Langlade Veneer Products Corp.

National Labor Relations Board - Board Decisions

Aug 8, 1957

118 N.L.R.B. 985 (N.L.R.B. 1957)

LANGLADE VENEER PRODUCTS CORPORATION 985
assignment of the work by the Association. All of the employees per=
forming the said work so assigned were and are either members of
labor organizations other than the Engineers or in other trades, crafts,
or classes.
It is well established that an employer is entitled to make such as-
signment free from strike pressure by a labor organization, "unless
such employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees per-
forming such work." is
Accordingly, the Board finds that the Engineers was not and is not
lawfully entitled to require the Association's members or any other
employers to assign the aforesaid work to members of the Engineers
rather than to members of any other labor organization or to non-
members of any labor organization.
Determination of Dispute
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following determination of dispute pur-
suant to Section 10 (k) of the Act:
1. International Union of Operating Engineers, Local 825, AFL-
CIO, and its agents are not and have not been lawfully entitled to force
or require the members of the Building Contractors Association of New
Jersey or any other employers to assign the work in dispute to mem-
bers of the Engineers rather than to members of any other labor or-
ganization or to nonmembers of any labor organization.
2. Said Local 825 of the Operating Engineers shall, within ten (10)
days from the date of this Decision and Determination, notify, in
writing, the Regional Director for the Second Region of the National
Labor Relations Board, whether or not it accepts the Board's deter-
mination of this dispute, and whether or not it will refrain from forc-
ing or requiring the Building Contractors Association of New Jersey,
by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the
work in dispute, to members of Local 825 rather than to members
of any other labor organization or to nonmembers of any labor
organization.
19 Juneau Spruce Corporation, 82 NLRB 650. The parties hereto stipulated that the
Association is not failing to conform to an order or certification of the Board determining
the bargaining representative for employees performing such work.
Langlade Veneer Products Corporation and International Wood-
workers of America, AFL-CIO. Case No. 18-CA-C730. August
8,1957
DECISION AND ORDER
On December 19, 1956, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
118 NLRB No. 125.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board 1 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 entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We find no merit in the Respondent's contention that the Board
should decline to assert jurisdiction herein because its indirect outflow
during the 12-month period immediately preceding the hearing was
less than $100,000. It is sufficient that the Respondent's indirect out-
flow exceeded $100,000 during the calendar year 1955, which was the
calendar year immediately preceding the hearing herein, and during
which some of the unfair labor practices found herein were com-
mitted.' Accordingly, although we do not adopt the Trial Examiner's
rationale, we agree with his conclusion that it would effectuate the
policies of the Act to assert jurisdiction in this proceeding.
2. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (1) by the coercive statements made
by Plant Manager Muetzelburg (1) to employee Harold Archer that
Muetzelburg had fired people in his employ for a lot less than being in
the Union; (2) to employee Ann Wolf that he had heard she was talk-
ing seniority rights and that she was not to make any statements
concerning seniority in the plant; and (3) to Union Agent Rasmussen,
when the latter told him that the collective bargaining issues between
them would have to be settled eventually, that if the Union was going
1 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 Leedom and, Mem-
bers Murdock and Rodgers].
2 The Trial Examiner correctly ruled , in accord with , established Board practice, that
factual issues pertaining to the compliance status of the Charging Union, such as the Re-
spondent sought to raise herein , were matters for administrative determination only, and
were not litigable in this proceeding . Kohler Co ., 117 NLRB 321 , and cases cited therein.
The Board respectfully disagrees with the court 's decisions in N. L . R. B. v. Puerto Rico
Food Products Corp., 232 F. 2d 515 (C. A. 1) ; and Goodman Manufacturing Company v.
N. L. R. B., 234 F. 2d 775 (C. A. 7) ; and with the court's statement in N. L. R. B. v. Eastern
Massachusetts Street Railway Company, 235 F. 2d 700 (C. A. 1), upon which the
Respondent relies. Nor is there merit in the Respondent 's contention that it was denied
the opportunity to which it was entitled to litigate the existence of and necessity for com-
pliance, with the requirements of Section 9 (f), (g), and ( h) by an alleged local of the
Charging Union . Apart from any other consideration , it is established that the validity
of a complaint is not affected by the compliance status of a subordinate of the Charging
Union. Ekco Products Company, 117 NLRB 137. As the Board is administratively satis-
fied that the Charging Union has been in compliance therewith at all times material to this
proceeding , the Respondent 's motion to dismiss the complaint on grounds pertaining to
compliance is denied.
a F. M. Reeves and Sons , Inc., 112 NLRB 205; ef. Aroostook Federation of Farmers, Inc.,
114 NLRB 538.
LANGLADE VENEER PRODUCTS CORPORATION 987
to hold a club like that over his head, there would be no Langlade
Veneer to bargain for because it would be closed down. We also agree
with the Trial Examiner that Foreman Steinfest's repeated interroga-
tion of employee Eckhardt as to whether she was going to attend union
meetings constituted interference, restraint, and coercion, when viewed
in the context in which the interrogation occurred, and therefore
constituted a further violation of Section 8 (a) (1).4
3. As set forth in the Intermediate Report, the credited evidence
establishes that Plant Manager Muetzelburg met with union repre-
sentatives on three occasions after the Union was certified on Septem-
ber 29, 1955. At these bargaining sessions Muetzelburg consistently
refused all demands for any increase in wages, holidays, or vacations.
On January 17, 1956, the Union's international organizer called
Muetzelburg on the telephone and asked for another meeting, which
Muetzelburg agreed to hold on January 20,1956. Before the scheduled
meeting could be held, however, Muetzelburg called the employee
negotiating committee into his office on January 19, 1956, and an-
nounced that he intended to grant an immediate retroactive wage
increase, 2 holidays, and a week's vacation, and intended to call each
employee into his office individually and explain the benefits. Ray-
mond Roberts, a member of the employee committee, protested the
calling of employees in one at a time, and insisted that if the Respond-
ent had anything to offer, it should submit its offer to the committee
and the Union. Muetzelburg ignored Roberts' protest and, after
Roberts and the rest of the committee had left his office, called the
employees in individually and informed them of the benefits which had
been granted. The next day, at the January 20 meeting, which was
held as scheduled, the Union's district president and its international
organizer again protested the Respondent's unilateral actions on the
previous day in the face of a scheduled negotiating meeting; they com-
plained that the Respondent had not bargained in good faith; and
inquired whether the Respondent intended to bargain in good faith in
the future. Muetzelburg replied he was willing to use the granted
benefits as a foundation for further bargaining. Negotiations were
then resumed throughout which, however, as found by the Trial
Examiner, the Respondent engaged in dilatory tactics for the purpose
of delaying an agreement, and, on June 6, 1956, again unilaterally
granted employee benefits in the form of 2 additional paid holidays.
The Trial Examiner found that the Respondent, by unilaterally
granting the employee benefits on January 19, violated Section 8 (a)
(5), and by its conduct thereafter, as set forth above, failed and re-
fused to bargain in good faith in further violation of Section
8 (a) (5).
4 Cf. Blue Flash Express, Inc., 109 NLRB 591.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that its action in granting employee
benefits on January 19 was not unilateral because it previously "con-
sulted" with the negotiating committee, which was all it was required
to do under the Supreme Court's decision in the Crompton-Highlands
Mills case;' and because the Union did not object to the Respondent's
proposal. We find no merit in this contention. The credited evidence
shows that Roberts, as spokesman of the employee negotiating com-
mittee, vigorously protested the Respondent's plan before it was put
into effect, and the Union's representatives protested again at the
negotiating meeting the following day. Under these circumstances,
the Union's subsequent acceptance of the Respondent's fait aceompli
as a basis for further negotiations was not tantamount to acquiescence
in the Respondent's actions.' Further, the announcement of a fixed
intention to grant specific benefits, as the Respondent did in this case,
is not "consultation" with respect thereto as contemplated by the
Court in the Crompton-Highlands Mills case. On the contrary, such
an announcement, followed by the carrying out of the plan, over the
protest of the certified bargaining agent, is the very antithesis of the
making of a proposal which might form the basis for a partial or com-
plete settlement of the matters at issue between the parties.7
Nor on this record can we find that the parties had reached an
impasse prior to January 19 which might warrant such unilateral
action. The record shows just the opposite. Indeed, the Respondent
in effect admitted that no deadlock had yet been reached, for it had
scheduled a bargaining session for the very day following its unilateral
action, and participated in that and several subsequent meetings with
the Union in an alleged attempt to reach an agreement. Moreover,
even assuming that an impasse had been reached, the Respondent's
change of position as to an increase in wages, holidays, and vacations,
after having refused any such increases to the Union at the three
meetings prior to January 19, would effectively have broken any im-
passe that might therefore have existed.'
Under these circumstances, therefore, we find, in agreement with
the Trial Examiner, that by unilaterally granting directly to its em-
ployees, over the Union's objection, economic benefits which it had
never offered to their bargaining representative, the Respondent failed
and refused to bargain in violation of Section 8 (a) (5) and (1) of
the Act.'
4. We also find, on the basis of the facts as found by the Trial Ex-
aminer, and for the reasons given by him, that the Respondent since
& 337 U. S. 217.
Cf. Lloyd F. Richardson , Sr., et al ., 109 NLRB 136; White Motor Co., 111 NLRB 1272;
Mitchell Plastics, Inc., 117 NLRB 597.
Cf. N. L. R. B. v. Bradley Washfountain Co., 192 F. 2d 144 (C. A. 7).
Pont Milling Company, 117 NLRB 1277.
Dimon Coil Co., Inc., 110 NLRB 196.
LANGLADE VENEER PRODUCTS CORPORATION 989
January 19, 1956, has failed to bargain with the Union in good faith,
in further violation of Section 8 (a) (5) and (1).
5. We find that the Respondent discriminatorily discharged Ray-
mond Roberts on February 27, 1956, in violation of Section 8 (a) (3)
and (1), for the reasons given by the Trial Examiner. In addition,
on the basis of the credited evidence and the record as a whole, we
find that,10 even if the Respondent had thought, contrary to the fact,
that Roberts was drinking alcoholic liquor during the break periods,
as the Respondent contends, such belief was not the cause of his
discharge, but was only a pretext to conceal the real reason, which
was to discourage further union activities by its employees by elimi-
nating from the scene a prominent union advocate whom Muetzelburg
had previously threatened to discharge because of his opposition to
the Respondent's unilateral action of January 19, 1956, as set forth
hereinabove."
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Respondent, Langlade
Veneer Products Corporation, Antigo, Wisconsin, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Inter-
national Woodworkers of America, AFL-CIO, or any other labor
organization, by discharging employees or in any other manner dis-
criminating against its employees in regard to their hire or tenure
of employment.
(b) Refusing to bargain collectively with International Wood-
workers of America, AFL-CIO, as the exclusive bargaining repre-
sentative of all production and maintenance employees at the Respond-
ent's Antigo, Wisconsin, plant, excluding office clerical employees,
guards, and supervisors as defined in the Act, with respect to rates
of pay, wages, hours of employment, or other conditions of employ-
ment, by resorting to dilatory tactics in the course of bargaining, or
by unilaterally instituting wage increases or changes in working
conditions.
(c) Threatening its employees with loss of employment if they
engage in union activities, prohibiting its employees from discussing
working conditions in the plant, or interrogating its employees as to
their union activities in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1).
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
10 Member Rodgers would not make this additional finding.
"So uthern Desk Company, 116 NLRB 1168.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form labor organizations, to join or assist International Woodworkers
of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid and protection, or to refrain from engaging in
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization or
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Raymond Roberts immediate and full reinstatement
to his former or substantially equivalent position and make him whole
for any loss of pay suffered as a result of the discrimination against
him as provided in the section of the Intermediate Report entitled
"The Remedy."
(b) Upon request, bargain collectively with International Wood-
workers of America, AFL-CIO, as the exclusive representative of
its employees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(c) Post at its plant at Antigo, Wisconsin, copies of the notice at-
tached hereto and marked "Appendix." 12 Copies of said notice, to
be furnished by the Regional Director for the Eighteenth Region
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of back pay due and the
rights of Raymond Roberts under the terms of this Order.
(e) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
IJ 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, Fnforcing an Order."
APPENDIX
NOTICE TO ALL E31PLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
LANGLADE VENEER PRODUCTS CORPORATION 991
WE WILL NOT discourage membership in or activities on behalf
of International Woodworkers of America , AFL-CIO, or any
other labor organization , by discharging employees or in any
other manner discriminating against our employees in regard to
their hire or tenure of employment.
WE WILL NOT refuse to bargain collectively with International
Woodworkers of America , AFL-CIO, as the exclusive represent-
ative of our employees in the appropriate unit, with respect to
rates of pay, wages , hours of employment , or other conditions of
employment by restorting to dilatory tactics in the course of
bargaining or by unilaterally instituting wage increases or
changes in working conditions.
WE WILL NOT threaten our employees with loss of employment
if they engage in union activities , or prohibit our employees from
discussing union activities in the plant , or interrogate our em-
ployees as to their union activities , in a manner constituting inter-
ference, restraint , or coercion in violation of Section 8 (a) (1).
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations , to join or assist International
Woodworkers of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Raymond Roberts immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges pre-
viously enjoyed , and make him whole for any loss of pay suffered
as a result of our discrimination against him.
WE WILL bargain collectively upon request with International
Woodworkers of America , AFL-CIO, as the exclusive represent-
ative of all employees in the bargaining unit described below
with respect to rates of pay , hours of employment, or other con-
ditions of employment , and if an understanding is reached, em-
body such understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees employed at
our Antigo , Wisconsin , plant; excluding office clerical em-
ployees, guards, and supervisors as defined in the Act.
All our employees are free to become or remain or to refrain from
becoming or remaining members of International Woodworkers of
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL-CIO, or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
LANGLADE VENEER PRODUCTS 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on March 8, 1956, by International Woodworkers of America,
AFL-CIO, herein called the Union, the General Counsel of the National Labor
Relations Board 1 by the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota) on June 7, 1956, issued a complaint against Langlade Veneer Products
Corporation, herein called the Respondent, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (3) and (5) and Section 2 (6) and (7) of the Labor
Management Relations Act, 1947, herein called the Act. Copies of the complaint
and the charge together with notice of hearing thereon were duly served upon the
Respondent and the Union. The hearing was held before W. Gerard Ryan, the
duly delegated Trial Examiner.
With respect to the unfair labor practices the complaint, as amended at the hearing,
alleged in substance that the Respondent has since sometime in October 1955 en-
gaged in and is now engaging in a continuous course of interference, restraint, and
coercion of its employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of collective
bargaining, or other mutual aid or protection; that the Respondent in October 1955
and in January and April 1956, threatened employees with reprisals if they engaged
in concerted and union activities; questioned employees in January, February, and
March 1956 regarding their concerted and union activities; granted, on or about
January 19, 1956, its employees a wage raise and instituted paid holidays and vaca-
tion benefits to discourage its employees in their concerted and union activities; on
or about February 27, 1956, discriminatorily discharged and thereafter refused
reinstatement to Raymond Roberts because of his membership in, and activities
on behalf of, the Union; and on or about and after January 19, 1956, although
requested, has failed and refused to bargain collectively with the Union.
In its answer (paragraph 12) as a further answer to the complaint, the Respondent
alleged that it had no information that International Woodworkers of America,
AFL-CIO, or other affiliated labor organizations acting as the representatives of
the employees in the unit as defined in paragraph 9 of the complaint, have complied
with the provisions of Section 9 (f), (g), and (h) of the Act and, therefore puts
the General Counsel to his proof thereof; and requested that in the absence of such
proof, the complaint be dismissed for lack of jurisdiction. At the hearing, I ruled
that compliance or noncompliance would not be litigated at this time before me and
I permitted no line of inquiry on that feature of the case. The Respondent moved at
the end of the case-in-chief to dismiss the complaint "on the grounds that notwith-
standing the fact that the issue was raised in the answer, that the Board has made
no attempt to prove that the Charging Union or any other organization representing
these employees complied with Section 9 (f), (g), and (h) of the Act." I denied
that motion and I hereby confirm such ruling. It is the Board's established practice
to release such compliance information upon the request of any interested party
in a Board proceeding. As the Board has stated in Coca-Cola Bottling Company
of Louisville, Inc., 108 NLRB 409, 491:
' The General Counsel and his representative are herein referred to as the General
Counsel ; and the National Labor Relations Board as the Board.
LANGLADE VENEER PRODUCTS CORPORATION 993
the Board has nevertheless permitted, and even encouraged parties to
Board proceedings to bring to the Board's attention matters affecting the com-
pliance status of unions. . . . To assist the parties in calling such matters to
its attention, the Board has adopted the policy of having its agents release to
interested parties, under proper safeguards, names of designated union officers
and of persons who have filed the requested affidavits.
The Respondent in its answer stated it had no information that the Union had
complied with the provisions of Section 9 (f), (g), and (h) of the Act. It could
have had that information had it made any request to the Board for compliance
information. The Board has construed the Coca-Cola decision 2 as holding no
more than that questions of law, and more specifically, questions involving the inter-
pretation of terms used in Section 9 (h) may be raised and litigated in an unfair labor
practice proceeding.3 The Board's rule that factual questions concerning compliance
are not litigable in an unfair labor practice proceeding but are matters for ad-
ministrative determination has not been overturned by the Supreme Court in the
Coca-Cola case for as the Court stated neither Highland Park 4 nor the Coca-Cola
case involved an inquiry into disputed facts. I do not interpret the Coca-Cola case
to decide anything except the question-one of law, not of fact-presented, namely
that a question of law under Section 9 (h) could be litigated in an unfair labor prac-
tice proceeding. The question as framed by the employer therein was "whether the
Respondent-Employer may challenge in an unfair labor practice proceeding the deter-
mination of the National Labor Relations Board that a union is in compliance with
Section 9 (h) of the Act when that determination is based on an alleged erroneous
construction of the statute." The employer in its brief to the Supreme Court con-
ceded that factual questions respecting a union's compliance are not litigable but are
subject to the administrative determination.
At the hearing full opportunity 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, proposed findings, and conclusions was afforded all parties. An un-
opposed motion by the General Counsel to conform the pleadings to the proof in
matters not of substance was granted. Oral argument was waived and briefs have
been received and considered from the General Counsel and the Respondent. The
Respondent's various motions to dismiss at the end of the General Counsel's case-in-
chief and at the end of the entire case, upon which decision was reserved, are hereby
denied. Briefs were filed by the General Counsel and by the Respondent, which have
been considered.5
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 THE RESPONDENT
The complaint alleged in the first sentence of paragraph 2:
In the past year Respondent's revenue derived from services sold to Frost
Veneer and Plywood, Inc., herein called Frost, was in excess of $100,000.
When the answer denied that allegation, the General Counsel moved to amend
paragraphs 2 and 3 of the complaint. Over objection of the Respondent, I granted
such amendments. The complaint, as amended, with respect to paragraphs 2 and 3
reads as follows (new matter italicized) :
2. In the calendar year of 1955, Respondent's revenue derived from sales
of services and materials to Frost Veneer and Plywood, Inc., herein called
Frost, and Morgan and Company located at Oshkosh, Wisconsin, herein called
Morgan, and Stanley Corporation located at Stanley, Wisconsin, was in excess
of $100,000. Frost is, and at all times herein material has been a Wisconsin
corporation located in Antigo, Wisconsin, operating a factory where it is en-
gaged in the business of manufacturing veneer. In the past year, Frost's sales
2 N. L. It. B. v. Coca, Cola Bottling Company of Louisville, Inc., 350 U. S. 264.
3 See Desaulniors and Company, 115 NLRB 1025.
4 N. L. It. B. v. Highland Park Manufacturing Co., 341 U. S. 322.
6 On page 12, the Respondent's brief states "Paragraph 12 of the complaint alleges a
refusal to meet with the union." The brief then argues the state of the record on that
point. It suffices to remark that neither paragraph 12 nor any other paragraph in the
complaint contains that allegation.
450553-58-vol. 118-64
'994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its products were valued in excess of $1,000 ,000, about 34 percent of which
was shipped to points outside the State of Wisconsin . That Morgan annually
sells goods and services to points outside the State of Wisconsin valued in excess
of $50,000. That Stanley annually sells goods and services to points outside of
the State of Wisconsin valued in excess of $50,000.
3. Respondent and Frost are, and at all times herein material have been,
engaged in commerce within the meaning of Section 2 (6) of the Act.
(a) Morgan and Stanley are, and at all times herein material have been,
engaged in commerce within the meaning of Section 2 ( 6) of the Act.
The answer as amended admits the allegations contained in the first sentence in
paragraph 2 of the amended complaint ( that in the calendar year 1955 , Respondent's
sales to Frost , Morgan , and Stanley were in excess of $100 ,000) and as a further
answer states:
Respondent alleges that in April of 1955 Respondent substantially altered its
method of doing business whereby since , on and after April of 1955 the
company ceased purchasing materials on which it processed and commenced
performing a service operation only. Such services were performed only for
the Frost Veneer and Plywood Company. During the year preceding the
issuance of the complaint , Respondent performed services for Frost of less
than $ 100,000 a year , and there is no indication at the present time that there
will be any material change in Respondent 's volume of business or its method of
doing business.
Further answering paragraph 2 of the amended complaint , the Respondent admits
on information and belief that the Morgan and Stanley Companies each sells goods
and services to points outside of the State of Wisconsin of a value in excess of
'$50,000 a year . The Respondent in its amended answer on information and belief
admits the allegations contained in paragraph 3 (a) of the amended complaint (that
Morgan and Stanley are each engaged in commerce within the meaning of the Act).
The Respondent, Langlade Veneer Products Corporation, is a Wisconsin corpo-
ration with its plant at Antigo , Wisconsin , formed on September 1, 1954, in the
business of processing single ply veneer. Prior to April 1, 1955 , this was accomplished
by purchasing veneer from Frost Veneer and Plywood , Inc., at Antigo , Wisconsin;
joining, splicing , and matching the veneer and then selling it back to Frost and other
,customers . During the calendar year 1955, its total sales of materials and services
were $91 ,261.16 to Frost , $21,930.59 to Morgan and to Stanley, and $8,180.38 to
,out-of-State customers, amounting to a total of $121,372.13. Up to April 1, 1955,
the Respondent bought $31,529.35 of veneer from Frost . Excluding glue, the
Respondent purchased from out-of-State concerns during the calendar year 1955,
$2,331 . 76 worth of materials. During 1955 glue was purchased from a Pennsylvania
.concern and shipped from a stock maintained in Shawano , Wisconsin , in the total
amount of $1,829.91. As shown above, during the calendar year 1955, which is the
most recent full calendar year of the Respondent 's business experience , the Re-
spondent 's sales of materials and services to Frost , to Morgan , and to Stanley, each
.of said concerns being located in Wisconsin , exceeded $ 100,000; and each of said
.concerns in the calendar year 1955 , sold goods and/or services valued in excess of
$50,000 to points outside the State of Wisconsin . The Respondent admitted that
Frost , Morgan , and Stanley individually sold goods and services to points outside
the State of Wisconsin in excess of $50,000 and that the three said concerns are
engaged in interstate commerce within the meaning of the Acts
On April 1, 1955, the Respondent 's operation was changed in that it no longer
purchased veneer from Frost; all raw material on hand was transferred to Frost; and
from that time it sells a processing service only . From April 1, 1955 , to April 1,
1956 , the Respondent rendered services to Frost exclusively in a total amount of
$83,944.97. From June 1, 1955, to May 31, 1956 (the year prior to the hearing or
issuance of the complaint), the Respondent's services to Frost totaled $81,413.66.
The question presented is whether the calendar year 1955 or the year prior to the
hearing and issuance of the complaint is to be considered as the basis for the
assertion or denial of the Board 's jurisdiction . If the calendar year 1955 be taken,
then the General Counsel has satisfied the Board 's jurisdictional requirements. If the
6 J. J. Davis , the president of the Respondent is also president of Frost and vice president
of Paine Lumber Company. Dale Wood , the vice ;,resident of the Respondent is also vice
president of Frost and vice president of Paino T. mt,cr Company. Pfaffenroth , the secre-
tary-treasurer of the Respondent , is also secretary- treasurer of Frost and secretary-
treasurer of Paine Lumber Company.
LANGLADE VENEER PRODUCTS CORPORATION 995
year prior to the hearing and the issuance of the complaint be used , then the General
Counsel has not satisfied the Board 's jurisdictional requirements.
In view of the fact that following its certification by the Board in September 1955
the Union should have the usual year following certification to negotiate and obtain
a contract if possible ; and that during the year following certification , as hereinafter
found , the Respondent has engaged in violation of Section 8 (a) (1), (3 ), and (5)
of the Act, jurisdiction should be asserted over the Respondent on the basis of its
business operations during the calendar year 1955.
Upon the entire record I find that it will effectuate the purposes of the Act to assert
jurisdiction on the basis of the Respondent 's operations during the calendar year
1955 rather than to deny jurisdiction on the basis of the Respondent 's business in the
12-month period preceding the date of the hearing and the issuance of the complaint.
Accordingly, I find that the Respondent at all times herein material has been engaged
in commerce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO, is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
With respect to unfair labor practices , the complaint was amended without ob-
jection with respect to paragraphs 5 (a), 5 (d ), 13, 15 , and 16 . The paragraphs
as amended with new matter italicized are as follows:
5. (a) Roland W. Muetzelburg some time in October 1955 and in January,
February and April 1956 threatened employees with reprisals if they engaged
in concerted and union activities.
(d) Respondent on or about June 6, 1956 granted its employees two addi-
tional paid holidays to discourage its employees in their concerted union ac-
tivities.
13. Respondent on or about January 19 , 1956 , unilaterally and without con-
sulting or bargaining with the Union, granted to its employees in the Unit, a
wage raise , paid holidays , and vacation benefits, and instituted a new job
classification program . Respondent on or about June 6, 1956, unilaterally with-
out consulting or bargaining with the Union , granted to its employees in the
Unit, two additional paid holidays.
15. The acts and conduct of Respondent set forth in paragraphs 5 (a) (b)
(c);.(d), 7, 12 and 13 occurring in- connection with the business operation of
Respondent described in paragraphs 1 and 2 herein , have a close , intimate and
substantial relationship to trade, traffic and commerce among the several States
of the United States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
16. The acts of Respondent , set forth in paragraphs 5 (a) (b) (c ) (d), 7,
12 and 13 constitute unfair labor practices affecting commerce within the
meaning of Section 8 ( a) (1), (3) and ( 5) and Section 2 (6) and (7) of the
Act.
The amended answer denies the allegations contained in paragraphs 5 (a) and 5
(d) of the amended complaint ; admits the allegation contained in paragraph 13
as amended that it granted its employees two additional paid holidays but denies
that such holidays were granted unilaterally without consulting or bargaining with
the, Union and it denies that it refused to bargain with the Union with respect to the
paid holidays . The amended answer further denies the allegations contained in
paragraphs 15 and 16 of the amended complaint.
It was stipulated on the record that from on or about September 1, 1955, to the
date of the hearing, Roland Muetzelburg has been plant manager for the Respondent
and that he is a supervisor within the meaning of the Act ; that Ben Hendricks was
foreman for the Respondent from September 1, 1955 , to April 16 , 1956 , and Galin
Steinfest foreman for the Respondent from September 1, 1955, to the date of the
hearing and that both have been supervisors within the meaning of the Act.
It was further stipulated that on or about January 19, 1956 , the Respondent's
employees in the unit , with the exception of 2 or 3 , were called into the Respondent's
office 1 at a time and each employee was informed by the Respondent 's repre-
sentative , Muetzelburg , among other things, that the employee was being granted
a specified wage increase , retroactive to January 16, 1956 , that the employees would
receive 2 paid holidays , 1 week's paid vacation , and that the Respondent was putting
into effect a new job classification.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was stipulated further that as a result of a stock purchase, Paine Lumber Com-
pany of Oshkosh, Wisconsin, took over Frost Veneer and Plywood, Inc., located at
Antigo, Wisconsin, and Respondent Langlade Veneer Products Corporation also
located at Antigo, Wisconsin, on January 12, 1956; that the serious negotiations for
that purchase of said two companies was commenced about December 15, 1955.
It was further stipulated that on or about January 19, 1956, Respondent had ap-
proximately 21 employees in the unit and as of June 20, 1956, had approximately
21 employees in the unit.
A. Interrogation and threats
Harold Raymond Archer was employed by the Respondent from May 1955
until March 1956. At the time he testified, he was not in the employ of the Re-
spondent. During the time he was employed he was a clipper operator. His im-
mediate supervisor was Gayland Steinfest. On October 18, 1955, after working
hours Archer attended the first negotiation meeting between the Respondent and
the Union as a member of the union bargaining committee. The meeting lasted
approximately from 4 o'clock to 6 o'clock in the evening. When the meeting was
over, Roland W. Muetzelburg, the Respondent's manager and then vice president
who had acted as spokesman for the Respondent at the meeting asked Archer if he
would drive him home. On the ride with Archer, Muetzelburg said that he had
never seen a union that could do any good for the people, or was any good; and
that he had fired people in his employ for a lot less than being in the Union. Upon
hearing that, Archer immediately inquired: "Mr. Muetzelburg, there is no hard
feelings between you and I because of this, is there?" Muetzelburg replied "No";
and then said, "Well, what do they want, blood?"
•Muetzelburg admitted that Archer drove him in Archer's automobile to Muetzel-
burg's home one night but testified he could not recall the exact circumstances; that
he knew he was without his car and when the employees left the plant, Muetzel-
burg walked out into the "ell" and asked if anybody would volunteer to take him
home; that Archer said he went in his general direction and would take him home.
Muetzelburg, asked to relate, as far as he could recall, the discussion with Archer
during the course of the ride, testified, "I don't recall any of the conversation really,
except what Mr. Archer mentioned in his testimony yesterday." Muetzelburg then
testified that during the course of the ride he definitely did not make the statement
that employees could be discharged for less than union membership; or any com-
parable statement. On cross-examination, he denied that he told Archer in the
automobile that unions were not any good to anyone and that he had let people go
for less than being in the Union. I credit the testimony of Archer and find that
Muetzelburg made the statements above. Archer's memory appeared to be clear. He
identified it as following the first negotiation meeting. The meeting was from 4 to 6
o'clock in the afternoon. He testified that Muetzelburg directly asked him if he
would drive him home. The plant closed at 4 o'clock in the afternoon. Muetzelburg
said he could not recall the exact circumstances but 1 day when the employees left
the plant he simply walked to the "ell" and asked if anybody would volunteer to take
him home. Thus, Muetzelburg, who could not recall the circumstances of the ride,
would have it that at approximately 4 p. m. when the employees were leaving the
plant asked if anyone would volunteer to take him home and that Archer agreed
to drive him home. I believe that Archer reliably testified concerning the time
and occasion of the ride in question in comparison with Muetzelburg's vague mem-
ory and credit Archer's testimony that Muetzelburg made the statements attributed
to him. I find that such a statement, from the manager and vice president of the
Respondent to a rank-and-file employee that Muetzelburg had discharged people
for less than being in a union contained an implied threat that he could fire them
now for being in a union if he wanted to. The effect of such an utterance on Archer
was to prompt him immediately to inquire if Muetzelburg entertained any "bad
feelings" toward him. Even Muetzelburg's denial in that regard could hardly dis-
sipate the effects of his threat. By such statement, the Respondent engaged in in-
terference, restraint, and coercion violative of Section 8 (a) (1) of the Act.
On three separate occasions between the last part of December 1955 and the
last part of February 1956, Foreman Gayland Steinfest walked up to the table where
employee Mrs. Gladys Eckhardt was working and asked her if she were going to
attend the union meeting that night. Steinfest knew that she was a member of the
Union as she was on the bargaining committee. The first time he asked her, she
replied that she was tired and might not go. The second time he inquired she was
unable to recall her.answer to him. The third and last time when he inquired, she
told him that she was going to the meeting. Her testimony is not contradicted, Eck-
LANGLADE VENEER PRODUCTS CORPORATION 997
hardt testified that Steinfest was friendly in his manner on the occasions when he
asked the questions. Nevertheless, I find that such questioning is violative of Sec-
tion 8 (a) (1) of the Act, as constituting interference, restraint, and coercion. At
least it shows to the employee that the Respondent had a continuing interest in up-to-
date information as to which union members were currently attending union meet-
ings which is a matter which simply is of no concern to an employer. That such a
question may be asked in a friendly manner does not correct nor detract from the
vice inherent in the situation.
On or about April 16, 1956, all the employees had been summoned to the Respond-
ent's office and informed by Muetzelburg that Ben Hendricks had quit and that
Steinfest would thereafter be the foreman. As the other employees were leaving,
Muetzelburg asked to see employee Ann Wolf alone. She remained and Muetzel-
burg said (Steinfest also present) that he had heard that Wolf was talking seniority
rights in the plant and that she was not to discuss seniority rights any more because
there was no seniority and there was not going to be any, and to leave seniority alone.
Wolf testified that Muetzelburg did not say not to discuss seniority during working
hours-he just told her not to discuss it. When Wolf denied that she had been
talking about seniority, Steinfest said "Well, Ann, we didn't say you said them. We
are just warning you for the future." Such an admitted warning I find to be inter-
ference, restraint, and coercion violative of Section 8 (a) (1) of the Act. Muetzel-
burg testified he had a conversation with Wolf during a period when a number of
people had quit and the Respondent was taking on additional help; that there seemed
to be some dissatisfaction as to the question of seniority and he called Wolf to
the office, because as far as he knew she had been designated vice president of
the bargaining unit and asked her if she had made any statements. When she denied
making such statement he replied that if she had not made any statements he would
forget about it and then Muetzelburg admitted that he suggested to her that she
not make any statements concerning seniority in the plant. He then testified that
he gave her an example of what seniority meant to the effect that seniority would
only be concerned with skill and ability as a qualification for specific work. Steinfest
although he testified on other matters, did not contradict Wolf's testimony that he
had warned her not to talk about seniority.
I do not consider the statements made by Muetzelburg at negotiation meetings, in
the context in which they were made, that he would close the plant if the Union
asked too much to be violative of the Act.
But Muetzelburg's statement to Rasmussen on February 28, 1956,7 that he would
close the plant was not associated at the time of its utterance with any professed
inability to pay wage increases or other economic benefits; and I therefore find it was
a definite threat and violative of Section 8 (a) (1) of the Act.
B. The refusal to bargain
The complaint alleged, the answer admitted, and I find that all production and
maintenance employees of the Respondent at its Antigo, Wisconsin, operation,
excluding office clerical employees, guards, and supervisory employees as defined in
the Act constitute a unit appropriate for the purposes of collective bargaining within
the meaning of the Act.
The complaint alleged and the answer denied that the Respondent in the course and
conduct of its business, although requested, has at all times since on or about
January 19, 1956, failed and refused and now refuses to bargain collectively with
the Union as the exclusive bargaining representative of all the employees in the
above-described unit.
As the result of a consent election, the Board on September 26, 1955, certified the
Union as the exclusive bargaining representative of all the employees of the
Respondent in the above-described unit.
The Union and the Respondent held three negotiation meetings prior to January
20, 1956, namely, on October 18 and November 3 and 10, 1955. At the meeting
of October 18, those representing the Union were Reynold La Fond, district vice
president of Midwest District 12, International Woodworkers of America, CIO
(later AFL-CIO); Gerald W. Blaschka, international organizer for the Union who
acted as spokesman; and employees Raymond Roberts, Harold Archer, and Gladys
Schmidt.8 At the November 3 meeting the Union was represented by Blaschka,
Roberts, Schmidt, and employee Ann Wolf who substituted for Harold Archer during
his absence. At the November 10 meeting the Union was represented by Oliver
4 Discussed infra under Refusal to bargain.
8 Gladys Schmidt is also referred to in the record as Gladys Eckhardt because she later
married.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rasmussen, president of Midwest District No. 12, International Woodworkers of
America, AFL-CIO, Blaschka, Roberts, Archer, and Schmidt. The Respondent
was represented at the three meetings by its vice president and manager , Roland
W. Muetzelburg,9 and its foremen, Ben Hendricks and Gayland Steinfest. Muetzel-
burg acted as spokesman for the Respondent. At all three meetings, the Respondent
had particularly refused the demands of the Union for wage increases, holiday and
vacation benefits and insurance, stating that it was financially unable to grant any.
In a telephone conversation with Muetzelburg on December 2, 1955, Blaschka re-
quested a further meeting but Muetzelburg stated he was in no better position to
discuss economic items than he was in the past. On December 12, 1955, Blaschka
met Muetzelburg who informed Blaschka of the pending sale of the company and
that he was not in a position to negotiate since he did not know the status of the
company or his own particular status or the scope of his authority. Muetzelburg
stated further that he would not be in any better position to negotiate until the
middle of January and asked that negotiations be delayed until then. On January 9,
1956, Blaschka requested a negotiation meeting but Muetzelburg told him he still
was not in a position to bargain and no date was set for a meeting. On January 17,
1956, Blaschka telephoned to Muetzelburg, asked for a meeting date, and a negotia-
tion meeting was set for January 20, 1956. Nothing was said in that conversation.
about the Respondent's position as to wage increases, new job classifications, paid
holidays, or vacations. Muetzelburg admitted in his testimony that prior to
January 19, 1956, he had never offered any economic benefits for the stated reason
that he could not afford to.
The Respondent's Refusal To Bargain on January 19, 1956
On January 19, 1956, the day before the scheduled meeting with the Union,
Muetzelburg called to his office Raymond Roberts, Gladys Schmidt, and Ann Wolf
and informed them that he had a proposition to make; that he had changed his plans
and could see fit to give a wage increase; that he was going to call each employee into
the office and tell them what he had to offer, together with 2 extra paid holidays
and 1 week's vacation. Roberts vigorously objected and told Muetzelburg it was
not right to call in the employees one at a time; that if Muetzelburg had anything to
offer, then to offer it to the group or the committee and take it up with the Union,
rather than offer it to each individual. Muetzelburg told Roberts that he was going
to proceed with his plan to call in the employees individually and if Roberts did
not want to stay, he did not have to. Roberts refused to participate in the plan and
left the office with Schmidt and Wolf. On the way to his work station, Roberts
suggested to employee Robinson not to go into Muetzelburg's office if she were called.
Shortly after the end of the employees' afternoon "rest period" (approximately
2:40 o'clock) Muetzelburg began calling individual employees to his office. He
informed all employees individually (except Robinson and another) that the Re-
spondent was granting them a wage increase retroactive to January 16, 1956, stating
the amount of the raise as it applied to each employee, 1 week's vacation, 2 paid
holidays and the institution of a new job classification program.
It is well established that unilateral changes in employment terms and individual
dealings with employees about such changes are proscribed at a time when negotia-
tions between an employer and a union having representative status are pending.
Central Metallic Casket Co., 91 NLRB 572, 573 footnote 5, and cases cited. Ac-
cordingly, I find that on January 19, 1956, by unilaterally granting wage increases,
vacation and holiday benefits, and instituting a new job classification program, and
by notifying individually the employees in the unit, the Respondent interfered with,
restrained, and coerced the employees comprising an appropriate unit in the exercise
of their right to be represented by the Union thereby violating Section 8 (a) (5)
and (1) of the Act.
The Respondent's Refusal To Bargain After January 19, 1956
On January 20, 1956, when the Respondent met with the Union in a negotiation
meeting, Blaschka and Rasmussen objected to Muetzelburg's calling in the employees
individually on the day previous, pointing out to Muetzelburg that the Respondent
was obligated to bargain with the Union as the certified bargaining agent and that
Muetzelburg's actions were illegal. Blaschka then asked him for the wage rates
U Roland W. MuetzeIburg has been manager of. the Respondent since its inception on
September 1, 1954, and sales manager of Frost Veneer and Plywood , Inc., since January
12, 1956 . He was vice president and a stockholder of the Respondent from September 1,
1954, to January 12, 19:16.
LANGLADE VENEER PRODUCTS CORPORATION 999,
that had been put into effect and Blaschka wrote them down as Muetzelburg read
them aloud . Blaschka then told Muetzelburg that he had heard that he had also
instituted a program of benefits including vacations with pay and paid holidays, and
Muetzelburg admitted that he had. Blaschka expressed his objections that Muetzel-
burg did that on January 19 in the face of a scheduled . meeting with the Union for
January 20 . Rasmussen told Muetzelburg that ever since the election and the, start of
bargaining the company had been complaining and had not bargained in good faith;
and inquired from Muetzelburg what the company 's intentions were for the future,
telling Muetzelburg that if the company would bargain in good faith from that point
on they were willing to let bygones be bygones , but otherwise it was a hopeless situa-
tion and they would not discuss the issues any further . Muetzelburg replied that
he had put the increases into effect to give the employees some immediate relief,
and further stated that he was willing to use that as a foundation for bargaining and
the company would bargain from that point on.l° Rasmussen then asked Muetzel -
burg what he had to offer in addition to the increases that had been put into effect
and Muetzelburg replied that before he could make any further offers he would
first have to consult with the officers of the company and was not in a position at
that time to bargain any further on wages or other economic items. The parties set
January 25 for the next meeting date upon Muetzelburg 's statement that it would
not take longer than that for him to consult with his superiors . However, no meet-
ing was held on January 25, because Muetzelburg telephoned to Blaschka and can -
celed the meeting . The findings in this paragraph are based on the credited testimony
of Rasmussen and Blaschka . Muetzelburg testified that the meeting of January 20,
1956, was the last negotiation meeting, according to his recollection ; and that at
that meeting he proposed and it was his understanding that the Union agreed to
accept a standby arrangement to be drawn up in a written stipulation accepting the
status quo as matters then stood , but he heard nothing further from the Union.
Muetzelburg testified entirely from memory and when questioned as to whether
or not there were further meetings testified that he would neither admit nor deny
that there were ; that he had no recollection . Blaschka, however, had kept a "day
book" in which he had written notes and which counsel allowed him to use during
his testimony . Blaschka testified creditably with respect to the dates and events
and I credit his testimony.
The next meeting was held on February 8, 1956, at the office of Frost . Blaschka,.
Raymond Roberts, and Gladys Schmidt represented the Union . The Respondent was
represented by Frost 's superintendent , Bannach and his assistant, William Gamble;
Muetzelburg and Respondent 's foremen , Hendricks and Steinfest . The Respondent-
rejected any increase in the minimum wage, equal pay for women , the insurance
program and the checkoff. Blaschka testified that Muetzelburg proposed that the
program the Respondent had unilaterally instituted remain in effect with no changes
until later in the year until such time as the Frost Company would be in negotiation
meetings for a new contract upon the expiration of the present contract in July.
Muetzelburg pointed out that Paine Lumber Company had purchased Langlade
and Frost and it was uncertain then what the future held, as the 2 companies might
merge into 1 corporation . Blaschka objected on the basis that the Respondent was
still in business and that efforts should continue toward trying to write a contract
between the Union and the Respondent . Upon the proposal for equal pay for
women , Muetzelburg objected and said he would take it up with his superiors. A
date for a further meeting was set for February 13.
On February 13, the meeting was again held at the Frost office . Rasmussen,
Blaschka, Roberts, Schmidt, and Harold Archer were present on behalf of the Union.
The Respondent was represented by Muetzelburg , Bannach, Gamble , Hendricks,.
and Steinfest . Blaschka testified that at the meeting the Union raised the question
of checkoff again and the Respondent rejected it ; that various forms of union security
were discussed and all rejected by the company . Vacations and holidays were
discussed between the parties.
The Union sought clarification as to the identity of the two holidays which the
Respondent had announced would be given on January 19. It was brought out that
Memorial Day and the Fourth of July had been intended by Muetzelburg . Blaschka
testified that if an agreement were to be signed then those were to be the two paid
holidays. The parties also discussed the time during which the summer vacation
10 As set forth, infra, upon the uncontradicted testimony of Ann Wolf, Muetzelburg told
Davis, the president of the Respondent, on June 6, 1956, that there had been no negotiations
for a contract since Paine Lumber Company took over ( which was January 12, 1956) in
answer to Davis' inquiry as to why he had not been informed of the request for a collective-
bargaining contract.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be taken. Muetzelburg stated that he would have to have further discussion
with his superiors. I credit Blaschka's testimony that he received no further word
from Muetzelburg after the meeting on February 13, 1956, and that no contract
was ever arrived at. The Union made no further request to negotiate after
February 13. On March 2, Blaschka testified that he telephoned to Muetzelburg
and discussed the matter of the company hiring new people and not recalling
employees who had been employed at the time of the election; the matter of Roberts'
discharge (discussed infra) and also equal pay for women. Blaschka testified that
between January 20 and February 13, 1956, the Union never accepted the Re-
spondent's proposal for a standby agreement or stipulation to include seniority,
grievance procedure, and the Respondent's program of wages, vacations, and holi-
days that was established unilaterally by the Respondent on January 19; and there
was no discussion as to whether the Respondent or the Union would draft such a
stipulation.
On February 27, 1956, the Respondent discriminatorily discharged Raymond
Roberts as hereinafter found. On February 28, 1956, Rasmussen telephoned to
Muetzelburg and arranged for a meeting to discuss the discharge of Roberts, at
4 o'clock that same afternoon. Rasmussen, Blaschka, Roberts, Schmidt, and Wolf
were present for the Union. Muetzelburg, Hendricks, and Steinfest were present
for the Company. After their arguments to have Roberts returned to work met with
no success, and after Rasmussen had told Muetzelburg the Union was going to file
charges of unfair labor practices, Rasmussen testified that when leaving, he made
a last appeal to Muetzelburg, saying, "You know, we are going to get these waters
all muddy, and sooner or later we are going to have to sit down and settle these
issues and I think you are making a mistake and that you should reconsider your
position because we are going to have to live together." Muetzelburg replied that if
the Union was going to come in and continue to hold a club like that over his head,
there would be no Langlade Veneer to bargain for, that they would close it down.
It is interesting to note, in passing, that Muetzelburg did not have to ask for time
to discuss that phase with his superiors before uttering it.
In addition to the testimony given by Ann Wolf, set forth earlier in this report,
as to the warning given her in April 1956 not to discuss seniority, Wolf testified
further than on June 6, 1956, Muetzelburg walked up to her machine, asked if she
was.still vice president and when she said that she was, he asked her who was on
the bargaining committee and she named Bernadine Robinson and Gladys Schmidt.
Since Schmidt was away at the time he told her she could pick someone else to take
her place. So she picked Bernie Archer, who was president of the union local at
Frost,ii after Muetzelburg told her it would be better to pick a man. Archer joined
her at the meeting at which J. J. Davis, president of the Respondent and vice president
of Paine Lumber Company, Gamble from Frost and Muetzelburg were present.
Wolf testified that David did most of the talking at the meeting. Davis announced
there was talk going around that they were losing paid holidays and vacation with
pay, but that it was not true as they were getting a week's vacation with pay and 4
paid holidays instead of 2, i. e., Labor Day, July 4, Thanksgiving, and Christmas.
Wolf testified that Davis also said that he did not know they were trying to get a
contract or that he was not notified about the contract and that Muetzelburg replied
to Davis that they had not been negotiating since Paine Lumber Company took over.
(January 12, 1956, as appears, supra). Davis, according to Wolf's uncontradicted
testimony, replied "Still, I should have been notified." Wolf continued that on that
same afternoon, the same three members of the committee (Archer, Robinson, and
Wolf) were called to the office by Muetzelburg to discuss a clause that Frost had
in its contract; that Muetzelburg asked if it was all right to have a meeting during
break time because it would be short and they could drink "pop" or smoke during
the meeting. Wolf testified that the clause had something to do with bargaining
and Muetzelburg wanted to know if they wanted to do their own bargaining or if
they wanted the Frost [local] union to bargain for them; and that he would have
to have a written answer as he was meeting with Frost the following evening. Wolf
telephoned that evening to Blaschka and also telephoned to Archer; and told Muetzel-
burg the next day she could not give him a definite answer, but if he wanted to
communicate with Blaschka he could telephone to Blaschka in Michigan. Muetzel-
burg replied there was no need to telephone to Blaschka. Muetzelburg, also asked
her on that day if it was all right to put up a notice on the bulletin board about
vacation. Wolf said that she could not answer either yes or no, but asked him
if the Fourth of July was a paid holiday if the first week of July was vacation with-
"It appears that Alvin Archer, the president of the Local at Frost, is also referred
to in the record as Bernie Archer and Bernie Asher.
LANGLADE VENEER PRODUCTS CORPORATION 1001
pay. Muetzelburg replied it made no difference and posted the notice after he
said it should be posted 30 days in advance, and there were not 30 days left. Wolf
testified that she did not receive a paid holiday for Memorial Day in 1956.
Wolf further testified that after the discharge of Raymond Roberts she was acting
president instead of vice president; that another girl was appointed temporarily by
the employees in the unit to collect and receipt for dues to the Union; that the
employees have a temporary organization with temporary officers until a permanent
organization be formed after a contract is obtained. She testified that Alvin Archer,
above referred to, was not designated by the Langlade employees to be on the
bargaining committee; but that he joined the group when she selected him when
Muetzelburg told her to select someone, preferably a man, to take the place of
Schmidt, who was absent at that time.
Upon the credited testimony of Rasmussen, Blaschka, and Wolf, and upon the
entire record, I find that the Respondent since January 19, 1956, has failed to bargain
in good faith with the Union, thereby violating Section 8 (a) (5) and (1) of the
Act. When Muetzelburg announced at the meeting on January 20, 1956, that the
company would bargain with the Union further on the question of wages and other
economic items, using the wage increases unilaterally established by the Respondent
on January 19 as a basis for further negotiations, the Union accepted that statement
at face value and continued its efforts to negotiate. It did not accept, as the
Respondent contends in its brief, the increases as a "down payment" and continue
to negotiate further. The Union attempted to negotiate but apparently did not
realize that when Muetzelburg said the increases could form the basis for further ne-
gotiating, he meant, as events later proved, that negotiations could continue provided
they were suspended until sometime near the following July. Whenever Muetzelburg
was pressed for an offer as to what he was willing to pay over and above the granted
increases, he resorted to the dilatory tactics of announcing that he was not then in a
position to bargain but would have to take it up with his superiors. The case of
White Motor Company, 111 NLRB 1272, cited by the Respondent, is so entirely
different on its facts that it can not apply here. The further granting of two addi-
tional paid holidays on or about June 6, 1956, without bargaining with the Union,
is further evidence of the Respondent's refusal to bargain in good faith with the
Union. It appears clear to me that the Respondent's intention was to delay any
real good-faith bargaining at least until July 1956. While there was some agreement
on other items of the Union's proposals, they were all on subjects that cost the
Respondent nothing in money. In short, I sum up the Respondent's position, from
this record, to have been that it would give its employees what the Respondent
decided to give them on January 19 and would resist all further negotiations until
July.
C. The discriminatory discharge of Raymond Roberts
The complaint alleged that on February 27, 1956, the Respondent discharged
Raymond Roberts and has at all times since failed and refused to reinstate him for
the reason that he joined and assisted the Union and otherwise engaged in concerted
activities for the purpose of collective bargaining, or other mutual aid or protection,
all with the intent thereby to discourage membership in the Union and the concerted
activities of Respondent's employees, thereby engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act. The answer denied
such allegation.
Raymond Roberts testified that he had been employed by the Respondent from
December 13, 1954, until the date of his discharge as a joint operator who ran
veneer through a joiner machine, joining one edge and gluing at the same time. His
foremen were Ben Hendricks and Gayland Steinfest. Roberts started at $1 per hour;
after 30 days received an increase of 5 cents per hour; received another 5 cents raise
in July 1955; and a 7 cents hourly increase on January 19, 1956. Roberts joined
the Union about the middle of September 1955; distributed application cards to
employees and was an observer for the Union at both elections in September 195512
He was a member of the union bargaining committee and attended about six
meetings.
After the first election, Muetzelburg called Roberts into his office, inquired how
it felt to be on the losing side, and charged Roberts with being an instigator for the
Union; adding that he had discharged men for less cause than being instigators in
the Union.13
'a The Union lost the first election which was thereafter set aside by the Board and a
second election held which the Union won.
13 No finding is made herein that Muetzelburg's statement to Roberts is an unfair labor
practice as it occurred more than G months prior to the filing of the charge.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 19, 1956, Roberts, Gladys Schmidt, and Ann Wolf 14 (three of the
members of the union bargaining committee) were called to Muetzelburg's office
and there told by Muetzelburg that he had a proposition to make; that he had
changed his plans and could see fit to give a wage increase; to some it would be
more and to others, less; that Muetzelburg said he was going to call each employee
into his office and tell them what he had to offer, together with paid holidays and
a week's vacation. Roberts testified that he objected to that procedure and that
Muetzelburg told Wolf and Schmidt to go back to their work, but Roberts asked
them to stay and he then told Muetzelburg it was not right to call employees in
one at a time; that Roberts wanted no part in it; whereupon Muetzelburg told him
he was going to do it nevertheless, and if Roberts did not want to stay and listen he
did not have to stay. Roberts then told Muetzelburg if he had anything to offer
it would be proper to offer it to the group or the committee and take it up with the
Union rather than offer it to each individual employee. Roberts then left the office
with Schmidt and Wolf. On the way to his machine, Roberts told employee Robin-
son if she were called into the office it would not be good policy to go without the
committee accompanying her. At that point Foreman Hendricks told him to go
to his machine and stay there until 4 p. m. because he was on company time.
Hendricks then began calling the employees individually to Muetzelburg's office where
Muetzelburg informed each one of the wage increase and holiday and vacation
benefits. Only two employees (Bernice Jones and Bernadine Robinson) refused
to go to the office.15
Roberts testified that the next day (January 20, 1956) at the negotiation meeting
with the Union, Muetzelburg made it clear to all there that the next time Roberts
interfered in his affairs by talking to his employees that he would fire him. Muetzel-
burg, according to Roberts, said he should be able to talk to his employees without
someone calling him on it. Roberts replied that he did not think it was right for
Muetzelburg to call them in individually.
Blaschka testified that at the beginning of the meeting on January 20, Muetzel-
burg "bawled out" and "cussed" Roberts for interfering between him and the other
employees on January 19 and told Roberts that if he ever interfered again or did it
again he would be fired; that Muetzelburg added, "I got a good notion to fire you
right now." Blaschka testified that when Muetzelburg threatened to fire Roberts,
Blaschka, and Rasmussen objected to the actions of Muetzelburg; that Rasmussen
told Muetzelburg that he was not going to fire anybody and that what Roberts had
done was right; that Roberts had a right to tell the people not to go into the office
and that the Company was wrong in calling in the employees individually. Ras-
mussen, according to Blaschka, then told Muetzelburg if he had the grounds for
firing Roberts he should do so, but the Union would protect Roberts within the
limits of the law.
Oliver J. Rasmussen testified that Muetzelburg said at the January 30 meeting
that Roberts had interfered on the previous day with some conversations Muetzel-
burg wanted to have with the employees; that Muetzelburg had said the Company
had called in the union committee to seek permission to talk to each individual em-
ployee and he (Muetzelburg) had told the committee that the Company was going to
put into effect the wage increase and other economic benefits and Roberts had ob-
jected on the grounds that these benefits should be bargained with the Union, and
the Company could not put these benefits into effect unilaterally; that Muetzelburg
said he wanted to tell each employee individually what he was going to put into
effect; that Roberts had refused to stay and listen, and on his way back to his machine
told other employees they did not have to go in and listen to this offer because it was
the "property" of the Union. Rasmussen testified that after he had advised Muet-
zelburg his procedure on the day previous was illegal, that Muetzelburg then told
Roberts, "I am going to fire you-I have got a damn good notion to fire you now."
Rasmussen then told Muetzelburg he was not going to fire anybody; that the law
protects employees for engaging in union activities.
Roland W. Muetzelburg testified that he opened the meeting on January 20 by
first stating to Roberts that he would be fired if he ever directed employees not to
come to the office at the Company's request. He did not contradict Rasmussen's
testimony that he told Roberts that he was going to fire him; that he had a damn
good notion to fire him then.
. is There was no local at the plant. The Union here does not establish locals unless it is
.successful in obtaining a collective-bargaining agreement. The employees in the unit, how-
ever, elected employees to be members of the union bargaining committee.
u The facts in this paragraph have also been set forth, supra, in connection with the Re-
spondent's refusal to bargain.
LANGLADE VENEER PRODUCTS CORPORATION 1003
Roberts testified that he was discharged by Foreman Ben Hendricks during the
10-minute rest period or break period on the afternoon of February 27, 1956, for
the reason stated by the foreman for "drinking on the job." Roberts testified that
on that day, as was his custom, he went to his automobile which was parked about 75
feet from the plant in the city street on the north side of the plant, and was sitting
in the car, with the radio turned on, smoking a cigarette and had an unwrapped candy
bar on the seat beside him when Hendricks and Steinfest approached the automo-
bile; that Roberts rolled down the car window, and Hendricks said, "This is it."
Roberts inquired what he meant and that Hendricks replied, "You are done."
"Done for what?" inquired Roberts and Hendricks replied "For drinking on the
job." Roberts testified that he asked "Drinking what?" and that Hendricks replied,
"You know what you were drinking." Roberts answered by calling Hendricks' at-
tention to the fact that Hendricks did not see anything there that he was drinking
and directed Hendricks' attention to the candy bar. Roberts testified that Hendricks
said "I know you have been drinking" and that his check would be in the mail.
Roberts inquired if Hendricks had any proof of his drinking and Hendricks replied
he had lots of proof. Roberts testified that during all this time, Steinfest who was
present said nothing. Roberts testified that never at any other time had any foreman
or company representative ever accused him of, or spoken to him about, drinking.
Roberts testified that he had not drunk any intoxicating liquor during the break
period on the afternoon of February 27 and had never at any time drunk beer or
intoxicating liquor on the job.
Roberts admitted that about the first of February 1956, after the day's work
ended at 4 o'clock in the afternoon, he was in his automobile to go home and that
he opened the glove compartment of the automobile to get a cloth to wipe the wind-
shield; that upon opening the compartment, he saw a bottle with about one-fourth
of a pint of whiskey in it, which he accounted for by saying that some fishing friends
had left there unknown to him; that he took a drink from the bottle and passed the
bottle to Raymond J. Weix, an employee who was sitting in the back seat, who took a
drink and finished the whiskey. Roberts testified that he had never drunk beer or
liquor on any other occasion after leaving the plant or prior to entering the plant.
Roberts testified further that the only time he had liquor in the automobile was the
time above when he and Weix had a drink; that he and Weix had never had a drink
at his home en route to work and that Weix had never been in his home. He re-
peated his testimony that never at any time had he drunk any beer or liquor while
working for the Respondent during the break periods.
'Ben J. Hendricks testified that he was employed by the Respondent from October
1954 until April 13, 1956, and supervised the entire plant. He testified that he knew
Roberts was an active member of the Union, on the bargaining committee; and knew
he was a leader in the Union and had discussed that with Muetzelburg on many
occasions. Hendricks testified that on or about February 1, 1956, he saw Roberts
and Weix take a drink in Roberts' automobile after working hours; that he reported
it to Muetzelburg who told him to watch Roberts, because it was a serious offense
if Roberts was drinking on the job; that from February 1 to 27, 1956, he
observed Roberts in his automobile during nearly all the break periods (80 percent
of the time) and that 20 or 25 times, he saw Roberts drinking from either a beer
can or a whiskey bottle. Hendricks testified that he and Steinfest watched Roberts
during those break periods, from a window in an unheated portion of the plant
called the warehouse, about 60 feet away from Roberts' automobile. Hendricks
testified that on February 17 he saw Roberts drinking in his car and throw a bottle
out of the window and that after Roberts had returned to work in the plant, he
and Steinfest went out and retrieved the bottle. This bottle is in evidence as Re-
spondent's Exhibit R-2. Hendricks testified that he turned the bottle over to Muet-
zelburg on the same day, who instructed him to continue watching Roberts and try to
find more of such evidence if it were available; that he continued watching Roberts
and that at every break period that he observed, Roberts drank from a container,
either a whiskey bottle or a beer can. Hendricks continued to testify that on the
morning of February 27, during the break period, he observed Roberts in his auto-
mobile and that after Roberts had lighted a cigarette he drank from a bottle and
near the end of the break period, after he had got out of the car, Roberts tossed
another bottle over the top of the car; and that after Roberts had returned to work
he and Steinfest went outand retrieved the bottle, which is in evidence as Respondent's
Exhibit R-3. Hendricks testified that he informed Muetzelburg and that Muetzel-
burg told him if he saw Roberts drinking again, to let him go. Hendricks testified
that on that same afternoon during the break period, he saw Roberts go to his car,
light a cigarette, and reach underneath the seat for something "which appeared to me
as a bottle and drank"; that he approached the car and asked Roberts what he was
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drinking and that Roberts said he was not drinking; whereupon Hendricks said he was
sure that Roberts was drinking, that the Company did not tolerate drinking on the job
and he was discharging him for drinking; that Roberts said he was drinking nothing
and that he was just eating a candy bar. Hendricks testified that he discharged
Roberts on the spot, for drinking on the job.
,On cross-examination, Hendricks testified that it was his normal practice to warn
employees and generally does not spy on them; that Muetzelburg did not tell him
to discharge Roberts until the morning of February 27, when he said if Hendricks
found Roberts drinking again, to let him go. Hendricks testified that he reported
his observations to Muetzelburg (but not all) and that Muetzelburg told him that
if drinking continued we would probably have to discharge Roberts. Hendricks fur-
ther admitted on cross-examination that he is not sure that he could see from what
Roberts, in his automobile, was drinking; but later in his cross-examination testi-
fied that he could see what Roberts was taking to his mouth and could tell whether
it was a whiskey bottle or beer can. Hendricks then testified on cross-examination
that he does not claim that Roberts was drinking alcohol-that it could have been
tea or coffee; and that actually he does not know what Roberts had in the bottle.
He testified further that his decision to discharge Roberts was based on what he
saw in the automobile on the afternoon of February 27. He further testified that
he did not watch Weix who was employed in the boilerroom of the plant as Weix
did not leave the plant during break periods. He testified that after his talk with
Muetzelburg on the morning of February 27, that was the first time Muetzelburg told
him to discharge Roberts, saying "if you see him continue to drink it would be best
to let him go."
Roland W. Muetzelburg testified that on February 1, approximately, Hendricks
came and told him Roberts had been drinking during the morning and afternoon
break periods and he told Hendricks that was a serious violation of company rules;
that Hendricks should be sure of his statement and be able to prove it because
Muetzelburg could not authorize releasing an employee merely on say-so and guess.
Muetzelburg testified that he was aware that thereafter Hendricks and Steinfest were
observing Roberts during the break periods but not a great deal was mentioned
thereafter except on possibly 1 or 2 occasions. Muetzelburg testified that on one
occasion Hendricks and Steinfest brought a bottle to his office and he told them if
at any time they could prove that Roberts or any employee was drinking during
working hours they were to dismiss them from their work. Muetzelburg continued
to testify that he did not recall the last time prior to February 27 that he discussed
Roberts' activities but would say it was a few days before; but the last conversation
with Hendricks prior to Roberts' discharge was on the morning of February 27 when
Hendricks brought another whiskey bottle to the office and told Muetzelburg it had
been tossed out cf Roberts' automobile during the break period and then Muetzelburg
told Hendricks the next time it happened to discharge him. Muetzelburg also testified
that he gave the actual authorization to discharge Roberts on the morning of
February 27, when Hendricks told him he had picked up the whiskey bottle and
he then told Hendricks he better let Roberts go. On cross-examination, Muetzel-
burg testified that when the situation was first brought to his attention he told
Hendricks and Steinfest they were free to discharge any employee at any time who
was caught drinking during -working hours, but did not then point out any specific
employee. Muetzelburg said the matter was first brought to his attention the early
part of February, possibly February 10; from then to the date of Roberts' discharge,
the matter was discussed, not necessarily discharging Roberts, but drinking during
working hours. He testified that he did not ask Hendricks or Steinfest to tell
Roberts not to do it again; and did not tell them to say anything to Roberts.
Muetzelburg testified further that Hendricks or Steinfest called the situation to
Muetzelburg's attention from 2 to 6 times; that they said they saw Roberts drinking
something, but did not know what be was drinking with the exception of the occa-
sions when they picked up whiskey bottles; that they told him they had seen Roberts
drinking from the bottle and had seen him toss it away after he came out of the
car and had picked up the bottle and told Muetzelburg to keep it and see if the
situation occurred again. Muetzelburg then said that was the first occasion that it
was called to Muetzelburg's attention (when Hendricks and Steinfest told him about
picking up the bottle) and does not recall any other time. Testifying further on
cross-examination, Muetzelburg said he does not believe that Hendricks showed him
a whiskey bottle on the first occasion but that he showed it to him within a day or
two after he had retrieved it. Muetzelburg admitted that after this conversation
with Hendricks he did not form any specific opinion that Roberts had been drinking;
that he was not convinced and directed Hendricks to continue to observe Roberts.
Muetzelburg then testified that he became convinced sometime between February
LANGLADE VENEER PRODUCTS CORPORATION 1005
I and 15, possibly 1 week or 10 days prior to Roberts' discharge when he smelled
liquor on Roberts' breath, but did not ask Roberts if he had been drinking; that he
then waited another week or 10 days before discharging him. Muetzelburg further
admitted on cross-examination that he does not recall asking Hendricks to watch
any other employee; and that there were never any company rules posted and
employees were never told about any.
Harold R. Archer testified that after Roberts had been discharged Hendricks told
him to follow him into the office where Hendricks pointed out two whiskey bottles and
a beer can on the desk and said to Archer, "We just fired your union president for
drinking on the job." Archer inquired if he should notify the other members of
the committee and Hendricks replied to do it after 4 p. m., on his own time.
Ann Wolf testified that on the same afternoon that Roberts was discharged,
Hendricks came to her and said, "Ann, we just fired your union president."
Rasmussen testified further that at the meeting held on February 28, Muetzelburg
admitted that Roberts had a good work record and had received no warnings.
Rasmussen reminded Muetzelburg that 1 month ago, Muetzelburg had threatened
to fire Roberts for union activity and that Rasmussen believed Muetzelburg had
framed Roberts and used an excuse to fire him. He testified that Muetzelburg
said that Roberts was not fired for being drunk but for taking one drink on the job.
Raymond J. Weix was called by the Respondent and testified that he and Roberts
had a drink in the automobile on one occasion after working hours as they were
about to ride home. He also testified that he and Roberts had a drink in the car
on another occasion about 2 months before the discharge before starting out in
the car to go to work. Weix was wholly unreliable in his testimony with respect to
dates; for example, he testified the drink he had with Roberts after working hours
was on one occasion, that it was not in the wintertime but in summertime; then,
that it was while Hendricks was still there (Hendricks left Respondent's employ on
April 13, 1956); that it was about 3 days before Hendricks left; then, that it was
a month before Hendricks left; then, that it happened while Roberts was still
working there; then, on cross-examination, that it happened sometime in the summer;
then, that it happened in the spring of 1956 just before the discharge. Weix's testi-
mony is so vague and indefinite as to be without value. I have accordingly
disregarded it.
There is other testimony in the record that there was some difficulty with running
the veneer at Roberts' machine some months previous to the discharge and that on
another occasion Roberts was smoking outside the plant; all of which is wholly
irrelevant in view of the fact that the stated cause for Roberts discharge was
"drinking on the job" on the afternoon of February 27, 1956.
Conclusions
The testimony of Hendricks, the foreman who discharged Roberts for the given
reason "drinking on the job," that he does not claim that Roberts was drinking
intoxicating liquor at that time and place and has no knowledge of what Roberts was
drinking-that it could have been tea or coffee is sufficient to remove any vestige of
substance from the reason stated for the discharge of Roberts. Hendricks con-
cealed the fact from Roberts, when he discharged him, that he was not claiming
that Roberts was drinking alcoholic liquor on the afternoon of February 27, 1956;
concealed that fact from employees Archer and Wolf when he informed them that
same afternoon that he had just fired their union president for drinking on the
job; and it was certainly unknown to Rasmussen and Blaschka at the meeting held
on February 28 to discuss the discharge.
In N. L. R. B. v. C & J Camp, Inc., 216 F. 2d 113, 115, the Court of Appeals
for the Fifth Circuit held ". . . a discharge ostensibly for cause must, in order to be
protected as such, be in reality a discharge for cause, and that a trumped up or
synthetic discharge for cause may not be used by the employer as a shield and
buckler to protect him against a discharge, the real, the dominant motive of, the
moving cause for which is antiunion discrimination."
There are other aspects of Hendricks' testimony which I point out as contradictory
and evasive. At one point, Hendricks testified that he was not sure if he could tell
from what Roberts had been drinking in the automobile which Hendricks testified
was approximately 60 feet from him, as follows:
Q. Now, is it not true, Mr. Hendricks, that you actually couldn't and didn't
see what Mr. Roberts was drinking from if he was, as you looked at him,
if you did, from the window that you described in the position Roberts was
in?-A. No, I am not sure.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His testimony continued:
Q. He [Roberts] faced north and yet you could see, you claim as to what he
was taking to his mouth?-A. That is true.
Q. From where you were?-A. That is true, in this respect . . . that you
could tell whether it was a whiskey bottle or beer can.
Q. You could tell that?-A. If he was drinking from that bottle that is
anything, I don't claim that what he was drinking from the bottle was alcohol,
he could have tea or coffee.
Hendricks gave evasive testimony when questioned as to whether the bottle he
picked up on February 17 (Respondent's Exhibit No. R-2) was the bottle from which
Roberts had drank:
Q. You didn't see Roberts drink from this bottle, did you?-A. I seen
Roberts throw that bottle out, yes.
Q. This one?-A. This one.
TRIAL EXAMINER: Did you see him drink from it?
The WITNESS: I seen him drink from a bottle and throw this bottle from
the car.
To discharge an employee for "drinking on the job" when the Respondent does
not contend that he was drinking alcoholic liquor demonstrates the extent to which
the Respondent was willing to go in order to cloak a discriminatory discharge.
Upon the credited testimony of Roberts, Blaschka, Rasmussen, Wolf, and Archer,
and upon the entire record, I conclude and find that the reason stated for the
discharge of Raymond Roberts on February 27, 1956, was a specious pretext; and
I further find that the real reason why Roberts was discharged by the Respondent and
thereafter refused reinstatement was because of his union activities concededly
known to the Respondent; and therefore find that in violation of Section 8 (a) (1)
and (3) of the Act, the Respondent by discharging Roberts on February 27, 1956,
and thereafter refusing to reinstate him, discriminated with respect to his hire and
tenure of employment, thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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.
V. THE REMEDY
Having found that the 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.
Having found that the Respondent has engaged in interrogation of employees
concerning the Union, and has interfered with, restrained, and coerced its employees
in derogation of their rights secured by Section 7 of the Act, I shall recommend that
it cease and desist therefrom.
Having found that the Respondent on February 27, 1956, discriminatorily dis-
charged employee Raymond Roberts and has since failed to reinstate him, I shall
recommend that the Respondent be ordered to offer him immediate and full rein-
statement to his former or substantially equivalent position without prejudice to his
seniority and other rights and privileges, and make him whole for any loss he may
have suffered because of the discrimination against him by payment of a sum of
money equal to the amount he normally would have earned as wages from the
date of the discrimination to the date of the offer of reinstatement, less his net earn-
ings during said period, with back pay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth, 90 NLRB 289.
Having found that the Respondent has refused to bargain in good faith with the
Union as the exclusive representative of its employees in an appropriate unit, I shall
recommend that, upon request, the Respondent bargain collectively with the Union,
and, if an agreement is reached , incorporate it in a signed contract.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
BENJAMIN FRANKLIN PAINT AND VARNISH COMPANY 1007
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAw
1. International Woodworkers of America, AFL-CIO, is a labor organization
within the meaning of the Act.
2. By discriminating with respect to the hire and tenure of employment of Raymond
Roberts thereby discouraging the free exercise of the rights guaranteed by Section 7
of the Act and discouraging membership in and activities for the above-mentioned
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. All production and maintenance employees of the Respondent at its Antigo,
Wisconsin, operation, excluding office clerical employees, guards, and supervisory
employees as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of the Act.
5. By refusing on January 19, 1956, and at all times thereafter, to bargain collec-
tively with International Woodworkers of America, AFL-CIO, as the exclusive
representative of its employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) and (5) of the Act.
6. 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.]
Benjamin Franklin Paint and Varnish Company , a Division of
United Wallpaper , Inc. and Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO, Petitioner.
Case No. 4-IBC-3354. August 8, 195'7
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On July 18, 1957, the Board issued a Decision and Order dismissing
the petition filed in the above-entitled case.' Thereafter, on July 22,
1957, the Petitioner filed a motion to reopen the record and for re-
consideration. The Employer filed a reply thereto on July 24 and
the Intervenor, Local 107, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, filed an
answer on July 30.
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 Leedom and Members Murdock and Bean].
Upon consideration of the motion, the answers, and the entire record
herein, the Board makes the following findings :
1. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
1 Not reported in printed volumes of Board Decisions and Orders.
118 NLRB No. 129.