Redgranite Pickle Co.

National Labor Relations Board - Board Decisions

Nov 18, 1958

122 N.L.R.B. 96 (N.L.R.B. 1958)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redgranite Pickle Company and Chicago Pickle Company, Inc.
and General Teamsters , Chauffeurs , Warehousemen & Helpers
Local Union No. 126, I.B.T.C.W. & H. of A. Case No. 18-CA-
854. November 18, 1958
DECISION AND ORDER
On July 10, 1958, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in this case, finding that the Respondents had engaged
in and were engaging in unfair labor practices within the meaning
of Section 8(a) (1) and (3) of the Act, and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondents filed exceptions to the Intermediate Report.
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 [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Redgranite
Pickle Company and Chicago Pickle Company, Inc., and their officers,
agents, representatives, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in General Teamsters, Chauffeurs,
Warehousemen & Helpers Local Union No. 126, I.B.T.C.W. & H.
of A., or any other labor organization of their employees, by laying
off, discharging, or in any other manner discriminating against them
in regard to the hire, tenure, terms, or conditions of their employment.
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist General Teamsters, Chauf-
feurs, Warehousemen & Helpers Local Union No. 126, I.B.T.C.W.
& H. of A., or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
122 NLRB No. 14.
REDGRANITE PICKLE COMPANY 97
or protection, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer the following employees immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result of the discrimina-
tion against them, in accordance with the "Remedy" section of the
Intermediate Report :
Edward Greer
Margaret Greer
Marvin Dutcher
Marian Dutcher
Glen Turner
David Buckholt
Harlow Malnory
Robert Manske
Robert Hill
Richard Pionke
Francis Hansen
Marion Hunter
David Jorgensen
Herbert Kelm
Mayford Lange
Philip Rosebrook
Norman Shaw
Frank Voigtlander
Marion Buckholt
Neoma Buschke
Stella Goldsmith
Beulah Mae Lange
(b) Preserve and make available to the Board or its agents, upon
request, for examination or copying, all payroll records, social-security
payment records, timecards, personnel records and reports, and all
other records necessary or useful to an analysis of the amount of back
pay due under the terms of this Order.
(c) Post at their places of business in Redgranite, Wisconsin,
copies of the notice attached hereto marked "Appendix." 1 Copies of
such notice, to be furnished by the Regional Director for the Eight-
eenth Region, shall be duly signed and posted immediately upon
receipt thereof and maintained for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words " Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
505395-59-vol. 122-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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, as amended, we hereby notify you that :
AVE, WILL NOT discourage membership in General Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union No. 126,
I.B.T.C.W. & H. of A., or any other labor organization of our
employees, by laying off, discharging, or in any other manner
discriminating against them in regard to the hire, tenure, terms,
or conditions of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Gen-
eral Teamsters, Chauffeurs, Warehousemen & Helpers Local
Union No. 126, I.B.T.C.W. R H. of A., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such rights 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 offer the following employees immediate and full re-
instatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered as a result of
the discrimination against them :
Edward Greer Marion Hunter
Margaret Greer David Jorgensen
Marvin Dutcher Herbert Kelm
Marian Dutcher Mayford Lange
Glen Turner Philip Rosebrook
David Buckholt Norman Shaw
Harlow Malnory Frank Voigtlander
Robert Manske Marion Buckholt
Robert Hill Neoma Buschke
Richard Pionke Stella Goldsmith
Francis Hansen Beulah Mae Lange
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named Union or any
REDGRANITE PICKLE COMPANY 99
,other labor organization, except to the extent that this right may be
.affected by an agreement as authorized in Section 8 (a) (3) of the Act.
REDGRANITE PICKLE COMPANY,
Employer.
.Dated---------------- By-------------------------------------
(Representative ) ( Title)
CHICAGO PICKLE COMPANY, 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed against the Respondents, Redgranite Pickle Company and
Chicago Pickle Company, Inc., by the Union, General Teamsters, Chauffeurs, Ware-
housemen & Helpers Local Union No. 126, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, the General Counsel of the Na-
tional Labor Relations Board I issued his complaint dated February 4, 1958, alleg-
ing that Respondents have engaged in and are engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charges, the complaint, and the notice of hearing were
duly served upon the parties.
With respect to the unfair labor practices the complaint, as amended at the hear-
ing, alleged in substance that on or about August 14 and 15, 1957, Respondent Chi-
cago Pickle Company, Inc., discharged some 17 employees and Respondent Red-
granite Pickle Company discharged some 5 employees, and at all times since then
have refused to reinstate them, because of their actual or suspected union and con-
certed activities. In their answer Respondents admitted the commerce facts alleged
in the complaint and denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in Redgranite, Wisconsin, on February 25,
26, 27, and 28, 1958, before Alba B. Martin, the duly designated Trial Examiner.
The General Counsel and the Respondents were represented by counsel and all
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally, and to file briefs. No
party made oral argument. The General Counsel and the Respondents filed briefs
which have been carefully considered.
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 RESPONDENTS
Respondent Redgranite Pickle Company, here referred to as Respondent Red-
:granite or Respondent, and Chicago Pickle Company, Inc., herein referred to as
Respondent Chicago or Respondent, operate in Redgranite, Wisconsin, in two adja-
cent and contiguous plants, sometimes referred to by the parties and herein as the
plant or the factory. Both Respondents use the same office force, the same account-
ing and bookkeeping personnel, and the same individuals to keep the personnel rec-
ords of the employees. At a Board-conducted consent election held in April 1956,
the appropriate unit consisted of the employees of both Respondents.2 Respondent
'The General Counsel and the staff attorney appearing for him at the hearing are
referred to as the General Counsel and the National Labor Relations Board as the Board.
a Case No. 18-RC-2822 (unpublished).
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redgranite is a partnership consisting of six partners, four of whom are the only
four officers of Respondent Chicago. The principal managing official of both Re-
spondents is Jerome (Jerry) Kunik, who is a partner in Respondent Redgranite and
is president of Respondent Chicago. As is seen below, employees of one Respondent
have been hired by supervisors of the other, and work assignments or instructions are
regularly given to the employees of one Respondent by supervisors of the other. It
is clear, as alleged in the complaint, that in the conduct of their interrelated opera-
tions at Redgranite , Wisconsin , the Respondents constitute a single employer within
the meaning of Section 2(2) of the Act.
Respondent Redgranite, having its principal office and plant at Redgranite, is en-
gaged in the business of purchasing and salting cucumbers, 50 to 60 percent of which
are sold to Respondent Chicago, and the remainder to other purchasers. During
the calendar year 1957 Respondent Redgranite sold and shipped processed products
valued .in excess of $300,000 from said plant to points outside the State of Wisconsin.
Respondent Chicago is a corporation having principal offices and places of busi-
ness in both Chicago, Illinois, and Redgranite, Wisconsin. At its Redgranite plant
it is engaged in the business of processing pickles and pickle products. During the
calendar year 1957 Respondent Chicago sold and shipped manufactured products
valued in excess of $1,000,000 from its Redgranite plant to points outside the State
of Wisconsin. It is hereby held that each Respondent is engaged in commerce with-
in the meaning of the Act.
All of the complained-of events herein occurred during the busiest part of Re-
spondents' year, during the peak season variously referred to in the record as the
summer season, the summer pack, the fresh pack pickle season. This is the only
part of the year that Respondents run a night shift, and it is the period when the
Wisconsin-grown cucumbers are brought into the plants. The summer season of
1957 began during about the last week of July and was in full operation at the time
of the discharges on August 14 and 15. The record does not contain the precise
date of the ending of the 1957 season, but the summer season generally ends some-
time in October and is generally spoken of as a 14-week season. President Kunik
thought the 1957 season ended in October. Respondents employ approximately 75
employees on a year-round basis. Four of those discharged in the middle of August
1957-Marvin Dutcher, Edward Greer, Margaret Greer, and Glen Turner-were
year-round employees. During the summer season Respondents employ from 300
to 400 people, of whom, during the 1957 season, there were between 100 and
125 on the night shift. All 17 of the employees discharged August 15 after the union
meeting were on the night shift and were seasonal employees.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters , Chauffeurs , Warehousemen & Helpers Local Union No. 126,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, referred to herein as the Union , is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background facts
In the spring of 1956, International Union of United Automobile, Aircraft and
Agricultural Implement Workers of America, AFL-CIO, made an attempt to organize
the employees of the Respondents in Redgranite , which effort culminated in a consent
election held April 27 which the Union lost 59-16.3 During this organizational cam-
paign, over the long distance telephone from Chicago, Jerome Kunik talked about it
with several of his employees in Redgranite, including Marvin Dutcher and Emery
Dutcher. Asked why he talked with these particular employees, Kunik testified
"they had been with the Company a long time . and I heard that they were the
ones that talked about this union business in the plant. My associates told me that
they had heard from Marvin and Emery and whoever else was in the office . .
Marvin Dutcher testified that over the telephone Kunik asked him what was going on,
what was the trouble, and what the employees wanted. Kunik told Dutcher he
would rather bargain with the employees than with an organization, that he was
talking with Dutcher because he figured Dutcher was one of his key men. Dutcher
told Kunik that the employees were talking about a 25-cent increase. Kunik replied
that that was pretty steep and he could not do that, and he asked Dutcher to talk with
3 Case No. 18-RC-2822 ( unpublished).
REDGRANITE PICKLE COMPANY 101
the employees and see what they would settle for, and added that he would be in
Redgranite in 2 or 3 days and would talk with the employees. A few days later
Kunik told the assembled male employees of both Respondents that he would rather
bargain with the employees than have some outsider come in, and announced a 10-
cent-an-hour wage increase, effective a few days later. The women employees had
just received an increase a few days or weeks before. To the assembled group Kunik
also promised an additional wage increase at the beginning of the summer season, and
in fact the male year-round employees received an additional 5-cent increase in about
July. For employee John Oleson, at least, these were the first wage increases in over
51/z years. Prior to his meeting, Kunik had further felt out the situation by sum-
moning employee Glen Turner and talking with him in the presence of Partner Jack
Olevsky of Respondent Redgranite and Superintendent Henry Kenig of Respondent
Chicago. Kunik had asked Turner why the men were trying to organize and what
were their complaints, and Turner had replied that they were not paid enough, were
not getting a week's vacation with pay or any paid insurance. During this organiza-
tional campaign Turner wore a union button at work for about 6 weeks. On the
witness stand Kunik admitted that he knew that employee Edward Greer participated
in organizational work for the UAW during this 1956 campaign.
No unfair labor practice findings herein are based upon the above background
facts. The above facts were received in evidence and are herein considered as back-
ground to explain any ambiguous and equivocal conduct on the part of Respondents
during the complained-of activities in 1957.4
B, The. 1957 organizational campaign, the interrogations, and the discharges
During the summer of 1957 Redgranite, Wisconsin, had a population of between
700 and 750. During their summer peak season, which was in progress at the time
of the organizational campaign of Local 126 with which we are here concerned, the
Respondents employed about 300-400 employees, who lived in Redgranite or in the
surrounding villages and countryside. Two organizers representing Local 126 drove
around and parked at different places in Redgranite for a period of about 8 working
days prior to the discharges complained of herein. During this period they talked
with employees Edward and Margaret Greer at the latter's home away from Red-
granite and at least once on the main street of Redgranite, and talked with Edward
Greer and Marvin and Marian Dutcher at the latter's home at least once prior to any
discharge, on August 12, 1957, at which time Edward Greer and both Dutchers signed
applications for membership in the Union.5 Margaret Greer signed an application
on August 12 at her home. The Dutcher home and an automobile parked in front
of it were visible from some of Respondent Redgranite's pickle-storing vats in an
area remote from the office, but were not visible from the office.
1. The interrogations
Edward Greer testified that during the afternoon of August 13, 1957, while he was
at work, President Kunik:
Asked me what was this I knew about the union business and I told him that I
didn't know nothing about it and he knowed about it as much as I did and he
said, "have we got to go through this thing once again like we did before?", so
I said, "I don't know," he says, "I don't want no part of this." .. .
Kunik denied that this conversation took place.
According to the undenied testimony of employee Steve Karmasin of Respondent
Chicago, one evening shortly prior to the discharge of Mr. and Mrs. Greer and of
Karmasin's brother-in-law, Marvin Dutcher (Karmasin placed it on Tuesday evening,
August 13), President Kunik engaged him in conversation in the warehouse. Kunik-
Asked me what I am going to do about this business that was going on again,
and I told him that I didn't know a thing except the rumors that I had heard
about it and also asked me, he said, I can't understand why the boys have prob-
lems, why they cannot come to see me, and he says not to try to get help from
the outside . . . Greer and Dutcher must be at it again.
Employee John Oleson of Respondent Chicago, a neutral witness who impressed
me as a very honest, though nervous, witness, testified that on Wednesday, August
4 Paramount Cap Manufacturing Co., 119 NLRB 785.
5 This finding is based upon the applications, which are in the record, and upon the
testimony of Marvin and Marian Dutcher who were more credible witnesses than Edward
Greer. The latter testified he signed his application at his own home.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14, 1957, between 4 and 5 o'clock in the afternoon, while Oleson was in the office-
on an errand, President Kunik "asked me if I heard anything in the back where I was.
working about them trying to start another union in here." In substance the witness.
replied yes, that the first he had heard of it was that morning when he had come to,
work, when the fellow who was working with him, Marvin Carpenter, asked him
if he had heard anything about them organizing a union. Asked if such a conversa-
tion took place with Oleson, Kunik replied, "It could have taken place just as well
the 15th or the 16th or the 17th. I do not recall any particular dates. I might
have had a conference with him,, that is very possible: Oleson testified that he
remembered this conversation took place when the train was in, and without con-
tradiction he testified that at that time of year the train was in only on Wednesday'
and on Sunday. It follows, and I find, that this conversation took place on Wednes-
day, August 14.
Marvin Dutcher testified that the day before his discharge, which would have-
placed it on August 14, 1957, Kunik called him into the warehouse and said,
What is this that I heard through the grapevine, he said, about trying to organize-
or get a union in here. And I said, well, I don't know too much about it. He
said, where did it start from, and I told him as near as I know, it come from
Wautoma, and he asked me if I knew the fellows, and I told him no. And he.
says, you know, when this happened before, he said, you know I never laid'
nobody off, he said, but maybe I should have.
Dutcher testified further that during this conversation Kunik asked Dutcher what
kind of car the organizers were driving, told Dutcher. that the Company would
put an insurance plan into effect the first week of November, said that he had heard
that there was going to be a union meeting and asked where it was going to be
held, and asked if Dutcher had talked to other fellows about the Union. To the
latter question Dutcher replied that he had discussed it with Harvey Henke.
Although President Kunik did not specifically deny the above conversation with
Dutcher, he testified in substance that his first knowledge of union activity in and
around the plant was on August 15 when he saw handbills being passed out in the
afternoon. Asked if prior to that he had had any indication "from any employee
or rumor or written statement or in any fashion as to any activity in and around the
plant" Kunik replied, "No, sir. I was too busy for rumors or anything else at that
time of the year. I had my work (cut) out for me pretty good."
Margaret Greer testified without contradiction that the day after her discharge;.
on August 15, she returned to the plant and, among other things, talked with Kunik.
She testified that she did not remember just how it came about, "but we were talking-
about the Union. He told me that Mr. Tilkens and them had been out to my house-
for supper . . . Mrs. Greer admitted the accusation to Kunik.
As will be seen below, in all some 22 employees were discharged by Respondents
on August 14 and 15. The following Monday, August 19, 1957, Barbara Kanneman'
applied first to Kunik and then to Supervisor Berray for a job. During their con-
versation Berray asked her, according to Kanneman, whether she had been thinking
about the Union and whether she intended joining the Union, to which Kanneman
replied, "No." Kanneman was hired. Berray denied making these interrogations..
As Kanneman impressed me as a more credible witness than Berray, I credit her
testimony.
Conclusions
As has been seen , interrogations concerning the Union were attributed to Presi-
dent Kunik on August 14 and 15 by some five employees. Concerning these con-
versations, Kunik denied only one. The testimony of John Oleson, a particularly
honest witness and a neutral one, was alluded to by Kunik and was not denied
it is credited in full , including the date of August 14 when it occurred. Also
Steve Karmasin was an honest and credible witness whose testimony was not denied
by Kunik, and whose testimony is credited.
Based on the testimony of these two witnesses I find that Kunik interrogated them
concerning the Union prior to the discharge of the Greers and Dutchers, Kunik
thereby displaying a knowledge concerning the organizing drive prior to the discharges
despite his testimony to the contrary. Because much of Kunik's testimony concerning
the discharges consisted of generalities, exaggerations, and conclusions, and because
of numerous inconsistencies in his testimony, examples of which appear below,
Kunik was not a convincing witness. In view of this, as Edward Greer, Margaret
Greer, and Marvin Dutcher were more believable as witnesses than Kunik, and as
the record does not suggest a reason why Kunik would question Karmasin and
Oleson concerning the Union and not question Mr. and Mrs. Greer and Marvin
Dutcher concerning it, I find, on the record as a whole, that the August 14 and 15
REDGRANITE PICKLE COMPANY 103
interrogations of the Greers and Marvin Dutcher were made substantially as testified
by each of them.
The question remains as to whether these remarks by Kunik to these five employees
were, in the light of all the surrounding circumstances as shown in the record,
violations of the Act. I conclude that they were. As will be seen below, these
remarks preceded by only a matter of hours, or a day or so, the unlawful discharge
of 22 employees. His reminding Marvin Dutcher that "when this happened before
I never laid nobody off . . . but maybe I should have" was an implied threat
to make layoffs I this time in retaliation against the union drive. Under all the!
circumstances the interrogations of the five employees and the implied threat ad-
dressed to Dutcher reasonably tended to restrain or interfere with employees in
the exercise of rights guaranteed in Section 7, Respondent Chicago thereby violating
Section 8 (a) (1) of the Act.
The next question is whether Berray's asking Kanneman on August 19 whether
she had been thinking about the Union and whether she intended joining the Union
was a violation of the Act. Following so closely upon the unlawful discharges,
found below, 17 of them right after the union meeting the previous Thursday night
(which in the employees' minds were certain to have been connected with the union
meeting), putting these questions to an applicant who knew about the discharges,
as did Kanneman, was a way of informing the applicant to stay away from the
Union, and reasonably tended to restrain or interfere with employees in the exercise
of rights guaranteed in Section 7, Respondent Chicago thereby violating Section
8(a)(1).
2. Discharge of the Greers, the Dutchers, and Turner
At the close of their shift, shortly after 5 o'clock, on August 14, Kunik had
Mr. and Mrs. Greer sent to his office, and a few minutes later had Glen Turner sent
to his office , and in discharging each of them gave as the reason that he was doing
it for the good of the Company. Although requested, he refused to give them
any other reason. Early the following morning Kunik discharged Marvin Dutcher,
also for the alleged good of the Company; and shortly after 5 o'clock that after-
noon , at the direction of Kunik, Marian Dutcher, wife of Marvin, was discharged
by Supervisor Bernice Berray, who gave as the only reason for the action the fact
that it had been ordered from the office. All of these discharges were made or
ordered by Kunik, although he admitted that he himself did not customarily dis-
charge employees. At the hearing Respondents' alleged reasons for these dis-
charges, considered below, left it as mere coincidence that these five discharges
included two husband-and-wife teams and that the first three discharges occurred
almost simultaneously and the other two the following day, the day of the first
open union meeting. The entire record suggests that more than coincidence was
involved.
The two Greers and the two Dutchers all worked for Respondent Chicago;
Turner worked for Respondent Redgranite. Although the word "layoff" was used
in some cases , it is clear on all the facts that these employees were discharged,
and Respondents did not contend otherwise. None of the employees have been
recalled to work. These five discharges are now considered in greater particularity.
Margaret Greer
At the conclusion of their shift on August 14, about 5 p.m., Kunik summoned
the husband and wife, Edward and Margaret Greer, to his office, and discharged
them. In their testimony all three agreed that the only reason he gave either of
them was that he was taking the action for the benefit or good of the Company.
In substance, Kunik testified that when they started to protest he cut them off, told
them he did not want to discuss it, that the Company had hired them and now the
Company had discharged them and that was all there was to it. In substance, the
Greers testified that considerably more was said. At the hearing certain reasons
were assigned by Respondents for the discharge of each of these employees, but
Respondents' defense failed to explain why they were called to the office and
discharged more or less simultaneously.
In substance, both Greers testified that after Kunik had told them he was laying
them off, Mrs. Greer asked what it was all about, and why she was being laid
off, and Kunik repeated that he was doing it just for the benefit of the Company.
Both Greers testified that Mrs. Greer asked if her work was satisfactory and Kunik
replied that it was. Margaret Greer testified that she asked if she could draw her
unemployment insurance and Kunik replied that she could. Both Greers testified
that after this initial conversation, with Mrs. Greer, the.latter left the. office, and
that Edward Greer remained in the office talking with Kunik for a while longer.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the uncontradicted testimony of Margaret Greer, she returned to
the office the next day, August 15, to straighten out a miscalculation of her time as
reflected in one of the checks handed to her by Kunik the night before. While in
the office she had another short conversation with Kunik concerning her discharge,
during which the Union came into the discussion, Kunik told her that the union
organizers had been out to her house for supper and she admitted that this was
true. (The two organizers had had supper at the Greer home on Wednesday,
August 7.) During this conversation Margaret Greer again asked Kunik for an
explanation as to why she was laid off and he said for no reason at all, just for
the benefit of the Company.
Prior to her discharge, Margaret Greer had been a year-round steadily employed
employee of Respondent Chicago for 3 years. Prior to that she had worked during
the peak season for two seasons. Prior to the 1957 peak season she had performed
a number of jobs in the packing department including packing pickles, sorting
pickles, labeling, and running the slicer. During the 1957 peak season up until her
discharge she was given an 'important assignment on a newly installed automatic
pickle-packing machine which doubled the factory's packing capacity. Other than
for a short trial run in June, this new machine was in operation only a little
over 2 weeks prior to Mrs. Greer's discharge. Her job was to take the filled jars
of pickles out of the packer and put them on the line for the other girls to "top." In
addition she was taught how to turn the machine on and off and was authorized to
turn it off when something went wrong, even though she stood some 6 or 8 feet
from, and had to go past some other employees to get to, the controls. At her
work, Mrs. Greer stood fairly close to Marian Dutcher, who also had the important
assignment on the automatic machine of placing empty glass jars in the cups on
the moving belt on the way into the tumbler to be filled. These two, Mrs. Greer and
Mrs. Dutcher, held the only jobs on the machine itself. All the other women
assigned to the machine worked on lines feeding into or out of it.
Asked by Respondent's counsel why he discharged Margaret Greer, President Kunik
replied, "Well, I discharged her due to the fact that she just talked too much with
her neighbor [Marian Dutcher] and didn't pay much attention to her job. And at
the same time she was a rumormonger. She was making more money and she was
getting as much money as the floor lady and that had been going on for quite a
while." Elaborating, the witness said that he had received reports from his super-
visors and that "towards the end of that week" (Mrs. Greer was discharged on
Wednesday) "I noticed her keeping company with a neighbor right next to her who
was Mr. Dutcher and the machine didn't operate as efficiently as it should have
done." The alleged rumormongering was further explained by witness Bernice
Berray, who testified that at an unspecified time two other employees complained to
Berray that Margaret Greer had claimed to them that she got more of a bonus than
the rest of the women got. Berray did not discuss this alleged wrongdoing of
Margaret Greer with the latter but instead offered to show the two complaining women
the payroll in order to convince them that what Mrs. Greer had allegedly claimed
was not so. Berray testified that other women had also asked her if Margaret Greer
got more money than they did, but Berray could not remember their names. On
cross-examination, Berray admitted that these alleged statements by Margaret Greer
did not "impress" Berray very much, and that she herself would not have considered
discharging or recommending. the discharge of an individual for making them. To
be noted in this connection is that Kunik testified that he himself did not customarily
hire or fire employees, and the further fact that Berray had the authority to hire
and presumably the authority to discharge, but she neither discharged nor recom-
mended the discharge of Margaret Greer. On cross-examination Margaret Greer
denied making these alleged statements to other employees and also denied a
number of other implications which Respondent thereafter in its case-in-chief did
not undertake to develop as alleged reasons for her discharge. She was not asked,
and so neither admitted nor denied, whether she talked with Marian Dutcher while
at work.
As in the discharge interview or the next day Kunik refused to give Margaret
Greer any one of the reasons asserted at the hearing as the reasons for her dis-
charge; as the alleged reasons were not a cause for discharge in the eyes of Berray,
who supervised all the women in the packing department and knew their working
habits far better than Kunik possibly could have; as (as will be seen below in the
consideration of Marian Dutcher's discharge) any inefficiency in the automatic
packing machine, a new machine not yet in full running stride, was due primarily
to machine trouble and the failure of the girls on the glass line to keep ahead of the
belt, rather than to conversationalism; as the asserted reasons fail to explain why
Greer was discharged on August 14 rather than on some other date; and as, in any
REDGRANITE PICKLE COMPANY 105
case, the entire record establishes that the motives behind Kunik's actions on August
14 and 15 were highly suspect, I find that the alleged reasons for the discharge of
Margaret Greer were mere pretexts and not the real reason for her discharge.
Edward Greer
Edward Greer was a year-round steady employee of Respondent Chicago Pickle
Company, Inc., from the spring of 1955 until his discharge on August 14, 1957. His
principal job was coopering or heading 50-gallon barrels of cooked relish or diced
pickles. Coopering was a specialty job performed by only three persons in both
Respondents. Coopering consisted of knocking the hoops off the filled barrel, putting
on the head or cover and fitting it into the notches, replacing and tightening the
hoops, laying the barrel on its side and knocking the bung out , filling the barrel
with brine, then closing the bung and painting the barrel. Greer had performed this
operation at least two winters . Summers he usually worked in the "cooking room"
or did other operations , but during the peak season of 1957, because there was
coopering to do he continued doing it right up to his completion of that work
the very day of his discharge, and in addition for about the first 2 hours each
morning he assisted Marvin Dutcher and the washing crew at their task. It was
not claimed that Greer was laid off for lack of work, and, as has been seen, he
was a year -round employee.
As has been seen above, the day before his discharge President Kunik selected
Greer as one of a few employees from whom to gain some information concerning
the union movement . Greer told Kunik that the latter knew as much about it as
Greer did. In Greer 's language , Kunik said , "I don 't want no part of this." Greer
replied , "If sometimes you don 't get what you want is what you get," 6 at which
point Kunik turned around and walked off.
The beginning of the discharge interview with the Greers has been seen above in the
consideration of Mrs. Greer's discharge. After Mrs. Greer left the office on that
occasion , Greer accused Kunik of discharging them both "on account of this union
activity." Kunik denied this, stated that he had been "lenient before" even though
he could have laid anybody off, but added that "this is not for that. This is just
for the benefit of the company."
Only Kunik testified for Respondent as to why Greer was allegedly discharged.
Greer worked directly under Superintendent Henry Kenig , who was not called to
the witness stand , and took some orders from Supervisor Berray, who, though a
witness, was not asked to testify concerning the discharge of Greer.
Although Kunik's testimony concerning why Greer was discharged was generalized
and somewhat exaggerated , in substance his position was that Greer was discharged
because (1) somebody (we do not know who) asked him to work the previous
Sunday, he promised he would and then did not show up; (2) the next day, Monday,
Greer did not show up for work (which Kunik discovered that morning), but late
that afternoon Kunik saw him just outside the plant, at which time Greer was
allegedly under the influence of liquor; ( 3) at unstated times Kunik had reports
from unnamed supervisors that Greer had told unnamed employees that he was
making more money than they were and that Kunik had promised them (or him-
Kunik stated it both ways at different times) more money, thereby disrupting the
harmony of the plant. These defenses are now considered.
In substance Kunik stated that as a result of Greer 's failure to work on Sunday
(he had worked Monday through Saturday the previous week) and Monday, the
coopering work fell far behind , thereby holding up some production behind it. How-
ever, by the end of his shift and the time of Greer's discharge on Wednesday, all
the coopering had been completed and the "relish season" had been ended. There
being no evidence that anyone assisted him, presumably on Tuesday and Wednesday
Greer finished off the backlog , and any additional barrels. As to whether in fact
Greer had promised someone to work Sunday and then had failed to do so, the
record has only the hearsay statement of Kunik, neither the someone having testified
nor Greer having been asked about this on cross-examination or otherwise.
As to Monday , August 12 , Greer testified that he reported for work that morning,.
punching in at about 5 : 40 a.m., that he was ill and went home and slept all day until.
time to come down and pick up his wife upon completion of her day's work, which.
he did , still feeling ill. He denied seeing or talking with Kunik when he came down.
that afternoon . Asked on cross-examination what made him sick , Greer replied,
"I don 't know . I have ulcers ." Asked, "You drink a little?" Greer replied, "Yes,
O The transcript of the hearing failed to record that Greer made this statement to
Eunik. As I distinctly remember that Greer testified he made this statement, the
transcript, page 446, is corrected accordingly.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOA_.D
I do, but I figure that is my business." Asked, "Is that why you have ulcers?", he
replied, "Could be." He was not asked if he was under the influence of liquor on
the afternoon of August 12. One of the union organizers, Donald Tilkens, a
credible witness, he saw at Dutcher's house shortly after he picked up his wife,
testified in substance that he did not notice that Greer had been drinking and that
"if he was intoxicated he talked awfully sober." Marvin Dutcher testified that
Greer told him he was sick. In connection with this it should be noted that Kunik
testified that prior to this occasion he had had reports from his supervisors of
drinking by Greer, and that from Kunik's personal observation "it seemed to me
like most of the time he was" under the influence of drink. If this was an exaggera-
tion it reflects adversely upon Kunik as a stater of fact. If it was true that Greer was
under the influence of drink "most of the time" while he was working for Respondent
Chicago for over 2 years, then it is certain that during all of that time Kunik had
chosen not to discharge him because of it. This raises the question as to why seeing
Greer "under the influence" on August 12 was the "straw that broke the camel's
back," as Kunik testified. That Respondent condoned drinking by its employees is
further shown by the fact that the man it put in charge of the washing crew after
discharging Marvin Dutcher, Harvey Henke, was a "drinking man"-to use Kunik's
phrase-whose automobile license had been taken away from him for a year and
who was "under bond." Further, Kunik testified in substance that he would not have
discharged Greer solely for being drunk on Monday-he stated that he would not
have discharged him if he had not failed to work on Sunday and Monday and if he
had not caused "turmoil" around the plant. I conclude from all this testimony con-
cerning drinking, including the fact that the key spot held by Marvin Dutcher was
filled after his discharge by a "drinking man," that in fact -drinking was in no
way the cause of Greer's discharge nand that Greer's being drunk on Monday, if he
was (which I do not find it necessary to conclude one way or the other) was also
in no wise the cause of his discharge.
As to Greer's "disturbing" employees and creating "turmoil" in the plant by
statements he allegedly made, this defense was not developed beyond its mere asser-
tion at the hearing by hearsay evidence and in the form of Kunik's conclusion. As
Kunik's conclusions were contrary to the weight of the evidence in other respects
and as he did not impress me as a reliable stater of facts or conclusions on contested
issues, his assertions and conclusions in this regard are not credited.
In view of the above considerations, as in the discharge interview Kunik refused
to-give Edward Greer any one of the reasons asserted at the hearing as the reasons
for his discharge, and as the defense to this discharge rests solely upon the general-
ized, exaggerated, and altogether questionable testimony of President Kunik, I do
not credit Respondent's defense to the discharge of Edward Greer.
Glen Turner
Glen Turner was employed by Respondent Redgranite as a year-round employee
from the fall of 1954 until his discharge on August 14, 1957. Prior to that he worked
as a seasonal employee during the peak seasons of 1946, 1950, and 1954. Mostly
he worked on the dock and around the barrel room, unloading and sorting cucum-
bers, etc., and grinding barrels, which meant cutting the charcoal out of the inside
of them. He took his `orders from Dock Foreman Claire Gehrke, and from Part-
ners Jack Olevsky and Marvin Miretzky.
. Turner, who impressed me as an honest and credible witness, testified that for
the last couple of days before he was discharged "quite a few people" around the
plant were talking about the fact that a union was "trying to get in there again," and
that he himself discussed the subject with Edward Greer and John Sroka. He dis-
cussed it with Greer the morning of the day he was discharged, August 14, in the
presence of two other men whose names he did not know. The record does not
reveal when he discussed it with John Sroka, but on August 12 Sroka had been at
Marvin Dutcher's house for an hour or so shortly after 5 p.m. at the same time that
the two union organizers and Edward Greer were there, at which time both Dutchers
and Edward Greer signed application cards for membership in the Union and John
Sroka did not .7
.7 John Sroka was sometimes referred to in the record as Johnny Sroka. At least
once, on page 16 of the transcript, he was erroneously referred to as "Jennie" Sroka.
As several witnesses referred to the presence of John Sroka on August 12 and said noth•
ing about the presence of another Sroka named "Jennie," I find that there was no "Jennie"
Sroka and that only John.Sroka attended the August 12 gathering with the other em-
ployees and union organizers. Wherever. the name "Jennie Sroka" appears in the record,
it is hereby corrected to read "Johnny Sroka."
REDGRANITE PICKLE COMPANY 107
Shortly after 5 o'clock, the end of his shift, on August 14, Kunik had Turner sent
to the office, presented him his checks, and told him he was discharging him for the
good of the Company. When Turner asked him for what reason he was discharging
him Kunik replied, according to the credited testimony of Turner, "Let's say we've
just got too much help." Turner then asked if it. had anything to do with the rumors
going around the factory. Kunik replied, "Rumors get around."
Turner immediately returned to the dock and asked Jack Olevsky why he was
being fired. Olevsky replied that "Jerry said that he would explain everything to
you.".
Turner then returned to Kunik's office and. asked him for more definite reasons for
the action. Kunik replied only that it was for the good of the Company. Turner
asked him for his "vacation check." Kunik replied that if he had one coming he
would receive it.
Asked why he discharged Glen Turner, President Kunik replied,
I received several reports, in the course of time, that he wasn't co-operative.
He didn't take interest in his job, or I would say, that he was a lazy boy.
He said he received these reports from Jack Olevsky and Claire Gehrke. The record
establishes that Respondent's officials had always considered Turner's attitude and
performance on the job as something less than completely satisfactory, but that prior
to the advent of the Union they had kept him on the job as a year-round employee
for nearly 3 years, nevertheless. Olevsky testified that Turner "would work some-
times good and at times he would loaf"; he was "strong and lazy at times . . . to me
he seemed that if he wanted to work he could work." On direct examination
Gehrke testified,
. he would be an awful slow starter and maybe he would have to go to the
toilet before he would start and hang around on different occasions and when he
was working he would walk off his job and go and visit with. the other help,
stroll around the platform. . I would say, "Aren't you lost, Turner?" . .
"I don't know," he says, and he would kind of loaf back to his job and started
working. . We never was very tough on anybody. . . They wasn't very
tough on anybody, if we had reasons to fire him, but we just give him a break.
On cross-examination Gehrke testified that "I never could see" that Turner was a
willing worker, although "he is a pretty good-sized fellow." He continued,
Once in 'a while two or three days he would take these strolls around and
walk away from his job and I would say aren't you lost or something and then
he would stroll back to his job at,an easy gait. .
Asked, "But you never did anything about it, you kept him on?", Gehrke replied,
Well, we was, of course, figuring to get along as good as we could with the help,
it was all a pretty nice bunch of fellows as far as that goes. I don't think any-
body could say they was misused in that place.
Asked, "You don't suppose he would have been kept around there unless he was a
reasonably satisfactory employee, do you?" Gehrke replied,
Well, up to the last couple of years it has been hard to get help and we had to
keep what we could get.
This answer scarcely explained keeping him the last 2 of his 3 years.
Olevsky testified on direct examination that the "conveyor" incident which led
directly to Turner's discharge occurred on August 14. On cross-examination he
admitted that he did not remember whether, when two employees of the Board talked
to him about the Turner discharge some 2 months after the event, in October 1957, he
told them the incident had occurred on August 13 rather than August 14. On cross-
examination Olevsky at first stated that the only thing he mentioned to the investiga-
tors about Turner was the "conveyor" incident, saying they did not ask him about
anything else. Then he admitted that they had asked him about the quality of
Turner's work, and contradicted himself by saying that "I told them that there were
times that he worked good and times he didn't work good."
Turner testified that nothing unusual happened the day or so before his discharge,
that he received no "bawling out" from Olevsky or Gehrke, and that his discharge
came as a complete surprise to him-which latter conclusion was borne out by his
action in returning to Olevsky after the discharge and then returning to Kunik in an
effort to discover a reason for the discharge.
The conveyor incident consisted of the following: On the afternoon of August 14
Olevsky allegedly saw Turner beginning to unload a truck by hand rather than using
the conveyor. When Olevsky told him to use the conveyor Turner allegedly replied,
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"If I use the conveyor . . . we will get through too fast ." There was no claim that
Turner did not then start immediately to use the conveyor . Olevsky testified that "I
got a little disgusted and I went up and I told Jerry Kunik about it." Kunik told
Olevsky to send Turner up, and when he did at the end of the shift, discharged him.
On cross-examination Olevsky stated that unloading by conveyor was quicker, but no
less work for Turner, and that whenever Turner finished that assignment he would
be given another.
In June , at the beginning of the peak season , and not many weeks before his dis-
charge, at Turner 's request twice presented , Turner was given a raise from $1.15 to
$1.25 per hour . Respondent contended that this raise was given to "pep him up" a
little. Kunik testified that thereafter he saw no improvement in Turner . Incon-
sistently Olevsky testified that "After I gave him the wage increase the first couple of
weeks he worked very well. He worked faithfully and hard, as I thought he could
if he wanted to , only a little later he started to act up a little bit."
About 6 months before his discharge Turner had been sent on an errand in his
car along with a truck and two men . Apparently they all returned 2 hours late,
Turner returning drunk . The other two men were docked the time, but apparently
Turner was not docked anything . He was sent to sleep it off in his car , and when he
was later found roaming around the factory , he was sent home. No action was taken
against Turner . The record does not show that Respondent even considered dis-
charging him over that incident . Compared to that incident the "conveyor " incident
seems trivial indeed.
The record discloses no reason why, if the "conveyor" incident or Turner 's general
deportment were the real reasons for Turner 's discharge , Kunik should have refused
to inform him of that fact when Turner pressed him for a reason for the action at
the discharge interview and upon Turner 's return to see Kunik immediately thereafter.
Further, Turner 's remark to Olevsky about getting through too fast must have been
said in humor, since, as Olevsky admitted , Turner's not using the conveyor would in
fact save Turner no work during the course of his shift . There was plenty of work,.
and at the conclusion of unloading that truck there was always another assignment..
In any case, Kunik 's quick decision to discharge Turner allegedly over this trivial
incident is highly suspect on the entire record in this case. Under all the circum-
stances, the asserted reasons for the discharge-his general deportment over a period
of years and the conveyor incident-appear to me more as pretexts than as the real
reasons for the discharge . Under the circumstances the defense to the discharge of
Turner is not credited.
Marvin Dutcher
Marvin Dutcher worked for Chicago Pickle Company as a full-time year-round.
employee for at least 7 years prior to his discharge on August 15, 1957, and as a.
seasonal employee for several years before that. His connection with the Company
began about the time that Jerome Kunik's did. During the busy season he and a.
crew of three or four others operated the washing machine for all pickles, and during:
the rest of the year he performed a number of other jobs around the plant. In addi-
tion to his regular duties, he mowed the lawns around the company-owned house
in Redgranite, and Partner Marvin Miretsky's house, and also put the storm windows
on and off both houses. On occasion he chauffeured one or more officials of the
Respondents to or from Oshkosh or Fond du Lac, Wisconsin, for their train to or
from Chicago.
As has been seen above, the afternoon before his discharge, President Kunik.
sought without much avail to learn from Dutcher something about the organizational
drive of the Union, including such questions as where it started, who the organizers.
were, what kind of a car they drove, whether there was going to be a union meeting
and if so where it was to be, whether Dutcher had talked to the other employees
about the Union. Dutcher admitted he had talked with one employee. Kunik had
also made an implied threat to discharge in retaliation against the organizing drive.
When Dutcher reported for work early Thursday morning, August 15, 1957,
there was a handwritten note stapled to his timecard saying, "Don't punch in, see
Jerry." Dutcher returned to the plant again at about 7 o'clock in the morning
and talked with President Kunik in his office. Kunik was not asked, and so did
not testify, concerning this specific conversation. According to the uncontradicted
testimony of Dutcher, Kunik accused him of lying to him about the Union, and
said that Dutcher knew more about the Union than he claimed. Dutcher replied
that he had told him what he knew. Dutcher's testimony continues as follows:
Well, he told me it was not on account of the Union, it was for the benefit of
the Company that he was laying me off, and at that time I asked him if my work
was satisfactory, and he said, yes. He also asked me, he said, wouldn't you
REDGRANITE PICKLE COMPANY 109
be kind of shook up or whatever you call it, something like this was happening,
and I said, I wouldn 't. And at this time he was pacing the floor , and he told
me that I had been employed there for many years and I was looking at one
of the best friends I ever had , and he wished we could have been friends for
many more years. . . . well , he told me that he was laying me off because I
was a good worker and he was giving me a vacation for the benefit of the
Company. . he handed me three . checks. One check was for the week
before and the other check was for Monday until Wednesday , when I got
laid off, and the other check was a vacation check for one week . . . he handed
me those checks at the beginning . . . . I told him I had a mortgage on my
home, and different things, that it was pretty hard when a guy got laid off,
and he said you see what you can do for me and I will see what I can do for you.
At the change of shifts that afternoon Dutcher , along with Edward Greer, assisted
three union representatives in passing out handbills to the employees of both Respond-
ents, on the street just opposite the main employee entrance to the plant, and in
the company parking lot.
Respondent Chicago's defense to the discharge of Marvin Dutcher was varying
and inconsistent , and the alleged reasons for the discharge were presented at the
hearing and in Respondents ' brief with varying degrees of emphasis. After testify-
ing for some minutes about Dutcher's failure to report on time at 5 o 'clock in the
morning, and with Dutcher's last timecard covering his hours worked his last half
week in his hand , President Kunik was asked why he discharged Marvin Dutcher.
In a long answer Kunik then , for the first time, explained that a part of Dutcher's
duty was to stay after the 5 o'clock conclusion of his shift and clean the washing
machine, which was important to the operation . Kunik said that on August 14,
Dutcher left at 5 o'clock or 5 minutes thereafter , not having cleaned the machine,
and that when he discovered it later that evening he directed that a note be put
on Dutcher 's timecard to see Kunik in the morning . Kunik's long answer concluded,
"And that is the morning when I discharged Marvin Dutcher for not performing
his duties in washing the machine and cleaning it as he had left it on previous times,
and, of course , the lateness of time." Thus only the last seven words of this long
answer as to why he had discharged Dutcher related to Dutcher 's tardiness.
In its brief Respondent took the position that "Dutcher was discharged because
he, as the straw boss or lead man on the pickle washing machine, was constantly
coming to work late and setting a bad example for the part -time employees who
were always working on the washer."
As for Dutcher's alleged leaving his job at 5 o'clock or 5:05 on August 14, his
timecard shows that he punched out that day at 5:35 p.m. Kunik referred to the
cleaning out and washing out the machine , and Dutcher referred to changing the
water in the machine , and said that it took about 15 minutes or so to fill the machine
up. I conclude that washing and cleaning the machine consisted of rinsing it out,
refilling it with clean water and adding the right amount of a vegetable detergent
used to loosen the sand and grit from the cucumbers . If it could be filled in 15
minutes presumably the machine could be drained in 15 minutes or less. As Dutcher
did not punch out until 5:35 p.m . on August 14, I conclude that before checking
out he cleaned and refilled the machine as was his custom. In this connection
it should be noted that there was no claim that Dutcher failed to service the machine
properly before checking out on his last Monday and Tuesday afternoons and that
Monday he checked out at 5:28 p.m. and Tuesday at 5:31 p.m. To be noted further
in connection with this defense is the fact that the timecards of Harvey Henke,
who took Dutcher's place in charge of the washing crew and who was, presumably,
therefore the man responsible for cleaning and washing the washing machine,8
show that on each of his first 8 days with his new responsibility, Henke punched out
considerably before 5:15 p .m. The following week he stayed until about 5:30
each of the first four nights.
As to the tardiness defense, the record has the timecards of three of the five
members of the washing crew for the last several weeks of Dutcher 's employment-
the cards of Dutcher , Harvey Henke, and Russell Fredericks. These cards show a
wide variation in starting time, sometimes from day to day , and from employee to
employee, and sometimes with the initialed approval of Supervisor Berray. His
timecards establish , and Dutcher admitted , that on many occasions he reported
for work in the early morning a few minutes late. Dutcher explained , in sub-
stance, that Kunik permitted him to come a little late. Although neither Henke nor
Fredericks was called as a witness , their timecards established that upon occasion
they too were considerably tardy . in reporting to work. Edward Greer drove Henke
8 Kunik did not know who cleaned the machine after Dutcher left.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work, so presumably Greer punched in about the same time as Henke. This
accounts for all but one of the wash crew . Bernice Berray admitted that although
5 o'clock in the morning was the starting time for the washing crew during the
peak season starting 2 or 3 weeks before Dutcher's discharge , none of the members
of that crew actually reported for work on time as a rule . President Kunik dis-
charged only Dutcher allegedly for tardiness and examined only Dutcher 's time-
cards before taking action . At an unstated time Supervisor Berray reported to
Kunik only that Dutcher was being tardy and said nothing about the other employees
in the crew being tardy , a fact which Kunik was unable to explain at the hearing.
Neither when discharging him nor at the hearing did Respondent contend that a
factor in the discharge of Edward Greer was his tardiness at reporting to work,
although he then worked on the washing crew for about the first 2 hours each
morning. As the oldest man in the washing crew and a year-round employee,
Respondent considered Marvin Dutcher as the leader of that crew , although it was
not contended that he was a supervisor within the meaning of the Act.
In substance , Respondent contended that it discharged Dutcher for tardiness
because he set such a poor example for the others in his crew . However, there is
no evidence that Kunik considered discharging Emery Dutcher for tardiness, even
though, according to Foreman Claire Gehrke ,9 Emery Dutcher "is late a lot of
'mornings , he is never there to instruct the help on what to do . I have to do that
in the morning . He is 10 or 15 Minutes [ late] lots of mornings and the help
stands there and don't know what to do"-and even though Emery Dutcher, like
his brother , had a crew working under him for which he should, presumably, set a
good example . Emery Dutcher testified that he had been opposed to unions for
20 years, and that "it could be " that Mr. Kunik knew that he was opposed to
unions. Kunik testified that "Emery Dutcher did not have an actual starting time
due to the fact that he worked late nights in preparing brines. And if he was
tired in the morning he would come a little later to work ." In this connection it
should be noted that during the peak season , many of the year-round employees
worked very long hours and worked nights as well as days. The timecards dis-
closed that during his last 3'h weeks of employment , which was about the first
31 weeks of the 14-week peak season, Marvin Dutcher worked considerably more
hours than any other member of the washing crew. During his last 3 full weeks of
employment , Marvin Dutcher worked 2261/2 hours , and during the same period,
his brother Emery worked 11 hours more. Nothing in the record suggests that this
11-hour margin caused the Company to retain the one and discharge the other for
tardiness.
Marvin Dutcher testified that the only time he had ever been "bawled out" by
Kunik for being late was at least 2 years prior to this discharge , that sometime
prior to the peak season of 1957, Supervisor Berray had , in substance , told him
to try to get to work on time, but the record establishes that he had never been
warned that he might lose his job for tardiness , nor insofar as the record shows,
had any of the other tardy ones.
In view of the above considerations , and on the entire record, I find Respondent
Chicago's defense . to the discharge of Marvin Dutcher unconvincing.
Marian Dutcher
During the peak seasons of 1950, 1951 , and 1952 , Marian Dutcher worked the
seasons. In 1953, she began working prior to the peak season and was laid off at
the very end of it. In 1954 , she worked through the so-called southern pickle
season or the spring canning season and worked up until December . In 1955, she
was asked to go back but did not go because she was working elsewhere . Most of
this time she put empty jars on the line for the handpackers to take off and put
pickles in. Thus , in her previous employment, she had been something more than
a seasonal worker, though not a year-round worker.
In about June 1957, Mrs. Dutcher called one of the office girls at Respondent
Chicago who had authority to interview applicants , told her that she would like to
return to work for Chicago Pickle Company if she could get steady work , but that
she then had a steady job and did not want to give it up ,-unless there was steady
work at the pickle company . The office girl, Irene Schutte, told her that at that time
there was no steady job.
Late in July 1957 , pursuant to a call from Chicago Pickle Company, Marian
Dutcher reported for work the next day, and Supervisor Bernice Berray gave her
6 Gehrke's name is sometimes misspelled "Yerke" in the record. Wherever the error
appears it is hereby corrected . Gehrke's nickname was "Doc."
REDGRANITE PICKLE COMPANY 111
an assignment . 1° Kunik testified that he himself did not participate in the decision
to call her back and that that decision was probably made by Berray , "or any of the
girls upstairs"-meaning the office girls . Kunik added that "I especially told them
not to call her back to work ," his reason being that he had observed in her previous
years of employment that Marian Dutcher was quite a conversationalist . Never-
theless, the record established that Kunik knew she had returned to work and let her
keep on working , despite her propensity for conversationalism , for several weeks
until the Union undertook to organize the plant. Her first 2 days back with
Respondent Chicago during the peak season of 1957, Berray assigned Dutcher to
sorting pickles on a line that went into the automatic packer. The next day the
girl who was putting glass on the automatic packer did not show up for work and
Berray assigned Dutcher to that job, one of the two jobs directly related to the
operation of the machine . The job consisted of putting empty glass jars into the
cups on the belt which went through the tumbler which filled the jars with pickles.
On direct examination , overlooking the fact that Marian Dutcher had been recalled
not to work on the packing machine itself , but on a line , and that she had been
assigned to work on the machine only by the accidental absence of the girl who
was on it, in answer to a question as to the basis on which he hired Marian Dutcher
in late July 1957, Kunik testified , "Well, we thought that on the packing machine
that she would fit in the job ." Then after testifying on cross-examination that
he himself had not participated in her recall and had opposed it, he was reminded
that he had testified that he thought she would fit on the job. Kunik replied, "We
put her on there , and we thought she would fit on the job. Bernice put her there."
Asked, "Didn 't you think she would fit on the job?" Kunik replied in self-contradic-
tion, "I don 't know." Asked , "Weren't you interested in getting somebody on the
job that would be able to do it?" Kunik replied , "I thought I would put her on the
job so there would be less talking and less conversation."
The few weeks that Marian Dutcher worked on the automatic packer were the
first weeks of its usage during a peak season . Kunik admitted that the entire 1957
peak season was experimental as far as the automatic packer was concerned. The
record established that during those first few weeks any inefficiency in production
was primarily caused by machine trouble which closed down the operation tem-
porarily and caused the 20 girls on the lines serving it to be temporarily without
work, and by failure of the girls who were putting glass on the line above Dutcher
to keep her sufficiently supplied with empty jars so that she could keep all of the
cups on the belt filled with jars before they went into the tumbler . This conclusion
is based upon the credible testimony of Margaret Greer and Marian Dutcher, who
were right there every day all day, and is made despite any testimony by Kunik
to the contrary . Kunik admitted that he did not keep complete production records
on the automatic packing machine and that his production records consisted of
"from day to day for my own personal knowledge."
As has been seen above , on August 12 and again on August : 14, in the late
afternoon after the first shift was over, the union organizers' car was parked in
front of the Dutcher house for one-half hour or more . On August 12, Marian
Dutcher signed a union application card.
About 5 p.m ., or a little after , on the afternoon of August 15, as handbills were
being passed out outside the plant by Union Organizers Marvin Dutcher and Edward
Greer, Bernice Berray came to Marian Dutcher and told her, in substance , that she
had orders from the office to lay her off. Berray asked her to come to the "sugar
room" to get her check . Five or so minutes later in the sugar room, Dutcher again
asked Berray why she was being laid off and Berray replied , according to the un-
contradicted testimony of Dutcher , for Dutcher "not to get made at her, it was no
doings of hers , that they told her up in the office that she should lay me off. And
I asked her if my work was alright and she said yes, there was nothing wrong with
my work. And I took my two checks and left."
There had been no incident unfavorable to Marian Dutcher in the plant that day.
Margaret Greer was not present that day because she had been discharged the
night before , and so Dutcher could not have been inefficient that day because of any
conversations with Greer . In fact, that day, she had performed Greer's operation
for a time, and then, at the request of Berray , had instructed a new girl on that job.
Berray, who discharged 'Dutcher, was asked no questions on the witness stand
concerning this discharge , and so gave no reason for it . In substance , President
10 As nothing was said when she was called to work or when she was given an assign-
ment , or at any other time, insofar as the record shows, concerning whether Marian
Dutcher was being recalled as a year - round worker, I find that she was recalled as a
seasonal-plus worker , the same status she had when last employed by Respondent.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kunik testified that he gave instructions to Berray to discharge Marian Dutcher,
although there is no evidence that he gave the alleged reasons for the action to
Berray. In any case, as has been seen above, Berray in discharging Dutcher gave
her no reasons at all for the action except that it was orders from the office-
although if the reasons assigned in his testimony by Kunik for the action really
were the reasons for her discharge, the record contains no reason why Marian
Dutcher should not have been informed concerning them. Nor does the record
show when Kunik instructed Berray to discharge Marian Dutcher. Presumably he
did so that day, August 15, and probably at the end of the day just before the
discharge, since Berray did not have the checks at hand when she first informed
Dutcher of the decision. The handbills which her husband was passing out at that
time announced a meeting for that night, but made no mention of a union or that
it was to be a union meeting. Asked how he knew when he read it that it referred
to a union meeting, President Kunik replied:
They are all talking union. It may be whoever walked by received it and
they are all talking union . That gave me the impression it was a union. It
was easily observed. It was directly in front of our Redgranite operations, and
you could hear it all over. I mean anyone could hear it. The persons who
would go by would know they were talking union among themselves that were
in that vicinity.
In substance, Kunik testified that Marian Dutcher was discharged because her
work was not satisfactory, because her work was not efficient and the machine was
not turning out enough pickles, and because she talked too much with Margaret
Greer. Nevertheless, he admitted that he had never discussed with Marian
Dutcher the fact that he was not satisfied with her work, nor was he certain that
he had ever discussed it with his supervisors. He admitted that he did not really
know whether his complaint as to Marian Dutcher's inefficiency was ever passed
on to her in order to correct it. Kunik testified that after he discovered her ineffi-
ciency on the automatic packer, he did not consider transferring her to some other
operation in the plant. A few moments later he contradicted himself completely
by testifying that he did give consideration to such a transfer, but decided against it.
In view of these self-contradictions, the generality and multiplicity of its reasons,
and the considerations pointed out above, Respondent's alleged reasons for the dis-
charge of Marian Dutcher appear to me more as pretexts for the discharge than the
real reasons for it. On the entire record I do not credit this defense.
Conclusions as to the Discharge of the Two Greers, the Two Dutchers, and Turner
As has been seen above, during about the last 27 hours prior to the first open
union meeting, Kunik discharged, for no reasons admitted to them other than "the
good of the company," the only four employees who up to that time had signed
applications for membership in the Union, and one other. He discharged four
year-round employees and one more-than-seasonal employee at the height of the
peak season when he needed all the help he could get-particularly the year-round
employees. As has been seen , the only other employee who was present on
August 12, when the two Dutchers and Edward Greer signed their applications, was
John Sroka, who did not sign one, and was not discharged.
As has been seen , starting on Tuesday, August 13, when he questioned Karmasin
and Edward Greer, Kunik began to question a number of employees about the
union movement, showing that as early as a day before the first discharges he knew
the organizational movement was going on. The nature of his questions and
remarks to Karmasin, Edward Greer, Oleson, and Marvin Dutcher, prior to any
discharge, showed that he was concerned about the movement and was seeking spe-
cific information concerning it. Thus, on August 13 he asked Greer, "Have we got
to go through this thing once again like we did before?"; in substance, he told
Karmasin he could not understand why the employees did not come to him, rather
than to outsiders, with their problems; the specific information he sought from
Marvin Dutcher was who were the "fellows"-referring, presumably to the organ-
izers or the active employees or both-what kind of a car they were driving, where
the union meeting was going to be held, whether Dutcher had talked to others
about the Union. His question to Dutcher about the meeting shows that from
some undisclosed source Kunik had already learned that a union meeting was
going to be held.
Kunik's remarks prior to the discharges showed also that there was a connection
in his mind between union organizational movements and discharges or layoffs, and
that this connection embraced two of those he later discharged, Edward Greer and
REDGRANITE PICKLE COMPANY 113
Marvin Dutcher. Thus, he reminded Dutcher that when this had happened before-
an obvious reference to the 1956 drive of the UAW-he had not laid anybody off,
but that "maybe I should have"; and he commented to Karmasin that "Greer and
Dutcher must be at it again"-with obvious reference back to 1956, and the part
Edward Greer and Marvin Dutcher had played in that campaign. In this connec-
tion, Kunik admitted in this record that he knew Greer had been active for the
Union in 1956.
On Thursday morning, August 15, Kunik told Margaret Greer that the union
organizers had had supper at her house, which was a fact. This statement was
made to her just after the discharge of Marvin Dutcher and within a few hours
after the discharge the night before of the two Greers and Glen Turner. As Kunik
had been questioning employees for at least 2 days prior to the first four discharges,
,,and as the record discloses no questioning of employees between the time of these
first four discharges and his comment to Margaret Greer, it is reasonable to believe,
which I do, that from some source undisclosed in the record, Kunik had obtained
this information about organizers having supper at the Greer home, prior to his
making any of the discharges. At that time the Greers lived about 16 miles from
the Respondents' plants. If Kunik learned this fact about an event occurring 16
miles from the plant, it is reasonable to believe, which I do, that in questioning
employees he must have learned other facts concerning the union drive than the
record specifically shows he knew.
As has been seen above, the day before any of the discharges Kunik disclosed his
state of mind by informing Edward Greer that he did not want any part of the Union.
Greer replied, in effect that sometimes people get what they don't want-thereby
showing that on the question of the Union, Greer did not share Kunik's desire.
In discharging Marvin Dutcher, President Kunik accused Dutcher of lying to
him about the Union the day before, and said that Dutcher knew more about the
Union than he had admitted-thereby further disclosing that Kunik had received
information about the union movement which he did not admit in the record. In
this exit interview, Kunik also indicated that he was "shaken up" about the matter.
During the exit interview with Edward Greer, when the latter accused Kunik of
discharging him "on account of this union activity," Kunik, while denying the accusa-
tion , observed that he had been "lenient before" even though he could have laid
somebody off at that time-with obvious reference to the 1956 union drive.
A day or so before his discharge, Glen Turner had discussed the Union with
John Sroka, and the morning of his discharge, Turner had discussed it with Edward
Greer. According to the credited testimony of Turner, during the last 2 days
before his discharge "quite a few people" around the plant were discussing the fact
that a union was "trying to get in there again." In Turner's exit interview, when
Turner asked if the discharge had anything to do with the rumors going around the
factory, Kunik replied meaningfully, "rumors get around."
In discharging Marvin Dutcher, Kunik hinted that if Dutcher helped him in this
union matter, Kunik might take Dutcher back to work. Dutcher's reply was to as-
sist in the distribution of union leaflets that afternoon. Simultaneously with this
action by her husband, Marian Dutcher was discharged upon orders from Kunik,
with no reason given.
In view of the considerations and inferences pointed out above, including the
timing of the discharges and the fact that they were all made or ordered by Kunik,
who did not customarily discharge employees, and on the entire record considered
as a whole, including the unconvincing nature of Respondents' defenses, I find and
hold that Respondents discharged Edward Greer, Glen Turner, and Marvin Dutcher
because of their actual or suspected union or concerted activities, and discharged
Margaret Greer and Marian Dutcher because of their own or their husbands' actual
or suspected union or concerted activities, Respondents thereby discouraging mem-
bership in the Union.
3. Discharge of the 17 who attended the union meeting
a. Customary leniency
The testimony of Dock Foreman Claire Gehrke and of Edwin Belter, who was
in charge of the platform after Gehrke went home at night (both of whom worked
for Respondent Redgranite), together with the testimony of Supervisor Bernice
Berray of Respondent Chicago, shows the customary leniency with which the Re-
spondents dealt with their employees, particularly those on the night shift.
As has been seen just above, Gehrke testified,
... We never was very tough on anybody.
a 0539 5--59-v oI. 122-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we was, of course, figuring to get along as good as we could with the
help, it was all a pretty nice bunch of fellows as far as that goes. I don't think
anybody could say they was misused in that place.
Gehrke testified that in August 1957, during the peak season, on the dock on the
day shift they had "anywhere between 20 and 30" employees. As for the night
shift, he testified,
Well, the night shift was different. Some nights you would have 15, maybe
the next night you would have 25. Some would show up one night and some
the other.
He admitted that at night they had difficulty keeping a crew out on the dock,
particularly a crew of seasonal employees, which most of them were. The normal
working hours of the night shift were 5:30 p.m. to 2 a.m. Gehrke stated that:
That is more on the night shift they will leave and won't come back like maybe
they will punch out, oh, 10 or 10:30 o'clock and leave and not come back.
Asked if they punched out without getting permission to go, Gehrke replied,
Yes, a lot of them do, yes, well, a lot of them come and, well, I can't do any
work after 10 o'clock at night, well, it is O.K. with us, we never made them
stay if they had something they wanted to do, but a lot of times they would
punch out.
Gehrke admitted that they did not make any special point of it, that "Well, as
I say, we need the help during the season, we are glad they come." He admitted
that they like to "hang on to them when" they have them at the plant "when we
are busy." Employees were paid every other Friday. Gehrke testified that the
Saturday night after payday "you couldn't expect them back," that "We just let
it go that way because we needed the help when we could get it." As to how many
employees he would have on Saturday night he said, "That was a very slim night,
probably a half a crew . ten to a dozen." Asked if those who didn't show up
on Saturday night would "clear with you about not coming back to work on Saturday
night," Gehrke replied, "Once in a while one would and most of them wouldn't,
they would just go home and not come back." Asked if "you [did] anything about
it when they came back to work," he replied, "No, because we were glad to have
the help when we could get it."
Gehrke testified also, ". . . if anybody wanted to come uptown and get a lunch
they never refused, always let them take off. . if they took any length of time off
and we let them go, they would punch out and go, but if they just wanted to come
uptown and get a lunch then we wouldn't even have them punch out." He said that
the latter was a common occurrence. "Anything for a half hour and up they would
have to punch out."
Edwin Belter, whose status is considered below, confirmed on cross-examination
that the number of dock employees on the night shift varied greatly from night to
night, depending, he said, upon the cucumber-growing weather, and also upon the
number of them who decided to come to work on a given night. On direct examina-
tion, he gave the number on the night shift as "approximately around fifteen."
With reference to the packing department of Respondent Chicago-where the four
women who attended the union meeting worked-Supervisor Berray confirmed, in
substance, that the same conditions prevailed with reference to seasonal help on the
night shift as prevailed among the men employees on the dock. Asked why the num-
ber of employees on the night shift would vary from night to night, Berray testified,
Well, some of these farm women couldn't get in, but you sort of expected that
with the seasonal employees, about not being regular about their attendance at
work. Well, some of the women at night I have more trouble with.
b. Whether Edwin Belter and Louise Wacholtz had authority to grant
employees permission off
For some nine seasons Belter worked for Respondent Redgranite. During the
1957 peak season, at least, he was in charge of the dock after the day foreman,
Gehrke, left, which might be as late as 10 or 11 p.m. By the time of Gehrke's leav-
ing, Partners Kunik, Jack Olevsky, and Marvin Miretzky would also normally have
left, leaving Belter as the only person then in charge of the dozen or two men on the
dock until the end of the night shift at 2 a.m. As for the hours between 6:30 p.m.
and when Gehrke left around 10 or 11, during those hours Gehrke gave Belter the
instructions for the evening and then pretty much let him take care of the dock. In
REDGRANITE PICKLE COMPANY 115
response to the question as to whether Belter had authority 'to grant employees per-
mission to leave the dock, Gehrke replied,
I'll tell you, after he [Belter] come to work I didn't pay too much attention to
Belter and give him his instructions and once in a while maybe help him out on
unloading . I kind of let it go the way he had his instructions and let him run it.
He added that he sort of let Belter take over , "only I watched things myself quite
a lot."
A picture of Belter at work is seen in the composite of the testimony of a number
of the night-shift dock employees . Herbert Kelm testified that Belter assigned them
their work-to unload a truck, where to put the different -sized cucumbers , in what
vat to dump the cucumbers , etc. He said Belter did no physical work himself.
Frank Voigtlander said Belter stood there and called out the size of the pickles as
they were being unloaded , that it would be Belter who would ask him to work over-
time on occasion , that he looked upon Belter as a foreman . Mayford Lange testified
that he seldom saw Gehrke , that he took orders only from Belter , that about the only
orders he received from Belter were to go work on the sorter from time to time.
In connection with the testimony of Kelm, Voigtlander, and Mayford Lange, it
should be noted that each of these employees was on the payroll of Respondent Chi-
cago and they worked on the dock and took their orders from Belter, an employee of
Respondent Redgranite . Further, Kelm was hired by Gehrke and Partner Marvin;.
Miretzky of Respondent Redgranite . Gehrke worked for Respondent Redgranite„
also. Richard Pionke considered Belter as a foreman. When David Buckholt had
a sore foot a few days prior to his discharge August 15, he asked and received per-
mission from Belter to go home.
On cross-examination , Gehrke testified that employees wanting off generally came
to him while he was there , but that the employees knew that Belter was their "boss"
also, and that they might go to him and ask for permission to leave.
Belter admitted that he told the employees what to do , that he told them when he
wanted the trucks unloaded , where to take a certain sized pickle , what vat to dump
them in.
Upon the above evidence , and upon the entire record considered as a whole, I con-
clude that at all times of concern herein Edwin Belter had authority , in the interest of
both Respondents, to assign employees and responsibly to direct them, and to grant
them permission to be off; and that the exercise of such authority required the use of
independent judgment . It follows that Belter was a supervisor within the meaning of
the Act.
Louise Wacholtz had worked for Respondent Chicago for at least four summers
prior to 1957 . During the 1956 season she was a checker . She served as a checker
for about a week at the beginning of the 1957 peak season , and was then assigned by
Bernice Berray to be "assistant to" June Caswell , who was night supervisor of the
packing department . As assistant to June Caswell , Wacholtz testified that her duties
consisted of (a) showing new employees ( of whom there were many because of the
turnover from season to season ) how to pack pickles ( by hand ) in each of the dif-
ferent kinds of jars, ( b) starting them off packing , (c) seeing that they kept packing,
and (d ) helping the checkers if a checker was "placing " or very busy . She stated that
she assisted on all the lines of hand packers ( there were three or five lines ), and that
she moved women from one assignment or line to another only when directed to by
June Caswell . Beulah Mae Lange testified that Wacholtz-
just walked around just the same as June did and if there was a job to do she
would tell a certain girl to do that or do that job.
Marian Buckholt testified without contradiction that the night before her dis-
charge, on August 14, her husband , David Buckholt, did not work ( a fact confirmed
by his timecard which is in evidence ), and that she did not want to drive the 8 or 9
miles to their home alone at 2 o'clock in the morning . "So I asked Louise
[Wacholtz] if I could have off at 9:30 and she said, `Yes,' and I said, `Do I have to
ask June or Dean Caswell', and she said, `No, just so that I know where you are.' "
Dean Caswell was night foreman at Respondent Chicago. Although Wacholtz.
testified that she had never, prior to August 15, given any employees permission to
take off, she did not specifically deny the above conservation with Marian Buckholt.
As Marian Buckholt impressed me as an honest witness, I credit her testimony in,
this regard.
On direct examination Supervisor Berray testified that Louise Wacholtz-
. was a checker for the past few years and then this year (1957) I asked'
her to help when we had all these new employees come in , show them how
to pack and besides that she would check and she helped supervise . [ Emphasis,
supplied. ]
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asked from whom Louise would get her instructions as to what had to be packed,
Berray replied,
I told both of the girls and I would tell June and June would tell her, they
worked together.
During the peak season Berray worked the day shift, and also returned after supper
and worked up until anywhere between 7 and 10 p.m. The night shift continued
on until 2 a.m. Berray admitted on cross-examination that Wacholtz was there
to help June Caswell supervise. The precise functioning of Night Foreman Dean
Caswell was not shown, but no witness testified that he gave any orders to the
women employees in the packing room. If Wacholtz did not have supervisory
authority after Berray left each night, it meant that June Caswell was left as the
only supervisor for all the women employees in the packing room numbering some
30 to 40 employees. Under the circumstances, and as they were very busy
during the peak season, it is probable that the supervisory authority given Louise
Wacholtz was not of a merely routine or clerical nature but required the use of
independent judgment. Certainly she had and exercised the authority to grant
employees permission to leave their work upon request. It is so held.
c. The discharge of the 17 employees
On the evening of August 15, 1957, some 17 employees of the two Respondents
on the night shift punched their timecards out between 7:26 and 7:42 p.m., attended
the Union's first meeting in a nearby town, where they all signed applications
for membership in the Union,li and upon returning to the plants at about 10 p.m.,
or a little after, found their timecards removed from the rack and themselves with-
out jobs. The employees working for Respondent Redgranite were: David Buckholt,
Harlow Malnory, Robert Manske, Robert Hill, and Richard Pionke. The em-
ployees working for Respondent Chicago were: Francis Hansen, Marion Hunter,
David Jorgensen, Herbert Kelm, Mayford Lange, Phillip Rosebrook, Norman Shaw,
Frank Voightlander, Marian Buckholt, Neoma Buschke, Stella Goldsmith, and
Beulah Mae Lange.12
Having punched out that evening, the group left the dock more or less together,
seen by President Kunik and Dock Foreman Gehrke, and immediately, as the
employees were getting into their cars and leaving the parking lot, Kunik made
a quick decision and gave instructions that their timecards be removed from the
time clock and taken to the office. As has been seen above, Kunik had known
about the meeting at least since seeing one of the handbills at or shortly after
the change of shift that afternoon, and he had known that it was to be a union
meeting and that the employees were "talking union among themselves." Further,
just after the employees had left the dock, Kunik asked Gehrke, according to the
credited testimony of the latter (and contrary to the testimony of Kunik), "Where
are those men going?" Gehrke replied that they were going to a meeting. Kunik
asked if they had punched out and Gehrke replied that he thought they had. Then
Kunik raised his voice and shouted to the group, asking if they had punched out.
On cross-examination Gehrke said that some of the group had not punched out
and then came back and did so. Neither Kunik nor Gehrke raised the subject
between themselves or with the group as to whether the group, or any one of them,
had permission to leave. In fact, just before or after this conversation between
Kunik and Gehrke, Belter had told Gehrke, in substance, that Belter had given one
of the fellows permission to go off, but Gehrke never relayed this information to
Kunik.
Kunik's version was that he asked the group where they were going, and that
someone replied that they were going to a union meeting. That Kunik knew they
were going to a union meeting is not open to question on this record.
Both Kunik and Gehrke testified that Kunik also shouted to the group that
anyone who left the platform could no longer work in the plant. Employees Kelm,
"Most of the applications did not have Local 126 filled in on the form, but there was
only one local involved in the organizing drive, Local 126, and the application form
recited that the applicant was applying for "membership in the above Union of the
International Brotherhood of Teamsters," etc. [Emphasis supplied.] The applications
of the two Greers and the two Dutchers also did not have Local 126 filled in. Under the
circumstances it is clear that the employees were applying for membership in Local 126,
the charging party herein. I so find.
'a The three stipulations covering these groups of employees contain variations in the
spelling of some of their names. The names are here spelled as in the signatures of
the employees on their applications, which are in the record.
REDGRANITE PICKLE COMPANY 117
Voightlander, and Pionke each testified that when they were about 20 to 30 feet
away from the platform, heading for their cars, Kunik shouted to them the question
as to whether they had punched out, and that they replied they had. On cross-
examination by Respondent's counsel, Kelm was asked if he heard Kunik say that
they could not go to the meeting, and Kelm replied, "No, he never said we couldn't
go that I heard." On cross-examination Pionke testified that he did not hear Kunik
say that anyone who punches out and leaves cannot come back to work-"No, I
didn't hear him say that. All I heard, he asked us if we punched out.. . At
least two of the the employees, Mayford Lange and David Buckholt, didn't see
Kunik at all, and presumably didn't hear him either.
The testimony of all those who testified concerning this moment, management
and employees alike, establishes the fact that whatever else Kunik may have said
to the group prior to his order to Gehrke to have the timecards removed, Kunik did
not ask the group, or any of them, if they had had permission to leave. This shows
that at that moment, the moment of his decision on the discharges, permission to
leave or lack of it had no bearing upon his thinking. What was uppermost was
whether they had punched out and the fact that they were going to the union meeting.
After the group of 13 male dockworkers left the dock that evening, August 15,
there were about 10 left working on the dock-about as many as usually appeared
for work on a Saturday night after payday. To help them unload the trucks, Belter
got five men from the barrel room, and among them they completed the unloading
of the trucks.
In fact, some of the employees had permission from Belter and Wacholtz to
leave, and in fact prior to, or at the moment of, the leaving, both Gehrke and Night
Supervisor June Caswell had been informed that this permission had been granted by
Belter and Wacholtz, respectively. Belter's testimony as to what he told Gehrke
has been seen just above. Wacholtz testified that after receiving a request to take
off by two girls, Beulah Mae Lange and Marian Buckholt, she told June Caswell
that at least those two wanted off. She did not remember Caswell's reply, but cer-
tainly Wacholtz' permission to those two was not countermanded by Caswell. Neither
Caswell nor Wacholtz ever communicated this permission given to Kunik.
The employee witnesses contended that in fact permission was requested, and
granted by Belter, for all 12 of the men who left, and by Wacholtz for all 4 of the
women who left. The testimony is in conflict as to how many were covered in the
respective requests and permissions granted.
Some three of the dock employees, Herbert Kelm, David Buckholt, and Richard
Pionke, and also Beulah Mae Lange, testified, in substance, that Kelm asked per-
mission of Belter for the group to leave and go to the meeting. They said that
Kelm phrased his request in the plural asked if "we" could go, and motioned to the
group of 8 to 10 dock employees standing around, which group was said to include
Pionke, Malnory, David Buckholt, Manske, and Hill. Several of these employees
testified also that the request specifically included Mayford Lange, who was not
in the group at the moment. These employees testified that Belter replied to the
request that it was all right for them to go, but that they should punch out.
Belter's version was that Kelm spoke to him alone, asked if Belter cared if he went
to "this Union meeting tonight," and that Belter replied, "It is immaterial to me."
Whether the permission granted included only Kelm, or in addition a group of other
dockworkers, the record is clear that the additional dockworkers were not spe-
cifically named or their number specified.
As for the women employees, Beulah Mae Lange and Marian Buckholt, who
packed pickles at the same table just across from each other, testified that when
Louise Wacholtz came up to their table, Lange asked if they could leave for a
couple of hours, Buckholt adding, to go to the union meeting. Buckholt then told
her that in addition "a couple of other girls want to go," not naming them. Wacholtz
asked when they would be back and they replied about 10 p.m. Wacholtz then said
that they could go.
Wacholtz' version was that the request was limited to just the two of them and
did not include two other girls, and that the reason for their wanting off was given.
She testified as to her reply, "Well, as far as to my knowledge, I think I told them
it would be all right but I had to go and see June." Somewhat later she mentioned
it to June Caswell, but she did not remember Caswell's reply.
As Lange and Buckholt were about to check out, one of them told Stella Goldsmith
and Neoma Buschke on another packing line that it was time to go, and these other
two joined them, punched out, went to the meeting, and the four of them lost their
jobs. As Lange and Buckholt left to punch out, they walked right past June Caswell
and Wacholtz.
As the employee witnesses appeared to me to remember more clearly the events
and conversations of August 15 than did Belter and Wacholtz, I credit their testi-
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony that the requested permission to leave included a group of dockworkers includ-
ing Mayford Lange, and included two other unnamed feminine factory workers in
the packing room. I reach the conclusion that all who left had actual or implied
permission to leave from the further fact that seeing them go neither Gehrke nor
June Caswell, both of whom had been informed that at least some of them were
;leaving (Gehrke testified he suspected they were going to the union meeting) said
anything to any of them about lack of permission.
Upon their return to the plant from the meeting about 10 p.m. or a little thereafter,
the 17 employees found their timecards removed from the rack, and learning that
Kunik was responsible for it insisted upon seeing him. Kunik, who had left the
plant around 9 o'clock and gone home, was called and returned and talked with
the employees. Speaking for the employees, Herbert Kelm asked why the time-
cards had been "pulled." Four employees-Kelm, Mayford Lange, Beulah Mae
Lange, and Marian Buckholt-all testified that Kunik stated in reply that they had
left without permission. Kunik's testimony agreed in substance, for he testified he
"told them anybody walking off in the middle of a job cannot come back to work."
Kelm, Mrs. Lange, and Mrs. Buckholt testified that Kelm replied that they had
gotten permission. Mrs. Lange testified that she told Kunik that she had gotten
permission for the girls and Kelm told him he had gotten permission for the men.
Several employees testified that Kunik then said, in substance, "Well, then let's just
say we don't need you any more, we don't have enough work for you. . . I have
the right. to hire you people and I have the right to fire you." In addition, Kunik
mentioned that they had left him with so much work to do, which Kelm accused him
of being inconsistent with his earlier statement that he did not have any work for
them to do. Although Kunik's version of this discussion varied somewhat from the
employees', Kunik was not a completely credible witness and the employees' version
is credited.
All of the 17 were seasonal employees and none were called back to work by
either Respondent.
The contrast in Kunik's treatment of these 17 employees and his treatment of
Emery Dutcher in connection with this union meeting assists in the solution of
why he discharged the 17. Dutcher had worked for Kunik for some 15 years and,
by his own admission, as has been seen above, had been opposed to unions for 20
years-a fact which "it could be" Kunik had known. During the peak season
he was in charge of the barreling room with a gang of up to 15 under him. A little
after 8 o'clock that evening, August 15, 1957 (some minutes after the group of 17
had left and after Kunik had shouted to them the inquiry as to whether they had
punched out but had said nothing about permission, and after he had quickly
ordered the removal of their timecards from the rack), Dutcher asked Kunik if he
could go to the union meeting for a little while. Kunik asked if Dutcher had
enough brine made up to carry on while he was away and Dutcher replied that
he had. Then Kunik gave him permission to go, but said nothing about punching
out. In fact, Dutcher did not punch out and did not punch in upon his return from
the meeting and he was paid for the time he spent at the meeting. There was no
showing that he was ever reprimanded for failing to punch out or in. Dock Foreman
Gehrke saw him go and saw him return but, according to his testimony, thought
nothing about it because Dutcher customarily came and went about as he pleased.
d. Conclusions
Asked by Respondents' counsel why he discharged the 17 employees, President
Kunik replied, "For walking off in the middle of a job." Thus, his position was,
in reality, that they had walked off without permission, for if they had had
permission he could not possibly have thought that they were "walking off."
The evening events of August 15 must be viewed in terms of the employment
customs and practices at the Respondents' plants at the time they occurred. As has
been seen, these customs and practices were that employees on the night shift at
the height of the season frequently did not show up for work at all, or left early
without getting permission, and did not return, and that Respondents never repri-
manded them in any way for this behavior but accepted the seasonal help on their
own terms as far as the hours of work were concerned. Contrary to this practice,
when the group left to go to the union meeting, they were dealt the harsh penalty
of discharge.
In fact here, as has been concluded above, none of the employees walked off
without actual or implied permission.
The record establishes, however, that the employees were not discharged for
leaving without permission. When Kunik shouted to the departing group, he said
nothing about permission. Nor did Gehrke nor Belter any time that evening tell
REDGRANITE PICKLE COMPANY 119
Kunik that Kelm, at least, had asked and been granted permission. Nor did
June Caswell, who assisted in removing the timecards from the rack, say anything
to Kunik about any women having asked permission. Nor did Kunik, anytime that
evening, ask any of his supervisors if any permission had been asked or given.
Further, if Kunik had really thought that the employees had gone off without
permission and had ordered the timecards removed because of that, it is doubtful
if he would have turned such a deaf ear to their claims, upon their return later
in the evening, that in fact they had gone off with permission.
On the entire record I find that Kunik did not shout to the employees as they
were leaving that anyone who left could not return to work. The employees who
were asked about this alleged statement heard him say something but not this.
Had he issued such a strong statement, it is reasonable to believe that at least some
of the 17 employees would have reconsidered their action and returned immediately
to their work. None of them did. Had he made such a statement it is unlikely
that the group would have returned to the plants after the meeting and insisted
upon discussing with Kunik the cause of their discharge, for they would have already
known the answer.
That Kunik was not really concerned as to whether the employees had punched
their timecards out is established by the fact that although every one of the 17 did
punch out, nevertheless, almost immediately Kunik ordered all the timecards
removed from the rack, signifying his decision to discharge them, and his failure
a few moments later to warn or caution Emery Dutcher to punch out when he left
for the meeting.
The entire record considered as a whole establishes that Kunik who did not usually
discharge employees at all but left that to others below him in the management
hierarchy, discharged these 17 employees himself, and quickly, as a move towards
stopping the union campaign in its tracks. No other conclusion explains the urgency
with which Kunik acted upon this occasion or the nature of his action, which was
so contrary to the leniency usually accorded seasonal employees on the night shift.
He had been trying to gather information about the union movement for several
days from several employees, as has been seen above. and, in substance, he had told
Edward Greer on August 13 that he wanted to have no part of the Union. Kunik
knew that this was the first union meeting announced to all the employees and that
the following day the employees would be discussing the meeting and the Union.
The sudden discharges of these 17 employees that same evening were timed for
their antiunion impact upon the remaining employees, who were bound to learn
about the discharges the following day or evening and discuss them along with the
Union and the meeting. It follows that by these 17 discharges Respondents dis-
criminated in regard to tenure of employment in order to discourage membership
in the Union, Respondents thereby violating Section 8(a)(1) and (3) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Activities of the Respondents, set forth in section III, above, occurring in connec-
tion with the joint and several operations of the Respondents 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 of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in the unfair labor practices
set forth above, I recommend that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the policies of the Act.
Respondent Redgranite having discharged Glen Turner, and Respondent Chicago
having discharged Edward Greer, Margaret Greer, Marvin Dutcher, and Marian
Dutcher, because of their actual or suspected union and concerted activities, I
recommend that Respondent Redgranite offer to Glen Turner and that Respondent
Chicago offer to Edward Greer, Margaret Greer, Marvin Dutcher, and Marian
Dutcher, immediate and full reinstatement to his former or substantially equivalent
position 14 without prejudice to his seniority and other rights and privileges and
make each whole for any loss of pay he may have suffered by reason of the dis-
13 Cf. English Mica Company, 92 NLRB 766, enfd. 195 F. 2d 986 (C.A. 4).
14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch.
65 NLRB 827.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination against him, by payment to each of them of a sum of money equal to
that which he normally would have earned as wages from the date of his discharge,
the dates of the discrimination against them, to the date when, pursuant to the
recommendations herein contained , Respondents shall offer them reinstatement,15
less the net earnings of each during said period (Crossett Lumber Company, 8
NLRB 440, 497-498), said back pay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
As provided in the Woolworth case, I recommend further that Respondent make
available to the Board on request payroll and other records, in order to facilitate
the checking of the amount of back pay due.
Respondent Redgranite having on August 15, 1957, discharged seasonal workers
David Buckholt, Harlow Malnory, Robert Manske, Robert Hill, and Richard
Pionke, and Respondent Chicago having on August 15, 1957, discharged seasonal
workers Francis Hansen, Marion Hunter, David Jorgensen, Herbert Kelm, Mayford
Lange, Phillip Rosebrook, Norman Shaw, Frank Voightlander, Marian Buckholt,
Neoma Buschke, Stella Goldsmith, and Beulah Mae Lange, because of their actual
or suspected union or concerted activities, and not having offered them reinstate-
ment, I recommend that each Respondent offer to each of its respective discharged
employees named above, immediate reinstatement as a seasonal worker during the
current peak season , and make each whole for any loss of pay he may have
suffered by reason of Respondents' discrimination against him, by payment to each
of them of a sum of money equal to that which he normally would have earned as
wages from August 15, 1957, the date of the discrimination against them, to the
date when, absent the discrimination against him, he normally would have been
laid off at the conclusion of the summer season of 1957.
The violations of the Act committed by the Respondents are persuasively related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is to be anticipated from the Respondents' conduct in the
past. The preventive purposes of the Act will be thwarted unless the order is
coextensive with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, I shall recommend that the Respondents be
ordered to cease and desist from infringing in any manner upon the rights guaran-
teed in Section 7 of the Act.
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. Redgranite Pickle Company and Chicago Pickle Company, Inc., constitute a
single employer within the meaning of Section 2(2) of the Act, and they are jointly
and severally engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Teamsters, Chauffeurs, Warehousmen & Helpers Local Union No.
126, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of employment of Glen
Turner, David Buckholt, Harlow Malnory, Robert Manske, Robert Hill, and
Richard Pionke, thereby discouraging membership in the labor organization named
just above, Respondent Redgranite has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Edward
Greer, Margaret Greer, Marvin Dutcher, Marian Dutcher, Francis Hansen, Marion
Hunter, David Jorgensen, Herbert Kelm, Mayford Lange, Phillip Rosebrook,
Norman Shaw, Frank Voightlander, Marian Buckholt, Neoma Buschke, Stella
Goldsmith, and Beulah Mae Lange, thereby discouraging membership in the labor
organization named just above, Respondent Chicago has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
ss In the case of Marian Dutcher, to the date when , in about December 1957, she wou;el
have been laid off but for the discrimination against her.