Stayer's Johnsonville Meats, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1969

174 N.L.R.B. 693 (N.L.R.B. 1969)

STAYER'S JOHNSONVILLE MEATS
Stayer 's Johnsonville Meats, Inc. and Meat & Allied
Food Workers, Local 248 , AFL-CIO, affiliated
with the Amalgamated Meat Cutters and Butcher
Workmen of North America . Cases 30-CA-834,
and 30-RC-877
February 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 13, 1968, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint and recommended
dismissal of these allegations. The Trial Examiner
also found merit in certain objections to the election
of June 27, 1968, and recommended that the
election be set aside and that the petition in Case
30-RC-877 be dismissed. Thereafter, the General
Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision and the Respondent filed
a brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases ,' and hereby adopts
the findings,2 conclusions,3 and recommendations' of
the Trial Examiner.
The Respondent' s request for oral argument is hereby denied, as the
record, including the exceptions and briefs, adequately presents the issues
and positions of the parties
'Many of the Respondent 's exceptions were directed to the Trial
Examiner's credibility resolutions It is the Board's established policy,
however, not to overrule a Trial Examiner 's resolutions as to credibility
unless the preponderance of all the relevant evidence convinces us that they
are incorrect . We find no such basis for disturbing the Trial Examiner's
credibility findings in this case Standard Dry Wall Products, Inc., 91
NLRB 544, enfd 188 F.2d 362 (C.A 3)
'In agreeing with the Trial Examiner that the Respondent's
announcement of the profit-sharing plan violated Section 8(a)(1) of the
Act, we do not rely upon the timing of the announcement , since employees
were already aware that a plan would be instituted . Rather , we find such
announcement coercive because of the manner and language thereof, as set
forth by the Trial Examiner in the text and fn 35 We find, further, that
the interrogation of employee Champeau , in light of the Respondent's
overall course of unlawful conduct, was not permissible questioning, was
violative of Section 8(a)(l), and tended to interfere with the employees'
free choice at the election Webb Tractor and Equipment Company, 167
ORDER
693
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Stayer's
Johnsonville Meats, Inc., Johnsonville, Wisconsin,
its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as modified herein:
1. Substitute the following for paragraph 1(a) of
the Recommended Order:
"(a) Putting into effect or promising economic
benefits to discourage employees from joining or
supporting Meat & Allied Food Workers, Local
248, AFL-CIO, affiliated with the Amalgamated
Meat Cutters and Butcher Workmen of North
America, or any other labor organization, except
that nothing herein contained should be construed as
requiring the Respondent to revoke any
profit-sharing plan, increases in wages or other
benefits it has heretofore granted."
2. Renumber paragraph 1(e) as 1(f) and add the
following as paragraph 1(e):
"(e) Unilaterally instituting any changes in wages,
rates of pay, or other terms and conditions of
employment of its employees in the above-described
appropriate unit without notice to, and an
opportunity for bargaining by, the Union, except
that nothing herein contained shall be construed as
requiring the Respondent to revoke any wage
increase it has heretofore granted."
3. Delete paragraph 2(d) of the Recommended
Order.
4. Substitute the attached notice' for Appendix B
of the Trial Examiner's Decision.
NLRB No. 46. We note that the interrogation was not merely an isolated
incident since there is a great likelihood that the coercive effects of such
interrogation will not be limited to employees directly involved
Intercontinental Manufacturing Company, Inc, 167 NLRB No 105.
We note that the Trial Examiner's Decision in apparent inadvertent
error states that Sprengel was hired on September 26, 1966, although it is
clear from the record that he was hired on September 26, 1967
We find merit in the General Counsel's exception to that portion of the
Trial Examiner's remedy providing that the Respondent, in order to
restore the status quo ante, discontinue the profit-sharing plan, any wage
increases, and other increases in benefits granted on May 20, 1968, or
thereafter. The Board does not customarily require a respondent to revoke
such increased benefits, although unlawfully granted. See, e.g.,
Architectural Fiberglass-Division of Architectural Pottery, 165 NLRB No
21 Accordingly, we do not adopt that portion of the recommended
remedy. In addition, we shall delete from the Remedy and Order sections
the requirement that the Respondent compensate its employees monetarily
for losses and expenses incurred as a result of the Respondent's unlawful
refusal to bargain. We deem it inappropriate in this case to depart from
our existing policy with respect to remedial orders in cases involving
violations of Section 8(a)(5) and, therefore, do not adopt the Trial
Examiner's Recommended Order in this respect. See Monroe Auto
Equipment Company, 164 NLRB No 144. fn 1.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
174 NLRB No. 94
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the petition in Case
30-RC-877 be, and it hereby is, dismissed , and all
proceedings held in connection therewith be, and
they hereby are, vacated.
APPENDIX B
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
The National Labor Relations Board has found that we
fired John Sprengel because he was for the Union and
that this violated the law.
WE WILL give John Sprengel back his job and
seniority and backpay which he lost because we fired
him.
WE WILL NOT fire any employees for the same
reason which the Trial Examiner found that we
discharged John Sprengel.
WE WILL NOT ask you about your union feelings or
your union activities.
WE WILL NOT promise to change or change economic
benefits to discourage you from joining or supporting
Meat & Allied Food Workers, Local 248, AFL-CIO
affiliated with the Amalgamated Meat Cutters and
Butcher Workmen of North America, or any other
labor organization.
WE WILL bargain collectively in good faith with
Meat & Allied Food Workers, Local 248, AFL-CIO,
affiliated with the Amalgamated Meat Cutters and
Butcher Workmen of North America, as the exclusive
bargaining representative of all our employees in the
bargaining unit described below with respect to rates of
pay, hours of employment, and other conditions of
employment, and if an understanding is reached WE
WILL embody such understanding in a signed contract.
The bargaining unit is:
All production and maintenance employees, including
truckdrivers employed at Stayer's Johnsonville
Meats, Inc., Johnsonville, Wisconsin, location, but
excluding all office clerical employees, salesmen,
guards and supervisors as defined in the Act.
WE WILL NOT institute any change in your wages,
rates of pay, or other terms and conditions of
employment without notice to, and an opportunity for
bargaining by, the Union.
WE WILL respect the rights of our employees to
self-organization, to form, join or assist any labor
organization, or to bargain collectively in respect to
terms or conditions of employment through said Union,
or any representative of their own choosing, or to
refrain from such activity, and WE WILL NOT interfere
with, restrain, or coerce our employees in the exercise
of these rights, except insofar as these rights could be
affected by any contract with a labor organization, if
validly made in accordance with the National Labor
Relations Act, as amended, whereby membership
therein is a condition of employment after the 30th day
following the date of such contract or the beginning of
such employment, whichever is later.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
Dated By
STAYER'S JOHNSONVILLE
MEATS, INC.
(Employer)
(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, 2nd Floor,
Commerce Building, 744 North 4th Street , Milwaukee,
Wisconsin 53203, Telephone 414-272-3861.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: Pursuant to a
petition duly filed by the Petitioner, Meat & Allied Food
Workers, Local 248, AFL-CIO, affiliated with the
Amalgamated Meat Cutters and Butcher Workmen of
North America, herein referred to as the Union, on May
20, 1968, and a stipulation for certification upon consent
election executed by the Union and Stayer's Johnsonville
Meats, Inc., the Employer and Respondent herein, and
approved by the Regional Director for Region 30, on June
10, 1968, an election by secret ballot was conducted in
Case 30-RC-877 under the direction and supervision of the
Regional Director on June 27, 1968, among certain
employees' of the Employer. Out of eight ballots, seven
were cast against the participating labor organization.
On July 2, 1968, the Petitioner filed timely objections
to conduct affecting the results of the election, a copy of
which was duly served on the Employer. Thereafter the
Acting Regional Director for the National Labor
Relations Board (herein called the Board), Region 30,
investigated the issues raised by the objections and on
August 1, 1968, entered his report on objections to
conduct affecting the results of the election and entered an
order directing hearing and order of consolidation Among
other things, the Acting Regional Director ordered that
Case 30-RC-877 be consolidated with Case 30-CA-834 for
the purpose of hearing before a Trial Examiner at the
time and place of the hearing in Case 30-CA-834
scheduled for August 21, 1968. The objections filed by the
Union were as follows:
1. The Employer, on May 20, 1968, promised benefits
to certain employees in order to discourage their
membership in the Union and to obstruct and interfere
with the employees' organizational activities
2. The Employer, on May 20, 1968, discharged
employee John Sprengel in order to discourage
membership in the Union and to thwart organizational
activities.
'The unit , which was agreed to pursuant to the terms of the stipulation
for certification upon consent election, consisted of all production and
maintenance employees , including truckdrivers employed at the Employer's
Johnsonville, Wisconsin , location, but excluding office clerical employees,
salesmen , guards and supervisors as defined in the Act
STAYER'S JOHNSONVILLE MEATS 695
3. The Employer, on June 21, 1968, directed a letter to
each of its employees promising additional benefits
including a profit-sharing plan in order to obstruct and
interfere with the employees' organizational activities.
4. The Employer, on June 19, 1968, and again on June
25, 1968, held a meeting with all its employees on the
company premises during working hours, at which times
he promised the employees additional benefits, including a
profit-sharing plan in order to obstruct and interfere with
the employees' organizational activities.
On July 31, 1968, pursuant to an original charge filed
by the Union on May 24, 1968, an amended charge filed
by the Union on July 2, 1968, and a second amended
charge filed by the Union on July 9, 1968, a complaint
and notice of hearing was issued in Case 30-CA-834 in
which the Stayer's Johnsonville Meats, Inc., was named as
the Respondent. It was alleged in the complaint that the
Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, herein called the Act. The
Respondent filed timely answer denying that it had
engaged in or was engaging in the unfair labor practices
alleged.
The cases came on to be heard on August 21, 22, and
23 at Sheboygan Falls, Wisconsin. Each party was
afforded a full opportunity to be heard, to call, examine
and cross-examine witnesses, to argue orally on the
record, to propose findings of fact and conclusions of law,
and to file briefs. All briefs have been reviewed and
considered by the Trial Examiner.
The General Counsel contends that the Respondent has
violated Section 8(a)(1) and (5) of the Act by failing to
recognize the Union as the collective-bargaining
representative of its production and maintenance
employees in that after the Union demanded recognition
and offered to prove its majority status the Respondent
demonstrated its lack of good-faith doubt of the Union's
majority status by engaging in certain unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
The General Counsel also contends that the Respondent
violated Section 8(a)(3) of the Act by its discharge of
John Sprengel on May 20, 1968. The alleged violations of
Section 8(a)(1) of the Act involve the illegal questioning of
employees,' the promising of certain benefits, the
threatening of certain reprisals, and the unilateral granting
of wage increases to employees on or about May 20, 1968,
and thereafter to dissuade employees from joining in, or
continuing, activities on behalf of the Union.
Upon the whole record and upon his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
L THE BUSINESS OF THE RESPONDENT
The Trial Examiner finds, as is admitted by the
Respondent, that at all times material herein Respondent
is and has been an employer, as defined in Section 2(2) of
the Act, engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Meat & Allied Food Workers, Local 248, AFL-CIO,
affiliated with the Amalgamated Meat Cutters and
Butcher Workmen of North America, is now and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: Stayer's Johnsonville Meats, Inc., was
incorporated on January 2, 1968. Prior to that time it had
operated as a family partnership. According to Ralph F.
Stayer, its president, it was incorporated for "business
reasons and the profit-sharing plan." Officers of the
corporation, in addition to Ralph F. Stayer, are Ralph C.
Stayer, vice president, the son of Ralph F. Stayer, and
Alice B. Stayer, secretary, wife of Ralph F. Stayer. The
stock is held jointly by Ralph F. Stayer and Alice B.
Stayer. Respondent is engaged in both wholesale and
retail selling at its Johnsonville establishment. One of its
principal products is bratwurst 3
Johnsonville is a community of 35 inhabitants. Other
than the Respondent's plant a tavern and a mill are
located in Johnsonville. The tavern, known as Lock's bar,
is a block and a half from the Respondent plant and is
patronized by the Respondent's employees.
The Respondent's plant occupies a small one-story
building about 120 by 50 feet. The office of the plant is in
the elder Stayer's home which is connected to the plant.
Both the father and son are present daily in the plant and
have day-to-day contact with other employees as they
perform work in various areas of the plant. The son
testified that he is learning the sausage business.
On May 20, 1968, the Respondent had in its
employment in the unit referred to above' seven employees
and two part-time employees, to wit: John Bersch, Joseph
Binder, John Cain, Ralph Champeau, James Gebler, Otto
Wilke, John Sprengel, Harold Boldt, and Hubert
Schneider. The latter two employees were part-time
employees. In addition to the nine employees named
above, Robert Van Pelt was employed by the Employer as
a supervisor. The Respondent admits that Van Pelt is a
supervisor within the meaning of the Act.5 All of the
foregoing employees except John Bersch and Hubert
Schneider signed unambiguous union authorization cards
on May 18, 1968. These cards were authenticated by a
signer or the testimony of a witness who observed the
signing of the card. There was no credible evidence
Respondent is a Wisconsin corporation and maintains a
plant and offices in Johnsonville, Wisconsin, and is
engaged in the business of processing and selling meat
products. During the past calendar year, a representative
period, the Employer purchased and received in interstate
commerce goods valued in excess of $50,000 from points
located outside the State of Wisconsin.
'An amendment was allowed as follows - "the conduct of Ralph C
Stayer and Ralph F . Stayer, on or about June 20, 1968, in questioning an
employee as to his union activity and sympathies "
'Ralph F . Stayer testified that Sheboygan , which is near Johnsonville,
Wisconsin , is the bratwurst capital of the world.
'The parties were in agreement that "all production and maintenance
employees , including truckdrivers employed at the Employer's
Johnsonville , Wisconsin location, but excluding office clerical employees,
salesmen, guards and supervisors as defined in the Act," constitute an
appropriate unit for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
'While the General Counsel and the Charging Party contended that Van
Pelt was not a supervisor within the meaning of the Act, the Trial
Examiner considered the question at the hearing , and was of the opinion
that sufficient evidence had been introduced to support a finding that Van
Pelt was a supervisor within the meaning of the Act, and thus upon motion
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduced which established that any of the cards were
invalid for the purpose of determining the majority status
of the Union. Thus the Trial Examiner finds that the
seven cards signed by the foregoing named employees are
valid for the purpose of establishing the majority status of
the Union, and that on May 18, 1968, and at all times
thereafter, the Union, by reason of valid union designation
cards in its possession , represented a majority of the
Employer's employees in the appropriate unit above
described.
Second: Union organizational effort commenced in
1966. Employees "wanted better insurance" and had not
been "getting time-and-a-half." The union organizational
effort "more or less went out the window" when
employees were given better insurance and "the auditor
went through the books and the law and said now they
had to pay time- and- a-half.. ." At that time also there
were rumors that there would be no building expansion if
the employees wanted a union.
Sometime after the union organizational effort had
petered out John Sprengel, an inexperienced employee,
was hired by the younger Stayer on September 26, 1966,
at which time Sprengel asked Stayer whether it would be
necessary for him to join the Union. Stayer mentioned
"there was not an organization in the plant, that it had
been attempted prior to this and that the men had rejected
it.,,
Sprengel learned from the employees that "they had
signed cards and they accepted a company offer which ...
gave them time-and-a-half over 40 . and some
additional insurance benefits" but that there was
dissatisfaction about adjustments made on insurance, and
that the employees were getting "inadequate returns for
things that were done." Sprengel suggested that they
make a comparison with some company that had been
organized and see how their "situation stood" and that "it
would be proper" for the employees " to organize a
union." Conversation of this character occurred in and
about the plant and sometimes at Lock's bar where the
employees played cards. Such conversations continued
from the time Sprengel first became employed down to
the time that the employees designated the Union as their
bargaining representative.
Sprengel had been a former steward in the Carpenters
Union, a fact which was known to the employees, Van
Pelt, and the Stayers. On May 11, 1968, Van Pelt and
Sprengel went to Lock's bar during which time they
discussed union matters. He told Van Pelt that he felt it
was "the time to get this ball moving, to get into contact
with the union representative, the business agent, and get
the men together and get a union organized." Sprengel
asked Van Pelt for the names of union representatives
since he believed that some lived in Fond du Lac, the
place of Van Pelt's residence. Van Pelt refused to give
him names but suggested that he contact Ralph
Champeau for such information in that Champeau had
signed a card in the last union organizational campaign.'
Sprengel called Champeau at his home and asked him for
the names of the union representatives. Champeau
of the Respondent struck from the complaint paragraphs 5(a), (c), (d), and
(e).
In his brief the General Counsel stated
Although General Counsel was reluctant at the hearing to acknowledge
that Van Pelt was a supervisor within the meaning of the Act without
first having an opportunity to examine the entire record , it now appears
after having made such an examination , that Van Pelt does possess
sufficient mdicia of supervisory authority within the meaning of Section
2(11) of the Act to be found a supervisor
responded that he had thrown his card away and did not
have such information. The next week Sprengel was
contacted by Victor Bobrowicz, business representative of
the Union. Champeau had told Bobrowicz that Sprengel
was interested in union organization. Sprengel supplied
Bobrowicz with the names and addresses of the
Respondent's other employees and mentioned to the other
employees that he had been contacted by the union
business agent and that they would hear from him. On the
evening of May 15, 1968, Bobrowicz called Sprengel and
said that he had been unable to contact some of the
employees and asked if Sprengel would arrange a meeting.
Sprengel said that he would mention it to the employees
and they would meet about 11 o'clock at Lock's bar on
May 18, 1968. Van Pelt was aware of this meeting and
who attended. On May 18, 1968, Bobrowicz appeared at
Lock's bar, at which time Sprengel, John Cain, James
Gebler, and Joseph Binder signed cards. After all had left
except Sprengel, Harold Boldt arrived and also signed a
card. Thereafter, Bobrowicz visited the home of Ralph
Champeau and Otto Wilke, each of whom signed union
designation cards. Bobrowicz then journeyed to the home
of Van Pelt in Fond du Lac. Among other things,
Bobrowicz told Van Pelt that "other men had signed the
cards." Van Pelt signed the card. Van Pelt testified that
he had signed the union card because he wanted to "find
out what the men were planning on doing and finding out
what was going on with the men." He said, "when
Bobrowicz came to me he had several other cards signed
and I thought I would sign a card. I knew, or didn't know
but assumed, that I wouldn't become a member of the
union, but just out of my own curiosity or nosiness, I
wanted to get involved."
Sprengel was discharged on Monday, May 20, 1968,
around 9:15 p.m. by a telephone communication from the
younger Stayer.
At 6:45 a.m. on May 20 Van Pelt had asked the
younger Stayer "if he had heard any scuttlebutt about
another union attempt to organize ." Stayer answered in
the negative. The younger Stayer testified that he
"casually mentioned over breakfast" to his father the
information which he had gained from Van Pelt.
According to the elder Stayer, matters in connection with
the discharge of Sprengel were also discussed. The
younger Stayer confirmed that he had talked with his
father about the discharge of Sprengel on Monday
morning but he could not remember whether he talked to
him about the discharge before or after he had talked to
Van Pelt. At this time, according to young Stayer, the
decision to fire Sprengel was "kind of up in the air."
About 8:30 a.m., May 20, the elder Stayer approached
employee Otto Wilke. Stayer asked him whether he was
satisfied with his working conditions and his job. Wilke
answered that he was "very disappointed" that he "had
found out other people who had worked there a shorter
`In making his findings of fact and conclusions of law the Trial
Examiner has considered the demeanor of the various witnesses who
appeared before him and has passed upon their credibility As to those
witnesses who testified in contradiction to the Trial Examiner's findings,
the Trial Examiner has discredited their testimony, either as having been in
conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief As to Van Pelt, the Trial
Examiner is convinced that in his testimony he did not reveal all the
information which was within his knowledge with respect to the
information which was sought to be elicited from him The Trial Examiner
was impressed that he was withholding information which well may have
revealed the full purpose of his activities as well as the substance of the
Respondent ' s pretextuous motives
STAYER'S JOHNSONVILLE MEATS 697
time than [he] had were earning more money than [he]
was." Stayer asked him how much he was earning. Wilke
answered "$2 60." Stayer "seemed surprised" and said
that Wilke was "going to get $2.80." It was the first time
that Stayer had ever talked to Wilke about wages or had
asked him whether he was dissatisfied with his job. Wilke
received the increase in the following paycheck which was
delivered on Tuesday, May 21.
Around 9 or 9:15 a.m., May 20 the elder Stayer
engaged Van Pelt in conversation. Stayer asked "what
[he] had heard or seen around the plant." Van Pelt
answered that he had "heard some talk." Stayer also
asked "who was involved"; Van Pelt answered that as far
as he knew "everybody was talking about it." Stayer
walked away "shaking his head . . . in a negative
attitude."'
At the time the elder Stayer asked Van Pelt "who was
involved," Van Pelt knew that "most of them
[Respondent's employees]" had (including Sprengel)
signed union cards.'
Around 10 a.m., May 20, the younger Stayer
"stopped" Van Pelt and according to Van Pelt said to
him that "He and his Dad had decided to let Jack
Sprengel go." Van Pelt asked him why and "he said it
just was that he wasn't doing his job right, they were
going to let him go." Stayer said, "They didn't need guys
like him around the plant, he was too slow and not
holding his end of the work up, or something to that
effect." Van Pelt commented that he "hated to see
experienced help go." Van Pelt further observed that he
"thought it would be a mistake to let him go."
Around 11:30 a m., May 20, the elder Stayer called
Van Pelt up to the front end of the store. Stayer held a
piece of paper with a list of classifications on it and wage
rates which he said that he had secured from Herziger's
Sausage Company in Sheboygan, a union employer.
Stayer commented that "he felt the employee's at
Johnsonville were getting very close to what Herziger's
were and some of them were making more." During the
conversation, according to Van Pelt, Stayer asked Van
Pelt who started the Union. Van Pelt said that he did not
know, to which Stayer replied "I think you do." This
conversation lasted about 10 or 15 minutes.
At 11:45 a.m., May 20, the elder Stayer called
employee James Gebler "up front" where he showed him
a list of the union scale from other Sheboygan County
sausage companies. Stayer commented that he thought he
was giving a fair wage in comparison. Gebbler responded
that he did not think the scale was right because, at one
time, he was thinking about leaving and going to
Herziger's Sausage Company in Sheboygan and at that
time the amount of money he was offered to start was
about the same as he was getting now at Johnsonville,
whereupon Stayer told him that he was going to give him
a 20-cent raise "because he wanted [him] to stay there and
he wanted to keep [him] happy out there, and he figured
that [he] was doing a good job " Prior to this
conversation, Gebler had never told Stayer that he had
'Van Pelt testified, "He asked me what I had heard or seen around the
plant and I said I had heard talk and he wanted to know who was involved
and I said as far as I knew everyone was."
'Van Pelt was asked whether he ever revealed the fact that he signed a
union card to either one of the Stayers His answer was, "I don't think so
Or did 19 Wait a minute I think I possibly did." On further questioning
Van Pelt testified that his card signing was revealed to the Stayers within 2
weeks after May 20. Van Pelt said that he had never told the Stayers that
he had not signed a union card Such testimony was contrary to that of the
younger Stayer.
intended quitting. Gebler added that he was thinking
about going to Kohler's where he probably would have
better benefits, to which Stayer responded that Gebler
"should know they're working on a profit-sharing plan"
and that "it would go into effect as of the first of the
year." Gebler received the increase in the next paycheck.
Shortly after "dinner" on May 20, 1968, the younger
Stayer conversed with Ralph Champeau. Champeau was
told that he was taking him off the chopper and that he
was giving Jim Gebler the job because he was "more
huskier" and that "he was going to give [him] a dime
raise because he did not want to lose [him] and that there
would be somebody in to talk about profit sharing."
Champeau said that it had been over 2 years since he had
mentioned that he might be leaving.
At 2:30 p.m., May 20, the younger Stayer approached
Van Pelt. Stayer informed Van Pelt that "Jack Sprengel
was not going to be let go." He said, "We have decided
not to let Jack Sprengel go." Van Pelt responded, "Well,
good, we've got a busy season coming up and we can use
all the help we can get."
At 9:15 p.m,, May 20, the younger Stayer telephoned
Sprengel and informed him of his discharge. After
apologizing to him for calling, Stayer said that it would
be unnecessary for him to come to work the following
day. He mentioned that he was not satisfied with
Sprengel's work and that "he had to make room for Bud
Boldt." Apologizing again he said, "We'll pay you for the
balance of the week. We would normally give you a
week's notice." Sprengel told him that he knew why he
was calling him. Stayer apologized again and said, "this is
the way it would have to be." He said that he had not had
time to talk to him about the discharge during the day.
When Sprengel asked him why he was dissatisfied with
him he said that "he had to make room for this old-time
employee, that it would be necessary to let [him] go and
he wouldn't be able to give [him] anymore money."
On the morning of May 21; 1968, Van Pelt was
informed by the younger Stayer that`Sprengel had been
discharged. Van Pelt said it cameras "a surprise to [him]
because the last [he] heard they were going to keep him."
On the afternoon of May 21, 1968, the elder Stayer,
without discussion on the subject,' informed Van Pelt that
"Jim Gebler would be going on the chopper and would
receive 15 cents or 20 cents an hour raise going on that
job and after he had learned it he would receive another
dime raise, after he learned how to do it." According to
Van Pelt, Red Champeau, who was on the chopper, was
given a dime raise "to kind of compensate him for taking
him off." During the same conversation Stayer said that
he "wasn't going to add to the plant on account of this
thing."'"
Approximately a week before the election employee
Champeau was approached by the two Stayers. The
younger Stayer asked "[w]hy [he] wanted the Union."
Champeau said he "ignored him"; he "didn't want to be
put on the spot." The elder Stayer, during the
conversation, referred "to a fight for his job down at
Milwaukee with a nigger for some reason. . . . a knife
fight."
Based upon the foregoing facts and an examination of
the record as a whole," the Trial Examiner finds that the
'According to Van Pelt the normal practice had been for Stayer to have
discussed wage raises with him before they were put into effect.
"According to Van Pelt , some time prior to May 21 "Gebler 's name had
casually come up at that time as the man to put on there because we
weren't too satisfied with the work of Ralph Champeau on the chopper "
"There is no doubt in the Trial Examiner's mind that on May 20, 1968,
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following misconduct detailed above interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act and was a violation of
Section 8(a)(1) of the Act.
1. Ralph F. Stayer's inquiry of employee Otto Wilke on
May 20, 1968, as to whether he was satisfied with his
working conditions.' 2
2. Ralph F. Stayer's grant of a wage increase to
employee Otto Wilke on May 20, 1968."
3. Ralph F. Stayer's grant of a wage increase to
employee Gebler on May 20, 1968, and his representation
to him in the context used that the profit-sharing plan
would "go into effect as of the first of the year.""
4. Ralph F. Stayer's grant of a wage increase to
employee Ralph Champeau on May 20, 1968.15
Third: In addition to the raises granted to employees
Wilke, Gebler, and Champeau on May 20, 1968, other
full-time employees, with the exception of Sprengel,
received raises reflected in their paychecks delivered to
them on May 21, 1968, for the pay period May 6, 1968,
through May 18, 1968. Except for the three employees
mentioned above the receipt of the checks was the first
knowledge these employees had of the raise.
The Respondent insists that it resolved upon the raises
around May 6, 1968, after a discussion among the three
Stayers. Van Pelt was not advised. In support of its
assertion the Respondent produced Joan O. Mehak, an
employee of Jung, Dippold and Cooper, who handled the
Respondent's payroll account. Mehak testified that
Monday, May 6, Mrs. Stayer informed her by telephone
that "there would be a general round of increases." No
specific employees were named. No record was made of
the call. At that time Mehak had not computed the
paychecks for a prior pay period which she did not
compute until Tuesday morning. Thus, according to
Mehak, she received a notification of pay increases which
were not to be included in the paychecks which she was to
prepare the next day. Specific wage increases were
received by Mehak- on Tuesday morning, May 21, on a
"sheet" together with the hours worked by each employee.
Mehak explained that she remembered Mrs. Stayer's call
"[b]ecause she just happened to call that day to tell me
about the raises. She just doesn't ordinarily do that. She
writes them on the sheet." The Trial Examiner is not
impressed with Mehak' s explanation and is of the opinion
that her memory was faulty on the subject. Her demeanor
gave the impression of a confused witness. Moreover,
Mrs. Stayer, who is alleged to have made the call, was not
called by the Respondent for corroboration. The Trial
the Respondent, including the Stayers, and Supervisor Van Pelt, knew the
extent of the Union ' s organizational efforts.
"The immediate granting of a wage increase in response to Wilke's
answer to the question established the true purpose of Stayer's
interrogation to have been the elicitation of information which would
enable the Respondent to slip the velvet glove over the fist. See N.L R.B
v. Exchange Parts Company, 375 U.S 405, 409. Such conduct was
unlawful. See Phillips Industries , Incorporated, 172 NLRB No 232.
"In N.L R. B. v. Bailey Company, 180 F.2d 278, 279 (C.A 6), the court
said: "Interference is no less interference because it is accomplished
through allurements rather than coercion ." In N L.R.B. v. Douglas &
Lomason Co ., 333 F.2d 510, 514 (C.A 8), it was stated: "
[I]nterference is, accomplished by allurements are as much as condemned
by the Act as is coercion ." See also NL.R.B. v Exchange Parts
Company, supra.
"The wage raise and the remarks of Stayer were clearly for the
deliberate purpose of counteracting the Union's organizational campaign.
"Such wage raise was also a deliberate attempt to induce Champeau to
forego union affection.
Examiner concludes that if the call were made at all, it
was placed on Monday, May 20, rather than Monday,
May 6.
Such conclusion is buttressed by the elder Stayer's
failure to mention a general wage raise in the offing when
he raised the wages of Wilke, Gebler, and Champeau, and
the fact that he registered "surprise" when Wilke told him
he was making $2.60, which seems inconsistent with his
claim that he had reviewed wages prior to May 6 for the
purpose of granting raises. After giving raises to Wilke,
Gebler, and Champeau, the purpose of which was to
discourage union affection , it seems logical that the
Respondent would have granted the additional wage
increases for the same purpose and to offset any negative
reaction on the part of other employees who would have
received no raises.
Moreover, the record is barren of any credible
explanation as to why the general wage increase had not
been discussed with Supervisor Van Pelt as in "other
cases." Furthermore in comparing the Respondent's wage
rates with Herziger's union wage rates the elder Stayer
failed to mention any wage raises to Van Pelt at all;
comparisons were made with current rates. Such facts
further buttress the conclusion that the wage raise had not
been determined prior to May 20, 1968. Indeed, if, as
claimed by the Respondent, wage raises had already been
instituted on May 6, 1968, and such wage increases had
no reference to the current union campaign, the
Respondent has shown no purpose in the elder Stayer's
sudden interest in union wage rates. But the fact is that
Stayer did manifest an interest in Herziger's union rates.
Thus, it would appear that the wage raises by that time
had not been determined and that Stayer's sudden interest
in union rates was stimulated by his awareness of the
employees' union activity.
The Trial Examiner finds that these wage increases,
initiated on May 20, 1968, and paid to employees on May
21, 1968, were for the purpose of counteracting the
Union's organizational campaign and interfering with the
right of employees to freely choose a bargaining
representative and were calculated to discourage
employees from further engaging in union activities. By
such misconduct the Respondent violated Section 8(a)(1)
of the Act.
Fourth: The Respondent claims that employee Sprengel
was discharged for cause and not in violation of Section
8(a)(3) of the Act. "It is true of course, that `Management
can [still] discharge for good cause, or bad cause, or no
cause at all. It has, as the master of its own business
affairs, complete freedom with but one specific, definite
qualification: It may not discharge when the real
motivating purpose is to do that which Section 8(a)(3)
forbids.' "'b
As the cause or causes for Sprengel's discharge young
Stayer told him, at the time of his discharge, that the
Respondent was dissatisfied with his work and it "had to
make room for Bud Boldt," and "old-time employee.""
As to the latter cause, while part-time employee Harold
Boldt did appear for work on May 21 full time, he was
not scheduled to commence working full time until May
"N L.R.B v Transport Clearings , Inc., 311 F.2d 519 , 523 (C.A. 5).
"The elder Stayer corroborated:
Q. (By Mr. Kastrul) Mr. Stayer, there's no question in your mad that
the chief reason your son let Mr Sprengel go was his work record,
wasn't it)
A. Yes, and the fact that we had another man coming in.
STAYER'S JOHNSONVILLE MEATS 699
2718 and then he had not been scheduled to take Sprengel's
place.]' In fact in its brief to the Trial Examiner the
Respondent does not rely upon this cause at all but asserts
at page 14, "Mr. Stayer's reason for termination was
because Sprengel was not capable, and was not up to the
work that was involved at the plant." And at page 2,
"This employee was terminated because of several errors
he had made during his employment and also because the
company felt he was incapable of handling this type of
work." Thus, there neither being a credible basis nor an
argument advanced for the validity of the latter cause, the
Trial Examiner must find that the use of such cause as a
reason for the discharge of Sprengel was pretextuous.
In respect to the first cause the Respondent states in its
brief, "The termination was the result of a culmination of
many things. Sprengel made a mistake in weighing some
bologna. The mistake, if not caught, would have cost the
Respondent money. The mistake involved putting the
wrong weights on the scale. This was the `straw that broke
the camel's back.' "2D Other specifications cited in the
Respondent's brief were Sprengel's "incapability" with
regard to stuffing summer-sausage properly in the stuffer2l
and the fact that he "couldn't tie the sausage properly."
States the Respondent, "This man was just plain
incapable, which is surely sufficient reason to get rid of an
employee." This claim is, of course, at odds with Van
Pelt's remarks on May 20th made to the younger Stayer
when Stayer informed Van Pelt he was going to discharge
Sprengel because "they didn't need guys like him around
the plant, he was too slow and not holding his end of the
work up," i.e , "I hate to see experienced help go," and "I
thought it would be a mistake to let him go," and Van
Pelt's remarks when the younger Stayer later advised him
that Sprengel was "not going to be let go," i.e., "Well,
good, we've got a busy season coming up and we can use
all the help we can get."
Moreover, in October 1967 the younger Stayer
commented to Van Pelt "for a man [Sprengel's] age he
was doing a fairly good job." In late April or early May
Van Pelt heard young Stayer telling his father that
Sprengel was "doing O.K." Sprengel had been given two
raises while working for the Respondent.
However, even though the Respondent were to prove a
justifiable ground for its discharge of Sprengel, a
Q. But the real reason was his work record , wasn't it9
A Yes , and the fact that we had this replacement
"The elder Stayer testified,
Q And when you suddenly learned Mr. Sprengel was fired on the
20th you decided to have Boldt come sooner?
A Yes.
"Van Pelt testified.
Q. Now, was Jack Sprengel replaced by anybody?
A. No.
Q. Did another man come to work right after Jack Sprengel was
terminated? In other words, did Bud Boldt come to work full -time right
after that'?
A. Yes, but he was hired prior to that
"Employee Champead was also involved in the bologna incident The
credible record casts doubt as to whether the blame for such incident
should have been attributed to Sprengel or Champeau or both While the
incident was cited by the younger Stayer as "one of the basic or biggest
reasons why [Sprengel] was fired," Champeau was retained and although
on May 20, 1968 , he was removed from the chopper as an unsatisfactory
employee he was given a raise
"According to the younger Stayer for the "last month or two, " Sprengel
did not pack the sausage "down tight enough" to "get the air out."
"justifiable ground for dismissal is no defense if it is a
pretext and not the moving cause." N.L.R.B v. Solo Cup
Company, 237 F.2d 521, 524 (C.A. 8).22 The Trial
Examiner is convinced that the "real motive"23 of the
Respondent in discharging Sprengel on May 20, 1968, was
to discourage membership in the Union and to interfere
with employees' "right to self-organization" and "to form
or assist labor organizations." Controlling factors in this
regard are: (1) The coincidence of the Union's
organizational activities and the Respondent's antiunion
campaign. " (2) Respondent's knowledge of Sprengel's
union advocacy.21 (3) The precipitous nature of Sprengel's
dischage at the beginning of a new workweek.21 (4) The
variance in the reasons given by each Stayer for
Sprengel's discharge .21 (5) The termination occurred in the
"The "mere existence of valid ground for discharge is no defense to a
charge that the discharge was unlawful, unless the discharge was predicated
solely on those grounds, and not by a desire to discourage union activity "
N.L R B v Symons Manufacturing Co., 328 F.2d 835, 837 (C A 7). In
the case of N L.R B. v. Whitin Machine Works, 204 F 2d 883, 885 (C A
1), it was said , "Although the discharge of an inefficient or insubordinate
union member or organizer is lawful, it may become discriminatory if
other circumstances reasonably indicate that the Union activity weighed
more heavily in the decision to fire him than dissatisfaction with his
performance Motivation is an elusive fact. ."
"The Supreme Court has said in Local 357, International Brotherhood
of Teamsters [Los Angeles Seattle Motor Express] v N.L R B , 365 U.S.
667, 675, "It is the `true purpose ' or `real motive' in hiring or firing that
consitutes the test "
P4As noted above immediately upon the Respondent's learning of its
employees ' union affection it engaged in activities (by granting benefits),
which had a tendency to interfere with the freedom of choice guaranteed to
its employees by the Act
"Both of the Stayers knew of Sprengel ' s prior association with a union
as a steward Supervisor Van Pelt was aware of Sprengel's union interests
and had informed the elder Stayer that "everyone" was involved
Considering the size of the plant, Van Pelt's knowledge of the card signers,
the elder Stayer's interrogation of Van Pelt, and the frequency of Stayers'
presence in the plant , it is incongruous to conclude that Respondent did
not have knowledge of Sprengel ' s union activities and affection As the
Supreme Court said in N L R.B v Walton Mfg Co , 369 U.S. 404, 408.
For the demeanor of a witness
. may satisfy the tribunal, not only that the witness' testimony is
not true, but that the truth is the opposite of his story; for the denial of
one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance , or defiance , as to give assurance that he is
fabricating , and that, if he is, there is no alternative but to assume the
truth of what he denies . Dyer v. McDougall, 201 F 2d 265, 269
[Emphasis supplied ]
"Sprengel had not been warned of his discharge The elder Stayer
testified that they knew of nothing that had occurred at work on May 20
which would have caused Respondent to have discharged Sprengel (The
elder Stayer testified:
Q. You know of no incident that happened on May 20 that prompted
the firing that particular day?
A No)
The elder Stayer testified that it was "a little unusual" to have let Sprengel
go after the first day of a new week. The younger Stayer told Sprengel
that the Respondent "normally" gave a "week's notice ." The alleged
"straw [the bologna incident ] that broke the camel's back" did not occur
on May 20, 1968 Moreover , the Respondent has advanced no credible
explanation as to why Sprengel was discharged abruptly at 9:15 p.m. on
May 20, 1968 , in contradiction to its usual practice.
"The elder Stayer testified-
Q. This was just a firing that took place, that your son decided to
make based upon his past record?
A. Right, plus the fact we were having a new man coming in and we
didn ' t have a new man available before.
* * * * *
This is one of the reasons , yes, I let [Sprengel ] go, because he was a
man [Boldt] who had worked for me 15 years and I felt he should be
given an opportunity to work full time ..° [Emphasis supplied.]
The younger Stayer testified:
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midst of Respondent's busiest season although according
to the elder Stayer it was "hard to get people to come out
to work at Johnsville," and a replacement for Sprengel
had not been secured.28 (6) The Respondent failed to
provide Sprengel with any specifics as to why' Respondent
was dissatisfied with his work. (7) The absence of any
consultation with or recommendation by Spengel's
immediate supervisor in respect to his discharge. (8) The
indecision on the part of the younger Stayer.29 (9)
Conflicts in the testimony of the two Stayers in respect to
the discharge of Sprengel.'° (10) The elder Stayer's
evasion of questions concerning the discharge of Spengel."
The elder Stayer impliedly revealed the discriminatory
purpose for which Sprengel was discharged when he
testified, "He [Sprengel] just didn't fit in our picture."
The Respondent's picture, as depicted by the credible
evidence in the record, did not encompass union advocacy.
The Trial Examiner finds that by the discharge of
employee Sprengel the Respondent violated Section
8(a)(3) of the Act.
Q (By Mr Bard) What was your reason for terminating Mr
Sprengel'
A He was incapable and he wasn ' t working up to our expectations
Q Any other reason'
A No
'*Boldt, a part-time employee of Respondent , was scheduled to start
work on May 27, 1968 His full-time employment was not contemplated to
replace Sprengel 's employment.
"Stayer, on May 20, 1968 , first told Van Pelt that Sprengel was
discharged; later he said that Sprengel was not discharged ; still later in the
same day he discharged Sprengel
'"The younger Stayer testified that the bologna incident occurred May
15, 1968 , the elder Stayer testified that it took place "sometime in March
or possibly April " Both claim to have been present
The elder Stayer testified.
A It's up to Ralph; if you want to fire him, fire him
Q. So you left the decision up to him9
A- Right
Later Stayer testified.
Q. . Would your son be better able to tell us about this thing9
A I don't think so
Q Well, isn't he the one who made the decision to terminate him9
A We both made the decision
The elder Stayer was asked whether Van Pelt had lodged complaints
against Sprengel ; he answered , "He said, he didn't perform his job, he
wasn't - well, it hard for me to say exactly "
TRIAL EXAMINER : What did Van Pelt say to you?
THE WrrNESS . Van Pelt talked to my son more than he talked to me
about it
TRIAL EXAMINER : Did he ever talk to you about it?
THE WITNESS . I can't say for sure
" Q When did you first notice, Mr. Stayer , or first hear that Mr.
Sprengel wasn ' t holding up his end of the job9
A. I couldn't answer that question. when
* * * * *
Q Did you leave knowing your son was going to fire him'
A I don't recall
* * * * *
Q. (By Mr Kastrul) Your son made the decision mostly himself. Do
you still stick to that' You still stick to that answer you gave previously,
is that correct?
A. Yes
Q And when you left the morning of May 20 , actually you didn't
know for sure whether your son was going to fire him?
A I can ' t answer that question
* * * * *
Q When you spoke with your son concerning the work record of
Fifth: As noted above , one of the purposes of the
incorporation of the Respondent was to make possible
some type of profit-sharing plan for the Respondent's
employees Some of the Respondent ' s employees had been
informed , prior to May 20, 1968, that the Employer was
thinking about a profit -sharing plan but neither the details
of the plan nor date of its institution had been definitely
revealed . 31 In fact , according to Respondent ' s attorney
Hayes, drafting of the plan had not been commenced until
around the middle of August 1968."
Prior to the election on June 27, 1968, the Respondent
conducted three meetings of its employees, the last one 2
days before the election. At these meetings the elder
Stayer informed the employees that it had a profit-sharing
plan for its employees which would be retroactive to the
first of the year 34 The profit-sharing plan was also
mentioned by the elder Stayer in the Respondent's letter
to its employees dated June 21, 1968
"I also told you about our profit sharing plan which
has been in the works since the first of the year, and
which I think would be worth much more to you than any
pension plan the Union could come up with. In fact, the
profit-sharing plan was practically set to go, but when this
union matter came up it tied our hands."35 The letter
ended "give me a chance to prove to you that I mean
what I say and, of course, if I don't do these things [profit
sharing among others] you can always get a union later.
But remember , once a union gets in , it's almost impossible
Sprengel, was Van Pelt present on that Monday morning'
A. I can't recall
A. Well I wasn't there when the firing took place.
Q It took you by surprise'
A I don't know if it took me by surprise or not . It didn't take me by
surprise. I knew he was going to go
"Such state of the profit-sharing plan appears to be corroborated by the
elder Stayer 's letter to Respondent 's employees dated June 21, 1968, in
which, after referring to the profit- sharing plan , the elder Stayer wrote.
"You may wonder why I am telling you all this now. I admit I was wrong
by not telling you about some of these things that were in process
before . ." (Emphasis supplied )
"Hayes testified
Early in the month of May of this year , I suggested we perhaps should
get busy on the drafting of a document . The reasons given back in
January at the inception of this corporation and again in May by me
were not to be quite so impatient because they had to determine what
their profit picture was going to be , bearing in mind that the predecessor
was a partnership and it had been divided into two separate
corporations We wanted to wait as long as possible within this first
fiscal year to be able to determine what formula could be used for the
profit-sharing plan So, no actual drafting of a document was
commenced by me until most recently.
'Employee Gebler testified , "he said you all know that we have a
profit-sharing plan for you that we 've been working on for quite a while,
and whenever we get it going, it will go into effect as of the first of the
year "
Employee Champeau testified, "It was mentioned that we were getting
profit-sharing . . . It would go back to the first of the year "
"The natural effect of the above language ("the profit-sharing plan was
practically set to go, but when this union matter came up it tied our
hands") was to convince employees that had it not been for the Union the
profit-sharing plan would have been implemented and that the Union was
unnecessary for employees to have received such benefits from the
Respondent . Moreover, by shifting the onus for not implementing the
profit-sharing plan, the Respondent sought to disparage and undermine the
Union by carrying the impression that the Union stood in the way of the
STAYER'S JOHNSONVILLE MEATS 701
to get it out . Again I am asking as I did in my talk with
you, vote for yourself and the Company on the 27th. Vote
No."
That the Respondent intended its mention of profit
sharing in the context used to be an inducement for
employees to vote for "the Company on the 27th" and
against the Union is clear cut from the language used in
the letter. As bait the Respondent wrote that the
profit-sharing plan "would be worth much more to
[employees] than any pension plan the Union could come
up with" and "if I don't do these things you can always
get a union later." Thus it is trenchant that the
Respondent seized upon a machinated tactic, unlawful in
nature, to avoid its being confronted with the obligation to
bargain with the Union as the majority representative of
its employees and sought thereby to completely annihilate
union sympathy among its employees.
By timing the announcement in respect to the
profit-sharing plan during an election campaign the
Respondent interfered with, restrained, and coerced
employees in respect to their rights guaranteed by Section
7 of the Act and thereby violated Section 8(a)(1) of the
Act. See N.L.R.B. v. Exchange Parts Co., supra. Such
announcement was calculated to interfere with free choice
of employees participating in a representation election.
United States Railway Equipment Company, 172 NLRB
No. 51.
Sixth- The interrogation of employee Champeau
approximately a week before the election as to "[W]hy he
wanted the union," constituted coercive interrogation and
was in violation of Section 8(a)(1) of the Act. Phillips
Industries, Incorporated, 172 NLRB No. 232,
Brandenburg Telephone Company, 164 NLRB No. 26. In
a plant with a complement of nine employees, unlawful
interrogation of a single employee can not be considered
an isolated incident because the odds are prevailingly
favorable that, in such a small establishment, the vote and
influence of such employee may be a determinative factor
in the election.
Seventh: As noted above, on May 20, 1968, the Union
had in its possession valid authorization cards signed by a
substantial majority of the Respondent's employees in the
appropriate unit. On May 20, 1968, this fact became
known to the Respondent 16 whereupon the Respondent
immediately commenced the commission of unfair labor
practices which continued until the last employee meeting
2 days before the election. Indeed, by the day's end, out of
a unit of nine, of the seven who had signed authorization
cards, the Respondent had granted unlawful wage
increases to three and discriminatorily discharged a
fourth. If these tactics were as effective as their tendency
would indicate, the Respondent, by its unfair labor
practices, had already by the end of the day destroyed the
Union's majority status. Thus if the Respondent harbored
employees getting profit sharing Thus , the Respondent held out to the
employees a benefit they would be receiving but for the Union and which
would be received if the Union were rejected The foregoing coerced
employees in the exercise of rights guaranteed by Section 7 of the Act, and
was in violation of Section 8(a)(1) of the Act . American Paper Supply
Company, 159 NLRB 1243.
a doubt as to the Union's majority status (which it did not
express) when it responded to the Union's demand on
May 23, 1968, it could not have been a good-faith doubt.
A good-faith doubt as to the Union's majority status may
not be bottomed upon a loss of majority which results
from the unlawful activities of the employer. Cf. Medo
Photo Supply Corporation v. N.L.R B., 321 U.S. 678,
687; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702."
The Board has said that the test for good-faith doubt is
"whether the employer has engaged in substantial unfair
labor practices calculated to dissipate union support." The
Respondent unlawfully granted employee benefits,38
interrogated employees about union matters, instituted a
profit-sharing plan and discharged an employee for the
purpose of discouraging union activities.39 This misconduct
was of a kind which must have necessarily had as its
objective the destruction of the Union's majority. The
discharge of a known union adherent, especially in a small
plant, is a powerful deterrent against union affection.
The Employer's misconduct detailed above, destroyed
the atmosphere in which the Respondent's employees
could register a free choice for a bargaining representative
and was calculated to induce employees to forego union
adherence and cast their ballots against the Union. Thus it
is patent that the Respondent's failure to accord
recognition to the Union was not inspired by a good-faith
doubt" but was advanced in bad faith
The Trial Examiner is persuaded that the Respondent
had completely rejected the collective-bargaining principle
by its direct dealing with its employees and that it refused
to recognize the Union in order to utilize additional time
in which to profit by its unfair labor practices and to
undermine the Union, further dissipate its majority and
deter it from gaining additional strength It is "idle to
speak of good faith in an atmosphere of unlawfulness"
Priced-Less Discount Foods, Inc., d/b/a Payless, 157
NLRB 1147. " . the Board may properly decline to
consider good faith as a defense to a section 8(a)(5)
"Supervisor Van Pelt who signed a card "to find out what the men were
planning" testified that he knew "most or' the employees had signed
authorization cards by May 20, 1968 The Trial Examiner cannot believe
that this information had not been imparted to the elder Stayer who
interrogated Van Pelt on the subject on May 20, 1968 Any testimony to
the contrary is discredited . In reaching this conclusion , among other things,
consideration has been given to the younger Stayer's testimony, "I'd heard
some scuttlebutt that everybody except John Bersch signed a card," Van
Pelt's admission that he had told the elder Stayer that "everyone" was
involved and the demeanor of the witnesses
"In no event can the employer discredit a duly designated bargaining
agent by refusing to bargain with it and then avail himself of the
bargaining agent's loss of majority which has thus been brought about by
the employer 's own conduct . N L.R B v George P Pilling & Son Co ,
119 F.2d 32, 39 (C.A 3)
""The changes inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove Employees are not likely to miss
the inference that the source of benefits now conferred must flow and may
dry up if it ' s not obliged ." N L R B v. Exchange Parts Co., supra.
""Obviously the discharge of a leading union advocate is a most
effective method of undermining union organizational effect ." N L R B v
Longhorn Transfer Service, 346 F.2d 1003 (C A 5).
"Respondent contends : "Something else to raise doubt in the
Respondent's mind is the fact that in 1966 a petition had been filed by the
same union , but withdrawn before the election . If this happened once, it
could happen again ." This contention does not take into account that the
prior organizational campaign petered out when employees were given
better insurance , and "the auditor went through the books and the law and
said now they had to pay time-and-a half " At that time there were
also rumors that there would be no building expansion if the employees
wanted a union . This contention rather than supporting the Respondent's
good faith emphasizes its lack of good faith
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge when the employer has exercised manifest bad
faith in its other responses to the same attempt at
unionization ." N.L.R.B . v Primrose Super Market of
Salem , Inc., 353 F.2d 675, 676 (C.A. 1).
In view of the Respondent ' s unfair labor practices as
found above , and its refusal to recognize and bargain with
the Union motivated not by good - faith doubt of the
Union ' s majority but by a rejection of the
collective- bargaining principle and by a desire to gain time
in which to further destroy the Union ' s majority status,
the Respondent violated Section 8 (a)(5) and ( 1) of the
Act. Webb Tractor and Equipment Company, 167 NLRB
No. 46; Hammond & Irving , Incorporated , 154 NLRB
1071; Fabricators, Incorporated , 168 NLRB No. 21.
The General Counsel further maintains that "the
imposition of a bargaining order in the case need not rest
on the Respondent ' s 8(a)(5 ) conduct alone ." The Trial
Examiner agrees, for even had the Trial Examiner not
found a violation of Section 8(a)(5) of the Act he would,
nonetheless , find that a bargaining order is required to
effectuate the statutory purpose in this case . The Union
possessed a majority status of which the Respondent had
knowledge and the Respondent engaged in unlawful
conduct which prevented a fair election free of coercion.
The Respondent thus evidenced an intent to delay
recognition for the purpose of dissipating and undermining
the Union's majority status and it employed its unfair
labor practices for such purpose. Thus a bargaining order
is necessary as a proper remedy to preserve the status quo
ante, and to prevent Respondent from benefiting from its
own unlawful conduct in violation of Section 8(a)(1) and
(3) of the Act . See Oleson's Foods No . 4, Inc., 167
NLRB No. 69 ; Priced-Less Discount Foods , Inc., d/b/a
Payless, supra. Cf. N.L.R. B. v. The Richman Brothers
Company, 387 F . 2d 309 (C.A. 7).
Since "[c]onduct violative of Section 8(a)(1) is afortiori
conduct which interferes with the exercise of a free and
untrammeled choice in an election " (Dal-Tex Optical
Company, Inc , 137 NLRB 1782, 1789), the
representation election which was conducted on June 27,
1968, must be set aside and held for naught.
Eight: A 10-cent wage increase was given to employee
Gebler in July and according to the Respondent ' s records
Boldt , Champeau , and Wilke received additional wage
increases after the month of May without prior notice to
or bargaining with the Union . The General Counsel cites
these actions as additional violations of Section 8(a)(1)
and (5 ) of the Act.
Since it has been found that on May 20, 1968, the
Union was designated as the bargaining representative of
the Respondent 's employees within the meaning of the Act
and that the Respondent thereafter became obligated to
bargain with the Union on its demand , the Respondent's
unilateral actions above described breached its obligation
to bargain with the Union and was in violation of Section
8(a)(1) and (5) of the Act . Jefferson Wire and Cable
Corp., 159 NLRB 1384.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. It having been found that Respondent unlawfully
discharged John Sprengel on May 20, 1968, and thereby
violated Section 8(a)(3) and (1) of the Act it is
recommended that the Respondent remedy such unlawful
conduct. It is recommended that Respondent offer to John
Sprengel immediate and full reinstatement to his former
or substantially equivalent position and without prejudice
to his seniority or other rights and privileges and make
him whole for any loss of earnings he may have suffered
as a result of the discrimination against him by payment
to him of a sum of money equal to the amount he would
have earned from the day of his discriminatory discharge
to the date of an offer of reinstatement, less net earnings
during said period, to be computed on a quarterly basis in
the manner established by the Board in F W. Woolworth
Company, 90 NLRB 289, and shall include interest at the
rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co, 138
NLRB 716.
It having been further found that the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act the Trial Examiner
recommends that it cease and desist therefrom and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the
appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement
As noted above the Employer granted certain benefits
to its employees for the purpose of discouraging their free
participation in union activities protected by the Act, and
to induce them to forego any union affection. This
misconduct was further compounded by the failure of the
Employer to bargain collectively with the Union in
conformity with Section 8(a)(5) of the Act as it was
required to do. For its impertinent and derelict conduct a
remedy is in order, for as each day passes, the employees,
recipients of benefits bestowed as a dissuassive union
factor, are reminded of "the suggestion of the fist inside
the velvet glove" and the palatableness of the rewards
which will continue to flow if the employees persist in
their rejection of the Union and the Employer is permitted
to continue its rejection of the principles of collective
bargaining. Under these circumstances if a realistic
remedy is to be imposed the continuing coercive effect of
this misconduct must be stopped and the practices and
procedures of collective bargaining accomodated. It
appears self-evident that this can only be accomplished by
establishing the status quo ante Cf. Beacon Piece Dyeing
and Finishing Co., Inc., 121 NLRB 953, 963; N.L R.B. v.
Armco Drainage & Metal Products, Inc., 220 F.2d 573
(C.A. 6); Piasecki Aircraft Corporation v. N L.R B., 280
F 2d 575, 591 (C.A. 3). Thus the Trial Examiner
recommends that the rates of pay, wages, hours of
employment, and other conditions of employment as of
May 20, 1968, for employees in the appropriate unit be
restored as of the date that the Recommended Order
herein becomes effective. Such restoration means the
discontinuance of any changes in rates of pay, wages,
hours of employment, and other conditions of employment
which have taken place since May 20, 1968, and thereafter
including the discontinuance of the Employer's
profit-sharing plan. Such restored rates of pay, wages,
STAYER'S JOHNSONVILLE MEATS 703
hours of employment , and other conditions of employment
shall continue in effect for employees in the appropriate
unit until such time as the Union and the Respondent
have reached agreement thereto or until such time as a
lawful impasse is reached. Thus the employees shall have
returned to them their right to bargain through their
designated representative in respect to those matters upon
which the Employer unilaterally acted unlawfully and the
Union shall have had an opportunity to bargain for
benefits which were granted by the Employer not only as
a Union deterrent but as a gambit for depriving the Union
of any credit which would accrue to it through bargaining
collectively for the employees . In this manner both the
Union's prestige and its usefulness as a bargaining
instrumentality which were diminished by the Employer's
tactics may be in part compensated . Any inconvenience
that may result is clearly the fault of the Respondent and
not of the Union.
The Trial Examiner is of the further opinion that the
remedy proposed in Ex-Cell- O Corporation, Case
25-CA-2377, by Trial Examiner Owsley Vose is
appropriate in this case as recommended by the Trial
Examiner in The Boraca Corporation , Cases 24-CA-2306,
24-RC-2998 (Appendix A).
The remedy herein recommended will effectuate the
purposes of the Act and will dissipate , in part, the effects
of the Employer ' s unfair labor practices and will deter a
repetition thereof.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed them
by Section 7 of the Act the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By unlawfully discharging John Sprengel on May 20,
1968, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(l) and (3) of the Act.
5. By the commission of unfair labor practices the
Respondent unlawfully interfered with the representation
election conducted on June 27, 1966.
6. All production and maintenance employees, including
truckdrivers employed at the Employer's Johnsonville,
Wisconsin, location, but excluding office clerical
employees, salesmen, guards and supervisors as defined in
the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act, as amended.
7. By refusing on and since May 20, 1968, to bargain
with the Union as the exclusive bargaining agent of the
employees in the appropriate unit the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Respondent, Stayer's Johnsonville
Meats, Inc , its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Putting into effect or promising economic benefits
to discourage employees from joining or supporting Meat
& Allied Food Workers, Local 248, AFL-CIO, affiliated
with the Amalgamated Meat Cutters and Butcher
Workmen of North America, or any other labor
organization.
(b) Discouraging membership in Meat & Allied Food
Workers Union, Local 248, AFL-CIO, affiliated with the
Amalgamated Meat Cutters and Butcher Workmen of
North America, or any other labor organization, by
discriminatorily discharging any of its employees or
discriminating in any other manner in respect to their hire
or tenure of employment, or any term or condition of
employment.
(c) Coercively interrogating employees in regard to
their union membership and sympathies or activities.
(d) Refusing to recognize and bargain collectively with
Meat & Allied Food Workers, Local 248, AFL-CIO,
affiliated with the Amalgamated Meat Cutters and
Butcher Workmen of North America, as the exclusive
representative of the employees in the appropriate unit.
(e) In any like or similar manner interfering with,
restraining, or coercing their employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist Meat & Allied Food
Workers, Local 248, AFL-CIO, affiliated with the
Amalgamated Meat Cutters and Butcher Workmen of
North America, 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 activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized by Section
8(a)(3) of the Act, as amended.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer John Sprengel immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges.
(b) Notify John Sprengel if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Make whole John Sprengel for any loss of pay that
he may have suffered by reason of Respondent's
discrimination against him in accordance with the
recommendations set forth in The Recommended
Remedy" herein.
(d) Comply fully with the recommendations set forth in
the section of this decision entitled "The Recommended
Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(f) Upon request bargain collectively with the
above-named Union as the exclusive representative of the
employees in the unit set forth above with respect to rates
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay, wages, hours of employment, and other conditons
of employment, and if an understanding is reached
embody the same in an agreement.
(g) Post at its Johnsonville, Wisconsin, plant copies of
the attached notice marked "Appendix B "41 [Board's
Appendix substituted for Trial Examiner's.] Copies of said
notice,' on forms provided by the Regional Director for
Region 30, after being duly signed by the Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by, it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.42
IT IS FURTHER RECOMMENDED that the election held on
June 27, 1968, be vacated and set aside and that the
petition in Case 30-RC-677 be dismissed.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in the Decision.
APPENDIX A
(The Boraca Corporation , Cases 24-CA-2306 and
24-RC-2998)
V. THE RECOMMENDED REMEDY
Having found that the Respondent hits engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, the Trial Examiner
recommends that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the
appropriate unit and , if an understanding is reached,
embody such understanding in a signed agreement.
The natural and foreseeable consequences43 of the
Respondent's misconduct detailed above was to deprive
the Union of a free opportunity to increase and retain its
membership by legitimate organizational activity and to
participate in a free and uncoerced election; to reduce the
Union's bargaining strength; to undermine its effectiveness
as a bargaining agent; to imperil its prestige; and to
deprive it of the fair fruits of collective bargaining which
would have enured to the Respondent's employees except
for the Respondent's misconduct These consequences are
clearly of a kind which thwart the purposes of the Act.
The Respondent ny its unfair labor practices has
virtually nullified the collective strength generated through
the employees' choice of collective action. The Respondent
' 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."
411n 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 Respondent
has taken to comply herewith "
`1A] man is held to intend the foreseeable " consequences of his
misconduct " Radio Officers' Union [A H. Bull Steamship Co f v.
N L R B , 347 U.S. 17, 45.
by its misconduct has dissipated bargaining power of the
c ollective- bargain mg agent' which the Act anticipates will
follow as a means of accommodating the "inequality of
bargaining power between employees who do not possess
full freedom of association or actual liberty of contract,
and employers who are organized in the corporate or
other forms of ownership associations" when they select
an exclusive collective-bargaining agent Without the
strength derived from employee support, a
collective-bargaining agent's attempt to participate in
collective bargaining is an exercise in futility, a-condition
which the Employer herein sought to effect. Such
impotent state was well illustrated by the testimony of
witness Mario Enrique Vega when he was asked on
cross-examination, "What did they tell you in school
about unions?" He replied ". . . that it helps a laborer a
lot - they gave us an example of a stick and they broke
it and they put a lot together and tried to break them but
they could not . . . ." An appropriate remedy
contemplates that the sticks here broken be given a fair
chance to be repaired and that their collective strength be
restored. In International Union of Electrical, Radio and
Machine Workers, Local 613, AFL-CIO [Erie Resistor
Corp.] v. N L.R.B., 328 F.2d 723, 727 (C.A. 3), the court
opined-
An employer who pursues a course of conduct later
determined to be an unfair labor practice does so at his
peril . . . it would be inequitable to require them [the
employees] to absorb pay losses ascribable to the unfair
labor practice of the Company.
Hence it is inequitable to require employees to absorb pay
losses caused by the unlawful dissipation of the Union's
bargaining strength and the loss of the Union's
effectiveness as a bargaining agent resulting from the
Employer's unfair labor practices. It follows, therefore,
that the economnc advantage which enures to the employer
by reason of unfair labor practices under these
circumstances takes on the aspect of an unjustenrichment.d4
An appropriate remedy which will effectuate the policies
of the Act is deemed to require the restoration of the
status quo which the Union would have enjoyed except for
the Employer's misconduct, for a failure to restore the
status quo "allows the employer to retain the fruits of its
unfair labor practices." Beacon Piece Dyeing and
Finishing Co., Inc., 121 NLRB 953, 963. See also
N.L.R. B. v. Arrnco Drainage & Metal Products, Inc., 220
F.2d 573 (C.A 6); Piasecki Aircraft Corporation v.
N.L.R.B., 280 ]F.2d 575, 591 (C.A. 3), cert. denied 364
U.S. 933.
The fruits or the economic advantage which the
Employer has gained and will gain, if any, in the instant
case through its misconduct are the fruits the employees
would have reasonably gained through the Union as their
bargaining agent. Thus if the recommended remedy is to
obtain that which shall effectuate the policies of the Act,
the recommended remedy must accomodate the employees
for the fruits of collective bargaining which they have been
denied.
Where there had been a refusal to bargain Trial
Examiner Owsley Vose in Ex-Cell-O Corporation (Case
25-CA-2377, TXD-80-67) recommended that the
employer's employees be compensated "for the monetary
"In Herrmann v. Gleason , 126 F 2d 936, 940 (C.A. 6), the court said
"A person is enriched if he has received a benefit; and when he has been
unjustly enriched at the expense of another, he is required to make
restitution."
TIIDEE PRODUCTS 705
value of the minimum additional benefits, if any, including
wages, which is reasonable to conclude that the Union
would have been able to obtain through collective
bargaining with the Respondent, for the period
commencing with the Respondent's fprmal refusal to
bargain collectively . . . and continuing until paid." Such
recommended remedy seems ultimately fair and
reasonable under the circumstances of this case4' and is
recommended by the Trial Examiner. The compensation
shall be computed on a quarterly basis and shall bear
interest at 6 percent per annum, computed quarterly.
In that the Act envisions that industrial disputes may
be best settled by collective bargaining in good faith
between the parties and is dedicated to the encouragement
of the practices and procedures of collective bargaining,
and, since the minimum additional benefits, if any, which
it is reasonable to conclude that the Union would have
obtained through collective bargaining with the
Respondent may be subject to future controversy, it is
recommended that the subject matter relating to minimum
additional benefits be referred to collective bargaining
between the parties. In this connection the Respondent
will be deemed to have complied with this recommended
remedy when the Respondent, in good faith, makes a
reasonable offer, in which due consideration is given to
the minimum additional benefits, if any. If dispute arises
as to the reasonableness of the offer, it is recommended
that it be resolved in the compliance stage of this
proceeding. Failing in such offer the Respondent shall be
held to adhere to the strict terms of this recommended
remedy.
The purpose of the recommended remedy is to
compensate for the loss of the individual worker's
bargaining power which obtained to him by reason of his
collective association and was rendered impotent by the
Respondent's unfair labor practices. As noted above,
collective bargaining after employee support has been
unlawfully dissipated is an exercise in futility. Under such
circumstances the remaining "sticks" if any are easily
broken.
By its unfair labor practices the Respondent deprived
its employees of the means of dealing with their employer
with a measure of equality, discouraged collective
bargaining, and rendered impotent their resort to
collective action. This was wrong for "the avowed and
interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual
worker's inequality of bargaining power...." N.L.R.B. v.
Hearst Publications , Incorporated, 322 U.S. 111, 126.
The remedy herein recommended corrects in part that
wrong and gives vitality to the right. It serves to effectuate
the purposes of the Act which was the intent of Congress.
Drawn to deal substantially with substantial things, the
National Labor Relations Act has been from the
beginning, it must continue to be, consistently with its
avowed purpose and the language employed in the Act,
broadly construed and as broadly given effect to cope
with and prevent the mischiefs it was designed to meet
and do away with.
N.L.R B. v. Metallic Building Company, 204 F.2d 826,
828 (C.A. 5), cert. denied 347 U.S. 911.
'Of significance is the court ' s observation in N.L R B v Southbridge
Sheet Metal Works, Inc.. 380 F 2d at 856. "the cynic may well observe
that respondent 's tactics have successfully held off collective bargaining for
at least three years."
Tiidee Products , Inc. and International Union of
Electrical , Radio & Machine Workers,
AFL-CIO-CIC.i Cases 9-CA-4440, 9-CA-4488,
9=CA-4536, and 9-CA-4563
February 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 28, 1968, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
cases, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Union and the Respondent
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, 2 as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent
Tiidee Products, Inc., Dayton, Ohio, its officers,
'The Union has requested that the initials "CLC" be included in the
designation of its affiliation . In the absence of objections , we grant its
request
'The Respondent filed a motion to reopen and consolidate these cases
with Cases 9-CA-4618, 9-CA-4639-2, and 9-CA-4710 We have considered
the Respondent's motion and , finding no merit therein, hereby deny it. As
for the Respondent's contention of bias and prejudice on the part of the
Trial Examiner, we have reviewed the record and find the contention
without merit.
We find it unnecessary to pass upon the Charging Party's request that
we make certain additional 8(aXl) findings Such findings , if made, would
be cumulative in nature and would not affect the scope of our Order and
Remedy herein because we have already provided a broad cease and desist
order protecting all of the employees' Section 7 rights.
'The second paragraph of the "Appendix" attached to the Trial
Examiner's Decision is hereby amended to read as follows "This notice is
posted pursuant to an order of the National Labor Relations Board issued
after a Trial in which both sides had an opportunity to present evidence
and arguments . The Board found that we violated the National Labor
Relations Act and has ordered us to inform our employees of their rights."
174 NLRB No. 103