Aluminum Extrusions, Inc.

National Labor Relations Board - Board Decisions

Oct 14, 1964

148 N.L.R.B. 1662 (N.L.R.B. 1964)

1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The offices of the subsections and units of the manufacturing sec-
tion are in various locations in three of the Fitchburg department's
seven buildings. Offices of other sections are also located in the same
three buildings of the plant, as well as other buildings. In some
instances , manufacturing section offices are located next to or across
the hall from offices in the engineering or marketing sections. Apart
from the fact that the Employer has made the manufacturing sec-
tion an administrative entity, the employees therein are not physi-
cally separated so as to constitute a distinct, homogeneous grouping
of employees.
In view of the fairly substantial contacts that the professional and
technical employees of the manufacturing section have with em-
ployees of similar skills in the engineering section and to a lesser
degree, with other sections of the plant, the geographical or physical
integration of the manufacturing section with other sections of the
plant, the fact that the Board in the past has rejected arbitrary
piecemeal representation of professional or technical employees,4 and
that in .the present case, there are technical and professional em-
ployees in other sections who are neither represented nor sought to
be included herein, we find that the unit petitioned for is not an
appropriate departmental unit .5 Although the Petitioner has indi-
cated its willingness to go to an election in any lesser unit within the
manufacturing section, the record does not establish that any lesser
unit is appropriate. Accordingly, we shall dismiss the petition.6
[The Board dismissed the petition filed herein.]
* General Electric Company, 120 NLRB 199 ; Westinghouse Electric Corporation (Naval
Reactors Facility ), 137 NLRB 332 ; Aerojet General Corporation, 131 NLRB 1094.
5 Business Supplies Corporation of America , Data Processing Supplies Division, 147
NLRB 121; Continental Can Company , Inc., 128 NLRB 762.
6 In view of the dismissal of the petition, we do not reach , nor resolve , the job classifi-
cations of certain employees which were in dispute.
Aluminum Extrusions, Inc. and International Union , United
Automobile , Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO' and Melvin Perkins and
Employees Committee of Aluminum Extrusions , Inc. Cases
Nos. 7-CA-4398, 7-CA-4448(2), and 7-CA-4448. October 14,
1964
DECISION AND ORDER
On June 19, 1964, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding , finding that the Respond-
1 Herein referred to as "UAW."
148 NLRB No. 167.
ALUMINUM EXTRUSIONS , INC. 1663
ent had engaged in and is engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action , as set forth in the
attached Trial Examiner 's Decision . The Trial Examiner further
found that the Respondent had 'not engaged in certain other unfair
labor practices alleged in the complaint and recommended that the
complaint be dismissed with respect to the latter allegations. The
Respondent filed exceptions to that portion of the Trial Examiner's
Decision in which Respondent was found to have violated the Act
and filed a brief in support thereof , with accompanying affidavit.
The General Counsel and the UAW filed objections relating to the
affidavit filed by the Respondent , with its brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning , Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the
entire record in this case , including the Trial Examiner 's Decision,
the exceptions , brief , the affidavit submitted by the Respondent, and
the objections of the General Counsel and UAW , and hereby adopts
the Trial Examiner 's findings ,2 conclusions , and recommendations
with the following modifications.
We shall modify paragraph 1 of the Trial Examiner 's Recom-
mended Order as follows :
Paragraph 1(a) shall be modified to read:
"(a) Interrogating its employees concerning their union member-
ship, activities , or desires , in a manner constituting unlawful inter-
ference, restraint , or coercion , and threatening its employees with
discharge or economic reprisals if they join or retain membership in,
or engage in activities on behalf of, the Union."
Paragraphs 1(c), (d), (e ), and (f ) shall be redesignated as para-
graphs 1 (d), (e), (f), and (g).
A new paragraph 1(c) shall be added and shall read :
"(c) Promulgating and enforcing a rule prohibiting its employees
from wearing union insignia." 3
a Inasmuch as Respondent's "no-solicitation, no-distribution" rule would prohibit un-
authorized solicitation during nonworking time and unauthorized "distribution of mate-
rial or literature" during nonworking time in nonworking areas of the 'Company's premises,
we find, in agreement with the Trial Examiner, that the Respondent's maintenance of this
rule is violative of Section 8(a) (1) of the Act. Remington Rand Corporation, 141 NLRB
1052 However, unlike the Trial Examiner, we do not rely upon the Respondent's failure
to discipline employee King for violation of this rule in finding that the Respondent has
violated Section 8(a) (2) of the Act.
s The Notice is similarly amended by adding the following thereto:
Wa WILL Nov promulgate or enforce a rule prohibiting our employees from wear-
ing union insignia.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Add the following to paragraph 2 (b) of the Trial Examiner's
Recommended Order :
"Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, as modified herein, and orders that
the Respondent, Aluminum Extrusions, Inc., its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified herein.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on October 7 and 21,'1963, respec-
tively, by International Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), AFL-CIO, hereinafter referred to as the
Union, and upon additional charges filed on November 5 and 7, 1963, respectively, by
Melvin Perkins, an individual, and the Union, the General Counsel for the National
Labor Relations Board, hereinafter referred to as the Board, issued a consolidated
complaint on December 6, 1963, against Aluminum Extrusions, Inc., hereinafter re-
ferred to as the Respondent or the Company, alleging that the Respondent engaged
in conduct violative of Sections 8(a)(1), (2 ), and (3) and 2( 6) and (7) of the Na-
tional Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the
Act. The Respondent thereafter filed a timely answer to the complaint denying the
commission of any unfair labor practices.
Pursuant to notice , a hearing was subsequently held on February 10, 11, and 12,
1964, in Charlotte, Michigan, before Trial Examiner Wellington A. Gillis, at which
all parties were represented by counsel , were afforded full opportunity to be heard,
to examine and cross -examine witnesses , to introduce evidence pertinent to the
issues, and to engage in argument . Timely briefs were subsequently filed by the
Respondent and the Party in Interest.
Upon the entire record in this case , and from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial , reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" (Universal
Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Michigan corporation with its principal place of business at
Charlotte, Michigan, is engaged in the manufacture , sale, and distribution of aluim-
num products . During the fiscal year ending June 30, 1963, the Respondent pur-
chased and caused to be transported to its Charlotte , Michigan , plant materials valued
in excess of $100,000, of which mount , materials valued in excess of $50,000 were
shipped to said plant directly from points located outside the 'State of Michigan. The
parties agree , and I find, that the Respondent is engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
ALUMINUM EXTRUSIONS, INC.
II. THE LABOR ORGANIZATIONS INVOLVED
1665
A. International Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
B. The parties agree, and I find, that Employees Committee of Aluminum Extru-
sions, Inc., is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 1
A. The issues
1. Whether the Respondent has dominated and/or assisted the Employees Com-
mittee within the prohibition of Section 8(a) (2) of the Act.2
2. Whether the Respondent, through its officials and supervisory personnel, inter-
fered with, restrained, and coerced its employees within the meaning of Section
8(a)(1) of the Act.3
3. Whether, in discharging William Wright on October 12, 1963, the Respondent
did so pursuant to an unlawful rule prohibiting the wearing of union buttons, thereby
violating Section 8(a) (3) of the Act.
B. The facts
1. Employees Committee
In 1954 an organization called Employees Committee of Aluminum Extrusions,
Inc., hereinafter referred to as Employees Committee or the Committee, was first
formed at the suggestion of Frank Gregg, the then company vice president and
general manager. At that time, shortly after Gregg called a meeting of the Com-
pany's employees at which he discussed the merits of forming an organization to
assist in the settling of employee grievances, an election was held to elect departmental
representatives to the Employees Committee. Since then the Committee has been
recognized by the Respondent as the representative of all its 400 to 500 plant and
ntfice employees.
Credible record testimony 4 discloses that the Employees Committee is comprised
of eight or nine employee representatives, each of whom is elected annually by the
employees in his respective department. Its activities are almost exclusively confined
to a regular monthly meeting which is attended by four of the Respondent's top
officials,3 and a preliminary meeting at which only employee representatives are
present. While the subject matter of the regular meetings includes a discussion of
mutual problems, grievances, working conditions, and wages, it appears that in
general the preliminary meeting is devoted primarily to employee grievances and
gripes which may be raised at the regular meeting:
Without attempting to render a detailed discussion of the Committee operations,
the following factors clearly warrant, in my opinion, a finding that the Employees
Committee is assisted and dominated within the meaning of Section 8(a)(2) of the
Act: -
A. The Committee has no constitution or bylaws, collects no dues from the em-
ployees, has no treasury (other than an employee fund which derives its sole source
of revenue from the profits of the vending machines in the Respondent's plant and is
1 The complaint was amended at the beginning of the hearing to include additional allega-
tions of Section 8(a) (1) conduct, and again after the General Counsel had rested his case,
to delete certain allegations from the complaint.
2One of the Section 8(a) (2) charges alleging assistance and domination was filed by
Mel Perkins, the chairman of the Employees Committee, for the purpose of determining
whether, under Board law, "we have actually been assisted to the extent of domination"
31t is admitted, and found, that all of the Respondent's supervisory personnel alluded
to hereinafter, are supervisors within the meaning of the Act.
4 The facts hereinafter 'set forth are based, for the most part, upon documentary evi-
dence introduced by the General Counsel and upon credited testimony of a number of em-
ployee witnesses, including the present chairman and substitute chairman of the Com-
nuttee, and five former members of the Committee To the extent that the testimony of
industrial relations director, Gerry Haskins, the only witness to testify on behalf of the
Respondent, does not in soiiie respects coincide with the findings concerning the opera-
tions and functioning of the Committee, it is not believed.
5 The company representatives who normally I attend the regular Committee meetings
are Carl Henry, vice president and general manager, Don Meyers, financial department
official, Herb Allen, personnel manager, and Gerry Haskins, Industrial relations director.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used mainly to pay death benefits), conducts no general meetings of the employees,
keeps no records, has no officers other than a chairman and substitute chairman, and
has no office facilities or other physical equipment.
B. Preliminary and regular meetings are held on company time and in the Re-
spondent's conference room; employee representatives are paid regular rate while
attending the meetings and time and one-half if the meeting runs-past the 8-hour day;
mimeographed notices posted on the bulletin boards by the Respondent announcing
the time of both the preliminary and regular meetings are prepared by the Respondent
and signed by a company official only, generally Haskins; 6 notes taken at the prelimi-
nary meeting reflecting the matters discussed, generally relating to employee griev-
ances, are subsequently turned over to the Respondent and used in formulating the
agenda for the ensuing regular meeting with the Respondent's officials; mimeographed
"minutes" of regular meetings, reflecting matters discussed and resolved, are prepared
and posted by the Respondent and are signed by the Committee chairman and an
official of the Company; 7 there is no written procedure governing the regular meet-
ings which are called to order and chaired by Haskins.
C. Ballots for the annual election of employee representatives, which takes place
in August on company time and property pursuant to a notice posted by the Re-
spondent, are prepared by the Respondent and, after the balloting, are returned to
the Respondent's office where they are counted by the committee chairman and
Haskins, and the winners written down by Haskins and posted by,the Respondent; 8
the committee chairman is elected at a regular meeting at which the Respondent's
officials are piesent.
D. While there exists a 4-step complaint or grievance procedure culminating in the
committee chairman presenting the grievance to the industrial relations director,
there is no provision for arbitration once the Company has rendered its final decision;
while the Committee and the Respondent from time to time issued "minutes" and
"memorandums of understanding" covering agreed-upon subjects pertaining to work-
ing conditions in the plant, there is no evidence that the Committee and the Re-
spondent at any time entered into a collective-bargaining contract.
E. In addition to the above, the record discloses that on October 28, 1963,9 at a
regular meeting of the Committee, at which the usual company officials were present,
Vice President Henry commenced by alluding to the advent of the Union and stating
that he had been aware that some of the employees had "gone to a bunch of outsiders
because they didn't feel that the Committee was doing a good job for them." Henry
went on to state that it was unfair to the employees for a committee-representative
to remain on the Committee if he were actively supporting the Union, and that the
Committee representatives either had to "give up the union activities or resign,from
the Committee." At this point, Haskins went around the room asking each com-
mittee member whether he were going to resign or remain on the Committee. As a
result, two employee members, Evelyn Cole and Raymond Beals, resigned and were
asked by Henry to leave the meeting.'° This incident exemplifies, in my opinion, the
extent to which the Respondent not only was able to control the membership on the
Committee, but, in fact, exercised such control.
8 Copies of these notices are sent to the plant supervisors.
7 These "minutes," which, during the meeting, are kept by the Respondent , commence by
listing who was present at the meeting. Until recently, the minutes made no distinction
between employee members of the Committee and company representatives attending the
meeting.
8 The election is very informal with no provisions for nominations and with employees
merely writing in the names of their first and second choices for their department repre-
sentative. The ballots are given to the committee chairman, who, in turn, passes them
on to the committee representative. Once the employees have marked their ballots, they
are turned in to the committee chairman
6 Unless otherwise specified, all dates refer to 1963.
18 The findings of fact as to the above matter are based upon-the combined credited
testimony of Cole, Beals, and, in part, Mel Perkins, the first quotation taken from the
testimony of Beals and the second from that of Cole. Henry did not testify in this pro-
ceeding and Haskins, although denying that he requested that anyone resign, testified that,
after rendering his opinion that a committee member could not represent two competing
organizations, he went around the room asking each member "if he believed in the Com-
mittee concept " On cross-examination, Haskins admitted that immediately prior to the
two resignations, he told the committee members that it was the Company's position that
they could not serve the Committee and at the same time serve a third party. Accordingly,
as.,above noted, I find that-in all , probability, the testimony of the named General Counsel
witnesses more accurately reflects the fact.
ALUMINUM EXTRUSIONS, INC. 1667
In view of all of the factors set forth above, and upon the record as a whole, I find
that the evidence establishes that the Respondent assisted and dominated 11 the Em-
ployees Committee within the proscriptions of Section 8(a) (2) and (1) of the Act 12
2. Alleged Section 8 (a) (1) conduct
a. Interrogation and threats
Employee Evelyn Cole credibly testified that at the September 27 regular meeting
of the Employees Committee, Vice President Henry told those present that he knew
that some of the employees had been attending meetings of the Union and that "if
they wanted to be dirty they could fire anyone that was taking part in union activities
which had never been their policy." Employee William Wright credibly testified
that Henry also stated that "they could give everybody . . . ten dollars and or five
dollars an hour and shut the shop down. If we wanted to go along and be out on the
street, that was up to us." 13
At a special meeting of the Employees Committee on October 1, called by Vice
President Henry who absented himself, most of which was devoted to a discussion of
the Union, following an opening discourse by Plant Superintendent Robert Gossett,
concerning the adverse effects on employees of unions as exemplified by a past
Westinghouse strike, Haskins stated that "if we had a union in there, that everything
would be taken away from us and we would have to start from scratch." 14
Paragraph 7(g) of the complaint alleges that on October 28, Carl Henry coercively
interrogated the Respondent's employees concerning the Union. As factually recited
above in connection with my Section 8(a) (2) findings, I am persuaded, and so find,
that the combined conduct of Henry and Haskins in specifically ascertaining the in-
dividual union sentiments of each member of the Employees Committee at the com-
mittee meeting on this date established the proof of the above complaint allegation.
In addition to the above, I credit the following unrefuted testimony and find the
conduct described to constitute violations of Section 8(a)(1) of the Act:
1. Employee Jack King's testimony that during the first or second week in Novem-
ber, he asked his foreman, Anson Hayward, for his opinion on the Union, and, after
receiving a reply that the Union would make his (Hayward's) job a lot harder, was
told by Hayward that during a foremen's meeting Henry had stated that the Company
"would never allow the Union to come into Aluminum Extrusions and that if it did
come in they would lock the doors and move to Tennessee just as soon as they could
get the legal negotiations through."
2. Employee Douglas Elston's testimony that about the third week in October,
Foreman Anson Hayward twice told him that "It ain't going to do you boys no good
to get the Union in here because if you do we'll close the shop down and move it to
Tennessee."
11 N L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203 Although
in many respects this case appears to be factually similar to Wean Manufacturing Com-
pany, 147 NLRB 112, wherein the General Counsel did not allege, and the Trial Examiner
did not find, domination warranting disestablishing of the shop committee, evidence in
the instant case, not present in Wean, requires a finding of domination as well as
assistance.
12 With the exception of paragraph 7(d) of the amended complaint, which must fall for
lack of proof, I find that the General Counsel satisfied his burden of proof with respect to
all of the specific allegations of Section 8(a) (2) conduct contained in the complaint as
amended at the close of the General Counsel's case. I
13 Cole's testimony is corroborated by Raymond Beals. Henry did not testify and Haskins,
although testifying that Henry indicated that the Company had not and would not dis-
criminate against an employee because of his union sentiments, admitted that, after "some
discussion about union interest and fob security," Henry stated "that of course, every-
body is human and can make mistakes and if the Company decides to do so, they could find
valid reason for ultimately discharging anyone through disciplinary procedures .. . .
I credit Cole and Wright as to Henry's statements on this occasion.
14 The above quotation is taken from the credited testimony of Evelyn Cole, and is cor-
roborated by that of Beals. Although Gossett did not testify, Haskins admitted that
Gossett apprised the committee membership of what had happened to Westinghouse em-
ployees as a result of a prolonged strike. I am not impressed with, and do not credit,
Haskins' denial that he told the committee members that they would lose benefits if the
Union came in, or his explanation of merely telling the Committee that working condi-
tions and employee benefits which they had obtained would be subject to negotiations with
the Union.
760-577-65--vol. 148-107
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Employee Harley Eaton's testimony that on November 20, President William
Dunlap, after telling him that he had always fought a union and would continue to
do so until his dying day, asked him whether he was for or against the Company, what
he thought of the Union , and stated to him that "the guys that were for the Company
would get the best of everything and those against the Company might lust as well
start looking for another job .. .."
4. Employee Eaton's testimony that on January 15 , 1964, after having talked with
a representative of the Board that day, he was approached shortly after reporting for
work by Foreman Peter Fleese , who, after telling Eaton that he was aware of the
latter's Board appointment , asked Eaton what he expected to gain by getting Dunlap
in trouble.15
b. No-solicitation rule
The complaint alleges, and the Respondent admits, the existence of a rule pro-
hibiting "unauthorized solicitations or distribution of material or literature on Com-
pany premises " Record evidence discloses that this rule is one of many plant rules
which has been maintained by the Respondent at least since March 1, 1962 . As this
rule, in prohibiting any solicitation or distribution on company property at any time,
would necessarily include a prohibition against union solicitation during nonwork-
ing time, in the absence of special circumstances not here present , it is presumptively
unlawful under Board law.16 I find that the Respondent 's action in maintaining its
broad no-solicitation and no-distribution rule constitutes a violation of Section
8(a)(1) of the Act.17
The evidence discloses that on November 4, 2 days before a Board representation
hearing, Harold King, substitute chairman of the Employees Committee , spent the
greater portion of the day and into the evening conducting meetings among groups
of employees in various parts of the plant during working hours . King, in gather-
ing groups of 20 to 100 employees at a time, drawing them from their work stations,
reached most of the 400 employees on this occasion , passing out slips to be signed
by the employees authorizing the Employees Committee to represent them for bar-
gaining purposes 18 While King may or may not have had prior authorization from
the Respondent to engage in this solicitation and distribution , under all of the circum-
stances , including the long duration of such conduct and the fact that it continued
uninterrupted in the presence of a number of plant foremen , I am convinced, and so
find, that the Respondent 's top officials were aware of King 's activity , as well as its
-e Several additional Section 8(a) (1) complaint allegations I find to be without merit.
Thus, employee James Gate testified to the effect that Foreman Dale Sprague asked him
bow lie felt about the Union As Gate was unable to recall with any degree of certainty
when this alleged conversation occurred , I find that such will not support a finding of
unlawful conduct
Employee Harley Eaton testified that on November 10 or 12, in reply to an employee's
inquiry about the Union , Foreman Sprague said that "the Company was going to fight the
Union and that they were going to beat the Union. " Eaton further testified that at
this same time , Foreman Carroll Force stated that "if the Union got in the Company
could shut down and move " I find neither of these statements to be coercive within the
meaning of Section 8(a)(1) of the Act and, accordingly , will recommend that para-
graphs 7(k) and 7 ( n), respectively , of the amended complaint be dismissed
The General Counsel alleges in paragraph 7(f) of the complaint that the- Respondent,
through a letter distributed to its employees dated September 19, threatened ' its'employees
with reprisals if the union organizational campaign were successful I am of the opinion,
and so find, based upon a perusal of the letter , an attached copy marked "Appendix B,"
that the matters therein contained are privileged under Section 8(c) of the Act , and, as
such , may not be held to be violative of Section 8(a) (1) of the Act. Accordingly, I will
recommend that paragraph 7(f) of the amended complaint be dismissed.
10 Walton Manufacturing Company, 126 NLRB 697, enfd 289 F. 2d 177 (C A. 5)
17 Section 10(b) of the Act prevents a finding of a violation as to the promulgation of
the rule, and the absence of evidence that it was enforced during the 10(b) period pre-
cludes a finding of a violation as to its enforcement.
18These authorizations read as follows:
To the Employees Committee of Aluminum Extrusion Incorporated-
Attention Chairman
You are hereby , authorized to represent me and bargain with the Company in my
behalf regarding wage , hours , and working conditions, as you have done in the past;
and I wish the Employees , Committee to continue to represent nie as in the past.
ALUMINUM EXTRUSIONS, INC. 1669
purpose 19 Certainly, the fact that the, Respondent subsequently failed to take any
action against King, notwithstanding its admission that King, by such conduct, had
broken several rules, the penalty for which could have been discharge, warrants a
finding that the Respondent condoned such activity. In view of my finding, above,
that the Respondent's "no-solicitation-no-distribution" rule is unlawful, I find that
the Respondent's action in permitting this activity by King on behalf of the Employees
Committee in violation of the rule merely constitutes an act of assistance, which
bolsters the Section 8(a)(2) rationale heretofore noted.20
3. Discharge of William Wright
William Wright, the alleged discriminatee in this proceeding, was first employed by
the Company on April 8, 1963, and worked on the evening shift as a mill operator
until his discharge on October 12, 1963. Shortly after the advent of the Union,
Wright became active in its behalf, attending union meetings, and acting as a mem-
ber of the union organizing committee, a fact of which the Respondent subsequently
became aware. In August, while engaged in this activity, he was also elected a
representative to the Employees Committee, and attended a preliminary meeting and
two joint meetings of the Committee.
On October 12, just before closing time, Wright, who was wearing a union type
button,21 was approached by his foreman, Dale Schrontz, who told him that he did
not think that he had a right to wear the button. The following morning, a few
minutes after Wright had commenced his mill operations, Schrontz told him that he
had to take off the button. When Wright stated that he did not have to, Schrontz
told him that Plant Superintendent Robert Gossett wanted to talk with him. Wright,
upon reporting to Gossett, was told, after the latter inspected the button, that he
could not wear it. Upon Wright's protest, Gossett again told him that he could not
wear the button. When Wright stated that he was going to wear it, Gossett told him
that he could "check you out." Gossett then accompanied Wright to the timeclock,
the latter punched out, and, in reply to Wright's question as to whether he should
report for work on Monday, Gossett told him "No," that he would be notified.
The following Wednesday, Wright returned to the plant where, in the presence of
Gossett, Schrontz, and Mel Perkins, Haskins-told Wright that he had refused a direct
order, and that he was being discharged for insubordination
The General Counsel contends that Wright had a right to wear a union button
and that the Respondent's action in effectuating his discharge for his refusal to re-
move the button constitutes a violation of Section 8(a)(3) of the Act. The Re-
spondent contends that Wright was discharged for insubordination in refusing to
obey the instructions of his superior,
While the Respondent, at the hearing and/or in its brief, raises a number of argu-
ments in defense of the Section 8(a)(3) allegations, the real issue concerns the
validity of the Respondent's rule prohibiting the wearing of union buttons.22 The
Respondent asserts that the rule prohibiting the wearing of union insignia which it
promulgated 2 days in advance of Wright's discharge was prompted, in part, by
Perkins' complaint and threat, that, as the Company was permitting the Union to
campaign in the plant,23 the Employees Committee would have to resort to similar
campaign tactics, and by the Respondent's desire to minimize the disruptive effect on
plant operations and production engendered by employee emotions over the union
controversy.
19 Accordingly, I do not credit Haskins' testimony on this matter, and specifically, to
the effect that he was unaware of what was going on "until the fact was almost completed "
20 With the exceptions noted above, I find that the General Counsel proved the specific
allegations of Section '8(a) (1) conduct contained in the amended complaint
a This button, 1 inch in diameter, contains the words, "I GAVE TO COPE-1983," and,
in the middle, the letters, "AFL-CIO "
z I find totally without merit or foundation the Respondent's assertion that (a) a sec-
ond reason for Wright's discharge was his failure to notify Respondent of his current
home address; (b) Wright was retained by the Union to attempt to obtain employment at
the Respondent in order to assist the Union in its organizing efforts and, therefore. was
never a bona fide employee entitled to the protections of the Act; (c) Wright deliberately
intended to, precipitate an incident, thereby getting himself discharged by the Respondent ,
and (d) in any event, Wright, who was initially "suspended subject to discharge," did
not attempt to obtain a hearing, to which he was entitled, concerning the Respondent's
action against him
21 The only evidence of a union campaign in the plant is that 'disclosing that several
employees wore COPE buttons prior to the advent of the new rule.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the Respondent's position, I find nothing inflammatory about the-
wearing of a button indicating that the wearer had contributed to the AFL-CIO's.
committee on political education. Nor am I convinced that such a button would
tend to be disruptive of plant operations.24 In the absence of special circumstances.
justifying the adoption of such a rule, I find that the Respondent, in promulgating
and enforcing its rule against wearing union insignia, exceeded its powers under the
ACt.25 Thus, as Wright was discharged for disobeying an unlawful rule, I find that
the Respondent discriminated against him in violation of Section 8 (a) (3) and (1) of
the Act.26
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it is recommended that it cease and desist therefrom and that it take cer-
tain affirmative action which is necessary to effectuate the policies of the Act. It-
having been found that the Respondent has assisted, supported, and dominated the
Employees Committee of Aluminum Extrusions, Inc., it is recommended that the
Respondent cease and desist from such conduct and as a corollary to the finding of
domination, that it withdraw recognition from, and completely disestablish, the-
Employees Committee of Aluminum Extrusions, Inc , as the representative of any
of its employees for the purpose of dealing with the Respondent concerning griev-
ances, wages, rate of pay or conditions of work, and that the Respondent refrain,
from recognizing the Employees Committee of Aluminum Extrusions, Inc., or any
successor thereto, for any of the employees defined in Section 2(5) of the Act. This
will not prevent the employees, at such time as the unfair labor practices found
herein have been remedied and the conditions for a free choice established, from-
adopting representation from among their own ranks or any other kind of repre-
sentation , if such is a genuine desire, unfettered by the Respondent 's domination,
interference , assistance , or support 27
It having been found that the Respondent unlawfully discharged William Wright
on October 12, 1963, and, thereby violated Section 8(a)(3) and (1), it is recom-
mended that the Respondent offer the above -named individual immediate and full'
reinstatement to his former or substantially equivalent position , without prejudice to-
his seniority or other rights and privileges , and make him whole for any loss of
earnings he may have suffered as a result of the discrimination against him, by mak-
ing payment to him of the sum of money equal to the amount he would have earned'
from the date of the discrimination to the date of the offer of reinstatement ,28 less
net earnings during said periods to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall'
include the payment of interest at the rate of 6 percent to be computed in the man-
ner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.29 In this
regard it is further recommended that the Respondent preserve and, upon request,
make available to the Board or its agents for examination and copying , all payroll'
records, social security payment records and reports, timecards, and all other records.
necessary to compute the amount of backpay.
u Haskins' extended testimony concerning his evaluation of conditions in the plant, in-
cluding employee feelings , was not persuasive
as As alleged In the complaint, I find the Respondent's conduct in this regard to con-
stitute an independent violation of Section 8(a) (1) of the Act Stewart Hog Ring Com-
pany, Inc., 131 NLRB 310; Kimble Glass Company, 113 -NLRB 577, enfd. 230 F 2d 484,
485 (C.A. 6).
21 See Ksmble Glass Company, supra Under all of the circumstances present in this
case, I further find that the Respondent's adoption of this rule was motivated by a desire.
to further assist the Employees Committee and to perpetuate its existence in the plant,
thus constituting an additional factor supporting the Section 8(a) (2) findings heretofore
made.
27 Cabot Carbon Company and Cabot Shops , Inc., 117 NLRB 1633; Ben Corson Manu-
facturing Co., et al., 112 NLRB 323, 346.
28 See A.P.W. Products Co , 137 NLRB 25.
10 See Reserve Supply Corporation of L.I., Inc. v. N.L.R.B., 317 F. 2d 785 (C.A. 2).
ALUMINUM' EXTRUSIONS, INC. 1671
In view of the fact that the unfair labor practices committed are of the nature
which strikes at the root of employee rights safeguarded by the Act, it is further
recommended that the Respondent cease and desist from infringing, in any manner,
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Aluminum Extrusions, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, and Employees Committee of Alu-
minum Extrusions, Inc., are labor organizations within the meaning of Section 2(5)
of the Act
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found, Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By interfering with and contributing unlawful aid, assistance and support to,
and by dominating, the Employees Committee of Aluminum Extrusions, Inc., the
Respondent has violated Section, 8 (a) (2), and thereby interfered with the exercise
of the rights guaranteed to its employees by Section 7 of the Act, thereby violating
Section 8 (a) (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of William
Wright, thereby discouraging membership in, and activity on behalf of, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions of law, and upon the
,entire record in this case, it is recommended that Aluminum Extrusions, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union membership, activities, or
desires, and threatening its employees with discharge or economic reprisals if they
join or retain membership in, or engage in activities on behalf of, the Union.
(b) Maintaing a rule broadly prohibiting its employees from engaging in un-
authorized solicitation or distribution of material or literature on company premises.
(c) Assisting, dominating, contributing financial or other support to, or inter-
fering with the administration of the Employees Committee of Aluminum Extrusions,
Inc., or any other labor organization.
(d) Recognizing the Employees Committee of Aluminum Extrusions, Inc., or any
successor thereto, as the representative of any of its employees for the purpose of
dealing with the Respondent concerning grievances, wages, rates of pay, or conditions
.of work
(e) Discouraging membership in International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW), AFL-CIO, or in
any other labor organization, by discharging, laying off, or refusing to reinstate, any
of its employees, or in any other manner discriminating in regard to hire or tenure of
employment, or any term or condition of employment, in violation of Section 8(a)
(3) of the Act.
(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 any labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as amended.
2 Take the following affirmative action, which will effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from, and completely disestabilsh, the
Employees Committee of Aluminum Extrusions, Inc., or any successor thereto, as
the representative of any of its employees for the purpose of dealing with the Re-
spondent concerning grievances, wages, rates of pay, or conditions of work.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer William Wright immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority and other rights and
privileges, and make him whole in the manner and according to the methods set
forth above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records and
reports, timecards, personnel records and reports, and all other records, necessary to
compute the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Charlotte, Michigan, copies of the attached notice marked
"Appendix A." 30 Copies of said notice, to be furnished by the Regional Director
for Region 7, shall, upon being duly signed by the Respondent's representative, be
posted by it as aforesaid, immediately upon receipt thereof, and be maintained for
at least 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 cov-
ered by any other material.
(e) Notify the Regional Director for Region 7, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply here-
with'31
It is further recommended that the complaint herein be dismissed insofar as it
alleges that the Respondent committed any unfair labor practices other than as above
found.
31 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership,
activities, or desires, in a manner constituting interference, restraint, or coercion
in violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with discharge or economic reprisals if
they join or retain membership in, or engage in activities on behalf of, the Union.
WE WILL NOT maintain a rule broadly prohibiting our employees from engag-
ing in unauthorized solicitation or distribution of material or literature on com-
pany premises.
WE WILL NOT assist, dominate, contribute financial or other support to, or
interfere with the administration of the Employees Committee of Aluminum
Extrusions, Inc., or any other labor organization.
WE HEREBY disestablish the Employees Committee of Aluminum Extrusions,
Inc., as the representative of any of our employees for the purpose of dealing
with us concerning grievances, wages, rates of pay, or conditions of work, and
WE WILL NOT recognize it, or any successor thereto, for any of the foregoing
purposes.
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America (UAW),
AFL-CIO, or in any other labor organization, by discharging, laying off, or
refusing to reinstate any of our employees, or in any other manner discriminating
in regard to hire or tenure of employment, or any term or condition of employ-
ment, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of their own choosing,
ALUMINUM EXTRUSIONS, INC. 1673
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as author-
ized by Section 8(a) (3) of the Act, as amended.
WE WILL offer William Wright immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges, and will make him whole for any loss of pay he may have
suffered by reason of our discrimination against him.
All of our employees are free to become, remain, or to refrain from becoming or
remaining , members of International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor
organization , except to the extent that this right may be affected by an agreement
authorized by Section 8 (a) (3) of the Act.
ALUMINUM EXTRUSIONS, INC.
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE -We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training Act of
1948, as amended, 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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No 963-9330,
if they have any question concerning this notice or compliance with its provisions.
APPENDIX B
September 19, 1963
TO OUR EMPLOYEES AND THEIR FAMILIES:
The purpose of this letter is to clearly state the Company attitude and position
regarding a Union:
1. It is our sincere conviction that a Union would not benefit you A Union could
seriously jeopardize the future of AE, your job security and continuity of employment.
2. Union membership would cost you money. We do not know of any specific
gains that you can obtain through a Union that would represent a good investment
and warrant the risks that would be involved.
You of course realize that a Union can promise most anything but its promises
cannot be supported by guarantees.
3. The presence of a Union would be costly to the Company in terms of time,
expense of legal counsel and diverting the attention of management from its first
responsibility; assuring the profitable operation of AE on a continuing basis. This
could not help but adversely affect you as well as the Company for continual profits
are required for our mutual security.
4 Job security cannot be improved in any real way or guaranteed by the Union.
A Union will not sign your paycheck. A Union will not bring business into our
plant. A Union will never contribute to our profit and a Union is never a substitute
for profit. The only real guarantee that wages, benefits and job security will continue
and also improve is the operation of our Company on a profitable basis.
5. We are certain that you are aware of the record of Unions regarding walkouts,
work stoppages, and other actions which interrupt normal operations and mean less
than a full paycheck for the employees involved. Are you willing to stake your pay-
check, your job and your future on the decisions and actions of Union officials in
Lansing or Detroit9 Are you willing to take these risks, particularly when it is obvi-
ous that such outsiders have no knowledge or concern for the problems associated
with our type of business and have no "personal stake" in what happens to AE or its
employees
6. We recognize and respect the right of each employee to "freedom of choice"
regarding the Union question. In exercising this freedom we feel two facts have
paramount importance:
(a) You are entitled to all the facts necessary to make a sound decision.
Your supervisor and every other member of management would be pleased to
answer or obtain the answer to any question relating to this subject. In each
instance, the answer you receive will be complete and factual.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) You are entitled to facts without irresponsible promises . We make you
no promises except to point to our record . The history of AE proves that
when we have been able to operate at a profit , you also have benefited through
Profit Sharing, wage improvement , improved benefits and greater security and
opportunity . All of these have been accomplished without a union.
Our basic concern on the Union matter is well stated in the following direct quo-
tation from an article appearing in the September issue of Reader 's Digest entitled
"The Strike Nobody Won"':
"There are, of course , many valid reasons for the existence of unions. But
there are questions no less valid about the mistakes of unions , the power and
ambitions of their leaders , the exorbitant costs of some strikes both to the
community and to the union members."
Thoroughly discuss the contents of this letter and other questions relating to this
subject. Be certain you obtain all the facts on which to make a sound decision.
Consider carefully. Then decide what will be in the best interests of you and your
family.
We neither ask nor expect you to do more."
Sincerely,
ALUMINUM EXTRUSIONS, INC.
Associated Naval Architects , Inc. and United Industrial Work-
ers of North America of the Seafarers ' International Union
of North America, Atlantic , Gulf, Lakes and Inland Waters
District , AFL-CIO . Case No. 5-CA-2492. October 14, 1964
DECISION AND ORDER
On March 31, 1964, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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-mem-
ber panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and brief, and the entire record
in this case , and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
-as amended, the National Labor Relations Board hereby adopts, as
l Contrary to the Trial Examiner 's finding, the record does not establish that the union
-activity was in fact strongest among the machinists . However, the record does show
-that the Respondent Employer believed union activity was strongest among this group.
148 NLRB No. 168.