Wire Products Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 3, 1972

198 N.L.R.B. 652 (N.L.R.B. 1972)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wire Products Manufacturing Corp . and Rib Moun-
tain Lodge No. 2131, International Association of
Machinists and Aerospace Workers, AFL-CIO.
Cases 30-CA- 1390 and 30-CA-1542
August 3, 1972
DECISION AND ORDER
On October 1, 1971, Trial Examiner Harry H.
Kuskin issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and Respon-
dent filed exceptions and supporting briefs. Respon-
dent also filed an answering brief and request for
oral argument.'
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,2 and conclusions as consistent with
our decision herein.
For the reasons set out by the Trial Examiner, we
agree that the Respondent violated Section 8(a)(1) of
the Act by certain statements made shortly before or
during the bargaining lockout by its president,
Lindstrom, and one of its supervisors, Angus.3 We
also agree, as alleged by the General Counsel, and
for the reasons the Trial Examiner found, that
Respondent violated Section 8(a)(1) and (3) of the
Act by its discharge of Marilyn Kufahl on March 4,
1971.
The General Counsel also alleged that the lockout
which Respondent undertook from September 18,
1970, to December 9, 1970, was an illegally motivat-
ed lockout and that its illegality was further com-
pounded by Respondent's continuance of operations
during the lockout. The Trial Examiner refused to
find that the lockout was illegally motivated from its
inception. He did find, however, that the lockout
became illegal through Respondent's continuance of
operations during the lockout.4
We find merit in the General Counsel's exceptions
to the Trial Examiner's failure to find the lockout
I
We hereby deny the Respondent' s request for oral argument, as the
record, including the briefs, adequately presents the issues and the positions
of the parties
2 The Respondent and the General Counsel have excepted to certain
credibility findings made by the Trial Examiner It is the Board's established
policy not to overrule a Trial Examiner's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A 3) We have carefully
examined the record and find no basis for reversing his findings.
3 In the absence of exceptions by the General Counsel to the dismissal of
certain other allegations of alleged 8(a)(1) statements made by Respondent's
agents, we adopt the Trial Examiner's dismissal of these allegations pro
forma
4 In finding the continuance of operations illegal , the Trial Examiner
relied on Inland Trucking Co and Wesley Medhn, Co-Partners, d/b/a
Oshkosh Ready-Mix Co, 179 NLRB 358, affd 440 F.2d 562 (C.A 7, 1971).
Note that his decision preceded our decision in Ottawa Silica Company, 197
NLRB No. 53, in which Members Kennedy and Penello stated their
here to have been illegal at its inception. Since we
have determined that the lockout was illegally
motivated, we need not reach, nor do we, the
question whether Respondent's continuance of oper-
ations here was itself an illegal action.5
Our reasons for finding the lockout illegally
motivated follow.
While the Trial Examiner found numerous state-
ments by certain of Respondent's agents to be
violative of Section 8(a)(1), he declined to find that
these statements evidence the illegality of the lockout
from its inception. The evidence reveals that Respon-
dent's President Lindstrom, shortly after the employ-
ees had been notified about the lockout on Septem-
ber 17, told employee Kufahl that if the local plant
committee repudiated Norbeck, the Union' s agent,
the local plant committee could negotiate its own
contract. On the same day, Lindstrom said that
Respondent would not bargain with the Union until
the employees elected another committee and,
speaking to Kufahl, Lindstrom said that the fact the
employees were now out of work was her fault.6 Two
weeks later, Lindstrom in speaking with employee
Prentiss told her that the employees could go back to
work when they got rid of the Union. And in the
latter part of October, Lindstrom threatened in the
presence of employee Klempke that Respondent
would move its plant to another city if the locked-out
employees did not return to work on the terms set
forth in its last contract offer.? Finally, on a Saturday
morning during the lockout, Respondent's Foreman
Angus, during a discussion with locked-out employ-
ees initiated by him as to when the employees were
coming back to work, urged them to reject the Union
in favor of a smaller union.
In American Ship Building Company v. N.L.R.B.,
380 U.S. 300 (1965), the Supreme Court upheld the
legality of a lockout which was used "solely" in
support of a legitimate bargaining position. The
Court put aside those cases in which there was
substantial evidence showing that the employer had
disagreement with Inland Trucking
5 Unlike his colleagues, Member Fanning would also reach this issue and
in agreement with the Trial Examiner here and in line with his dissent in
Ottawa Silica Company, he would find the continuance of operations by
Respondent to be a per se violation of the Act.
6 As the Trial Examiner noted , Kufahl was a member of the Union, a
member of the union shop committee which met every other Monday with
representatives of Respondent on employee grievances , and a member of
the union bargaining committee , serving in that capacity ever since the
beginning of negotiations for a new contract on May 6, 1970 Furthermore,
in May or June 1970 , Kufahl was elected shop chairman by the employees.
7 This incident , which the Trial Examiner found was a violation of Sec
8(a)(1), was not alleged as a violation in the complaint nor in the amended
complaint. However, the matter was litigated at the hearing, and at the
hearing Respondent did not seek further time to pursue the factual setting
of this violation Since no extension of time was sought by Respondent at
the hearing and since the matter was litigated at the hearing , we find no
merit in Respondent 's exception that the incident should not be relied on in
our determination of this proceeding
198 NLRB No. 90
WIRE PRODUCTS MANUFACTURING CORP.
used the lockout as a means to injure the union or to
evade its bargaining duty. However, the Court noted
in N.L.R.B. v. Brown, 380 U.S. 278 (1965), that where
improper motivation of the employer is shown
through independent evidence, this antiunion moti-
vation will convert an otherwise lawful business
measure into an unfair labor practice.
Thus, even if the Respondent's lockout was
motivated in part by a desire to bring legitimate
economic pressure to bear in support of the Respon-
dent's bargaining position, the lockout was unlawful
if it was also motivated by union animus and there
was the improper intent to injure the bargaining
representative or to evade a bargaining duty.
We find such improper motivation to be demon-
strated in the various statements set forth, supra,
which were found to be violations of Section 8(a)(1).
We find that in these statements Respondent's
President Lindstrom linked the lockout with the
abandonment of the Union when he told the
employees just after the lockout was announced that
if they 'got rid of the union negotiator they could
negotiate their own contract and when he told
Kufahl, a vigorous union adherent, that the fact the
employees were out of work was her fault. By these
statements and by Lindstrom's further comment to
Prentiss that the employees could go back to work if
they got rid of the Union and by Angus' remarks to
the locked-out employees that they should form
another union, we find that shortly before and during
the lockout, Respondent attempted to induce em-
ployees to abandon the Union, attempted to induce
employees to join another union, and conditioned
the end of the lockout on the employees' abandoning
the Union. In such circumstances we are constrained
to find the lockout here was illegally motivated.8
We also find that the Respondent has violated
Section 8(a)(1) of the Act by its halting payments of
the regular individual health insurance premiums for
the employees during the time period running from
November 1, 1970, to December 9, 1970. The
stoppage of such payments, which was first threat-
ened in a letter of October 22, 1970, from the
Respondent to the employees if production was not
resumed, as it was not, was clearly the result of the
lockout which we have found was discriminatorily
motivated. Since the Trial Examiner made no
specific provision in his remedy for those employees
who suffered pecuniary losses caused by the Respon-
dent' s cancellation of such premium payments
during the time of the lockout, we will so provide for
their reimbursement in our decision.
s Cf Southern Beverage Company, Inc, 171 NLRB 926 In so finding, we
do not rely on General Counsel's argument that the Respondent further
evidenced the illegality of its lockout by its August-September 1970 recall of
employees who were in a layoff status
653
We further find that the various statements in
violation of Section 8(a)(1) made by Respondent's
agents shortly before and during the lockout, in
combination with the lockout itself, which we have
found to be illegally motivated, were actions de-
signed to undermine and destroy the Union's
majority while collective-bargaining negotiations
were taking place and that by such devices Respon-
dent demonstrated that it was bargaining in bad faith
and thereby violated Section 8(a)(5) of the Act.9
Since the Trial Examiner failed to so find in his
decision, we shall set forth the remedy for this
violation in our decision.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1), (3), and
(5) of the Act, it will be ordered that Respondent
cease and desist from such conduct and take certain
affirmative action set forth in a broad order designed
to effectuate the policies of the Act.
Having found that Respondent illegally discrimi-
nated against its employees with respect to their hire
and tenure of employment by a bargaining lockout
which was illegal at its inception, and having further
found that Respondent terminated the lockout and
unconditionally offered to all locked-out employees
full reinstatement to their former positions com-
mencing with December 9, 1970, it shall further be
ordered that Respondent make whole all its locked-
out employees, whether they returned or not after the
lockout, for any loss of earnings or other benefits
they may have suffered by reason of the discrimina-
tion against them during the lockout period, less
interim earnings, and in a manner consistent with
Board policy as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Having found further that Respondent violated
Section 8(a)(1) of the Act by halting payments of the
regular individual health insurance premiums for the
employees during November 1970 and until Decem-
ber 9, 1970, it will be ordered that Respondent make
whole its locked-out employees, whether they re-
turned or not after the lockout, for any pecuniary
losses caused by its cancellation of health insurance
premium payments during the lockout.
Having found, further, that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging
Marilyn Kufahl, it shall be ordered affirmatively that
Respondent offer her immediate and full reinstate-
ment to her former job or, if thatjob no longer exists,
9 We so find notwithstanding the General Counsel's admission and our
agreement that Respondent did not otherwise violate the Act dunng the
bargaining sessions that took place before, during, and after the lockout.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges,
and make her whole for any loss of earnings she may
have suffered as a result of the discrimination against
her by payment to her of a sum of money equal to
that which she would have earned as wages from the
date on which she was available for work after the
discrimination on March 4, 1971, to the date of
Respondent 's offer of reinstatement , less her net
earnings during such period, with backpay and
interest thereon to be computed in accordance with
Board policy as prescribed in F. W. Woolworth
Company, and Isis Plumbing, supra.
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By locking out its employees on September 18,
1970, with a discriminatory motivation of undermin-
ing, injuring, or destroying the Union, Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) of the
Act.
2. By halting payments of the regular individual
health insurance premiums for the employees during
November 1970 and until December 9, 1970,
Respondent violated Section 8(a)(1) of the Act.
3. By various statements in violation of Section
8(a)(1) made by the Respondent's agents before and
during the lockout and by the illegally motivated
lockout, Respondent violated Section 8(a)(1) and (5)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Wire Products Manufacturing Corp., Merrill, Wis-
consin , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Telling employees during a bargaining lockout
that, if the local plant union committee repudiated its
chief negotiator, a grand lodge representative, the
local plant union committee could negotiate its own
contract.
(b) Telling employees during a bargaining lockout
that it will not bargain with the Union until the
employees elect another union committee , albeit it
does thereafter bargain.
(c) Telling employees during a bargaining lockout
that they could get back to work if they repudiated
the Union and its grand lodge representative.
(d) Urging employees during a bargaining lockout
to reject the Union in favor of a smaller union also
affiliated with the AFL-CIO.
(e) Threatening during a bargaining lockout to
move the plant to another city if the locked-out
employees did not return to work.
(f) Locking out its employees with the intent to
undermine, injure, or destroy Rib Mountain Lodge
No. 2131, International Association of Machinists
and Aerospace Workers, AFL-CIO, the collective-
bargaining representative of its employees.
(g) Refusing to pay the regular individual health
insurance premium for its employees during an
unlawful lockout.
(h) Refusing to bargain with the Union as the
exclusive bargaining representative of the production
and maintenance employees.
(i) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain in good faith with the Union as the
exclusive representative of its production and main-
tenance employees.
(b) Make whole its locked-out employees, whether
or not they returned to work after the lockout, for
any loss of earnings they may have suffered by the
discrimination against them during the lockout
period, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Make whole its locked-out employees whether
or not they returned to work after the lockout for any
pecuniary losses caused by its cancellation of health
insurance premium payments during the lockout.
(d) Offer to Marilyn Kufahl immediate and full
reinstatement to her former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to her seniority, or other rights and
privileges, and make her whole for any loss of
earnings she may have suffered as a result of the
discrimination practiced against her , in the manner
set forth in the section of this Decision entitled "The
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 Order.
(f) Notify immediately the above-named individu-
al, if presently serving in the Armed Forces of the
United States , of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
WIRE PRODUCTS MANUFACTURING CORP. 655
(g) Post at its plant in Merrill, Wisconsin, copies of
the attached notice marked "Appendix." 10 Copies of
said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(h) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER RECOMMENDED that the consolidated
complaint, as amended, be dismissed insofar as it
alleges violations of the Act not found herein.
MEMBER JENKINS, concurring:
I concur in the result, but question the wisdom or
necessity of grounding the lockout violation on
Respondent's "discriminatory motivation." All of
Respondent's words and actions found herein to
constitute violations of the Act are violations without
regard to whether Respondent's motives were
"good," or "bad."
The statements made contemporaneously with the
imposition of the lockout and during it would be no
less 8(a)(1) violations. The statements having the
thrust of avoiding the bargaining obligation, of
undermining the Union, of instilling fear in the
employees, of effecting a change in bargaining
representatives, all violate Section 8(a)(1) and (5)
without reference to the purity or impurity of
Respondent's motives.
A lockout in this context is not a lockout in support
of a legitimate bargaining position and thus (as my
colleagues note) is outside the ambit of American
Ship, as the Supreme Court clearly pointed out:
It is important to note that there is here no
allegation that the employer used the lockout in
the service of designs inimical to the process of
collective bargaining. There was no evidence and
no finding that the employer was hostile to its
employees' banding together for collective bar-
gaining or that the lockout was designed to
discipline them for doing so. It is therefore
inaccurate to say that the employer's intention
was to destroy or frustrate the process of
collective bargaining.ii
We are here presented with the precise situation
which the Court thought it important to note was not
present in American Ship. Here the employer did use
the lockout "in the service of designs inimical to the
process of collective bargaining." Here the evidence
objectively establishes employer conduct inimical "to
its employees' banding together for collective bar-
gaining" and that "the lockout was designed to
discipline them for doing so." Hence the only
conclusion possible is that the lockout was unlawful
because of the Respondent's conduct and actions,
regardless of whether or not it engaged in these
actions because of some kind of subjective motive or
hostility.
In my view the foregoing renders unnecessary the
dangerous entry by the majority into the thicket of
inquiry as to an employer's subjective motives for
utilizing the lockout. It is enough for the Board to
determine the tendencies and effects of his conduct.
Excursions into psychological state of mind and
subjective motive have proven difficult and often
fruitless. In the instant case the result is unaffected,
but as decisional doctrine "motive" provides an
insecure base.
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
11 American Ship Building Co v. NLRB, 380 US 300, 308-309
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees during a
bargaining lockout that if the local plant union
committee repudiated its chief negotiator, a grand
lodge representative, the local plant union com-
mittee could negotiate its own contract.
WE WILL NOT tell our employees during a
bargaining lockout that we will not bargain with
Rib Mountain Lodge No. 2131, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, herein called the Union, until the
employees elect another union committee, albeit
we do thereafter bargain.
WE WILL NOT tell our employees during a
bargaining lockout that they could get back to
work if they repudiated the Union and its grand
lodge representative.
WE WILL NOT urge our employees during a
bargaining lockout to reject the Union in favor of
a smaller union, also affiliated with the AFL-CIO.
WE WILL NOT threaten during a bargaining
lockout to move our plant to another city if the
locked-out employees do not return to work.
WE WILL NOT lock out our employees in order
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to undermine, injure, or destroy Rib Mountain
Lodge No. 2131, International Association of
Machinists and Aerospace Workers, AFL-CIO,
their collective-bargaining representative.
WE WILL NOT refuse to pay our employees'
regular individual health insurance premiums
during a lockout which is illegally motivated.
WE WILL NOT refuse to bargain with the Union
as the exclusive bargaining representative of our
production and maintenance employees.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL bargain in good faith with the Union
as the exclusive representative of our production
and maintenance employees.
WE WILL make whole our locked-out employ-
ees, whether or not they returned to work after
the lockout, for any loss of earnings they may
have suffered by the discrimination against them
during the lockout period.
WE WILL make whole our locked-out employ-
ees, whether or not they returned to work after
the lockout, for any pecuniary loss caused by our
cancellation of health insurance premium pay-
ments during the lockout.
WE WILL offer Marilyn Kufahl immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights, privileges, or working conditions,
and make her whole for any loss of earnings she
may have suffered as a result of the discrimina-
tion against her.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Rib
Mountain Lodge No. 2131, International Association
of Machinists and Aerospace Workers, AFL-CIO.
WIRE PRODUCTS
MANUFACTURING CORP.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
I I granted the General Counsel 's motion to amend over the objection of
counsel for Respondent , indicating, however, that I would entertain a
motion from him for additional time to prepare to meet these additional
allegations , if he felt the need therefor , at the close of the General Counsel's
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceeding was
heard at Merrill, Wisconsin, on May 18, 19, and 20, 1971.
A complaint in Case 30-CA-1390 issued on December 30,
1970, based on a charge and an amended charge filed
against Wire Products Manufacturing Corp., herein called
Respondent, on September 21 and December 15, 1970,
respectively. On March 9, 1971, a charge was filed in Case
30-CA-1542, also against Respondent. Thereafter, on
March 29, 1971, the Regional Director for Region 30 of the
Board consolidated these two cases and issued an amended
consolidated complaint. The amended consolidated com-
plaint, as further amended at the hearing,' alleges that
Respondent (1) has interfered with, restrained, and coerced
its employees in violation of Section 8(a)(1) of the Act; (2)
has discriminated, in violation of Section 8(a)(3) of the Act,
against all of its production and maintenance employees,
including machine shop employees, of which employees
Rib Mountain Lodge No. 2131, International Association
of Machinists and Aerospace Workers, AFL-CIO, herein
called the Union, is the certified bargaining agent, by
locking them out, thereby depriving them of employment;
(3) has further discriminated against employee Marilyn
Kufahl in violation of this section of the Act by
discharging her on or about March 4, 1971, and thereafter
refusing to reinstate her; and (4) has refused since about
September 11, 1970, and continues to refuse, to bargain in
good faith with the Union, in violation of Section 8(a)(5) of
the Act, by engaging in the conduct described in (1), (2),
and (3), above. Respondent 's answer , as amended at the
hearing, denies that it has violated the Act in any respect
alleged herein. And by way of affirmative defenses,
Respondent alleges (1) that the lockout occurred after an
impasse had been reached in negotiations with the Union,
was undertaken by it as part of its bargaining strategy and
in an effort to avoid a strike, and was motivated by
economic considerations; and (2) that Kufahl terminated
her employment voluntarily , and, even assuming a finding
that she was discharged, such discharge was for cause.
Upon the entire record, including my observation of the
case in chief However , no such motion was made thereafter by counsel for
Respondent. Indeed, the matters so alleged were fully litigated thereafter by
him.
WIRE PRODUCTS MANUFACTURING CORP.
witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and Respondent filed herein, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The consolidated complaint, as amended, alleges, and
Respondent admits, that it is a Wisconsin corporation
engaged in the manufacture of wire products and related
items at its plant in Merrill, Wisconsin; that during the past
calendar year, which is a representative period, it pur-
chased and received directly from points outside Wiscon-
sin goods and materials valued in excess of $50,000; and
that, during the same period, it made sales across state
lines or performed services outside Wisconsin Valued in
excess of $50,000. I find, upon the foregoing, as Respon-
dent also admits, that Respondent is an employer, as
defined in Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent further admits , and I find , that Rib
Mountain Lodge No . 2131, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts; the Sequence of
Events; and the Issues Herein
Respondent is a corporate entity which came into being
on October 1, 1965. Its stockholders are Harold Lindstrom,
president; Roger Dupke, secretary; Robert Hill, treasurer;
and Godfrey Lindstrom, who holds no office and is
inactive in corporate matters. Each one owns about a 25-
percent interest in the business. The three office holders
operate more or less as a partnership, with each one
attending to a specific phase of the business. Thus, Harold
Lindstrom is in charge of the office staff, and of sales
which the Company does through manufacturer's repre-
sentatives; 2 Dupke is the Company engineer, taking care
of the estimating, working out design problems that
customers might have, and redesigning parts which
customers might want fabricated; and Hill is the works
manager and shop superintendent. In the case of Hill, he
works closely with Donald Zabawa, the production
manager, who is his immediate subordinate and is in
2 Harold Lindstrom shall hereinafter be referred to as Lindstrom or
President Lindstrom
3 The record shows that foremen, unlike their subordinates, are salaried
and do not punch a timeclock, that they direct the employees in their
respective departments, assigning them to anotherjob when they run out of
work on their given assignment, that they have the power to discipline their
subordinates , can recommend wage increases , including merit increases,
that they attend meetings with top management concerning production
problems, working conditions , and disciplinary matters, and that they are
consulted by top management on questions of hiring and firing relating to
their respective departments , and, on occasion , have been able to persuade
Hill, who has final authority as to discharges , to reverse a tentative decision
made by him as to their subordinates It is thus apparent , and I find, that
657
charge of production from start to finish, and, together,
they run the plant. The three active stockholders have the
same authority in making decisions and in policy making.
The Company operates a day shift and a night shift. At
times material herein, the foremen on the day shift were, in
addition to Zabawa, Roger Zastrow in the shipping
department, Leroy Angus in the press department, Louis
Peelers in the welding department, and one Peske in the
toolroom. There were only two foremen on the night shift,
i.e., Gordon Marnholz who was in charge of the welding
department, and Lloyd Puhl who was in charge of the press
department.3 In September 1970, Respondent had a total
complement of about 100 to 105 employees, of whom
about 85 were production and maintenance employees.
Respondent's operations are somewhat cyclical. Thus,
production is at the lowest level during June, July, August,
and most of September; it starts to pick up in late
September and reaches a peak by January which lasts
through May. As heretofore indicated, the lockout oc-
curred on September 17, 1970, which was the tail end of
Respondent's slower production period.
Respondent's production and maintenance employees
have been represented for collective-bargaining purposes
by the Union since 1968. The record shows, in this
connection, that on April 19, 1968, the Union was certified
by the Board, in Case 30-RC-843, as the exclusive
bargaining representative of the following employees of
Respondent: All production and maintenance employees,
excluding office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.4
Respondent and the Union thereafter negotiated a collec-
tive-bargaining agreement covering these employees for the
period between October 24, 1968, and September 10, 1970.
At the time of the lockout, negotiations for a new contract,
which began on May 6, 1970, were still in progress. A
stumbling block to reaching an agreement, aside from
differences as to wages and contract term, was the failure
to agree on a union shop clause. Reference will be made
hereinafter to article II of the 1968 contract between the
parties which is captioned "Modified Union Shop" and
which reads as follows:
Par. I-It shall be a condition of employment that all
employees of the employer covered by this agreement
who are members of the Union in good standing on the
effective date of this agreement shall remain members
in good standing and those probationary employees, as
defined in this Agreement, who are not members on the
effective date of this agreement shall, on the sixty-first
(61st) day following the effective date of this agree-
ment, become and remain members in good standing in
Respondent 's foremen responsibly direct their subordinates and exercise
independent judgment in doing so, and that their recommendations on
personnel matters are accorded considerable weight . In all these circum-
stances, I am persuaded , and find, that each of the above-mentioned
foremen is a supervisor within the meaning of Sec . 2(11) of the Act
Respondent admitted at the hearing that , as alleged in the consolidated
complaint , Lindstrom, Hill, and Zabawa are supervisors as well as agents of
Respondent , within the meaning of the Act
4 Although not specifically excluded from the unit , the record shows that
the electrician and the timestudy man were not part of the unit At all times
material , the incumbents in these jobs were Tom Arsenau and Harvey
Knewald, respectively
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. It shall also be a condition of employment
that all employees covered by this agreement and hired
on or after its effective date shall, on the sixty-first
(61st) day following the beginning of such employment
become and remain members in good standing in the
Union.
Par. 2-The Company will, within three (3) working
days after receipt of notice from the Union, discharge
any employee who is not in good standing in the Union
as required by the preceding paragraph.
It is noteworthy that the requirement of section 111.06,
Wisconsin Statutes , that a referendum be conducted by the
Wisconsin Employment Relations Commission in order to
determine whether or not the employees in the contract
unit favored an "all-union agreement" between Resp$ri-
dent and the Union was not held prior to the effective date
of the 1968 collective agreement . And so far as appears, the
modified union shop clause was not enforced by Respon-
dent during the contract period. Such a referendum was,
however, held during June 1970, while negotiations for a
new contract were going on; and, on June 24, 1970, the
above Commission certified that "the required number of
employees in [the aforesaid unit] voted in favor of an All-
Union Agreement between the Employer and the Union,
and the Employer may, therefore, enter into such agree-
ment." So far as appears there were at the time some 20
employees who were then not members of the Union.5
About a year before the expiration date of the initial and
only agreement between the parties to date, there was set
up at the plant herein at the instance of George Vogl, a
Federal Mediator, an arrangement whereby Respondent
and a shop committee of union members were to meet
every other Monday for the purpose of "iron[ing] out all
difficulties that arose in the shop between the workers and
management and any problems." The union shop commit-
tee was not to engage in any negotiations for bargaining
agreements . Representing the Union at these meetings
were employees Kufahl, Roy Nichols, and Willard David.
Representing Respondent were Lindstrom, Dupke, Hill,
and Zabawa. Notwithstanding the understanding as to the
scope of these bimonthly meetings , Lindstrom did request
the union shop committee sometime in April 1970 to draw
up and submit to Respondent a proposal for a new
agreement so that Respondent and it could exchange
proposals simultaneously. The committee did thereafter
prepare such a proposal, without consulting Walter J.
Norbeck, the Grand Lodge representative serving the
Union, and it was presented to management by Nichols
5 The referendum showed that there were 84 eligible voters, of whom
only 80 cast ballots, and, of these, 59 voted for, and 19 voted against, and 2
ballots were challenged
6 Schmitt testified that Dupke approached him about the end of April
1970 concerning representing Respondent in its negotiations with the Union
and that he agreed to do so, provided that he would be in complete charge
of the bargaining tactics and procedure, and with the understanding that he
would come back to Lindstrom, Dupke and Hill only for ratification of the
provisions of the final contract So far as appears, members of management
attended only the first few bargaining sessions
7 Although the 1968 contract had expired on this date, it was extended at
this meeting to September 17, with Respondent's negotiators offering to
make any raise in pay retroactive to September 10, if a new contract were
negotiated within that week However, at a union meeting held soon
thereafter, the membership considered and rejected Respondent's latest
contract offer
during an interval between bimonthly meetings. Norbeck
was thereupon notified of this action by Kufahl. He was
then in the process of drafting a contract proposal to be
submitted by the Union to Respondent. Actual negotia-
tions began on May 6, 1970. By that time, Respondent had
engaged Attorney Leonard F. Schmitt, Esq., along with
Wayne W. Hansen, Esq., a member of Schmitt's law firm,
to act as its negotiators.6 Acting as negotiators for the
Union throughout were Norbeck and the members of the
union shop committee.
In all, 10 bargaining sessions were held prior to the
lockout action by Respondent, i.e., on May 6, June 19, July
28, August 19 and 26, September 4, 5, 10,7 15, and 17. At
the last mentioned session, Schmitt presented the union
negotiators with a copy of the following lockout notice and
stated that such a notice was being posted on the bulletin
board in the plant. It was, in fact, posted on the bulletin
board in the plant at about 2 p.m. and was to the following
effect:
NOTICE TO OUR EMPLOYEES
Because we have reached an impasse in bargaining
negotiations as to wages and working conditions with
the bargaining representative of our employees, Rib
Mountain Lodge No. 2131 International Association of
Machinists and Aerospace Workers, AFL-CIO, and
because our present contract has expired, we have
decided to cease operations and close our plant as of
the close of the night shift at 1:15 A.M., September 18,
1970. The plant will remain closed for production
pending the further decision of our Board of Directors.
Dated September 17, 1970-2:00 P.M.
WIRE PRODUCTS MFG. CORP.
By President
Any employee with personal tools or equipment in the
plant should remove them not later than 1:30 A.M.,
September 18, 1970.
At the time of the lockout, as already noted, the principal
unresolved issues between the parties related to wages, the
scope of the union-security clause,8 and the contract term.
It is not contended by the General Counsel that Respon-
dent did not bargain in good faith during these sessions; 9
rather is it contended that the lockout of all the employees
in the contract unit during the course of bargaining
established the 8(a)(3) as well as the 8(a)(5) violation, since
8 As appears hereinabove, the modified union shop clause of the 1968
contract provided, in substance , that all employees who were members of
the Union on the date the contract was signed had to remain members, and
all probationary employees and new employees hired thereafter were to
become members The record shows, and I find, that during the
negotiations for a new contract which antedated the lockout , the Union
demanded an all-union shop clause as opposed to the above modified union
shop clause, and that Respondent offered first an open shop and later a
modified union shop clause but with a cutoff date of June 10 , 1970, so as
not to require membership of those employees who had not become
members of the Union as of about 10 days prior to the union shop election
held by the Wisconsin Employment Relations Board about June 20, 1970
9 In this connection, counsel for the General Counsel volunteered at the
hearing that he "has never alleged that there were any unfair labor practices
committed during the specific mechanics of the bargaining sessions "
WIRE PRODUCTS MANUFACTURING CORP. 659
it was illegally motivated as shown by (1) the conduct of
Lindstrom on or about the day of the lockout, and the
conduct by him and others, during the lockout period, of
seeking by statements to employees to undercut the status
of the Union as their certified bargaining agent, allegedly
in violation of Section 8(a)(1) of the Act, and (2) the
conduct of management about 2 weeks before the lockout
of recalling its temporarily laid-off employees for the
"express purpose" of depriving them, once they were
locked out, of the unemployment compensation to which
they would have been entitled had they not been recalled
but continued in layoff status. These allegations and the
claimed nexus between such alleged conduct and the
lockout will be treated more fully hereinafter.
During the lockout which lasted from September 18 until
December 9, Respondent carried on production on a
reduced basis by the use of (1) its supervisory personnel;
(2) two office employees, namely, Jack Lindstrom and Paul
Leopold, both of whom would have, under normal
conditions, worked on payroll and/or insurance in the
office, and were the son and son-in-law, respectively, of
President Lindstrom; and (3) the following nonunit
personnel, Tom Arsenau, the electrician; Harold Waller,
the quality control man; and Harvey Kriewald, the
timestudy man, each of them apparently doing production
work when his regular work gave out. In addition, Roger
Dupke's wife and son spent one evening doing work in the
plant. So far as appears, the supervisory and nonunit
personnel worked about 50 hours each week instead of the
usual 40 hours, and they were able to maintain production
at approximately a 25-percent level during the lockout
period. According to Lindstrom, production during No-
vember of the lockout period was about 50 percent of what
it was during the prior August, which was a slow period
and which preceded the lockout.
It would appear that five negotiating sessions were held
during the period of the lockout, the first one occurring on
September 25. The other sessions occurred on November 6,
11, 12 and 30.10 In between the first and second of these
negotiating sessions during the lockout period, Respondent
sent a letter, under date of October 22, to all its production
and maintenance employees in which it: (1) told them that
a negotiating session had been held, and that the Union
had not contacted Respondent since then to arrange
another meeting; (2) set forth, for their information, the
content of certain provisions of the offer it had made to the
union negotiating committee at that meeting;11 (3)
informed them that it had been notified by the Wisconsin
Department of Labor, Industry and Human Relations that
unemployment compensation benefits will not be paid to
the employees affected by the lockout while this labor
dispute continues; and (4) further informed them that it
had paid the regular individual health insurance premiums
for October for all employees, but will not pay the
November premium for them, and that continued coverage
under the old health insurance plan would depend upon
10 The record shows that further bargaining sessions were held, after the
lockout period, on December 18, 1970, and on January 15 and April 13,
1971 On the last mentioned date, no arrangement was made, for a
subsequent meeting.
11 I e., as to paid holidays, a health , accident and life insurance plan, a
grievance procedure , wage increases, and a management prerogative clause
payment by each employee of the entire premium for the
coverage desired, be it individual or entire family.
Another development during the lockout period was the
initiation of picketing by the Union. The picketing was
done by locked-out employees who carried signs saying
variously, "Wire Products Unfair to Local 2131"; "Ma-
chine Products Local 2131 Locked Out by Wire Products";
"Wire Products Stalling at the Bargaining Table"; and
"Wire Products on Strike against Local 2131." This
picketing, which appears to have started shortly after the
lockout began, lasted until December 9, when the pro-
duction and maintenance employees returned to work at
the instance of Respondent. The return to work was
triggered by a letter from Respondent under date of
December 5 to all its production and maintenance
employees in which it (1) alluded to the four abovemen-
tioned negotiating sessions held since the session in
September; set forth various offers made to the bargaining
committee at the November 12 negotiating session pertain-
ing to wages, vacations, increases in the disability portion
of the insurance plan, and a form of union security now in
effect in the plant of the Merrill Manufacturing Company
in the same city; (2) suggested that these items plus those
mentioned in its October 22nd letter to them add up to a
fair and honest proposal, yet it was turned down by
Norbeck, the Union's chief negotiator; (3) announced that
the plant "will reopen for regular production" on Wednes-
day, December 9, and invited all employees to return to the
jobs they held at the time of the lockout and gave them
until Monday, December 14, to do so or be permanently
replaced; and (4) set forth certain increased benefits
commencing December 9, which it assertedly had thereto-
fore offered to the Union,12 explaining in its letter that
"Because an impasse has been reached in negotiations, the
Company has a right to reopen the plant and to provide
some of the benefits that we offered to the Union."
About 10 or 12 of the locked-out employees did not
return to work on December 9 or thereafter.13 Although
employee Marilyn Kufahl was among the employees who
did return, her employment ceased on March 4, 1971.
Respondent takes the position that she quit her employ-
ment at that time , and further, even assuming that it
discharged her, the discharge was for cause. The General
Counsel contends that she did not quit but was discharged
for union-connected reasons. This issue will also be treated
more fully hereinafter.
B. Findings of Fact and Conclusions as to the
8(a)(1) Allegations
1. Preliminary observations
As heretofore noted, the 8(a)(1) allegations of the
consolidated complaint, as amended, refer to conduct by
representatives of management on or about September 17,
1970, and thereafter. It is noteworthy, however, that this
12 The benefits involved general wage increases , a shift premium for the
second shift, additional paid holidays, increased insurance benefits, washup
periods, and break periods
13 It would appear, however, and I find , that they, like those who
returned, were offered unconditional reinstatement to their former positions
beginning with their regular work shift on December 9, 1970
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred against a backdrop of antipathy, both to the
Union because it was part of a large international union
associated with the AFL-CIO, and to dealing with
Norbeck as the representative of its employees. Illustrative
of this are the statements made by management at certain
bimonthly meetings to the union shop committee.14 In this
connection, there is uncontradicted testimony by employee
Kufahl, which I credit, that: (a) during a bimonthly
meeting, the approximate date being sometime in April
1970, Lindstrom told the shop committee that "We did not
need Walter Norbeck to negotiate our contract, we should
do this ourselves"; (b) during a bimonthly meeting in May,
and again in June, Hill told the shop committee that "They
didn't want to negotiate with Norbeck, the IAM. They
didn't want the IAM union in there. It was too big"; and'.
(c) during one of the June bimonthly meetings, after
Lindstrom had raised the matter of negotiations and
Kufahl answered that negotiations were not to be conduct-
ed at such meetings, Zabawa said, "Walter Norbeck will
not let you negotiate your own contract"; to which
Lindstrom said, in turn, that "Walter Norbeck has no idea
how a small company is run, he has big ideas and too big
for a small company"; and Hill added, "We will settle for
or agree to a small company union, just the people from it.
This [we] will go along with. But, Walter Norbeck and the
IAM union was too big."
2. The allegations of paragraphs 7(a) through 7(d)
of the consolidated complaint, as amended
Paragraphs 7(a), (b), (c), and (d) allege, respectively, that
on or about September 17, 1970, 15 Lindstrom made the
following remarks contravening the Act : If the Union were
repudiated the employees could go back with no further
problems; if the union committee were repudiated,
Respondent would bargain in good faith with the employ-
ees; if the local plant union committee repudiated
Norbeck , the local plant union committee could negotiate
their own contract ; and Respondent would not bargain
with the Union until the employees elected another union
committee . The record shows that on September 17, at
about quitting time for the day shift , which occurred at
3:30 p .m., and about an hour and a half after the lockout
notice was posted on the plant bulletin board, Lindstrom
appeared in the plant proper, approached various employ-
ees and made comments in a shouting voice to them about
the impending lockout . According to Kufahl , she was on
her way to the shipping room in order to get a large fan of
hers,16 when she met Lindstrom and the following
occurred: After telling Lindstrom what she was doing,
Lindstrom remarked to her , "All of these people out of
work and it is all your fault . . . You cannot get
unemployment , I've checked with Madison , and with
Wausau , 17 and no unemployment will be paid in a labor
dispute ." Lindstrom followed her as she moved through
the plant . After she picked up her fan , she went to the
14 Testimony concerning the above was introduced by the General
Counsel as background and I received it on that basis
1s All dates mentioned hereinafter, except in respect to the unfair labor
practice allegations involving Kufahl , are in 1970
16 In the lockout notice, the employees were told to remove their
personal tools and equipment from the plant
timeclock in order to punch her card. At that point,
Lindstrom shouted to her, "We have told you repeatedly
that we will not negotiate a contract with Walter Norbeck,
you have to negotiate your own contract . . . when will
you people realize you have to negotiate your own contract
... there's 100 people out of work and it's all your fault."
Employees Roy Nichols, Elaine Rice, Richard Rice, and
Willard David also testified concerning statements made
by Lindstrom in their presence at the timeclock about 3:30
p.m. that day. According to Nichols, Lindstrom said, in
substance, that the employees were offered a package of 60
or 65 cents but it was turned down 18 and that if they would
get rid of Norbeck and the committee it would be to their
advantage. He was not sure who else was there at the time,
explaining that he was moving through the plant with his
toolbox when he heard Lindstrom make these remarks,
albeit, not the whole conversation. According to Elaine
Rice, Lindstrom was talking to Kufahl when she arrived at
the timeclock and she heard him say that, "If [the
employees] got rid of the Union [they would be] better off
and that's what [they] should have done." She testified
further that when Kufahl walked out of the plant at this
point, saying that the employees would be filing for
unemployment compensation, Lindstrom yelled real loudly
that there would not be any unemployment compensation;
whereupon she queried Lindstrom on the last point and he
gave her the same answer as he gave to Kufahl, explaining
that he had checked this matter out with lawyers in
Chicago. Further, according to employee Richard Rice, the
husband of Elaine Rice, he heard Lindstrom say to Kufahl
and to a few other people that they should have accepted
the money package that Respondent had offered, that they
would not be getting any unemployment compensation
during the lockout, that the employees would be sorry they
did this, and finally that if the employees had rid
themselves of the Union, they would not have had this
trouble. And lastly, Willard David testified that he saw
Lindstrom talking to Kufahl at the timeclock, but he was
not paying too much attention to what Lindstrom was
saying. He did recall, however, that, as he was leaving,
Lindstrom said to him, "Willard, I thought you had more
sense than to let something like this happen." In addition,
the General Counsel adduced testimony by employee
Romona Gano that she heard Lindstrom say to employee
Helen Schultz about 2:10 p.m. on the day of the lockout, in
the vicinity of the timeclock, that "until they get a different
committee we can't do anymore talking."
Both Hill and Lindstrom testified for Respondent in
regard to the above. According to Hill, he saw Lindstrom
at the timeclock about 3:30 p.m. but he heard only the
exchange between Lindstrom and Elaine Rice on the
matter of unemployment compensation for the locked-out
employees. And Lindstrom could recall only that he
discussed the matter of unemployment compensation with
Kufahl on that occasion. While he denied generally having
made to employees any of the remarks alleged in the
17 The reference was, I find , to inquiries made by him concerning
unemployment compensation for locked-out employees at the office of the
Wisconsin Department of Labor, Industry and Human Relations in these
cities
1s As already found, the membership had, in fact, voted against
accepting Respondent's latest offer at a union meeting about a week before
WIRE PRODUCTS MANUFACTURING CORP. 661
consolidated complaint, as amended, he admitted that he
had been drinking before 3:30 p.m. that day and that he
was not "in complete control of [his] senses at the time" 19
of these alleged remarks. While I am satisfied, and find, on
the basis of this testimony and that of Kufahl and Elaine
Rice, that Lindstrom was under the influence of liquor at
the time, the fact remains that the foregoing attributions to
Lindstrom by the witnesses for the General Counsel stand
unchallenged on the record in all significant respects. For,
Lindstrom's general denial is entitled to no probative
weight in the light of his admissions that his condition was
such that he cannot recall what he said, other than his
remarks to Kufahl concerning unemployment compensa-
tion. In these circumstances, and as there is no warrant for
finding on this record that Lindstrom's remarks were not
seriously regarded by the employees involved, and as these
attributions to Lindstrom are rendered increasingly plausi-
ble when measured against the credited background
evidence that Lindstrom, among others in management,
was antipathetic both to the Union because it was part of a
large international union associated with the AFL-CIO,
and to dealing with Norbeck as the representative of its
employees, I conclude, and find, that Kufahl, Nichols,
Elaine Rice, Richard Rice, David, and Gano gave credible
testimony and that Lindstrom made the remarks attributed
to him by each of them.
An analysis of the above testimony of the General
Counsel's witnesses , however, reveals that the record is
devoid of any testimonial support of paragraphs 7(a) and
(b), but that there is substantial supportive testimony of the
allegations in paragraph 7(c) that Lindstrom said that, if
the local plant union committee repudiated Norbeck, the
local plant union could negotiate their own contract, and
in paragraph 7(d) that Lindstrom said that Respondent
would not bargain with the Union until the employees
elected another union committee. Accordingly, I find that,
by the conduct alleged in paragraphs 7(c) and (d), which
was calculated to, or tended to, undermine the Union,
Respondent interfered with, restrained, and coerced its
employees in their Section 7 rights under the Act, in
violation of Section 8(a)(1) of the Act. And I find further
that the record falls short of sustaining paragraphs 7(a) and
(b) of the consolidated complaint, as amended.
3. The allegations of paragraph 7(e) of the
consolidated complaint, as amended
This paragraph alleges that on or about September 30,
1970, while in a tavern in Merrill, Wisconsin, Lindstrom
remarked to locked-out employees, who were present, that
the only way they could get back to work was by
repudiating the Union. Employee Myrtle Prentiss testified
that about 2 weeks after the lockout began,20 she was in the
Corner Tap, a tavern in Merrill, Wisconsin, which she
frequented, and found Lindstrom there; that she asked
Lindstrom when the locked out employees were going back
19 According to Lindstrom, he had a heart condition and his doctor had
told him that it would not hurt if he had a little brandy or whiskey
occasionally.
20 This date would appear to approximate that alleged in par. 7(e).
21 Respondent cites the case of Tomco Studs Co. Inc., 170 NLRB 428, in
support of its position that it should not be held responsible for Lindstrom's
to work and that Lindstrom replied, "You girls know when
you can go back to work, when you get rid of Norbeck and
the Union." Here again, Lindstrom denied making the
above remark attributed to him by Prentiss . He admitted
that he was probably at the Corner Tap at the times
testified to by his employees, including Prentiss, and added
that there was one time when, because of the number of
drinks he had consumed, he was not in control of his
senses , and that, consequently, he does not recall what he
said on that occasion. On this state of the record, I cannot
find that Lindstrom was under the influence of liquor at
the time of the episode testified to by Prentiss. And since
Prentiss impressed me as a more credible witness than
Lindstrom, I credit her and find that Lindstrom made the
remarks attributed to him above by her. Moreover, even
assuming that Lindstrom was under the influence of liquor
at the time, I find, for the reasons already given in the
instances involving the attributions to him by employees
on September 17, that this circumstance would not alter
my finding above that he made these remarks to Prentiss
and that Respondent is answerable therefor. Accordingly, I
conclude, and find, that Respondent thereby contravened
the Act in violation of Section 8(a)(1) of the Act.21
4. The allegation of paragraph 7(f) of the
consolidated complaint, as amended
This paragraph alleges that, about the time referred to in
paragraph 7(e) and at the same place, Hill told employees
of Respondent that they would get better wages and
working conditions if they repudiated the Union. There
was testimony by employee Ruby Tupa attributing such a
remark to Hill at the Corner Tap about a month earlier,
namely, on or about September 1. According to Ruby
Tupa's direct testimony, the following occurred: She was at
the tavern with Prentiss on that occasion, after work; Hill
was also there and a conversation ensued between Hill and
them. At one point, they asked him why the work was so
slow and he replied that "with the union contract the way
it was work would be slow until that was settled" and that
"without a union [they] would get better wages and [they]
wouldn't be . . . running out of work right now."
However, on cross-examination , she indicated that the
question put to Hill was whether they were going to be laid
off and Hill answered that "with a union they just couldn't
tell how the work was going to go." Ruby Tupa then
omitted any attribution to Hill concerning what the
situation would have been as to wages and available work
in absence of a union. And, I note also that, during cross-
examination, she testified that although Prentiss was
standing in the immediate vicinity , Prentiss claimed that
she did not hear the conversation. Accordingly, in view of
the differing versions given by Ruby Tupa on direct and
cross-examination as to what transpired, in view of the
absence of any corroborating testimony by Prentiss
although she was in the immediate vicinity, and also in
remarks to employees made while at the bar, called the Corner Tap.
However, as that case is clearly distinguishable on its facts from the instant
situation , it is not controlling herein and does not militate against any of the
8(a)(1) findings as to remarks made by Lindstrom to employees while at the
Corner Tap.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of Hill's denial that he made the remarks attributed to
him by Ruby Tupa on this occasion, I conclude, and find,
that the record fails to preponderate in favor of a finding
that, on about September 1, 1970, or thereafter, Hill made
any of the remarks attributed to him by Ruby Tupa. It
follows therefrom, and I find further that, apart from any
other considerations, the record fails to sustain the
allegations of paragraph 7(f) of the consolidated com-
plaint, as amended.
5. The allegations of paragraph 7(g) of the
consolidated complaint, as amended
This paragraph alleges that on or about September 14,
Foreman Lloyd Puhl told employees in the plant that they
would get better wages and working conditions if they
repudiated the Union. Employee Thomas Tupa placed
such a conversation about a week before the lockout of
September 17. According to him, he approached Puhl in
the press department either before or after he had punched
his timeclock and inquired as to how things were going. He
testified readily that Puhl then said that things were not too
good, that things were slow. And it was only after he could
not recall what else was said that he testified piecemeal, in
response to two leading questions (i.e. as to what was said
as to working conditions, and as to what was said
concerning wages), that Puhl also said that working
conditions would be better without the Union, and that
wages would be better without the Union. Puhl, on the
other hand, dented making any such remarks to Respon-
dent's employees on September 14 and could not recall
ever making such a statement to Thomas Tupa. In view of
the fact that Thomas Tupa initiated the conversation, in
view of the manner in which the foregoing attributions to
Puhl were adduced from Thomas Tupa, in light of Puhl's
denial of these attributions, and as Puhl impressed me as a
more reliable witness than Thomas Tupa, I credit Puhl's
denial and find that the record fails to preponderate in
favor of a finding that Puhl made the remarks to
employees alleged in paragraph 7(g). Accordingly, I
conclude, and find, that the allegations of paragraph 7(g)
of the consolidated complaint, as amended, have not been
sustained.
6. The allegations of paragraph 7(h) of the
consolidated complaint, as amended
This paragraph alleges that on or about October 15,
Foreman Leroy Angus told employees, while outside the
plant, that they should form a smaller union of their own.
Employee Sandy Becker testified to an episode along these
lines that occurred on the Saturday morning before
Thanksgiving. At that time, according to Becker, she and
other locked-out employees were standing in front of the
factory, by the office door, when Angus approached them,
and the following occurred: Angus asked, "When are you
people coming back to work? . . . we sure miss you." At
this, she responded with, "Why don't you open the doors
we'll come back in?" Angus rejoined with, "I don't know
why you people don't form your own small union .. . you
can still be affiliated with the AFL-CIO." Her retort to this
was, "Yeah, where would be sitting with someone else?
... at least now we're getting $40 a week . . . it may not
be a heck of a lot but at least it's putting food on our
tables." Becker's testimony was corroborated, in substan-
tial part, by that of employee Marian Giese.22 There was
also testimony by Angus in respect to the above. He denied
making the statement attributed to him in this allegation to
any employee, including Becker, and insisted that, while he
recalled seeing Becker on the picket line, he did not recall
talking to her, "not to the extent of any conversation, no."
On the entire record, including the fact that Becker's
testimony was corroborated in large part by that of Giese,
and the fact that both of them impressed me as more
reliable than Angus, I credit them rather than Angus and
find that Angus made the remarks attnbuted to him by
Becker on this occasion. Accordingly, I find that, by urging
employees to reject the Union in favor of a smaller union,
also affiliated with the AFL-CIO, and seeking thereby to
undermine the established bargaining agent of its pro-
duction and maintenance employees, Respondent re-
strained and coerced its employees in violation of Section
8(a)(1) of the Act.
7. Matters which were not alleged as violations of
the Act but which were litigated herein
The General Counsel introduced testimony by employ-
ees Willard David and Glorian Klempke attributing
threats to move the plant to Lindstrom. There is testimony
that Lindstrom made such remarks on two different
occasions in October. According to David, the following
occurred on the occasion involving him: He was at the bar
of the Corner Tap one afternoon about a month after the
lockout began, having a beer; employee Lucille Holzum23
and Lindstrom were also at the bar. Lindstrom was talking
to Holzum and said that he was directing his remarks to
her and not to him. At this point, Lindstrom started to talk
louder to Holzum and said that "they were going to open
another plant in another city if this wasn't settled soon24
and just move out there, and they had enough money to
open three more plants if they wanted to." In the same vein
was the conversation testified to by Klempke. According to
her, she was at the bar of the Corner Tap around the end of
October; Lindstrom and two men from Chicago related to
the bartender were also at the bar. Lindstrom was then in
conversation with these two men, who were sitting between
Lindstrom and her, and the following occurred: Lindstrom
told them that "us people don't want to work that we
rejected this contract that they had offered and if they
didn't come across or start working pretty soon he would
start another plant in Sturgeon Bay . . . he already had the
lot, it was overlooking the Bay, and they were going to
build him a factory down there, and that he could hire help
down there a lot cheaper than what he could here, for $1.60
and $1.65 an hour." She did not say anything up to this
point, but when Lindstrom spoke further of what he had
offered the production and maintenance employees over
the contract period, and added that the Union had locked
22 She and several other named employees were present at the time 24 I infer, and find, from the context of these remarks and the entire
23 Holzum did not testify in this proceeding record, that the reference was to the lockout
WIRE PRODUCTS MANUFACTURING CORP.
Respondent out, she took issue with him as to how much
the offer would mean to the employees in dollars and
cents, and as to who did the locking out. During its case in
chief, Respondent adduced testimony only relating to the
above episode involving Klempke and Lindstrom. And as
to this, Lindstrom was unable to say whether Klempke and
he were at the bar in the Corner Tap at the time testified to
by her in October; and, further, he could not recall making
any statements like the one relating to Sturgeon Bay, as
mentioned by her. As Klempke impressed me as a truthful
witness, and as Lindstrom failed specifically to deny her
account of the episode, and in light of the entire record, I
conclude, and find, that Lindstrom made the remarks
attributed to him by Klempke and that Respondent
thereby threatened to move its plant to another city if the
locked out employees did not return to work on the terms
set forth in its last contract offer, in violation of Section
8(a)(1) of the Act.25
C. Findings of Fact and Conclusions as to the
8(a)(3) Allegations With Respect to the Lockout
Itself
The General Counsel contends that the instant lockout
situation does not involve an employer's protected conduct
of using a temporary layoff of employees solely as a means
to bring economic pressure to bear in support of his
bargaining position, after an impasse has been reached, as
was the case with the offensive lockout in the American
Shipbuilding Co. case.26 Rather does it involve, his
argument continues, the use by an employer of a
temporary layoff with the illegal objective of injuring a
labor organization, a type of offensive lockout which the
Board has, since the American Shipbuilding Co. case, held
to be violative of the Act. That there was such illegal
motivation, he further asserts, is clear from the contempo-
raneous conduct of Lindstrom and other members of
management alleged herein to be violative of Section
8(a)(1) of the Act, and from the conduct of Respondent, 2
weeks before the lockout, of recalling its temporarily laid-
off employees for the "express purpose" of depriving them,
once they were locked out, of the unemployment compen-
sation to which they would have been entitled had they
continued in layoff status. The General Counsel also
contends, in the alternative, that, even if the original
lockout was lawful, Respondent nevertheless violated
Section 8(a)(3) of the Act by continuing operations during
the offensive lockout period by using replacement labor
consisting of supervisory and nonunit personnel , citing as
authority therefor the case of Inland Trucking Co. v.
N.L.R B., 440 F.2d 562 (C.A. 7), affg. 179 NLRB No. 56.
Respondent contends, on the other hand, that the lockout
was a defensive action by it in anticipation of a strike, and
was taken only after an impasse had been reached during
good-faith negotiations; that the recall of a number of
employees who had been laid off during the slack August
25 See Textile Workers Union of America v Darlington Manufacturing
Company, et at (In 20), 380 US 263
I find it unnecessary to, and do not , pass upon David's testimony detailed
above, as neither Holzum nor Lindstrom , the two principals involved in the
episode , testified with respect thereto and, in any event , a finding based
thereon would merely be cumulative on the issue of a threat by Respondent
663
period was not illegally motivated but was, instead, part of
its preparation for a strike as these employees were used to
move out the work then in'progress and to deplete its
inventory preparatory to a strike; and further that the
otherwise legal lockout was not tainted by statements
attributed to various company officials, because (1) the
conduct of negotiations and responsibility for deciding
upon strategy rested entirely upon attorney-negotiators
completely removed from Respondent's operations so that
there was a clearly recognizable line of demarcation
between them and the Company's officials; (2) even
assuming that the line of demarcation argument is rejected,
any motivation attributed to Lindstrom cannot taint the
true motivation for the lockout, as ownership of Respon-
dent was divided equally among Hill, Dupke, and
Lindstrom, with each having an equal and separate voice
in management decisions, which required the concurrence
of at least two of them; and (3) assuming still further that
the aforesaid divisions of responsibility argument is
rejected, these attributions to management fail to establish
discriminatory motivation and do not, in their totality,
establish union animus sufficient to taint the lockout
action.27
It is apparent that the foregoing contentions of the
parties raise the ultimate questions of (1) whether the
lockout was an offensive or defensive one, the General
Counsel maintaining the former and Respondent the
latter; (2) whether, if it was the former, it was vulnerable
because it was illegally motivated; and (3) whether, if the
lockout was lawful initially, Respondent nevertheless
violated the Act by continuing operations during the
lockout with supervisors and nonunit personnel.
As to the nature of the lockout, Respondent asserts that
the lockout was a defensive action in anticipation of a
strike and gives as the reason for its preoccupation with a
strike (1) the fact that negotiations had been held since
May 6, 1970 "without any apparent success"; (2) the fact
that the strike record of Walter Norbeck, the union
negotiator, was well known to Respondent's negotiators;
(3) the fact that, as the existing contract with an expiration
date of September 10, 1970, drew to an end, Respondent's
negotiators sensed a pattern in Norbeck's style which
tended to steer away from substantive issues and instead
resulted in interminable discussions about areas previously
discussed; (4) the fact that Federal Mediator Vogl, on at
least two occasions, characterized the union security issue
as a stumbling block and warned that "he'll take them out
on that"; and (5) the statement of Willard David, a
bargaining committee member, to Robert Hill on Septem-
ber 10, when the latter posted Respondent's latest offer to
the Union on the shop bulletin board, that "if Norbeck
could see that, he'd call a strike right now."
I am persuaded, however, that the aforesaid reasons do
not withstand scrutiny. Thus, as to (1), at the time of the
lockout about 4 months had elapsed since the start of
negotiations, 10 negotiating sessions had been held, and
to move its plant.
26 380 U S 300 See more detailed discussion infra
27 In view of my findings hereinafter based on (3), 1 need not, and do
not, spell out my reasons for finding contentions (1) and (2) to be lacking in
merit
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unsettled issues between the parties were union
security, wages and contract term.28 While both Respon-
dent and the Union were apparently disappointed with the
failure to reach agreement in these areas on their own
terms , there is no warrant for finding that the Union's
failure to reach agreement was tantamount to a threat of
strike action. That this is so is underscored, inter alia, by
the uncontradicted and credible testimony of Kufahl and
David, who were members of the union bargaining
committee , and by Norbeck, the chief negotiator for the
Union, that no threat to strike was made during these
sessions , by the further credited and uncontradicted
testimony of David that, on September 17, when Respon-
dent's negotiators handed the Union's negotiators a copy
of the lockout notice which had dust prior thereto been
posted by Respondent on the plant bulletin board,
Norbeck offered to continue working under the old
contract, and by the lockout notice itself, which Lindstrom
testified gave the only reasons for the lockout, and which
attributed the lockout to the impasse reached in negotia-
tions and to the expiration of the contract and made no
mention of a strike threat. As to (2), Respondent's mere
assertion , unsupported by any specific proof herein, that
Norbeck had a record of resorting to strike action as a
tactic to gain his contract demands and that its negotiators
were aware thereof, carries no probative force. Indeed,
even assuming that he had pursued such tactics in the past,
no case has been made 'out here to support a finding that
he gave Respondent's negotiators cause to anticipate strike
action here.29 As to (3), there is testimony by Schmitt and
Hansen , Respondent's negotiators, in effect accusing the
Union of using stalling tactics during negotiations in
September, toward the end of prolonging negotiations into
Respondent's busy season when strike action by it would
be more effective. Absent either a contention herein that
such tactics as the Union used constituted bargaining in
bad faith or any basis on this record for so concluding, and
absent any warrant for concluding that the Union was
contemplating strike action at some time after the slow
season ended, I am unable to find any merit in this
argument. As to (4), there is testimony by both Schmitt and
Hansen, in substance, that, on at least two occasions,
Federal Mediator Vogl, in reporting back to them during
negotiating sessions , raised the subject of strike action over
the union-security issue, which was a stumbling block to
reaching an agreement. I note, however, that Schmitt's and
Hansen's versions were at variance with each other. Thus,
Schmitt testified that Vogl told them on these occasions
that "he [Norbeck] was going to take them out on the
union security issue," whereas Hansen testified that Vogl
said "that he felt that they would take them out, meaning
the Union would take the employees out on this issue."
Accordingly, in the absence of any testimony by Vogl
concerning these episodes, in view of the material variance
28 In his brief, the General Counsel states , in relevant part, "The
deadlock in negotiations was created by the Company 's insistence that it
could not live with the existing modified union shop clause " In view of this,
and his further concession that Respondent did not engage in bad-faith
bargaining before the lockout, I conclude , and find, as Respondent also
contends, that a bona fide impasse had been reached by the parties by
September 17 on the issue of union security.
29 1 note, in this connection , that, in response to a question from the
between the respective versions of Schmitt and Hansen, in
that Hansen's version is much more tentative than that of
Schmitt and implies speculation by Vogl as to what might
happen if the union-security issue was not resolved, and in
light of the denial by Norbeck that he ever conveyed to
Vogl during these negotiations any threat to strike over the
union-security issue, as well as the absence of any evidence
that the Union made any preparations for a strike during
this period, such as taking a strike vote among its members,
I conclude here, too, that no finding adverse to the Union
can be predicated thereon. And finally, as to (5), even
granting that David made the remark that Norbeck would
call a strike right now if he were to see Respondent's
posting on the bulletin board on September 10 of its latest
offer to the Union, I am satisfied, and find, that the clear
import of David's remarks was that he was not speaking
for Norbeck but was speculating, on the basis of his own
reactions to the posting, as to what Norbeck might do.
Accordingly, here too, I draw no implication adverse to the
Union from David's remark.
While the Board has heretofore sustained an employer's
defensive action of locking out his employees where a
strike was threatened and there were unusual circum-
stances to support the employer's action,30 this is not such
a case. As found above, the record fails to support a
finding that the lockout action here was taken in
anticipation of a threatened strike. Rather does it appear
that such action, as set forth in the lockout notice itself,
was taken because of the impasse reached in negotiations
and because of the expiration of the 1968 contract.
Accordingly, I conclude, and find , in agreement with the
General Counsel, that Respondent acted offensively rather
than defensively when it locked out its employees on
September 17, effective as of September 18.
We come now to the General Counsel's contention that
the instant offensive lockout is vulnerable because it was
illegally motivated. In this connection, he relies on the
8(a)(I) conduct herein and on the conduct of management
about 2 weeks before the lockout of recalling its temporari-
ly laid-off employees for what he asserts was the "express
purpose" of depriving them, once they were locked out, of
the unemployment compensation to which they would
have been entitled had they not been recalled but
continued in layoff status. As to the former, I have
heretofore found violative of the Act (1) Lindstrom's
conduct on September 17, shortly after the employees were
notified of the lockout, of telling employee Kufahl that if
the local plant union committee repudiated Norbeck, the
local plant could negotiate their own contract; and also
told employee Schultz that "until [the employees] get a
different committee we can't do any more talking"; (2)
Lindstrom's conduct about 2 weeks later of telling
employee Prentiss that the employees can go back to work
when they get rid of the Union; (3) Foreman Angus'
undersigned as to whether he ever asked Norbeck if the employees intended
to take stoke action, Hansen replied , "We assumed that would happen . .
We were quite aware of Mr. Norbeck 's record in this area and didn't need
to get confirmation at this time."
30 Duluth Bottling Association , et a!, 48 NLRB 1335, International Shoe
Company, 93 NLRB 907, Betts-Cadillac Olds, Inc, 96 NLRB 268; and
Central California Chapter the Associated General Contractors , et a!, 105
NLRB 767.
WIRE PRODUCTS MANUFACTURING CORP.
statement on or about October 15, during a discussion with
locked-out employees initiated by him as to when they
were coming back to work, urging them to reject the Union
in favor of a smaller union, affiliated with the AFL-CIO;
and (4) Lindstrom's threat made in the presence of
employee Klempke around the end of October that
Respondent would move its plant to another city if the
locked-out employees did not return to work on the terms
set forth in its last contract offer. While it is true that the
foregoing conduct establishes that once the lockout was
announced, Respondent engaged in unlawful conduct
which was calculated to, or tended to, undermine the
Union as the certified bargaining agent of Respondent's
employees, such conduct, particularly when viewed against
the General Counsel's concession that Respondent did not
engage in bad-faith bargaining prior to the lockout, is
arguably just as consistent with a finding that it derived
from the fact that the lockout situation was already in
being as with a finding that it mirrors some operative
considerations in effecting the lockout. And this is so
notwithstanding employee Edward Jahns' testimony that,
on or about August 21, after a negotiating session between
Respondent and the Union, Lindstrom said to Hill in the
plant, in his presence, that "if we didn't get rid of Marilyn
Kufahl and Willard David they would lock us out on
September 10th." Lindstrom denied making the above
statement. It is noteworthy that Jahns was not certain of
the date or the time of day when this occurred and could
not recall what else was said by either Hill or Lindstrom. In
all these circumstances, including the fact that Jahns did
not impress me as a reliable witness, I do not credit this
testimony. I am therefore unable to conclude on the basis
of the 8(a)(1) findings herein alone that the record
preponderates in favor of a finding that the lockout was
illegally motivated.31
The other contention as to illegal motivation is addressed
to the consequences in terms of loss of unemployment
compensation to some of Respondent's employees because
Respondent recalled them from layoff status on either
August 31 or September 1, about 2-1/2 weeks before the
lockout, rather than allow them to remain in layoff status
and continue to receive unemployment compensation. This
contention carries the implication that the lockout was
already planned and a certainty at the time these laid-off
employees were recalled, and that Respondent sought by
recalling them and then locking them out to impair their
financial situation and thereby lessen their support of the
Union during the lockout 32 The record establishes, in this
connection, that the month of August and most of
September fell during Respondent's slow season; that, in
August, some of these laid-off employees had been asked
to, and did, take voluntary leave, subject to recall; that
these laid-off employees were recalled while work was still
31 See United States Pipe & Foundry Co., 180 NLRB No. 61.
32 Sixteen employees were in layoff status during August out of a total
complement in excess of 80 production and maintenance employees. Of
these 16 , 13 returned to work at the instance of Respondent on August 31,
and two returned on September 1, and one did not return to work before the
lockout, although requested to do soon September 8.
33 Employees Evelyn Arndt, Marian Giese , and Marlene Hinz gave
mutually corroborative testimony to this effect, which I credit.
34 1 note, too, from the credible testimony of Kufahl that Lindstrom told
665
slow; that work continued to be slow until the time of the
lockout, with the consequence that many of them were
doing their regular work only part of the time and dividing
the rest of their time between washing windows and walls,
sweeping and cleaning in the plant proper and in the office,
stacking barrels, and handling occasional assignments to
the shipping department; and that, on September 10,
Lindstrom told employees in the plant that they would not
get unemployment compensation if they were locked out,33
notwithstanding the fact, admitted by him at the hearing,
that while he had made inquiries, he was not sure on
September 17, the day the lockout was announced, that
this was so.34 However, the foregoing must be appraised
against the following: (1) Respondent's explanation in its
brief for its basic action in recalling its laid-off employees
daring the slow season, i.e., that "it did so in order to move
out the work in progress and to deplete its inventory
preparatory to a strike" is not so unreasonable as to
warrant an inference of illegal motivation in this claimed
business judgment; (2) construing the record evidence
most favorably to the General Counsel, it establishes only
that, at the time the above employees were recalled, the
lockout was viewed by Respondent as an available
bargaining technique in the event no new contract was
concluded with the Union by the end of the contract
period; and (3) it is patent that Respondent could not have
foretold to a certainty what the decision of the Wisconsin
Department of Labor, Industry and Human Relations
would be on the issue of entitlement of its employees, if
locked out, to unemployment compensation.35 On balance,
therefore, I am unable to find that this contention has been
sustained by the record.
In sum, I conclude, and find, for the reasons indicated
above, that the evidence with respect to the General
Counsel's above contentions, whether such contentions are
considered separately or in combination, does not warrant
a finding that the lockout was illegally motivated.
D. Conclusions as to the 8(a)(5) Allegations of the
Consolidated Complaint, as Amended
It follows from the findings immediately above that,
contrary to the General Counsel, no violation of Section
8(a)(5) of the Act can be predicated on the theory that
contract negotiations were interrupted by an illegally
motivated lockout. Accordingly, I conclude, and find, that
the 8(a)(5) allegations of the consolidated complaint, as
amended, have not been sustained by the record.36
E. Findings of Fact and Conclusions as to the
8(a)(3) Allegations in Continuing Operations After
the Lockout
There still remains the General Counsel's further
her immediately after the lockout was announced that there would be no
unemployment compensation paid.
35 This would, of course , involve a mixed question of law and fact and
the factual situation was still unfolding. Such a decision was rendered by
this Department on January 22, 1971. In it, the locked-out employees were
found to be ineligible for benefits during the lockout period.
36 The General Counsel makes no contention herein that Respondent
contravened this section of the Act during the bargaining that took place
during the lockout and thereafter.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that , in continuing operations after the lockout
with supervisors and nonunit personnel , Respondent
violated Section 8(a)(3) and ( 1) of the Act . In the American
Shipbuilding Co., case ,37 the Supreme Court found no
violation of Section 8(a)(3) or 8 (a)(1) in an employer's
conduct , after bargaining impasse , of temporarily shutting
down his plant and laying off his employees for the sole
purpose of bringing economic pressure in support of his
legitimate bargaining position . It left open , however, the
situation now under consideration , saying, "We intimate
no view whatever as to the consequences which would
follow had the employer replaced his employees with
permanent replacements or even temporary help " (emphasis
supplied). More recently, the Board and the Court of
Appeals for the Seventh Circuit were confronted with t#i's
unresolved situation in Inland Trucking Co. v. N. L.R.B.,
440 F .2d 562 (C.A. 7). There, separate employers, after
locking out their respective union employees temporarily,
utilized supervisory personnel and new employees to do
the work ordinarily done by these locked-out employees.
At the time of this offensive lockout , negotiation of new
collective-bargaining agreements had allegedly reached an
impasse and a strike was , as here , not imminent . The court,
in enforcing the Board 's order, said , in relevant part:
We conclude that the bargaining lockout , which was
held in American Ship not to be inconsistent with
protected employee rights, does become so if the
employer does not shut down , but continues operation
with temporary replacements. Such lockout forecloses
the employees ' opportunity to earn without surrender-
ing the corresponding opportunity of the employer. It
would not merely pit the employer 's ability to with-
stand a shut down of its business against the employ-
ees' ability to endure cessation of their jobs , but would
permit the employer to impose on his employees the
pressure of being out of work while obtaining for
himself the returns of continued operation . Employees
would be forced , at the initiative of the employer, not
only to forego their job earnings , but, in addition, to
watch other workers enjoy the earning opportunities
over which the locked out employees were endeavoring
to bargain . Permitting an employer to impose this
additional price on the protected right to collective
bargaining would , in our opinion, conflict with the
intended scope and content of that right , as protected
in 29 U.S.C. Section 157.
We conclude that a lockout in the circumstances at bar,
accompanied by continued operation with replacement
labor , is, per se, an interference with protected
employee rights , and, accordingly , per se, an unfair
labor practice under Section 158(a)(I).
The court held further , applying the tests enunciated by the
Supreme Court in N.L.R.B v. Great Dane Trailers, 388
U.S. 26, 34, that this conduct was also violative of Section
8(a)(3) because the lockouts plus the use of replacements to
continue were "inherently destructive of protected rights,"
and that even if the adverse effect of this discriminatory
conduct on employee rights were deemed "comparatively
slight" and antiunion motivation must be proved if the
employer has come forward with evidence of legitimate
and substantial business justification for the conduct, the
same result would follow as "We do not find that the
[employers] have come forth with evidence of legitimate
and substantial business justification for their insistence on
continued operation."
Respondent takes the position, in its brief, that the
Inland Trucking Co. case is not applicable to the instant
fact situation because (a) the lockout here was a defensive
tactic rather than an offensive one; and (b) even if the
above case were arguably applicable, "it would be an
inappropriate analogy as Respondent did not hire any
replacements for the locked out employees," utilizing only
its supervisors and nonumt personnel. Respondent's
argument is, however, misplaced. Thus, I have found
heretofore that, contrary to Respondent's contention, the
lockout was an offensive rather than a defensive action.
And further, it is patent from a reading of the Inland
Trucking Co. case that the court, speaking in a context
where both supervisory and new employees were utilized to
continue operations during the lockout, found unlawful the
use of "replacement labor," and made no distinction in this
category between the existing supervisory personnel and
the newly hired rank-and-file employees. Indeed, it would
appear that, insofar as the locked-out employees are
concerned the employer's interference with their protected
employee rights, of which the court spoke, is no less when
the replacement labor during a lockout is supervisory
personnel than when such labor is newly hired personnel or
nonumt personnel. For, in either case, the vice, of which
the court also spoke, would still maintain, viz, that "such
lockout forecloses the employees' opportunity to earn
without surrendering the corresponding opportunity of the
employer," and thus permits an employer to impose this
additional price on the protected right to collective
bargaining, in conflict with the intended scope and content
of that right.38 In all these circumstances, I conclude, and
find, that Respondent's continuance of operations during
the lockout intruded on the Section 7 rights of its locked-
out employees. It is, of course, clear, as already found, that
the court, in enforcing the Board's decision in the above
case held that "a lockout in the circumstances at bar,
accompanied by continued operation with replacement
labor is, per se, an unfair labor practice" under Section
8(a)(1) of the Act, and further that this conduct was
"inherently destructive of protected rights" in violation of
Section 8(a)(3) of the Act. However, as the Board, in its
decision, declined to hold, although urged to do so, that
such conduct is per se violative of the Act, I shall also
apply, in the alternative, the criterion invoked by the Board
in reaching its conclusions there that such conduct had an
antiunion motivation.39 In that connection, I note that
Respondent failed to show that there was legitimate and
substantial justification for this curtailment of the Section
7 rights of its employees. As already indicated, there is
37 380 U S 300, 318 to the Union during the bargaining subsequent to September 17 and as to
38 As already found, most of the locked-out employees did thereafter which it claimed impasse
return to work in December, without a contract, and on Respondent's 39 See Insurance Agents International Union, AFL-CIO, 119 NLRB 768.
terms, which called for putting into effect some of the terms proposed by it
WIRE PRODUCTS MANUFACTURING CORP.
lacking here any convincing proof of any affirmative or
overt act on the part of the Union which impelled
Respondent's conduct of locking out its employees. And
Respondent makes no claim of special situation in
justification of its continuance of operations during the
lockout, beyond alluding, in its brief, to its objective "to
continue production in the absence of the normal pro-
duction unit." While it is true that, at the time of the
lockout, Respondent could expect an increase in its
business in the months ahead because of its cyclical nature,
there is no indication that this situation differed in any way
from that in 1968 when the parties were able to resolve
their differences and reach an agreement as late as October
of that year without a work stoppage. And so far as
appears, then, as in September 1970, Respondent had to
contend with the competition of the Merrill Manufacturing
Company, a firm engaged in a similar manufacturing
business in the same city. Nor can Respondent derive any
comfort from the fact that the 1968 contract had expired
and the Union was free to strike, since this is not such an
unusual occurrence in collective bargaining as to justify
discriminating against its employees by continuing to
operate the business after it had locked them out. Further,
while it is also true that Respondent chose to continue
operations on a reduced basis during the lockout, the
significant consideration is that it operated at all and not
that it made a business judgment to operate on a reduced
basis. Accordingly, I conclude, and find, in the alternative,
in accord with the Board's decision in the Inland Trucking
Co. case, that the curtailment of the Section 7 rights of its
employees through the continuance of operations during
the lockout was illegally motivated. Moreover, such illegal
motivation is underscored by the unfair labor practices in
violation of Section 8(a)(1) found herein to have occurred
on September 17 and thereafter.
In sum, therefore, I conclude, and find, on the basis of
all the above and the record as a whole, that by employing
and using supervisory employees and nonunit personnel as
replacements to perform the work of employees whom it
had locked out, Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights
under the Act, in violation of Section 8(a)(1) of the Act,
and discouraged membership in labor organizations by
discriminating against these locked-out employees in
respect to their hire and tenure of employment, in violation
of Section 8(a)(3) of the Act. It follows therefrom, and I
find further, that, by such continued operation, Respon-
dent rendered the lockout unlawful.
40 All dates hereinafter relative to the termination of Kufahl are in 1971,
unless otherwise indicated
41 According to Kufahl, at that time, which she fixed at approximately
February 25, she had learned from the doctor attending her boys that they
had infectious mononucleosis.
42 According to Zabawa, Kufahl was the only one on the day shift
"really trained" to do the side ring job on the fan guards, whereas they
already "had a good girl on the night shift doing that same particular job In
fact, [they] had a few." Notwithstanding the above, also according to
Zabawa, he told Hill that he would not stand in the way if there was some
way the night foreman could work matters out. The night foreman,
according to Hill, indicated that they did not know where to put her.
43 The fact that Kufahl was in the plant on February 26 in order to pick
up her paycheck and then inquired from Marnholz whether Hill had
mentioned anything to him about her working nights, and the further fact
F. Findings of Fact and Conclusions as to the
'8(a)(3) and (1) Allegations with Respect to Marilyn
Kufahl
667
1. The events preceding Kufahl's separation
Kufahl started her employment a little more than 3 years
before her termination on March 4, 1971. For the first 5 or
6 months she worked at a variety of jobs; thereafter she
worked in the welding department on the day shift. Since
the early summer of 1969 and at all times material, Peeters
has been Kufahl's foreman. On September 15, 1969, and
again on January 12, 1970, Kufahl received merit raises of
5 cents an hour. It was conceded by Production Manager
Za iawa that Kufahl was "very apt" and "very good" at
welding side rings, which was the last operation on the fan
guards manufactured by Respondent. Although he main-
tained that she was "sporadic" on other jobs, i.e., "some
jobs doing good some jobs doing poor," it is clear from his
testimony that she worked on side rings most of the time.
From Monday, February 22, 1971, until March 4, 1971, the
day40 of her termination, Kufahl did not report for work.
On the former date, Kufahl called the plant and notified
Respondent that she would be off a couple of days because
her two boys, who were 8 and 10 years old, respectively,
were ill. A few days later, Kufahl called the plant again41
and spoke with Works Manager Hill. She apprised him of
the nature of her sons' illness and that they required bed
rest and extensive care, and asked him for a transfer
temporarily to the night shift so that she could be with
them during the day. Hill indicated that he would look into
the matter and let her know. Thereafter, Hill spoke to
Zabawa and to Marnholz and Puhl, the night-shift
supervisors. The upshot of these discussions, according to
Hill, was a decision by management that because employee
Gloria Newman, who was then on leave of absence, would
be returning on March 8 to her welding job on the night
shift, they had no place for Kufahl on that shift;42
Newman's date of return was in fact, March 8, about 2
weeks after Kufahl's transfer request. Hill did not
thereafter advise Kufahl of this decision.43 However, on
March 2, 2 days before her termination, Zabawa tele-
phoned her at her home and told her that there was no
opening for her on the night shift.44 Whereupon, Kufahl
asked for an indefinite leave of absence,45 telling Zabawa
what she had already told Hill about the situation
confronting her because of the sickness of her two sons. To
this, Zabawa's answer admittedly was that Respondent
"gave no leave of absence for illness in the family, only
that Hill learned of this visit by Kufahl, in no way mitigate Hill's failure to
communicate directly with Kufahl, particularly since Hill testified that
management's decision on February 26 not to transfer Kufahl was never
relayed to Marnholz
44 Hill testified at first , on cross-examination , that he never instructed
Zabawa to call Kufahl on the telephone, but that he did tell Zabawa to
mention it to her, however, when pressed on the latter by counsel
immediately thereafter, he answered that he could not recall having done so
In these circumstances , I find that this testimony does not militate against
my finding heretofore that, although Hill promised to get in touch with
Kufahl concerning her request for a transfer, he never did so, and I find
further that he never instructed Zabawa to do so for him.
45 Kufahl so testified Although Zabawa testified that she asked for "4 to
6 weeks" leave, I do not credit him for the reasons indicated immediately
below.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personal illness or a death in the family"; and that she
would have to be back at work the following day, March 3.
According to Zabawa, the reason for his telephone call
to Kufahl was that Respondent was running into "a
tremendous amount of difficulty" with production on
Monday, March 1, and on Tuesday, March 2, because
there were nine and seven employees, respectively, missing
from work, counting both shifts. The record shows that, of
these, five were from the day shift on March 1, and three
were from the day shift on March 2; and further that
among those absent on each of these days was Violet
Culbert, who was on leave of absence due to personal
illness. It is not apparent from the record which of these
absentees were welders, like Kufahl, and which were press
department employees or toolroom employees or shipping
department employees etc. In all these circumstances,-and
as Zabawa did not impress me as a reliable witness, I find
that the record does not preponderate in favor of a finding
that Respondent was confronted with an urgent pro-
duction problem involving welders on March 2. In any
event, when Kufahl indicated that she could not comply
with his order to report on March 3, it was agreed that she
would be given additional time so that she could try to get
a babysitter for the boys. According to Kufahl, Zabawa
then said that he would allow her until Thursday, March 4,
to return to work and that if she had any more problems to
let Respondent know. According to Zabawa's differing
version, Kufahl asked, "does that mean if I do not come in
Thursday I'm fired?", and he replied "that's right and .. .
irregardless of whether you come back to work or not I
want to hear from you before Thursday, and you can either
talk to myself or Mr. Hill." Although Kufahl did not get in
touch with either Zabawa or Hill before Thursday, it is
unnecessary to decide whether Zabawa did, in fact, impose
such a condition upon Kufahl. As found hereinafter,
Kufahl was terminated by Hill on Thursday mormng,
when he learned that she had not yet reported to work and,
so far as appears, without regard to whether she had failed
to call in the day before that she would not be there
Thursday. In this connection, the record shows the
following: Kufahl testified that she did not come to work
at all on that day for the claimed reason that the babysitter
for whom she had arranged on March 3 did not report on
the morning of March 4 as per arrangements. Her starting
time would have been 7 a.m., and about 7:15 a.m.,
according to Hill, he learned from Zabawa that Kufahl had
not reported for work, and thereupon, without having
discussed this course of action with anyone, took her
timecard and wrote the word "quit" across it. Shortly
thereafter, Kufahl telephoned Zabawa46 at the plant. It is
her testimony that she advised him that she would not
report for her work that morning because she did not have
a babysitter and that she "would have to run an ad or look
for somebody else"; that he answered, "I'm sorry you
weren 't here at 7 o'clock, you're all through"; that she
pointed to the fact that she had called to explain why; that
he rejoined with, "it doesn't make any difference, you
weren't here at seven"; that she thereupon inquired
whether her record would show that she had been fired;
and that Zabawa then left the telephone and, upon his
return, told her, "that's right, you're all through." Here
again, Zabawa gave a differing version of the telephone
call. Thus, according to him, Kufahl called him between
7:45 and 8 a.m. to tell him that she had not gotten a
babysitter and might get one by Monday. He remonstrated
with her for not telling him this at 4:30 p.m. on Wednesday
when, as he said, she was in the plant and no more than 10
feet from the office. Her response was that he did not tell
her that she was supposed to call, but he said that he had
told her. At this point, Hill came into the office and he
interrupted the conversation with Kufahl and "explained
the situation to [Hill ]." He then resumed his conversation
with Kufahl, telling her that she could not have more time.
Whereupon, she asked whether that meant that she was
fired. He again interrupted the conversation to talk to Hill
and then told her that he was sorry. Notwithstanding the
differences in their versions, it suffices here to find that
both Kufahl and Zabawa gave mutually corroborating
testimony, in substance, that Kufahl's request for more
time to get a babysitter was denied and that Hill refused,
after being advised by Zabawa of her request, to reconsider
his prior action that morning effecting her termination. It is
noteworthy, in this latter connection, that Zabawa admit-
ted that he had never disciplined an employee for not
coming in to work and calling at 8 o'clock to say that he
was not coming in, when the starting time was 7 o'clock;
and that some employees have called in 3 or 4 hours after
their reporting time with such news without being
disciplined therefor. Accordingly, I find further that Hill
acted precipitately on Thursday morning in effecting her
termination about 15 minutes after starting time.
Respondent takes the position that Kufahl quit her
employment on March 4, and that, even assuming that she
is found to have been discharged, her discharge was for
cause in that, as stated in its brief, it carried her for nearly
2 weeks while allowing her to try to work out her personal
affairs, and "faced with ever increasing stalling" by her
exercised its rights to terminate her. The General Counsel
contends, in effect, that the claimed stalling by Kufahl was
a pretext to mask her discharge because of her union
activity. I shall now proceed to consider the validity of the
reasons urged in support of these respective positions.
However, I shall do so in the frame of reference of a
discharge rather than a quit, for I find no warrant, upon
this record, for concluding that Kufahl quit her job.
Indeed, it is neither contended, nor is there any record
evidence that Kufahl ever said or implied that she was
quitting or would quit. Further, her conduct of seeking a
leave of absence and of agreeing, when that was not
forthcoming, to try to get a babysitter so that she could
come to work is incompatible with any intention on her
part to quit. In these circumstances, it follows, and I find,
that by writing "quit" across Kufahl's timecard when she
failed to appear for work by 7:15 a.m. on Thursday, March
4, Hill effected her discharge.
46 Kufahl placed the time as about 7 20 a in and explained that she was a in. However, I find it unnecessary to, and do not, in view of my other
unable to call earlier because she had an eight-party telephone line and the findings and conclusions herein, resolve this testimonial conflict.
line was tied up before then Zabawa places the time as between 7 45 and 8
WIRE PRODUCTS MANUFACTURING CORP. 669
2. Kufahl's union activity
I have heretofore found that Kufahl was a member of the
Union, a member of the union shop committee which met
every other Monday with representatives of Respondent
on employee grievances, and a member of the union
bargaining committee, serving in the latter capacity ever
since the beginning of negotiations on May 6, 1970, for a
new contract. The record also shows that in May or June
1970, Kufahl was elected shop chairman by the employees.
It is, of course, clear that, by reason of her active role in the
Union, Kufahl was in frequent contact with Respondent's
officers, supervisors, and negotiators on union matters.
3. Statements and conduct attributed to members
of management allegedly deriving from Kufahl's
active role in the Union
a. According to employee Elaine Rice, about the third
week of the lockout, she and her husband, also an
employee, stopped at the Bridge Tavern, which is on the
way to Gleason, Wisconsin, and saw Foreman Zastrow
and his wife there. The Rices and Zastrows have had a
good social relationship, exchanging visits to their respec-
tive homes frequently, going out socially on many
occasions, and, in addition, Zastrow is godfather to the
Rices ' little daughter. During the exchange which ensued
between the Zastrows and the Rices the discussion turned
to the picketing by the Union at the plant. According to
Elaine Rice, Zastrow then remarked that "he was really
surprised how nice Marilyn Kufahl acted . . . she was
really reasonable, because her and Roy Nichols had
followed a truck down to Wausau and they had got out
with their signs and when the Company, wherever the
truck went, asked them to leave . . . they got in the car,
put their signs back in there and they left." However, also
according to Elaine Rice, he continued with, "but . . . I
can tell you one thing, she's going to be the first one to go
when we get back to work"; and added further that he
wanted to get rid of Elva Prentiss and Violet Culbert
because of their conduct on the picket line. Zastrow
acknowledged having a conversation with the Rices during
the lockout in regard to Kufahl and saying that he was
surprised, when he took a truck out, that Kufahl did not
stand in front of it; and as to Culbert and Prentiss, he
acknowledged saying that they had been guilty of such
conduct. However, he specifically denied saying that
Kufahl was going to be the first one to go after the lockout.
I am satisfied, from my observation of Zastrow and Elaine
Rice on the witness stand, that she testified more
forthrightly as to this episode. In view of this and Zastrow's
corroboration in part of her testimony, I credit her, and I
conclude, and find, that Zastrow made the remarks which
she attributed to him. Further, granting, without deciding,
as Respondent in effect contends that, because these
remarks, if made, were made during a social visit, they
were not coercive, it nevertheless does not militate against
their materiality on the issue of motivation in respect to the
discharge of Kufahl, and I so find.
b. The record shows that on November 13, 1970,
Zabawa made a telephone call to Kufahl at her home
under the following circumstances: On that day, a cow,
belonging to Zabawa and which he kept on his farm, had
been mutilated. His wife had seen a car drive by the farm a
couple of hours before she found the dead animal. She
telephoned him and described the car and the individual in
the car to him. Thereafter, his wife and he drove by the
house of this individual, who was an employee of
Respondent, and his wife recognized the car. He thereupon
communicated with Kufahl. According to Kufahl, Zabawa
told her that he had just had a $300 heifer shot, that she
would have to control the union members better than this,
and that he would find out who killed his animal. It is
further apparent from the testimony of both Kufahl and
Zabawa that the conversation became heated thereafter.
According to Kufahl, Zabawa called her an unhealthy
person to have in the shop; spoke of her efficiency being
down; and that when she returned to work she would be
one of the first ones out of the door; and told her that he
did not like her and never had, and that, as to the latter,
she replied that the feeling was mutual. In regard to the
above, Zabawa admitted making the remark to Kufahl that
he did not like her, and that she responded in kind, but he
could not recollect saying she was an unhealthy person. As
to the dislike he expressed for her, Zabawa indicated that
his remark was preceded by an exchange between Kufahl
and him in which he commented that there have been
instances of cars damaged and tires flattened, that her
reply was that the individuals owning the cars probably
had caused the damage themselves, and that he rejoined
with, "the next thing you'll be telling me is that I shot my
own cow." He denied, however, that he threatened to fire
Kufahl or told her that after she got back to work she
would be the first to go. It is apparent from all the
foregoing that, during the telephone conversation, Zabawa
got little satisfaction from Kufahl with regard to the
complaint about the loss of his cow and with respect to his
strong implication that a member of the Union must have
done it; and that, in consequence, he resorted to ad
hominem remarks. In this connection, I note that while
Zabawa admitted telling Kufahl that he did not like her, he
was unable to recall whether he also called her an
unhealthy person. Yet, the logic and probabilities of the
situation, plus the fact that Kufahl impressed me as a more
reliable witness than Zabawa, indicate, and I find, that
Zabawa went beyond expressing his dislike for Kufahl.
Accordingly, I find that Kufahl gave a more accurate
account of this episode than did Zabawa, and find further
that Zabawa made the remarks attributed to him above by
Kufahl.47
c. It is not disputed that on December 16, 1970, about
the third day after Kufahl returned to work following the
lockout, Peelers told her that her past practice of going for
a cup of coffee immediately after she punched her
timecard at 7 a.m., and of thereafter drinking it at her place
of work would have to stop.48 However, Kufahl's and
Peelers' testimony differs as to the balance of their
47 The record shows that about a month after the end of the lockout , i.e., getting along with each other in their dealings on work-related matters.
sometime in January 1971, Zabawa approached Kufahl at work and made a 48 Kufahl testified, without contradiction, that she had done this daily,
plea to her not to let their past personal differences interfere with their without objection, before the lockout.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation dunng this episode. According to Kufahl,
when Peeters told her to stop this practice, she asked
whether Peeters was taking coffee privileges away from all
the employees; at this, he became "real angry" and said,
"I'm telling you, you come to work at seven o'clock in the
morning, you go to your machine and you stay there until
the 9:30 buzzer blows, you do not leave your machine to
get a cup' of coffee. Don Zabawa has been on my back
every day since you've been back, and I'm sick of it."
Peeters, on the other hand, denied that he said that
Zabawa had been on his back ever since Kufahl came
back, adding that he was the one who approached Zabawa
and told him about being fed up with Kufahl's coffeebreak
routine, as a result of which Zabawa approved of his
speaking to Kufahl about it. In the above connection, I
note that Peeters failed to deny Kufahl's testimony that, 10
minutes after this episode, employee Helen Schultz, who
worked across the aisle, left her work to get a cup of coffee,
but Peeters, who was present, said nothing about it; and
that other employees have since done the same while
Peeters was present, without reprimand. In view of this, I
credit Kufahl, and find, that, as she testified, Peeters took
away her coffee privileges on that day, while allowing other
employees to enjoy such privileges. And I find further that,
even granting that, as Peeters testified, he acted on his own,
after getting clearance from Zabawa, rather than in
response to pressure by Zabawa, this episode nevertheless
constitutes disparate treatment by management of Kufahl
after her return to work following the lockout.
d. On February 15, about 2 months after the episode
immediately above, Respondent issued a warning slip to
Kufahl under the signature of Peeters, her foreman. The
legend on the slip read: "Cohering49 (sic) employees
during working hours." Peeters testified, in this connection,
that he learned of this conduct by Kufahl while he was in a
tavern; at that time, employees Bob Gremler and Dennis
Schroeder informed him that Kufahl had told them that
they would lose their jobs if they did not join the Union.
He testified further that Kufahl was called into the office
by Zabawa subsequently and questioned about this, in his
presence; that Kufahl denied talking to these two employ-
ees during working hours, at first, but, upon being
confronted by Gremler and Schroeder, who were called to
the office and attributed the above remarks to her, she
admitted that she had done so. I note, however, that
Schroeder, who was called as a witness by Respondent,50
testified that he could recall only that the "conversations
[with Kufahl] were about the Union, when [he] would join
or if [he] would loin . . ."; that his response would be that
he did not know; that this happened "maybe 5 or 10 times
a week," but that he "couldn't really tell over how many
weeks"; that he asked Peeters about it because he did not
know what to do about the Union; and that he was in the
office with Zabawa, Peeters, and Kufahl when Kufahl
admitted talking to him about the Union dunng working
hours. With respect to the above, Kufahl denied ever
telling employees that, if they did not join the Union, they
would lose their jobs when a new contract was signed; and
further denied asking employees on the job to join the
Union. While she admitted discussing the Union with
Gremler, she said she did so only during the latter's first
few days at work, in response to questions by him while
they were working on a job together, but that she did not
urge him to join the Union at those times. And as to
Schroeder, she admitted that, after the locked-out employ-
ees returned to work, she talked to him about the lockout
during breaktime and told him that it was to everybody's
advantage to have the Union behind him; and that
Schroeder asked some questions and she answered them.
Also according to Kufahl, at the time she was given the
warning slip by Zabawa, she denied that she had been
talking to the new employees during working hours about
joining the Union, but Zabawa replied that she had, that
this was her second warning,51 and that if she committed
any further infraction of the rules she would be discharged
without any further warning.
It is apparent from all the foregoing, and I find, that
Schroeder's testimony falls short of establishing that
Kufahl made any coercive remarks to him; and, if
believed, it establishes only that Kufahl asked him
frequently dunng working hours about joining the Union;
and that, in his presence, during the meeting in the office
on February 15, Kufahl was asked about whether she had
talked to him about joining the Union during working
hours and she admitted doing so. In these circumstances, I
am unable to find that the record preponderates in favor of
a finding that either Schroeder or Gremler ever told
Peeters that Kufahl threatened them with discharge if they
did not join the Union, or that, when Kufahl was
confronted by them during the meeting on February 15 in
the office, she admitted having made such remarks to
them. It follows, therefore, and I find, that even granting
that Respondent had reports from employees that Kufahl
was talking to them, during working hours, about joining
the Union, there is no warrant on this record for its
issuance of a warning slip to her on February 15 for
coercing employees during working hours.
e. I have heretofore found the following, in substance:
On approximately February 25, Kufahl apprised Hill of the
nature of the illness of her two sons and their need for bed
rest and extensive care and asked him for a temporary
transfer to the night shift so that she could be with them
during the day. Hill thereafter consulted with Zabawa,
Marnholz, and Puhl and, according to Hill, it was decided
that, because employee Gloria Newman, who was then on
a leave of absence, would be returning on March 8 to her
welding job on the night shift, they had no place for her on
that shift. The denial of Kufahl's request for transfer was
communicated to her on March 2 by Zabawa. It is
noteworthy, however, that, contemporaneously with Ku-
fahl's request for a transfer to the night shift from the day
shift, Newman, who was also a welder, was seeking a
transfer from the night shift to the day shift. In this
connection, there is testimony by Newman that (1) she
made such a request three times of Hill; i.e., on February 8
and 18 and March 2; (2) that Hill denied her request each
time, claiming that "with all the asking everybody that had
seniority ahead of [her], and everything, it would just be
49 It is agreed that the word "coercing" was intended
50 Gremler did not testify in this proceeding
51 The record shows that Kufah [ received her first warning in June 1970
for not meeting production standards during May 1970.
WIRE PRODUCTS MANUFACTURING CORP. 671
too complicated a procedure for [her] to switch on days";
(3) that, on the last mentioned date, she arranged to come
back on the night shift on March 8; and (4) that, after
working on the night shift on March 8 and 9, she asked
Hill again to allow her to transfer, was again refused, and
quit. Although Hill testified that Newman asked for a
transfer to the day shift for the first time on March 9, his
testimony in this regard did not have the ring of truth,
whereas Newman's testimony did. Accordingly, I credit
her version. It is thus apparent that had Respondent
wished to take advantage of the coincidence of Kufahl's
request for a transfer to the night shift at the very time that
Newman was seeking a transfer in the other direction, it
could have accommodated both Kufahl and Newman.
However, the fact that it did not do so does not warrant a
finding adverse to Respondent, particularly in view of the
stipulation of the parties herein that, between September of
1969 and early 1971, there were several occasions on which
requests for transfers from one shift to another were
denied.
f. I have found heretofore that, upon learning from
Zabawa that her request for a transfer had been denied,
Kufahl asked for an indefinite leave of absence; and
further that Zabawa admittedly told her that Respondent
"gave no leave of absence for illness in the family, only
personal illness or a death in the family." In view of the
serious nature of the conversation between Zabawa and
Kufahl at that time, and in view of their past differences, I
am unable to credit Zabawa's testimony, during cross-
examination , that he "meant it in a joking manner." Rather
does it appear, and I find, that he was invoking a rule
which had, so far as the record shows, never been applied
before by management. In this connection, the record
reveals that employee Steve Bandioli was granted a 2-
month leave of absence by Respondent in 1967, during his
first year of employment, in order to go on a vacation trip
to Europe. And it shows further that employee Sandra
Finnegan asked Puhl, her foreman on the night shift, for a
2-week leave of absence in August 1970, because 'her
mother had come home from the hospital and she wanted
to take care of her; that her request was granted; and that
her leave was thereafter extended for another week by Puhl
at her request. While it is true that she had been requested
early in August to take a voluntary leave of absence ,52 it is
also true that she refused -to do so at that time, indicating
that when her mother came home from the hospital she
would then apply for a leave of absence. Further, that
Finnegan was on leave of absence rather than in voluntary
layoff status during her absence from work finds support in
the omission of her name from Respondent 's list of all the
laid-off employees during August, which is in evidence as
General Counsel's Exhibit 11. I note, too, that although
Puhl did not dispute Finnegan's testimony as to the reason
for her request for a leave of absence, he insisted that one
of the reasons that he took into consideration in connec-
tion with her request was that "she was going to try to
protect some man who needed a job more than she did."
However, even granting that this was so, the fact remains
that the reason behind Finnegan's request for a leave of
absence was illness in her family, the same reason given by
Kufahl to Zabawa herein, and that this reason was an
operative factor in Puhl's granting her request. In these
circumstances, I am satisfied, and find, that Respondent's
denial of a leave of absence to Kufahl on the grounds
stated to her by Zabawa, constituted disparate treatment.
And this is so notwithstanding the testimony by Hill that
he refused employee Willamina Grier Stano's request for a
leave of absence due to the fact that she was having
personal problems at home with her husband, because
there, unlike in the case of Kufahl, the validity of the
reason for the request was questioned by management.
4. Respondent's claim of substantial absenteeism
by Kufahl
The record discloses that Kufahl had a substantial
absentee record. Thus, Respondent's Exhibit 2, in evidence,
shows that in each month since January 1970, up to
March 1971, Kufahl was off from work either for a day or
days at a time, or for part of a day, or for part of an hour.
However, it is clear, and I find, from the admission of
Zabawa that her record of absences was not an operative
factor in her termination. In this connection, Zabawa
testified that he wanted Kufahl back to work on March 4,
1971, notwithstanding her record of absences and that,
when he told her that she was through, it had nothing to do
with these absences.
5. Concluding findings as to the termination of
Kufahl
As I have heretofore rejected Respondent's contention
that Kufahl quit her employment on March 4, there
remains for consideration Respondent's alternative conten-
tion that she was discharged for cause. As already noted, in
support of its position, Respondent asserts, in its brief, that
it carried Kufahl for 2 weeks while allowing her to try to
work out her personal affairs, and "faced with ever
increasing stalling" by her, exercised its right to terminate
her. However, while it is true that Kufahl had a substantial
record of absences since January 1970, the record fails to
establish that these absences were not for bona fide reasons.
And with particular reference to the 2 weeks before her
discharge, there is uncontradicted testimony by Kufahl
that her two sons were seriously ill during that period and
that the need to care for them during the day prompted her
to ask for a transfer to the night shift, and, failing that, to
seek a leave of absence. Such conduct, particularly in light
of the fact that Respondent did not dispute Kufahl's claim
that her sons were seriously ill and needed such care, can
hardly be termed stalling. Furthermore, Zabawa admitted
at the hearing that Kufahl's prior absences were not an
operative factor in her discharge. Nor can I find that
Kufahl's failure to comply with Zabawa's claimed instruc-
tions to her on March 2 to call him before March 4 to tell
him whether or not she would report to work on that date
constituted stalling in the light of her credible testimony
that, as of March 3, she had no problems because she then
had a commitment from a babysitter to take care of her
12 As heretofore found, Respondent was asking employees during
August to take voluntary leaves of absence as business was slow
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
children beginning on March 4, but that the babysitter
disregarded prior arrangements and did not appear on
March 4. Moreover, even assuming contrary to this
finding, that Kufahl was stalling between March 2 and 4, it
is apparent from the record that this stalling was not an
operative factor in her termination. Thus, the record shows
that Hill was the one who effected her discharge and that
he did so, without discussing his course of action with
anyone, on March 4, shortly after 7:15 a.m., upon learning
that Kufahl, whose scheduled starting time was 7 a.m., had
not yet reported for work. Significantly, too, Hill then
noted on her timecard that she had quit and not that she
was being discharged for stalling. It is thus apparent, and I
find, that the aforesaid reason for her termination has not
been sustained by the record and that the reason lies
elsewhere.
I have heretofore found, inter alia, (1) that Kufahl was
active in the Union throughout her tenure of employment,
serving on its shop committee and its bargaining commit-
tee, and as shop chairman; (2) that Respondent was aware
of her being in the forefront of the Union's activities; (3)
that, in October 1970, during the third week of the lockout,
Foreman Zastrow told the Rices that "[Kufahl] is going to
be the first one to go when we get back to work"; (4) that,
about November 13, 1970, Zabawa told Kufahl that, when
she returned to work, she would be one of the first ones out
of the door; (5) that, on December 16, 1970, about the
third day after her return to work following the lockout,
Foreman Peeters, her foreman, singled her out for criticism
for going for coffee at the start of the shift and took away
that privilege, while allowing other employees to continue
doing so; (6) that, on February 15, 1971, Respondent
issued a warning slip to her for coercing employees during
working hours, without warrant therefor; (7) that Respon-
dent's denial of her request on or about February 25, 1971,
for leave of absence because of the illness of her two sons
constituted disparate treatment when viewed against the
background of its having granted a leave of absence to
employee Finnegan prior to the lockout because of the
illness of her mother; and (8) that Hill acted precipitately
in marking her card "quit" on March 4, 1971, because she
was not yet at work 15 minutes after her scheduled starting
time, and that this is reflected by the testimony of Zabawa
that Respondent has never disciplined an employee for not
coming in to work and calling at 8 o'clock, as Kufahl did
that day, to say that she was not coming in, when the
starting time was 7 o'clock, and further that some
employees have called in 3 or 4 hours after their reporting
time without being disciplined therefor. In view of the
foregoing, and in view of the union animus implicit in my
other findings herein of violations of Section 8(a)(1) and
(3) of the Act by Respondent, I infer, and find further, that
the reason assigned by Respondent for Kufahl's termina-
tion was a pretext to mask her discharge because of her
union activity. Finally, I conclude, and find, that by
discharging her, Respondent violated Section 8(a)(3) and
(1) of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer, as defined in Section
2(2) of the Act, 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 the following conduct during a bargaining
lockout which interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act:
(a) Telling an employee that, if the local plant union
committee repudiated its grand lodge representative, who
was its chief negotiator, the local plant union committee
could negotiate its own contract.
(b) Telling an employee that it would not bargain with
the Union until the employees selected another union
committee, albeit it did thereafter bargain.
(c) Telling employees that they could get back to work if
they repudiated the Union and its Grand Lodge represent-
ative.
(d) Urging employees to reject the Union in favor of a
smaller union, also affiliated with the AFL-CIO.
(e) Threatening to move the plant to another city if the
locked-out employees did not return to work.
(f) Employing and utilizing its supervisory employees
and nonunit personnel as temporary replacements to
perform the work of locked-out employees of its pro-
duction and maintenance unit.
4. By the foregoing conduct described in paragraph
3(f), Respondent has discouraged -membership in labor
organizations by discriminating against its locked-out
employees in regard to their hire and tenure of employ-
ment, in violation of Section 8(a)(3) of the Act.
5. By discharging Marilyn Kufahl on March 4, 1971,
because she engaged in union activity protected by the Act,
Respondent has also discriminated in regard to the hire
and tenure of employment of its employees, in violation of
Section 8(a)(3) and (1) of the Act.
6. Respondent has not violated the Act in any other
respect alleged in the consolidated complaint, as amended,
but not found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and that a broad order issue designed to
protect its employees.
Having found that Respondent illegally discriminated
against its employees with respect to their hire and tenure
of employment during a bargaining lockout, which was
valid at its inception, by employing and utilizing, after the
lockout began on September 18, 1970, supervisory and
nonunit employees as temporary replacements to perform
the work of its locked-out unit employees, and having
further found that Respondent terminated the lockout and
unconditionally offered to all locked-out employees full
reinstatement to their former positions commencing with
WIRE PRODUCTS MANUFACTURING CORP.
December 9, 1970, I shall further recommend that it make
whole all its locked-out employees, whether they returned
or not after the lockout, for any loss of earnings or other
benefits they may have suffered by reason of the
discrimination against them during the lockout period, less
interim earnings, and in a manner consistent with Board
policy as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Having found, too, that Respondent violated Section
8(a)(3) and, (1) of the Act by discharging Marilyn Kufahl, I
shall recommend affirmatively that Respondent offer her
immediate and full reinstatement to her former job or, if
673
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings
she may have suffered as a result of the discrimination
against her by payment to her of a sum of money equal to
that which she would have earned as wages from the date
on which she was available for work after the discrimina-
tion on March 4, 1971,53 to the date of Respondent's offer
of reinstatement, less her net earnings during such period,
with backpay and interest thereon to be computed in
accordance with Board policy as prescribed in the cases
mentioned in the prior paragraph.
[Recommended Order omitted from publication.]
53 Such availability date can be determined at the compliance stage of
this proceeding.