Sheboygan Sausage Co., Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1966

156 N.L.R.B. 1490 (N.L.R.B. 1966)

1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against employees because
of their membership in or activity on behalf of International Union of Operating
Engineers, Local 660, AFL-CIO, or any other labor organization.
WE WILL NOT interrogate employees concerning their union activity.
WE WILL NOT warn employees that their jobs are in jeopardy because of their
union membership or activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the above-named labor organization, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activity.
WE WILL offer Clemon Lauderdale, Benford Holdbrooks, Ronald Glenn, and
Marvin Shook immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and
privileges, and will make each of them whole for any loss he may have suffered
by reason of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
FORMED TUBES SOUTHERN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees serving in the Armed
Forces of his right to reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military and Service Act, as amended, after dis-
charge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. 526-5741.
Sheboygan Sausage Company , Inc. and Meat and Allied Food
Workers, Local Union No. 248, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO
Sheboygan Sausage Company, Inc. and Local Union No. 248,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO
Sheboygan Sausage Company, Inc. and Meat and Allied Food
Workers, Local Union No. 248 , Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Cases Nos.
30-CA-84, 30-RC-30, and 30-CA-146. February 15, 1966
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
On July 7, 1965, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that Respondent
156 NLRB No. 130.
SHEBOYGAN SAUSAGE COMPANY, INC. 1491
had engaged in and was engaging in certain unfair labor practices
alleged in the complaints in Cases Nos. 30-CA-84 and 30-CA-146
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint in Case No. 30-CA-84 and
recommended dismissal of those allegations, and recommended that
the objections to election in Case No. 30-RC-30 be overruled and the
results of the election be certified. Thereafter, the Respondent, the
Charging Party, and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs. The Respondent also
filed an answering brief to those of the other parties.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in these cases , and hereby adopts the Trial Examiner's findings,' con-
clusions , and recommendations.
[The Board adopted the Trial Examiner's Recommended Order
and certified that a majority of the valid votes cast in the election in
Case No. 30-RC-30 was not cast for Local Union No. 248, Amalga-
mated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, and that this labor organization is not the exclusive bargaining
representative in the unit heretofore found appropriate.]
1 Respondent converted its usual Christmas cash bonus into a wage raise in January 1963,
-thereby incorporating it into the employees' wage rates . Its annual review and im-
provement of wage rates which was regularly announced in May of each year therefore
included for the years 1963 and 1964 the additional increment of the converted Christ-
mas bonus . Although we agree with the General Counsel that the Trial Examiner erred
in comparing the May 1964 increase with the two increases awarded in 1963, we con-
clude, nevertheless , on the basis of our own comparison , that the May 1964 increases
were not out of line with the May increases of past years . We also find , contrary to the
Trial Examiner , that the issue of whether the May 1964 wage raises were a violation
of Section 8(a) (1) because they were excessive was covered by the portion of the com-
Trial Examiner , that the issue of whether the May 1964 wage raises were a violation
was fully litigated through the evidence introduced in connection with the objections to
the election . Thus, we agree with the Trial Examiner , though for different reasons, that
the May 1964 increases are neither a violation of Section 8(a) (1) nor a ground for setting
the election aside.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following pretrial procedures in accordance with the National Labor Relations
Act, as amended, Trial Examiner Laurance A. Knapp heard the first two cases
mentioned in the caption in Sheboygan, Wisconsin , on November 4 and 5, 1964.
217-919-66-vol. 156-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case No. 30-RC-30, a representative proceeding , raises the question whether
Respondent engaged in a variety of conduct of a character which calls for setting
aside a consent election held in June 1964 following a petition filed by Meat and
Allied Food Workers, Local Union No. 248 , Amalgamated Meat Cutters and
Butchers Workmen of North America, AFL-CIO. Case No. 36-cA-M4 involves
much the same conduct, and raises the question whether Respondent violated Section
8(a)(1) of the Act, and whether Respondent refused to bargain collectively with
the Charging Union in violation of Section 8(a) (5) of the Act.'
Subsequent to the hearing in the above cases, I granted a motion of counsel for
the General Counsel to reopen that hearing and to consolidate Case No. 30-CA-84
with the third case ( No. 30-CA-146) listed in the caption, in which the General
Counsel's complaint had issued prior to the motion. Thereafter, I heard the third
case at Sheboygan on March 1 through 3 , 1965.2 It present the question whether
in December 1964 Respondent reduced the working hours of and otherwise engaged
in unlawful discrimination against two employees because they testified at the first
hearing or because of their union activities.
I will deal with each of these proceedings consecutively in this Decision, after
making findings as to jurisdiction and the status of the labor organization involved
applicable to all three proceedings.
Upon the entire record in the proceedings , and consideration of the briefs filed,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The complaints in the unfair labor practice cases allege, the answers admit, and
I find that during the respective yearly periods preceding issuance of the complaints,
Sheboygan Sausage Company, Inc., herein called Respondent, a manufacturer of
sausage meets at Sheboygan, Wisconsin, purchased and received from points outside
the State of Wisconsin goods and materials valued in excess of $50,000. Respondent
is engaged in commerce within the meaning of the Act.
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE UNFAIR LABOR PRACTICES CHARGED IN CASE NO. 30-CA-84
The Union, headquartered in Milwaukee, Wisconsin, represents the employees of
some sausage product manufacturers in the city, where Respondent markets some
products, and the employees of two of Respondent's competitors in Sheboygan, the
Hersiger and the Bernard Sausage companies.
Beginning in May 1964, the Union sought to organize Respondent's employees.
To this end, on March 4, 1964, Richard Greenlaw, a business representative of the
Union, passed out to employees of Respondent, somewhere outside Respondent's
plant, packets of union organizational material consisting of a union representation-
authorization card, a stamped envelope bearing the address of the Unioii in Mil-
waukee, and a small "flyer" entitled "IT'S THE LAW," briefly descriptive of certain
employees' rights under the Act. Thereafter, Greenlaw visited employees at their
homes propounding the Union's cause and soliciting signatures to the representation-
authorization cards. As a result of these visits, 14 employees signed cards. In addi-
tion, the Union received through the mail cards signed by four additional employees,
upon 'whom Greenlaw thereafter called personally. Prior to April 30, 1964,3 17
cards were signed, and 1 on that day, as of which time Respondent had 27 produc-.
tion and maintenance eniployees:4
1 The charge of the Charging Union, hereinafter called the Union, in Case No. 30-CA-84
was filed on June 25, 1964, the complaint issued on September 17, 1964; and Respondent
answered on September 25, 1964.
2 The charge in Case No. 30-CA-146 was filed on December 10, 1964; the complaint
issued on January 18, 1965; and Respondent answered on February 1, 1965.
3 The card of employee Mabel Thimmig is dated ,"5-15-64" but upon evidence directed
to the accuracy of this inscription I find that Thimmig signed this card prior to April 30
and that the date shown on the card, inserted by her at the time of her signature, was
an inadvertent error.
In relation to the alleged refusal -to-bargain charges, the parties stipulated that this
is an appropriate bargaining unit
SHEBOYGAN SAUSAGE COMPANY, INC. 1493
While Steiner, Respondent's president, testified that he had no knowledge of any
of this union activity until his receipt on April 30 of a union telegram described
below, Meier, his office manager and only other close managerial associate, testified
that some days prior to April 30 he had heard "rumors" that the Union was solicit-
ing card signatures, and that on April 29 he overheard some employees' hearsay to
the effect that Steiner would receive a union telegram that day. While Meier thought
that April 29 was the day he informed Steiner of the rumors of union solicitation,
in view of his intimate managerial association with Steiner, Steiner's keen concern
over the unionization development as later described, and Steiner's qualified refer-
ence to the telegram as the source of his first "real" knowledge of the Union's orga-
nizational activity, I am satisfied and find that Steiner had reason to know, a few
days prior to April 30, that a union organizational effort among the employees was
under way, and was informed by Meier on April 29 of the employee talk that he was
about to receive a related telegram from the Union.
For years prior to 1964, Respondent has printed the labels which are attached to
and identify its various packaged sausage products. Until about May 1964, as I
later find, printing the labels was a recurring part-time assignment of Ardelle Nack,
whose various work assignments are dealt with in detail in the second unfair labor
practice case infra. On what I find was the morning of of April 30,5 Miss Nack
inquired of Wallace Adler, a nonsupervisory leadman from whom she normally
received her sporadic label-printing assignments and who also did this work on
occasion, whether she should print up a supply from some new "mats" just received.
Since Adler was uncertain, the two proceeded to Steiner's office where Adler posed
this question to Steiner. According to Nack, Steiner stated that he could purchase
printed labels cheaper than Nack could produce them; that he could buy "tied
casings" cheaper than Nack could tie them; c that there would be no overtime for
anybody until "this thing was finished", and that if anybody was "looking for a fight"
he would give them "a good one." Steiner added, according to Nack, that she should
tell all "the girls," [i e., the female workers], that he wanted to see them after work.
Since Steiner offered no adequate contradiction of Nack's testimony, and since
Adler, although called as Respondent's witness, did not testify concerning this inci-
dent, I find that Steiner made on this occasion the statements attributed to him by
Nack.7
On the morning of April 30 the Union sent from Milwaukee to Steiner a telegram
reading as follows:
ERVIN STEINER, PRESIDENT SHEBOYGAN SAUSAGE COMPANY
1413 NORTH 14 STREET SHEBOYGAN WIS.
EMPLOYEES OF SHEBOYGAN SAUSAGE COMPANY HAVE AUTHOR-
IZED LOCAL 248 AMALGAMATED MEAT-CUTTERS AND BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO TO REPRESENT THEM
AS THEIR BARGAINING AGENT - THE UNION REQUESTS RECOG-
NITION AS AGENT FROM THE SHEBOYGAN SAUSAGE COMPANY
EDMUND V BOBROWICZ INTERNATIONAL REPRESENTATIVE
AMC AND BW OF NA AFL-CIO -
8 See footnote 8;'infra.• I
9 On some occasions at least, Nack printed labels on overtime. Overtime was a regu-
lar feature of Respondent's operations for years and accordingly figured importantly in
employees' customary earnings. This subject is dealt with more fully in my findings
in the second unfair labor practice case, infra. -
7 Testifying the day after Nack, Steiner denied, on the basis of his recollection of
Nack's testimony, that he had said he would not pay overtime to have the labels printed
"if the Union ginks got in here " But Nack had not in her testimony attributed to
Steiner any such statement about "Union ginks" ; indeed, she had testified that Steiner
had not mentioned the Union as such in his remarks . Steiner's attention was not called
to and he did not deny having made the specific statements Nack had attributed to him
Office Manager Meier, asked what happened on this occasion, testified on direct exam-
ination that it took place about May 9 (an obvious error) and that when Nack inquired
whether she should print some labels because the supply was getting low, all that Steiner
said was that "she was told no"-that it would be as cheap for Respondent to have-them
printed elsewhere as to pay time and one-half for printing them in the plant But on
cross-examination Meier admitted that he was occupied with other matters at the time;
was not paying close attention, and overheard or remembered only part of the conversa-
tion Meter's testimony, so far as he recalled what Steiner said, coincides with that of
Nack, and cannot be regarded as an effective contradiction of the other remarks Nack
testified , and I have found, Steiner made
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steiner received the telegram early that afternoon. Later on that same day,
according to him, he called and addressed separate meetings of female and male
employees, speaking to the ladies at 3 and to the men at 4 p.m.8 Shortly before
3 p.m., on April 30, Lester Senkbeil, the leadman over three female employees
,(Nack, Patricia Kosup, and Mabel Thimmig), told them to punch out, that Steiner
wished to see them in the women's lunchroom. When the three convened with
Steiner in the lunchroom, he first asked if everyone was there. Upon being told that
two other female workers (a Miss Hanson and a Miss Zagar) had already left for
the day, Steiner replied that this was all right-that he wanted to speak to the three
assembled "old timers" and what he had to say did not pertain to the two departed
women workers .9
Steiner testified that his remarks at both gatherings were much the same and were
principally to the effect that (1) after referring to the Union's telegram, he asked
the employees why, since he thought he had been doing the right thing by them, they
had gone to the Union rather than to him; and (2) he informed the employees they
were about to receive wage increases, the cost of which might or would have to be
offset by some reduction of overtime hours and that there might have to be some
"staggering of hours"; i.e., having some employees start work earlier and some later
(than, apparently, Respondent's customary starting hour or hours).10 Further,
Steiner testified that in speaking to the women, he said that some of the women would
receive larger rate increases than others in order to comply with a Federal law about
to go into effect which he interpreted as forbidding wage discrimination as between
female workers performing similar work.11
But the employee witnesses called by the General Counsel, while agreeing that
Steiner questioned them about the union telegram and told them that wage increases
for the employees were forthcoming, attributed to him various other remarks not
alluded to in the principal description he gave of what he had said.
General Counsel's witnesses concerning the meeting with the three women workers
were Ardelle Nack and Mabel Thimmig. Combining their accounts (which cor-
roborate each other in various particulars and are not in conflict in any material
respect), they testified as related below. Steiner said he had spoken to a lawyer and
knew what his rights weree and what he could say. In connection with his reference
to the Union's telegram, he inquired why the employees had gone to those "sneaks
B According to Nack, her meeting with Steiner on the label-printing matter and Steiner's
meeting with the female employees took place on the morning and afternoon, respectively,
on the day after Steiner received the Union's telegram, that is, on May 1 While the
matter is of no particular consequence in view of the close time sequence involved, I con-
clude and find that Steiner 's meetings with the two groups of employees took place on
the afternoon of April 30, the day he received the telegram, and that Nack's recollection
was in error . (Evidence previously referred to and other testimony that various card
signers knew on April 29 that a union telegram was imminent , and evidence that corre-
sponding reports were circulating that day in the plant, suggest that Nack may have
confused April 29, the day telegram was rumored , with April 30, the day it was actually
sent and received , in placing the day after the telegram as the day Steiner spoke to her
in the morning and to her and the two other ladies in the afternoon )
0 Nack, Kosup , and Thimmig each had a good many, although varying , years of serv-
ice with Respondent . Hanson and Zagar, on the other hand, were comparatively new
employees , the former having slightly more and the latter something less that 1 year's
tenure.
10 Steiner did not explain exactly how such "staggering " of hours would reduce wage
costs, and the witnesses for the General Counsel testified that what he forecast was not
"staggered hours" but rather of instituting two staggered shifts of 6 (or 7 ) hours each.
Of course , shifts of such limited hours would clearly represent a substantial reduction
from the 40 to 56 hours per week which Respondent had been affording its employees,
whereas a mere staggering of employees ' starting time , without more , would not. I be-
lieve and find that Steiner referred to a possible change to two shifts of 6 or 7 hours
each , with the first shift beginning at 3 a.m ., as the General Counsel's witnesses testified
(At the hearing Steiner at one point caught himself saying that he referred to staggered
shifts and then corrected himself. ) This version seems more consistent with the in-
tended thrust of his remarks on this occasion.
u Steiner was referring to the so-called equal-work equal -pay provisions of the Fair
Labor Standards Act-(29 U S.C., Sec. 206 (d) (1)) which, subject to various exceptions,
prohibit wage discrimination between male and female employees ( not between or among
female employees ) performing equal work under similar working conditions
SHEBOYGAN SAUSAGE COMPANY, INC. 1495
from Milwaukee" 12 and, after some response to this query, he said that there would
be the following consequences "if the Union got in": (1) "We could work our six
or seven hours a day or whatever the contract called for, and then we could go
home"; (b) in order to get out the production "we would normally do in our larger
day" (i.e., under Respondent's practice of working overtime hours), there would have
to be two shifts of six or seven hours each, and with one starting at 3 a.m.; and
(c) employees would sometimes work on the night and sometimes on the day shift,
and would not be working regularly in the same department as was present practice.
Further, according to the testimony of Nack, corroborated in various particulars
by Thimmig:
He told us that it was costing him about $4,000 a year for the sausage that we
eat during our lunch periods and that would be cut out. And he also said,
"What about your Christmas bonus?" He said, "You know, I don't have to
give this to you." 13 He said he didn't think this would ever go as far as a vote
and we had the chance to drop it right now if we wanted to forget about the
whole thing, and he would treat everybody the same as he did before. Nobody
would be treated any different.
He said he knew these fellows. He said it's the same outfit that was around
once before. Of course, he said, these were younger guys And it was too bad
they changed the law otherwise he would take them and throw them out through
the screen door like he did the last time, that they wouldn't even touch the steps,
they would land out in the street, and then they sued him for assault and battery,
and he turned right around and sued them on ten different counts and he won
every one.
He mentioned that the union came around with the cards and there was
Alfred, first in line to sign up. He referred to him as the laziest kid in the shop.
He said if the union gets in, he would put Alfred in the kitchen where he could
keep an eye on him.
Q. Who is Alfred?
A. Alfred Grote. He's-well, he works in the front on summer sausage.
Q. Do you recall anything further that Mr. Steiner said?
A He said how would we feel after having been down there almost nine
years and having high school girls come in and we would have to train them
and they would be making the same wages that we were making-or that we
would be making if the union got in.
The General Counsel's only witness concerning Steiner's remarks to the men
employees on April 30 was Billy Williams, who had left Respondent's employ after
these events. His account may be summarized as follows. Steiner said his lawyer
had told him what he could and could not say. He mentioned receipt of the Union's
telegram, expressed his surprise and disappointment that the employees had not come
to him first rather than going "outside" for help, and went on to say that "if the
Union got in (1) The employees would have to work shorter hours and produce
more "due to the wages and so forth" (meaning, apparently, those prevalent under
union contracts); (2) Respondent would cut out the free lunch meat, which he stated
cost the Company $4,000 per year, (3) the employees would be put on two shifts;
and (4) new employees would get pay equal to that of older employees, which Steiner
did not think was right. Steiner also announced that Respondent was about to grant
the employees wage increases it had previously decided upon.
When called as Respondent's witness at the end of the hearing, Steiner was not
interrogated by Respondent's counsel on a point-by-point basis as to whether he had
made the various particular remarks attributed to him by General Counsel's wit-
nesses, and such partial interrogation as he was subjected to along these lines took
place during his examination, by all counsel in turn, after taking the stand at the
outset of the hearing as an adverse witness called by counsel for the General Counsel.
"Steiner denied that he used the expression " sneaks from Milwaukee ," as Nack testi-
fied, and in earlier testimony stated that his reference was to "people in Milwaukee." In
view of other strong language Steiner undisputedly used in the same talk in referring
to an encounter he had had many years earlier with the Union ( see infra ), I believe
and find he used the expression stated in the text.
is This "bonus" Is in reality a form of incentive system to promote regular attendance,
under which Respondent each year credits each employee with a sum varying with his
length of service but averaging about $100 , deducts $5 for each day of sick-leave taken,
and pays to each employee at Christmaas whatever balance is left in his fund. This
bonus is not to be confused with another and outright cash bonus also paid at Christmas
time until 1964 ( see footnote 21, infra).
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this interrogation he was asked by counsel for the General Counsel whether
he had told the women workers that he would have to reduce overtime "if the Union
came in." Steiner declined to give a "yes or no" answer to this question , asserting
that he would "have to explain that." Reminded by me that he should give a "yes
or no" answer since the question admitted of one, and would then be permitted by
me to explain his answer, Steiner resisted the question further on the score that it
"was leading to the union" and that he was only talking that day about the wage
increases Respondent was going to give, and that he had no idea of talking about
any union because the telegram did not say if the Union had "enough people"
signed. He gave the same indirect answer to the question whether he had told
employees that their hours would be staggered "if the Union came in." 14 In this
same period of examination he first testified that he did not mention cutting out the
free lunch sausage but later testified that he did not recall saying that he was going
to do this if the Union came in He likewise did not recall referring to the Christmas
sick-leave bonus in talking to the men or that he told the ladies that he might elimi-
nate this benefit because it was merely a form of gift from Respondent.15
Thus, nowhere in his testimony did Steiner contradict the testimony of Nack (or,
where pertinent, that of Thimmig) that he told the women they could drop the
union movement and that if they did so no employee would be made to suffer, or
that he had said he had thrown union representatives out before and would do so again
but for the law In the light of these expressions of vigorous antiunion hostility and
the similar ones he had uttered to Nack eai Tier that day, and bearing in mind the fact,
as I find, that the union telegram was both the cause of and a principal topic of his
remarks at these meetings, and considering Steiner's rather evasive response to key
questions as previously described, I find that on April 30 he threatened the employ-
ees with loss of the various benefits mentioned in the employee testimony "if the
Union came in."
The next question is what meaning to attach to his expression "if the Union came
in," an expression of distinctly uncertain meaning Thus, when used by an employer
in reference to a potential loss of benefits, these words, depending on all the evidence
and the surrounding circumstances, might mean one of two extremes (without regard
to other possibilities), viz (1) on the one hand, a loss the employer would put into
effect as a retaliatory measure if the employeees were to obtain union representation
by exercising their rights under the Act; and (2) on the other, a loss which would
result if union standards concering working conditions were to become effective
through good-faith collective bargaining with a representative freely designated by the
employees. Clearly the first of these illustrative alternatives would violate the Act
and, as clearly, the second would not.
The record in this case presents some of these potential difficulties since in the
testimony of Nack and Billy Williams there are sprinklings of indications that in
his reference to possible reduction in working hours and equal pay for newcomers
and old hands, Steiner was portraying adoption of union standards through union
representation of the employees as the moving cause 16 But even, if Steiner cast
such a qualification around his remarks about reduced woiking time, more produc-
tion, and wage rates for new and older employees, it was incumbent upon him to
make this point abundantly clear, which he did not 17 Moreover, depriving the
employees of the Christmas bonus and the free luncheon meat were results which
plainly could come only from his own will as distinguished from union requirements.
14 Somewhat later , under examination by Respondent ' s counsel , Steiner testified that
what he told the employees was that " we might have to cut some overtime by staggering
hours so that we could afford to pay ," the higher wage increase he was then announcing
15 Steiner similarly did not "remember " telling the women that if the Union came in he
would put young Grote in the kitchen where he could keep an eye on him
11 See Nack 's testimony that Steiner said "if the Union got in , we could work 6 or 7 hours
a day or whatever the contract would call for", and that he said new "high school
girls " would earn the same wages as the older female hands he was addressing "if the
Union came in," a statement presumably referable to some ( at least asserted ) union policy
of wage uniformity for comparable jobs . And see Williams ' testimony that Steiner said
there would have to be less hours and more production to meet the higher wages to be
paid "if the union contract would come into effect ," and that Steiner said that " in most
union shops" there was equal pay for the same job classifications without distinction
between new employees and those of long tenure.
17 See the parallel reasoning of my colleague Lindner in Malone Knitting Company, 152
NLRB 643, concerning a statement relative to possible plant closing "if the Union came
in," which the employer sought to explain on the basis of economic necessity.
SHEBOYGAN SAUSAGE COMPANY, INC. 14Ci7
And his reference to the Union "sneaks from Milwaukee" and to his instinctive
desire to throw the union representatives bodily out in the street, coupled with the
veiled possibility of antiunion discrimination left by his statements that no one
would suffer if the employees dropped the Union, spread over all that he said a
dominant aura of hostility and threat. Finally, it is to be noted that neither in
Steiner's testimony at the hearing or in the contentions advanced in Respondent's
brief is there any claim that any of Steiner's remarks should be interpreted as
predictions of Union or union-contract induced results Rather, Steiner testified
and Respondent contends that he described the possible reduction in hours as conse-
quences merely of the wage increases Respondent was about to initiate, without
reference of any kind to the Union as "coming in," having a contract, or otherwise.
Steiner's vigorous effort, despite his failure to contradict some of the more damaging
testimony given by Nack and Williams to divorce completely from the Union every-
thing he said with reference to changed working conditions discloses in my judgment
a fear that if the truth were told as to just what and all he said it would lay bare his
attitude of antagonism and threat and yield an account closely resembling in these
respects that given by the employee witnesses.
In these circumstances, I find that the totality of Steiner's remarks as described
by the employees, and the air of antagonism and threat which Steiner drew about
them, were calculated and sufficient to let the employees undeistand that in Steiner's
eyes they were at fault, and the fault lay in the steps they or some of them had so
far taken to designate and adhere to the Union 1s And, rounding the circle, this, I
find, is the meaning Steiner communicated to the employees to the extent that he
actually used the expression "if the Union comes in " I find, therefore, that by
Steiner's remarks at the employees' gatherings on April 30, Respondent threatening
employees with a reduction of hours, loss of valuable overtime, the imposition of
an unwelcome night shift, and discontinuance of the free luncheon meat and of the
Christmas sick-leave bonus, in violation of Section 8(a)(1) of the Act as charged
in the complaint.
The May 9 Pay Raises
On May 9, Respondent increased the hourly pay rates of all its production employ-
ees, in amounts varying from employee to employee (General Counsel's Exhibit
No. 5). The complaint charges that Respondent took this action to induce the
employees not to vote for 1a or join or support the Union in violation of Section
8 (a) (1), and that in taking this action unilaterally Respondent violated its collective-
bargaining obligation under Section 8(a) (5). I will deal first with the alleged Sec-
tion 8(a)(1) violation.
It is undisputed that at least since 1959, it had been Respondent's uniform practice
to grant wage increases to its employees annually, and to do this in the first days of
May.20 Respondent's witnesses Steiner and Meier testified, and there being no
adequate contrary evidence I find, that it was their practice to work out together
these increases gradually over the beginning months of each year and that they did
so in 1964, with the result that the amounts to be given each employee as of early
May 1964 had been determined about March 1, long before the time I have found-
a few days before April 30-either had any knowledge of the union solicitation
activity. In the light of Respondent's consistent practice of many years standing,
and other direct evidence, I further find that Respondent's employees were aware
that such increases were to be expected in 1964 about the time the Respondent
granted them.
"There is thus no need in this case to consider whether, assuming Steiner could be
said to have characterized some of the adverse consequences he mentioned as the probable
results of negotiations with the Union, he had any reasonable basis for such assertions.
See N.L.R.B. v. Harold Miller, et at., d/b/a Miller Charles 4 Co, 341 F 2d 870 (CA 2).
10 While the Union filed a certification petition with the Board's Regional Director in
Chicago on May 4, the postal return receipts attached to the petition indicate that it
was not served upon Respondent until May 11, after Respondent had granted the wage
increases, and the record does not show that Respondent had actual notice of the peti-
tion prior to May 9. However, this may be, I interpret the charge in the complaint, as
it reads in part, as alleging in substance that Respondent granted the wage increases
to induce its employees to abandon or refrain from any allegiance to or support of the
Union.
20 This was the period when the employees would have finished taking their annual
vacations which, in view of the fact that Respondent's "busy" season began at this time
of the year, they regularly took in the several months preceding May
There is record evidence that Respondent granted several wage increases at sporadic
intervals in the years 1947-52, but no record evidence of Respondent's practice in this
regard in the years 1952-59.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel alludes to the fact that the 1964 raises were
markedly higher-on an averaged basis-than those granted in the years 1950-63,
inclusive. But the charge of the complaint in the unfair labor practice proceeding
is that Respondent granted wage increases, not that it granted unusually high ones,
and the latter contention was at issue in the representation proceeeding simultaneously
heard, in the form of one of the Union's objections to the election. Those objec-
tions were filed with the General Counsel in June 1964 while the complaint did not
issue until September. Since the Union's charge in the unfair labor practice case
also complained of the scale of the wage increases, obviously the General Counsel
did not choose to charge Respondent with granting "unusually high" wage increases
when he issued his complaint. And no such amendment was offered at the hearing,
and no assertion was made at the hearing by counsel for the General Counsel that he
was attempting (without amendment) to put this contention in issue in the unfair
labor practice case. Indeeed, there occurred at the hearing an incident which called
upon counsel for the General Counsel to make such an assertion if that was his inten-
tion. Toward the end of the hearing, counsel for Respondent was adducing evidence
designed to show that the May wage increases followed a long-standing policy of
Respondent. When I indicated I was satisfied with the evidence to this effect already
of record, counsel for Respondent explained that the evidence then under considera-
tion was being offered to show that in making the 1964 and earlier raises Respondent
took into account wage rates in effect among its competitors, and was thus attempting
to meet the complaint, which he interpreted as challenging the 1964 wage increases as
"excessive and perhaps given for some ulterior motive." I then pointed out that the
"excessive" charge was not in the complaint but rather was one of the Union's objec-
tions in the representation case, as is the fact. Counsel for the General Counsel did
not then assert that he was nevertheless litigating the "excessive" or "unusually high"
wage increase charge in the complaint case, but stood mute. In the circumstances,
and with counsel for Respondent entitled to consider this contention and any relevant
evidence pertinent only to the corresponding issue raised in the representation pro-
ceeding, the General Counsel is foreclosed from advancing this contention as an
alleged unfair labor practice charge.21 But were the charge one which had clearly
put in issue, for reasons indicated in the preceding note and in my later findings in the
representation case, I do not consider it sustained by a preponderance of the
evidence.22
a In this connection , it may be noted that while the average of the May 1964 rate
increases it markedly higher than those granted in May of prior years (General Counsel's
Exhibits Nos. S, 6A-6F ) the true difference in annual earnings ' increases is less because
in the years 1959-62, Respondent also gave its employees outright cash ( regular ) bonuses
at the end of each year . At the request of its employees , Respondent converted its
Christmas 1962 regular cash bonuses into their hourly wage-rate equivalents and made
corresponding rate increases in January 1963. Subsequently , in May 1963 , Respondent
gave its employees the usual annual rate increase , while completely discontinuing any
further Christmas cash regular bonuses. Hence , Respondent ' s 1964 raises can scarcely
be considered unusually high on an annual comparison basis . See my discussion sand
similar finding in the representation case ( enIra).
2' Counsel for the General Counsel also advances in his brief the contention that
Respondent 's announcement of the 1964 increases at the April 30 meetings was so "timed"
as to coerce the employees . Counsel apparently has in mind some questioning of Steiner
and other witnesses as to when and how Respondent gave notice of the wage increases
granted in prior years, and the upshot of such evidence as is of record is that in earlier
years Steiner spread the word in advance , at least on some occasions , through disclosure
to groups of individuals but not at special meetings of employees called for such pur-
poses. But , here again , there is no such charge in the complaint respecting the fact or
method of announcing the wage increases in advance on April 30 (paragraph V is the
pertinent part of the complaint ), and there was no declaration by counsel for the Gen-
eral Counsel at the hearing that he proposed to litigate or was litigating any such issue
in the 'unfair labor practice case . And from the loose wording of two of the Union's
election objections in the representation proceeding dealing with the wage increase mat-
ter, counsel for Respondent may well have thought that such evidence as counsel for the
General Counsel now apparently refers to pertained to one or another of those objections.
This is not a technical matter ; the right to be clearly advised of the violations charged
is fundamental . For a magistrate to find a violation of Federal law when the claimed
violation has not clearly been put in issue is to sanction trials at random, to the prejudice
of the parties and of fair judicial administration generally . Accordingly , I decline to
consider whatever aspect of the "timing" issue counsel now has in mind because, what-
ever it may be, it was not properly put in issue.
SHEBOYGAN SAUSAGE COMPANY) INC. 1499
I find that the wage raises made by Respondent in May 1964 were made pursuant
to a consistent practice and policy of Respondent to grant such annual increases at
this time of year, a practice of which the employees were fully aware, that the raises
were planned and determined upon prior to Respondent's knowledge of its employ-
ees' union activity, and that they were not, therefore, granted when they were to
induce a disaffection of the employees from the Union. The temporal coincidence
involved may have been a source of satisfaction to a person of Steiner's obvious
antiunion disposition, but, under settled principles of law and pertinent Board and
court decisions, an antiunion employer may, as well as any other, grant benefits
such as those involved in this case.23
Respondent's June 8th Letter
By way of preface to this topic and the following one, following the filing of the
Union's certification petition on May 4, representatives of the Board's Regional
Director, the Union, and Respondent met on May 19, at which time all parties
entered into an agreement to hold an election on June 19. Following the May 19
agreement and prior to the election, Respondent convened four successive meetings
of its employees at which, principally through Steiner, Respondent presented its case
against the employees' voting for the Union in the election. Following each of these
meetings, Respondent prepared and distributed to the employees letters purporting
to summarize at least some of the points made in Steiner's corresponding remarks.
The complaint raises issues with respect to passages in two of these letters.
The letter of June 8, read as a whole, is mainly devoted to presenting a comparison
of some of Respondent's employment conditions and benefits with those prevailing
in competing Sheboygan plants having contracts with the Union. The complete
letter is, for this kind of literature, rather dispassionate and in conceding that
Respondent's vacation plan is inferior to one recently negotiated by the Union,
not uniformly one-sided.
One passage of this letter reads as follows:
I also mentioned the guaranteed work week of 34 hours which is in the union
contract. This is fine but at the Sheboygan Sausage Co. most of you have
been working 45 hours a week. The best security and gumanteed work week
is steady work.24 That is what we have at the Sheboygan Sausage Co. and that
is the way we want to keep it.
The complaint, as interpreted by counsel for the General Counsel, alleges that by
these statements Respondent threatened its employees with loss of workhours if they
voted for representation by the Union. But the passage as a whole, fairly read in
the light of the main theme of the entire letter, merely argues that the 45 hours
per week provided by Respondent to most employees has more to offer by way of
steady, secure employment than a contractual guarantee of 34 hours. And the
words "that is the way we want to keep it" in the succeeding sentence cannot be
interpreted as containing a threat that Respondent would deprive its employees of
the 45 hours, or of steady work, if they voted for the Union, as counsel for the
General Counsel asserts as his key contention Certainly, Respondent's basic argu-
ment in favor of its practice of generally providing ample workhours was a respect-
able and permissible one, and the expression of its desire to continue a practice and
related level of hours arguably more beneficial to the employees than a contract
guarantee of lesser hours, added nothing to the situation and, in particular, nothing
threatening.
Accordingly, I find no violation on this count and will recommend that it be
dismissed.
Respondent's June 17th Letter
The complaint charges that in this letter (General Counsel's Exhibit No. 8)
Respondent promised its employees wage increases and other "unspecified economic
benefits" if they voted against or refrained from supporting the Union. In its
entirety, this letter, like the one just dealt with, covers a number of topics, all to the
end of seeking to demonstrate that Respondent's wages, working conditions, and
employment benefits compare favorably with those promised or elsewhere obtained
by the Union.
23 See the comparable situation considered by my colleague Reel in Champion Pneumatic
Machinery Co, 152 NLRB 300.
24 Italics in original.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first paragraph of the letter refers to and deals with claims disseminated by
the Union that it should receive credit for Respondent's May 9 wage-rate increases.
It reads as follows:
Last week when I talked to you I told you that the Union was incorrect in
taking credit for the wage increases that you received in the early part of May.
I also told you at that time that we had given these increases every year for
the past five years and we had decided upon these increases long before we
ever heard from the Union. When they take credit for this I want you to know
that they had nothing to do with it, since we have given these increases every
year after the vacations have been taken, and as far as I am concerned, we
intend to do the same thing next year and the year after. I evaluate each
employee personally and not by number. This has been my policy and this is
the way I intend to continue it.
From this paragraph, counsel for the General Counsel first refers to the "increases
[Respondent had granted] every year" and then cites as violative of the Act the suc-
ceeding statement that "as far as I am concerned, we intend to do the same thing
next year and the year after."
The theory of violation set forth in counsel's brief is that if the May 1964 wage
increases are found to be illegal, then any future raises must also be illegal, and so
Respondent must be deemed to be promising illegal future raises. But, there is no
occasion to dilate upon the unwarranted factual assumptions and illogical nonsequiturs
involved in this formalistic syllogism. All that is necessary is to deal with the reason-
able meaning of the expressions used in their context. Viewed in that proper perspec-
tive, all that Steiner said was that Respondent, not the Union, was entitled to credit
for the May increases and that the employees should feel assured that these established
benefits would be continued so far as Respondent was concerned.
Accordingly, I find no violation respecting this charge and will recommend that
it be dismissed.
The Alleged Refusals to Bargain
The parties stipulated at the hearing and I find that the production and maintenance
employees' unit alleged in the complaint is an appropriate bargaining unit within the
meaning of the Act. I likewise find that at the time of the Union's alleged request to
bargain-April 30 and thereafter-the Union, by the signed cards, was the represent-
ative designated by a majority of the employees in the unit 25 I find, nevertheless,
that Respondent did not refuse to bargain with the Union, for the reason that the
Union made no genuine, or genuinely intended, bargaining demand upon Respondent,
a conclusion I reach on the basis of various pertinent circumstances.
In the first place, the Union's telegram of April 30 does not expressly assert a claim
to designation by a "majority"; the word "majority" is notably missing. Nor does
the telegram provide any address to which Respondent could send a reply, and there
is no evidence either that such information was in Respondent's possession or that the
Union had any reason to think so. Nor does the telegram request Respondent to bar-
gain or propose any meeting date or place, or any other such mechanics requisite for
the actual initiation of concrete bargaining sessions . These peculiar circumstances
take on added significance in the light of the Union's contemporaneous action to
obtain an election.
25 As previously noted there were 27 employees in the unit, of whom 18 had signed the
union "Authorization for Representation" cards which state explicitly that the Union is
authorized "to represent me aand bargain collectively with my employer in my behalf" etc.
At the hearing, counsel for Respondent sought to establish that some five employees
(Reinecke, Hasenstein, Dekarske, Dault, and Bahlow) signed their cards on the
basis of representations by union agent Greenlaw that the cards would be used only for
an election , and that a sixth (Prigge) signed and mailed in a card he found on his
automobile windshield only to obtain information about the Union. But Prigge read
the card he had signed without any solicitation, and considering all of the testimony given
by Dekarske, Dault, Bahlow, and Hasenstein as to what they could recall being told by
Greenlaw, their testimony cannot be read to mean that Greenlaw told them the cards
would be used solely to obtain an election (to which no reference whatever is made on
the cards ). Indeed, some of those five witnesses gave testimony indicating that they
understood they were designating the Union for recognition or bargaining purposes. In
the circumstances , I credit Greenlaw's testimony and find that he informed each of the
signers he talked with that the cards had two possible purposes: (1) to seek recognition,
and/or (2) to request an election
SHEBOYGAN SAUSAGE COMPANY, INC. 1501
April 30 is a Thursday, with but one business day, Friday, remaining in that week.
On the following Monday, May 4, the Union's election petition and accompanying
cards were received by the Board's Regional Office in Chicago at 8:36 a.m., having
been put in the mail at Milwaukee, according to Greenlaw, on May 2 or 3. Thus
the Union was proceeding on the election front simultaneously with its telegram to
Respondent.
It is undisputed that save for the April 30 telegram, the Union never made any
subsequent demand upon Respondent for recognition or bargaining, although it had
ample opportunity to do so if it had wished to make clear to Respondent that it was
genuinely intent at this stage in seeking recognition as a preliminary to or incident of
arranging bargaining sessions Indeed, on May 19 its representatives met with those
of Respondent and a Board agent in Milwaukee (to arrange the election) but there is
not the slightest suggestion that on this occasion or any other postdating the April 30
telegram the Union made any explicit claim to existing majority representation or any
demand upon Respondent, on that basis, for immediate recognition and bargaining.
On the contrary, all the union interest and attention after April 30 was, on this rec-
ord, devoted to bringing about an election by which the question of this majority status
could be determined.26 Compare Barker's East Main Corporation, 142 NLRB 1194,
1200-1201.
Looked at from Respondent's vantage point, it received a telegram not explicitly
claiming majority representative status, and a demand for recognition to which, for
lack of the sender's address, it could not readily respond. Such a telgram would put
any employer in a quandary, as Steiner testified was his reaction. It certainly was
not Respondent's responsibility to take the initiative to clarify the telegram, and such
further initiatives as the Union took not only were not in this direction but, rather,
were concentrated solely on obtaining the election. In the circumstances, Respond-
ent was entitled, when the telegram was received and increasingly so thereafter, to
regard the telegram as something other or less than a genuine, unconditional claim
by the Union to majority representation and demand for immediate recognition and
bargaining with it as such representative.27
Hence, I will recommend that the complaint be dismissed as to its charges of unlaw-
ful refusals to bargain on the part of Respondent. See Floniatic Corporation, 147
NLRB 1304.28
III. CASE NO. 30-RC-30; THE UNION'S OBJECTIONS TO THE ELECTIONS
The Union's objections to the election, filed in the representation case and con-
solidated for hearing with the preceding unfair labor practice charges, are five in
number. (See General Counsel's Exhibits 1(b) and 2(e).) Of these, two-Respond-
ent's alleged illegal promises of benefit and alleged refusals to bargain-are disposed of
by my findings and conclusions in the preceding unfair labor practice case and should
be overruled. A third, that Respondent coercively threatened its employees with
reprisals, cannot be sustained because while I have found such illegal threats, they
si As is apparent from my discussion, I do not consider as determinative the mere
facts, viewed singly, that the Union's telegram referred only to "employees," or that the
Union filed the petition more or less simultaneously with sending the telegram. For the
mere filing of an election petition does not bar or deprive of operative effect a simul-
taneous proper demand for recognition and bargaining, and, in other contexts, a claim
to represent "employees" might reasonably be understood by the employer as a claim to
majority representation of his employees.
m The applicable representation petition form utilized by the Board contains a space
to be filled in by the petitioning union showing the dates upon which its request for
recognition was made and declined, respectively, with the further legend "If no reply, so
state." (General Counsel's Exhibit No. 2(a).) The petition filed by the Union has the
insert "no reply." Since the Union prepared and mailed its petition more or less siinul-
taneously with its April 30 telegram, it is a fair inference that the Union conceived of
its telegram as designed to enable it to satisfy the requirements of the petition form and
was, in consequence, careless or unconcerned regarding the sufficiency of the telegram as
an adequate demand for recognition or as a basis for an unfair labor practice charge
The complaint alleges refusals to bargain in three different particulars, but the
ground of nonviolation I find is fatal to them all and renders it unnecessary to deal with
such questions as whether, assuming the Union had made a proper claim of majority
representation and to corresponding recognition, Respondent declined recognition on the
basis of good-faith doubt of the Union's majority By the same token, an essential pre-
requisite to application of the Joy Silk doctrine is missing from this case.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred on April 30, prior to the date the Union filed its certification petition and
hence, under applicable Board decisions, cannot be considered.29 The two remaining
objections are (1) that Respondent granted "unusually high" wage increases (those of
May 9) upon learning of the employees' union activity, and (2) that Respondent made
"misleading statements" to the employees "concerning the merits of the insurance
program of the Union "
Treating these objections in reverse order, it would be better practice if, with respect
to such objections as the latter one, it were to state with some specificity the feature or'
features of the Union's insurance program involved and what the alleged misstate-
ments were , rather than to leave these particulars to speculation from counsel's inter-
rogation at the hearing, as was the case here.
This "insurance" subject was opened up-through initial interrogation of Steiner by
counsel for the General Counsel. There was then ensuing interrogation of him by
counsel for Respondent and for the Union. Subsequently, there was further inter-
rogation of Office Manager Meier. From the evidence so adduced it appears that
because of employee inquiries relative to a weekly sick benefit under a contract between
the union and the competing Herziger Company, but not offered under Respondent's
Insurance benefit program , Meier, at Steiner 's request , made inquiries of an official of
the Herziger Company concerning the main benefit features of the union-Herziger pol-
icy. On the basis of this information, later supplemented by receipt of a copy of that
policy, Steiner referred to some features of both programs at two of the employee
meetings he addressed in the preelection period, and at one of these meetings expressed
the opinion ( also expressed in Respondent 's June 8 letter to its employees) that
Respondent's plan was the better of the two. Further, at one of the meetings, Steiner
had Meier make a fuller exposition of main features of both plans, in the course of
which, while no doubt characterizing Respondent's plan as better on an overall basis,
Meier pointed to particular respects in which each plan afforded protection not offered
by, or better protection than, the other.
From this aggregate of testimony I assume, although no such precise specification
was made by counsel for the Union or for the General Counsel, that the alleged mis-
statement complained of consists of Steiner's statement that Respondent's plan was
the better one for the employees. But given the fact that the plans are not identical,
that each offers benefits not offered by the other, and the consequent inability of any
employee to foretell what plan would be most advantageous to him, or his dependents
(because he could not predict the corresponding characteristics of any future mis-
fortune), such a "statement" was, and could only have been regarded as, an expres-
sion of opinion or judgment. There being no misrepresentation of any pertinent
fact, this objection is wholly lacking in merit.
I turn now to the Union's final objection; i e., that Respondent "granted unusually
high wage increases after learning of the Union's organizing activity ...." Presum-
ably, the thrust of this objection is that Respondent conferred upon the employees a
benefit of mutual value for the purpose of discouraging them from voting for the
Union and thus, of defeating the Union's representational effort. Such conduct, if
engaged in, would constitute an unfair labor practice, but, as previously noted, there
is no such allegation in the corresponding unfair labor practice case, an omission all
the more significant in the light of the fact that the Union's charge which gave rise to
the General Counsel's complaint contains this very item. It seems somewhat incon-
gruous that the General Counsel should set down for scrutiny in a representation
proceeding alleged conduct which on its face constitutes an unfair labor practice, but
which he saw fit not to charge as an unfair labor practice in his corresponding com-
plaint. However this may be, the objection must fail for a number of reasons.
Counsel characterizes the May 1964 raises as "unusually" high by comparing them
with the average of raises granted in the preceding years. Assuming, for the moment,
the propriety of this basis of comparison, it does not render the 1964 raises "unusu-
ally" high, since the aggregate of the two raises granted in 1963 would approximate
those of May 1964.30 Moreover, no evidence was offered to call into question
2° Goodyear Tire and Rubber Company, 138 NLRB 453.
30 Respondent granted general wage-rate increases twice in 1963 (General Counsel's
Exhibits Nos. 6A and 6B), with the January 1963 hourly raises representing a conversion
into rate Increases of the regular bonus theretofore paid to the employees at Christmas
time. Hence the May 1964 raises were on a par with the aggregate of the 1963 wage
increments . See footnote 21, supra.
SHEBOYGAN SAUSAGE COMPANY, INC. 1503
Respondent 's testimony that it had determined upon the amounts of the 1964 raises
for the various individual employees by March 1, 1964, long before , as I have pre-
viously found , Respondent was aware of the Union 's organizational effort 31
Finally , and contrary to my earlier hypothetical assumption , to characterize the
1964 raises as "unusually high " is to engage in an unfair method of comparison.
According to Steiner, he used a variety of factors , most of which were judgmental
in character , to determine how much of an increase he should give each employee in
1964. There is no evidence that the same factors were used in prior years, and there
are record indications that some were not and others could not have been . In short,
the standard of comparison is not tenable even under superficial analysis, and since
the proof of Respondent 's illegal intent , an essential ingredient of the improper con-
duct alleged , rests on this record essentially upon application of the "unusually high"
standard of comparison , the illegal intent may not circumstantially be inferred because
the standard used is not reliable . This objection , too, should therefore be overruled.
Since none of the Union 's objections has merit, the election must be allowed to
stand.
IV. CASE NO . 30-CA-146 AND THE UNFAIR LABOR PRACTICES THEREIN CHARGED
At some point prior to 9 a.m., on December 4, 1964, Respondent posted on its
bulletin board a paper entitled "Seniority Roster by Departments ," grouping the then
23 employees under departmental headings in the "order of seniority by Departments"
(Respondent 's Exhibit No. 1(b )). No such departmental seniority list had ever
been previously posted. Nor had Respondent previously made any announcements
stating that a policy of departmental seniority prevailed in the plant , or defining or
naming the "departments ," or specifying for what purpose or in what manner
departmental seniority would govern.
At this time, employees Ardelle Nack and Mabel Thimmig performed "packaging"
work in the second floor "cooler," operations later more fully described and which, on
the roster Respondent had posted that morning , are denominated the packaging
department . In the order of seniority as assigned on that list, Nack and Thimmig
were fourth and fifth, respectively , of the five employees grouped under the packaging
department.
A month previously Nack'and Thimmig had testified in support of the charges
against Respondent in the prior unfair labor practice case, and were the only employ-
ees to do so . About 11 a.m. that day, Nack and Thimmig were told by the packaging
crew leader , Senkbeil, to punch out for the day but to see Meier in the office, each in
turn, before going home. As Thimmig first, and later Nack, appeared at the office,
Meier read to each the text of a document on Respondent 's letterhead ,32 which states
as follows.
December 4, 1964 11:00 A.M.
To Mabel Thimmig and Ardelle Nack:
Due to lack of work in your Department we are forced to make some changes.
Starting Monday Dec 7th, you will work at packing until work is down to the
point where Lester, Henry, and Pat can finish up. Then you can work down stairs
on cleaning in order that you may get in more time.
I am not ordering you to work there but this is one way we can give some
extra time . If the present trend continues , none of you will be working more
than 20 or 25 hours Les, Henry, and Pat have seniority over you in your
department and we owe them the first chance at work in the packing dept. If
work slows down anymore we will have to make more changes.
Bring rubber boots, old clothing , slacks and a water proof apron if you have
one. If you do no have a water proof apron you can buy on [sic] here at the
shop.
311 am conscious of the fact that the March 1 date rests upon testimony of Steiner
which , on this record , has a "say-so " character , but it does not follow that the General
Counsel did not pursue , or have open to him, some avenues of investigation having a
capacity to uncover evidence tending to draw Steiner ' s testimony Into question if corre-
sponding evidence existed.
I am equally conscious of the evidence that Green ] aw distributed union literature
outside Respondent ' s plant on March 4 , a date perilously close to the one by which,
according to Steiner and Meier , the increases had been determined . But the General
Counsel offered no evidence to particularize just where , in what manner , and for how long
this March 4 distribution took place, or any other facts or circumstances tending to
indicate that either Steiner or Meier must in all likelihood have been aware of it
a2 Respondent 's Exhibit No. 2
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To questions put by Nack after he had read the paper to her, Meier told her the
cleaning work would be on the first floor and would consist of whatever cleaning
"came along."
About 10:45 a.m., on Monday, December 7, Crew Leader Senkbeil told Nack and
Thimmig that they were through with their normal packaging work in the second-
floor cooler, and should go down to the first floor, which they did after changing into
cleaning clothes. They were then told by Steiner that they were to scrub smokehouse
racks. They proceeded to the location of the racks where they found waiting for
them tubs containing a scrubbing solution, pails, brushes, and ladders Neither had
ever scrubbed racks before nor were they given any advance instructions concerning
how to go about the job, although after they had undertaken the work Steiner advised
them concerning a more advantageous place to put their ladders than the one they
were employing.
In the course of about an hour's scrubbing which preceded the noon lunch period,
Nack experienced a burning sensation of the hands, particularly the right one (neither
lady had been advised or had thought to wear rubber gloves), and when she used
this hand during the lunch hour to operate the wheel of her cigarette lighter a piece
of softened skin was torn from the hand. During the same period she was unsuc-
cessful in endeavoring to remove some brownish stain from her hand and observed
that some portions of skin were, as she described it, "eaten" and continuously water-
ing. As a result, she informed Steiner that she could not work that afternoon and
would instead see a doctor. In leaving the plant, she took with her, for analysis, a
quantity of the cleaning solution. Thimmig continued with the scrubbing for the
balance of that day, although noticing some hand soreness.
Unable to be examined that day by Dr. Bringe, a local skin specialist who had
treated her for a work-connected skin difficulty some 8 years before (see footnote 35,
infra), on the advice of Dr. Bringe's nurse she consulted her family physician. He
concluded that Dr. Bringe was the man to see but advised her that she should stay
home if her hand was too sore to work and "see about" obtaining compensation under
Respondent's health insurance program for her medical expenses.
In between these visits to the doctors' office, Nack arranged to obtain a chemical
analysis of the cleaning solution from a firm engaged in this business-Culligan, Inc.-
which has a local representative or branch in Sheboygan. In early January, this
firm reported that the cleaning solutions was a "highly alkaline" one which could
have an effect on the skin and recommended the use of some "protection (such as
rubber gloves)." 33 On the evening of Thursday, December 10, Nack was examined
by Dr. Bringe: His report, dated a month later,34 diagnosed her condition as "scaling
fissuring and desquamation of the skin on both hands with the most severe involve-
ment over the extensors of the fingers of the right hand"; and stated that a skin
patch test he had made on Nack with the cleaning solution produced "a markedly
positive reaction consisting of bullae and erythema and edema "
In the meantime, Nack and Thimmig reported for their regular packaging work
on December 8 as usual. About 8:30 a m , each, again in turn, was called to the
office. When Nack arrived, Meier inquired about her hand condition. She showed
him the hand, whereupon he put a question manifesting his disbelief that the condi-
tion could have resulted from a mere hour's scrubbing She reminded Meier that
following the other skin difficulty which had befallen her before, she had not been
required to do any type of cleaning work which required hand scrubbing.3a And,
to emphasize the seriousness of this earlier incident, she reminded Meier that Steiner
had told her on that occasion to put her infected hand in her pocket if "an inspector"
83 See General Counsel 's Exhibits Nos. 10 and 11.
a' General Counsel's Exhibit No. 12.
as When Nack was first employed, she "pulled" casings, that is, prepared the dry cas-
ings for later stuffing with sausage products "Pulling" casings involves removing the
dry and heavily salted casings from their incoming shipment container and flushing them
with water inside and out. Performance of this work necessarily entailed constant ex-
posure of her hands to salt and salt water . After some period of time she developed
what appears, from the record evidence, to have been a rather severe skin infection for
which she was treated by Dr. Bringe and for which she received compensation from Re-
spondent . Steiner , in turn, transferred her to other work , and assured her that she
would not thereafter need to hand scrub. While she thereafter participated in washing
floors, walls , and windows in Respondent 's plant (a regular feature of the work of
Respondent 's employees ), she did no work of this kind, or no part of it, which necessitated
immersion of her hands in the solution used ; e.g, in washing walls and floors she used
long-handled brushes and mops and, with respect to the windows , she dried rather than
washed them. -
SHEBOYGAN SAUSAGE COMPANY, INC. 1505
came in. At this point in her conversation with Meier, Steiner's entered Meier's
office from an adjoining one and in loud tones asked Nack where she got "all those
dirty lies from all the time." Nack reminded Steiner that he had made the remarks
about the inspector on the earlier occasion, and Steiner then said he did not remem-
ber them. Nack then informed Meier and Steiner that the family doctor had
advised her to remain away from work until her hand healed and then see about
getting compensation for her medical expenses . Steiner replied that Respondent
would fight any such claim, that it had paid up on the prior occasion but, on this
one, would require proof. Nack asked what kind of proof, and Meier specified
medical skin tests which Nack agreed to have made . Steiner further told Nack that
although the other employees used this same solution for cleaning work she was the
only one to develop sore hands; he added that the salesman from whom they pur-
chased the cleaner material "even washes his face in it ." Nack then asked why it
was that Thimmig had also developed sore hands. Nack also asked Steiner in this
conversation whether rack scrubbing was the only kind of work available, to which
Steiner replied in the negative and enumerated as in need of cleaning the "Jordan"
cooker and the metal trucks used to move sausage supplies and products within the
plant. He further stated that assigning her to scrubbing racks was not "any punish-
ment" but only a way of providing her with additional work hours; and that she did
not have to scrub the racks but, rather, the choice was hers whether to scrub or to
punch out upon completion of the reduced hours of packaging work.
When Thimmig arrived at Meier's office a bit later, Meier looked at her hands, said
they looked sore but did not understand why this should have happened to her and
Nack, since the cleaning agent was not "strong" and one could almost wash one's
face in it. He added that he thought he was being "lenient to" Thimmig because
he might have assigned her to an even less desirable scrubbing assignment within
the smokehouses proper.
About 10:15 a.m. on that same day, Crew Leader Senkbeil told Nack and Thimmig
that their packaging work was done for the day. They proceeded to the rack-
scrubbing location on the first floor but found that no cleaning materials and equip-
ment were on hand as they had been the day before. Meier then approached them
and said that Respondent was not requiring them to scrub racks unless they felt free
to do so and that they should decide whether to continue the rack scrubbing or
punch out.36 The two indicated to Meier that they chose to scrub, having brought
rubber gloves to wear that day, and both kept at this work until about 2 to 2:30 p.m.,
when Meier again told them to go home.37
Since December 8, Nack and Thimmig have worked 4 hours each weekday morn-
ing in their normal packaging , from 7 to 11 a.m., and at the latter hour have been
told by Crew Leader Senkbeil that their work for the day is finished, without a
proffer by Respondent of any other type of work. Thus, they received 20 hours of
work per week from mid-December until the hearing whereas in the period closely
antedating December (October and November) each had received about 36 hours
per week on the average, with the curve declining from about 39 to 34 hours over
this period.
The charges of the complaint are two. The first (paragraph V) is that Respond-
ent "on December 4, 7, and 8" assigned the two ladies "to more onerous jobs and
less desirable working conditions" because of their union sympathies and activities
and because of their having given testimony at the November hearing. On the
aO In the course of this conversation Nack told Meier that he knew the two employees
could not live on 3 hours work a day. Meier responded that there was no other work
available, a remark Nack countered with the claim that there was just as much work
available for them as theretofore.
37 Shortly after they started scrubbing this day, Steiner came by and remarked, "I
see you decided to stay and work today" and "Are you sure that wearing those rubber
gloves won't bother your sore bands," and "I wouldn't want you to get sore hands."
According to Nack, Steiner made these remarks in a sarcastic fashion Steiner did not
deny making remarks of this sort but, in asserting that he was interested "in that [Hack]
shouldn't have sore hands," impliedly denied any snearing mode of expression. I credit
Nack.
Thimmig testified that employee Kaminski, the "smoker," mixed the cleaning solution
used on December 8, using a white powder he obtained from the kitchen, and that the
solution was not as clear as the one used the day before or as strong in cleaning power.
While the record establishes that there was more than one type of cleaning compound in
use in Respondent 's various cleaning operations , the complaint does not charge and in
any case I am unwilling to find, merely on the basis of the sort of observations Thimmig
testified to, that Respondent provided the ladies with a different and more virulent solu-
tion on Monday than on Tuesday.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, this charge can only relate to the initial rack-scrubbing assignment of
December 7 and 8, since this was the only assignment actually made Moreover,
counsel for the General Counsel cannot interpret this charge as embracing other
cleaning assignments (which, as seen below, Respondent had in mind giving the
ladies) since counsel points to these other types of cleaning as work the ladies might
have been given (and which they had recurrently performed in the past) in an effort
to show both that the rack assignment, and the limitation of the ladies to packaging
work, were discriminatory.
The second charge of the complaint (paragraph VI) is that "on or about Decem-
ber 9" Respondent similarly discriminated against the two by reducing their hours
to about 20 per week. I see no reason to quarrel with and hence accept Respondent's
explanation, contained mainly in Meier's testimony, that Respondent did not offer
the ladies additional cleaning work of any kind after December 8, as its notice to
them had contemplated, in order to avoid any risk of aggravating the ladies' skin
difficulties pending receipt of medical reports, and then in order to await a resolution
of charges which the Union promptly filed on December 11, attacking Respondent's
cleaning assignments as discriminatory. It is true that the ladies had previously done
some types of scrubbing not involving extensive skin contact by either with cleaning
solutions. But it was not up to Respondent to make nice distinctions as between
these various cleaning assignments, faced as it was both with possible financial
liability for the existing and any further adverse skin problems, and with charges of
violation of Federal law apparently broad enough to embrace any such assignments.
Hence, I conclude that whether Respondent discriminated against the ladies in
limiting them, on and after December 9, to 20 hours of packaging work must be
determined, so far as the matter of the availability of other work is pertinent, without
reference to the question of the availability of such cleaning assignments as they
previously had received38
On the two charges as so refined on the record, there are two prongs to the argu-
ment of counsel for the General Counsel in favor of a finding of discriminatory
motivation, i.e., (1) acts and statements on Respondent's part directly indicative, in
his view, of an intent to discriminate, and (2) alleged defects in Respondent's
explanations which, in his view, render those explanations so unworthy of beliefs
as to leave a purpose to discriminate the only credible explanation for Respondent's
actions.
In the category of direct evidence of discriminatory motivation, counsel for the
General Counsel relies upon Respondent's antiunion attitude to the extent that that
animus is established in the first unfair labor practice case, and upon two remarks of
Respondent's officials, i.e., (1) that of Steiner to Nack on December 8 that the rack-
scrubbing assignment was not "punishment"; and (2) the similar one of Meier to
Thimmig that same day that he thought he was being "lenient" with Thimmig in
not giving her a worse assignment than rack scrubbing. But counsel bears down
with the greatest force, not on this evidence, but on the front of the alleged implausi-
bility of Respondent's explanations, a subject which, in the light of the pertinent
testimony of Respondent's witnesses and other relevant circumstances, I will first
consider.39
Through evidence adduced at the hearing Respondent sought to establish a set of
interrelated explanations of its determination, made by Steiner and Meier, to reduce
the "packaging" hours of the two ladies and assign them to the rack scrubbing and
other cleaning work. The main features of these explanations are as follows: that a
decline in sales and production of "packaged" products made it necessary to curtail
in some fashion the total hours worked in the packaged-products operations; that
the method Respondent determined upon to solve the excess packaging-hours prob-
lem was to reduce on the basis of departmental seniority, the packaging hours of
Nack and Thimmig because they were the junior of the five employees so engaged;
that Respondent sought to make up for this reduction in the packaging work of
Nack and Thimmig by assigning them rack scrubbing on December 7 and with the
18 I am aware that Nack had at some period occasionally cleaned up the ladies' lunch-
room but I cannot tell for certain on the record whether or not this work involved the
use of cleaning compounds. Moreover, this particular cleaning work had for some
months been performed by kitchen girls and the hours involved appear to have been rather
insignificant. For all these reasons, I ignore this work in dealing with the issues herein
99 It is well-settled that inferences of discriminatory intent arising from the General
Counsel's case are strengthened if the employer's explanations for his actions are un-
persuasive. See N.L.R.B. v. Dent, et at., d/b/a Dant & Russell, Ltd., 207 F. 2d 165, 167
(C.A 9) ; N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F 2d 438 (C A. 1) ; N.L R.B. v.
Griggs Equipment, Inc, 307 F. 2d 275, 278 (C.A. 5).
SHEBOYGAN SAUSAGE COMPANY, INC. 1507
intention , when that work was completed in a day or so, of giving them total clean-
ing work; that, being aware that Nack and Thimmig had testified at the November
hearing, Steiner and Meier called in their counsel and were advised that while there
was always the possibility of further charges Respondent was entitled to make work
adjustments called for by valid business reasons, but that in the circumstances
Respondent would be well advised to "document" any conversations by which
Respondent communicated its decisions to the two ladies; that rack scrubbing is not
inherently onerous work for them; and that Respondent did not contemplate giving
either of them other noncleaning work of the sort either had previously performed
because, as I understand Respondent's pertinent explanations, (1) of their past com-
plaints concerning one type of work-wiping, tagging, and banding bulk sausage on
the first floor-which both had done on Saturday morning in a somewhat remote
period, and (2) in the case of Nack, she had performed unsatisfactorily and been
taken off other assignments she, but not Thimmig, had been given up to points of
time considerably antedating the events of this case.
Respondent's counsel , Petajan, took the stand and gave testimony confirming, as
I find, that he was consulted about Respondent's proposed actions and advised
Respondent as previously indicated. In considering Respondent's further explana-
tions for its actions and the pertinent evidence, I deal first with its contention that
reducing the work hours Nack and Thimmig spent in packaging was necessitated by
a reduction in sales of its packaged products. Packaged products consist of small
quantities , uniform in weight, of weiners, bologna, liverwurst, and other items destined
for sale in self-service stores. These products are vacuum packed, by means of a
Cryovac machine, in small bags or containers of uniform weights4°
Respondent introduced in evidence compilations (Respondent's Exhibits Nos. 3,
4, and 5-A and 5-B) of the total production of packaged items during the 1964
year and the first 2 months of 1965. However, I find these compilations of little
utility in determining whether there was an unusually sharp decline in packaged pro-
duction in the fall months of 1964 since the record contains no figures for the com-
parable fall months of 1963 or prior years 41 It is true, of course, that the compilations
show a curve gradually ascending from about February 1964 to summer months'
peaks, and then gradually descending from those highs to a February 1965 low
again , but the record fully establishes that this is the standard curve followed by
demand for and production of Respondent' s sausage products year in and year out.42
So far as comparable data is present, the compilations show only a noticeable but not
marked decline as between January 1964 and January 1965, and a comparison
between those 2 months can scarcely be considered a reliable indication for other
and longer periods.
Counsel for Respondent also argues that the decline in packaged products produc-
tion from the 27,000- to 28,000-pound levels of June and July to the 17,200-pound
level of December shows that, there being, according to counsel, a fully staffed
packaging department "at both periods," "some changes" were required. That is,
counsel says that if the five packaging employees could produce about 28,000 pounds
in July, no such number of employees was needed to handle the much smaller pound-
ages of the last months of 1964. There are factual flaws in counsel's premise but
assuming, as counsel does, their nonexistence, his argument proves nothing since,
although the packaging production in the first quarter of 1964 was actually less
40 Packaged products represent only a small fraction of Respondent's total sausage
production, amounting to about 11 to 12 percent in 1964. Respondent's nonpackaged
products, sometimes referred to as "bulk" sausage, are prepared for shipment and packed
in boxes at a different location on the first floor of Respondent's plant in what, on its
December 4 roster, it denominates the shipping department.
41 Meier, who prepared the compilations, testified that Respondent does not preserve
permanent records of the amount of packaged products produced (as distinguished from
total production of all items) and that he extracted the figures contained in the com-
pilations from sales invoices. It is not clear from his testimony that such secondary
sources were not available for earlier period but, on the other hand, counsel for the Gen-
eral Counsel did not pin this point down. In the circumstances, there is no warrant for
any inference that Respondent had but kept out of the record comparable data concern-
ing packaged products production in earlier periods.
42 Ample and uniform testimony, and documentary evidence (General Counsel's Exhibit
No. 14), establish that summer constitutes the period of peak demand and production,
and the January-March the low one, with the lows of the latter period enhanced by the
Lenten season. Late spring and fall, as the gradually increasing and gradually decreasing
periods, might be regarded as the median ones.
217-919-66-vol.' 156-96
1508 DECISIONS Olf NATIONAL LABOR RELATIONS BOARD
than in the last quarter, Respondent made no reduction of hours of any of the five
employees at the earlier time. Similarly , Respondent took no such earlier action in
prior years, during which these same five employees were the only ones regulary
engaged in packaging, and when, so tar as the record shows, its packaging production
was equivalent to and followed the same curve as in 1964.
But counsel's premise-that the five employees were exclusively engaged in pack-
aging in 1964-is so fallacious in fact as to give me pause In implying that the five
employees concerned devoted themselves entirely to packaging work, counsel no
doubt has in mind the hours worked by these employees in 1964 as shown (by
quarters) on Respondent's Exhibit No. 3, which on that exhibit are referred to as
packaging hours and which in his initial testimony Meier stated were the hours spent
to produce the packaged products poundages also listed on that exhibit. But on
cross-examination Meier conceded, somewhat belatedly in my judgment, that the
hourly totals shown did not represent packaging hours but the total hours the five
had put in, including their nonpackaging assignments. The record shows that these
were considerable. Thus up until at least December 1964, Crew Leader Senkbeil
spent much , and at times most, of his time on nonpackaging assignments ; Pngge like-
wise had other assignments , such as the downstairs packaging,43 and so did Nack up
until May 1964. To make matters worse, on occasions (I presume mainly in the
busy season) nonpackaging employees were assigned to the second-floor packaging
operations.
Respondent keeps no records of the hours its packaging or other employees spent
on each of their multiple assignments, so that, speaking of the packaging work, there
is no way to determine how much nonpackaging hours the five packaging employees
had in 1964, or how many packaging hours were worked by nonpacking employees,
or the corresponding patterns of hours' dispersal over 1964 or any part of it. All
that is known is, as I find, that Respondent's purported figures of packaging hours are
inaccurate and unreliable for the reasons stated and cannot be interpreted as indica-
tive of a fully or over staffed packaging position at any time. In summary, looking
at the posture of the various assignments of the five and of the packaged product
production, in the period antedating December 4 to which Respondent asserts it was
addressing itself, the evidence does not support Respondent's contention that reduc-
ing Nack and Thimmig to 20 hours per week of packaging work was a necessity.
I turn now to Respondent 's contention that it had a policy of departmental sen-
iority and that it employed this basis in selecting Nack and Thimmig for work
changes.
Steiner and Meier testified that they were first inclined to lay off one or two of the
packaging employees but that after consulting their seniority list they discovered
that Nack and Thimmig were the two of lowest seniority. Realizing that these two
had testified at the November hearing, they reconsidered, consulted counsel, and
either before, during, or after consulting their attorneys (the record is not clear
which), abandoned the layoff idea in favor of the plan of reducing their packaging
hours while giving them supplemental cleaning work.
While Steiner testified that a policy of departmental seniority had long been in
effect in the plant and that the Company had' for many years maintained depart-
mental seniority lists in its office for its "own" purposes, I am constrained on all
the evidence, and particularly that of Steiner himself, to conclude that no policy
of departmental seniority worthy of the name ever prevailed in Respondent' s plant.
On the contrary, in most of Steiner's allusions to seniority, it is apparent that he was
referring to the respective employees' total period of service with Respondent. Thus,
in attempting early in his testimony to explain why such a list had never previously
been publicized to the employees, Steiner said there was no need to inform them
how long they had worked "there," by which I infer he meant to refer to their total
length of service for Respondent. It further seems clear that it was total service he
had in mind when he later said that "seniority" was used to compute the length of
vacations to which employees were entitled, since employees either received 1, 2,
or 3 weeks' vacation annually, depending on the length of their total service with
Respondent. And since he coupled the amounts of the Christmas cash bonuses
formerly paid to employees, along with vacations, as governed by an identical
seniority factor, it appears that length of service, not departmental seniority, had
been the governing factor regarding these cash bonuses. Further, on the document
Respondent first offered in evidence as its departmental seniority list (Respondent's
Exhibit No. 1(a) ), the date given after each employees' name is not the date he
began service in the corresponding "department" but the date of his initial employ-
ment by Respondent; and various of these employees had in earlier stages of their
111 do not refer to Prigge's truckdriving to Milwaukee, which he did regularly and
which, therefore , involved uniform hours.
SHEBOYGAN SAUSAGE COMPANY, INC. 1509
employment served in other "departments" than the ones to which, presumably due to
the different jobs they were performing on December 4, 1964, they were assigned by
the departmental headings Respondent posted that day.44 Furthermore, Steiner
thought it likely that plant seniority was used by Meier to resolve conflicts between
the vacation periods requested by employees in the same "department," while indicat-
ing that this was a matter handled by Meier without particular knowledge on his,
Stemer's, part. And Steiner gave no concrete illustration of any actual situation in
which departmental seniority had prevailed or would prevail over plant seniority in
the event of a collision between the two4°
The foregoing evidence and circumstances, coupled with the absence of any prior
formal announcement and articulation of a departmental seniority policy, go far to
show that Respondent did not pursue such a policy in practice; rather, in the main
respects touched upon in this record, it resorted to total length of service. But the
fairest interpretation of the record is that, save perhaps for the length of paid vaca-
tions, Respondent had no officially definitive seniority rolicy of any kind, in the
sense of a rule, norm, or standard distinctly defined anti articulated and regularly
utilized, as true seniority rules or standards are, to resolve questions of employee
status and rights such as those relevant to promotions, transfers, layoffs, and the like.
The absence of any such body of formal and determinative rules is wholly under-
standable given the size of Respondent's staff and the nature and mode of its
operations and employee work assignments. Three of the eight departments enumer-
ated on Respondent's December 4 roster consist only of one employee each, a fourth
of two employees, and a fifth and sixth of but three employees Moreover, despite
Respondent's December 4 classification of its employees by departments, various of
its employees had multiple job assignments, and thus worked in one or another
department as two main considerations dictated: (1) completing all orders to be
filled each day, bearing in mind that Respondent's meat products are, in the main,
akin to "fresh" foods designed for more or less immediate consumption; and (2)
Respondent's declared purpose of providing all employees with adequate working
time each week, which in practice meant about 40 houis as the minimum standard,
and more when practicable. While the record does not show in detail how these,
and perhaps other, considerations operated in respect to all of Respondent's employ-
ees, it exhibits ample examples of their effect with respect to various workers. Thus,
Nack had for a prolonged period regularly performed various tasks simultaneously
with her second-floor packaging, such as tying casings (casings department), assisting
with the downstairs packing (shipping department), and operating the machine which
printed Respondent's product labels, 46 kitchen men were on occasions put to grind-
ing and chopping work (embraced in other departments); Adler of the shipping
department to some extent ran the Cryovac machine and tied casings, operations not
within the shipping department, Senkbeil of the second floor packaging department
also worked extensively in the downstairs shipping room; and Hanson, in addition
to her casings work on the second floor, had occasionally helped out in the first
floor shipping department. And admittedly, Respondent kept no records showing
time put in by departments.
Respondent's claim with respect to departmental seniority also require considera-
tion of its explanations as to why it posted the departmental seniority list on
December 4, the day it announced to Nack and Thimmig that, on the basis so
announced, their hours and work assignments were to be changed. According to
Steiner, there was no connection between these two events. On the contrary, Steiner
testified, he had the list posted (and intended also to post some working regulations)
because of some request or complaint made in this regard by an official of the Union
on the day of the election-held 6 months previously. What was the precise tenor
or objective of the request or protest made by the union official is not clear from
44 Thimmig, for example, had "tied" casings for about the first half year of her em-
ployment, and then had "pulled" casings for the next 2 years, jobs which, according to
the departmental categories published by Respondent on December 4, would have placed
her in the casings department. Other examples of employees who previously held jobs
assignable to other "departments" than those to which their current jobs assigned them,
but whose plant seniority is given on this list, are Nack, Anton Kaminski, and ex-employee
Billy Williams.
4e Steiner spoke of using a departmental seniority list so to prefer "older" employees
to newer ones in the event of a layoff in a "department" but layoffs were rare in Re-
spondent ' s experience and no instance was given where there was any necessity to choose
between one type of seniority or the other.
" It is not clear in what "department " Respondent classified , if at all, the labeling
machine operation.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steiner's testimony , but it is a reasonable inference that what the union official had
in mind was somehow related to the conduct of the election that day. However that
may be , nothing in Steiner's account rationally explains why he selected December 4,
the very day he had also chosen to take adverse action against the two employees on
the basis of departmental seniority , to respond to a criticism or demand made some
6 months before by a union official. The only understandable explanation of this
remarkable coincidence is that the two steps were connected , i e., that the list was
posted to publicize the basis which Respondent had already determined to utilize a
few hours later in taking its adverse action against the two ladies, and I so find.
Having found that this was the true reason for posting the list, the question arises
as to what inferences to draw from Steiner's dissimulation . Of course , were there
other evidence adequately establishing the existence of a policy of departmental
seniority , Steiner's explanation as to why the list was posted on December 4 might,
not bearing directly upon the question of the policy 's existence , be passed over as a
foolish but not necessarily damning misstatement . But there is no such other inde-
pendent evidence ; rather, the evidence is overwhelmingly to the contrary. In the
circumstances , I find that Steiner posted the list in an effort to construct a basis not
theretofore officially in effect, i.e., departmental seniority , for his selection of Nack
and Thimmig as the employees to bear the burden of a work assignment and work-
hours adjustment . Whether, in the light of the entire record, this artifice warrants
the further inference of discriminatory motivation I reserve for consideration until
after dealing with other aspects of Respondent 's conduct and explanations.
One of these is the question whether the initial rack scrubbing assignment was so,
inherently onerous, at least so far as these two ladies are concerned , as to warrant
an inference of intent to punish . I find, as the evidence shows, that during the many
years when "dirty " racks were hand scrubbed ,47 there were , at most, but two instances
(many years earlier ) when rack scrubbing had been done by female employees.48
Otherwise , the racks were consistently scrubbed by men, a practice tending strongly
to suggest general recognition of this as man's work , as its inherent characteristics
tend to confirm.
The racks are rectangular cage-like devices about 3 feet wide, 4 feet deep, and
4 feet high having tiers to which the sausage to be smoked is affixed . The racks are
suspended from an overhead trolley line , with their top tiers some 7 feet above
ground level . They are not firmly suspended but hung as though on a swivel, so that
they must be held by one hand to prevent their movement while being cleaned. They
acquire a coating (derived, as I understand the evidence , primarily from grease
combined with creosote and ashes emanating from the sawdust form of wood burned
to create the smoke ), which, while perhaps not forming a hard crust , is a deposit
which has such adhering qualities that it can be removed only by considerable
brushing effort. Those who scrub them fill a pail of cleaning solution from a supply
tub on the floor and, carrying the pail of solution and a substantial size brush, mount
stepladders to reach the higher tiers . Then resting the pail on the corresponding
platform of the ladder , the worker holds the rack with one hand and brushes the
metal tiers with the other . Bearing in mind the need to keep a steady balance on the
ladder rungs and likewise to keep the pail platform steady, while at the same time
holding the rack from moving due to the force resulting from brushing with appre-
ciable effort , it takes no work of the imagination to perceive that this work was not
cut out for the female sex. Moreover, Nack and Thimmig would, for reasons peculiar
to each of them, have been somewhat unusually ill -adopted to the performance of
such work . Thimmig is 54 years of age, and Nack , while of lesser years ( her exact
age is not of record ), is distinctly fleshy, so much so as to persuade me at the hearing-
that she would for this reason lack the considerable physical dexterity and coordina-
44 Racks used to smoke some products , e g , weiners , did not get dirty and could be
cleaned by rinsing with water . Smoking other sausage produced dirty racks, which were
scrubbed by hand up until about 2 years antedating the hearing . At that time, hand
scrubbing was abandoned in favor of automatic cleaning by means of a Jordan "cooker "
In September 19G4 , however, the Jordan cooker became unavailable for rack cleaning due-
to a malfunctioning of some steam cooking equipment which the Jordan cooker was there-
upon used to replace for sausage cooking purposes . This situation continued to prevail
up to the hearing date, so that after September a large number of the dirty racks had
accumulated. None had been subjected to .scrubbing . until Nack and Thimmig were given-
these assignments in December.
48 One of these ladies , Miller, scrubbed for only -1 day. The evidence does not show-
whether the other lady , not identified by name, scrubbed on one or more occasions
SHEBOYGAN SAUSAGE COMPANY, INC. 1511
Lion which performance of such work would require.49 Indeed, while scrubbing the
first day, Thimmig lost her balance and fell from the ladder to the floor, and while
she attributed the fall to a defective ladder rung, I would think this was only a con-
tributing cause in view of the other nice balancing prerequisities of this work. I deal
later with the question whether this assignment was sufficiently onerous as to warrant,
by itself or in combination with other circumstances, an inference of discriminatory
motivation.
Finally, counsel for the General Counsel contends that at that time Respondent
made the December work adjustments affecting Nack and Thimmig there was "pro-
duction and/or cleaning" work they could have done, and that Respondent's failure
to make such work available to them warrants an inference of intent to discriminate
against them. In advancing this argument, counsel particularly stresses Respondent's
consistent practice over the years and declared purpose, reiterated at the hearing in
this case, of providing its employees with steady employment (with 40 hours per
week its general minimum goal even in the slack production seasons),50 and in this
connection points to the fact that after December 5 Senkbeil and Prigge in the
packaging group, and the great majority of all other employees, received considerable
overtime hours (in excess of 40).
As to Senkbeil and Prigge, Respondent asserts the existence of a special commit-
ment to insure them about 50 hours of work per week. I do not question Respondent's
testimony in this regard,51 but I am satisfied, as the payroll records and the evidence
as a whole shows, that something approaching and frequently exceeding the 50-hour
week was common for the bulk of Respondent's employees both before and after
this commitment. Thus the commitment (described as a "more" or "less" one by
Meier) was only generally expressive of Respondent's consistent practice of provid-
ing most employees most of the time with considerable overtime. Moreover, Senkbeil
and Prigge had nonpackaging assignments. In the circumstances, the commitment
to them does not lessen whatever force Respondent's general overtime practice might
otherwise have as indicative of Respondent's otherwise evident purpose of insuring
its employees what may be termed full employment.
But it does not follow merely from this general aim that Respondent could or was
obliged to place Nack and Thimmig anywhere in the plant, for, as I indicate later,
this aim was somewhat circumscribed in practice. The inquiry must be more limited,
that is whether there was available for Nack and Thimmig packaging or nonpackag-
ing work of the sort they had previously performed or other work which it was
Respondent's practice to make available to those needing fillup time.
As to the packaging work, the evidence, mamly the testimony of Nack and Adler
(the latter was Respondent's witness), indicates and I find that, prior to the
December 4 reduction in Nack's and Thimmig's packaging hours, Prigge had been
the principal operator of the "Cryovac" packaging machine, with Nack spelling him
when he was absent two mornings a week making his regular sausage deliveries to
Milwaukee; but that, after December 4 Crew Leader Senkbeil (who previously had
been spending much time on operations other than packaging) took over the Cryovac
operation to the exclusion of both Prigge and Nack, save for a week's period in
January 1965 when Adler, of the downstairs shipping group, filled in for Senkbeil
while the latter was on vacation. Similarly, after December 4, Adler came upstairs
from the downstairs shipping department to fill orders for the city-run "packaging"
work previously done by Thimmig on a regular basis. Respondent made no effort
to explain Adler's substitution for Thimmig, no doubt because it could not justify
49 Respondent witness Phippen, who scrubbed racks succeeding Nack and Thimmig,
testified that the work was not difficult. Apart from my feeling during her testimony
that she was portraying the work as less of a chore than it is, Phippen was a younger
lady, aged 31, and a person of striking physique, 6 feet tall, lithe, graceful, and exuding
energy in the hearing room.
Moreover, even were Phippen less singularly equipped for such relatively difficult work,
I can attach little significance to her scrubbing assignment as supporting Respondent's
contention that this was not onerous work for females, since Respondent assigned her
to this task just a short time before the hearing.
50 As noted in the previous case, in its June 8 preelection letter Respondent pointed to
the 45 hours of "steady work" most of its employees received.
m Prior to April 1963, Respondent had paid Senkbeil and Prigge on a weekly salary
basis, along with other men of lengthy service. At the Instance of Federal wage-hour
authorities, Respondent changed Senkbeil and Prigge (and the others) to an hourly
rate basis. Respondent's testimony is that in making this charge it undertook to provide
Senkbell and Prigge with about 50 hours of work per week which, at their newly estab-
lished hourly rates, would yield them total- weekly earnings equivalent to their prior
weekly salaries
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this substitution in the face of contrary work-assignment policies it espoused at the
hearing 52 As to Nack, Steiner testified that she did not "cut the mustard" on the
Cryovac machine and implied that, having determined in the fall of 1964 that the
job required an operator who could be depended upon-"a man," Adler was used
rather than Nack during Senkbeil's vacation. But Adler's relief of Senkbeil took
place in January 1965, after December 4, and I have found that until December 4
Nack continued to operate the machine with Prigge despite the asserted contrary
decision, of which no notice was ever given to her. All that happened was that when
she went, as usual, to operate the machine one December morning when Prigge was
on his delivery assignment, she found Senkbeil on the machine. In the circumstances,
and with no evidence whatever from Respondent indicating how Nack, who had
operated the machine off and on for years, was proving deficient of late, I do not
credit Steiner's testimony that Nack was incompetent for this work. Since it is a
fair inference from Steiners testimony that but for her alleged incompetence Nack
would have otherwise been continued on this assignment to the extent that she had
performed it prior to December 4, and since Senkbeil did not take this other work
until after Respondent had decided to reduce Nack's hours,53 I conclude that the
several hours per week Nack had devoted to this work remained available for her
and that one must look elsewhere than to Respondent's explanation for the reason
she was deprived of it. In view of Respondent's total failure to explain why it
replaced Thimmig with Adler on preparing the city orders, I reach the same conclusion
in regard to her deprivation of packaging hours, which in the light of Thimmig's
description of her various packaging operations, must have been noticeable in num-
ber per week although impossible to state with any accuracy on this record.
Counsel for the General Counsel also contends that there was nonpackaging pro-
duction or cleaning work available and to which Nack and Thimmig could have been
assigned As to cleaning work other than rack scrubbing, I have accepted Respond-
ent's evidence of its intention to give the ladies such work and 'its explanations as to
why, after their skin difficulties arose, it did not. As to this work, therefore, the only
question is whether in assigning the ladies initially to the rack scrubbing, rather than
other cleaning, Respondent discriminated against them This is but another way of
presenting the question whether the rack-scrubbing assignment was discriminatory,
with which I deal later.
As to the availability of other production work than packaging, counsel for the
General Counsel adduced evidence concerning all types of work Nack and Thimmig
had performed at any time in their entire service with Respondent. But even though
Respondent had what I have called for convenience a sort of full-employment policy,
the record does not show that in practice it implemented this policy by shifting
employees around its plant willy-nilly. So, obviously what was more pertinent were
the nonpackaging production assignments of the two ladies in some period reasonably
proximate to December 1964 Put in this focus through cross-examination, the
evidence shows that the only such assignment Thimmig had had outside her packaging
work 54 was in "wiping, banding, and tagging" nonpackaged sausage in the first floor
"shipping" area, on some Saturday mornings of an unknown number in some unde-
fined period antedating December 1963. About that time, Respondent discontinued
assigning Thimmig (and Nack, who was associated with her) this extra work. In
the case of Nack, she had lost all her nonpackaging assignments (save one of occa-
sionally stamping cards to be attached to sausage products when shipped) long before
December 1964. Some of these had disappeared for reasons not challenged or sub-
ject to challenge,55 leaving two others as her apparent principal previous nonpackag-
ing assignments , i.e., the Saturday morning assistance with the wiping , banding, and
67 By way of explaining Respondent ' s alleged departmental seniority policies at the
hearing and their effect on Nack and Thimmig, Meier stated that Respondent would not
assign an employee from a "slow " department to another if the result were to reduce the
regular work time of workers in the second department, even if the "slow" employee had
the higher plant seniority.
r3 Respondent made no effort to explain why there was less need for Senkbell in his
nonpackaging work after December 4 than there had been before.
s4 Thimmig, along with others of packaging group, had participated in the end-of-week
cleanup work in the packaging area, but this work, as with much of the cleaning done by
other employees in their immediate work area, appears to have been an incident of the
underlying assignment , in this instance packaging.
"These include work of some uncertain period and duration as a lunchhour relief
operator of the casing tying machine ; and not many hours spent in putting up of Christ-
mas gift packaging of sausage in 1962 and 1963 ( work which was greatly reduced in 1964
and which cannot be considered an assignment necessarily destined for her)
SHEBOYGAN SAUSAGE COMPANY, INC. 1513'
tagging of sausage in the first floor shipping area, and (2) her operation of the label-
ling machine, which in some uncertam degree she had shared with employee Adler,
crew leader of the first-floor packing and shipping group.
Respondent's evidence is that Nack and Thimmig were taken off the Saturday
mornings' assignment at the end of 1963, because their work or their attitude toward
it was unsatisfactory, and that Nack was taken off labeling because she produced too
many misprmts.5° Counsel for the General Counsel makes the point that Respond-
ent did not infoi m either Nack or Thimmig that their work on these assignments
was unsatisfactory and otherwise sought at the hearing to challenge Respondent's
justification for these assignment withdrawals. But the challenge appears to me to
be a fruitless one. While Respondent's witnesses appear to have given somewhat
varying reasons as to why Nack and Thimmig were taken off the Saturday morning
wiping, banding, and tagging sausage work in the first-floor shipping room,7 the
question whether they are clearly in conflict does not lend itself to ready disposition
on this record. What is more determinative is that this was extra work required of
the ladies on Saturdays in 1963, and the record does not show that there was any
such equivalent need in December 1964, on Saturdays or otherwise. As to Nack's
loss of the labeling work, I cannot say on the record before me that Respondent's
evidence that her work was unsatisfactory is effectively overcome by the lack of
some such explanation to her She made no complaint over the loss of this work,
which took place no later than May 1964, and I see no basis in any case for a conclu-
sion on my part that she should have been reassigned this work in December, as
against Alder, who had been regularly performing it in the intervening 6 months. For
the foregoing reasons I cannot conclude that these past assignments represented work
readily available for Nack and Thimmig in December 1964.
There are related reasons why no material significance can be attached to the fact
that Respondent did not assign to Nack and Thimmig production work other than
the types they previously had performed in a period proximate to December 14.
While there was fluidity or multiplicity of production work assignments in the case
of various employees, this practice appears to have been carried out, when it was, in a
way so as not to reduce whatever was the normal range of hours (including overtime)
of any employees regularly assigned to the shared work (e.g., the assistance Nack and
Thimmig gave to the shipping employees on Saturday mornings). In short, the best
impression I glean from this somewhat elusive record is that Respondent, in the
main, resorted to this practice (a) when employees whose regular or principal assign-
ment was "slow" were put to or allowed to do other work where a need existed to
complete scheduled production; or (b) when the extra assignments given for fill-in
purposes, as seems to have been particularly true of some cleaning work, likewise did
not impinge on other employees' assignments or hours And these characteristics
(and limitations) of Respondent's practice are borne out by the fact that while most
of the other employees worked considerable overtime during 1964, Nack and Thim-
mig (and Kosup) of the packaging group were at the lower 40-hour level from Jan-
uary to October 1964. For these reasons, there is no basis to challenge Respondent's
evidence that it did not utilize this practice as a working-sharing device to this point
of prejudicing the normal workhours (including normal overtime) of other employ-
ees and that this would have happened if it had resorted to any such work-sharing
device in December 1964. Thus, I am unable to conclude that an inference of dis-
crimination can be drawn from or is supported by Respondent's failure to give Nack
and Thimmig nonpackaging production assignments they had not previously per-
formed when it reduced their packaging hours.
CONCLUDING FINDINGS
With this review of the record, I come to the task of making my ultimate findings
and conclusions of fact. As a preliminary to them, I should say, even though it be
obvious, that any case involving a charge that an employee has been penalized for
giving testimony in proceedings under the Act calls for the most careful considera-
tion. Attainment of the national policies expressed in the Act depends, pro tanto,
is Respondent's evidence is that Adler was Instructed in late 1963 not to let Nack do
further labeling Nack's testimony is that she continued to operate the machine on
occasions until about May 1. The two lines of testimony are not necessarily in conflict,
and I accept Nack' s testimony.
67 Adler, crew leader of this work, testified that he reported to Steiner and Meier that
the two ladies complained about this assignment on the ground that they were being
required to do the work of the first- floor group as well as their own on the second floor.
Meier, acknowledging that he acted on Adler's report, described it as one to the effect that
the ladies were laying down on the job.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the certainty employees entertain that they may give testimony in proceedings
under the Act without fear of any retaliatory action by their employer. If an
employee were constrained not to testify by such a fear, the resultant absence of what
must be assumed would be truthful evidence would deprive the proceeding of its
capacity to serve the ends of justice, just as would perjury or its subornation. But
this does not mean that there is any shift in the burden of proof, or change in the
amount of proof required, in such a case. The General Counsel must still prove his
case by no less than a preponderance of the evidence.
While the matter cannot be considered entirely free from doubt on this trouble-
some record, I conclude that Steiner reduced the packaging hours of Nack and
Thimmig and assigned them to the rack-scrubbing job because they gave testimony,
in effect adverse to Respondent, at the November hearing in the first complaint case.
As I have found in the first case, at his first meetings with the female and male
groups on April 30 after receipt of the Union's telegram, Steiner evidenced a rather
virulent antiunion attitude and threatened the employees with reprisals if they brought
the Union into the plant. And certainly the animosity he then manifested was
sufficiently broad and deeply rooted so as to bring within its purview anyone testify-
ing for the Union, so to speak, at the November hearing. For at that hearing, both
in its unfair labor practice and representation proceeding aspects, the fate of the
Union's drive and its ensuing claims to representative authority were still very much
at stake. It is true that after his first virulent declarations, Steiner moderated his
tone and, according to my findings, made no further threats. But as I read the
record he consulted counsel in the interim and this may well account for a shift in
tone and content more superficial than real so far as his true feelings are concerned.
Redemption is always possible, but on this record and my observations of Steiner I
am not persuaded that he had lost his long-entrenched antiunion convictions at the
time of the November hearing.
I likewise conclude that the rack-scrubbing assignment was an onerous one, at
least for ladies with such relative lack of adaptable capacities for such difficult work
as Nack and Thimmig, and that in the light of this fact and other circumstances the
assignment was punitive. No ladies had been put to this work, save for two instances,
in Respondent's history, and one such assignment apparently was of very brief dura-
tion (with no evidence as to the length of the other).58 In short, by its nature and
in Respondent's practice, this was men's work, and Respondent made no attempt to
show that men were not available to do it in December.
In this posture of things, I consider Steiner's disclaimer to Nack of any intent to
punish her, and Meier's statement to Thimmig that he thought he was being lenient
with her, as indicative of an intent to punish. To be lenient, as Meier professed,
means that punishment is in order for some dereliction, but in lesser degree than the
offense might have called for. Moreover, neither Steiner nor Meier sought at the
hearing to explain their respective remarks, and as I read the accounts of Nack and
Thimmig concerning the substance of their surrounding conversations with Steiner
and Meier, there was nothing in those exchanges which obviously or by fair inference
indicates that Steiner's and Meier's remarks were not volunteered. And the fact
that they would rather simultaneously, but in separate conversations, make dis-
-claimers of the same general tenor suggests the existence of some advance meeting
of the minds that such disavowals should be made of record. Humans do not gen-
erally volunteer disclaimers of bad motives not entertained by or imputed to them Fig
On the foregoing facts, and the relatively close time sequence between the Novem-
ber hearing and Respondent's actions, the General Counsel made out a case which,
standing alone, warrants a finding that Nack and Thimmig were punished for
testifying.
58 I do not accept as reliable evidence a report Nack was given by a floorlady, whose
authority to speak for Respondent was not established on this record, that one of these
years-earlier scrubbing assignments-the one to Miller-was made because "they [presuma-
bly someone in authority] were angry with her "
"I have borne in mind the fact that Nack and Thimmig must have made evident to
Steiner and Meier their dislike of the rack-scrubbing assignment, and the possibility that
one or the other went further by way of voicing a feeling of being victimized. But if
the latter did occur, it was up to Respondent to bring it out, which it did not. I have
also taken into account Respondent's evidence that it was fearful that because the ladies
had testified in November any action it took to their disadvantage would be challenged,
and the possibility that the disclaimers were made in good faith for this reason. But
Respondent 's witnesses did not explain their remarks on this ( or any other ) basis, and
since the question is which of two opposing inferences is the more justified , I conclude
that all pertinent circumstances point more persuasively to an intent to punish rather than
some other meaning.
SHEBOYGAN SAUSAGE COMPANY, IN C. 1515
It was thus incumbent on Respondent to come forward with proof satisfactory
explaining its actions on nondiscriminatory bases 60 In this regard, I find that
Respondent's explanations do not measure up. Respondent's evidence does not
support either its claim of an unusual decline in package production or in packaging
hours, or its claim to an effective policy of departmental seniority. And the reduc-
tion in packaging work available for Nack and Thimmig, was, at least in material
degree, only a consequence of the performance by Sankbeil and Adler, after Decem-
ber 4, of work which Nack and Thimmig had up to that time performed (the cryovac-
ing in the case of Nack, and putting up city orders in the case of Thimmig).
And Respondent's case is infected in various particulars by testimony of distinctly
dubious credibility. These include the claim that the posting of the seniority roster
had nothing to do with Respondent's actions against the two ladies, and the unper-
suasive reason Steiner gave for posting the roster on December 4, and Steiner's pro-
longed assertions, when he first took the stand, as an adverse witness, that there had
been rack scrubbing all along, a position from which he retreated only when he
later took the stand as Respondent's witness and after Kaminski, a knowledgeable
witness for Respondent, had contradicted Steiner's initial assertions. Similarly unim-
pressive are Steiner's and Meier's testimonial efforts to make out 1964 a rather poor
overall production year, whereas it was the third highest of the 6-year period put in
evidence, only a little less than 5 percent below 1962 (the year of peak production),
and about equal to the annual average over the 6-year period.61
In addition, there occurred at the hearing an incident which, on close examination,
appears to reflect further on the reliability of Meier, one of Respondent's two main
witnesses. While under examination as Respondent's witness, Meier was shown a
two-page document listing the employees by departments and showing the periods
during which they were to take their vacations in 1965, which he identified as such
and stated he had prepared from company records. Respondent's counsel then offered
the document in evidence. The names of the "departments" and the departmental
assignments of employees on this document (General Counsel's Exhibits Nos. 15(A)
and (B )), vary markedly from the departmental names and employees groupings
as given on Respondent's seniority roster posted on December 4 (Respondent's
Exhibit No. 1B). When this fact became evident from questions counsel for the
Union addressed to Meier, Respondent's counsel withdiew the document, which was
later offered and received as a General Counsel's exhibit. Although it was later
explained by Petajan, counsel for Respondent, that he had prepared this exhibit to
show vacation data obtained by telephone from Meier, it is also clear that the head-
ings under which the employees are classified on it were taken verbatim from an
exhibit concerning the May wage increases introduced in evidence in the first case
(General Counsel's Exhibit No. 5 in that case) which was prepared in collaboration
with Respondent shortly before the November hearing. It may be conceded that
the earlier wage increase exhibit had no special reference to departments, that it
was Petajan who inserted the specific word "department" in two places at the top
of the vacation list, and that he had not shown the document to Meiei prior to
Meier's taking the stand. However, when Meier identified the vacation list as one
he had prepared, he had time to examine it but neither denied that he had prepared
it or pointed out that the department terminology prominently set forth on the
schedule was in error. And when he later conceded on cross-examination that he
had earlier been in error in stating that he had prepared the document, he neverthe-
less twice stated at this juncture that the information Petajan had requested of him
over the telephone was the vacation periods of the employees and the departments
where they worked. Thus Meier's testimony does not overcome but tends to support
the inference arising from this document's wording that Respondent was using two
different sets of departmental nomenclature , and different departmental assignments
of the same employees, in the same general period.62 And at the least, the incident
00 See Croscill Curtain Company and Durham Drapery Company, 130 NLRB 1465, 1467-
1468, and Eastern Die Company, 142 NLRB 601, 602, involving employer explanations
somewhat similar to those of this case.
61 Steiner and Meier had given most of their pertinent testimony describing 1964 as a
year when total production was "down" before Respondent supplied its annual produc-
tion figures (General Counsel's Exhibit No. 14) providing the actual and rather contrary
data referred to in the text.
°2 A comparison of the two exhibits will reveal how great these differences are. And
Steiner himself spoke at the hearing of the packing department , a term used on the
earlier wage-increase document , to mean what is called the shipping department on the
-December 4 departmental roster. Similarly , Respondent's notice to Nack and Thimmig
of December 4 assigns them to the packing department rather than the packaging depart-
ment as stated on the December 4 roster.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows that Meier was lax while under oath and agreeable to providing what he
considered, from Respondent's counsel's questions, were the answers expected of
him.
Respondent's case is also weakened by the way its main witness strained to label
Nack and Thimmig as objectionable employees in respects not really pertinent to the
issues or the grounds of Respondent's main defenses to the charges. Thus, Steiner
accused Nack with having gotten away with her claim to compensation when she
suffered her initial skin infection some 8 years before, although his own later testi-
mony shows, as does other evidence, that the claim was justified and duly allowed
on proper proof. He also asserted, on the basis of mere "rumors," that Nack and
Thimmig were complaining types, and that they would have protested even if they
had been put to washing tile walls rather than rack scrubbing on December 7.63
These efforts to characterize Nack and Thimmig as objectionable employees weaken
Respondent's main explanations as to why the ladies were not given other production
work. For it these alleged characteristics rendered the ladies unsuitable or unsatis-
factory employees that might explain a decision to be rid of them but scarcely
explains why some types of work were available to them but not others.
On the basis of all the foregoing findings and reasoning, and on the record as a
whole, I find that Respondent reduced the packaging hours of Nack and Thimmig,
and assigned them to the onerous rack-scrubbing job, because they gave testimony
under the Act, in violation of Section 8(a)(4) and (1) of the Act. And since the
testimony of Nack and Thimmig was in support of the Union's cause and the
Union's underlying charge filed with the Board, Respondent's retaliatory action
obviously was calculated to discourage membership in the Union, on their part and
the part of other employees, and thus was in violation of Section 8(a)(3) of the
Act.64
V. THE REMEDY
The Recommended Order, as set forth below, contains cease-and-desist provisions
corresponding to the violations found, and in view of their gravity and other indica-
tions of Steiner's general propensity toward depriving Respondent's employees of
the rights guaranteed them by the Act, my Recommended Order contains a broad
injunctive provision coterminous with Section 8(a)(1) of the Act.
As to affirmative relief, my Recommended Order contains the customary require-
ments as to posting of notices and reports concerning compliance. In addition,
Respondent must be required to iestore Nack and Thimmig to the work assignments
and working hours they would have enjoyed but for Respondent's discrimination
against them, and to make them whole for any losses of pay they have suffered by
reason of that discrimination. Precisely what work assignments the ladies would
have enjoyed and what their hours (including overtime) would have been if left
undisturbed by Respondent's discrimination, and what they would be now or in the
future is uncertain, in view of the seasonal and other fluctuations in Respondent's
production levels, and the lack of any certain criteria by which Respondent, absent
discrimination, distributes work assignments and affords workhours in implementing
its avowed policy of providing all employees with as many workhours as possible.
As a result, these matters must be left for detailed development in the compliance
stage of the proceedings, with the Board reserving the power to make its order more
specific as developments in the compliance stage may make necessary. It would
appear, however, that, at the least, Nack and Thimmig are entitled to be restored to
all the assignments they had in the period immediately preceding December 7, 1964.
In determining what their hours and earnings would have been it may be, without
passing any final judgment on the matter, that the record of Kosup, also primarily a
packaging female employee, will prove a useful guide.65 Backpay due should be
83 In amplification of Meter's similar description of Nack and Thimmig as complaining
employees, Meier stated that they had complained to Steiner, Adler, and Senkbeil. Steiner
denied that any such complaints had been made to him and Senkbeil did not testify.
Adler testified that the two had complained to him in 1963 about the Saturday morning
assignments previously referred to, but for all the record shows the complaint he de-
scribed might have been justified, and differed from Meter's version of it This evidence,
considered with that of Nack and Thimmig, fails to make out Nack and Thimmig dis-
gruntled employees prone to complaining as Respondent sought to portray them.
04 See Walton Manufacturing Company, 125 NLRB 485, 487, and The Southern Bleachery
and Print Works decision of the Board there cited.
00 The hours and earnings of Kosup, Nack, and Thimmig followed a rather closely
similar pattern in 1964 and in prior years And in one of its job compilations Respond-
ent classified these three together as the "Packing (Female Packaging)" group. See Gen-
eral Counsel's Exhibit No. 15(b).
SHEBOYGAN SAUSAGE COMPANY, INC. 1517
computed in accordance with the formula set forth in F. W. Woolworth Company and
Isis Plumbing & Heating Co. (90 NLRB 289 and 138 NLRB 716, respectively).
Respondent should also be required to rescind and remove from its bulletin boards
the departmental seniority roster of December 4, 1964, since when that roster was
posted Respondent had no genuine departmental seniority policy and the posting
of the roster was utilized as a pretext for Respondent's discrimination against Nack
and Thimmig. This, of course, is not to say that Respondent is not entitled to
formulate and announce a seniority policy or roster evolved on nondiscriminatory
bases.
Finally, had the Union not filed its representation petition, or had that petition
been withdrawn prior to the election, leaving the Union making its stand on the
charges filed in the first complaint case, a bargaining direction (and a corresponding
cease-and-desist one) might well have been in order to remedy the 8 (a) (1) violations
even though the Union's bargaining demand was detective.6° For, as I have found,
the Union was the majority representative of Respondent's production employees on
April 30 and any loss of that majority would have to be attributed to Respondent's
threatening unfair labor practices committed on that day. And Respondent had
made abundantly clear its opposition to the union representation and collective-
bargaining rights of the employees. But the election proceeded as scheduled and
on the record before me I have found that those of the Union's objections which
refer to Respondent's conduct after the election petition was filed are without merit,
so that the election results must stand as a definitive determination of the employee's
wishes. Harsh as these results may appear-since the grave unfair labor practices
committed by Respondent on April 30 (4 days prior to the petition) undoubtedly
tended to coerce the employees to vote against the Union in the election-neverthe-
less an election may not be set aside save upon the basis of meritorious objections, and
only objections relating to employer conduct subsequent to the date of filing the
representation petition may be considered. In fixing the beginning point of that
limitation period the Board has drawn a line between what is remote and what is
proximate, and here as in other fields of the law lines have to be drawn somewhere.
Thus the governing principle is to be found, not in Bernel Foam Products Co., Inc.,
146 NLRB 1277, but in the Board's dicta in Irving Air Chute Company, Inc, Mara-
thon Division, 149 NLRB 627.
CONCLUSIONS OF LAW
1. By threatening employees with loss of hours, overtime, free lunches, and other
economic benefits in the respects found in Case No. 30-CA-30, and by discriminating
against employees Nack and Thimmig in the manner found in Case No. 30-CA-146,
Respondent has interfered with, restrained, and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act and engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
2 By discriminating against employees Nack and Thimmig because they gave
testimony under the Act Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(4) and (3) of the Act.
3. The aforesaid are unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any other unfair labor practices alleged in the
complaints herein.
5. The objections of the Union to the election are without merit and should
be overruled.
RECOMMENDED ORDER
Upon the foregoing facts and conclusions of law and the entire record in this
proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent, Sheboygan Sausage Company, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Meat and Allied Food Workers, Local Union
No. 248, Amalgamated Meat Cutters and Butcher Workmen of North America,
w See Flomatic Corporation , 147 NLRB 1304 , and the Western Aluminum decision of
the Board there cited . While on June 14, 1965, the court of appeals set aside the Board's
bargaining order in the Flomatic case , it did so on the ground that, in the court's
judgment, the employer ' s violations of Section 8(a) (1) were "borderline, unaggravated"
ones. The court recognized the propriety of such an order where , as here, there were
serious violations , such as discriminatory conduct or clear threats of retaliation . N.L.R B.
v. Flomatic Corp., 347 F. 2d 74 (C.A. 2).
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, or any other labor organization, by discrimination in regard to work
assignments or to tenure or any terms or conditions of employment, save as per-
mitted by the provisos to Section 8(a)(3) of the Act.
(b) Discriminating against any employee because he has given testimony under
the Act.
(c) Threatening employees with loss of working hours, overtime, free luncheon
sausage, any bonus, or with any other economic reprisal by reason of their member-
ship in, activities in behalf of, or support of, the above-named or any other labor
organization.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist the above-named
or any other labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Restore to Ardelle Nack and Mabel Thimmig the work assignments they
enjoyed prior to December 7, 1964, and offer to or provide them with such further
assignments and such levels of working hours (including overtime) as they would
receive or be offered in the absence of discrimination against them, without prejudice
to any of their rights and privileges, and make them whole for any loss of earnings
they have suffered as a result of the discrimination practiced against them in the
manner indicated in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount due as backpay.
(c) Rescind and withdraw from its bulletin boards the "Seniority Roster By
Departments" dated December 4, 1964.
(d) Post at its plant in Sheboygan, Wisconsin, copies of the attached notice
marked "Appendix." 67 Copies of said notice, to be furnished by the Regional
Director for Region 30 (Milwaukee, Wisconsin), shall, after being duly signed by
authorized representatives of the Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by said Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision , what steps the Respondent has taken to comply herewith.ss
67 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
68In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten our employees with loss of working hours, overtime,
free luncheon sausage, any bonus, or with any other detriment because of their
designation of, membership in, sympathy for, or activities in support of Meat
and Allied Food Workers, Local Union No. 248, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, or any other labor
organization.
WE WILL NOT reduce the working hours of any of our employees, assign them
to onerous work, or otherwise discriminate against them because they give
testimony at hearings in proceedings under the National Labor Relations Act.
SHEBOYGAN SAUSAGE COMPANY, IN C. 1519
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees m the exercise of their right to self-organization, to form, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement entered into in accord with Section
8(a)(3) of the Act.
WE WILL restore to Ardelle Nack and Mabel Thimmig the work assignments
they enjoyed prior to December 7, 1964; WE WILL offer to or provide Ardelle
Nack and Mabel Thimmig with such further work assignments and levels of
working hours (including overtime) as they would receive from us or we would
offer them in the absence of discrimination against them; and WE WILL make
them whole for any loss of earnings they have suffered as a result of the dis-
crimination against them beginning in December 1964.
WE have rescinded the "Seniority Roster by Departments," dated December 4,
1964, which we posted on the bulletin board that day.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or of any other labor organization, except
to the extent that such right may be affected by the provisos of Section 8(a)(3) of
the Act.
SHEBOYGAN SAUSAGE COMPANY, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
230, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Telephone
No. 272-8600, Extension 3860.
O