Wisco Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1971

188 N.L.R.B. 326 (N.L.R.B. 1971)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisco Industries , Inc., and Lodge 1406, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 30-CA-1219
February 2, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
On October 8, 1970, Trial Examiner Lloyd Buchan-
an issued his Decision in the above-entitled case, find-
ing that the Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent here-
with.
1. We find, in agreement with the Trial Examiner,
that the Respondent unlawfully assisted the employ-
ees' bargaining committee in violation of Section
8(a)(2) of the Act. We do not agree, however, with the
Trial Examiner's further finding that the Respondent
dominated the formation or administration of the
committee. We shall therefore not adopt his rec-
ommendation that the committee be disestablished.'
2. We do not agree with the Trial Examiner that the
Respondent discharged Robert Blumer on March 23,
1970, in violation of Section 8(a)(3) of the Act.
The Respondent had knowledge of Blumer's active
participation, in early March, in behalf of an organiz-
ing campaign by the Sheet Metal Workers Interna-
tional Union, AFL-CIO, to represent the plant's 30
employees. Also known to the Respondent was that
Blumer's name appeared on a petition containing a
list of demands to improve wages and other working
conditions, which was signed by all of the employees
and was submitted to the Respondent on March 16.
' Air Control Products, Inc., 139 NLRB 607, 608 , enfd . 344 F.2d 902 (C.A.
5).
However, on March 23, as found by the Trial Examin-
er, Kjellstrom saw Blumer talking to two other em-
ployees shortly before 4:30 that afternoon, and asked
him whether anything was wrong . Receiving a nega-
tive reply, he asked why Blumer was talking so much
and why he was not at his machine. Blumer asked,
"Do you mean I can't talk to anybody?" Kjellstrom
said, "No. Of course not. Everybody talks to each
other here .... But you have to get the work out, too."
Then Blumer "very belligerently" pointed his finger at
Kjellstrom and said, "I'm only going to work 3/4 of
an hour per hour until I get more money." Kjellstrom
replied, "This is an awful attitude to have. If that's the
attitude you have, you might as well quit altogether."
After Blumer asked, "Does that mean I'm fired?" he
was told, "Take it anyway you want to." Blumer then
went to the office where he received his final pay-
check.
Even if, as the Trial Examiner found, these circum-
stances show a discharge of Blumer , we do not agree
with the Trial Examiner's conclusion that it was be-
cause of Blumer 's "union activities ." As recognized
by the Trial Examiner, Blumer's conduct and attitude
on the occasion in question certainly provided suffi-
cient cause for discharge and neither the fact that
Respondent claims that Blumer quit nor any other
circumstances relied upon by the Trial Examiner in
arriving at his conclusion persuades us that Blumer
was discharged for another, unlawful reason. We thus
find that the General Counsel has not sustained his
burden of proving a violation of Section 8(a)(3), and
we shall dismiss that allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Wis-
co Industries, Inc., Oregon, Wisconsin, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to the employ-
ees' bargaining committee or any other labor organi-
zation of its employees , and from otherwise
interfering with the formation or administration of
any labor organization of its employees in violation of
Section 8(a)(2) of the Act.
(b) Recognizing or bargaining with the employees'
bargaining committee or any successor thereto as the
representative of its employees for the purpose of
dealing with the Company concerning grievances, la-
bor disputes, wages, rates of pay, hours of employ-
ment, or other terms or conditions of employment,
unless and until such labor organization has been duly
certified by the National Labor Relations Board as
the exclusive representative of such employees; pro-
188 NLRB No. 53
WISCO INDUSTRIES , INC. 327
vided, however, that nothing herein shall require the
Company to vary or abandon any wage, hour, seniori-
ty, or other substantive feature of its relationship with
its employees which the Company has established in
the performance of any agreement with them.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
employees' bargaining committee as the representa-
tive of its employees.
(b) Post at its place of business in Oregon, Wiscon-
sin, copies of the attached notice marked "Appen-
dix."2 Copies of said notice, on forms provided by the
Regional Director for Region 30, #fter being duly
signed by its representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its em-
ployees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) 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 here-
with.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed, insofar as it alleges that the Res-
pondent violated the Act otherwise than as found
herein.
2 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
thereto as the representative of our employees for
the purpose of dealing with us concerning griev-
ances, labor disputes , wages, rates of pay, hours
of employment , or other terms or conditions of
employment , unless and until such labor organi-
zation has been duly certified by the National
Labor Relations Board as the exclusive repre-
sentative of our employees.
WE WILL NOT in any like or related manner in-
terfere with , restrain , or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist labor organizations , to bar-
gain collectively through representatives of their
own choosing , and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain
from any or all such activities , except to the ex-
tent that such right may be affected by an agree-
ment requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL withdraw and withhold recognition
from the employees ' bargaining committee as the
representative of any of our employees.
WISCO INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
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 532
03, Telephone 414-272-8600, Extension 3861.
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to the
employees' bargaining committee or any other
labor organization of our employees, or other-
wise interfere with the formation or administra-
tion of any labor organization of our employees.
WE WILL NOT recognize or bargain with the em-
ployees' bargaining committee or any successor
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint herein
(issued May 18, 1970 ; charges filed March 26 and May 6
and 15, 1970), as amended, alleges that the Company had
violated Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, as amended, 73 Stat. 519, by suggesting to
employees that they elect an employee bargaining commit-
tee, allowing the election of such committee to take place on
the Company's premises during working hours, recognizing
and bargaining with such committee when the Company
knew that the Charging Union was engaged in organizing
the Company's employees , entering into a collective-bar-
gaining agreement with the committee , and discriminatorily
discharging Robert Blunter on March 23, 1970, and there-
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after failing and refusing to reinstate him, because of his
membership in the activities on behalf of the Charging Un-
ion. The answer, as amended, denies the allegations of un-
fair labor practices.
The case was tried before me at Madison, Wisconsin, on
June 25 and 26, 1970. Pursuant to leave granted to all par-
ties, briefs have been filed by the General Counsel and the
Company.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
AND CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATIONS INVOLVED
The facts concerning the Company' s status as a Wiscon-
sin corporation , the nature and extent of its metal stamping
and fabrication business , and its engagement in commerce
within the meaning of the Act are admitted ; I find and
conclude accordingly. I also find and conclude that, as ad-
mitted , the Charging Part y, the employee committee herein
referred to, and Sheet Metal International Association,
AFL-CIO, are severally labor organizations within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(2)
As I declared at the trial on the basis of testimony by the
president of the Company and a statement of his position
and defense by counsel for the Company, even if employees
already had the idea of forming their own labor organiza-
tion or committee, the Company's letter I of March 26,
1970, at least supported and encouraged such formation;
and that letter, together with the subsequent meetings be-
tween the Company and the committee and agreements
thereafter reached, was in violation of Section 8(a)(2) of the
Act and derivatively of Section 8(a)(1). Since the Company
suggested, sponsored, and promoted the formation of an
employee committee, it will be recommended that such
committee be disestablished.
B. The Alleged Violation of Section 8(a)(3)
Brief as it was, this trial included conflicts in testimony
i The letter, dated and sent to the Company's employees on March 26,
included the following:
Before getting into the facts and figures of our statement , we would like
to state unequivocally that the management of this company doesn't feel
that the union would serve you, the employees any real purpose, and we
stand ready to negotiate with any committee which you should designate
as the authorized representative of the majority of the employees.
. We would like to suggest that the employees select one individual
from each of these area to represent their interests in a continuing
dialogue with management.
We admit that changes must be made and stand ready to negotiate with
your committee on any subject. After denying that he had ever suggested
to any employees that they form their own bargaining committee to meet
and bargain with the Company, Kjellstrom admitted that he had read
the letter before it was sent out although he had not composed it, and
that it represented the Company's position.
and patent untruths . Violation of Section 8(aX3) must be
found despite the limited reliability of the discnminatee and
further despite the fact that he provided what might be
deemed cause for lawful discharge. But, as we shall see,
accepting his conduct and indeed denying that it had dis-
charged him for a sufficient and nondiscriminatory reason,
the Company maintained that Blumer quit . He did not quit;
and if it did not discharge him for valid cause, the Compa-
ny, with knowledge of the union activity of this employee
whose alleged penchant for being troublesome it had long
accepted , now took action against him. The sole new feature
to which the discharge is ascribed is that union activity.
Pursuant to an arrangement made by Blumer and Walsh,
an International organizer of the Sheet Metal Workers,
these two and two other company employees met on the
afternoon of March 9 at a restaurant about a half mile from
the plant . Lahti , the Company 's vice president and general
manager of production , testified that several days before
March 23 , the date of Blumer's discharge, he learned of this
meeting; but he maintained that he did not tell Kjellstrom,
the Company 's president, about this meeting until after Blu-
mer had been discharged and the unfair labor practice
charges had been filed in this case . Kjellstrom testified sim-
ilarly that as late as March 23 he had no knowled&e of
Blumer 's union activity-this despite the fact that Lahti and
Kjellstrom were in touch with each other several times a
day. Such testimony together with several patent misstate-
ments of fact b Kjellstrom , which will be noted below
(even the allegedyinability to recognize the handwriting and
signature of the Company 's secretary-treasurer , Leonard),
serve but to reflect on the credibility of both Kjellstrom and
Lahti.
Aside from the direct evidence of company knowledge of
Blumer's union activities , we have testimony that he distrib-
uted cards for the Sheet Metal Workers in this small plant.
Blumer testified also, although Kjellstrom denied it, that on
March 21 , the Saturday before he was discharged , Kjellst-
rom told him that he did not think a union would be the best
thing for the Company and suggested that the men form a
union in the shop; but that he replied he did not think that
that would work.
On March 16 employee Sherman gave to Kjellstrom and
discussed with him a list of employee demands . Sherman
headed the list of signatories . But to say that he was the
more active union protagonist would be wrong ; such activi-
ty was in no way connected with support of an independent
union.
The demand petition was acknowledged by the Company
and thereafter replied to by the Company 's letter of March
26, noted above . Kjellstrom testified that he had never sug-
gested to employees that they form their own union and
meet with the Company . This testimony was clearly false.
As we have seen , he told us when shown the letter of March
26 that he had read it before it was sent out but did not
compose it, and that it represented the Company's position.
As there can be no question concerning company knowl-
edge of Blumer's activity in support of an independent un-
ion, so can there be no question concerning his competence,
the only claim by the Company being with respect to certain
personal shortcomings which we shall soon note. It was
stipulated "that when he worked he was a good worker." A
possible negative implication in this faint praise was not
supported by any evidence that Blumer 's production fell
short of expectations . Indeed, except for welders , he was the
highest paid production worker and has several times been
recalled by Kjellstrom when, excitable and high strung, he
had quit.
With this understanding of the situation as it existed on
WISCO INDUSTRIES, INC. 329
March 23, we come to the events shortly before 4:30 that the closing out of Blumer's employment status was prompt-
afternoon. Kjellstrom testified that he saw Blumer talking ed by Blumer himself. Leonard's testimony, indicated by all
to two other employees and asked him whether anything concerned in advance as crucial and acceptable, completely
was wrong . Receiving a negative reply, he asked why Blu- contradicted Kjellstrom's. He testified that shortly before
mer was talking so much and why he was not at his machine. the end of the day on March 23 Kjellstrom came into the
According to Kjellstrom, the conversation continued as fol- office, called Lahti in, and informed both Lahti and Le-
lows: onard that he had had words with Blumer and that Blumer
BLUMER : Do you mean I can't talk to an ybody would probably be in to pick up his check. As we have
KJELLSTROM : No. Of course not. Everybody talks to noted, an important contrast between the situtation as it
each other here .... But you have got to get the work now existed and that on the various occasions when Blumer
out, too. had quit was that on those latter occasions he had not come
BLUMER , "very belligerently" pointing his finger at in for his check and had not filed, as he now did, for unem-
KJELLSTROM: I'm only going to work 3/4 of an hour per ployment compensation.
hour until I get more money. Had Blumer quit on March 23, there could be no finding
KJELLSTROM : This is an awful attitude to have. If of discrimination: There was no obligation on the Company
that's the attitude you have, you might as well quit to recall him and no vested right in Blumer to be called back
altogether. even if Kjellstrom had several times before "begged" him to
BLUMER : Does that mean I'm fired? return after quitting. But the circumstances surrounding
KJELLSTROM: Take it anyway you want to. Blumer's termination on March 23 were different. I find
With that, Kjellstrom left. Asked directly whether he had that he did not quit but was discharged.
discharged Blumer, Kjellstrom's reply was at least equivo- Such action by Kjellstrom might lawfully have been
cal: "Well, in my own feeling I don't think I did." prompted by Blumer s statement that he would work only
It should be noted that there is no evidence that Blumer three quarters of an hour every hour and by Kjellstrom s
had been talking "so much", or that he had failed to get the alleged apprehension when Blumer pointed his finger at him
work out beyond any interruption which might characterize (altfiough I do not believe that Kjjellstrom was either fearful
talk admittedly permitted among the employees. Although or offended). On the other hand, the discharge could have
Kjellstrom testified that Olson, one of the two employees been prompted by Blumer's newly discovered activity on
with whom Blumer had been talking, had complained about behalf of an independent union . But Kjellstrom, insistin
Blumer talking too much, Olson testified that he had never that he merely mentioned Blumer's right to quit (although
so complained Blumer has stoutly maintained the contrary), condoned the
Kjellstrom subsequently recalled that Blumer had also latter's statement and has certainly condoned it throughout
said, "I'll never come back here again." But when it was this proceeding, the Company maintaining that it did not
thereafter suggested to Kjellstrom, "So then Mr. Blumer discharge Blumer when and because he expressed himself as
was fired," Kjellstrom's reply was onl , "If he wants to take he did.
it that way, a 1 right " Kjellstrom added that he had in fact The defense and insistence that Blumer quit becomes
said to Blumer, ` f you want to take it that way, go ahead significant at this point for its indication that, whatever
and take it that way." His final testimony at this point and justification the Compan y may have had for discharging
in this connection was, "So, if he takes it that way that he's him, it took that action but not for any such justifiable
fired, he's fired." Aside from the proof in the record taken reason. If the Company could lawfully have discharged Blu-
as a whole that Blumer was in fact discharged, this testimo- mer because of what he said to Kjellstrom, we must accept
ny by Kjellstrom hardly supports the defense that he quit. its position and testimony that it did not do so for that
The situation on March 23, as we shall see, differed from reason. But since the evidence shows that Blumer was dis-
the several times when Blumer had admittedly quit: His charged, it must have been for the alternate reason, his
check had not been ready or in process of preparation on union activities. His prior frequent importunities for in-
those prior occasions and he had neither called for it before creases in pay and other conduct may have contributed to
he left the plant nor filed for unemployment compensation. this decision. But based even in part on his union activities,
Nor should we overlook the clear admission of discharge in his discharge was violative.
the Company's report to the compensation commission, With the insistence that Blumer was not discharged but
read into the record. quit, we cannot overlook the Company's "apparent acquies-
Blumer admitted that he had said to Kjellstrom that he cence"2 in whatever aspects of his conduct may have war-
would work only three quarters of an hour each hour until ranted discharge. But the Company did in fact discharge
he received the increase which he had wanted. He denied him, and I so find and conclude.I further find and conclude
that he quit, but steadfastly maintained that Kjellstrom had that the actual reason for the discharge was one which
said, "you're fired." I do not credit Blumer's testimony that Kjellstrom learned he could not lawfully cite, Blumer's un-
he did not point his finger at Kjellstrom but merely hit his ion activity. If there was no occasion or excuse to discharge
palm with a finger of the other hand. The gesture as Blumer other union supporters, it could now be claimed albeit false-
made it on the stand was not only unnatural but quite ly that, excitable, Blumer had quit.
evidently uncomfortable. Nor have1 overlooked Blumer's Stated another way and more succinctly, if Kjellstrom
unreliability as he testified first that he had not gotten an believed that Blumer's statement did not warrant discharge,
increase in January, then that he had received 10 cents at he thereby and therefore condoned that statement to the
that time, and finally that he guessed he was wrong: He had extent that he did not discharge Blumer for making it.
in fact received 15 cents. Kjellstrom must therefore be found to have been motivated
On the issue of discharge or quit, Blumer testified that, by the only alternative element present and considered,
when he got to the office, his final paycheck was ready Blumer's union activity. Blumer had (a) engaged in union
except for information which he had to supply with respect activity; (b) declared that he would work only three quarters
to the number of his dependents. Maintaining that he lead of every hour; and (c) shaken his finger at Kjellstrom, the
not spoken to Leonard concerning his talk with Blumer and
issuance of a final paycheck, Kjellstrom's position was that 2 Rot,te, Inc, 183 NLRB No. 48.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company president. ^ Maintaining that Blumer quit after a between himself and Kjellstrom. But he was not permitted
few words between them, Kjellstrom denied that he had to remain; he was unlawfully discharged in violation of
discharged him because of (b) or (c). Presumably then, Blu- Section 8(aX3) and derivatively of Section 8(axl).
mer was privileged to remain despite what had occurred [Recommended Order omitted from publication.]