Air Control Products, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1962

139 N.L.R.B. 607 (N.L.R.B. 1962)

AIR CONTROL PRODUCTS, INC. 607
organizational expenses. Also, member locals of the Joint Council
must pay a monthly per capita tax to the Joint Council.
In these circumstances, we believe that the Petitioner is not com-
petent to bargain concerning the terms of the employment of the Em-
ployer's employees. As the Board stated in the Oregon Teamsters
case,4 a union which has allegiances conflicting with the purpose of pro-
tecting and advancing the interest of the employees it represents, as
does the Petitioner in this case, cannot be a proper representative of
these employees. Accordingly, we shall grant the Intervenor's motion
to dismiss the petition herein.5
[The Board dismissed the petition.]
CHAIRMAN MCCULLOCII and MEMBER LEEDOM took no part in the
consideration of the above Decision and Order.
4 Oregon Teamsters' Security Plan Office, et al., 110 NLRB 207, 211-212.
5In view of our determination herein, it is unnecessary to pass upon the Intervenor's
contract-bar contention.
Air Control Products, Inc. and United Steelworkers of America,
AFL-CIO and Airco Employees Association, Inc., Party to the
Contract . Cases Nos. 12-CA-2089 and 12-CA-2201. October 30,
1962
DECISION AND ORDER
On May 31, 1962, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled consolidated proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices within the meaning of Section 8(a) (1), (2), and
(3) of the National Labor Relations Act, as amended, and recom-
mending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. He
further found that the Respondent had not engaged in an unfair
labor practice alleged in the complaint, and recommended that such
allegation be dismissed.' Thereafter, both the Respondent and Airco
Employees Association, Inc. (hereinafter referred to as Airco), a
Party to the Contract, filed exceptions to the Intermediate Report
together with supporting briefs'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
2 No exceptions were filed to this recommendation, and we therefore adopt it pro forma.
2 The Respondent's request for oral argument is hereby denied, as the record, including
the exceptions and briefs, adequately presents the issues and the positions of the parties.
139 NLRB No. 47.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following exceptions, additions, and modifications :
1. We agree with the Trial Examiner, for the reasons set forth in
the Intermediate Report, that Robert O'Malley and Ray Gonzalez
are supervisors within the meaning of the Act. We find it unneces-
sary to adopt or pass upon his further finding that even if O'Malley
and Gonzalez were not supervisors, these individuals possessed the
attributes of representatives of management for whose conduct the
Respondent was responsible.
2. We also agree with the Trial Examiner that the evidence estab-
lishes that the Respondent unlawfully assisted Airco in violation of
Section 8(a) (1) and (2) of the Act. We do not agree, however, with
the Trial Examiner's finding that the evidence establishes domina-
tion either in the formation or the administration of this organization
by the Respondent.' We shall therefore not adopt the Trial Exam-
iner's recommendation that Airco be completely disestablished.
3. We further find, in agreement with the Trial Examiner, that
the Respondent violated Section 8(a) (1) of the Act by two instances
of interrogation of employees as to their union activities and Sec-
tion 8(a) (3) and (1) of the Act by the discharge of employee Thomas
Curry and the layoff of employee Ray E. Richburg.
TILE REMEDY
Having found that the Respondent has unlawfully assisted, but not
dominated, Airco, we shall order that the Respondent cease and de-
sist from such activities, and, further, that it shall withdraw and
withhold recognition from Airco unless and until that Union shall
have been certified by the Board as the exclusive representative of
the employees.
The Trial Examiner, relying on Virginia Electric,' recommended
that the Respondent be ordered to reimburse its employees and former
employees for moneys paid directly to Airco or deducted from their
wages pursuant to the checkoff provisions of the contract. We note
that the contract, which was executed in a right-to-work State, con-
tains no union-security provision. Moreover, there is no evidence
that the employees were coerced into joining Airco or into paying
membership dues. Absent evidence of coercion, we do not believe
a reimbursement remedy is warranted. Accordingly, we do not adopt
this recommendation of the Trial Examiner.
Although not recommended by the Trial Examiner, we shall, in
accordance with the General Counsel's request, require that the Re-
3 See Adhesive Products Corporation , 117 NLRB 265, at 267.
6Virginia Electric and Power Company v. N.L R.B , 319 U. S. 533.
AIR CONTROL PRODUCTS, INC. 609
spondent pay interest on the backpay due Curry and Richburg to
remedy the discriminatory discharges in this case.5 Such interest is
to be computed at the rate of 6 percent per annum and, utilizing the
Woolworth 6 formula, to accrue commencing with the last day of
each calendar quarter of the backpay period on the amount due and
owing for each quarterly period and continuing until compliance
with the Order is achieved.7
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Air Control Prod-
ucts, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Assisting or interfering with the formation or administration
,of Airco, or with the formation or administration of any other labor
organization, or any other organization of its employees, and from
contributing financial or other support to it or to any other labor or-
ganization, and from otherwise interfering with the representation of
its employees through a labor organization of their own choosing in
violation of Section 8 (a) (2) and (1) of the Act.
(b) Recognizing or bargaining with Airco or any successor thereto,
as the exclusive representative of any of its employees for the purpose
of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and other conditions of
employment, unless and until said labor organization shall have been
certified as such representative by the Board.
(c) Giving effect to or performing the agreement of April 14, 1961,
entered into with Airco, or to any modification, extension, supplement,
or renewal thereof, or to any superseding agreement with Airco, un-
less and until said labor organization shall have been certified by the
Board.
(d) Coercively or otherwise unlawfully interrogating employees
concerning their membership in, or activities on behalf of, United
Steelworkers of America, AFL-CIO, or any other labor organization
of its employees, in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1) of the Act.
(e) Discouraging membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of its employees, by dis-
charging any of its employees or by discriminating in any other man-
ner in regard to their hire and tenure of employment or any term or
condition of employment.
r, Isis Plumbing & IHeatsnq Co., 138 NLRB 716.
F. TV. Woolworth Company, 90 NLRB 289.
7 Member Rodgers dissents insofar as the remedial order requires the payment of inter-
est on backpay, for the reasons stated in his dissenting opinion in Isis Plumbing, supra,
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist United Steelworkers of America, AFL-CIO, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Airco Employees
Association, Inc., as the exclusive representative of any of its em-
ployees for the purpose of dealing with them concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or any other
condition of employment, unless and until such labor organization
shall have been certified by the Board as such representative.
(b) Offer Thomas Curry and Ray E. Richburg immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay that they may have suffered
by reason of the discrimination against them, in the manner set forth
in the attached Intermediate Report as modified by "The Remedy"
section in our Decision and Order herein.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary or appropriate to permit an analysis of the
backpay amount due the employees designated, together with their
reinstatement rights, under the terms of this Decision and Order.
(d) Post at its place of business in Miami, Florida, copies of the
attached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
"In the event that this Order Is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
AIR CONTROL PRODUCTS, INC. 611
IT Is FURTHER ORDERED that the complaint herein, insofar as it alleges
that the Respondent dominated Airco in violation of 8(a ) (2) of the
Act and interrogated its employees in violation of 8 (a ) ( 1) in other
respects than as found herein , be, and it hereby is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT assist , contribute support to , or interfere with
the formation or administration of Airco Employees Association,
Inc., or any other labor organization of our employees , or other-
wise interfere with the representation of our employees through a
labor organization of their own choosing.
WE WILL NOT recognize the Airco Employees Association, Inc.,
or any successor thereto , as the collective-bargaining representa-
tive of any of our employees for the purpose of dealing with such
labor organization concerning grievances , labor disputes , wages,
rates of pay , hours of work , or other conditions of employment, un-
less and until said labor organization shall have been certified by
the National Labor Relations Board as the exclusive representa-
tive of our employees.
WE WILL NOT perform or give effect to our agreement dated
April 14, 1961, with Airco Employees Association , Inc., or to any
modification , extension , supplement , or renewal thereof or to any
superseding agreement with Airco, unless and until said labor
organization shall have been certified by the National Labor
Relations Board.
WE WILL NOT give effect to any checkoff cards heretofore exe-
cuted by our employees , authorizing the deduction of periodic
dues from their wages for remittance to Airco.
WE WILL NOT discourage membership in United Steelworkers of
America, AFL-CIO, or any other labor organization of our em-
ployees, by discriminating in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union
activities on behalf of United Steelworkers of America, AFT,
CIO, or any other labor organization of our employees, in a man-
ner in violation of Section 8 (a) (1).
WE WILL offer to Thomas Curry and Ray E. Richburg im-
mediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
672010-63-vo1 139 40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of pay, or other incidents of the employment relation-
ship, which they may have suffered by reason of the discrimination
practiced against them.
WE WILL NOT in any manner interfere with. restrain, or coerce
our employees in their choice of bargaining representatives, or in
any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, or to join or assist any labor organization, to bar-
gain 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.
AIR CONTROL PRODUCTS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, Ross Building, 112 East Cass Street, Tampa, Florida, Tele-
phone Number, 223-4623, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on August 17, 1961. and amended charges on October 10
and November 22, 1961, by the United Steelworkers of America, AFL-CIO, herein
called the Charging Party, against Air Control Products, Inc., herein called both
the Respondent and the Company, the Regional Director, acting for the General
Counsel, issued a complaint on October 13, 1961, and an amended complaint on
December 20, 1961. The complaint, as amended, alleges the commission of unfair
labor practices by the Respondent Employer within the meaning of Section 8(a) (1),
(2), and (3) and Section 2(6) and (7) of the National Labor Relations Act,
61 Stat. 135, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint, as amended, alleges
in substance that the Respondent had questioned employees regarding their union
activities and threatened them with discharge. In addition, the complaint alleges
that the Respondent initiated, formed, sponsored, promoted, assisted, dominated,
and contributed support to, and interfered with the administration of Airco Em-
ployees Association , Inc., herein called Airco .l The complaint also alleges that
''Paragraph 7 was amended by adding subparagraph (f) to read as follows:
Has distributed and/or checked off dues and initiation fees and/ or assessments
for Airco from the pay of its employees.
Paragraph 8 was amended at the hearing by addtne an additional allegation which reads
as follows :
At the time the above collective bargaining contract was executed Airco did not
represent a majority of the employees for the purpose of collective bargaining.
AIR CONTROL PRODUCTS, INC. 613
Respondent terminated the employment of Thomas Curry and Ray E. Richburg
because of their union activities.
Copies of the complaint and notice were served upon the parties? The answer
of Respondent denies the commission of any unfair ILbor practices. Pursuant to
notice, a hearing was held in Miami, Florida, before Trial Examiner Henry S. Salim.
All parties were represented by counsel and were afforded full opportunity to
participate in the hearing, to introduce relevant evidence bearing on the issues,
to argue the issues orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. The Respondent filed a brief on March 12, 1962,
which has been fully considered. Various motions were made by the Respondent
Company and Airco Employees Association to dismiss the complaint. These
motions are disposed of in the following findings of fact and conclusions of law.3
Upon the entire record in the case, and from observation of the demeanor of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Florida corporation , maintains places of business at 5 locations
in the Metropolitan Miami area and employs approximately 300 people .4 It Is
engaged in the manufacture, sale, and distribution of aluminum windows, awnings,
screens, glass doors, and related products. Respondent during the year 1961, in
the course and conduct of its business operations, purchased, transported and de-
livered to its places of business, goods and materials valued in excess of $50,000,
which goods and materials were transported to its aforementioned five places of
business directly from States of the United States other than the State of Florida.
It is found, therefore, that Respondent is engaged in commerce within the meaning
of the Act and that it would effectuate the policies of the Act to assert jurisdiction
herein
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and Airco Employees Association, Inc.,
are labor organizations within the meaning of Section 2(5) of the Act, admitting
to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
A few months after the Steelworkers , the Charging Union herein , undertook to
organize the employees in Respondent 's Miami plants , certain of Respondent's
empioyees formed Airco Employees Association , Inc., an independent union The
General Counsel alleges that the Respondent violated Section 8(a)(1) and (2) of
the Act in that it not only was the initiator and instigator of Airco Employees As-
cociatlon by suggesting to various of its employees that they form their own union
but that it also implemented this suggestion by contributing support to and dom-
inating this organization 5
Respondent denies that it had anything to do with the formation and establish-
ment of Airco or that it assisted or dominated this organization either at the time
of its formation or since . On the contrary , asserts Respondent , the idea of forming
Airco was wholly conceived and implemented by the employees themselves with
no support or assistance from the Company Airco, the independent union , states
it was established by and through the own free will of its members for legitimate
union purposes with no assistance from the Company . The petitions signed by a
-Although Airco Employees Association denies it is a party to this proceeding, it was
in all material iesperts tre^ted as a party and is so regarded and found It was served
with copies of the complaints, the notice of hearing, and other formal documents and
itself presented cei tarn motions before and during the hearing as well as taking an active
i ole in the hearing
I Respondent's motion to strike the testimony of Curry "for failure to produce one of
his pie-trial statements" is transparently and palpably frivolous as the record clearly re-
veals this was an unintentional inadvertence on the part of General Counsel which was
immediately rectified
I In November 1961 these five plants were consolidated and moved to one location In
Miami The move was not completed until the end of December.
s Section 8(a) (2) prohibits an employer from dominating or Interfering with the forma-
tion or administration of a union or to contribute support, financial or otherwise, to it.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vast majority of the employees proves, Airco contends, that the employees desired
Airco to represent them which eventually led to a contract being executed between
Airco and Respondent Company.
The General Counsel alleges that during this same period of time, two em-
ployees were discriminatorily terminated and others were threatened and questioned
regarding their union activities on behalf of United Steelworkers of America,
AFL-CIO, the Charging Party.
Respondent denies it discriminatorily discharged these two employees , alleging
that one of them was discharged for refusal to perform his duties properly, insub-
ordination , and destruction of company materials , and the other was laid off due
to lack of work.
Issues
(1) Whether Respondent initiated, assisted, and dominated Airco and interfered
with its administration through the participation of itself and two alleged supervisors.
(2) Whether employees were threatened and questioned with respect to their
activities on behalf of the Steelworkers Union, the Charging Party.
(3) Whether two employees were terminated because of their activities on behalf
of the Steelworkers Union and their opposition to Airco or for good cause.
Resolutions of Fact and Credibility
The testimony concerning some of the incidents involved in this proceeding, par-
ticularly the dates and chronological sequence which led up to the execution of a
collective-bargaining agreement, are contradictory, ambiguous, and incomplete as
to specific details so that findings of fact and resolutions of credibility made herein
result from an attempt to reconcile the evidence in determining what occurred and
when. In attempting to supply coherence to those statements and acts which are
ambiguous, necessary recourse has been made to the context of other facts and
circumstances in an effort to determine what was meant or occurred.
All evidence on disputed points is not described so as not to burden unnecessarily
this decision. However, all has been considered and, where required, resolved. In
determining credibility in this proceeding, the following has been considered inter
alia: the demeanor and conduct of witnesses, their candor or lack thereof; their
apparent fairness, bias or prejudice; their interest or lack thereof; their ability to
know, comprehend, and understand the matters about which they have testified;
whether they have been contradicted or otherwise impeached; the interrelationship
of the testimony of witnesses and the written evidence presented; and the consistency
and inherent probability and plausibility of the testimony. Then too, human quali-
ties, such as motive, can only be shown circumstantially where the possessor has
not previously revealed them directly, but the circumstances may outweigh in
credibility a direct statement testified to at the hearing so that uncontradicted
testimony need not necessarily be accepted as true.6
Considerable credence also has been placed upon the testimony of those witnesses
who were in the employ of Respondent at the time they testified. As such, they de-
pended on their jobs for their livelihood and they understood that after testifying
they would continue in the employment of Respondent. Moreover, the trier of these
facts is not unmindful of the predicament of an employee who testified adversely to
his employer's interests, being apprehensive and fearful, with some measure of jus-
tification, as to the future possibility of retaliatory action. These practical consider-
ations coupled with the normal workings of human nature have led the Trial Ex-
aminer to credit the testimony of Condon, Hertel, Webb, Parsons, Klen, Ardis, Clark,
and D. R. King who are presently employed by Respondent, as it is believed they
were impelled to tell the truth regardless of what consequences might eventuate.
The testimony of Leslie P. Randall, the vice president of Respondent Air Control
Products, with respect to the dates, details, and circumstances of his collective-
bargaining negotiations with O'Malley, president of Airco, is a maze of contradictions,
a confusion of dates, and, in some instances, outright improbabilities. His first of
four versions of these events was given when he was called to testify by the General
Counsel as a witness under Section 43(b) of the Rules of Civil Procedure for the
Federal district courts.? Another version was testified to by Randall when counsel
0 Wigmore on Evidence, Section 25. Cf. N L R B v Howell Chevrolet Company, 204
F 2d 79. 86 (CA 9), affd. 346 US. 482, quoting Judge Learned Hand in Dyer v.
MacDougall, et al., 201 F. 2d 265, 269 (C A. 2).
7 The pertinent provisions of this section states, in substance, that a party may inter-
rogate any unwilling or hostile witness by leading questions where such adverse witness
is an officer, director, or managing agent of a public or private corporation.
AIR CONTROL PRODUCTS, INC. 615
for Respondent called him as a witness in presenting its defense. Although a recon-
ciliation of the various contradictory and inconsistent versions poses a rather for-
midable task in attempting to determine what occurred, Randall's testimony when
called as a 43(b) witness is the version adopted in the making of findings of fact
with respect to the chronology of events, the negotiations, and the execution of a
collective-bargaining agreement between Respondent and Airco. This version is
adopted not only because it comports with other evidence and with certain undis-
puted physical and demonstrable facts, hereinafter delineated, but, in appraising
Randall's demeanor while testifying, it appeared that his first version was given with
a minimum of confusion, discrepancies, contradictions, hesitation, equivocation, and
not in reply to leading questions which were propounded to him when he was under
examination by his own counsel and counsel for Airco. Moreover, in adopting, sub-
stantially, Randall's testimony, elicited by the General Counsel under Section 43(b),
with respect to the salient events leading up to the execution of a contract between Re-
spondent and Airco, given when he was being examined originally, as against the
versions given when he was under examination later by his own counsel and counsel
for Airco, considerable aid has been derived in resolving which version to adopt by
comparing his testimony on direct examination not only with what he testified to on
his cross-examination but also with certain other undisputable factors.
Probative of the finding made herein that Respondent knew of the activities of
Bazemore, secretary of Airco, and O'Malley, its president, on behalf of Airco, is the
fact that Bazemore shared offices with Foremen Inman and Krinock, stipulated to be
supervisors,$ and O'Malley also shared an office with Pakola, also stipulated to be
a supervisor. Other evidence corroborating this finding is detailed in later sections
of this decision including Pakola, manager of the patio door plant, being in his office
when O'Malley assembled and spoke to the employees during working hours to ask
them to join Airco.
B. The alleged violations of Section 8(a) (2)
1. The establishment of Airco
United Steelworkers of America, AFL-CIO, the Charging Party, had unsuccess-
'fully attempted to organize the Respondent's employees in 1955, 1956, 1958, 1959,
and 1960. The last organization campaign was undertaken in October 1960 but
was discontinued in the latter part of December when there was a layoff of personnel
due to lack of work. Under these circumstances, contends the General Counsel, the
Respondent not only suggested but embarked upon a campaign to promote and
encourage the organization of an independent union, in anticipation of, and in order
to abort future organizational campaigns of the Steelworkers Union.
Sarah Bazemore, secretary of Airco Employees Association, testified that in Janu-
ary 1961, she, Robert O'Malley, Norman McMillen, and Nathaniel Sanders had dis-
cussed organizing a union to represent the employees of the Respondent Company,
Air Control Products, Inc., who worked at its five plants in the Miami area. Baze-
more testified the reason they desired an independent union was because they had
"known quite a few companies that have had troubles with unions and we thought
if we had our own union, that maybe we could solve our own problems. .
O'Malley, McMillen, Sanders, and Bazemore, employees of Respondent, decided
among themselves that O'Malley would be president, McMillen, vice president,
Sanders, treasurer, and Bazemore, secretary.
O'Malley telephoned Attorney Gopman, Airco's counsel in this proceeding, in the
latter part of January 1961 with respect to forming a union. Gopman, in turn, re-
ferred O'Malley to his law partner, Milton Mamber, who initiated the establishment
of Airco in early February by drafting the necessary articles of incorporation which
were filed on February 9 and a charter issued on March 15, 1961, by the State of
Florida.
On or about March 20, 1961, Attorney Gopman prepared a petition and instructed
O'Malley, Airco's president, to follow the format of this one petition in drafting addi-
tional petitions and to circulate these petitions among Respondent's employees for
the purpose of obtaining a sufficient number of signatures authorizing Airco to repre-
sent these employees in collective-bargaining negotiations with the Respondent
Company.
"Ardis, who is presently employed by Respondent, testified that Bazemore asked him in
her office during working hours to join Airco Supervisor Krinock acknowledged seeing
Bazemore soliciting employees in the plant but denied knowing the purpose.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Solicitation of employees to join Airco and the circulation of the petitions
Three of the five petitions that were signed by the 218 employees designating
Airco as bargaining agent were circulated by Bazemore and the remaining 2 by
O'Malley, McMillen, Gonzalez,9 Case,19 and King," on company time during the
last 2 weeks of March 1961. Bazemore, when asked when she solicited employees
to join Airco, testified, "When we first signed the contract we went around to the
employees in the plant at times on which I often go around in the plant." [Emphasis
supplied.] These petitions, except the one which Attorney Gopman testified he had
prepared, were typed by Bazemore on company machines and some employees were
asked to sign them during working hours. Bazemore testified that the signatures
she obtained on the three petitions she circulated was accomplished "in one after-
noon " 12 She also testified that she prepared "a couple of hundred" dues checkoff
authorization forms and Airco correspondence 13 on company facilities during work-
ing hours.
In the latter part of March 1961, O'Malley assembled the employees of the patio
door plant during working hours and spoke to the group as to the advantages of
joining Airco Employees Association He then circulated a petition among the
assembled employees which he asked those who wanted to join the Union to sign 14
Andrew Condon, an employee, testified that Pakola, the manager of the patio door
plant, was not present when O'Malley assembled the employees but that he was
in his office in the plant at the time.
3. The negotiations
When the signatures of 218 of Respondent's approximately 300 employees were
obtained, O'Malley met with Leslie P. Randall, vice president and general manager
of Respondent Company, on April 1, 1961. At this first meeting in Randall's
office, O'Malley presented these five petitions to Randall, who read the names on them
and then returned the petitions to O'Malley. The following day, April 2, Attorney
Gopman, Airco's lawyer telephoned Randall and requested Respondent to recognize
Airco as its employees' bargaining representative.
Randall then consulted with officials of Respondent and on his recommendation
that Airco should be accorded recognition, he was authorized to enter into negotia-
tions 15 Randall then telephoned Gopman on or about April 3 and requested him
to submit a proposed contract which Randall received on or about April 4. The
same day, April 4, that Randall received this proposed contract, he met with
O'Malley. Randall's testimony, when he was being examined by the General Counsel,
continues as follows:
9 Gonzalez solicited the following employees to sign : Timm, Ard, Pifer, Parsons, Ander-
son, Crenshaw, Clark, Reymando, and glen
10 Case, shop steward, who later became vice president of Airco in December 1961.
testified that he was given a petition by Gonzalez and that he obtained about 53 signa-
tures over a period of 31/2 days, soliciting employees during the twice-a-day break periods
of 10 minutes each and 20 minutes of his lunch period Case testified that he left the
signed petition in William Adams' office, a supervisor, and asked Mrs Baro, Adams' sec-
retary, who is a sister-in-law of Fred Baro another supervisor, to forward the petitions
to O'Malley. president of Airco Employees Association Case also testified that Gonzalez
solicited on behalf of Airco.
"King was working on the second shift at plant No 2 at the time He testified he
obtained approximately 30 signatures during his half-hour lunch period and 2 breaks of
10 minutes each or about 50 minutes in all to sign up some 30 employees on the night
shift. Nevin Lau, who was solicited by King to join, testified he went to the office of
William Adams, superintendent of plant No 2, and obtained an Airco card from Adams'
secretary After he signed the card, he handed it to Fred Baro, who it was stipulated
is a supervisor.
12 Of the 5 petitions. 1 had 24 signatures on it; a second 40 ; a third 47; a fourth 21 ;
and a fifth petition 86 names
12 This was a letter to Ray Richburg, an alleged discrlminatee
14 Andrew Condon, who is presently employed by Respondent, testified that O'Malley,
tho president of Airco, spoke to him in April at the plant during working hours with
respect to joining Airco
11 Randall testified that he did not submit the contract to his superiors for approval
prior to its execution This seems incredible in view of Respondent having plants in
various sections of the country as it would appear that company labor policy considera-
tions would require some degree of uniformity
AIR CONTROL PRODUCTS, INC . 617
Q. How long did that negotiating session last?
A. Not very long. After reading the contract, it looked like a pretty good
contract to me, outside of a couple of things, one was the seniority and the other
was this additional clause, and I gave those back to O'Malley, and I said that
as far as I am concerned they have to be inserted in the contract and we
negotiated and argued back and forth and a new contract was prepared and
we looked it over and after negotiations we signed the contract.
Q. When was the new contract prepared? Was that the same day?
A. It was the same day, or the day afterwards.
Q. After the new contract was prepared when was it executed?
A. Almost immediately when it was brought back to Air Control and we
sat down and negotiated and we signed the contract.
* * * * * * *
Q. Now, Mr. Randall, at any time prior to the execution of the contract
did you make any further check of the petitions that O'Malley had obtained?
A. No, sir.
Q. You made no further check to put against your payroll?
A. No, sir.is
Q. Mr. Randall, when did you first become aware that Airco Employees
Association was organizing at your plants?
A. Well, O'Malley came to me with the petition.
Q. Before that time you had no knowledge of such a campaign? ... .
A. That's right.
Q. Did you ever meet with Mr. Gopman personally at any time during these
negotiations?
A. No, sir.
Q. Has Air Control Products ever been represented by Mr . Seymour Gopman,
the attorney for Airco Employees Association in this proceeding?
A. You mean prior?
Q. Well, at any time.
A. No I think, .to be straight, I think when our first charge was brought up
we told the Union, "it's your responsibility" and therefore he came to us for
assistance.
Q. He started representing you at the time the charge was filed in this proceed-
ing? Is that correct?
A. As far as I remember.
Q. And he hadn't represented you before that time?
A. No, sir.
Q. How long did Mr. Gopman continue to represent you?
A. A very short time, just for one case that I can remember offhand.
Q. He continued to represent you until some time in October of 1961; isn't
that correct?
A. I don't know for sure.
Q. And at the time he was representing you he was also representing Airco
Employees Association ; is that correct?
A. As far as I know.
4. The contract
The terms of the contract were agreed to about April 5, 5 days after O'Malley first
saw Randall, although the record does not reveal why the contract was not signed
until April 14. As to the substantive provisions of the contract itself, it did not pro-
vide the employees with any substantial gains. Working conditions and wages
remained exactly the same. The contract also included a dues checkoff provision
which was instituted on May 31, 1961.17 Although the contract provides for
a grievance procedure, a grievance committee was never appointed; no grievances
were ever processed, and Case, the vice president, and Bazemore, the secretary of
Airco, were unfamiliar with what was meant by a grievance.
19 On redirect examination, Randall inconsistently testified in answer to a leading ques-
tion that the petitions were checked by him against Respondent's payroll records. Tran-
script, pages 478-479.
17 Randall testified 190 to 200 employees signed checkoff authorizations.
'618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Airco Association meetings
The first meeting of Airco Employees Association was held on May 19, 1961,
at the Y.M.C.A. There were approximately 45 people in attendance, the largest
number at any Airco meeting. Bazemore testified that the following officers "were
voted in 37 to 8 by handraising": O'Malley, president, McMillen, vice president,
Sanders, treasurer, and Bazemore, secretary.18 Membership authorization cards were
distributed which O'Malley had printed but Bazemore testified she did not know who
paid for them as there was no money in the treasury at that time. When Bazemore
was asked if Attorney Gopman had been paid a fee for his legal services , she an-
swered she did not know as O'Malley "took care of all of that at the beginning. ..
In this connection , it should be noted that Attorney Gopman, Airco's lawyer, testified
that he received a retainer fee from Airco, around March 15, over 2 months prior
to this meeting and before any dues were received from the members. The bylaws
were enacted , an initiation fee of $1 and monthly dues of 50 cents approved,10
and shop stewards appointed at this first meeting of Airco on May 19, 1961.
The following testimony indicates the character and accomplishments of Airco
meetings. Cass, an employee, when he was asked what occurred at this first
meeting, testified: "Well, I heard them ask questions, who was president and how
long was he going to be, and different things like that. They asked different ques-
tions. I don't remember them all." He stated that was all he heard discussed and
never attended any other meetings.
Meetings were also held in June, on July 28, and August 25 20 At the August 25
meeting, at which there were 30 people present, Ray Richburg, an alleged discrimi-
natee in this proceeding, made a motion for Respondent's employees to disaffiliate
from Airco and join instead the United Steelworkers of America, AFL-CIO, the
Charging Party. The motion was carried by a vote of 22 to 7 but nothing was
done subsequently by Airco's officers to implement this action taken by the members
present at the meeting.21
The next Airco meeting was held on October 26. McMillen, the vice president,
presided at this meeting in the absence of O'Malley, the president, who became ill
after the July meeting.22 When Richburg, an alleged discriminatee, was asked what
occurred at this meeting, he testified as follows:
. . . The minutes were read, and I got up and asked about motions that were
made at the last meeting. One in particular was to elect officers, and, well,
[Attorneys Gopman and Mamber and Vice President McMillen] just kept
telling me I was out of order, that this wasn't right and that wasn't right.
[Gopman and Mamber] kept interfering with the meeting, so I asked
them to leave. They said they didn't have to leave, that they were invited
guests. And I asked .them who. They said that Norman McMillen had invited
them. So I told them, all right, that I would concede to them for the time
being. When New Business come up I got up and made a motion that we
have the lawyers leave the meeting. The motion was seconded and voted on,
and it was voted-the majority-that they leave the meeting. There was
some discussion about this lawyer here [Gopman] wanted to stay around.
* * * * * * *
He said he wasn't going to leave until he finished talking to the vice president
of the union. He talked to him on the outside. I said, "If you want to talk
to him on the outside, to go on outside and talk to him." So they went on the
outside. Then previous to that I told them we had a right, and read from the
book, according to the labor laws, the Labor Board, that we had a right to elect
is Bazemore was repeatedly asked the date when she was elected secretary but evaded
answering the question. Finally, counsel for Alrco interjected by stating that the officers
agreed among themselves as to who would hold which office. Moreover, it appears that
when O'Malley later became incapacitated, a "board meeting" comprised of the officers,
was held on December 6, 19'61, and Case was "elected" vice president, McMillen became
president. and the same 'treasurer and secretary were retained.
"See N.L.R B. v. Baldwin Locomotive Works, 128 F . 2d 39 , 49 (C A. 3), as to inade-
quacy of dues for maintenance of a union as a factor in determining the legitimacy of a
labor organization.
m None of the meetings were held on company premises
91 See Cabot Carbon Company and Cabot Shops , Inc. v. N L.R B., 360 U .S. 203, 214.
zs O'Malley was not at the hearing as he is confined to a mental institution. A psy-
chiatrist testified that O'Malley was incompetent to testify.
AIR CONTROL PRODUCTS, INC. 6 1 99
our officers to the union position; . . . anyway, I had a pamphlet that I was
reading out of to them, one that was issued by the Labor Board, I believe. So he
[Gopman] went on outside and talked to Mr. McMillen-
[ * * * * *
I don't know what they talked about, but when the vice president came
back in he said I could say anything I wanted, to vote on anything I wanted, to
do anything I wanted to do, but he wasn't going to have it into the minutes of
the meeting. He was advising the secretary not to write anything into the
minutes. So I kept arguing again, reminding him of-about the elections and
all, that we had rights to elect our officers. So I seen I wasn't getting any place.
He wouldn't let me get nowhere. After he told me that, I told him to put
it down in the minutes and I wouldn't say anything else, to give me a copy of the
minutes. He said he wasn't going to put nothing down into the minutes. So
I sit down.
6. Responsibility of Respondent for O'Malley and Gonzalez actions
The question of whether the Act has been violated requires not only an appraisal
of the particular circumstances which have been described above, but also a deter-
mination of whether the Respondent is liable, as the General Counsel contends, for
the conduct of O'Malley and Gonzalez 23 whom Respondent denies are supervisors
within the meaning of Section 2(11) of the Act 24 For the reasons hereinafter
explicated, it is found that both O'Malley and Gonzalez are supervisors so as to
render the Respondent liable for their activities in the formation, establishment, and
administration of Airco.25 The Board and the courts have held in interpreting
this section of the Act that it must be viewed disjunctively; any one of the indicia
set out in Section 2(11) is sufficient for supervisory status.26
O'Malley was in charge of receiving materials and shipping the finished products
from the patio door plant. He also instructed and responsibly directed the work
of employees and reprimanded them in their duties, designated the jobs to be
done, assigned work, and told employees when to work overtime.27 He also opened
the plant regularly and was in complete charge from 6 a.m. (which was the starting
time when the employees worked overtime) until Pakola, the plant manager, arrived
at 7 a.m., the regular starting time.28 Cf. Iowa Packing Company, 11 NLRB 986, 991.
During Pakola's absence from the plant, which was often, O'Malley was in charge.29
He was the only employee at the patio door plant, other than Pakola, manager of
the plant, who made out timecards, who had a desk in an office which he shared with
Pakola, and whose duties also included acting as liaison between the main plant
and the patio door plant which required him to leave the plant on numerous
occasions.
A' Gonzalez who was present at the hearing did not testify. Respondent's failure to
have Gonzalez testify justifies an inference that his testimony would not have disproved
the finding made herein that he is a supervisor Interstate Circuit v. U . S., 306 U . S. 208,
226 ; N L R B v. Sam. Wallick and Sam K Schwalm, d/b/a Wallick and Schwalm Com-
pany, et al., 198 F. 2d 477, 483 (C.A. 3) ; Threads-Incorporated, 124 NLRB 968, 971-972;
New England Web, Inc, National Webbing, Inc, et at., 135 NLRB 1019; Tabulating Card
Company, Incorporated, 123 NLRB 62, 73.
24 Section 2(11) provides:
The term "supervisor" means any individual having authority, in the Interest of
the employer, to hire, transfer, suspend, lay off, recall promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the fore-
going the exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
26 It was stipulated that the following employees were supervisors : Peter Inman, Joseph
Pakola, William Adams, Fred Baro, and James Krinock.
26 Ohio Power Company v N L.R.B., 176 F 2d 385, 387 (C.A. 6) ; N.L.R B. v. Edward
G. Budd Manufacturing Co, 169 F 2d 571, 576 (C A. 6).
21 Glenn Sellers, a foimer employee, testified O'Malley hired him.
28 Pakola's testimony that he opened the plant every morning is not credited as all the
employees who testified with respect to this stated that O'Malley opened the plant at
6 a in. when they worked overtime.
26 Pakola's testimony that Walden and Zigmunt took over in his absence or that be left
no one in charge when he was away from the plant Is not credited . See the testimony
of Webb on rebuttal , who is presently employed by Respondent , that when Pakola left the
plant, O'Malley replaced him and was in charge.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ray Gonzalez instructed, reprimanded, responsibly directed the work of em-
ployees,30 and organized and assigned work to personnel; told employees when to
work overtime; 31 shifted employees from one job to another; and acted as inter-
mediary between the approximately 60 employees and Adams, the department
manager, who relayed orders through Gonzales. In some instances, orders and
instructions to employees originated with Gonzalez. He was second in charge to
Adams of the approximately 60 employees in this plant. In one instance, it was
testified that Gonzales recommended Allan Timm for his job when he was hired. It
is the exercise of supervisory duties and not the title a person holds that is con-
trolling as such duties of Gonzales constitute more than routine direction of
subordinates.
Perhaps the most significant indicium of both Gonzales' and O'Malley's supervisory
status is the fact that Gonzales received $2.70 an hour and O'Malley was paid $2.50
an hour. Contrasted to this cogent factor is the hourly wage rates paid the follow-
ing employees: McMillen, $1.75; Case, $1.75; Bigley, $1.55; 32 Timm, $1.70; Meeks
(leadman), $1.70; King, $1.70; Anderson, $1.45; Curry, $1.25; Condon, $1.25;
Thornton, $1.35; Richburg, $1.59; Lau, $1.45; Crenshaw, $1 35; and Hertel, $1.45.33
Cass testified that when he was "foreman" of a night shift, "running the place" and
supervising 11 or 12 employees, he was paid $1.70 per hour.
Argumentatively assuming that Gonzalez and O'Malley were technically not
supervisors, Respondent is nevertheless liable for their conduct, even though they
were not expressly authorized by Respondent to act as its agents because they had
the attributes of representatives of management and were reasonably regarded as
such by the employees.34 Moreover, employers are responsible for the conduct
of employees where the employer knew of the conduct but failed to disavow or dis-
associate himself therefrom or where the attitude or acts of the employer appear
to endorse such conduct 35 Such participation by a supervisor, or even by one
reasonably identifiable with management in the minds of the employees, in the
affairs of a labor organization, constitutes employer interference with its adminis-
tration in violation of Section 8(a) (2) of the Act.36
Discussion
As the Supreme Court has emphasized, the Act guarantees to employees "complete
and unfettered freedom of choice" with respect to the selection of bargaining repre-
sentatives.37 Section 7 of the Act expressly assures to employees the right to select
"representatives of their own choosing." Section 8(a)(1) proscribes employer
interference with that right. Section 8(a)(2) specifically forbids employers "to
dominate or interfere with the formation or administration of any labor organiza-
tion or contribute financial or other support to it." Under these provisions, "it has
repeatedly been held that an employer may not intrude in matters concerning the
self-organization of his employees. . . . Especially is this so where the adherence
n Crenshaw testified she once asked Gonzalez for permission to take time off from work.
31 Adams, manager of the awning window department, Hialeah plant, who testified as
to Gonzalez' duties and that Walden and Ziegler were in charge in his [Adams'] absence,
is not credited
32 McMillen and Case were president and vice presidient and Bigley was shop steward
of Airco Employees Association at the time of the hearing.
33 Following held to be supervisors • Manhattan Coil Corporation and/or Halfast Rubber
Company, 98 NLRB 1246, 1249, footnote 6, where "leadman" spent 75 percent of his time
doing work similar to that of other employees but received 35 cents an hour more; United
State Gypsum, Company, 124 NLRB 416, 417, Hourly paid employee received more com-
pensation than highest paid employee in his department ; Badenhausen Corporation, 113
NLRB 867, 871, employee earned 25 to 30 percent more than other employees.
34International Association of Machinists, Tool and Die Makers Lodge No 35 (Herrick
Corp ) v N L R B , 311 U S 72, 80; Red Arrow Freight Lines, Inc , at al. , 77 NLRB 859,
860, enfd 180 F 2d 585 (C A. 5) ; cf American Smelting & Refining Company v. N.L.R.B.,
128 F 2d 345, 346 (C A 5)
' Earl B Law and Donald T Law d/b/a E B Law and Son, 92 NLRB 826, enfd. 192
F 2d 236 (C A. 10) ; Samuel Flatau, d/b/a Yale Filing Supply Co , 91 NLRB 1490.
30 See International Association of Machinists, Tool and Die Makers Lodge No. 85
(Herrick Corp) v N L R B, 311 U.S. 72, 79-81; N L.R B. v. Ed Friedrich, Inc, 116 F.
2d 888, 890-891 (C A. 5)
17 N L R B. v. Link-Belt Company, 311 US 584, 588; Inter national Association of
Machinists, Tool and Die Makers Lodge No 35 (Herrick Corp) v. N.L R B , 311 U.S. 72,
78, 79-80, N.L R.B v Southern Association of Bell Telephone Employees, 319 U.S. 50, 60.
AIR CONTROL PRODUCTS, INC. 621
of the employees is being sought by rival labor organizations [citing cases]." 33 "At
a time when the rival organizations [are] still in a formative state . . . the em-
ployees [are] sensitive to weight thrown by their employer in favor of one organiza-
tion as against another, even though the suggestion of preference be subtle or
slight." 39 In N L.R.B. v. Brown Paper Mill Co., 108 F. 2d 867, 870-871 (C.A. 5),
cert. denied 310 U.S. 651, the applicable rule was stated in the following language:
The act does not compel employees to affiliate themselves with existing national
or other unions or associations, nor does it prevent them from forming truly
independent local associations of their own. But it does flatly prevent and pro-
hibit the formation of associations of employees for bargaining, which. though
they are ostensibly independent, are really supported, controlled or influenced,
though ever so slightly, by the management. . Therefore, when once it ap-
pears that management has had a hand in organizing, supporting or in any wise
interfering or collaborating with an "association" of employees, such an asso-
ciation may not be recognized as the free and voluntary association of employees
called for in the act. . [And so] when, as here, at the beginning of an or-
ganizational campaign by a nationally affiliated labor union, the management
frankly declares, that it never has had and does not want to have its men or-
ganized, . the record ought to be entirely free of evidence that the manage-
ment has, through officers or employees, not officers, but having the confidence
of the management, and acting for it, lent aid and comfort of any tangible kind
to the formation or conduct of an independent organization, or has discriminated
in any way in its favor, as against the affiliated union as to company time and
premises, or otherwise.
Conclusions
The Respondent disclaims responsibility for the alleged unfair labor practices, but
a reasoned evaluation of the evidence as a whole belies the disclaimer. The "avowed
Purpose" of the Act is "to promote and protect the right of individual employees to
join or not to join unions and to be free from coercion or interference either way." 40
The instant case presents a situation where that purpose was frustrated by the Re-
spondent's initiating and participating in the formation of Airco. Thus, O'Malley
and Gonzalez, both supervisors, implemented and gave impetus and direction to
Airco by their active participation, as detailed above.
The extent to which Respondent was willing to go to support Airco is demon-
strated by the remarkable success of Airco in obtaining employees' signatures (as
contrasted with the United Steelworkers' repeated failures since 1955 to organize
the same employees) and the alacrity with which Randall acknowledged and granted
Airco's request for exclusive recognition and precipitately agreed approximately 5
days after O'Malley first saw Randall to the terms of a contract which secured no
benefits for the employees and retained the same wage rates and working conditions
that had existed prior to Airco's establishment 41 This action by Randall was but
part of Respondent's effort to achieve the advantages which would accrue to it if it
dealt with Airco for purposes of collective bargaining.42 In this regard it is per-
tinent to note that, in arriving at a collective-bargaining agreement, at no time did
Gopman, Airco's attorney, or Randall, Respondent's sole negotiator, meet face to
face (which is the usual procedure) but rather the limited, and what appears to be
perfunctory, negotiations all took place over the telephone.
Moreover, Respondent violated its obligation of neutrality by contributing its time,
property, and facilities to Airco's formation and organizational drive as well as pay-
ing Airco's representatives for time spent away from work in incorporating Airco
Association, soliciting employees, negotiating and executing the contract, and visiting
their attorney on company time and without loss of pay. Respondent also rendered
assistance in the preparation of petitions, checkoff authorizations, and correspond-
ence by the use of company equipment and materials and other incidental types of
-11 )7a) Sheet Steel Company v. N.L R B, 194 F 2d 407, 410 (C A 7).
39 Mastic Stop Nut Corporation v. N L R B , 142 F 2d 371, 375 (C A. 8). cert. denied
323 U S 722 See also N L R B v. Link-Belt Company, 311 U.S. 584, 599-600.
40 N L R.B v. Augusta Chemical Co , 187 F. 2d 63, 64 (C.A 5).
41 See N.L.R B v George H. Clark and Mildred H Clark, d/b/a Clark Phonograph
Record Company, 176 F. 2d 341, 342 (CA 3). posthaste recognition of union. NLRB.
v Shedd-Brown Manufacturing Co , 213 F 2d 163, 168 (C A. 7), time of organization
and ease in obtaining signatures
42 Cf N L.R B. v. L Ronney & Sons Furniture Manufacturing Co , 206 F, 2d 730, 732-
735 (C A 9), Bert denied 346 U S. 937.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance including permission to use company bulletin boards for posting notices
of Airco's meetings43
Equally significant in evaluating the conditions under which employees joined
Airco and the hasty circumstances under which it was established and recognized
by Respondent is the speed with which employees' signatures were obtained and a
contract executed which secured no benefits for them. Although this contract be-
tween Airco and Respondent was purportedly executed on April 14 and the first
meeting of Airco was held on May 19, the provisions of the contract not only were
not read but were never approved by the membership at that meeting or any sub-
sequent meeting of Airco. Then too, an overall pattern of illegal acts, as evidenced
by the instances of clerical and other assistance, detailed above, occurring as it did
in a context of conduct revealing an intent to aid Airco in its formation and quest
for recognition while opposing the United Steelworkers Union, warrants an unfair
labor practice finding.
Furthermore, although the contract provides for a grievance procedure, it is sig-
nificant that from the time of the execution of the contract on April 14, 1961, until
the date of the hearing in January 1962, a period of over 8 months, no grievances
were either processed or a grievance committee selected. In fact, Bazemore, secre-
tary and union steward, and Case, vice president and union steward, had no concep-
tion of what a grievance was 44
Nor does the defense of Respondent that it has allowed others (including insur-
ance agents) permissible courtesies to solicit its employees on company time and
property for charitable or paternalistic reasons to the end that employee-employer
relations may be maintained upon a friendly basis, justify the partisan support and
assistance given Airco. As the Supreme Court has stated:
In applying the statutory test of independence it is immaterial that . . any
company interference in the administration of the . . . [labor organization]
had been incidental rather than fundamental and with good motives.45
Moreover, the evidence shows that Airco was not only subservient in its bargain-
ing relationship with Respondent but dominated by it as well so that its ability to
serve as the legitimate representative of its members has been irreparably com-
promised. Airco has not manifested the characteristics of a labor organization capable
of representing employees independent of management as the employees themselves
had no effective control over the organization and functioning of Airco.46 Thus,
apart from the role played by Gonzalez and O'Malley, Respondent's supervisory
personnel, and two of the prime movers in the establishment of Airco, the evidence
reveals that not only its continued existence is dependent on Respondent but also the
questionable relationship between Airco's attorney and Respondent when Airco was
in its initial stages, further demonstrates that Airco cannot represent its members
adequately.47
41 Western Union Telegraph Company v N.L R.B., 113 F 2d 992 , 995 (C .A. 2) See
footnote 19, supra
44 Highlighting this paradox is that portion of the record which reveals Case, vice
president, in testifying, did not know the name of McMillen, the president of Airco, who
was present in the hearing room Case also testified that although he was appointed
shop steward by O'Malley in early April and circulated a petition, he did not learn who
Airco's vice president and treasurer were until he attended the first meeting on May 19
40 N L R B. v. Newport News yhipbuildinp & Dry Dock Ca , 308 i7 S. 241, 251.
41 See Adhesive Products Corporation, 117 NLRB 265, 267
44 Attorney Gopman testified as follows :
When these unfair labor practice proceedings were filed [August 17, 19611, the
union called me and told me they wanted me to represent them and that I should get
in touch with the company Now, I did get in touch with the company and I spoke to
Mr Randall about that, by virtue of which I started to represent the company and the
union in the proceedings This representation was on a very limited basis, for this
matter only, and I made it understood that it would continue just so long as I felt
that there was no question that no unfair labor practices had been committed
When Mr Jeffers informed me that the Board was going to file the charges, I im-
mediately wrote a letter to Mr. Jeffers and to Harold Boyer [sicl, the Regional
Director, and informed them that I could no longer represent the company in this
matter. That letter was sent October 12th. I told them I would advise the com-
pany to get new counsel. I continued to represent the union after that, but had
nothing to do with the company as their representative.
See The Post Publishing Company, 136 NLRB 272; Vanderbilt Products , Inc. v . N.L.R B.,
297 F. 2d 833 (C.A. 2), enfg.'129 NLRB 1323.
AIR CONTROL PRODUCTS, INC. 623
In summary, the individual indicia in the record in this case, considered "not
simply in isolation, but cumulatively and compositely as well," persuades the Trial
Examiner that Respondent implanted in the minds of the original officers of Airco,
particularly O'Malley, the idea of organizing a movement to oppose the Charging
Party. The evidence also discloses that Airco has failed to achieve the stature of an
independent labor organization capable of dealing with Respondent at arm's length,
out rather owes its present position and continued existence in the plant to Respond-
ent's unlawful assistance and influence.
is is concluded and found, therefore, that Respondent instigated and established
Airco in order to frustrate future organizational drives of the rival Steelworkers
Union and thus interfered with its employees' freedom of choice in violation
of Section 8(a)(1) and dominated Airco's formation and administration and
contributed illegal support and assistance to it in violation of Section 8(a) (2) of the
Act.
C. The alleged violations of Section 8(a) (3)
1. Curry's discharge
Thomas Curry commenced working for the Respondent on May 22, 1961, as a
punch press operator and window assembler at the patio door plant. On July 20,
1961, he attended a meeting of the United Steelworkers Union, the Charging Party
herein. When he arrived at the plant the following morning, Curry testified that
Pakola, the plant manager, said to him:
. .. there was a list of names already in. He told us he knew before the
meeting was over who was over at the meeting and everything else and he had
the whole list of names .. . and he told us we were foolish to fool around
with another union... .
The same day Pakola told Curry he was fired. Curry testified that when he asked
Pakola why he was being fired, Pakola merely said: "I guess you know why and then
he just laughed. .. .
Curry, who was not a member of Airco, testified as follows with respect to his
union activtities:
I was plugging for the United Steelworkers. . . I tried to sign up members
on my spare time and during lunch hours, at the breaks, and I'd talked to them
and I told them that I didn't approve of it. And I have been a union man for
a long time.
The contract that Airco had and I saw it wasn't for anything beneficial to the
men working in the plant and I told them what a good union called for and so
whenever I had a chance, I'd sign them up [for the United Steelworkers].
Curry testified he had never received any complaints about the quality of his work
prior to his discharge and that the machine he worked at was difficult to operate.
Not only he, testified Curry, but other employees who operated this machine had
difficulty with it.
Pakola, Curry's supervisor, when asked why he fired Curry. testified as follows:
Q. Why did you discharge Curry?
A. Well in the morning I had him on one machine there and he broke the
one die . on the punch press machine. He broke the die then, and then
I changed him to another press machine. . . When I changed him he started
hollering. He said I'm not going to work for a $1.25 an hour on this punch
press machine. He was grumbling to himself. So at ten minutes to four I
gave him his check.
* * * * * * *
Q. Had you ever warned Mr. Curry in reference to this?
Yes. . . . About a week or so [before his discharge]. I told him about
'handling the material, and he was very rough about handling material, and
that stuff, and then he would go from one machine to another machine and talk
for ten or fifteen minutes to each employee too there. Back and forth he
wandered.
Q. At the time you discharged Mr. Curry in the afternoon, did you tell him
why he was discharged?
A. I told him, "You know why you're discharged." That was it.
Q. Did you tell him why?
A. No, I didn't tell him why. He knew why. In the morning. I told him
.about the die.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER : On why do you base that statement , "He knew why9"
The WITNESS: When he was working on the punch press he broke the die,
and then later in the afternoon when I put him on the other machine there he
was rough and he knew.
TRIAL EXAMINER : What conversation took place between you and he at the
time he broke the die, if any?
The WITNESS : I just took him off the machine.
TRIAL EXAMINER: I said conversation.
The WITNESS: There wasn't any ,then when he broke the die.
TRIAL EXAMINER : . Then what happened?
The WITNESS : Then later on , I put him on the other machine. Then he
started grumbling to himself he wasn 't going to work for ^a $1.25 an hour.
TRIAL EXAMINER : At that point was there any conversation between you and
him9
The WITNESS: No.
TRIAL EXAMINER : . Then what happened9
The WITNESS: Well, he was working there, and I was watching him there for
an hour or two there , and he was throwing the material all around on the truck,
and working back in the die-making it hard for himself, pushing it in and out.
TRIAL EXAMINER : Then what happened next?
The WITNESS : Well, it was about ten minutes to four when I gave him his
check. I gave him his check then, and he asked why he was fired . I said, "you
know why you are getting fired." He broke a dye [that morning].
Pakola denied he knew Curry was soliciting employees on behalf of the United
Steelworkers Union or that he told Curry he had a list of the names of Respondent's
employees who had attended a Steelworkers Union meeting.48
Conclusions
Contrary to Respondent 's contention that Curry was discharged for poor work
performance and breaking a die, it is found that he was discharged for openly
engaging in union organizational activities on behalf of the rival Steelworkers
Union of which Pakola was aware . There can be no question that Respondent
knew of Curry's union activities as Pakola identified him as a Steelworkers Union
proponent when he spoke to Curry the morning after he attended the union meeting.
On July 21, 1961, the very first day after Curry attended a Steelworkers Union
meeting the previous evening, the Respondent indicated its displeasure by dis-
charging him. The above-recited facts , which show the precipitate discharge of
a known Steelworkers Union proponent , in the context of Respondent 's clearly dem-,
onstrated resentment of any opposition to its sponsored and dominated Airco Em-
ployees Association and to Curry for his protected concerted activities, point
strongly to a discharge in violation of the Act, and not because of dissatisfaction
with his work. Curry was an aggressively active adherent of the Steelworkers Union;
he solicited members for it and opposed the Respondent-favored and dominated
Airco. It is reasonable to infer, therefore, that Curry's attempting to get his fellow
employees to take concerted action by signing up with the Steelworkers Union
played a controlling part in his discharge and that Respondent not only had knowl-
edge of Curry's union activities before it discharged him but was displeased by
this activity.49
Furthermore, Pakola acknowledged that the reason he gave on Curry's termina-
tion slip was "insubordination" with no mention being made that Curry was
discharged for "breaking a die." He not only admitted that the machine on
which Curry worked was difficult to operate but that other employees who had
broken dies had never been discharged for this reason. These circumstances
make it almost incredible that management actually believed that this episode so
reflected on Curry's competency as to warrant his dismissal.50
On cross-examination , Pakola changed the reason he gave for firing Curry, tes-
tifying he was discharged for:
45 Pakola 's denial that he told Curry he knew the names of those employees who had
attended a union meeting of the Steelworkers is not credited . This finding is based on the
credible testimony of Curry and his testimony is corroborated by Condon who testified
that Pakola questioned him also See infra
49 Wsese Plow Welding Co., Inc, 123 NLRB 616, 618; Lapeer Metal Products Co , 134
NLRB 1518.
11 See N L R B v. Jones Sausage Co & James Abattoir Co , 257 F. 2d 878, 882 (C A. 4)
AIR CONTROL PRODUCTS, INC. 625
being rough with the material and walking around the plant, and that
there, talking all the time. He wasn't taking instructions, and that.51
Respondent's defenses that Curry was discharged for improper performance of
his duties, insubordination, breaking a die, grumbled about his pay, wandered from
his job, talking to and interrupting other employees and indicated disgust with his
job, all of which Curry denied, is not sustained by the record. Furthermore, the
finding that improper performance of his duties was a pretext for Curry's discharge
is supported by uncontroverted evidence that other employees broke dies without
being discharged. The testimony shows that the breaking of dies was not so
uncommon an occurrence as to have justified Respondent's dismissal of Curry.
Moreover, Pakola never gave Curry a specific reason at the time he discharged him
nor does his testimony quoted verbatim, supra, give any reason other than the
cryptic answer "I guess you know why" when Curry asked the reason for his
discharge. Nor does the record reveal the basis for Respondent's defense that Curry
was fired for "insubordination." It is believed that the alleged inefficiency of Curry
on the day he was discharged (which is not credited) would normally have been
disregarded without further incident but that this alleged minor episode was used
by Respondent as a subterfuge for Curry's discharge which was actually motivated
by his union activities and was used by Respondent as a pretext to rid itself of
Curry in order to discourage those of its other employees who were or might be
adherents of the Steelworkers Union. These factors completely negate the Re-
spondent's defense that Curry was discharged because of inefficiency and insubordi-
nation. In view of Respondent's knowledge of Curry's activities on behalf of the
Steelworkers Union and opposition to Airco, it is found that Curry's alleged defi-
ciencies were not the true reason for his discharge but rather his activities on
behalf of the rival Steelworkers Union. Curry's discharge, therefore, was in viola-
tion of Section 8(a) (3) of the Act 52
2. The termination of Ray E. Richburg
Ray E. Richburg was employed at Respondent's main plant from approximately
March 1960 to November 17, 1961, at which time he was terminated. The General
Counsel contends that he was terminated because of his opposition to Airco and
his efforts on behalf of the United Steelworkers Union. Respondent denies this
and alleges Richburg was "laid off" due to lack of work because after the shift of
operations from five plants to one plant, only one full-time and one part-time saw
operators were needed and Richburg had less seniority than the saw operator
retained.53
Commencing in July 1961, and continuing until he left Respondent's employ the
following November, Richburg openly solicited Respondent's employees during
coffee breaks, lunch time, and after work to join the United Steelworkers Union.
In soliciting his fellow employees, Richburg told them he was dissatisfied with the
representation the employees were receiving from Airco. He also was a member
of Airco and was the prime mover at an Airco Association meeting in August 1961
to have the members of Airco disaffiliate from Airco and join the United Steel-
workers Union. See supra. The first working day after attending this Airco meet-
ing, Inman, his supervisor, complained to Richburg for the first time about the
quality of his work stating that the screens he was making were defective.54 At
the October meeting of Airco, he also became embroiled in an argument with
m See footnote 54 infra
Ba N L R I? v Lester Brov., Inc., 301 F 2d 62 (C A 4).
53 Although Respondent claims Richburg was merely laid off on November 17, 1961, it
should be noted that when he attempted to pay his Airco dues, subsequent to his "layoff,"
he was informed by Bazemore, secretary of Airco, by letter dated December 12, that his
dues could not be accepted "as you are no longer employed with Air Control Products
. " General Counsel's Exhibit No. 5
54 Although this was not originally alleged as a defense by Respondent, Peter J Inman,
supervisor of the screen department, in testifying, asserted for the first time at the hear-
ing that Richburg did not "square up" the corners of the screens he produced and that
the other man operating the saw produced much more work than Richburg when the
latter was the second saw man Shifting reasons for an employee's discharge are Indica-
tive of a discriminatory intent Thomas TV Dant, et al , co - partners d/b/a Dant & Russelr,
Ltd, 92 NLRB 307, 320
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attorney Gopman, counsel for Airco, with respect to the manner in which the meet-
ing was being conducted. See supra 55
On the day he was laid off, Inman, manager of the department, told him that
due to lack of work, there was no need for "two sawmen." When Richburg remon-
strated with Inman, stating: "You mean you're going to let the regular help go
before the part time help," Inman replied that "he could lay off anybody he wanted
to; he didn't have to lay his part time help off." Inman walked away and shortly
after returned to where Richburg was working and told him that the four part-time
workers "would probably be gone in a week anyway." Inman acknowledged in his
testimony, however, that these four part-time employees, who were retained after
Richburg was laid off in November, continued to work until January 7, 1962. Inman
also testified that as of the time of the hearing, he was using two saw operators:
one full time and one on part time. He also admitted that Respondent presently
has a part-time employee making screens, the same type of work Richburg did
before he was transferred to operating a saw, and that subsequent to Richburg's
layoff, Respondent has, at various times, employed two part-time screenmakers.
Nor is the Trial Examiner fully persuaded that the evidence establishes that at
the time Richburg was laid off there was a seasonal slack period and that the
overtime the plant employees were putting in at that time to build up stock was due
entirely to the imminent move to a new plant as the seasonal slack and overtime
would appear to be mutually inconsistent, thus discrediting the reason asserted for
Richburg's layoff. In fact, there is evidence from which it might reasonably be
inferred that production was such at the time that it did not warrant Richburg's
layoff 56 Nor did the Respondent offer any evidence showing that Richburg's layoff
alleged to be due to lack of work affected any other employees. In fact, Ray Ardis,
who is presently employed by Respondent, testified that as of January 11, 1961, there
were two men operating the saw. one of whom (Murphy) had less seniority than
Richburg. Ardis also testified there are approximately 3 part-time screenmakers
and 10 to 12 full-time screen operators employed by Respondent. Therefore, the
alleged economic imperative which required Richburg's layoff evidently went no
further than the abolition of his particular job. Moreover, Richburg, a full-time
employee, was not afforded the opportunity to assert his seniority by transferring
to another job in the plant or to supplant a part-time employee
During most of his employment Richburg worked as a screenmaker, but approxi-
mately 2 weeks before his dismissal he was removed from this position and trans-
ferred to operating a mechanical saw. It is believed that this transfer was contrived
in order to get rid of Richburg, by first transferring him from being a screenmaker
to the saw job, 2 weeks before his termination, with the intention of "laving him
off" as the saw job appears to have been more vulnerable to a layoff and did not
have as much security of tenure as a screenmaker's iob. Furthermore, his layoff
was not in the order of seniority. When the timing of Richburg's opposition to Airco,
which was known by Respondent, as well as he being the one who provided the
original impetus for affiliating with the Steelworkers Union is considered in relation
to his layoff, it would appear that his layoff is more than a mere temporal coinci-
dence.67 Richburg's removal from a screenmaker's iob and reassignment as a saw
operator which eventuated in his termination, was all accomplished under circum-
stances which tend to demonstrate that Respondent's conduct was motivated by its
resentment at Richburg being the prime mover in the disaffiliation move as well as
being a disruptive influence at Airco meetings and by its desire to demonstrate to
other employees their possible fate if they opposed Airco and favored the rival
Steelworkers Union. Under these circumstances, Respondent's unconvincing and
unsupported reasons for Richburg's termination are not credited. In view of
Richburg's activity on behalf of the Steelworkers and his opposition to Airco and
the knowledge of such activity on Respondent's part,58 it is found that he was "laid-
5' Respondent's motion to strike Richburg's testimony with respect to what transpired
at Airco's meetings on which ruling was reserved at the hearing is hereby denied.
se Richburg worked overtime on the three Saturdays (not a workday) prior to his layoff.
Randall's testimony that there was a layoff of employees at this time contradicts his
testimony they were working overtime to build up their stock in anticipation of moving
into the new plant. He explained that the disruption of production caused by the move
would be minimized by building up their stock before the move in order that the shipping
out of orders to customers would not be affected Randall again contradicted himself
when he testified that employees who had been laid off previously were being rehired as
production was increasing at this time . Transcript, page 441
'IN L R.B. v Condenser Corporation of America , 128 F . 2d 87 , 75 (C.A. 3).
58 See footnote 49, supra.
AIR CONTROL PRODUCTS, INC. 627
Doff" without offer of any other employment because of his protected activities as an
artifice to punish Richburg for his union activity.59 The termination was, therefore,
in violation of Section 8 (a) (3) of the Act.60
D. The alleged violations of Section 8(a) (1)
The complaint alleges that on or about July 21, 1961, Robert O'Malley and
Joseph Pakola, supervisors of Respondent Company, interrogated employees con-
cerning their union activities and that Supervisor Inman told an employee that the
Company would discharge "troublemakers."
In determining whether an employer's conduct amounts to interference, restraint,
or coercion within the meaning of Section 8(a)(1), the test is not the employer's
intent or motive, but whether the conduct is reasonably calculated or tends to inter-
fere with the free exercise of the rights guaranteed by the Act.61 Then, too, on the
issue of whether the Respondent violated Section 8(a) (1), consideration has also
been given to Respondent's illicit interest in Airco and its discriminatory discharges
of Curry and Richburg, as it is not required that each item of Respondent's conduct
be considered separately and apart from all others, but consideration must be given
to all such conduct as a whole with a view to drawing inference reasonably justified
by their cumulative probative effect 62
In applying these principles to the facts in this proceeding, it is found that Re-
spondent violated Section 8(a) (1) when Pakola, Respondent's supervisor, questioned
Condon, an employee, with respect to his attending a meeting of the United Steel-
workers Union in July 1961. Pakola asked Condon, during working hours, about
the union meeting and inquired as to how many people attended and whether he
signed anything. Pakola also told Condon that he had a list of the names of all
those who attended the union meeting.63
Ledford Thornton, an employee, testified that he also attended a meeting of the
United Steelworkers Union and while at work, O'Malley came over to him the follow-
ing morning and inquired as to what had transpired at the meeting and that
O'Malley stated he had a list of the names of those who attended this union meeting.
O'Malley also said to Thornton: "I thought you guys was friends of mine ...."
It is found that the two incidents delineated above were intended to have the
effect of interfering with the rights guaranteed to employees by Section 7 of the Act
and thus constituted interference, restraint, and coercion in violation of Section
8 (a) (1) of the Act.
It is recommended that the allegation of the complaint be dismissed with respect
to Pakola threatening an employee that "troublemakers" would be fired as no
evidence was introduced by the General Counsel to prove this charge.
IV- THE REMEDY
Having found that the Respondent is engaging in and has engaged in certain unfair
labor practices, it shall be recommended that it and its successors cease and desist
from engaging in such conduct in the future and that it shall take certain affirmative
action designed to dissipate the effects of its unfair labor practices and thus effectuate
the policies of the Act.
Having found that Respondent has dominated and unlawfully recognized and
rendered support to Airco and unlawfully entered into a collective-bargaining
contract containing a dues checkoff provision, it shall be recommended that the
Respondent withdraw and withhold all recognition from and completely disestablish
said Airco as the ccllective-bargaining representative of its employees. Having also
found that the collective agreement dated April 14, 1961, granting recognition
to Airco was, in the total facts of this case, a further form of unlawful assistance, it
mA finding need not be supported by direct evidence. The Radio Officers' Union of the
Commercial Telegraphers Union, AFL (A H, Bull Steamship Company), v. N.I. R.B., 347
U S 17, 48-49 , 1 L R B. v. Link-Belt Conipani,. 311 U S 584 Circumstantial evidence
can be considered and inferences drawn as direct evidence is not always obtainable.
N.L B R v Southern fleet Companu, 246 F 2d 53, 54 (C A 4).
noNL.RB v Lester Bros, Inc, 301F 2d62(CA 4)
m T-r- C '*-t - " , "L R B , 264 F 2,1 96, 99 (C.A 7) ; Neco Electrical Products
Corporation, 124 NLRB 481, 482
e2 N L R R v Popeil R, others, Inc, 216 F 2d 66, 68 (C A 7) , NLRB v C W. Rad-
cliffe and IT. 1V. Manel,c, '/b/a Ilomedale Tractor & Equipment Company, 211 F. 2d 309,
319 (C A 9), cart denied 348 U S 833
63 Pakola's deninl is not credited See footnote 48, supra.
672010-63-vol 139-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall also be recommended that the Respondent cease giving effect to that contract,
or to any extension, renewal, modification, or supplement thereof, or to any super-
seding contract.
It is also recommended that the Respondent reimburse its employees and former
employees for any Airco dues paid directly to Airco or deducted from their wages
pursuant to checkoff authorizations and paid to or being retained for Airco, by pay-
ing to each of them a sum of money equal to the total of such dues paid directly to
Airco or deducted from said employees' wages 64
Having found that Airco's artificial creation was a means to combat the United
Steelworkers of America, AFL-CIO, as well as to frustrate self-organization and de-
feat genuine collective bargaining by its employees, the Trial Examiner is convinced
that the Respondent-created Airco cannot emancipate itself from habitual subservience
to its creator without being completely disestablished so as to insure that employees
would have the complete and untrammeled freedom of choice guaranteed by the last
paragraph of Section 1 of the Act 65 and by Section 766 The Board, with judicial
approval, has required since its earliest days, the permanent withdrawal of recog-
nition from, and complete disestablishment of, any labor organization so "corrupted"
by employer domination, support and interference as to be inherently incapable of
ever affording employees "an agency for collective bargaining." 67 The Board, with
the approval of the Supreme Court, has stated that where the employer's interference
has been so extensive as to constitute domination, disestablishment of the assisted
union is the proper remedy where, it is satisfied that the employer's unlawful as-
sistance cannot otherwise be dissipated.68
Where, as here, however, the weight of the Respondent's economic power over
its employees has been thrown behind Airco so as to have dominated its formation
and coerced its majority acceptance, Respondent merely being ordered to cease as-
sisting and interfering with its employees' organizational rights and to withdraw
recognition from Airco and a declaration of future neutrality, though of aid, will
not necessarily suffice to wholly dissipate the effect of its violations of the Act 69
because the employees may well hesitate to reject in any future election a union
which the Respondent has so forcibly created and ardently favored in the past.70
There is a "clear legislative policy to free the collective bargaining process from all
taint of an employer's compulsion, domination or influence.,' 71 It will, therefore,
be recommended that Respondent be directed to not only cease assisting and support-
ing but completely disestablish Airco Employees Association.
It has been found that Respondent discriminated in regard to the hire and tenure
of employment of Thomas Curry and Ray E. Richburg by discharging them because
of their union activities. It will be recommended that they be reinstated to their
former or substantially equivalent positions. It is also recommended that Respondent
make Curry and Richburg whole for any loss of pay they may have suffered because
of discrimination against them by payment to them of a sum of money equal to what
they would normally have earned as wages during the period from their discrim-
e+Vuginia Electric and Power Company v. N.L R B , 319 US. 533, 540-541; Dixie
Bedding Manufacturing Company v N L.R B, 268 F 2d 901, 906 (C A 5) ; Harold Hib-
bard and Ben R. Stein, Individually and as a Partnership , d/b/a Hibbard Dowel Co., 113
NLRB 28, 30
ea That section declares it to be the policy of the United States to protect "the exercise
by workers of full freedom of . designation of representatives of their own choosing,"
which, in turn, reaffirms the rights guaranteed in Section 7. See Texas & New Orleans
RR Co v Brotherhood of Railway & Steamship Clerks, etc , 281 U S 548, 569, 570
66 Which reaffirms the right of employees "to bargain collectively through representa-
tives of their own choosing " See N L R B v A J Tower Company, 329 U S 324, 331
67 N.L R B v. Pennsylvania Greyhound Lines, Inc, 303 U.S 261, 268, 271
sa The Supreme Court said in N.L R B v District 50, United Mine Workers of America,
355 U S 453, 458,
The Board has always distinguished the remedy appropriate in the case of a union
dominated by an employer from the remedy appropriate in the case of a union assisted
but uedominated by the employer In the case of a dominated union the Board
usually orders the complete disestablishment of the union so that it can never be
certified by the Board This Court has sustained such orders.
69 See N L R.B. v Stow Manufacturing Co , 217 F 2d 900, 904 (C A 2)
70 ", leaders in a company union are necessarily company representatives , accus-
tomed to submission to the company, and `men accustomed to such submission seldom
regain independence overnight' " Majestic Metal Specialties, Inc, 92 NLRB 1854, 1859.
71 International Association of Machinists, Tool and Die Makers Lodge No. 35 ( Serriek
Corp.) v NLRB , 311 U.S 72, 80.
DIXIE BELLE MILLS, INC., ETC. 629
inatory discharge to the date of offer of reinstatement , less their net earnings during
said period, the backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
General Counsel in his "Proposed Recommendations" (General Counsel Exhibit
No. 1) requests that the recommended order include an award of interest on back-
pay. This is for the Board to determine as a matter of policy and the Trial Ex-
aminer as of the date of this recommended report is aware of no Board Order
awarding interest.
CONCLUSIONS OF LAW
1. The business operations of Respondent constitute and affect trade, traffic, and
commerce among the several States within the meaning of Section 2(6) and (7) of
the Act.
2. Airco Employees Association, Inc., and United Steelworkers of America, AFL-
CIO, are labor organizations within the meaning of Section 2(5) of the Act 72
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
4. By forming , assisting, interfering, and dominating the administration of Airco,
and by recognizing and entering into a contract which provides for a dues-checkoff
provision and by according continuing effect to its contract with said Airco, Re-
spondent has engaged in and is engaged in unfair labor practices within the meaning
of Section 8(a)( I) and (2) of the Act.
5. By discriminating with regard to the hire and tenure of employment of Thomas
Curry and Ray E. Richburg, Respondent discouraged membership in United Steel-
workers of America, AFL-CIO, and committed unfair labor practices within the
meaning of Section &(a) (3) of the Act.
[Recommendations omitted from publication.]
72N.L .R.B. v. Standard Coil Products Co ., Inc., 224 F. 2d 465, 467-469 (C.A. 1), cert.
denied 350 U.S. 902.
Dixie Belle Mills, Inc., A Wholly-Owned Subsidiary of Bell Indus-
tries, Inc. and Textile Workers Union of America , AFL-CIO-
CIL, Petitioner. Case No. 10-RC-5149. October 30, 1962
DECISION ON REVIEW AND DIRECTION OF ELECTION
On February 15, 1962, Walter C. Phillips, the Regional Director
for the Tenth Region, issued a Decision and Order in the above-
entitled proceeding, dismissing the petition on the ground that the
unit requested was inappropriate and the Petitioner had specifically
disclaimed any desire to proceed in a larger unit. Thereafter, pursuant
to Section 102.67 of the Board's Rules and Regulations, Series 8, as
amended, the Petitioner filed with the Board a timely request for
review of such Decision and Order on the ground that the Regional
Director's findings were in error and that, in the circumstances of this
case, the requested unit, limited to a single plant, is appropriate. The
Employer filed a statement in opposition to the request for review.
On March 8, 1962, the Board by telegraphic order granted the re-
quest for review because of the factual and policy issues raised. There-
after, the Petitioner filed a brief supporting its unit contention and the
Employer filed a brief in opposition thereto.
The Board has considered the entire record with respect to the
issues under review, including the positions of the parties as set forth
139 NLRB No. 61.