Swiss Cheese Corp. of America

National Labor Relations Board - Board Decisions

Dec 3, 1954

110 N.L.R.B. 1138 (N.L.R.B. 1954)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent 's proposed "subsidiary" conclusions of law numbered 1, 3, 4,
and 6, are denied 71
The Respondent 's proposed "ultimate" conclusions of law numbered I and 2 are
granted.
Upon the basis of all of the above findings of fact and conclusions , and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , General Electric Company, is engaged in commerce within
the meaning of the Act.
2. International Union of Electrical , Radio and Machine Workers, CIO; United
Electrical , Radio and Machine Workers of America (UE); and Local 937, United
Electrical, Radio and Machine Workers of America (UE), are labor organizations
within the meaning of Section 2 (5) of the Act.
3. The Respondent has not, by reason of any of the actions alleged in the com-
plaint , engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(2) of the Act.
[Recommendations omitted from publication.]
71 The denials as to numbers 1 and 3, where Section 8 ( b) conclusions are involved,
are for reasons stated earlier
SWISS CHEESE CORPORATION OF AMERICA and GENERAL DRIVERS, DAIRY
EMPLOYEES & HELPERS LOCAL UNION 579, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA , A. F. L. Case No. 13-CA.-1605. December 3, 1954
Decision and Order
On July 6, 1954, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth-in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is hereby denied, as
the record, including the exceptions and brief, adequately presents
the issues and positions of the parties.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following addition.
The Respondent contends that it had no knowledge of the union
activity of its employees, including Thompson, Jacobson, and Kolden.
The record, however, in our opinion discloses that the Respondent did
have such knowledge through its foreman, Paul Risser, who, as
detailed in the Intermediate Report, had full information regarding
110 NLRB No. 183.
SWISS CHEESE CORPORATION OF AMERICA 1139
the organizational activities at the plant, including his discovery at
Turner Hall that 5 employees, 3 of whom were Thompson, Jacobson,
and Kolden, had attended a union meeting on October 13, 1953, 2 days
before Thompson, Jacobson, and Kolden were discriminatorily laid
off. In addition, we find, as testified by Risser, that he told Carl
Brennecke, treasurer of the Respondent and manager of its shipping
department, that the employees were going to have a union meeting
on October 13,1953.
In finding that the Respondent was aware of the union activities
of the three employees unlawfully discharged the Board, however,
does not rely on the facts that this is a small plant, that there are not
very many employees, and that the employees openly discussed their
union activities.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that Swiss Cheese Corporation of America,
Monroe, Wisconsin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in General Drivers, Dairy Employ-
ees & Helpers Local Union 579, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, A.F.L., or
any other labor organization of its employees, by discriminating in
regard to the hire and tenure of their employment or any term or
condition of employment.
(b) Instructing its employees to delay their self-organization until
further word from it.
(c) Interrogating employees concerning, or otherwise attempting
to discover, the attendance of employees at union meetings.
(d) Threatening to farm out work, thereby putting employees out
of work, rather than have a union at Respondent's plant.
(e) Threatening its employees with layoff for going to a union
meeting.
(f) Threatening its employees with layoff by pointing out to them
the layoff of other employees who attended a union meeting.
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above-named Union or
any other labor organization to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the
'Although Member Murdock is willing to join in not relying on the factors mentioned
because knowledge can be found without reliance on them, his joinder in this action is
not to be construed as a finding that the Trial Examiner improperly relied upon them.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Donald Burnell Jacobson and Willis Werner Kolden
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges previously enjoyed.
(b) Make whole Donald Burnell Jacobson, Willis Werner Kolden,
and also Merlin Thompson for any loss of pay they may have suffered
by reason of the Respondent's discrimination against them in accord-
ance with the recommendations set forth in the section of the Interme-
diate Report entitled "The Remedy."
(c) Post at its plant at Monroe, Wisconsin, copies of the notice
attached to the Intermediate Report marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being signed by the Respondent's represent-
ative, be posted by the Respondent and maintained by it for sixty
(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.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
2 In the caption of the notice the words "The Recommendations of a Trial Examiner"
shall be changed to "A Decision and Order ." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by General Drivers , Dairy Employees & Helpers Local
Union 579, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , A. F. L., herein called the Union, the General Counsel of
the National Labor Relations Board , herein called the General Counsel and the
Board, by the Regional Director for the Thirteeth Region (Chicago, Illinois), on
February 4, 1954, issued his complaint against Swiss Cheese Corporation of America,
herein called the Respondent , alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8 ( a) (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Rela-
tions Act, as amended , 61 Stat. 136, herein called the Act . Copies of the charges,
complaint , and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged in substance that
during October 1953 , Respondent , through its supervisory employee, Paul Risser,
interrogated and threatened employees and engaged in surveillance of the employees'
union activities; and that on October 15, 1953 , Respondent discriminatorily laid
off 3 employees and has refused to reinstate them (except that it reinstated 1 of
them on November 9, 1953 ) because of their union activities.
SWISS CHEESE CORPORATION OF AMERICA 1141
Respondent's answer admitted the commerce facts alleged in the complaint,
admitted the conclusion that it has been engaged in commerce within the meaning
of the Act, and denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held in Monroe, Wisconsin, on February 24
and 25, 1954, before Alba B. Martin, the duly designated Trial Examiner. All
parties were represented by counsel, participated in the hearing, and were afforded
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertaining to the issues. No party made oral argument. Briefs were
received from the General Counsel and Respondent, which have been carefully
considered.
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, since January 1950, has been engaged at
its sole plant and office at Monroe, Wisconsin, in the packaging and sale of cheese.
During 1953, the value of finished products sold by Respondent was in excess of
$1,750,000 of which over 90 percent was shipped by Respondent from said plant to
points outside the State of Wisconsin. Respondent admits, and it is found, that it
is engaged in commerce within the meaning of the Act.
Respondent operates on two floors of the building which houses it. On the first
floor are the office and the shipping department. In the basement is the cutting room.
H. THE ORGANIZATION INVOLVED
General Drivers, Dairy Employees & Helpers Local Union 579, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Whether Paul Risser is a supervisor
During October 1953, prior to the layoff of 3 full-time employees on October
15, Respondent employed 10 full-time employees, excluding Paul Risser and the
office help, and about 7 part-time employees. Three of Respondent's officers were
active in the management of the entire business, and in addition President Edward
Bregenzer managed the cutting department where Risser, 7 of the full-time and all
7 of the part-time employees worked; Treasurer Carl Brennecke managed the ship-
ping department where 3 full-time employees worked; and Secretary Clarabelle
Grode managed the office.
Although Bregenzer was directly in charge of the cutting department and gave
orders concerning it, he did not spend his full time in it. One cutting room em-
ployee estimated that Bregenzer would come down to the cutting room 6 to 8 times
per day and would stay 10 or 15 mintes each time. Mrs. Grode testified that
Bregenzer is the cheese buyer, that from time to time he is absent from Respondent's
plant for possibly 11/2 to 2 hours, and that he visits the cooperative cheese "factories"
from which Respondent buys the cheese-the factories being located some 18-20
miles from Monroe, except 1 which is 35 miles away. He is never gone a whole
day, except on a Saturday, when Respondent's plant is not working.
According to Clarabelle Grode, Risser "runs the cutting department under Mr.
Bregenzer." Risser's job is to "take his orders from Mr. Bregenzer, carry them out
in the cutting department, and he can tell anyone down there what to do after he has
been given orders . . . and from that point on he takes over and he can tell this one
there is more work over here . . . and he also works at this dipping and the packing,
and always has, and . . . getting ready for the shipping...." [Emphasis supplied.]
Risser testified that "I was all over. I don't have no particular work down there.
I do everything. . . . I fill in wherever I am needed." Then asked, "And, in addi-
tion to that, do you carry on any supervisory functions in training and guiding
people," Risser replied, "Yes, if we have new help, I show them what to do."
The cheese arrives at Respondent's plant in the form of "wheels." In the cutting
room the wheels are cut, cleaned, and small pieces are wrapped and weighed. On the
chunk line chunks weighing about 6 to 8 ounces are wrapped in cellophane for the
consumer. On the sandwich line larger pieces weighing from 5 to 12 pounds are cut,
put in cellophane bags, and weighed. Then, by a vacuuming process, the air is with-
drawn from the bags; about seven of these packages are placed upon a rack and
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowered into the shrinking tank for a few seconds; and they are drained, weighed,
put into containers for shipment.
In the absence from the cutting room of Bregenzer, who is in his office upstairs
or away from the plant a good deal during a working week, Risser is the only person
in the basement who is responsible to Respondent for the operation of the entire
cutting department and the proper performance of its some 14 employees. If Risser
is not a supervisor, then the cutting room and its 14 employees carry on without
supervision when the president of the corporation is not present.
Risser instructs new employees, gives assignments to employees, and sees that the
cheese is gotten out on schedule and according to order. On cross-examination
Risser testified that when it is necessary he shifts employees from one assignment to
another in the department, and that he does so without consulting Bregenzer.
Risser grants and rejects requests of employees under him to take time off for a
few hours for illness and otherwise, and was applied to by at least one employee for
a raise. He hands their paychecks to employees working under him.
Customarily Respondent accommodates to business demands by working or not
working its part-time employees. Risser is used as the voice of management to tell
them when to work and when not to. Bregenzer decides to lay off or call back so
many, but Risser decides which women in each case.
On specific instructions from Bregenzer, Risser informs the employees under him
when they are to work overtime.
Risser is paid by the hour, as are all employees. He receives more per hour than
any other employee but one, the skilled cheese cutter who cuts the wheels when they
come into the cutting room. The cheese cutter receives the same hourly wage as
Risser. When all other employees received a raise in November 1953, Risser did not.
Respondent's Exhibit No. 4 contains a list of employees during November 1953
prepared by Respondent. It lists Risser as "supervisor" in the cutting department.
When new part-time employees are needed, Risser is usually the first and only
representative of management who contacts and sees them before they report for
work. The proof shows that in performing this function Risser has some authority
and exercises some independent judgment, but that he does not have full authority
to "hire" within the meaning of the Act. Respondent maintains a file of applica-
tions, containing such information as the person who saw them, knew them, or talked
to them over the telephone (including the telephone operator). From the file one
or more officers select a name to be contacted and ask Risser to contact the person.
Clarabelle Grode testified in substance that Risser "would go out and ask them to
report for work"-thereby suggesting that his function was solely that of a messenger
boy. She allowed that if upon contacting the applicant Risser should discover that
she had a physical handicap or deformity, he would not be expected to employ her-
thereby suggesting that he has authority not to hire one already selected by manage-
ment for employment. Grode testified that this was unlikely to happen because the
file reflects the true condition, no applicant thus far having misrepresented herself
to the Company.
It is undenied in the record that when Risser called at the home of Geraldine Irene
Johnson one Sunday morning to tell her to come to work, and that when he called at
the home of Carrie Elizabeth Moore one day for the same purpose, he told each of
them that he was a foreman.
On direct examination Clarabelle Grode testified in substance that on occasion
when a new part-time woman is needed and Risser happens to know of an available
candidate, he will "mention" the matter to one or more of the officers. He "will tell
us that there is such and such a person that he can get. and we will tell him to go
and see them." Mrs. Grode added that Risser has no independent right to hire or
discharge "without first checking with management." It appears from this testi-
mony, however, that he has the authority effectively to recommend the employment
of specific women.
Risser testified that when asked by employees if he was going to a union meeting,
in October 1953, he told them that he "couldn't: I got to stay neutral." Asked on
direct examination why he said that, he replied, "Well, I felt that I would stay out of
it." On cross-examination he stated in substance that he guessed it was his own idea
to stay neutral, but that he did not know why. Donald Burnell Jacobson added that
Risser told him that he was not going to the meeting, that he "was a foreman; that he
had to be neutral." Gilbert Richard Bennett testified that when he and Risser were
discussing the Union in October 1953, Risser told Bennett that "in his [Risser'sl
position , he had to stay neutral."
Upon the above evidence, and upon the record considered as a whole, I conclude
that at all times of concern herein Paul Risser had authority, in the interest of Re-
spondent, to lay off and recall employees, to assign employees, responsibly to direct
SWISS CHEESE CORPORATION OF AMERICA 1143
them, and had authority effectively to recommend their hire; and that the exercise
,of such authority required the use of independent judgment. It follows that Risser
was and is a supervisor within the meaning of the Act.
B. Efforts to organize and Respondent's knowledge thereof
In late September or early October 1953, 2 representatives of the Union spoke to
Merlin Thompson and Gilbert Bennett, 2 of Respondent's 3 shipping department
employees, while they were working at the warehouse somewhat removed from the
plant. The union men asked the employees if they were organized, and when they
learned they were not, asked them if they would be interested in having an organiza-
tion, or at least coming to a meeting to consider the matter. Thereafter Thompson
discussed the possibility of having an organization with Robert Schwitz, the third
shipping department employee, and with several cutting department employees in-
cluding Paul Riser. One of these was Donald Burnell Jacobson, who, after dis-
cussing the possibility of a union with Thompson, discussed the matter with four
of the other full-time employees in the cutting department. Another was Willis
Werner Kolden, who then discussed the possibility with Jacobson and two others in
the cutting department.
In view of the small number of employees working for Respondent, the number of
them with whom the possibility of organizing was discussed, the fact that the ques-
tion was discussed openly with Supervisor Paul Risser, and upon all the evidence in
the case, I hold that Respondent knew that its employees were thinking of joining
the Union and knew there was to be a meeting on that subject during the evening of
October 13, 1953.
C. Interference, restraint, and coercion
The first meeting, at which the employees as a group were given an opportunity
to meet with several union organizers, was held on October 13, 1953, from about
7 to 9:30 p. m., in Turner Hall, a local tavern. On the afternoon of that day or
the day before Supervisor Risser had two conversations with Carl Brennecke and
with employees on the subject of the Union. In the first conversation, with Merlin
Thompson and Gilbert Bennett, the two employees asked Risser if he was going
to the union meeting. His reply according to Thompson was that he would not
attend, that he "had talked to Carl Brennecke about the meeting and that we
shouldn't do anything about it until Carl Brennecke had talked to Carl Marty."
Carl Marty was chairman of the board of directors of Respondent. According to
Bennett, Risser replied that he did not think he would be at the union meeting,
that he had a church meeting to go to, that "we are supposed to wait for a while,
because Carl Brennecke was going to see Carl Marty, and find out what Carl
Marty thought about the union. . . In the second conversation, with Thompson
alone, Risser told Thompson that Brennecke had talked with Carl Marty and that
the latter "had said that if the union got in there, there was very little they could
do about it. In fact, there was nothing they could do about it." In his testimony
Paul Risser confirmed that he had discussed the union meeting with Brennecke
and did not deny the above testimony of Thompson and Bennett. It is held that
the conversations with Thompson and Bennett took place substantially as testified
by them.
The language used and the idea expressed by Risser in his first conversation with
Thompson and Bennett was neither a view, an argument, nor an opinion within
the meaning of Section 8 (c) of the Act. Rather it was an instruction from a super-
visor to two employees, an instruction that the employees should hold up their
self-organization until the treasurer of the Corporation discussed the matter with
the chairman of the board. As an instruction, not privileged under Section 8 (c), it
was, considered with the entire record as a whole, an interference with the rights
of employees under Section 7 of the Act, Respondent thereby violating Section 8
,(a) (1) of the Act.
The question arises as to whether Risser's subsequent statement quoting Marty's
alleged statement to Brennecke in any way diminished or remedied the violation
found just above. In the light of the entire record, it is held that it did not. At
best Risser's subsequent statement amounted to an assertion that once the Union
"got in" there was nothing the Company could do to prevent it from getting in.
Risser's statement did not purport to cover the period of time when the Union was
"getting in" or trying to "get in." It did not purport to convey the idea that during
that period the chairman of the board approved of and had no objection to the self-
organization of the employees.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Geraldine Irene Johnson testified that during the afternoon of October 13, 1953,
prior to the first union meeting, in her presence employee Pauline Brown asked
Paul Risser if she should go to the union meeting and Risser replied, "No, that
she would be laid off." Johnson testified further that about a half-hour later she
asked Risser if any of the other girls were going to the union meeting, and Risser
replied, "No . it would be best if you didn't go."
The first union meeting lasted about 21/2 hours, letting out about 9:30 p. m.
Six employees attended, including the three who were laid off 2 days later-Thomp-
son, Jacobson, and Kolden. After the meeting 5 of the 6, including the 3 later
laid off, went to the bar at Turner Hall, which was lust outside of the room where
the meeting had been held, for drinks. While they were at the bar, Paul Risser,
having been to another meeting nearby, stopped in at the bar and bought a round of
drinks for the five employees. While they were there one of the employees handed
him the business card of one of the union representatives who had been at the
meeting and had given one of the cards to each employee. The record contains no
conversation had on that occasion, if any was had, between Risser and the em-
ployees. Risser testified that from time to time he stops at Turner Hall for a drink
and that it was on the way home from his meeting. He allowed also that there
were several other taverns near Turner Hall then open, which he sometimes visits.
He admitted that he knew there was to be a union meeting there that night. The
church where he attended the meeting that night, was about 3 blocks from Turner
Hall. His only explanation for stopping at Turner Hall was that it was on his way
home.
Carrie Elizabeth Moore, who worked under Risser, testified that the next morn-
ing, October 14, Risser asked her if she had attended the meeting. She replied that
she had not, that she had driven down there but had not gone in. According to
Moore, Risser replied that "he was glad that I didn't go because we would have
been out of work because the business would have been taken to the Capitol Cheese
Company by the company, if we had gone."
A second union meeting was planned for the evening of October 15, 1953. As
is seen below, at the conclusion of work that day, Thompson, Jacobson, and Kolden
were laid off. Shortly after the layoff, according to employee Geraldine Irene
Johnson, she asked Risser if any of the other girls were going to the union meeting
that night. Risser replied no, that "it would be best if you didn't go. . . . You can
see what the boys got."
The following Saturday, October 17, 1953, as Geraldine Irene Johnson was work-
ing as a cleaning lady at the plant, she had a conversation with Risser. According
to Johnson, Risser said that "this place was too small for a union; that they would
send their cheese to the Capitol Cheese Company before they would have a union
in there."
Paul Risser denied telling any employees not to go to the union meeting or that
they would be laid off if they did. He denied telling anyone that the other girls
were not going to the union meeting and that "it would be best if you didn't go. . . .
You can see what the boys got."
Risser did not deny Carrie Elizabeth Moore's testimony that he asked her the
morning after the meeting whether she had attended and then told her in substance
that if the employees had gone they would be out of work because the Company
would take the business to another company. Nor did Risser deny Geraldine Irene
Johnson's testimony concerning Risser's statements to her the Saturday after the
meeting that the Company was too small for a union, and that the Company would
send the cheese to another company before it would have a union at the plant. As
these alleged statements by Risser were undenied, and as they are not improbable
when weighed with all of the events displayed in the record, I credit this testimony
of Moore and Johnson. It is held that Risser's asking Moore if she had attended
the meeting the night before was interrogation designed to discover the union activi-
ties of an employee, and was, in the light of the entire record considered as a whole,
interrogation in violation of Section 8 (a) (1) of the Act. Risser's statements to
Moore and Johnson to the effect that rather than deal with the Union the Respondent
would farm its business out to another company and its employees would be out
of work, were undisguised threats of economic reprisal against the employees if
they exercised their right to choose a union to represent them. By Supervisor
Risser's making these threats, Respondent interfered with, restrained, and coerced
employees in the rights guaranteed in Section 7 of the Act, Respondent thereby
violating Section 8 (a) (1).
As has been seen above, about 9:30 p. m. on October 13, 1953, Risser stopped at
Turner Hall knowing that some of Respondent's employees might be there at some
kind of a union meeting. If he stopped only for a drink, the record affords no ade-
SWISS CHEESE CORPORATION OF AMERICA 1145
quate explanation as to why he selected Turner Hall on that occasion rather than
some other nearby tavern, which was also on his way home. On the record con-
sidered as a whole I hold that the principal reason he stopped at Turner Hall that
night was to discover who among Respondent's employees attended the meeting.
By Risser's stopping there for that purpose, Respondent interfered with, restrained,
and coerced employees in the rights guaranteed in Section 7 of the Act, Respondent
thereby violating Section 8 (a) (1).
As Risser was responsible for the violations found above, it seems probable to me
that he also made the statements attributed to him by Geraldine Irene Johnson and
Carrie Elizabeth Moore, who worked under him. On the entire record considered
as a whole, I find that Risser threatened layoff for going to the union meeting, threat-
ened that the work would be sent to another company, and threatened employee jobs
with the statement, "You can see what the boys got," substantially as testified by
Johnson and Moore. This finding is buttressed by the fact that Pauline Brown, to
whom one of the threats was made, was not called by Respondent to the witness stand
to deny the threat although she was working for Respondent at the time of the hear-
ing. I hold that by these threats Respondent interfered with, restrained, and coerced
employees in the rights guaranteed in Section 7 of the Act, Respondent thereby
violating Section 8 (a) (1).
D. The layoffs
Two days after the first union meeting, and the day of the second union meeting
scheduled for that night, on October 15, 1953, Respondent laid off Merlin Thompson,
Donald Burnell Jacobson, and Willis Werner Kolden. Thompson was taken back
November 9, 1953. Besides a pink slip used by Wisconsin Industrial Commission
for unemployment benefits, each of these employees received with his paycheck, at
the close of work October 15, a slip signed by Respondent, reading,
We regret that due to lack of work and short supply of Swiss cheese it is nec-
essary to lay you off until further notice. This is effective immediately.
In the history of its business, this was Respondent's first layoff of full-time employ-
ees. Mrs. Grode testified that they considered laying off only these specific indi-
viduals, no others.
Immediately after receiving this layoff notice, Jacobson went upstairs to see Carl
Brennecke. Jacobson "asked Carl just what it was, and he said that I should go
see Ed Bregenzer because it was his idea." Brennecke added that Bregenzer was
in the cooler. Then Jacobson went down to the cooler, followed by Thompson and
Kolden. Jacobson asked Bregenzer "what the meaning of it was, and he refused
to answer me, and I said to him, `Isn't there any seniority here,' and he replied, `No,
not necessarily."' Bregenzer then added that Brennecke had hired him and that
he should go see Brennecke. Then Thompson asked Bregenzer the reason for the
layoff, and according to Thompson, Bregenzer "Wouldn't answer me," he "never
answered me."
Then the three employees returned upstairs to talk with Brennecke. Thompson
asked Brennecke for an explanation of the layoff and Brennecke replied that he had
nothing to do with it. Thompson asked if this was a permanent or a temporary
layoff and received the reply that he should not wait around for a job, that he might
as well look for another, that Brennecke would be glad to give him a recommenda-
tion. Jacobson pointed out that in all previous slack periods the Company had
always kept all the employees and kept them busy doing maintenance work, and
that Jacobson thought the layoff was not solely due to lack of work and lack of Swiss
cheese but that there was something else connected with it. Brennecke then replied,
"I stuck my neck out once before and got into trouble, so I am in no position to
say."
Thompson then pointed out that his vacation pay was not on his check, and he and
Brennecke went to the office and discussed the matter with Clarabelle Grode, the
office manager. According to Thompson, "they said I wouldn't get my vacation until
when I come back to work." Then Thompson went downstairs and asked Paul
Risser if he knew "who told about the Union," Risser replying that he did not have
anything to do with it.
That afternoon, after the other employees had talked with Brennecke, employee
Robert Schwitz of the shipping department spoke to Brennecke about Thompson.
According to the uncontradicted testimony of Schwitz,
I told Carl Brennecke, . that I would sooner take the layoff than Merlin
because he had more children than I did, and he had more responsibilities than
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I did , and Carl said it was one of those things that couldn 't be helped . and
. he said he had stuck his neck out once before for the boys , and he stopped'
and I don't know why.
Brennecke did not accept this suggestion by Schwitz.
The day after the layoffs , Risser called shipping department employees Gilbert-
Bennett and Robert Schwitz, who did not work under his supervision, into the cooler,
told them in substance that he was sorry for the layoffs, that he did not know any-
thing about them and had nothing to do with them , that "the boys probably all
thought that I was the cause of this, but . . . I wasn't.. . .
According to the uncontradicted testimony of Thompson , about a week before
his layoff Thompson asked Brennecke if it would be possible for him to take his-
week's vacation during the pheasant -hunting season , which opened on or about
October 16, during the Company 's regular slack season rather than later when the
Company was busier. Brennecke replied that he thought it could be arranged.
The Company 's practice was to give a week's vacation to an employee only after
that employee had worked for the Company 1 full year . Thompson had worked
for Respondent from January 1950 until April 1952 , when he had quit; and had
returned about the middle of November 1952. Thus as of October 17, 1953, he
would have lacked 1 month of working a full year after his return in November
1952, and Brennecke 's reply indicated that Brennecke thought the Company would
give him his vacation 1 month in advance despite the custom.
Thompson 's reference to the slack season related to an annual period of about 2
weeks late in October when , because of Wisconsin law and the customs of the busi-
ness, Respondent received fewer "wheels " of cheese from the cheese factories than
it generally received at other times during the year.
Although, as appears above , President Bregenzer and Treasurer Brennecke were
seriously involved by the evidence , Respondent called neither as a witness and
offered no explanation as to why.
Respondent 's contention was in substance , as the layoff slips indicated, that
Thompson, Jacobson , and Kolden were laid off because of lack of work for them to,
do and a short supply of cheese.
Presumably "short supply of cheese" related to incoming wheels, since there was
no claim and no evidence that during the slack period (or any other period) Re-
spondent was unable to fill all orders from customers . In fact Mrs. Grode testified
that the Company receives enough wheels during the summer months to keep its in-
ventory steady throughout the year, and that the Company operates on the basis
of being able to make immediate deliveries on all orders as they are received through-
out the year . After an order arrives, the cheese to fill the order is cut , packaged,
and shipped . She stated further that in sales October 1953 was a normal month,
although there had been a gradual decline in sales since June. The business has
always been seasonal in some respects.
On direct examination Mrs. Grode testified in substance that Respondent raised
the wages of all employees on November 1, 1913. Several General Counsel wit-
nesses had previously testified that the raise was effective October 16 and that the
paycheck covering the last 2 weeks in October included the raise. Asked, "Had
that [meaning wage increases ] occurred in previous years?," Mrs. Grode replied,
"Whenever raises are in order, maybe once a year or twice a year, and if business
was good, if business justified it, they were given raises ." It follows from this testi-
mony that when Respondent gave all its employees raises effective October 16 or
November 1, 1953, it did so feeling that business was good and that business justi-
fied it. It follows also that it would not have given the raise had business not
justified it.
If despite a gradual decline in sales since June, business was still good enough to
justify a raise for all employees during the slack period , I find it difficult to believe
that during the same slack period the demands of the business required the layoff of
three employees
Merlin Thompson was 1 of 3 employees in the shipping department handling
wheels as they came in and outgoing packages as they went out to Respondent's
customers . Respondent did not specifically contend that the handling of outgoing
packages had so declined that it decided to lay off Thompson for that reason; nor
did the evidence support such a conclusion Rather, it contended that since fewer
wheels came in from the factories during the last 2 weeks of October 1953, it
needed only 2 men, rather than 3, in the shipping department to handle them.
During all slack seasons since it had begun to operate in January 1950, Respond-
ent had not laid off any of its full-time employees , including the shipping room
employees . It had kept them busy , when shipping department work was slack, at
such maintenance work as cleaning , whitewashing , and repairing . During the 3
SWISS CHEESE CORPORATION OF AMERICA 1147
weeks Thompson was laid off in 1953, the other two men in the shipping depart-
ment, Bennett and Schwitz, when not otherwise engaged, washed skids, repaired
platform skids, and whitewashed or painted the outside of the building.
In a letter dated December 17, 1953, to a field attorney in the Board's Regional
Office, having given her version of why a layoff was necessary, Mrs. Grode stated
the reasons for the selection of Merlin Thompson to be laid off rather than some
other employee. She wrote that she discussed with the foreman-meaning Bren-
necke-what their labor needs would be for the "dull" period, and that,
It was in connection with this discussion that the foreman told me Mr. Thomp-
son had expressed a wish to take time off after October 15th for pheasant
hunting. Thompson was employed to assist with the receiving, weighing, and
tubbing of wheels of Swiss Cheese, which, in their original form, weigh from 175
to 235 pounds per wheel. Since no cheese would be received during a period
of several weeks, there would be no work available for him. He had no va-
cation coming since he had not worked for us for a full year, and the two cir-
cumstances combined caused me to include him in the layoff.
It appears from this letter that two reasons were assigned for the selection of
Thompson, the fact that there was no work available for him and the fact that al-
though he had no vacation coming to him he had asked for "time off" to go pheasant
hunting. Even though Thompson's request for "time off"-which in fact was a
request for his paid vacation early, not time off without pay-was allegedly con-
sidered as a factor in his layoff, Grode testified that "it just didn't come to our
minds" to consider granting Thompson's request. This seems highly improbable to
me, in view of the tact that shortly before this Brennecke had told Thompson that
he thought an advance vacation could be arranged.
To be noted is the fact that Mrs. Grode's letter to the field attorney stated that
a lesser number of wheels would be received during the slack period, but that "no
cheese would be received" during that period. Throughout the life of the business
Mrs. Grode had been its office manager and bookkeeper. She must have known
that some cheese would be received during the slack period. In 1951, during the
last 2 weeks in October, 365 wheels had been received; in 1952, during the last
2 weeks in October, 514 wheels had been received; and as it turned out in 1953,
during the last 2 weeks in October, 365 wheels were received-the same number
as during the slack period 2 years before. When Mrs. Grode wrote the field attor-
ney some 2 months after the slack period that "no cheese would be received" during
that period, she could have discovered from her own files that that was not a
correct statement of fact.
Kolden and Jacobson worked in the cutting room on the sandwich line inter-
changeably doing jobs that required some lifting, such as lowering the cheese into
the shrinking tank, weighing it, and putting it into containers for shipment. Kolden
testified that he lifted 50 to 60 pound boxes from a bench to the skids and piled them
up 5 feet high. Several witnesses credibly testified that running the dipping or
shrinking operation involved lifting and was hard work. Geraldine Irene Johnson
testified that "it is really too heavy for a woman."
For some months prior to their layoff, Kolden and Jacobson, two full-time em-
ployees, had been doing these jobs. Paul Risser, the supervisor over the cutting
room, testified that since the layoff Pauline Brown, a part-time employee, has been
working full time on the shrinking tank and at packing, and that when she needs
help, a full-time employee, John C. Elmer, or Risser, helps her out. During the
first 2 weeks after the layoff Pauline Brown worked 32 hours the first week and 361/
hours the second week. During the 4 weeks in November she worked 39, 38, 39, and
32 hours. From December 1 until the hearing in February 1954, she averaged about
40 hours per week. According to the testimony she spent all of her working time
doing work previously performed by Jacobson or Kolden. On the undisputed evi-
dence I conclude, therefore, that Jacobson and Kolden were not laid off because
of lack of work for them to do
Mrs. Grode's letter to the field attorney said,
Kolden was the last man employed and was, therefore, included since he had
no particular abilities to give him preference over others.
This language suggests that Kolden's seniority and a lack of any outstanding ability
were the two factors which caused his selection for layoff rather than some other
employee from the cutting room. In contrast to this contention, Merlin Thompson
had more seniority than either Bennett or Schwitz who were kept on when Thomp-
son was laid off from the shipping room, and in addition Thompson had had some
slight recognition by being called upon to substitute on Risser's job as supervisor
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during Risser's summer vacation in 1953. As outstanding ability and higher seniority
did not prevent Thompson from being laid off, I do not believe that lowest seniority
and "no particular abilities" caused Kolden to be selected for layoff.
Mrs. Grode's letter said,
Jacobson was included because he was the least dependable man in the De-
partment. His capacity for a day's work was always dependent upon how
much domestic trouble he had at home and the extent of his activities the night
before.
In substantive contrast to Mrs. Grode's letter and her testimony to the same effect,
Paul Risser, under whom Jacobson worked, when asked if Jacobson and Kolden
did their work all right, replied, "they were very satisfactory." Risser added that
they were good fellows, "both of them," and that he liked them very much. The
record is devoid of any evidence that Jacobson was ever brought to task or cau-
tioned for any alleged lack of dependability.
In view of the self-contradictions in Respondent's position, the conclusions and
inferences drawn above, and upon all the substantial testimony in the record con-
sidered as a whole, I am unable to credit Respondent's defense to the layoff of
Thompson, Jacobson, and Kolden.
Conclusions -
Thompson, Jacobson, and Kolden had each discussed with other employees the
possibility of their organizing themselves, and they were 3 of the 6 employees who
attended the first meeting with the union representatives on October 13. They were
3 of the 5 employees who were standing at the bar after the union meeting, who
were joined for a drink by Risser. Although Risser denied, in substance, that he told
any company officer who had attended the meeting, I do not credit his denial in view
of the interference, restraint, and coercion found above to have been committed
through the statements and interrogations of Risser. On the record as a whole I
find that Respondent's officers learned prior to the layoffs who had attended the
meeting.
The manner in which the laid-off employees were brushed off by Bregenzer and
Brennecke just after they received their layoff notices and were seeking to learn
the reason for the action, is indicative that the notices did not bespeak the true rea-
son for the layoff To be noted is the fact that when queried by the employees,
neither officer of the Company referred them to the reason given on the slips they
found with their paychecks, as the reasons for the layoffs. Thus, when first ap-
proached by Jacobson, Brennecke told Jacobson to see Bregenzer, that the layoff
"was his idea." Bregenzer refused, after request, to give Jacobson and Thompson the
reason for the layoffs and said the Company did not "necessarily" follow seniority.
Then he sent Jacobson back to see Brennecke, from whom he had just come, on the
score that Brennecke had hired him.
Mrs. Grode testified that she, Bregenzer, and Brennecke decided on the layoffs.
Yet, when the three laid-off employees returned to Brennecke, the latter denied hav-
ing had anything to do with the layoffs. This shading of the truth suggests that
there was something about the layoffs he did not wish to discuss with the employees.
Brennecke even declined, when given an opportunity, to assure Thompson that the
layoff was only temporary. When confronted by Jacobson with the thought that
some other factor was involved in the layoff, Brennecke resorted to the statement
that he had stuck his neck out once before and so was in no position to say. The
record does not reveal what previous incident Brennecke was referring to, but his
language suggests that he felt that to tell the employees anything more about the rea-
sons for their layoff might be "sticking his [own] neck out." Of the same import
was his later statement to Schwitz that the layoff was just one of those things that
could not be helped, that he had stuck his neck out once before.
Upon all of the substantial evidence in the record considered as a whole, I find
that the coming of the slack season was the occasion of but not the reason for the
layoff of the three employees, that the Respondent's principal motive in making
the layoffs was to forestall the organizing movement among its employees by laying
off three employees who had attended the first union meeting; and that in making
the layoffs Respondent violated Section 8 (a) (1) and (3) of the Act.
In the light of the entire record there is considerable doubt as to whether the wage
increase given employees October 16 or November 1 was for the purpose of in-
terfering with the self-organization of the employees and therefore a violation of
the Act. As no such violation was alleged in the complaint, however, I make no
such finding.
SWISS CHEESE CORPORATION OF AMERICA 1149
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities set forth in section III, above , occurring in connection with
Respondent's operations described in section 1, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, 1 recommend that it cease and desist therefrom and that it take certain af-
firmative action designed to effectuate the policies of the Act.
Respondent having laid off Donald Burnell Jacobson and Willis Werner Kolden
because of their union and concerted activities , I recommend that Respondent offer
to each of them immediate and full reinstatement to his former or a substantially
equivalent position 1 without prejudice to his seniority and other rights and privileges
and make each whole for any loss of pay he may have suffered by reason of Re-
spondent 's discrimination against him, by payment to each of them of a sum of
money equal to that which he normally would have earned as wages from October
15, 1953, the date of the discrimination against them , to the date when , pursuant
to the recommendations herein contained , Respondent shall offer them reinstatement,
less the net earnings of each during said period .2 Loss of pay shall be determined
by deducting from a sum equal to that which these employees would normally have
earned for each quarter or portion thereof, their net earnings , if any, in other em-
ployment during that period . Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other quarter. The quarterly periods
described herein shall begin with the first day of January, April, July, and
October.3
Respondent having laid off Merlin Thompson on October 15, 1953, because of his
union and concerted activities and not havin ; offered him restatement until Novem-
ber 9, 1953 , I recommend that Respondent make him whole for any loss of pay he
may have suffered by reason of Respondent's discrimination against him by pay-
ment to him of a sum of money equal to that which he normally would have earned
as wages from the date of his layoff, October 15, 1953, until the date of his rein-
statement , November 9, 1953, less his net earnings during said period.
It is recommended further that Respondi;nt make available to the Board upon
request payroll and other records, in order to facilitate the checking of the amount
of back pay due.4
Because of the Respondent 's unlawful conduct and its underlying purpose and
tendency, I find that the unfair labor practices found are persuasively related to other
unfair labor practices proscribed and that danger of their commission in the future
is to be anticipated from the course of the Respondent's conduct in the past.5 The
preventative purpose of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make effective the interdependent guaran-
tee of Section 7 , to prevent a recurrence of unfair labor practices, and thereby to
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I will recommend that Respondent cease and desist from in
any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of theforegoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Swiss Cheese Corporation of America is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. General Drivers , Dairy Employees & Helpers Local Union 579, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
A. F. L., is a labor organization within the meaning of Section 2 ( 5) of the Act.
I The Chase National Bank of the City of Yew York, San Juan, Puerto Rico, Branch,
75 NLRB 827.
Y Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corp. v. N. L. R. B.,
311 U S 7
3 F TV. Woolworth Company, 90 NLRB 289.
4 F IV. Woolworth Company, supra
5 N. L. R. B v. Express Publishing Company, 912-U, S 426
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. In October 1953, by instructing employees to hold up on their self-organiza-
tion until Respondent's treasurer discussed the matter with the chairman of the
board of directors; by interrogating employees concerning their attendance at a
union meeting; by threatening to farm out work, thereby putting its employees out
of work; by attempting to discover who attended a union meeting; by threatening
employees with layoff for going to a union meeting; and by threatening layoff to
employees by pointing out to them the layoff of other employees who had attended
a union meeting, Respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By discriminating in regard to the hire and tenure of employment of Merlin
Thompson, Donald Burnell Jacobson, and Willis Werner Kolden, thereby discour-
aging membership in the Union named in paragraph numbered 2 above, Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commprrP
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist General Drivers, Dairy Employees & Helpers Local Union 579,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and 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 in Section
8 (a) (3) of the Act.
WE WILL NOT interrogate our employees concerning or otherwise attempt
to discover what employees attend union meetings.
WE WILL NOT instruct our employees to delay forming or joining a union
until further word from us.
WE WILL NOT threaten to farm out work to another company rather than
have a union at our plant, thereby putting our employees out of work.
WE WILL NOT threaten our employees with layoff for going to a union
meeting.
WE WILL NOT threaten our employees with layoff by pointing out to them
the layoff of other employees who attended a union meeting.
WE WILL NOT discourage membership in General Drivers, Dairy Employees
& Helpers Local Union 579, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. L., or any other labor
organization of our employees, by discriminating in any manner with regard to
their hire and tenure of employment, or any term or condition of employment.
WE WILL offer to Donald Burnell Jacobson and Willis Werner Kolden
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges
previously enjoyed.
WE WILL make whole Merlin Thompson, Donald Burnell Jacobson, and
Willis Werner Kolden for any loss of pay suffered by them by reason of the
discrimination practiced against them, in accordance with the recommenda-
tions of the Intermediate Report.
All of our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Union or any other labor organization except to the extent
CHUN KING SALES, INC. 1151
,that this right may be affected by an agreement in conformity with Section 8 (a) (3)
of the amended Act.
SWISS CHEESE CORPORATION OF AMERICA,
Employer.
.Dated----------- ----- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.
CHUN KING SALES, INC. and FLORAANN KOZLOSKY
LOCAL 1116, RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. OF L.
and FLORAANN KOZLOSKY. Cases Nos. 18-CA-582 and 18-CB-60.
December 3, 195.E
Decision and Order
On June 4, 1954, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents, Chun King Sales, Inc., herein called
the Respondent Company, and Local 1116, Retail Clerks International
Association, A. F. of L., herein called the Respondent Union, had
,engaged in and were engaging in certain unfair labor practices, and
-recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent Company and the
Respondent Union each filed exceptions to the Intermediate Report
with a supporting brief. In addition, the Respondent Company and
the Respondent Union requested oral argument. However, because
the record and briefs, in our opinion, adequately present the issues
.and positions of the parties, the requests for oral argument are hereby
denied. The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the cases, and hereby adopts the findings, conclusions,
And recommendations of the Trial Examiner, with the exceptions,
modifications, and additions noted below.'
As fully detailed in the Intermediate Report, on January 27, 1954,
following a demand by the Respondent Union for Kozlosky's suspen-
sion from employment, the Respondent Company suspended the com-
plainant. The Trial Examiner found, and we agree, that in taking
this action against Kozlosky, at which time a union-security agree-
1 Member Murdock would affirm the Intermediate Report without change because he
finds it substantially correct and because he believes that the different approach which
;his colleagues have taken may raise serious problems.
,110 NLRB No. 185,