Wisconsin Rubber Products Co., Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1966

160 N.L.R.B. 166 (N.L.R.B. 1966)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require employer disclosure of employee names and addresses so as to
insure the opportunity of all employees to be reached by all parties
in the period immediately preceding a representation election."
Accordingly, we find that the Employer's exceptions raise no material
or substantial issue of fact or law which would warrant reversal of
the Regional Director's findings and reconmmendations, which we
hereby adopt.
ORDER
[The Board ordered that the election conducted on May 12, 1966,
be set aside.]
[Text of Direction of Second Election omitted from publication.] 2
An election eligibility list, containing the names and addresses of all the eligible inters,
must be filed by the Employer with the Regional Director Irrr Iie¢ni i't ii huin 7 dais
after the date of issuance of the Notice of Second Election by the Regional Unector The
Regional Director shall make the lint avoilaLie to all parties to the election No (l I cismn
of tune to file this list shall be granted by the Regional llirector except in exti.luidiii iv
circumstances Failure to conii i with this requnement cha11 be grounds for sottinc aide
the election tclienever proper objections are filed Lrccelerot Curer near , lire , Iff Ni,Iii 12.{ti
Wisconsin Rubber Products Co., Inc. and International Union,
United Automobile , Aerospace & Agricultural Implement
Workers of America , AFL-CIO, Region 10. Case 30-C_4-301.
July 13, 1966
DECISION AND ORDER
On May 10, 1966, Trial Examiner -Melvin Pollack issued his Deci-
sion in the above-entitled proceeding, finding that the Respondenttn'
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief. General Counsel filed an answering brief and
an opposition to Respondent's motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
160 NLRB No. 16.
WISCONSIN RUBBER PRODUCTS CO. 167
in the case, and hereby adopts the findings,' conclusions, and rec-
ommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
1 After the issuance of the Trial Examiner's Decision, the Respondent filed a motion to
reopen the hearing to introduce testimony of employee Vogel alleged to be newly discovered
and previously unavailable Such evidence it is argued, would discredit the testimony of
employee Ilelby, who the Trial Examiner found was discharged because of her union
activity, and establish that by voicing grievances, Alelby was a disruptive influence We
are persuaded on the representations of the motion, that the evidence sought to be adduced
is not newly discovered. The affidavit of Plant Manager James Richardson submitted as in
exhibit in support of Respondent's motion, clearly establishes that prior to the hearing,
Respondent sought out Vogel to obtain precisely such evidence and Vogel expressed his un-
willingness to become involved in the matter Respondent made no effort to subpena Vogel
who was hospitalized for a nervous disorder on the final day of the hearing herein, and
did not request a continuance until such time as Vogel would be able to testify Moreovei,
even assuming, in view of these circumstances, the etidence was "unavailable' at the
time of the hearing, we find that the Trial Examiner's Decision is amply supported by
a preponderance of other credited testimony Accordingly, we find no merit in Respondent's
motion to reopen the hearing.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on November 4, 1965, and a first amended charge filed on
December 1, 1965, by International Union , United Automobile, Aerospace & Agri-
cultural Implement Workers of America, AFL-CIO, Region 10 (herein called the
Union), the General Counsel of the National Labor Relations Board, by the
Regional Director for Region 13, issued a complaint on January 12, 1966, against
Wisconsin Rubber Products Co., Inc. (herein called Respondent or the Company).
The question presented is whether Respondent , in violation of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended , discriminatorily discharged
employee Lillian Melby. '
At the hearing before Trial Examiner Melvin Pollack , which was held in Union
Grove, Wisconsin , on March 21 and 22, 1966, all parties were represented and were
afforded full opportunity to be heard , to examine and cross-examine witnesses, and
to introduce relevant evidence . The General Counsel and the Respondent thereafter
filed briefs.
Upon the entire record , and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, operates a plant in Union Grove, Wiscon-
sin, where it manufactures rubber rollers for the printing and metal coating indus-
tries. In 1965, a typical year, the Company sold and delivered from its Union Grove
plant products valued in excess of $50,000 to points outside the State of Wisconsin.
I find, as Respondent admits, that Respondent is engaged in commerce within the
meaning of the Act, and that the assertion of jurisdiction is warranted.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Lillian Melby
Pursuant to a representation petition filed by a Teamsters local, the Board con-
ducted an election at the Union Grove plant on March 19, 1965.1 The Teamsters
1 All dates are in 19G5.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lost the election by a vote of 42 to 2. Lillian Melby, who had campaigned actively
for the Teamsters, was one of the two employees who voted for the Teamsters.2
Melby continued to speak in favor of a union at the plant after the election. There
is no dispute that the Respondent knew of Melby's Teamster activity and her union
views. Plant Manager Richardson testified that he knew that Melby "spoke out very
strongly" for the Teamsters, that she continued her union activities after the elec-
tion, and that she told him that she felt the plant needed a union.
In June or July, Melby spoke to the Union's regional director, Sam Rizzo, about
organizing the Union Grove plant and thereafter sought to gain support for the
Union by telephone calls to the employees at their homes and by speaking to them
at the plant before and after work, during the morning "break," and at lunch.
About October 1, Melby asked employees if they wanted a union meeting and made
arrangements for such a meeting with Rizzo. Melby then spoke to the employees
again about this meeting, which was scheduled for October 17. She engaged in this
activity in the pressrooms where she worked, at the timeclock, and at the drinking
fountain. Some of her conversations were carried on in the presence of Melby's
foreman, Daniel Buckman.
On Monday, October 11, about 3 p.m., Plant Manager Richardson called Melby
to his office and discharged her. According to Richardson, he told Melby that he
was discharging her because Foreman Buckman could not get her "to quiet down
and discontinue throwing tirades and disrupting" the pressroom. Melby testified
that Richardson said that the Company was having problems in the pressroom, that
she had caused Mabel Knop and Betty Tenhagen to quit, and that she could quit
voluntarily or be released. Melby replied she liked her job and would not quit
voluntarily, whereupon Richardson said, "I'm going to have to release you, and it
shall go down on your records."
Melby returned to her work area and reported her discharge to Buckman. Accord-
ing to Melby, she told Buckman she liked her work and hated to leave. Buckman
purportedly replied, "the same from me" and "you are a wonderful girl."
The next day, Richardson summoned the pressroom employees to his office and
told them that Melby had been discharged for throwing the department into a
state of chaos and confusion. Employee Victoria Terpstra asked Richardson if it
was true that Melby was discharged because of her union activities. Richardson
replied that Lillian had been disrupting the department for some time and that the
Company did want "people around that do these things to the Company." 3
B. Respondent's explanation for the discharge
Plant Manager Richardson testified in substance that Melby was an unruly, talka-
tive, and noisy employee; that he had himself asked Melby to quiet down; that
Foreman Buckman advised him several times that he had had to warn Melby that
she would be discharged if she did not restrain herself; and that he discharged
Melby after Buckman reported to him on Monday morning, October 11, that "he
just didn't know what else to do about trying to straighten her out."
2 According to Melby, Respondent's president, William Ditzler, called her a "stinker"
when she remarked to him during the counting of the ballots, "Maybe mine will be the
only vote for the union." Ditzler acknowledged that Melby revealed her vote to him at
this time but denied calling her a "stinker." I believe Melby had the better recollection
of the incident and credit her testimony.
Wilhelm Kurth, a maintenance foreman, testified that Plant Manager James Richardson
told him before the election, on the day of the election, and again in April, that he might
let Melby go because of her activity Kurth, a contract employee, did not get along with
Richardson and was released when his contract terminated in July 19115 I consider it un-
likely that Richardson would have freely discussed Melby's union activity with him and
do not credit Kurth's testimony that Richardson told him at various times that lie would
discharge Melby for such activity
3I do not credit employee Yvonne Mortier's uncorroborated testimony that Richardson
answered Terpstra's question by saying "as long as he was there, there never would be a
union " Richardson credibly testified that he instructed foremen before the Board election
in March 1965, that they could tell employees that management would prefer to operate
without a union but that they were not to promise benefits to the employees or to make
statements "that would tend to coerce people." In view of Richardson's apparent sophistica-
tion in labor relations matters, It is unlikely that he made the remark attributed to him
by Mortier
WISCONSIN RUBBER PRODUCTS CO. 169
Buckman's testimony concerning the incidents which allegedly led to Melby's dis-
charge may be summarized as follows: Buckman replaced Allen Tuinstra as fore-
man of the pressroom on July 26, 1965. About a week later, Melby, who talked
"pretty much all the time," complained in a loud voice "how screwed up the depart-
ment was and nothing was organized and nobody knew what they were supposed to
do and how do we know what we're supposed to do and so on . . .." Buckman
told Melby "to calm down and let me run the department." He warned her three
or four times during the course of a long conversation that he would fire her if
she continued to disrupt the department by talking in a "loud manner."
About a week later, Buckman complimented employee Roy Vogel for an " excel-
lent change" in the way he was doing his work but also reprimanded him for mak-
ing the change without Buckman's permission. While Buckman was "back in
inspection," Richardson came up and said he "had better go up front" because
Melby was "on a rampage about something." When Buckman returned to the
pressroom , Melby "was yelling at Roy about something ." Roy told him Melby was
saying he "shouldn't be disciplined about doing good work" and was also saying
something about her father. Buckman told Melby she was disturbing Roy and
please not to do it again.
In mid-August, employee Mabel Knop complained about not getting paid as
much as her predecessor on the grinding machine. Melby chimed right in, saying
Knop had worked as hard as the other girl and "how unfair it was" that she was
not getting the same rate of pay. After speaking to Richardson, Buckman told Knop
she would get the same rate as the previous girl "if she would learn to do the
set-ups on the machine," and offered to teach her how to do set-ups. He also
explained the situation to Melby and instructed her to "stick to her own work"
because she was "helping to get Mabel upset over the thing." Knop gave notice the
"following Monday" that she was going to quit. Melby made "a big fuss over
Mabel quitting" and "was on the subject for days."
In the middle of September, Melby again began to complain "about how screwed
up the department was." She was "much too loud" and "getting other people in. on
it." Buckman asked her what was the matter and she replied she did not blame
him, but he was trying changes and "nothing was going right." Buckman said he
was responsible for the department and that she was not "to concern herself with
whether the department was screwed up or not. That she had to stick to her work
and not get the department disrupted." 4
Melby stopped employees passing by her work station and engaged in long con-
versations with them. Sometime in September Buckman told Melby that it was all
right for her to nod and be pleasant to people walking through the pressroom, but
warned her against engaging them in 5- to 10-minute conversations as she had been
doing.
On Monday, October 4, employee Betty Tenhagen declared in a loud voice, "I
just can't work here any longer, I'm going to quit." At lunchtime, Tenhagen
explained to Buckman that she had a teenage daughter and wanted to spend more
time with her. That afternoon, Melby made "quite a fuss about how we shouldn't
allow Betty to quit" and became so loud that Buckman had to stop her. The next
day, Melby again began to complain in a loud voice about the department "being
so screwed up" and about Betty's leaving. Buckman warned Melby that her behavior
tended to "rile" the whole department and that he "wouldn't tolerate it." On Thurs-
day, October 7, Tenhagen's name was omitted from a notice posted that day which
listed the employees who were to receive a bonus for work previously performed.
Buckman was "back in inspection" at the time of the posting. He was informed
that Tenhagen was "all upset" and,returned to the pressroom where he found Ten-
hagen "in a fury," saying that nobody was going to cheat her out of her bonus,
and Melby "repeating every sentence" and saying "don't let them cheat you out of
your bonus." 5 Buckman said he would speak to Richardson about the bonus. He
did so, and reported back to Tenhagen that she would get the bonus. But Melby
"kept going" the rest of that day and also the next morning on how the Company
4 Buckman allegedly commented on nl:elby's disruptive behavior at a meeting held on
Saturday, October 2, to discuss departmental problems with the pressroom employees
5 Plant Manager Richardson testified that he came "into the area" and that work was
"at a standstill" because Tenhagen had "blown up" and was saying that no one was going
to cheat her out of her bonus, and that Melby had "joined in " He instructed his secretary,
who had explained to him why Tenhagen was "upset," to tell Tenhagen she was eligible
for the bonus and would get it.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had tried to cheat Betty out of her bonus. She became loud enough so that Buckman
had to go over to her and tell her that Betty got her bonus and the subject was
"closed."
On Monday morning, October 11,6 Buckman told Richardson that "the situation
was ridiculous" and that Melby, Knop, and Tenhagen were malcontents who had
disrupted production in the pressroom. Richardson suggested that, with Tenhagen
having quit the preceding Friday, the department could operate in a business-like
manner if Melby were discharged. Buckman concurred and Richardson decided to
take "the onus of the firing" on himself because that might facilitate Buckman's
efforts to straighten the department out.
Melby testified that she was hired by the Company in June 1963, that she
received several payincreases, and that Foreman Buckman praised her work some-
time in August and also on the day of her discharge, saying that the rollers she had
turned out that day pursuant to a new procedure were "Amazing. Every one of
them perfect." She said she had been criticized for "personal conduct" sometime in
August by Buckman for her part in a "discussion over wages " Buckman allegedly
came over to Melby after she had "given some comment" and said , "Lil, I wish you
wouldn't say things like that." Melby denied that she had ever received any other
criticism concerning her behavior at work, or that Buckman had ever threatened to
discharge her. She said she talked "from time to time" with the other employees
in the pressroom, that it was a "common practice" in the pressroom for the employ-
ees to converse, and that the employees "spoke up a little bit loud" to be heard over
the noise from the pressroom machinery.
According to Melby, the pressroom employees discussed wages "once or twice a
week" during the period preceding her discharge because they felt they were
entitled to the "dime raise" that had been given to the "girls" in another depart-
ment. The pressroom employees were also concerned at this time over "new proc-
esses and experiments" which "slowed down everyone's work " 7
Melby denied that she had ever been criticized for talking to the pressroom
employees or for stopping and talking to other employees passing through the press-
room during the working day.
Melby recalled talking to Buckman about Mabel Knop's decision to quit work in
September. According to Melby, Buckman offered Knop's job at the grinder to
"each and every one of us" and she said, "No, not for that kind of money, not for
those wages," adding, "I sure wish Betty wouldn't quit." 8 On cross-examination,
Melby conceded that she went to Buckman and told him that Knop should be
getting the same late as the previous employee on her job. She recalled no "dis-
turbance" at the time Knop sought a wage increase.
Concerning the "bonus" incident, Melby first testified that Tenhagen "at the time
she resigned" expressed some concern to her about getting the bonus and that Melby
might have spoken to Buckman about Tenhagen's bonus. Melby subsequently
changed her testimony to say she had had no conversations with Tenhagen or "any-
body else" about the bonus, except that there might have been some discussion of
the bonus "during lunch breaks or something." She denied that she became "violent"
in any discussion over Tenhagen's bonus.
Melby allegedly had no knowledge that employee Roy Vogel was reprimanded
about August 10 by Buckman and denied that Buckman at this time told her she
was disturbing Vogel and to be quiet and go back to her job
The employees who worked in the pressroom on the day shift along with Melby
at relevant times 9 were Yvonne Mortier, Mabel Knop, Betty Tenhagen, Victoria
0 Buckman tried to see -Richardson after lunch on Friday but Richardson had gone to
Chicago.
7 Plant Manager Richardson testified that the pressroom employees were promised a
raise in February contingent upon improved production The raise was granted on
November 1.
s Melby's reference to "Betty" at this point in her testimony reflects a confusion over
the first names of Knop and Tenhagen which occurred several times during the course of
the hearing
U Dorothy Allen transferred to the second shift in April 1965 She testified that Melby
was "real enthused" during the 1964 Johnson-Goldwater election campaign and that she
warned Melby not to get "so worked up about it " Allen also testified that Melby told her
during the summer of 1965 that she was afraid she might be discharged for "some of the
things" she was saying. Allen did not know, and Melby did not say, what "things" she
had in mind.
WISCONSIN RUBBER PRODUCTS CO. 171
Terpstra , Frances McClelland , and Roy Vogel 10 Mortier testified that it was "com-
mon" for employees "to talk loudly" in the pressroom "to get above the noise" and
that Melby did no more "screaming or yelling" than the other employees . She also
testified that production "on all of our work" was adversely affected by changes in
production methods put in effect before , and continuing for 2 of 3 weeks after,
Melby's discharge.
Knop testified that she asked Plant Manager Richardson for a wage increase,
that Foreman Buckman told her on a Friday in August that she would get the
rate of her predecessor on the grinder as soon as she could do setups, and that
she gave Buckman a week's notice that she was quitting when he told her that he
would like her to start setting up her machine the following week. Knop also testi-
fied that Melby told her on one occasion before Knop decided to quit that she
thought Knop should get the same pay as the previous operator because she also
ran two grinders , was a steady worker , and had been there 7 years." During her
final week of employment , the women on one occasion discussed Knop 's rate of
pay at break time. According to Knop, the women did not like her leaving and
Melby declared that it was unfair for Knop not to receive "the same amount at
least that she did." Melby spoke "a little loud" because the press was still
running.
Tenhagen testified that a bonus notice was posted during the last week of her
employment , that she talked to the office girl who posted the notice and to Fore-
man Buckman about her getting the bonus , and that both of them reported back
to her that she was going to get the bonus . She said that she talked to no one
else about the bonus and that she did not hear Melby say anything to anyone about
the bonus . She denied any display of anger over the bonus matter or ever saying,
"no one is going to cheat me out of my bonus ." Tenhagen further testified that
she attended an October 2 meeting at the plant, that Buckman discussed produc-
tion problems at the meeting , but that he raised no question concerning the "per-
sonal conduct" of the employees in the pressroom.
Terpstra testified that Melby had "complaints all the time" about Buckman's
"new procedures"; 12 that Melby complained about "everything"; that Melby fre-
quently started conversations with employees at her work station; that Melby was
"a talkative person" who "kept on talking" after Terpstra said she was working;
and that on one occasion Melby made "quite a few comments" about the amount
of work Buckman had assigned to her that day. Terpstra further testified that she
never complained to management about Melby ; that Melby did the work assigned
to her "whether she.liked it or not"; and that three or four other employees in
the department "didn't like the change " in production methods effected by Buck-
man. Concerning Knop's quitting work in September , Terpstra testified that "the
general feeling . . . around the department " was that Knop should get wages of
$2 an hour or more if she was required to do set -ups. Melby, according to Terpstra,
said that Knop should get the money she asked for for setting up the machine.
McClelland testified that Melby was "all out" during the 1964 presidential elec-
tion but that otherwise "I don 't think she did too much." Concerning the Ten-
hagen "bonus" incident , McClelland testified that "Betty was kind of shook up"
and that Melby said "something about that she should get it and then Betty went
into the office and I guess she was told that she would get her bonus."
LaVerne Blodgett , an employee in the mill department , and Marilyn Tuinstra,
an office employee , testified that Melby struck up conversations with them and
with other employees as they passed her work station . Concerning the Tenhagen
"bonus" incident, Tuinstra testified that Melby came into the office about 10 min-
utes after the bonus notices was posted and asked "why shouldn't Betty get her
bonus ," that the whole matter was settled by Plant Manager Richardson within
20 to 30 minutes , but that Melby would not "let the matter rest at all" and talked
to her that day "more than four or five times" about "why there was even any
question" whether Tenhagen would get the bonus.13
° Vogel did not testify at the hearing
11 Allen Tuinstra , the foreman of the pressroom before -Buckman , testified that Knop
talked to him about her rate of pay " on more than one occasion " and that Dlelby " talked to
[him1 about this"
12 Terpstra made the same statement about Knop
13 ilelby said she spoke to Tuinstra in the office while collecting for a present for
Tenhagen but she denied having any conversation whatever with Tuinstra over Tenhagen's
bonus
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
Respondent denies that it knew Melby was engaged in union organizing activity
before her discharge on October 11 and asserts that it discharged her because of
misconduct on the job which disrupted production.
Melby's efforts to enlist support for the Union at the plant were open and exten-
sive. Some of this activity occurred in the presence of Foreman Buckman. For
some 10 days before her discharge, she was diligently engaged at the plant in pro-
moting a union meeting. I therefore do not credit the testimony of Plant Manager
Richardson and Foreman Buckman that they believed Melby was only expressing
her view that the plant would be better off with a union and find that they knew
Melby was engaging in union organizing activity.
The record does not substantiate the Company's explanation that Melby was
discharged because she "disrupted" the production of the other pressroom employ-
ees.14 Melby's alleged misconduct- consisted of loud complaining "about how
screwed up the department was," disturbing pressman Vogel at his work, stopping
and engaging in long conversations with employees who were passing her work
station, making "a big fuss" over Knop's quitting work because of dissatisfaction
over her rate of pay, and complaining that the Company had tried to cheat Ten-
hagen out of her bonus.
While the record shows that Melby freely expressed her feelings about condi-
tions in the pressroom, I do not credit Buckman's testimony that he threatened to
disharge her for interfering with the work of the other employees by her "loud"
complaining. The pressroom employees testified that Buckman's experiments with
production methods slowed down production and caused much complaining. None
of them testified to any unusual behavior by Melby at this time, although some
recalled her "all out" conduct during the 1964 Johnson-Goldwater election cam-
paign. Buckman asserted that Melby, Tenhagen, and Knop were the loudest and
most frequent complainers, yet he admitted that he never warned Tenhagen or
Knop that their conduct was interfering with production. Tenhagen, who impressed
me as a reliable witness, testified that, in talking about departmental production
problems at the October 2 meeting, Buckman did not mention the "personal con-
duct" of any employee. In these circumstances, I reject Buckman's testimony that
he warned Melby in August and again in September to stop her loud complaining
"about how screwed up the department was." 15
I also reject Buckman's testimony that he reprimanded Melby on one occasion
for disturbing Vogel at his work and that he warned Melby against stopping and
talking to people who passed by her work station. Vogel did not testify and no
other pressroom employee indicated any knowledge of such an incident. Nor does
it appear that the pressroom women knew of any warning to Melby against talking
to employees at her work station. I do not believe such a warning would have
escaped the attention of these women. I therefore credit Melby's denials of the
alleged Vogel incident and of any warning against conversations with employees
passing by her work station.
Buckman's charge that Melby made "a big fuss' over Knop's leaving and "was
on the subject for days" similarly lacks employee corroboration. Knop said the
women discussed her rate of pay before she left, that they did not like her leav-
ing, and that Melby thought the Company was not being "fair" to Knop. Terpstra,
whose testimony was generally unfavorable to Melby, testified to the same effect.
Finally, I do not credit the testimony of Buckman and Richardson concerning
Melby's role in the Tenhagen bonus incident. According to them, Tenhagen was
"in a fury" and Melby was repeating Tenhagen's words about not being cheated
and telling her not to let the Company cheat her out of her bonus. Such conduct
by Melby could not have gone unnoticed by the other employees in the pressroom.
Yet not a single employee testified to such conduct by Melby. Tenhagen denied
saying anything about "cheating" and McClelland testified that Tenhagen was
14 Melby worked over 2 years for the Company before her discharge and received several
wage increases during this period. Respondent makes no claim that Melby's own produc-
tion was unsatisfactory
15 The General Counsel contends in his brief that \Ielby's complaints about job condi-
tions constituted protected concerted activity and therefore, assuming she was discharged
for such complaints, that the discharge was violative of Section 8(a) (1) of the Act As
such an issue was neither pleaded nor litigated, I find no merit in the General Counsel's
position.
WISCONSIN RUBBER PRODUCTS CO. 173
"shook up" and went into the office after Melby remarked that she should get the
bonus. Buckman 's testimony that Melby continued to complain in a loud voice,
after Tenhagen was assured she would get the bonus , about how the Company
had tried to cheat Tenhagen not only repeats the unfounded "cheating" theme
but also stands uncorroborated by any pressroom employee. I discount Marilyn
Tuinstra's testimony that Melby would not "let,the matter rest at all," for, as an
office employee , Tuinstra had little opportunity to observe Melby's behavior in
the pressroom. Although "really loud" talking in the pressroom could be heard
in the office , Tumstra recalled no such talking at this time. Her testimony thus
tends to contradict rather than to support Buckman's claim that Melby became
so loud that he had to tell her that Betty got her bonus and the matter was closed.
It is "not natural" for an employer to discharge a competent employee "sum-
marily, without preliminary warning, admonition or. opportunity to change the
act or practice complained of." E Anthony & Sons., Inc. v. N.L.R.B, 163 F.2d
22, 26 (C.A.D.C). Such action would seem especially , unusual at a time when an
employer is experimenting with new production methods and has particular need
for trained workers. Accordingly , on the entire, record, including Melby's satisfac-
tory production record , her union activity and Respondent 's knowledge of this
activity , the timing of the discharge , and the lack of any , prior warning, I find
that Respondent 's asserted reason for discharging Melby was not the real reason,
but that the discharge was motivated by a desire to abort the Union 's organizing
drive by ridding the plant of its leader . It is accordingly found that Melby's dis-
charge was violative of Section 8(a) (3) and ( 1) of the . Act., ••
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth ' in section III, occurring in connection
with the operations of Respondent described in section I, have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found, that Respondent has committed an unfair labor practice, I will
recommend that it be ordered to cease and desist from such conduct and to take
certain affirmative action designed to dissipate its effect . Having discriminatorily
discharged Lillian Melby, Respondent will be ordered to reinstate Melby to her
former or substantially equivalent position of employment, without prejudice to
her seniority and other rights and privileges, and make her whole for any loss of
earnings suffered as a result of Respondent 's unlawful action . Backpay shall be
computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289,
with interest added thereto in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discharging Lillian Melby for undertaking to organize for the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the findings of fact and conclusions of law, and upon the
entire record in the case , it is recommended that Wisconsin Rubber Products Co.,
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union , United Automobile, Aero-
space & Agricultural Implement Workers of Amerkca , AFL-CIO, Region 10, or
any other labor organization of its employees , by discriminatorily discharging or
in any other manner discriminating against , any employee in regard to his hire or
tenure of employment.
(b) In any like or related manner interfering with, restraining , or coercing
employees in the exercise of their rights to self-organization, to form , join, or , assist
labor organizations , to bargain collectively through representatives of their own
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and all such
activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which is designed to effectuate the pol-
icies of the Act:
(a) Offer to Lillian Melby immediate, full, and unconditional reinstatement to
her former or 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, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify Lillian Melby if presently serving in the Armed Forces of the
United States of her right to full reinstatement, upon application, after discharge
from the Armed Forces in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended.
(c) 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 or useful
in computing the amount of backpay due, as herein provided.
(d) Post at its plant in Union Grove, Wisconsin, the attached notice marked
"Appendix." 16 Copies of the notice, to be furnished to the Regional Director for
Region 30 (Milwaukee, Wisconsin), shall, after being duly signed by Respondent's
authorized representative, be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith.17
16 In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Exam-
iner" in the notice. In the further event that the Board's Order be enforced by a decree of
a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
17 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO,
Region 10, or any other union, by discharging or refusing to reinstate any
of our employees , or otherwise discriminating in regard to their hire or tenure
of employment, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce employees in the exercise of their right to self-organization ; to form,
join, or assist any union ; to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from
any and all such activities.
WE WILL offer to Lillian Melby immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her seniority
and other rights and privileges . If she should currently be serving in the Armed
ROANOKE IRON & BRIDGE WORKS , INC. 175
Forces of the United States, WE WILL notify her of her right to full reinstate-
ment upon application , after discharge from the Armed Forces, in accordance
with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended.
WE WILL make whole the above -named Lillian Melby for any loss of pay
she may have suffered because of the discrimination against her.
All our employees are free to become and remain , or to refrain from becoming
or remaining , members of the above -named or any other union.
WISCONSIN RUBBER PRODUCTS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Suite
230, Commerce Building, 744 North Fourth Street, Milwaukee , Wisconsin 53203,
Telephone 272-8600, Extension 3866.
Roanoke Iron & Bridge Works, Inc. and United Steelworkers of
America, AFL-CIO. Case 5-CA-3097. July 19,1966
DECISION AND ORDER
On February 2A, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent, General Counsel, and
Charging Party filed exceptions and supporting briefs.'
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.] 2
MEMBERS BROWN and JENIiINS, dissenting :
The issue posed by the complaint was whether the Company
"negotiated with the union in bad faith and with no intention of
entering into a final or binding agreement." Although the checkoff
'The Charging Party's request for oral argument is denied as the record, including the
exceptions and briefs , adequately presents the issues and positions of the parties.
2 The telephone number for Region 5, appearing at the bottom of the notice attached
to the Trial Examiner ' s Decision , is amended to read. Telephone 752-8460, Extension 2159.
160 NLRB No. 17.