American Coach Co.

National Labor Relations Board - Board Decisions

Feb 26, 1968

169 N.L.R.B. 1065 (N.L.R.B. 1968)

AMERICAN COACH COMPANY
American Coach Company and International Union,
District 50, United Mine Workers of America and
The Newton American Union , Party to the Con-
tract. Case 17-CA-3073
February 26, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 16, 1967, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and.take certain affirmative action, as set
forth in the attached Trial Examiner's 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
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. I 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 finds
merit in certain of the Respondent's exceptions.
Accordingly, the Board adopts the findings of the
Trial Examiner only to the extent consistent
herewith.
1. The Trial Examiner found that the Respond-
ent violated Section 8(a)(2) and (1) of the Act by
unlawfully interfering with the formation and ad-
ministration of The Newton American Union
(herein called the Independent), by reason of the
participation of Dale Bachman, whom the Trial Ex-
aminer found to be a supervisor and agent of the
Respondent. We find merit in the Respondent's ex-
ception to this finding for the reasons set forth
below.2
Bachman has been employed by the Respondent
since December 15, 1955, as a maintenance man
and was appointed group leader of the maintenance
department in March 1956. His primary area of
responsibility is to see to the maintenance of equip-
' in view of our findings herein , we deem it unnecessary to consider
Respondent 's exception alleging that the Trial Examiner improperly al-
lowed the General Counsel to examine Kermit Oursler and Dale
Bachman under Rule 43 (b) of the Federal Rules of Civil Procedure.
2 The Respondent also contends that even if Bachman were found to be
a minor supervisor , his participation in the Union would not be sufficient
to support a finding of interference . In view of our finding that the
evidence was not sufficient to establish that Bachman was a supervisor,
we deem it unnecessary to reach this question.
S The Trial Examiner found that although another employee, Morris
1065
ment. The only employee who works with Bachman
in the maintenance department is Walter Linscheid,
Bachman's helper, who does routine maintenance
work and assists Bachman in making more difficult
repairs. The only evidence offered to show that
Bachman has ever affected Linscheid's employ-
ment status is that 2 or 3 years ago Bachman con-
veyed Linscheid's request for a raise to the plant su-
perintendent. Although Linscheid subsequently
received a raise, there is nothing in the record to in-
dicate that this action was taken on the basis of any
recommendation made by Bachman or, indeed, that
Bachman made a recommendation. The only other
evidence of Bachman affecting the status of an em-
ployee involves the transfer of Dale Brown from
the maintenance department 8 years ago. At that
time Bachman went to the plant superintendent and
complained to him that "Mr. Brown was not capa-
ble of doing the work he was hired to do and if they
wanted to keep him in maintenance, they would
have to transfer me to someplace else, because I
had had it."3
As Bachman is also held responsible for the
cleanliness of the plant, he regularly inspects the
work areas to make sure they have been swept. The
extent of his authority over the two janitors who
sweep the plant is that when one of the janitors is
absent from work, Bachman will either ask the
other janitor to sweep the entire work area, or help
with the sweeping himself; he has the authority, as
do the other group leaders, to allow an employee to
leave work early when sick;4 he may require the
janitors to work up to 30 minutes overtime if they
are unable to finish sweeping during regular hours;5
and on occasion he has told the plant superinten-
dent that janitors were not doing their work
properly. While the record indicates that Bachman
has on at least one occasion discussed the work of
the janitors with the plant superintendent, there is
no indication that any of these discussions ever
resulted in a change of status for any janitor. The
janitors report directly to their work areas, work
without supervision, and follow the same routine
every day.
The Trial Examiner based his finding that
Bachman was a supervisor primarily on the facts
that, he is paid 38 cents an hour more than any
other group leader, is given considerable freedom
to move about the plant, is the only employee with
his own parking space, and exercises authority over
Linscheid and the two janitors. We do not agree. As
Nash, voluntarily quit his job, Bachman was given specific authority to
decide whether Nash should be discharged . The record discloses only that
when Nash left the plant without permission, Plant superintendent Janzen
instructed Bachman to remove Nash 's timecard and hold it until Nash re-
ported back, and that if Nash did not have a valid reason for his absence,
he would be discharged . We do not agree that this evidence establishes
that Nash's discharge was left to Bachman 's independent judgment.
" Bachman has never excused an employee for an entire day.
5 Nash, a former janitor , testified that he was not paid for working over-
time at Bachman's request.
169 NLRB No. 153
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated, the record reflects that Bachman has no
authority to hire, discharge, transfer, lay off,
promote, reward, or effectively recommend action
as to any of these matters.6 While he sometimes
directs the work of other employees, the instruction
he gives such employees is routine.7 Nor do we find
anything in the record to support the Trial Ex-
aminer's finding that, "The rank-and-file employees
undoubtedly associate his interests with those of
management and would tend to view his attitudes
regarding labor organizations as reflecting the senti-
ments of management." Bachman is hourly paid,
punches the same timeclock and has substantially
the same hours, vacations, and conditions of em-
ployment as other employees. While he has at times
reported defective work, his recommendations in
that regard were not solicited." The fact that he
receives slightly higher pay than the other group
leaders merely reflects his superior skill and expe-
rience.9 Moreover, the very nature of his work
makes it necessary for him to move freely around
the plant in order to make repairs and to have an ac-
cessible parking space so that he may leave the
plant, purchase necessary parts and equipment, and
return to work as quickly as possible.
Not only is the record devoid of evidence indicat-
ing that the other employees in the plant considered
Bachman a supervisor, but Nash testified that while
he, was working as a janitor, he was not aware that
it was Bachman's duty to observe his work. In addi-
tion, while Bachman has at most three employees
under his direction, the acknowledged supervisors
in the plant each have authority over about 30 men.
Moreover, while supervisors are generally forbid-
den to "regularly perform work on hourly rated
jobs" under the terms of the existing contract, there
is no such restriction on group leaders, and the
record indicates that Bachman spends most of his
time doing regular maintenance work. Further indi-
cation that the classification of group leader has
historically been considered within the bargaining
unit is the fact that Bachman voted in the previous
certification election without being challenged. On
the basis of the foregoing, and the entire record, we
find that Bachman is not a supervisor. Accordingly,
we conclude that the Respondent has not, by virtue
of Bachman's activities, interfered with the forma-
tion or administration of the Independent in viola-
tion of the Act, and we shall dismiss this aspect of
the complaint.
2. The Trial Examiner found that the Respond-
ent further violated the Act by discriminatory ap-
plication of a no-solicitation rule prohibiting em-
ployees from engaging in union solicitation during
nonworking time on company property when it
failed to enforce this rule against the Independent.
The Board had previously found this rule to be un-
lawful and had ordered the Respondent not to en-
force such a rule.10 While representatives of the In-
dependent did solicit authorization cards in the
plant, the record does not indicate that any solicita-
tion was done during company time or that
representatives of District 50 or any other union
were denied the same privilege. Further, there is no
evidence that the Respondent knew that this sol-
icitation was taking place. Moreover, it was stipu-
lated that the Respondent has not enforced the rule
at any time since the Board's decision finding it un-
lawful. In light of all the circumstances, we find that
the Respondent's failure to enforce the unlawful no-
solicitation rule against the Independent was not
violative of Section 8(a)(2) and (1) of the Act, and
we shall dismiss this aspect of the complaint as well.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entir-
ety.
' See Purity Food Stores ,Inc., 150 NLRB 1523, remanded on other
grounds 354 F.2d. 926 (C.A. 1).
' See Greenfield Components Corp, 146 NLRB 757.
8 Id. at 759.
s As the Trial Examiner pointed out , not only does Bachman repair
breakdowns of machinery , but from time to time he has undertaken to
build special jigs and machines and has even performed construction work
on the plant building ; Bachman has also been working at the plant longer
than all but one other employee
"American Coach Company , 158 NLRB 415, enfd. 379 F 2d. 699
(C.A. 10)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
filed by International Union, District 50, United Mine
Workers of America, herein called District 50, on
November 22, 1966, a complaint, dated June 30, 1967,
was issued alleging that the Respondent, American
Coach Company, herein called the Company, has en-
gaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a)(1) and (2) and Section 2(6) and
(7) of the National Labor Relations Act, as amended. The
complaint, as amended at the hearing, in substance, al-
leges that the Company unlawfully has assisted and has
interfered with the formation and administration of The
Newton American Union, herein called the Independent:
(1) by reason of the participation of Dale Bachman, who
is alleged to be an agent and supervisor of the Respond-
ent, in the affairs of the Independent; (2) by its dis-
criminatory application of a no-solicitation rule; and (3)
while Dale Bachman was actively participating in the af-
fairs of the Independent, by recognizing the Independent
as the exclusive representative for a unit of the Com-
pany's employees and, on March 6, 1967, by entering
into a collective-bargaining agreement with the Independ-
ent. Respondent's answer to the complaint generally de-
nies that it has engaged in the alleged unfair labor prac-
tices. A hearing in this proceeding was held in Newton,
Kansas, on September 6, and 7, 1967. Thereafter, briefs
were filed on behalf of the General Counsel and the
AMERICAN COACH COMPANY
Respondent which have been given careful consideration.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Michigan corporation which maintains
its principal office at Cassopolis, Michigan. Respondent
also maintains a plant at Newton, Kansas, which is the
facility involved in this proceeding, where it is engaged in
the manufacture and sale of mobile homes. During the
course and conduct of its business operations, Respond-
ent annually sells from said plant products valued in ex-
cess of $50,000 to customers located in States other than
the State of Kansas. Respondent admits, and I find, that
it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
District 50 and the Independent are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint herein is that the Company unlawfully
intruded upon the organization and administration of the
Independent by reason of the activities of Dale Bachman
who is allege4,to be a supervisor and agent of the Respond-
ent and that it rendered further unlawful assistance to
the Independent by permitting solicitation of authoriza-
tion cards on behalf of the Independent while maintaining
in effect rules which prohibited employees on company
property from engaging in union solicitation on nonwork-
ing time.
The formation of the Independent and its recognition
by the Company as the exclusive representative of
Respondent's production and maintenance employees
followed unsuccessful efforts on the part of District 50 to
organize Respondent 's Newton plant. On October 21,
1964, a Board-conducted election was held among the
Company's production and maintenance employees at its
Newton plant pursuant to a Stipulation for Certification
upon Consent Election entered into between the Com-
pany and District 50. The Union lost the election.
Thereafter, on September 2, 1965, the Company dis-
tributed among its employees at the plant an "Employee
Policy Manual" which set forth rules against solicitation
and distribution. The next day the Company discharged
employee John M. Zimmerman who was a principal, if
not the chief, organizer among the employees on behalf of
District 50. Unfair labor practice charges were filed in
connection therewith, and a hearing in said proceeding
was held on November 22, 1965. On February 25, 1966,
1 Case 17-CA-2749, 158 NLRB 415.
x N.L.R.B. v. American Coach Company, 379 F.2d 699 (C.A. 10).
The record is devoid of any explanation as to what stimulated the em-
ployees to form an independent union . Kermit Oursler , president of the
Independent , testified that he made the arrangements for the first meeting
of employees which was held to consider the formation of an independent.
In so doing , he testified , "I acted as an agent for the group , I didn't call
them (the meeting) on my own."
4 The authorization slips which were circulated among the employees
1067
the Trial Examiner issued a Decision and Order finding
that the Company had violated the Act by promulgating,
maintaining and enforcing rules which prohibit employees
on company property from engaging in union solicitation
on nonworking time and by discriminatorily discharging
John M. Zimmerman. This Decision was affirmed by the
Board on April 26, 1966.1 The Company failed to comply
with the Decision of the Board and enforcement
proceedings were duly instituted. On July 17, 1967, a
Decree of the United States Court of Appeals for the
Tenth Circuit was issued enforcing the Board's Order.2
It was during the pendency of the foregoing proceedings
that the activities complained of herein occurred.
In the fall of 1966, a group of the Company's em-
ployees, including Dale Bachman, met together with the
object of forming an independent union.3 The meeting
was attended by the president and the secretary of
another independent union which represents employees
who work in a plant in a neighboring city and by John K.
Bremyer, that Union's attorney. For a period of several
days following the meeting, employees were solicited to
sign written authorizations designating the Independent
as their representative.4 Thereafter, a second meeting
was held at which the employees attending, including
Bachman, by vote appointed a five-man board of
directors which included Bachman. The board of
directors at a later meeting among themselves voted for
the officers of the Independent at which time Bachman
was appointed vice president.
The signed authorization slips were turned over to John
K. Bremyer, who was retained by the Independent as its
attorney. Upon the advice of Bremyer, Kermit Oursler,
who had made the arrangements for the Independent's
first meeting and who later was elected a member of the
board of directors and president of the Independent,
telephoned plant manager, Ed Smith, and informed Smith
that "we had enough authorizations for organization and
wanted recognition."5
About 2 weeks after Oursler spoke with Smith, the
Company recognized the Independent. On November
21, 1966, the five directors of the Independent and their
attorney, John K. Bremyer, attended a meeting at the
Company's offices at which the Company's attorney,
William G. Haynes, also was present. Breymer, on behalf
of the Independent, claimed to represent a majority of the
Company's production and maintenance employees in
the same unit in which the Board conducted an election
in October 1964, and requested recognition. The meeting
adjoured in order that a check might be made of the
Union's majority claim. Attorneys Bremyer and Haynes
went to the offices of District Court Judge Sturm. The
latter compared the authorization slips obtained by the
Independent with a list containing 96 names purporting
to compose all employees in the unit for which the Inde-
pendent was requesting recognition. Upon completing
this task Judge Sturm announced that there were 60
authorization slips signed by persons whose names ap-
for signature, reads as follows: "I hereby request membership in The
Newton American Union, and authorize it to be my agent in all negotia-
tions with my employer."
5 Oursler testified that this conversation took place before the Indepen-
dent had elected officers. He further testified that the conversation lasted
about 12 minutes but all he can remember Smith saying was that "I was
making a mistake" and "he would have to turn it over to the powers that
be."
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared on the employee list.6 Thereafter, the Company
accorded recognition to the Independent. Following this
action there were several bargaining sessions between the
parties and on March 6, 1967, the Company and the In-
dependent entered into a collective-bargaining agree-
ment. Representing the Independent in the negotiations
was its board of directors, including Bachman who at-
tended each of the bargaining sessions.
In addition to serving as an officer of the Independent
and a member of its negotiating committee,7 Bachman
materially assisted in the formation of the Independent.
He testified that he paid for the rental of the premises
used for one of the Independent's meetings. Further, dur-
ing the period when authorization slips were being sol-
icited, both the unsigned and the executed slips were
stored in a box which was kept on a shelf in the main-
tenance room (of which he was in charge). The employees
who engaged in such solicitations took blank slips from
the box and deposited the signed slips in the box. Because
custody of the authorization slips was lodged with
Bachman, the solicitors must have assumed that
Bachman was promoting the solicitation of authorizations
on behalf of the Independent. Although Bachman
testified that "[a]nyone who works in a plant of that size
knows everything that is going on," inconsistently, he
also testified that "[t]o my knowledge [management
representatives] did not" know of the existence of the
box Also, Bachman personally solicited employees to
sign authorization slips. He was able definitely to name
three employees whom he had solicited but could not
deny that it might have been as many as 10 to 15.8 Among
the employees he solicited was his helper, Walter
Linschied.9 Bachman denied knowledge of any company
rule which prohibited union solicitation on company
property.'°
The principle is well established that an employer who
assists, whether directly or indirectly through the par-
ticipation of supervisors or employees who may not be
supervisors but whose activities will be identified as ex-
pressions of their employer's desires, in the formation or
administration of a labor organization violates the Act.
The applicable considerations are set forth in
International Association of Machinists, v. N.L.R.B.,
311 U.S. 72, 78-81. There the Court stated:
Slight suggestions as to the employer's choice
between unions may have telling effect among men
who know the consequences of incurring that em-
ployer's strong displeasure.
... Petitioner's argument is that since these men
were not supervisory their acts of solicitation were
not coercive and not attributable to the employer.
The employer, however, may be held to have
assisted the formation of a union even though the
acts of the so-called agents were not expressly
authorized or might not be attributable to him on
6 Neither the Company nor the Independent was able to find and to
produce at the hearing the employee list or the authorization slips which
were used by Judge Sturm in making the check
' The Independent's negotiating committee made several reports to its
membership regarding the progress of negotiations with the Company
Bachman, among other members of the committee, spoke at these
meetings . Bachman testified that he made reports to the membership
about health insurance and about the management prerogatives clause in
the proposed contract.
strict application of the rules of respondent superior.
We are dealing here not with private rights
(Amalgamated Utility Workers v. Consolidated
Edison Co., 309 U.S. 261) nor with technical con-
cepts pertinent to an employer's legal responsibility
to third persons for acts to his servants but with a
clear legislative policy to free the collective bargain-
ing process from all taint of an employer's compul-
sion, domination, or influence. The existence of that
interference must be determined by careful scrutiny
of all the factors, often subtile, which restrain the em-
ployees' choice and for which the employer may
fairly be said to be responsible. Thus, where the em-
ployees would have just cause to believe that the sol-
icitors professedly for a labor organization were act-
ing for and on behalf of the management, the Board
would be justified in concluding that they did not
have the complete and unhampered freedom of cho-
ice which the Act contemplates. Here there was
ample evidence to support that inference. As we
have said, Fouts, Shock, Dininger and Bolander all
had men working under them. To be sure, they were
not high in the factory hierarchy and apparently did
not have the power to hire or to fire. But they did ex-
ercise general authority over the employees and were
in a strategic position to translate to their subor-
dinates the policies and desires of the management.
In this case, Bachman's activities on behalf, and in
furtherance, of the interests of the Independent were suf-
ficiently extensive as to render his assistance unlawful if
his conduct in such regard is attributed to the Respond-
ent. rr
Dale Bachman has been working at the Company's
Newton plant longer than anyone, including all manage-
ment personnel except Roscoe Baker, the purchasing
agent. Bachman was hired on December 15, 1955, before
construction of the plant had been completed. About
March 1956, when the Company began its production ac-
tivities, Bachman was appointed group leader of the
maintenance department and has held the same position
continuously since that date.12 He is hourly paid and
punches a timecard. His primary areas of responsibility
are "[t]o see to the maintenance of equipment, cleanli-
ness of the plant "
With respect to maintenance, Bachman's duties involve
the normal activities concerned with keeping mechanical
equipment functioning and the repair of such equipment.
In addition, he builds jigs and other machines. During
most of the time that Bachman has been working for the
Company he has been directly assisted by one other em-
ployee. For the past 6 years Walter Linschied has been
employed in the maintenance department as Bachman's
helper. According to Bachman, Linschied does certain
routine maintenance work with no direct day-to-day su-
pervision. In addition, Linschied assists Bachman in
doing repair work and when assigned by Bachman
Linschied alone will repair machines. If Linschied
' The inability of the Independent to produce the authorization slips
prevented any effective examination of Bachman as to which employees
he might have solicited in addition to the three whom he named.
9 Bachman testified that he did not solicit any janitors to sign authoriza-
tion slips
1° Kermit Oursler likewise testified that he had no knowledge of any
such rule
"Anchorage Businessmen's Assn, 124 NLRB 662, 665-667, enfd
289 F 2d 619 (C.A 9); Local 636 v N.L R.B , 287 F 2d 354 (C A D_C )
12 The various production departments also have group leaders
AMERICAN COACH COMPANY 1069
receives a complaint about an equipment failure when
Bachman is not in the maintenance room Linschied some-
times will make the repair without first consulting
Bachman. However, he refers to Bachman all complaints
which he is unable to handle.
There is evidence in the record of only two instances
where Bachman took action which substantially affected
the status of his helper. About 2 or 3 years ago, Linschied
complained to Bachman that he was being paid 10 cents
less than the production workers' rate and that he should
receive an increase to bring his rate up to that of the
production employees. Bachman relayed this complaint
to plant Superintendent Willard Janzen and recom-
mended that Linschied should get a raise. Shortly
thereafter Linschied was given an increase. About 8
years ago, Bachman complained to the plant superinten-
dent that Dale Brown, who then had been working in the
maintenance department for about a year and a half, did
not have the competency to do the work expected of him
as a maintenance man, and asked that Brown be trans-
ferred out of the maintenance department. Several days
later Brown was transferred.
Although Bachman is charged with responsibility for
the cleanliness of the plant, the two or three janitors, or
sweepers, who do the actual plant cleanup work are not
deemed to be in the maintenance department.13 The work
of the janitors is routine. Morris H. Nash, a former jani-
tor, testified that he did not receive instructions from day
to day with regard to his duties because "I knew what to
do." However, Bachman designates the areas of the plant
where each janitor is to work, regularly inspects the areas
to be sure that the work is done, and will reprimand ajani-
tor who is deficient in the performance of his work.14
When a new janitor is hired he is informed by the plant su-
perintendent that Bachman will tell him what to do. In
case a janitor is absent from work Bachman may assign
another janitor to cover some of the area for which the ab-
sent janitor is responsible. As it is a policy established by
the plant superintendent that debris shall be removed and
the plant shall be clean by the end of each workday,
Bachman has the authority, which he regularly exercises,
to require the janitors to work overtime in order to finish
their cleanup work. However, if the amount of overtime
will exceed 30 minutes Bachman first obtains permission
from the plant superintendent before assigning the over-
time work to the janitors.
While direct authority to hire, discharge, reward, or
discipline janitors may not have been given to Bachman,
the latter testified that plant superintendent Willard jan-
zen "asks me how [the janitors] are getting along and if
they are doing their work correctly." Bachman calls to
the attention of the plant superintendent the fact that a
janitor is not doing his work properly. Thus, Bachman
testified that he told the plant superintendent that a
sweeper, Morris H. Nash, was undependable and
Bachman was instructed to speak to Nash to see if he
could not bring his attendance up to par. Several times
Janzen asked Bachman whether janitors deserve raises.15
Bachman, as well as other group leaders, has authority,
when an employee reports that he is sick, to excuse the
employee from work.
In addition to the foregoing the record shows that
Bachman is paid 38 cents an hour, or 17 per cent, more
than any other group leader. While all other group leaders
work under the direction of supervisors who in turn
answer to the plant superintendent, there is no immediate
supervisor between Bachman and the plant superintend-
ent. Furthermore, Bachman has considerable freedom
not only to roam about the plant in connection with the
performance with his regular work but also to leave the
plant premises. This is so much the case that Bachman is
the only employee who has a reserved parking space,
near a plant doorway, assigned to him so that it will be
more convenient for Bachman to leave and to return to
the plant during normal working hours. While it may be in
the interest of the Company to permit Bachman such
freedom of movement and flexibility in deciding for him-
self what tasks he will do and when he will do them,
reposing such discretion in Bachman indicates that he oc-
cupies a position of special responsibility and trust with
the Company -a sign which undoubtedly does not go un-
recognized by the other employees of the Company.
Although the evidence concerning the relationship of
Bachman to his helper alone might not constitute proof of
his supervisory status, when his authority over the jani-
tors is added thereto any doubt as to his supervisory
status is dispelled.16 Furthermore, as the employee with
the greatest service longevity at the plant, not excluding
management personnel other than the purchasing agent,
with almost unrestricted freedom of movement and with
largely unsupervised responsibility for doing nonroutine
jobs,17 the rank-and-file employees undoubtedly as-
sociate his interests with those of management and would
tend to view his attitudes regarding labor organizations as
reflecting the sentiments of management.
13 No testimony was offered as to which department the janitors are as-
signed It would appear from the evidence adduced at the hearing that un-
less Bachman is their supervisor they either work without direct supervi-
sion or are subject to the direct supervision of the plant superintendent
14 Thus, Bachman testified that "if I saw a man working who is not
doing his work as I believe it should be done or is leaving areas undone, I
go to him and tell him that we expect him to take care of his area or to do
his work better "
15 Testimony was adduced on behalf of the General Counsel purporting
to show that Bachman discharged Morris H Nash. Upon considering all
the evidence adduced with respect to the matter, I find that Nash was not
discharged but voluntarily quit his job However, while the situation did
not come to pass, at least in the case of Nash, plant Superintendent Janzen
gave to Bachman specific authority to decide whether Nash should be
discharged. According to Bachman, during the afternoon of May 17,
1966, a report was made to him that Nash could not be found Bachman
checked Nash's timecard and found that it had been punched out at ap-
proximately noon Bachman reported to Plant Superintendent Janzen that
Nash had again left the premises without informing anyone of his inten-
tions. Janzen instructed Bachman to remove Nash 's timecard from the
rack and hold it until Nash reported in and if Nash did not have a valid
reason for his absence Nash would be discharged On Wednesday morn-
ing, May 18, 1966, after Nash had come to the plant and could not find his
timecard , he sought out Bachman who asked him where he had been the
previous day Nash replied that he had gone to the Marion Dam and had
obtained a job beginning the following Monday, at $2 50 per hour.
Bachman then said, "You mean you quit yesterday noon to go look for a
job." Nash responded, "I guess so " Bachman then reported to Janzen
that Nash had quit on Tuesday noon Later the same morning when
Bachman overheard Nash suggesting to a number of employees that they
should give up their jobs with the Company and go to Marion to get better
paying positions , he told Nash to leave the premises.
16 In finding that Bachman is a supervisor I have not overlooked the
evidence that he voted in the 1964 election without challenge
17 Not only does Bachman repair breakdowns of machinery, which ac-
tivities do not fall into any orderly or repetitive pattern, but from time to
time he has undertaken to build special jigs and machines and has even
performed construction work on the plant building Bachman testified that
at times, such as when he was engaged in some major machine construc-
tion work, production employees are assigned to work under his direction
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The participation of Bachman, whom I find is a super-
visor and agent of the Company, in the formation and ad-
ministration of the Independent constituted unlawful in-
trusion on the part of Respondent in the self-organization
activities of its employees in violation of Section 8(a)(2)
and (1) of the Act. Such violation of the Act has been
compounded by the Company recognizing the Independ-
ent as the exclusive representative of its production and
maintenance employees although the Independent,
because of the participation of Bachman in its affairs, was
not the freely chosen representative of its employees and
negotiating, entering into, and maintaining in effect, a col-
lective-bargaining agreement with the Independent while
Bachman was a member of the Independent's negotiating
committee, thereby, in effect, placing the Respondent "on
both sides of the bargaining table."18 Further, although
Bachman denied personal knowledge of the existence of
the no-solicitation rule found to be unlawful in Case
17-CA-2749, 158 NLRB 415, his solicitation of em-
ployees on behalf of the Independent and his knowledge
of similar solicitations by other employees on company
property while such rule had not been withdrawn is,
nevertheless, attributable to the Respondent. Ac-
cordingly, I also find, as alleged in the complaint, that the
Respondent has further violated Section 8(a)(2) and (1) of
the Act by permitting solicitation on behalf of the Inde-
pendent at a time when said no-solicitation rule had not
been rescinded.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations,
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 bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent has violated Section
8(a)(1) and (2) of the Act by according recognition to The
Newton American Union as the exclusive collective-bar-
gaining representative of certain of its employees and by
entering into, maintaining, and enforcing in favor of the In-
dependent the collective-bargaining agreement entered
into with the Independent on March 6, 1967. In ac-
cordance with the Board's established policies in such
cases, it will be recommended that the Respondent
withdraw and withhold all recognition from the Independ-
ent as the collective-bargaining representative of its em-
ployees and cease giving effect to its March 6, 1967, con-
tract with the Independent, or to any modifications, ex-
tensions, supplements, or renewals thereof, unless and
until the Independent shall have demonstrated its exclu-
sive majority representative status pursuant to a Board-
conducted election among Respondent's employees in a
unit or units appropriate for the purpose of collective bar-
gaining. Nothing in this recommendation, however, shall
be construed to require the Respondent to vary or aban-
don any wage, hour, seniority, or other substantive fea-
ture of the relationship between Respondent and its em-
ployees, which may have been established pursuant to the
aforesaid agreement, or to prejudice the assertion by the
employees of any rights they may have under such agree-
ment.
Upon the basis of the foregoing findings of facts and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By assisting, contributing support to, and interfering
with the formation and administration of the Independ-
ent, the Respondent has engaged, and is engaging, in un-
fair labor practices within the meaning of Section 8(a)(2)
of the Act.
2. By entering into, maintaining, and enforcing since
March 6, 1967, a collective-bargaining agreement in
favor of the Independent, although the Independent was
not the lawfully and freely chosen representative of
Respondent's employees, Respondent further has en-
gaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a)(2) of the Act.
3. By reason of its foregoing conduct Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed by Section 7 of the Act
and thereby has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
18 N L .R.B v. Mt. Clemens Metal Products Company, 287 F 2d 790,
791 (C A. 6)