NLRB v. Kiekhaefer Corporation

• Decision Date: 29 June 1961
• Docket Number: No. 13167.,13167.
• Citation: 292 F.2d 130
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KIEKHAEFER CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

292 F.2d 130 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KIEKHAEFER CORPORATION, Respondent.

No. 13167.

United States Court of Appeals Seventh Circuit.

June 29, 1961.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Allan I. Mendelsohn, Atty., National Labor Relations Board, Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Attys., National Labor Relations Board, Washington, D. C., for petitioner.

James I. Poole, Richard L. Harrington, John H. Jackson, George Maly, Jr., Milwaukee, Wis., for respondent, Foley, Sammond & Lardner, Milwaukee, Wis., of counsel.

Before SCHNACKENBERG and CASTLE, Circuit Judges, and GRUBB, District Judge.

CASTLE, Circuit Judge.

This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C.A. § 160(e)) for enforcement of the Board's order issued against Kiekhaefer Corporation, respondent.

The Board's decision and order followed proceedings under the Act¹ which culminated in findings that respondent violated Section 8(a) (1), (2) and (3).² The Board found that respondent violated Section 8(a) (3) by engaging in acts of reprisal against employees who were seeking to disaffiliate from Kiekhaefer Independent Workers Association (KIWA) and affiliate with International Association of Machinists (IAM). These included a reduction in employee working hours, layoffs, and the transfer of an employee. The Board further found that by such conduct, as well as by threats of reprisal, the withdrawal of employee privileges, and the promulgation of an unlawful no-solicitation rule, respondent interfered with, restrained and coerced employees in violation of Section 8(a) (1). The Board concluded that this entire course of conduct constituted assistance and support to KIWA in violation of Section 8(a) (2) and (1).

The Board's order requires respondent to cease and desist from the unfair labor practices found. Affirmatively, it directs respondent to make whole, for any loss of earnings, the employees who were reduced in working time, laid-off or transferred. In addition, the order requires respondent to withdraw recognition from KIWA as the representative of its employees and to cease giving further effect to the current collective bargaining agreement with KIWA, or any extensions or renewals thereof, unless and until respondent's employees have demonstrated their choice of majority representative pursuant to a Board-conducted election.

The main contested issues presented for our determination are:

(1) Whether substantial evidence, on the record considered as a whole, supports the Board\'s finding that respondent violated Section 8(a) (3) and (1) of the Act by making reprisals and threats thereof to discourage employee adherence to IAM.

(2) Whether such substantial evidence supports the finding that respondent violated Section 8(a) (2) of the Act.

(3) Whether, if the Board\'s finding and conclusion that KIWA was assisted and supported in violation of Section 8(a) (2) and (1) is so supported, the Board\'s order in so far as it requires withdrawal of recognition of KIWA as the employees\' representative and that no further effect be given the collective bargaining agreement executed with KIWA, or any extension or renewal thereof, unless and until KIWA shall have been newly certified as majority representative of the employees, is authorized and proper.

Contentions advanced by respondent relating to additional questions include whether respondent was denied a fair hearing, whether the complaint contained allegations not supported by a timely charge, and whether motions for production of statements of witnesses to the General Counsel were erroneously denied.

We have carefully reviewed the record, the intermediate report of the trial examiner, and the decision and order of the Board. Our review in so far as the factual findings of the Board are concerned is limited to a determination of whether or not those findings are supported by substantial evidence on the record considered as a whole. Board findings so supported are conclusive. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456. With that rule in mind the facts and circumstances upon which the Board's findings are based may be summarized as follows:

In August, 1957, the Board conducted a representation election among the respondent's production and maintenance employees at its Cedarburg, Wisconsin, plants. IAM and KIWA appeared on the ballot, the latter receiving a majority of the votes cast. The election was set aside because of respondent's interference with the employees' free choice by making economic concessions to KIWA shortly before the election and by favoring KIWA in the enforcement of a no-solicitation rule. At a subsequent Board-conducted election KIWA again polled a majority of the votes and was certified May 21, 1958 as the exclusive representative of respondent's employees at the Cedarburg plants. The validity of this election is not assailed.

Respondent and KIWA held several collective bargaining sessions between May and mid-September 1958. Respondent's highest wage offer during that period was a proposed hourly increase of 3¢ for incentive workers and 5¢ for non-incentive workers. At a KIWA meeting on September 16 the employees voted to reject this offer. As a result of their dissatisfaction with the progress of negotiations, the employees, at this same meeting, instructed KIWA president Owen to call a special meeting on or before October 6, for a vote on a change in affiliation from KIWA to IAM. The meeting was called for September 29 and a notice thereof posted in the plants and sent to respondent's president, Lohmann. Lohmann then sent a letter to the employees referring to the forthcoming vote, stating, inter alia, that absent "a basis of teamwork between ourselves * * * we cannot continue to take the responsibility of operating this business" and "the lack of a vote of confidence * * * will necessarily curtail further expansion * * has caused us not to accept orders" and "without a vote of confidence in the company, there certainly will be no tomorrow. Take your choice." The letter concluded, "For the sake of your jobs, your children and your community, why vote for an outside organization that never has, and never will have any part in the building of this business or your job, Vote KIWA".

At about this same time respondent's supervisors Abel, Brubaker and Schiller, in separate conversations with employee Morganroth, vice president of KIWA, stated that if the employees voted for IAM, "there would probably be a cut back in work", that "new work would be sent out", and that there "would probably be even a moving of the plant". Kaiser, who was in charge of employee relations for respondent, told Morganroth that if the employees joined a national organization, the plant could be moved south, "where labor is cheap". Foreman Schiller told employee Hopfensperger that "if IAM gets in, we are going to move the plant to Texas".

The production and maintenance unit of the two plants consists of approximately 760 employees. About 500 employees attended the September 29 meeting and a majority³ voted by secret ballot to disaffiliate from KIWA and affiliate with IAM. The following day Owen met with Lohmann, so informed him and requested that respondent bargain with IAM. Lohmann refused on the ground that KIWA had been certified by the Board. On September 30 Owen advised Lohmann by letter that the officers and bargaining committee for the newly formed IAM, Mercury Lodge 20, were identical to those formerly representing KIWA and "will be pleased to continue negotiating a contract with your company." On October 13 respondent by a plant bulletin announced that it would continue to negotiate with KIWA.

Prior to the issuance of the bulletin respondent permitted employees, during working hours, to circulate through the plant and collect the signatures of a majority of the employees on certain petitions that KIWA continue to be the representative for bargaining purposes. These petitions, together with the fact of KIWA's certification, formed the basis for respondent's continued refusal to deal with the IAM lodge. A new executive board and bargaining committee were established by KIWA and on November 1 respondent executed a two-year contract with KIWA which contained an hourly wage increase of 5¢ for incentive workers and 10¢ for non-incentive workers and a new supplementary shutdowntime payment and vacation allowance for incentive employees.

Lohmann had been a company official since 1948 and could recall no lay-off of tool-room employees. But the day after the vote on disaffiliation tool-room hours which generally were over 50 hours weekly were cut to 40 hours weekly. The following week they were cut to 32, and it was not until two weeks later, after several employees had been laid-off, that a 40 hour week was re-established. Employees Hahn and Morganroth were among those affected by the reduction of hours. Morganroth had become vice-president of IAM. Hahn, an IAM adherent, had previously been told by foreman Abel, when he requested a raise, that he would never get any more money because "you have been sticking up for the IAM" and "have been on the wrong side of the fence". Hahn asked foreman Schiller why the tool-room hours had been cut and was advised, "We warned you what would happen if you joined an international union. * * * This is all you guys fault in the tool-room, you have to take the consequences".

Hopfensperger, another tool-room employee, was laid-off. The reason given was "shortage of work" but the particular machine he was employed to operate continued to be operated by two apprentices. When he had earlier inquired of foreman Schiller as to why the hours had been cut he was told that because of the vote on...