Milwaukee Electric Tool Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1954

110 N.L.R.B. 977 (N.L.R.B. 1954)

MILWAUKEE ELECTRIC TOOL CORPORATION 977
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any employees be-_
cause of membership in or activity on behalf of any such labor organization.
ANCHOR ROME MILLS, INC.,
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.
MILWAUKEE ELECTRIC TOOL CORPORATION and LOCAL 1035, INTERNA-
TIONAL UNION OF ELECTRICAL , RADIO & MACHINE WORKERS, CIO.
Case No. 13-CA-1477. November 23,1954
Decision and Order
On November 30, 1953, Trial Examiner Eugene E. Dixon issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices in violation of Section 8 (a) (5) and 8 (a) (1) and
recommending that the Respondent 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 Trial Examiner's Intermediate Report, the conclu-
sions and finding therein, and rulings upon motions and objections
made by the Trial Examiner at the hearing. The General Counsel
filed a statement in support of the Intermediate Report and excep-
tions to its failure to make other requested findings and conclusions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Peterson, Rodgers, and
Beeson].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions thereto, and the entire record in the case,
and finds merit in the Respondent's exceptions.
As described in the Intermediate Report, following a consent elec-
tion, bargaining negotiations were begun between the Respondent and
the Union the first part of March 1953. At that time, A. F. Siebert,
Respondent's founder and president, was absent from the city on an
extended business-vacation trip. The Respondent's negotiators were
Reginald Siebert, the president's son and Respondent's executive vice
president, Lester Erickson, Respondent's vice president in charge of
110 NLRB No. 167.
338207-'55-vol . 110-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production, and Glenn Dougherty, Respondent's attorney. The
Union's negotiating committee was Victor Ziegler, the Union's Inter-
national representative, and five employees of the Respondent.
The' parties met in several bargaining sessions and exchanged and
discussed contract proposals. A tentative contract was agreed upon by
the negotiators, thereafter was ratified by the union membership, and
then submitted to A. F. Siebert in Florida. As the Trial Examiner
found, the union negotiators, as well as Respondent's committee, were
skeptical as to whether A. F. Siebert would sign the contract. He did
not sign it and soon thereafter, around the last of April, returned
home. Within a few days after his return to Milwaukee, he met with
Ziegler and pointed out several provisions of the contract which were
objectionable to him, and indicated that he would not sign an agree-
ment with a maintenance-of-membership clause in it. At this meeting
arrangements for further negotiations were made at Siebert's request.
This meeting was held on May 18 between A. F. Siebert, Erickson,
Respondent's attorney, Suel Arnold (Mr. Dougherty, the former at-
torney, had died), Ziegler, and the union negotiating committee. One
of the first issues to arise was that of the union-security clause, and
when A. F. Siebert stated the Respondent's position, that it would not
agree to such a clause, Ziegler and the union committee walked out.
While we agree with the Trial Examiner that the parties under-
stood that Respondent's committee did not have absolute authority to
execute a contract and that the final agreement would have to be ap-
proved by A. F. Siebert, we cannot accept his finding that the failure
of Respondent's committee to keep in touch with A. F. Siebert during
negotiations as it had represented to the Union it would, amounted to
a breach of faith equivalent to a refusal to bargain.
It is our opinion that both committees had sufficient authority to
accept tentative commitments which each deemed would have a strong
likelihood of being finally accepted by each one's principal-on one
side, the union membership, and on the other, A. F. Siebert. We find
no evidence that the failure of Respondent's committee to keep in
touch with A. F. Siebert was for the purpose of frustrating or imped-
ing the final execution of a contract.
To further negate the allegation of bad faith on the part of the
Respondent is the fact that A. F. Siebert met with Ziegler as soon
as he returned home, arranged a negotiating session, and gave every
indication of a bona fide attempt to resolve the objectionable issues.
As the union committee walked out of this meeting after hearing the
position A. F. Siebert took relative to a union-security clause, we feel
that an impasse was thus reached in regard to such a provision in the
proposed contract.
We do not disagree with our dissenting colleague's statements that
the real issue in this case is whether A. F. Siebert was bargaining in
MILWAUKEE ELECTRIC TOOL CORPORATION 979
good faith when he refused to execute the tentative agreement, and
that the answer can be found only by examining all the surrounding
circumstances . Nor would we disagree with his conclusion, if we
were persuaded that the surrounding circumstances were as he en-
visions them to be. The basis of our disagreement, and of our con-
clusion that A. F. Siebert's refusal to execute the tentative agreement
was not motivated by opposition to collective bargaining, is our in-
ability to find on this record, for the reasons set forth hereinafter,
that the Respondent in fact engaged in any unfair labor practices or
otherwise evidenced bad faith in its negotiations.
Thus, we cannot agree with the Trial Examiner that the effectua-
tion of certain employee benefits was either unilateral conduct or
additional evidence that the Respondent was not negotiating in good
faith. Shortly after the bargaining sessions commenced and Respond-
ent was advised as to the demands of the Union , A. F. Siebert was
contacted and agreed to the wage increase and afternoon rest period
being effected immediately . The Union 's bargaining committee,
minus Ziegler, consented . A notice was posted notifying employees
of the fact and stating that the changes were made "in accordance
with the provisions of the pending union contract." All benefits
enumerated in the Intermediate Report as unilateral grants were ef-
fected subsequent to March 17, the day bargaining negotiations re-
sulted in a tentative draft of a contract which was submitted to the
union membership for approval on March 18.
After the membership had approved the agreement , we cannot infer
that these benefits were given to discredit the Union . Putting into
effect these employee benefits as set out in the tentative agreement
after union membership approval was received was not unilateral
action. Nor do we agree with the Trial Examiner that these benefits
were given the employees for coercive reasons. We do not find that
Respondent 's acts, when reviewed in the light of the entire record, are
sufficient to establish that Respondent refused to bargain in good faith
with the Union.
As we have found that the Respondent has engaged in no other
unfair labor practices , we do not believe that A. F. Siebert 's letter
of March 23 , standing alone, is sufficient to establish that the Respond-
ent was negotiating in bad faith . This is particularly true when con-
sidered with the positive evidences of good-faith bargaining by the
Respondent and in view of the absence of evidence that any volun-
tarily granted benefits were in fact withdrawn.
We further disagree with the Trial Examiner's finding that Re-
spondent violated Section 8 (a) (1) of the Act by the following acts:
The Respondent 's letter of February 11 which was read to the em-
ployees; Respondent 's effectuation of employee benefits ; A. F. Sie-
bert's conversation with the employee-members of the Union's
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating committee; and, Erickson's interrogation of employee
Montoya. It is our opinion that the letter of February 11 was an
expression of opinion and contained no threats or promises so as to
interfere with the rights of the employees and that the changes in
working conditions were not unilaterally effected for the reasons
discussed above. We find no implied promise of benefit in Siebert's
remarks to the employee-members of the union committee and no
action in derogation of the bargaining representative in his meeting
with this committee without the presence of the International repre-
sentative. We also find no unlawful interrogation in Siebert's asking
the committee why they had turned to the Union, or in Erickson's
casual inquiry as to whether employee Montoya thought a union was
needed at the plant.
Under all the circumstances, we find that the Respondent did not
violate either Section 8 (a) (5) or Section 8 (a) (1). Accordingly,
we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER PETERSON, dissenting :
In disagreeing with the majority's dismissal of the complaint and
in adopting the Trial Examiner's refusal to bargain finding, I rely
only on the element of bad faith which I find was exhibited by A. F.
Siebert in failing to conclude an agreement with the Union upon his
return to the plant. As set forth in the Intermediate Report, during
the bargaining conducted in the absence of Siebert, a complete tenta-
tive agreement was reached between the Respondent's representatives
and the Union largely as a result of the latter's acceptance of the Re-
spondent's counterproposals, which included maintenance of mem-
bership in lieu of the Union's union-shop proposal. When the tenta-
tive agreement was submitted to Siebert shortly before his return from
Florida, he stated that he would not sign it principally because he
objected to the maintenance-of-membership provision as being an un-
constitutional intrusion in union affairs. Thereafter, on May 18 nego-
tiations ceased. Thus, the real issue is whether Siebert was bargain-
ing in good faith when he repudiated this tentative agreement. As
in all cases of this kind, the answer can be found only by examining
all circumstances bearing upon Siebert's state of mind before, during,
and after negotiations.
As fully set forth in the Intermediate Report, in Siebert's letter
of February 11, 1953, which was read to all employees on the day be-
fore the election which the Union won, Siebert unmistakenly revealed
his antipathy to the Union and made unlawful implied threats and
promises to induce the employees to abandon a union. Siebert main-
tained this antiunion attitude after the Union had won the election
and during bargaining negotiations with the Respondent's represent-
MILWAUKEE ELECTRIC TOOL CORPORATION 981
atives, as revealed in his letter of March 23 to his attorney. Therein,
as detailed in the Intermediate Report, he stated inter alia that he
intended to withdraw voluntarily granted benefits because the employ-
ees had forsaken him by seeking to bargain through the Union and
that the adjustments of any wage inequities by the Respondent would
be made so as not to give credit to the Union. In a further attempt
to cause disruption between the employees and their designated bar-
gaining representative, Siebert summoned the employee-members of
the negotiating committee-without notifying Ziegler (the Interna-
tional representative and chief spokesman for the group)-and be-
rated them for organizing, questioned them as to why they had turned
to the Union, and impliedly promised them benefits if they dealt with
management rather than through a bargaining agent. Such conduct
was clearly coercive and violative of the Act.
Also significant is the fact that after the tentative agreement was
reached on March 17, the Respondent, while awaiting Siebert's ap-
proval of the document which was never forthcoming, put into effect
without prior consultation with the Union a number of substantive
conditions in the tentative agreement and granted unilateral merit
wage increases, as set forth in the Intermediate Report. It seems to
me that this conduct, especially when viewed in light of Siebert's state-
ment in the above-mentioned letter of March 23 as to wage increases,
was designed to impress the employees with Siebert's view that they
did not need a Union or a contract to get concessions from the Re-
spondent and thus to wean them away from their chosen representa-
tives. The fact that the employees had already agreed that most of
these matters be included in the contract seems to support-rather
than negate-the inference that the Respondent's unilateral conduct
was calculated to undermine the Union's status as a bargaining agent
and to avoid the necessity of executing the tentative agreement.
All of these factors viewed in combination convinces one that Siebert
refused to sign the tentative agreement not because of any basic ob-
jection to the compromised union-security provision but rather be-
cause of his previously indicated opposition to collective bargaining.
I would accordingly find that the Respondent violated Section 8 (a)
(5) of the Act and independently violated 8 (a) (1) of the Act, as
found by the Trial Examiner.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed May 28 and June 27, 1953, by Local 1035, International Union
of Electrical, Radio & Machine Workers, CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, herein called the General Counsel
and the Board, respectively, by the Board's Regional Director for the Thirteenth
Region '(Chicago, Illinois), issued a complaint dated July 29, 1953, against Mil-
waukee Electric Tool Corporation, herein called the Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor practices affecting
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act.
With respect to the unfair labor practices the complaint, as amended at the hearing,
alleged that Respondent interfered with, restrained, and coerced its employees by:
(a) Interrogating them regarding their union activities; (b) threatening them with
the withdrawal of existing economic benefits if they selected the Union as their
bargaining representative; (c) promising them economic benefits if they failed to
select the Union as their bargaining representative; (d) telling employees they would
have been "granted wage increases equivalent to that bargained by the Union if the
employees had not selected the Union as their collective bargaining representative";
(e) offering the organization and/or reinstatement of an employee committee for
grievance purposes if the employees rejected the Union; and (f) offered employees
"the privilege of auditing and approving Respondent's bonus plan computations"
through the above committee if the employees rejected the Union.
The complaint further alleged that Respondent refused to bargain collectively
with the Union as the exclusive representative of the employees in an appropriate
unit by the following acts: (a) Unilaterally granting individual wage increases with-
out notice to the Union; (b) unilaterally granting changes in conditions of employ-
ment concerning grievance procedures, use of bulletin boards, insurance benefits,
seniority, and overtime pay without advising the Union or announcing that the
changes were affected through negotiations with the Union; (c) endeavoring to elimi-
nate existing employees' benefits; (d) refusing to sign an agreement negotiated and
reduced to writing; (e) revoking previously granted authority to negotiate; (f) re-
fusing to grant authority to negotiate; and (g) withdrawing from or revoking contract
provisions previously agreed upon.
In its answer Respondent denied the commission of unfair labor practices.
Pursuant to notice a hearing was held August 10, 11, and 12, 1953, at Milwaukee,
Wisconsin, before Eugene E. Dixon, the Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel, the Respondent, and the Union were
represented at the hearing and were given full opportunity to be heard , to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues. Oral
argument was made by the General Counsel and a brief was filed by the
Respondent.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and at all times material herein has been, a corporation organized
and existing by virtue of the laws of the State of Wisconsin, having its sole plant
located at Milwaukee, Wisconsin, where it is and has been engaged in the manu-
facture and sale of portable electric tools.
Respondent in the course and conduct of its business and in the operation of the
plant at all times material herein has purchased materials, parts, and supplies valued
annually at approximately $850,000, of which approximately 75 percent is shipped
to the plant from outside the State of Wisconsin. Respondent manufactures products
valued annually at approximately $2,000,000, of which approximately 90 percent
is sold and transported outside the State of Wisconsin.
Respondent does not deny and I find it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1035, International Union of Electrical, Radio & Machine Workers, CIO,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The unit and majority
The complaint alleges that all production and maintenance employees of Respond-
ent, excluding office employees, guards, professional employees, and supervisors, as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (a) and (b) of the Act. The answer so
admits and the Board so found in its certification of the Union as the bargaining
agent of Respondent's employees on February 20, 1953, Case No. 13-RC-3175.
MILWAUKEE ELECTRIC TOOL CORPORATION 983
This certification was made pursuant to a consent election conducted by the Board
on February 12, 1953. In accordance with the Board 's determination I find that
since February 20, 1953, the Union has been and now is the duly designated ex-
clusive representative of all the employees in the above described appropriate unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , or other conditions of employment.
B. The refusal to bargain
There is no doubt that Respondent , by various acts described herein , refused to
bargain with its employees in violation of Section 8 (a) (5) of the Act. The real
question raised by evidence is whether or not Respondent should be ordered to sign
the collective -bargaining agreement heretofore negotiated between the Union and
Respondent 's representatives.
The facts are simple and , for a change , relatively free from credibility conflicts.
Although some differences appear in the versions of the various participants, they
are, for the most part, the kind of moderate differences that can be the result of
honest interpretations as distinguished from the trenchant conflicts all too common
in these cases which give rise to the disgusting realization that people too often
deliberately testify falsely in violation of their oaths to tell the truth.
In the first part of March 1953 , collective -bargaining negotiations began between
Respondent and the Union . ' A. F. Siebert , Respondent's founder and president
(referred to at times herein as A. F.), had left the city for an extended vacation
and was not expected to be present at the negotiations . Respondent was represented
by Reginald Siebert, the president 's son and Respondent 's executive vice president,
Lester Erickson , vice president in charge of production and general manager, and
Glenn Dougherty , Respondent's attorney . The union negotiators were made up
of Victor Ziegler, the Union 's International representative, who acted as spokesman,
and five employees.
At the first negotiating session Ziegler , in view of A. F. Siebert 's absence , raised
the question he had discussed with Erickson before negotiations began as to the
authority of Respondent 's representatives to negotiate a contract . Dougherty con-
firmed the information Ziegler had previously received from Erickson by saying,
"Ziegler, it 's correct that we do have authority to negotiate a full and complete con-
tract and although Mr. A. F. Siebert is not present with us in the negotiating room
he is as close to us as the telephone on his desk ." 2 Assurances were also given the
union committee by the management committee that A. F. Siebert would be kept
informed of the progress of the negotiations.3
At the first session the Union presented its proposals . There was discussion on
some provisions-particularly union security regarding which, according to Zieg-
ler's testimony , Erickson said, "A. F. Siebert would never hold still for a provision
concerning a union shop." Dougherty added, "But I am certain , Mr. Ziegler, that
we can work out a union security provision that will satisfy Mr. A. F. Siebert and
we trust you can go along with that too."
The second bargaining session was held a day or two later . This time manage-
ment presented counterproposals and accord was reached on all provisions except
wages, vacations , and seniority . Although testifying that at no time did the man-
agement committee indicate that any of the adopted provisions were tentative and
3 The exact dates of these bargaining meetings , although in conflict , are unimportant.
At the hearing Respondent 's counsel seemed to place considerable, credibility significance
on a possible discrepancy in the actual dates of the meetings and those testified to by the
General Counsel 's witnesses As I stated on the record at the hearing , faulty recollec-
tion of dates seldom impresses me as important in weighing the reliability of a witness.
In any event , whatever significance attached to the General Counsel's witnesses regard-
ing these dates also reflects upon Respondent 's executive vice president , R. L. Siebert, who,
called by the General Counsel as an adverse witness under Rule 43b of the Rules of Civil
Procedure , confirmed the meeting dates testified to by, the General Counsel 's witnesses.
2 All the negotiation meetings took place in A. F . Siebert's office It was understood by
all that the one to sign the agreement for management was to be A . F. Siebert. As put
in Victor Montoya's testimony , "Mr. [A. F.] Siebert would sign for the Company seeing
as how he owned the business ." All the stock except a small amount he had given to his
son, Reginald Siebert, was owned by A . F. Siebert.
3 The General Counsel's witness, Union President Victor Montoya , testified that
Reginald Siebert and Dougherty had informed the union committee "that they would
keep in constant contact with ( A. F. Siebert ) and keep him informed of progress being
made during negotiations."
984 DECISIONS OE NATIONAL LABOR RELATIONS BOARD
not binding on the Company, Ziegler did testify that in the second meeting Dough-
erty made the statement that it should be understood that the contract was to have
A. F. Siebert's signature and approval . Ziegler immediately challenged the state-
ment reminding Dougherty of the initial assurances regarding the negotiating au-
thority. Dougherty withdrew his remark saying he "didn 't mean to say approval,"
and added that "we are keeping in close enough contact with Mr. A. F. Siebert
so we won 't have any question on that score."
Within another few days a third meeting took place in which the remaining pro-
visions, wages , bonus, and vacations were discussed . A fourth meeting followed
the next day in which the one unresolved matter-that of a wage increase-was
agreed upon . The matter of the wage increase is the only specific provision of the
negotiations upon which there is evidence that the management committee con-
sulted over the phone with A. F. Siebert during negotiations , the latter agreeing to
a 10-cent increase?
The pattern of the negotiations was for each committee to discuss offers or coun-
terproposals among their own members if the occasion demanded . In this connec-
tion , Erickson testified that in several instances Dougherty turned to his committee
members and asked in effect if they thought A. F. would approve the provision in
question . Most of the General Counsel's witnesses denied hearing such comments
or that they were made. Victor Montoya, the union president who participated in
the negotiations , testified that he did not remember Dougherty's making such a
comment except once when they were discussing a "17 cent envelope." Dougherty
shook his head and said "No, A. F. would never go for that."
At the conclusion of this fourth meeting, accord had been reached on all con-
tractual provisions . Felicitous comments were exchanged about the progress and
results of the negotiations . Dougherty took the responsibility of reducing the un-
derstanding to its final typewritten form . He also requested early ratification by
the Union before sending the contract to A. F. Siebert in Florida. Because the
Union expected difficulty in locating on short notice a place to hold its ratification
meeting, the Company made one of its warehouses available for the meeting. The
typed contract having been received from Dougherty , the Union proceeded to ratify
the action of its negotiating committee and informed Respondent thereof immedi-
ately thereafter . This was on either March 17 or 18. At this time the question
of whose signature would be first affixed to the contract arose. On this point occurs
one of the few direct conflicts in the evidence. Erickson testified that Ziegler was
asked if he wanted to sign the contract before it was sent to Florida and that Ziegler
replied there was no sense in his signing it until A. F. Siebert had approved it.
Ziegler in his testimony denies that at this time he mentioned either A. F.'s ap-
proval of the contract or raised any questions as to whether or not A. F. would
in fact sign the contract.5
It was the intention , as expressed by management at this time and previously,
to have the contract back in Milwaukee within 4 days-signed by A. F. on behalf
of the Company. A. F. Siebert never signed the contract nor did anyone else.
According to Ziegler 's credited testimony , he called Dougherty on March 24
about the contract and was informed by Dougherty that there was no question in
his mind "or anybody else's mind that Mr. A. F. Siebert will affix his signature to
the contract" but that there were a few provisions in it upon which Siebert wanted
Dougherty 's interpretation. In this connection , since Siebert was extending his
vacation another week , Dougherty asked the Union's indulgence explaining that it
• The question of communications between Milwaukee and A . F. Siebert regarding the
contract negotiations is clouded by the unavailability of Attorney Dougherty who died
before the hearing in this matter took place . Erickson testified that he did not commum-
cate with A. F. during the negotiations Reginald Siebert testified that he believed that
copies of the Union's and the Company 's proposals were sent to A. F. and that they were
to have been discussed with A. F over the telephone but the conversation did not take
place until after the negotiations had been completed . This is credibly confirmed by A. F.
Siebert's testimony.
5In view of Ziegler's admission in a letter he sent to A. F. Siebert , discussed below,
that "During the latter stages of negotiations , we were informed by management that
final judgment in these negotiations rested with you, . . ." I am of the opinion and find
that the Union as well as management wei e at best skeptical as to what action A F. would
take . This is borne out by Montoya 's testimony that after the negotiations , he had asked
Erickson if the latter believed A. F. Siebert would sign the contract . Erickson shrugged
his shoulders and said, "I have no way of knowing If it were me there would be no
problem." In view of the foregoing , I am inclined and do accept Erickson 's version.
MILWAUKEE ELECTRIC TOOL CORPORATION 985
would hardly be feasible to cover A. F.'s questions regarding the contract by
correspondence.
On April 7 or 14, according to Ziegler's further credited testimony, Dougherty
informed Ziegler "that it was apparent now that A. F. Siebert had taken a position
not to affix his signature to the contract." Dougherty explained to Ziegler that he
felt "equally as bad about this as you do" and thanked him for the forebearance
and courtesy displayed by the Union.
On April 29 Ziegler visited A. F. Siebert at the latter's office. Siebert enumerated
the bonus plan, the length of the workweek, seniority, and the union-security pro-
visions of the contract which he disagreed with and which were attributed by him
as the reasons for his not signing the contract.
At that time Siebert indicated that he would not sign an agreement with a main-
tenance-of-membership clause in it. Ziegler pointed out that the provisions to which
he objected were the Company's own counterproposals which the Union had ac-
cepted not too happily. The meeting ended apparently with Ziegler's agreeing to
discuss the situation with the union negotiating committee and to meet again with
them and Siebert.
Confirming this testimony in part is a copy of a letter in evidence dated May 1
from Ziegler to A. F. Siebert stating, among other things, that:
During the latter stages of negotiations, we were informed by management
that final judgment in these negotiations rested with you, but that we were to
feel certain that the Committee representing the Milwaukee Electric Tool was
satisfied, through contacts with you in Florida, that within a matter of a few
days, upon conclusion of negotiations, you would affix your signature to these
documents.
On May 18 Ziegler and the union negotiating committee met with A. F. Siebert,
Suel Arnold, Respondent's attorney,6 and Erickson, called in at Ziegler's request.?
One of the first subjects to arise was the question of union security. Siebert made
it clear that he would never sign a contract with a union-security clause in it. Hear-
ing this the union committee and Ziegler departed and no further meetings took
place.
A. F. Siebert had a stroke in 1950. He curtailed the intensity of his business ac-
tivity from that time but retained the office of president of the Company and con-
tinued to control major policy decisions. He testified with an intensity and frank-
ness seldom seen on the witness stand, maintaining vigorously that he never dele-
gated complete negotiating authority to anyone. He had authorized his son, Erick-
son, and Dougherty to enter into negotiations with the Union and after they had
come to some conclusions to send the conclusions to him. But he had not author-
ized them to enter into a contract without "satisfying" him or excluding him from
signing it.
Just what the true arrangement between A. F. and his lieutenants was is difficult
to surmise. It is quite likely that he and they had different ideas as to what their
authority was to be. In any event, on this record it is unnecessary to resolve such
a fundamental point. Notwithstanding the admitted representations by the man-
agement committee to the Union that it had complete authority to enter into a full
and binding contract the record is full of implied or patent denials of that repre-
sentation. The statement that A. F. was only as far away as the telephone carries
such an implication. Erickson's statement in the first meeting that A. F. "would
never hold still for a provision concerning a union shop" and Dougherty's assurance
that they could work out a union-security provision that would "satisfy" A. F. pat-
ently denies full authority in the management committee.
What the record does reveal was the promise and obligation on the part of the
management negotiators to keep in touch with A. F. and clear with him the pro-
visions of the contract as they were resolved in the negotiations. The record shows
that except for the matter of a general wage increase this was not done. Herein
lies the main concomitant of Respondent's refusal to bargain. It may be that the
committee's motive in failing to keep A. F. informed, was to spare the old gentle-
man's health. Or it may have sincerely thought that its procedure was the most
feasible way to handle the negotiations and that it would be able to persuade A. F.
to approve its work.
8 Dougherty died May 4, 1953
7 There is some question as to whether it was the intention of the Union to engage in
negotiations at this time or merely to attempt to persuade A. F. to sign the contract.
Resolution of this point is unnecessary
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevertheless , regardless of motive, the committee 's conduct amounted to a breach
of faith toward the Union and left it with an empty gesture and an unfilled obliga-
tion-the obligation to bargain imposed upon Respondent by Section 8 (a) (5) of
the Act.
In addition to the foregoing evidence of a refusal to bargain which I find com-
menced with the first negotiating meeting, the admitted unilateral effectuation of
the following employee benefits without notice or credit to the Union which were
the subject of the contract negotiations constitute additional evidence of a violation
of Section 8 (a) (5) : 8
(a) The inauguration of additional afternoon rest periods.
( b) The provision of union bulletin boards in the plant.
( c) The inauguration of a grievance procedure for the employees.
( d) The posting of a seniority list.
(e) The inauguration of a shorter waiting period for insurance benefits.
(f) The granting of time and a half overtime pay for a Saturday work.
(g) The granting of 32 merit increases by Respondent to its employees after
March 23, 1953 , without notice to the Union , and the granting of 5 merit increases
between April 27 and June 1, 1953, which had been discussed during negotiations
and rejected at that time.
C. Interference , restraint, and coercion
A. F. Siebert 's feeling about the Union is graphically revealed in a letter from
him to Dougherty dated March 23, in which he said, "I don't mind telling you,
Glenn , that this Union affiliation has taken the `heart out of my business;' and I
shall now deal with it in the future as `cold turkey.' " He also wrote in the same
letter , "You have correctly stated that I agreed to an increase in the wage scale as
soon as the Wage Stabilization Law was lifted, but that statement was made prior
to the time of the elections . Irrespective of my agreement at that time, they did
not see fit to accept my generosity and preferred to depend upon the strong arm of
the Union to enforce their demands. Now that they have voted to have the Union,
any of my voluntary benefits were immediately eliminated . I understand that Les
and Reg have already corrected some of our inequities in the wage [sic] scla, es-
pecially among the women , so whatever is done now would indicate that it was
done voluntarily and not because of enforcement by the Union."
On cross-examination , regarding the letter , Siebert explained that because the
employees had chosen the Union it was his intention to eliminate all benefits he
had voluntarily given them. His "cold turkey" remark , he testified , meant that he
would deal with his employees just as he had "expressed" himself in the letter.
Siebert also testified that his employees could have realized as good or better benefits
from him independent of the-Union as their agent or intermediary.
These admissions by Siebert reveal his unfortunate inability to accept the pro-
scriptions in the Act against an employer 's interference with the rights guaranteed
employees in Section 7 of the Act. They reveal a purpose to punish his employees
for their union activities , which , though his motive may have been simply retaliation
for what he considered as ingratitude on their part nevertheless would be coercive
under the Act. Moreover , his obvious intention of divorcing any benefit that might
be given the employees from any possible credit to the Union in their minds is also
coercive and of course , supports the conclusion that such benefits given as found
above are indicative of violations of Section 8 (a) (1) as well as (5) of the Act.
In this frame of mind when he returned to Milwaukee , Siebert called in the union
negotiating committee minus Ziegler , to "let our hair down and talk this thing over."
Siebert asked the employees why they had turned to the Union rather than come
to him about any problem they had, telling them he could have given them everything
a union could get for them . Under the circumstances herein I find these remarks
to be in violation of Section 8 (a) (1) of the Act . In its context and setting there
is both illegal interrogation and, although voiced in the subjunctive mood and past
tense, promise of benefit for future direct dealing with management rather than
looking to a union for representation.
On February 11, 1953 , the day before the representation election , Reginald Siebert
delivered as a speech to the employees a communication written to them by his
8 N. L. R B v Pilling, 119 F 2d 32 (C. A. 3) ; Phelps Dodge Copper Products Corpora-
tion, 101 NLRB 360; Mason & Hughes , Inc., 86 NLRB 848; Tower Hosiery Mills, Inc,
81 NLRB 658.
MILWAUKEE ELECTRIC TOOL CORPORATION 987
father. The speech is set forth in full below since I believe and find that the speech
as a whole sustains the allegations in the complaint that it:
(1) Threatened to withdraw existing respondent economic benefits if the
employees selected the union as their collective bargaining representative.
(2) Promised increased wages, promotions and improved hours of employ-
ment if the employees failed to select the union as their collective bargaining
representative.
(3) Offered the organization and/or reinstatement of an employees com-
mittee to represent in the matter of wages, hours and conditions of employment
if the employees rejected the union.
(4) Offered its employees through said committee the privilege of auditing
and approving respondent's bonus plan computations, if the employees rejected
the union.
February 11, 1953.
To Milwaukee Electric Tool Corporation Employees:
Tomorrow is Lincoln's birthday, and the day you will be voting to decide if
this Company will be controlled by the present owner or the C. I. O. Union.
If Lincoln were alive and the sole owner of this business, the Union would
be just as active in its effort to unionize his business and control it as in the
case of the present owner.
Last Friday, there was an act of the government, which came at an opportune
time, removing the Wage Control Law. Now, the owner can and will do
those things that have been contemplated for a long time. The Management
only asks that you trust it, and it will be as considerate of our organization
after tomorrow as the profits of our Company will permit. I do not know
what the Union has promised you, but it cannot be more than an increase in
your base pay and that amount would not be so large as would endanger the
life of the Company.
I understand that comparisons will be made between the pay accorded em-
ployees of other electric tool manufacturers located in the Chicago area, and
in several Eastern cities. If this is true, I will contest the figures announced,
as it would be grossly unfair to our Company. It must be remembered that
the companies mentioned are manufacturing pneumatic tools, and also high
cycle motors, both items carrying a high margin of profit.
You have undoubtedly noticed that both the 1/4" and the 1/2" (popular sizes)
electric drills have for some time been offered for sale at extremely low prices.
Announcements have been made in full page advertisements at great cost by
the large department stores, such as Gimbels, Schusters, and furniture stores.
If it were not for the new "Sawzall" and R. A. D. Units, which we have
recently placed on the market, in addition to our government business, we would
be placed under a severe handicap. We have always enjoyed a national reputa-
tion for making only a quality line of tools, and with your cooperation, we
hope to maintain this outstanding record.
Some of our voluntary benefits are not in evidence at the Louis Allis Plant
(referred to by the Union in mass meeting), and could not be enforced under
the strong arm of any union organization . All of our benefits have been given
willingly, and without pressure, and will be continued indefinitely if we are
left to make our own decisions, and the profits we hope to make will warrant
their continuance.
We have known for a long time that some of our factory employees are
deserving of a higher wage rate, but each job must be evaluated, and then will
be paid accordingly, now that the Wage Control Law has been removed.
It shall be our policy to promote from the ranks whenever possible, and this
idea has recently been demonstrated in the appointment of Mr. Theilig as the
new Superintendent when Mr. Erickson was promoted to the position of
General Manager.
In the coming week, we shall reinstate our Grievance Committee, having its
members selected by yourselves from the production workers. My son will
represent the Company in the conduct of these meetings. We want your com-
plaints, and will satisfy them whenever possible, as we well know that our
Company can only progress when all its members are contented and happy.
In as much as a few of our employees are distrustful of the figures that decide
the amount of the weekly bonus, we are willing and happy to permit the
Grievance Committee to audit and approve the figures.
In mass meeting, the Union has referred to all the benefits that have accrued
to the Louis Allis Company of this city. I am well acquainted with several
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the officials in that plant , and in consequence , have been informed that prior
to the union control , the management voluntarily gave all of its employees a
liberal bonus at the end of each year depending upon their profits. This
gratuity was discontinued at the time the union was inaugurated.
The plant is now operating wherever feasible, under a piece-work system,
and work on a 40 hour week basis. They have adopted a pension plan at
company expense in lieu of their annual bonus, but when an employee leaves
their employ, he gets absolutely nothing, unless the employee has attained the
age of sixty-five years.
I ask you to compare this pension plan with our Profit Sharing Distribution
at the end of each year . We have credited each employee at the end of the
year an average of approximately 10¢ for every dollar earned during each year
(covering a period of ten years ). The total amount credited is fully paid with
interest if you remain ten years or longer . Your beneficiary will also receive
all of this credit if you should die, or paid to you should you reach the age
of sixty-five years.
Our Company is anxious and willing to make promises, and tell you what it
can and will do. But what promises have been made by the Union? If a
Union is initiated in our plant, have you figured what your cost will be each
year? You will be given an opportunity tomorrow to make your decision, but
before casting your vote , I sincerely hope that each one of you will sharpen
your pencil and all alone calculate whether you will improve your financial
condition if you join an outside labor organization.
Before concluding this letter, I promise that you can have your Grievance
Committee meet with the Management as soon as these union negotiations
are ended , to discuss and agree upon the subject of hours of employment and
wages which are the main subjects you now have under discussion with the
Union.
Unfortunately , the law does not permit either the Union or our Company
to make any definite promises while these negotiations are in progress . There-
fore, it is only a question of faith and trust you place in either the Company
or the Union. Which shall it be?
Sincerely,
MILWAUKEE ELECTRIC TOOL CORPORATION,
(S) A. F. Siebert,
A. F. SIEBERT,
President.
About a week before the election in a chance meeting between Erickson and
employee Montoya, Erickson asked Montoya if he thought the employees needed
a union. This is alleged as illegal interrogation in the complaint . Although there
is little interrogation of employees in this case and the incident itself seems trivial,
nevertheless , in view of the numerous other invasions of the employee 's rights by
Respondent , I find that Erickson's question to Montoya was a further transgression
of those rights.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with its business operations described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce within the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The General Counsel contends that the evidence in this matter brings it within
the ruling of the Supreme Court in H. J. Heinz Co. V. N. L. R. B., 311 U. S. 514,
and that Respondent should be ordered to sign the contract which was sent to
A. F. Siebert in Florida. The General Counsel's position is without merit. This
does not involve , as in the Heinz case, the execution of a contract upon which
complete agreement has been reached. Accordingly, having found that Respondent
has refused to bargain collectively with the Union as the exclusive representative
of its employees , the usual remedy will be recommended that Respondent, upon
request , bargain collectively with the Union and if an understanding is reached em-
body such understanding in a signed agreement.
SOUTHWESTERN BELL TELEPHONE COMPANY 989
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. Local 1035, International Union of Electrical , Radio & Machine Workers, CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Respondent, excluding office
employees, guards , professional employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times on and after February 12, 1953, the Union has been the exclusive
bargaining representative of Respondent 's employees in said unit.
4. Respondent has violated Section 8 ( a) (5) and (1) of the Act by failing and
refusing to bargain with the Union since on or about March 5, 1953.
5. By interfering with, restraining , and coercing his employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
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.]
SOUTHWESTERN BELL TELEPHONE COMPANY and RALPH OLIAN, PETI-
TIONER, and COMMUNICATIONS WORKERS OF AMERICA, CIO. Case
No.14-RD-75. November 23,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William F. Trent, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner, an employee of the Employer, asserts that the
Union is no longer the representative, as defined in Section 9 (a) of
the Act; of the employees designated in the petition.
The Union, a labor organization, was certified in 1948 and is cur-
rently recognized by the Employer as the exclusive bargaining rep-
resentative of employees designated in the petition.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks decertification of the Union as representative
of the Employer's directory artists. These employees have been bar-
gained for by the Union and its predecessor unions as part of a broader
unit coextensive with the Employer's commercial department since
sometime before 1942. The Petitioner asserts that the directory
110 NLRB No. 164.