had never seen the grievance filed by Williams
until the hearing, and that his 'alternativeto Williams was based solely upon
company policy concerning part-time work . He further testified that he
knew nothing of the conversation that Martin and Hougland had had with
Williams earlier. I do not credit his testimony in this regard.
charged Robert Williams on August 29, 1969 , in violation
of Section S(a)(3) and (1)`of-the Act . I further find that the
Respondent's October 28 and 'November 5, 1969, letters to
Williams did no more than offer him his job back on an 8-
hour basis, the same choice he had in August, and
therefore,that such offers do not constitute `valid offers of
reinstatement on the same terms - as when he left.
Therefore, I find, as alleged in paragraph B of the same
complaint, - that --the Respondent has 'failed to reinstate
Williams - to -his ' previous or substantially equivalent
position - of employment,- arid has thereby violated Section
8(a)(3) and (1) of the Act.
C. Case 14-CA-5399
1. Alleged violations of Section 8(a)(3)
Paragraphs 5 A and B of this complaint, as amended at
the hearing, allege as violative of Section 8(aX3) the
Respondent's refusal to pay employee Timothy Smith
holiday pay due him for Thanksgiving 1969, because of his
failure to join or pay dues to Local 93.18 Preliminarily, the
record reveals that Smith , who, except as noted herein,
worked for the Company from' August 1967 until Decem-
ber ' 15, 1969, did' not receive holiday pay for Thanksgiving
1969, which fell on November 27. It is also undisputed that
Smith was discharged- by the Respondent at the end of the
day, November 26, pursuant to the Union's request, that he
did not work on Monday, December 1, the next working
day, that he was called back to work on Tuesday,
November 2, pursuant to the Union's request, and that he
was subsequently discharged on December 15, again,
pursuant to the- Union's request. The collective-bargaining
contract, in existence between Local 93 and the Respon-
dent, requires, in'pertinent part, an employee to work the
last scheduled workday before and the next scheduled
workday following a holiday in order for that employee to
qualify for holiday pay. -
The record further discloses that Smith had previously
been `a- member of Local 93 in good standing, but had at
some time been dropped from membership for having
become 3 months in arrears in his dues. On November 10,
the Union wrote a letter to all nonunion employees of the
Respondent, some 160 including Tim Smith, advising them
that those who had not filled out "an application or an
authorization for the deduction of initiation fee and union
dues to become members of Sheet Metal Workers Local
Union 99" would be terminated if the forms were not
received by Friday, November 14. On November 12, the
Company posted a notice on the plant bulletin board
indicating that it had received notification-from the Union
that the named employees, including Tim Smith; had -not
committed themselves to the Union for initiation fees and
dues as of that date . On the notice, below the list of names,
the Respondent stated:
As you know, we have a union shop contract which is a
1s Williams' employment application shows that he-had worked for
Illinois Terminal since 1951 , which fact lends itself to the conclusion that
Williams had little ` choice when confronted with King's ultimatum.
're Whereas the complaint alleges employee Timothy Smith as having
been discriminated against , the employee involved, upon taking the witness
stand,' gave his name-as Tim Smith. Accordingly , the latter will-be used
throughout.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment and all ,employees,,must pay
initiation,, fees and dues tthe Union,, or the Union,has
a, right;, to, request , termination andthe Company must
„comply with their request.
,The. above-pamedemployees who have not properly
committed themselves will, be ,terminated from, their
employment if, they do not take, action to take: care of
their- union,;obligation ,by Friday, NoYembert 14, 1969.
By-letter dated November „ 17 .,to Schicker, business
Representative-,Rowley requested thattSmith along with 7$
other, named- employees ,be terminated, at-, the end of the
shift on Tuesday, November 18, for nottihavingzfulfiilled
their financial obligations to Local 93. The letter, however,
was not sent until November 24.
According to Russell, president of Local 93, during the
morning of, November 26, he called Schicker to tell him
that some of the employees on the letter had since come
down andsatisfied,`their obligations' and therefore should
not be terminated. Rchicker told Russell that if he.got a list
of,'those people, out to him before 3 p:m; that afternoon, he
would, take scare , of it; that the list of employees to be
terminated .would go to the,'foremen `at that time.
Russell then '- had, a letter typed with the naxries of
employees ,that hash been okayed,' which letter, `dated
Nov mbery r did not includ Smiths name and Russellens, - e ., , f
accompanied by `Rowley,, took„ ,the letter, out, , to the
Company,,`arrlving;about2 p.m. A's Schickerwas tied up in
a_meeting, Russell and Rowley went gut to the plant gate
'where they talked with several shop stewards for a while
and, then returned to the personnel- office. "There they
talked to, a Frank Schonhardt, office, clerk.FRussell asked
Schonhardt flow, ,theyawere,going to get the list in, on time,
and _ Schonhardt told Russell to , give it to him, which
RuSsell,did.YAlso, having learned from the shop stewards,at
the gate that a, _ number: of`, additional employees had
satisfied, their- union,obl}ga,tion and havingmarked "okay"
beside the names of these employees on a copy of the
original "November 17 letter which Russell had with him,
Russell told Schonhardt about these additional names and
asked, him, to.write them down and add them to the names
on the current, November-24 letter. Accordingto Russell,
he called the, names, off and Schonhardt wrote them down
on a piece of paper. This new list of employees included
the name of Smith. Russell anted, him to give, the letter,to
theM,Company; so that the employees would not be
terminated thatday. ,
Russell and Rowley left the, personnel -office, and while
talking outside,,Schicker went by ,them into his - office.
Russell, and Rowley went in,and toldSchicker that since he
had not-been, in,, they had giventhe letter, along with some
additional names, to Schonhardt. , Schicker told the union
officials ,that, they,, should not have -given- -the letter to
Schonhardt, but - only to-,,him or Jerry; Holden, Respon-
dent's president. However, Schicker advised them that he
would;take care,qf it.
Schicker denied receiving any request from the Union on
November 2,6 'to°not terminate any employees, admitting,
however, , that "either Russell or `Rowley called that
morning, saying that he l ad some names that they wanted
20 This was a confirmation , of a telephone , conversation between Rowley
and Schicker.
to approveas having satisfied their union obligations, and
that he would see him later .in the day., Schicker, who
denied that the ; Union, submitted any names-,to not, be
terminated or thatany company clerk gave him, any names,
admitted.,that shortly after 3 p.m. that i day Russell or
Rowley told him in person that Schonhardthad the names.
Schic er admonished, them, as he had on other occasions,
fox, talking ,with -Schonhardt or any-other office clerk; that
he-himself handled the Company's labor relations.-Schick-
er admitted that her did not attempt to,get the names, from
Schonhardt because "I thought that if they had something
they, wanted to give me on thatoccasion, they could give it
to me:
Apparently most of these employees whom Russell had
indicated were back in the good graces of the Union were
terminated that day -anyway, for the- Company posted
another notice, dated November 26'. to employees appris-
ing-them that,some 48 named employees, according to the
information furnished° by the'U=nion,=had completed, their
45-day ' probationary period and 'were in` - arrears' as to
meeting their ` initiation fee and union dues.- The,'notice then
stated that , "under the', union shop- contract, since` the
Union 'had requested their terminatioli'for nonpayment of
initiation fee and ,dues,' she Company had to'comply." The
notice continued by stating that the named employees,
which included Tim Smith, were terminated at the end of
their regular shift' that day. It-concluded by advising the
employees that if anyone could establish= the fact thif he
had paid'his initiation fee and dues and was not in arrears,
he should contact the personnel office'
The, following Monday; °December ^' 1, Russell and
Rowley asked Schicker in the litter's, office why it was that
the' employees - that they had personally,' okayed on
November 26 had-been discharged, Schicker replied that
he was not aware that some of these people had been
terminated` "and 'that he would check on it. Russell also
admitted on cross-examination that, at this" meeting, he
told Schicker that he had additional names of employees
who-bad been - cleared by,the"Union 'but° whose naives,
through a slip' on- the `part of the local, haal not been
transmitted to th e Company "on,,` November , 26. - Russell
asked that these people be, put back to work,, "and Schicker
told' him to_give him the names, adding that this was' the
second time that his Union had attempted to change its
demands with respect to discharges for failure to comply
with the union security clause of the contract.
'By, letter dated,,, December 2, from Rowley O' the
Company, the' Union advised that some 42 ,named
employees, including Smith,'had satisfiedtheir`'obligations
to the Union as per telephone conversation thatd^ay, and
tjiprefore should not be,terminated.2e Smith , was. rehired this
date.
By letter dated ,the, following day, December 3', to
Schicker from Rowley, the ,Union. again requested, the
discharge of a large number of employees for -failure=to
acquire membership in Local 9-1,-,- such, request to be
effective December 10 for` any such employee who did not
fulfill his obligation by 5 p,m., December 8. Tim Smith was
KISCO COMPANY, INC. - 909
among those listed. Smith's final discharge, pursuant to,,the
Union's -_ last request,,, was effective , December 15.
Conclusion
individual -