Clapper's Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 324 (N.L.R.B. 1970)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clapper's Manufacturing, Inc. and United Brotherhood
of Carpenters and Joiners of America, Carpenters
District Council of Western Pennsylvania,
AFL-CIO
Clapper's Manufacturing, Inc. and United Brotherhood
of Carpenters and Joiners of America, Carpenters
District Council of Western Pennsylvania,
AFL-CIO and Clapper's Employees Committee,
Party in Interest
Clapper's Manufacturing, Inc. and United Brotherhood
of Carpenters and Joiners of America, Carpenters
District Council of Western Pennsylvania,
AFL-CIO. Cases 6-CA-4423, 6-CA-4655, and
6-RC-4801.
October 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On June 11, 1970, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, 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 also found that the Respondent
had not engaged in certain other unfair labor
practices and recommended that these allegations of
the consolidated complaint be dismissed. In addition,
the Trial Examiner found that the Respondent had
engaged in objectionable conduct prior to the second
election held on June 20, 1969, in Case 6-RC-4801
and recommended that the election be set aside.'
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision with a supporting brief.
The General Counsel filed limited cross-exceptions
with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-excep-
tions, briefs, and the entire record in these cases, and
hereby adopts the findings,2 conclusions,3 and recom-
mendations of the Trial Examiner, as modified herein.
The Trial Examiner found that Respondent's
President Clapper, during certain question and
answer periods following speeches to the employees,
clearly conveyed the impression that a strike was
inevitable if the employees voted for the Union, and
that by these remarks concerning strikes Clapper
coerced the employees in violation of Section 8(a)(1)
of the Act. For the reasons expressed by the Trial
Examiner, we agree with this finding. However, as we
have found that certain of Clapper's remarks were
coercive, we find it unnecessary to determine and we
do not pass upon whether other remarks concerning
job classifications and the future of existing employee
benefits were also violative of Section 8(a)(1).
The Trial Examiner found that Milton Sines, a
supervisor, during a conversation with employee
Thelma Sines in October 1968 had said nothing
coercive to her. In so finding, the Trial Examiner
relied on a conversation in October 1968 that Milton
Sines had with Thelma Sines and coemployees, Jane
Werner and Ruth Tempia. The Trial Examiner found
that Milton Sines' version as to what was discussed, as
supported by the testimony of employees Werner and
Tempia, was the more exact, and that Thelma Sines
misinterpreted what was discussed, probably because
of the atmosphere that was then prevalent in the
plant. We find merit in the General Counsel's cross-
exception to the Trial Examiner's reliance on this
conversation and his failure to consider another
conversation in October 1968 between Milton Sines
and Thelma Sines.
Thelma Sines testified that in October 1968, when
she asked Milton Sines what she was supposed to do
when she ran out of work, he replied that if the Union
came in that she would be out of work altogether as
Building No. 2 would be closed down, and that
anybody else pushing for the Union would be the first
to go when Building No. 2 would be closed down.
Thelma Sines further testified that there were no
witnesses to this conversation.
Milton Sines testified that he had two conversations
1 This election was held pursuant to an Agreement for Consent
Election . Accordingly, the Trial Examiner recommended that Case
6-RC-4801 be severed and transferred to the Regional Director for Region
6 for further processing with the recommendation that he set aside the
second election.
2 The Respondent has excepted to certain of the Trial Examiner's
credibility resolutions . After a careful review of the record, we conclude
that the Trial Examiner's credibility findings are not contrary to a clear
preponderance of all the relevant evidence . Accordingly, we find no basis
for disturbing those findings . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 363 (C.A. 3).
3 Although at page 13 of his Decision, the Trial Examiner concluded
that statements by Dale Clapper in the early part of October 1968 to
employees Herman and Thelma Sines constituted threats, and also,
individual questioning by Walter Lenhart, Respondent's general manager,
of employees Patricia Ross and Roger Wahl on June 20, 1969 , constituted
unlawful interrogations , he inadvertently failed to specifically find that all
of the aforesaid conduct constituted Section 8(a)(1) violations.
Accordingly, we find that by the aforesaid conduct the Respondent
committed violations of Section 8(axl) of the Act.
186 NLRB No. 52
CLAPPER'S MANUFACTURING 325
with Thelma Sines, one while employees Werner and
Tempia were present, and one alone with Thelma
Sines , and that during the latter conversation he
discussed the possibility that Building No. 2 would be
shut down if it became necessary, since it was the least
profitable. Although during the conversation where
employees Werner and Tempia were present, accord-
ing to Milton Sines, there was no discussion as to the
shutting down of Building No. 2, there was no
contradiction by Milton Sines to that part of Thelma
Sines' testimony that he had stated that anybody else
pushing for the Union would be the first to go when
Building No. 2 would be closed down.
On the basis of the above, we agree with the General
Counsel that the Trial Examiner failed to consider the
conversation in October 1968, where only Milton
Sines and Thelma Sines were present. In so agreeing,
we rely on Milton Sines' admission that there was
such a conversation between them, his admission that
the possibility of closing down Building No. 2 was
discussed, and that such a closing down, in essence,
was made about the same time by Dale Clapper to
employees Herman and Thelma Sines under circum-
stances which we have found herein to have constitut-
ed threats in violation of Section 8(a)(1) of the Act.
Moreover, we deem significant the failure of Milton
Sines to contradict that part of Thelma Sines'
testimony, supra, that anybody else pushing for the
Union would be the first to go when Building No. 2
would be closed down. In these circumstances, we
conclude that Milton Sines made the remarks as
alleged by Thelma Sines and that they were threats to
impose economic retribution on active Union sup-
porters. Accordingly, we find that by such conduct
the Respondent violated Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following conclusion of law for the
Trial Examiner's third conclusion of law:
By threatening employees with reprisals if they
selected the Union as their bargaining representative,
by interrogating employees as to their union sympa-
thies and activities and the union sympathies of other
employees, by making implied promises of benefit to
employees, by creating the impression among em-
ployees that Respondent was engaged in the surveil-
lance of their union activities, and by stating to
employees that the selection of the Union as their
bargaining representative would inevitably lead to a
strike, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that the Respondent, Clapper's
Manufacturing, Inc., Meyersdale, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as so modified:
1. Delete the phrase "Interrogating employees
concerning their union activities and their sympathies
toward the Union" in paragraph 1(a), and substitute
therefor the phrase "Interrogating employees con-
cerning their own or other employees' umon activities
or union sympathies, stating to employees that the
selection of a union as their bargaining representative
will inevitably lead to a strike".
2. Delete the first paragraph in the body of the
Notice and substitute therefor the paragraph "WE
WILL NOT question any employees about their own
or other employees' union activities or sympathies."
3. Insert as the second paragraph in the body of
the Notice "WE WILL NOT tell our employees that
the selection of a union as their bargaining representa-
tive will inevitably lead to a strike."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D . FRIEDMAN , Trial Examiner : Upon a charge,
first amended charge and second amended charge filed by
United Brotherhood of Carpenters And Joiners of Amen-
ca, Carpenters District Council of Western Pennsylvania,
AFL-CIO, herein called the Union , on November 26, 1968,
January 13, 1969, and February 20, 1969 , respectively, and
upon a charge and a first amended charge filed by the
Union on July 8, 1969 and October 7, 1969, respectively,
the Regional Director for Region 6 of the National Labor
Relations Board , herein called the Board , issued an Order
of Consolidation, a consolidated complaint and notice of
hearing on December 29, 1969 , on behalf of the General
Counsel of the Board against Clapper's Manufacturing,
Inc., herein called the Respondent or the Company,
alleging violations of Section 8(a)(1) and (2) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.), herein called the Act.
Thereafter, on December 31, 1969 , the Regional Director
for Region 6 issued his Report on Objections filed by the
Union in Case 6-RC-4801 in which he found that the
objections raised substantial and material issues involving
substantially the same issues involved in Cases 6 -CA-4423
and 6-CA-4655. Accordingly , on the same day, December
31, 1969 , the said Regional Director issued an order further
consolidating all of these aforementioned cases for hearing
and determination by a Trial Examiner.
In its duly filed answer to the aforementioned consolidat-
ed complaint, the Respondent, while admitting certain
allegations of the complaint , denied the commission of any
unfair labor practices.
Pursuant to notice , a hearing on the consolidated cases
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was held before me at Somerset, Pennsylvania, on March 3
through 6, 1970. All parties were represented and were
afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs. Briefs
were filed by the General Counsel and the Respondent.
Upon consideration of the entire record, including the
briefs of the parties, and upon my observation of each of
the witnesses as they appeared before me, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, is engaged
at Meyersdale, Pennsylvania, in the manufacture and sale
of plastic laminated furniture tops and panels. During the
12-month period immediately preceding the issuance of
the consolidated complaint herein, a representative period,
Respondent received goods and materials of a value in
excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania for use at its Meyersdale,
Pennsylvania, facility.
It is admitted, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that United Brotherhood of
Carpenters and Joiners of America, Carpenters District
Council of Western Pennsylvania, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
As hereinafter discussed, I find and conclude that
Clapper's Employees Committee or Group Conference, as
hereinafter variously called, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
In the spring of 1968 the Union began an organizational
drive among the Respondent's production and mainte-
nance employees. Thereafter, the Respondent commenced
a campaign to counteract the Union's drive. The Union and
the Respondent both waged vigorous and aggressive
campaigns marked by claims and counterclaims made in
various written communications to the Respondent's
employees and by speeches made by the Respondent's
President Dale Clapper. Thus, in the spring of 1968 while
the Union circulated a number of pieces of campaign
literature, Clapper read a speech to all his employees in
which he emphasized the Respondent's vigorous opposition
to the unionization of his employees. On September 10,
1968 the Union filed a petition with the Board for an
election among the aforesaid employees. Thereafter on
September 26, November 18 and November 20, 1968,
Clapper addressed various groups of employees from
prepared manuscripts. In the meantime, on October 8,
1968, the Respondent and Union entered into a consent
election agreement. Pursuant to this agreement an election
was held on November 22, 1968. As stated above, both
before and after this consent agreement and up to the time
of election, the Union literally deluged the employees with
campaign literature while Clapper made the three speeches
above noted.
In the election held November 22, 1968, the Union was
defeated. The tally of ballots shows that 86 votes were cast
against the Union, 57 votes for the Union while 8 ballots
were challenged.
Thereafter, on November 26, 1968 the Union filed
objections to the election. At the same time, the Union also
filed the first charges in Case 6-CA-4423. On March 18,
1969, pursuant to a stipulation entered into by the parties,
the Regional Director for Region 6 set aside the election
and ordered a new one to be held on June 20, 1969 under
the terms of the original consent election agreement.
Thereafter the Union and the Employer again entered upon
vigorous campaigns in which the Union distributed a
quantity of campaign material and the Respondent also
issued antiunion letters to his employees in the latter part of
June 1969 before the second election . After the first election
was set aside and the second election set, the Respondent
through President Clapper helped form what is herein
referred to as the Employees Committee or the Group
Conference. In addition, on June 19, 1969, the day before
the second election, Clapper addressed his employees with
the aid of a written text. After his speech, which was given
to all of the employees except the employees in the night
shift in one building, a question and answer period
followed.
As scheduled, on June 20, 1969 a rerun election was held.
The Union again was defeated, 67 votes being cast against
the Union, 56 votes for the Union, and 9 ballots being
challenged. The Union filed objections to the rerun election
and these objections were consolidated for hearing with the
two unfair labor practice cases which are the subject of this
proceeding.
The Union and the General Counsel allege generally, and
the complaint asserts, that the conduct of the Respondent's
president and other supervisory personnel during the
campaign prior to the first and second elections constitute,
in the main, the basis for the charges and objections filed in
this proceeding.'
More specifically, the complaint herein alleges, in
substance, that the Respondent, through Clapper and other
company supervisors and officials, unlawfully interrogated
employees concerning their union activities, created the
impression of surveillance of employees union activities,
threatened reprisals and closing of part of the plant in the
event of union success and made promises of benefit to
induce employees to reject the Union.
The complaint further alleges that the Respondent
unlawfully formed, assisted, and dominated The Group
Conference of Employees Committee in violation of
Section 8(a)(2) of the Act.
The Respondent's answer admits the jurisdictional
allegations of the complaint but denies each and every
allegation concerning the alleged violative conduct of the
r The objections however, which are being considered here are only
those which were filed subsequent to the second election on June 20, 1969.
CLAPPER'S MANUFACTURING
Respondent. With regard to the allegation of assistance and
domination, the answer also alleges that the so called
Group Conference was not a labor organization within the
meaning of the Act.
Thus, broadly, the issues framed by the pleadings are:
1. Did the Respondent interfere with, coerce, or
threaten its employees in the manner set forth above, in
violation of Section 8(a)(1) of the Act?
2. Did the Respondent form, assist, and dominate the
employees' organization known as The Employees Com-
mittee or Group Conference?
3. As is usual in cases of this type basically underlying
all of the foregoing issues are primary issues of credibility of
the various witnesses.
B. Interference, Coercion, and Restraint
1. Individual incidents
Heretofore, I have alluded to the vigorous manner in
which the Union and the Respondent pressed their
respective campaigns. Much that was said and much of the
written material circulated by each of the parties was purely
factual, but a certain quantity was accusatory and at times
acrimonious. Each party accused the other of lack of
candidness and, indeed, of outright misrepresentation. To
say that feelings ran high would be an understatement. It
was in this atmosphere, marked by the hurling of verbal
brickbats, that the employees of the Respondent were made
aware of the Union's and Respondent's strong feelings
toward one another. And it was in this atmosphere that the
events, below described, occurred.
Sometime early in October 1968, President Dale Clapper
had a conversation with employee Herman Sines at the
railroad tracks bordering the plant. Before this conversa-
tion, Clapper had had a conversation with Thelma Sines,
the wife of Herman Sines, who was also an employee of
Respondent. During this earlier conversation the problem
of seniority had come up and Mrs. Sines was concerned, as
she was one of the newer employees. Clapper attempted to
explain to her what would happen if the Union came in and
job classification and strict seniority were instituted.
After Clapper had spoken to Mrs. Sines and had left her,
he noticed that Herman Sines was at the latter's pickup
truck. He went over to Sines and asked the latter, among
other things, what Sines thought "about this union
business." Sines answered that he thought the Union was a
good thing inasmuch as wages were rather low. Then the
conversation turned to the time that Herman Sines had
been a supervisor. After that the conversation again turned
to the question of classification and seniority. Clapper
attempted to show Sines, who by this time was accompa-
nied by his wife, that classification might work to the
detriment of Mrs. Sines who had only been an employee of
the Respondent for a short period of time. He also
attempted to show how super seniority could affect
2 All of the above are from credited portions of the testimony of
Clapper and Herman and Thelma Sines Clapper admitted, in effect, that
he asked Sines what the latter thought about the Union. In Clapper's words
he asked Sines "the usual questions concerning Union or no Union"
However, Clapper denied that he told Sines that building 2 would be
closed down in the event the Union were successful . I was much impressed
327
employees who had been in the Respondent's employ for a
longer period of time. Clapper explained that with super
seniority the person with super seniority who had been in
the employ of the Respondent only as long as Mrs. Sines
could outrank Mr. Sines who had been in the employ of the
Respondent for 3 or 4 years. However, during the
conversation and during this discussion of classification
and seniority Clapper asked Sines what the Union could
give the latter that Clapper could not. Clapper said that all
the Union could do would be to get them 3 cents an hour to
cover the dues. Then he stated that if the Union were to
come into the plant it meant that the Sines would be the
first ones out. This was so because plant number 2 where
Sines and his wife worked would be closed down inasmuch
as Clapper was not making enough money on that
operation to keep it going should the Union come in.2
Evidently, during the campaign, there was much
discussion among the employees concerning classification
and possible layoffs, especially in building number 2 of the
Respondent's plant, which building performed special work
and not general production work as was performed in other
buildings of the Respondent's plant. Evidently, also, the
operation of building number 2 was the least profitable of
all of the Respondent's operations. During the month of
October, 1968 work in building 2 was rather slow.
According to Thelma Sines, she had run out of work and
had asked her supervisor, Milton Sines, her brother-in-law,
what she was supposed to do. In answer, according to
Thelma Sines, Milton Sines replied that if the Union came
in, Thelma Sines would be out of work altogether because
building 2 would be closed down. According to this witness,
Milton Sines also said that anybody else that was "pushing
for the Union" would be the first to go when building 2
would be closed down.
Milton Sines testified, in substance, that at that particular
time work was rather slow in building number 2.
Accordingly, when employees Jane Werner and Ruth
Tempia requested time off he gave them time off and was
glad to do so in order to save the Respondent money.
However, these two ladies and Thelma Sines evidently had
some sort of misunderstanding regarding this time off and
in order to clear the matter up Sines called all three of them
together and discussed the situation with them. He
explained that he had sent no one home for lack of work
and that he had no intention of doing so. According to
Milton Sines he said that if it did come to the point where
he had to send somebody home, however, that it would be
Thelma Sines because of the fact that she was the newest
employee and the other employees had seniority over her.
Milton Sines' version of this conversation is supported by
the testimony of both Jane Werner and Ruth Tempia. I find
and conclude that the version of Milton Sines, Jane
Werner, and Ruth Tempia is the more exact and that
Thelma Sines misinterpreted what Milton Sines had said
with the manner in which Sines and his wife testified Additionally, I note
that Sines is no longer working for the Respondent and his testimony,
therefore, would, in my opinion, be more objective than that of Clapper
who was very much concerned with the outcome of the proceeding
Accordingly, I credit those portions of Sines' testimony which are in
conflict with the testimony of Clapper
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
due, probably, to the atmosphere that was then prevalent in
the plant.3 Accordingly, I do not find that in this
conversation Milton Sines said anything coercive to
Thelma Sines.
Ex-employee Joseph Faidley testified that on November
18, 1968 , following a speech by Clapper in building number
1, Faidley asked Clapper whether the latter would invite the
Union into the plant and have a panel discussion in front of
the employees to let the employees hear both sides of the
story. Clapper did not answer. On November 20, after
Clapper gave another speech to the employees, Faidley
again asked Clapper the same question. According to
Faidley, Clapper answered "don't ask me why, but if the
Union came in I might lose my job due to my union
activities."
Clapper, in testifying, could not remember whether
employee Faidley asked him why the Union could not
come into the plant to have a panel discussion. However,
Clapper denied completely that he told Faidley that the
latter could lose his job if the Union came in because of
Faidley's union activity.
Faidley, in his testimony and on cross-examination stated
first that only his supervisor was present when he asked
Clapper the question regarding the panel discussion.
However, on further pressure by Respondent 's counsel
Faidley stated that all of the employees were present. Yet,
not a single employee testified in corroboration of Faidley's
testimony in this respect. A statement to the effect that an
employee could lose his job because of his union activities
would certainly have made an impression on the employees
present . However, none came forward to state that such a
threat was made. Under all of the circumstances and upon
my observation of Faidley and Clapper in this particular
instance, I find and conclude that the statement was not
made and that Clapper did not threaten Faidley with loss of
his job because of Faidley's union activity.
All of the foregoing events occurred before the first
election held in November, 1968. The incidents or alleged
incidents which follow are alleged to have occurred prior to
the second election which was held June 20, 1969.
On the night of June 19, 1969 Clapper engaged employee
Alfred Murray in a conversation. Clapper asked Alfred
Murray how the latter thought the election was going to go
and Murray answered that he did not know. Then Clapper
asked Murray about a couple of other employees and how
they were going to vote. Murray again answered that he did
not know. Clapper mentioned specific names of individuals
in this conversation whose union sympathies he sought to
find out. Then Clapper asked if Murray would talk to some
of these employees and Murray answered that he could not
talk to any of them.
Clapper, in testifying, admitted that he asked Murray
concerning "questions concerning the union or no union."
Clapper also admitted that he asked Murray how the latter
thought several other employees felt about the union. He
testified that Murray stated that he could not tell Clapper.
Thus, I find and conclude, that on the night before the
election in June, 1969, Clapper inquired of Murray as to the
latter's union sympathies and the union sympathies of other
employees. I further find that he also asked Alfred Murray
to talk to some of the employees on behalf of the
Respondent.
Employee Morris Murray testified in the same vein as did
Alfred Murray. He stated that the night before the election
on the night shift in building number I Clapper asked him
how he was going to vote. Murray replied that he had not
made up his mind. Then, according to Morris Murray,
Clapper asked the latter how he thought a fellow employee,
Gill Mason, was going to vote.
Clapper denied in testifying that he had had any
conversation whatsoever with Morris Murray on the night
alleged. Respondent then introduced into evidence business
records, which I accept and credit, to the effect that Morris
Murray did not work on the night shift on the night in
question and also that employee Gill Mason had left his job
with the Respondent 2 months before the date in question.
Accordingly, and from my observation of both Morris
Murray and Dale Clapper in this instance, I find and
conclude that Clapper did not interrogate Morris Murray
as alleged. I am further strengthened in this conviction by
the forthright manner in which Clapper admitted interro-
gating employee Alfred Murray.
On the day of the election, former employee Patricia Ross
was approached by general manager Walter Lennart. This
occurred on the top floor of building number 1. Ross had
not as yet voted. Lenhart asked Ross for the latter's support
in the election and then asked Ross how the latter' s sister-
in-law, Billie Jean Bowers, was doing. It seems that Bowers
had recently been transferred from the glue gun in building
number 1 to a job in building number 3. Ross told Lenhart
that Ross' sister-in-law did not like her work in building
number 3, that the lacquer thinner, with which Bowers
worked, made her sick. Lenhart then told Ross that if the
election went right Lenhart would see what he could do
about bringing Bowers back to building number 1 in her
former job. Then Lenhart asked Ross if there was anyone
else in the plant that Ross thought Lenhart should talk to.
He further asked Ross how the latter thought the election
was going to go?
General Manager Lenhart also on the morning of the
election of June 20, 1969, engaged employee Roger Wahl in
a conversation before the latter voted. Lenhart informed
Wahl that Lenhart would be going around to the various
buildings in order to get information from other employees
as to how they felt their buildings were going to vote. Then
Lennart asked Wahl how Wahl felt building number 5 was
going to go. Wahl answered that he thought it was going to
go for Clapper.5
2. The speeches
It is undisputed that Clapper gave three speeches to the
employees concerning the Union. Each time he gave the
speeches he proceeded in somewhat the same manner. As
heretofore alluded to, the Respondent's plant consists of six
3 To the extent that I credit a witness only in part, I do so upon the 4 From the uncontroverted credited testimony of Ross. Lenhart did not
evidentiary rule that it is not uncommon "to believe some and not all of a testify . I make no inference one way or the other with regard to Lenhart's
witnesses' testimony ." N.LR.B. v. Universal Camera Corp., 179 F.2d 749, failure to testify.
754 (C.A. 2). 1 From the uncontroverted credited testimony of Roger Wahl.
CLAPPER'S MANUFACTURING 329
buildings, the first five of which are involved in production,
the sixth being devoted to administration and other offices.
In each speechmaking instance, Clapper gave the talks first
in building number 3 where he spoke to the employees
normally working in that building and in building numbers
4 and 5. He followed this by speeches in building number 2
then in building 1 on the day shift and night shift
respectively.6
The complaint alleges and the General Counsel contends
that at some or all of these speeches Clapper made coercive
statements violative of the Act. The nature of the alleged
remarks can be divided into three categories: (1) that if the
Union came into the plant, the employees would lose some
of the benefits they presently enjoyed, (2) that if the Union
came in employees would be assigned job classifications
making it difficult, if not impossible, to shift employees
from job to job, as is done at present, and employees would
be sent home and lose time in the event that there was no
work for their particular classifications, and (3) if the Union
came in strikes would be inevitable.
Some of the witnesses presented by counsel for the
General Counsel testified that these alleged coercive
statements were made during the speeches, and further
testified that, at least as to the September 26 and the
November 18, 1968 speeches, the speeches were not read by
Clapper.? The Respondent's witnesses uniformly testified
that Clapper read all the speeches from prepared texts.
Additionally, some of General Counsel's witnesses testified
that Clapper in his speeches said that he was reading the
speeches because "he did not want to get in trouble with the
law," 8 or that "he would not be in trouble." 9
On the basis of all of the testimony in this regard, I find
and conclude that Clapper read each speech to each group
he addressed.
Careful examination of the written text from which the
speeches were delivered reveals that although the speeches
informed the employees in no uncertain terms that Clapper
was unalterably opposed to the Union and related
unfortunate experiences that had befallen employees in
other plants that had been unionized, especially in relation
to strikes and the duties of unionized employees to support
such strikes, the speeches contained no prediction that such
a fate would inevitably befall the employees of Respon-
dent's plant in the event the union were to be successful in
the forthcoming election. Without setting forth at length
the content of these written texts, suffice it to say that the
material contained therein constitutes free speech and, as
such, is protected by the provisions of Section 8(c) of the
Act.
It is further undisputed that following most of the talks
questions were presented to Clapper regarding various
aspects of what might occur if the employees were to select
the Union to represent them. It was, therefore, out of these
questions and Clapper's answers thereto that the issues of
possible coercion arose.
As early as the September 26, 1968 speech employees
asked about possible job classifications. The question was
asked time and again at the end of the speeches. General
Counsel's witnesses testified, in effect, that Clapper
answered these questions to the effect that if the Union
came in there would be job classification and it would be
difficult to shift employees from job to job and that if there
was no work in any classification the employees involved
would be sent home. There is no dispute that at the time of
the Union campaign it was the established custom of the
Respondent to shift employees around from job to job and
building to building in the event that there was no work in
the job assigned to them. No one had ever been sent home
for lack of work.
In contrast to the testimony of General Counsel's
witnesses , Clapper, himself, and the employees who were
called as witnesses by the Respondent, all testified that
Clapper's answers to the questions regarding job classifica-
tions were always the same . They testified uniformly that
Clapper stated, in effect, that if the Union were to be
successful, and the Union were to insist upon, and get in
negotiations, job classifications, then, and in that event, it
would be difficult for Clapper to shift the employees
around; that in the event there was no work in a
classification the employees in that classification might be
sent home. Thus, in the version given by the Respondent's
witnesses and by Clapper there was no prediction that there
would definitely be job classifications and that job
classifications would result in employees being sent home.
Therefore, there was no definite prediction, according to
Respondent's witnesses, that there would be an inevitable
change in working conditions with regard to shifting of
employees from job to job in the event the Union came in.
The second question that was asked at the completion of
Clapper's talks to the employees was, broadly put, "would
we lose all the benefits and have to start all over again when
they negotiate a contract." Again, as in the case of the first
question asked and answered, the witnesses for the General
Counsel and Respondent gave diverse testimony. General-
ly, witnesses called by the General Counsel testified that
Clapper's answers contained an outright prediction that if
the Union came in they would lose some or all of their
benefits. Witness Leydig testified that Clapper stated "if the
Union got in the employees would lose some or all of their
holidays." Another witness, Baughman, testified that on
November 18 Clapper said "if the Union got in negotia-
tions would start off from zero and we would lose some or
all of the benefits." Others just testified that Clapper said
"negotiations would have to start at zero ." 10 With regard to
the June 19, 1969 speech General Counsel's witness Arnold
testified Clapper answered "they would have to start all
over again." Witness Wahl testified in like manner, as did
witness Mishler.
On the other hand, Clapper denied that he ever stated to
any of the employees that if the Union got in they would
lose some or all of their holidays or other benefits. He
admitted that at the September 26 and November 18
speeches the question of holidays did come up. He refused
to admit however and he emphatically denied that he told
the employees that they would lose some or all of their
holidays at these meetings . Clapper testified the only thing
6 Evidently building number 1 is the only building which utilized a night 8 Witness Leydig.
shift . 8 Witness Florence Arnold.
7 Witnesses Hoover and Baughman . 10 Hoover, Faidley.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he ever told the employees when the question of holidays
was brought up was that bargaining starts from scratch or
zero and that everything must be negotiated from that
point. With regard to the June 19, 1969 speech, Clapper
testified that when someone asked if the employees would
lose their benefits if the Union came in, he started to reply
that bargaining starts from zero but then he turned the
answer to the question over to Attorney William Tait, who
accompanied Clapper when he made his talks to the
employees in the various buildings. According to both
Clapper and Tait, Tait then told the employees that
everything is bargainable, it just does not mean that "you
start with what you have now. When the Union comes in
you negotiate upwards." Tait further stated to the
employees, according to Tait, that "it doesn't mean that
they start at the bottom and go up, the proposals may start
lower than they were." In fact, Tait pointed out an
illustration of another company where in an initial contract
certain benefits were less than the employees had before the
Union organization. Most of the Respondent's other
witnesses testified in a like manner, stating that Clapper
started to answer by saying that negotiations started from
scratch when he turned the answer to the question over to
Tait. They testified to the same effect as did Tait.
The General Counsel argues that the Respondent's
witnesses should not be credited because they merely
parrotted what Clapper testified. However, I note a marked
similarity in the testimony of all of the General Counsel's
witnesses as well . On the other hand, I was impressed with
the manner in which Attorney Tait testified and was
convinced of his sincerity. I therefore conclude, that at least
as to the June 19, 1969 speech the answer of Clapper was
not confined to merely that bargaining would start from
zero or scratch nor was it a prediction that the employees
would lose their benefits, but rather, it was an explanation
by Clapper and then by Tait to the effect that bargaining
does start from scratch, that all matters are bargainable.
Furthermore, it is possible upon the unionization of a plant
for the first contract to provide for less by way of benefits
than employees were receiving before the advent of the
Union.
With regard to the September 26 and November 18
meetings, I find and conclude that although Respondent's
witnesses could not pinpoint the exact meeting at which
Clapper gave his answers, that in each case he was careful
to explain that he was not making a direct prediction that
the employees would lose their benefits but rather that it
was possible since negotiations start at scratch or zero that
the employees could lose some of their holidays. Again, I
am convinced that Clapper, after carefully reading the
speech that was prepared for him, would not make a
prediction of this nature which would in any way be
detrimental to the protected nature of the speech.
Therefore, I find and conclude that at none of the speeches
did Clapper make a prediction that if the Union came in the
employees would lose some or all of their benefits.
The first time that the matter of strikes arose was at the
speech given by Clapper to his employees on November 18,
1968. According to witness Baughman, at the end of that
speech, evidently in answer to a question, Clapper wished
the employees a Merry Christmas and a Happy New Year
and said that if the Union got in there would be a strike.
Baughman insisted that Clapper did not say that if they
could not arrive at an agreement this could possibly mean
that they would go out on strike. Baughman insists that
Clapper said that if the Union did get in they would go out
on strike. General Counsel witness Hoover testified in a like
manner with regard to the November 18 speech. According
to witness Faidley, Clapper said that if the Union came in
the employees would be on strike over Christmas and that
would be a good time for him to do his inventory.
In his testimony, Clapper admitted that he wished
everybody a Merry Christmas and a Happy New Year at
that time. But, according to Clapper, he referred back to a
paper which was distributed by the Union to the effect that
proposals for the contract, if the Union should win, would
be quickly pursued and that the contract would be rushed
through rapidly. Clapper testified that he explained to the
employees that he could not agree to anything this quickly
if it were not for the good of the Company or the
employees. Then Clapper testified "that if the Union was
going to do it this fast he would like to take this opportunity
because he may not be able to see all the employees and he
would like to wish them a Merry Christmas and a Happy
New Year."
Significantly, none of the other Respondent witnesses
testified as to this matter with regard to the November 18
meeting.
With regard to the June 19 meeting, General Counsel
witness Roger Wahl testified that at the question and
answer period in building number 3 one of the ladies
present asked Clapper if the Union came in would there be
a strike. Clapper answered by stating, according to Wahl,
"there would be a strike and they would have to walk
picketlines to keep their jobs." Wahl insisted that when
Clapper spoke of a possible strike he said there would be a
strike if the Union came in and did not state that if they sat
down to negotiate and they could not come to agreement
there might be a strike. Witness Mishler testified that
Clapper stated that the employees would have to strike
whether they wanted to or not. Clapper, on the other hand,
denied that in building number 3 on that date there was a
question asked that if the Union came in would there be a
strike. Significantly, again, none of the Respondent's
witnesses , aside from Clapper, testified as to the matter of
strikes with regard to the June 19 meeting.
Although in the cases of the other questions asked and
answered, I have generally credited Clapper and the
Respondent 's witnesses as having a more accurate recollec-
tion of what occurred at the meetings with regard to those
matters than did the witnesses presented by the General
Counsel, I do not find the same to be true with regard to the
matter of strikes and the answers to questions asked in
relation thereto at the November 16 and June 19 meetings.
This is so because in the case of questions regarding
classification and loss of benefits, I have concluded that the
General Counsel's witnesses misconstrued the answers of
Clapper and did not carry away with them from the
meetings an exact memory of what occurred, but merely
related, on the witness stand, their impression of what
occurred. However, in the case of the questions at the
November 18 and June 19 meetings with regard to strikes,
CLAPPER'S MANUFACTURING 331
no witness presented by the Respondent with the exception
of Clapper testified as to the matter of strikes . With regard
to the November 18 meeting I find and conclude that
Clapper's testimony is not as reliable as that of the General
Counsel's witnesses and do not accept his explanation of
what he said at that meeting . With regard to the June 19
meeting, again there were no witnesses presented by the
Respondent to substantiate Clapper 's denial that a question
about strikes was asked at that meeting . Significantly,
Attorney Tait, who was present at that meeting , did not
testify as to the strike matter . I therefore find that with
regard to both the November 18 meeting and the June 19
meeting , the question was asked to the effect of whether
there would be a strike if the Union came in and that
Clapper 's answer was , simply put, that there would be a
strike if the Union came in.
3. Conclusions as to interference , coercion, and
restraint
President Clapper 's telling Herman Sines in the early part
of October that if the Union came in they (Mr. and Mrs.
Sines) would be the first ones to go, intimating that building
number 2 in which they worked would be shut down,
conveyed to the employees the futility of selecting the
Union as their bargaining representative and also constitut-
ed direct threats of economic retaliation if the employees
selected the Union as their bargaining representative."
Upon the same occasion Clapper questioned Herman
Sines with regard to how Sines felt about the Union. This
constituted unlawful questioning of an employer regarding
the latter 's personal feelings concerning the Union. Such
interrogation is violative of Section 8(a)(1) of the Act and I
so find.i2
Similarly , Clapper's admitted interrogation of Alfred
Murray on June 19, 1969, the evening before the rerun
election , with regard to how Murray's fellow employees felt
about the Union and with regard to how Murray felt the
election was going was , in view of its timing, a clear
violation of Section 8(a)(1) of the Act.13 Additionally,
general manager Lenhart 's questioning of employee Wahl
on June 20 , 1969, the day of the election, with regard to how
building number 5 was going to go in the election and
Lenhart's further questioning of employee Ross regarding
how Ross felt the election would come out, in view of
Respondent 's other unfair labor practices and the timing,
constituted unlawful interrogation. 14
I further find that Lenhart 's statement to Wahl that
Lenhart was going to question other employees as to how
they felt their buildings were going to vote in the election
was an additional violation of Section 8(a)(1) of the Act as
it tended to give Wahl the impression that Lenhart was
engaged in the continued surveillance of the union activities
and sympathies of other employees.
There remains one other individual incident which I find
constituted a violation of the Act . Sometime before the
rerun election , Lenhart asked employee Ross about the
latter's sister-in-law and if the sister-in-law was happy
about her transfer to a position in another building. When
told by Ross that the sister-in-law was unhappy, Lenhart
told Ross that if the election went right , he would see what
he could do about bunging the sister-in-law back to her
former job on the glue gun. In effect , Lenhart promised
Ross to take affirmative action on the transfer of Ross'
sister-in-law provided the Union was defeated in the
election . This constituted an implied promise of benefit
prior to the election and constitutes a violation of Section
8(a)(1) of the Act.
Next for evaluation are the questions and answers put to
and responded to by President Clapper at the speeches
given by him on September 26 and November 18, 1968, and
June 19 , 1969. I have heretofore found that the substance of
Clapper's answer with regard to the question of job
classification is that Clapper stated to the employees that if
the Union came in and succeeded in obtaining , through
negotiations , job classification , Respondent would have a
difficult time moving the employees from job to job, as it
had done in the past , and that in the event that work did
run out in a specific classification the employee in that
classification might have to be sent home and lose working
time. As hereinabove further found, this did not constitute
a firm prediction that if the Union came in there would be
job classification and employees would be sent home if
there was no work for their particular classifications. I find
and conclude that , as the Board has held in the past,
truthfully informing employees of the possible conse-
quences of a rigid job classification system whereby the
employer might have to send some employees home rather
than shift them to available work is no more than a
prediction of possible consequences and, hence, is protect-
ed by Section 8 (c) of the Act.'5
A like conclusion is reached with regard to the discussion
following questions concerning the future of the employees'
benefits . I have heretofore found that Clapper did not make
any flat prediction that if the Union were to come in the
employees would lose their benefits . Rather, I have found
credible the testimony of Clapper and Attorney Tait to the
effect that they told the employees that all matters were
bargainable , that benefits , as were other matters, were
bargainable and started from scratch or zero; and that as a
result these matters could go up or down and that the
employees could come out, after negotiations with the
Union, with either greater or less benefits than they enjoyed
at the present time. The Board has held that it will not
restrict the rights of parties to inform employees of the
advantages or disadvantages of Unions as long as such
information is given to the employees in a noncoercive
manner. The Board has stated that an employer did not
interfere with an election by telling employees : "The Union
could not guarantee that existing employees ' benefits could
continue under a union contract and that bargaining starts
from scratch ." In that representation case the Board held
that the pertinent issues of existing benefits , future benefits,
strikes and so forth , and the requirement of good faith
bargaining were fully brought to the attention of the
11 Marsellus Vault & Sales, Inc, 170 NLRB No. 99
12 Sunbeam Plastics Corporation, 144 NLRB 1010.
13 Thomas Engine Corporation and Upshur Engine Co, Inc, d/b/a
Tomadur, Inc, 179 NLRB No 165
14 Wendt-Sono Company, 138 NLRB 855
15 Murphy Body Works, Inc, 174 NLRB No. 126.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees by the respective electioneering of both the
Employer and the Petitioner.'6 Again, an employer was
held not to have violated Section 8(a)(1) of the Act when it
told employees on two occasions that bargaining would
start "from scratch" or "with a clean sheet of paper" if the
Union came in. It is interesting to note that this statement
was made in response to a question from employees.17
I therefore find and conclude that in President Clapper's
telling the employees that all benefits were bargainable and
that bargaining on such benefits would have to start from
scratch and could go either up or down was a statement of
opinion only, was not a flat prediction, and therefore was
not violative and was, in fact, protected by Section 8(c) of
the Act.
An opposite conclusion is reached with regard to
Clapper's answers to the employees when questions were
put to him regarding the possibility of strikes if the Union
came in. The first time this question arose was at the
November 18, 1968 speech. An examination of the text of
the written speech made by Clapper reveals repeated
references to the fact that employees at unionized plants
were required to go on strike, that such strikes lasted
lengthy periods of time and that strikers lost wages and
were not permitted to collect unemployment compensation.
Additionally, I have heretofore credited General Counsel's
witnesses ' testimony establishing that during the question
and answer period Clapper, in wishing his employees a
happy holiday stated that if the Union came in there would
be a strike, or words to that effect. The text of the June 19,
1969 speech reveals similar references and, after the speech,
Clapper, in response to questions put to him, stated that if
the Union came in there would be a strike and that the
employees would have to walk the picket line in order to
keep their jobs. Clapper's remarks as to the adverse effect of
these strikes, as well as his statement that there would be a
strike if the Union were selected as the bargaining
representative, were clearly coercive in nature and violative
of Section 8(a)(1) of the Act. These statements by Clapper
unquestionably conveyed the impression to the employees
present that a strike was inevitable if the employees voted
for the Union. The Board has consistently held that similar
comlhents which emphasize the inevitability of strikes are
violative of Section 8(a)(1) of the Act.18 I therefore find and
conclude that in his remarks concerning strikes Clapper
coerced his employees in violation of Section 8(a)(1) of the
Act.
C. The Group Conference or Employees Committee
1. The formation and composition
Although there is some conflict in the testimony of the
various witnesses as to the exact manner in which some of
the members of the Committee or Group Conference were
chosen , there was general agreement, and admission by
President Clapper, as to how the Committee came into
being. Clapper testified, without contradiction, that in the
16 Trent Tube Co., 147 NLRB 538-540. Although the cited case involved
a representation proceeding rather than an unfair labor practice
proceeding, the principle applied would be the same.
17 See Nutrena Mills, Division of Cargill, Inc., 172 NLRB No. 24 at p. 5
of the Trial Examiner 's Decision . See also Playskool Manufacturing Co., 172
spring of 1969 he decided to try to form a Group
Conference, also herein called The Committee. The reason
for this, according to Clapper, was twofold. In the first
place, the plant had grown from its former single building
to the extent that it now occupied 6 buildings. Thus,
communication with the employees had become very
difficult. Clapper felt that good communication between
the employees and the President of the Respondent would
be a good thing under these circumstances. The second
reason for the formation of The Group Conference or
Committee was because Clapper was faced with serious
production problems. He was behind in his schedule in
production and he needed the help of his employees.
Accordingly, in April of 1969, Clapper went with General
Manager Lenhart to the various buildings to form The
Committee.
The first building visited was number 3 where Clapper
and Lenhart met with the employees of buildings 3, 4, and
5. Clapper explained the purpose of the meeting and told
the employees that he wanted to form The Committee or
Group Conference, as he called it, so that the employees
could relate their troubles regarding working conditions to
the members of The Committee, who in turn would convey
them to management. The employees seemed to receive the
suggestion favorably according to Clapper, and he
thereupon suggested that there be two committee men from
each building; one from each floor.
It is over the question as to whether Clapper was present
during the nomination of the representatives from building
3 that there is a divergence in the versions testified to by
witnesses called by the General Counsel and witnesses
called by the Respondent. According to General Counsel
witnesses Arnold and Mishler, after the purpose of the
committee was explained Lenhart requested nominations
for members of the committee. Both Arnold and Mishler
testified that when employee Regina Wagner was nominat-
ed to represent the main floor in building 3, Clapper
immediately closed the nominations by stating that was
enough. No other nominations for the main floor were
made. Lenhart immediately thereafter asked whether there
were any nominations for the basement of building number
3 and someone suggested Gary Boyce. Thereupon Clapper
again closed the nominations without giving the employees
another opportunity to nominate any other employees.
Thereafter Lenhart requested a nomination for building
number 4 and the name of Bob Weimer was put forth.
Clapper immediately closed the nomination after Weimer's
name was presented. After the nominations were closed,
Lenhart stated that those nominated would be representa-
tives for the various buildings.
According to the testimony of witnesses presented by the
Respondent, (Clapper, Regina Wagner, and Gary Boyce)
someone at the meeting in building number 3 suggested the
name of I. Fikes and as soon as his name was placed in
nomination Clapper told the employees that they should
make their selections after he left. According to these
witnesses Clapper and Lenhart then left and the nomina-
NLRB No. 177 where the employer distributed a letter to the employees
which contained a statement to the effect that all benefits, including those
presently in effect , were bargainable and could be traded up or down.
1s Kawneer Co., 164 NLRB 983, enfd. as modified, 413 F.2d 191 (C.A.
6); Glazer Steel Corporation, 163 NLRB 7.
CLAPPER'S MANUFACTURING 333
tions proceeded and the employees were elected to the
Committee from building numbers 3 and 4.
I find and conclude that the testimony of the witnesses
for the General Counsel, Arnold and Mishler, is the more
accurate version of what occurred. In the first instance, I
was very impressed with the forthright manner in which
Arnold, especially, testified with regard to the formation of
the Union. She impressed me as having total recall. In
crediting Arnold I have taken into consideration the fact
that she did not mention that Clapper was present or closed
the nominations in her pretrial affidavit. However, she was
completely upheld in this part of her testimony by
employee Mishler whose testimony also impressed me. A
second reason for crediting Arnold and Mishler is the fact
that the General Counsel' s witnesses , aside from Clapper,
were both committee members who acted on the Commit-
tee. Accordingly, I find and conclude that Clapper did close
the nominations as soon as the first names were mentioned
for the committee members. However, I cannot tell from
the testimony presented in the record whether these people
were necessarily the first choice for the Committee of
Clapper.
Nominations and election for representatives from the
other buildings were made without Clapper's presence
although at his suggestion and the balloting for the
Committee members was by secret ballot.19 Thus, it was
generally in this manner that the representatives from the
various buildings were chosen.
It is undisputed that during the nominations and the
election of the various representatives from the various
buildings supervisors were present.
It is further undisputed that Hutchinson, the individual
elected to represent building number 4 was transferred to
building number 3 and lost her status as the representative
of building 4. In her testimony she could not state who took
her place. However, employee Thomas of building 2
testified without contradiction that a few months after the
Committee formation meeting, he was informed by
foreman Milton Sines that Thomas was to be one of his
building's representatives in the Committee as he had been
next highest in number of votes in the election. According
to Thomas, whose testimony was not controverted, Sines
explained that Thomas' appointment to the Committee was
necessitated by the transfer to another building of Mary
Glessner, who had previously been representing the
building.
It is additionally undisputed that The Committee had no
offices, charter, constitution or bylaws, or any means of
financial support. No dues or any assessments of any
nature were required of the employees. Although Commit-
tee meetings were held regularly approximately once a
month, the Committee members never called the meetings,
which were always called by management. Nor did the
Committee members ever conduct meetings among them-
selves nor did they ever meet with the employees.
2. The function of the committee
The Committee met with Clapper and Lenhart or, at
times, Lenhart alone, approximately once each month. The
Committee members, the representatives from each
building, were informed of the time and place of the
meetings by their various foremen. Meetings were held
during working hours and the representatives received their
regular hourly wages while attending the meetings. Minutes
of what transpired at the meetings between the Committee
members and management members were prepared by
either Clapper or Lenhart or both, printed up by the
Respondent, and distributed to the employees together with
the employees' paychecks.
Although it is agreed by various witnesses that the word
"grievance" never came up at any of the meetings of The
Committee, it is undisputed that working conditions were
discussed and that the complaints regarding these were
brought to the attention of management through members
of The Committee. Clapper admitted, in testifying, that at
the various meetings Committee members brought up
complaints concerning the condition of restrooms, ventila-
tion, the necessity for various types of tools and equipment,
and the installation of water coolers and coke and coffee
machines. Copies of the monthly report issued by
management and distributed with the paychecks confirm
these matters. Although Clapper made no direct promises
to correct any of these items , he did say that he would take
the matters into consideration, would look into them, and,
in cases where it was possible, would call in various
contractors to check to see if the matters could be taken
care of. Moreover, at one of the meetings, the problem of
whether to hire additional personnel or work overtime to
increase production was discussed . Clapper admitted that
they reached agreement which provided that if additional
work hours were needed the employees would be willing to
work overtime. Among the items discussed was inadequate
lighting. Respondent took specific action to remedy lighting
defects. Tools were purchased upon request of the members
of the Committee. Committee member Bush testified that a
number of the complaints that he passed on to management
as a Committee member at the meetings were originally
passed on to him by various employees on his floor in the
building in which he worked.
3. Conclusions as to the committee
As noted above, The Committee was a rather amorphous
organization, having no charter, constitution, bylaws, or
any other written or unwritten organizational form.
Moreover it charged no dues, made no assessments and, in
fact, had no financial support other than what was given it
by the Respondent. However, although The Committee
lacked formal organization, this fact does not rule out the
possibility that The Committee functioned as a labor
organization. Section 2(5) of the Act defines a labor
organization as "any organization of any kind, or any
agency or employee representation committee or plant, in
which employees participate and which exists for the
purpose, whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work."
19 From the testimony of Fred Thomas, Ruth Tempia, Jane Werner,
Earl Weller, and Arnold Hoover.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear, and President Clapper admitted in testifying,
that one of the purposes for the formation of The
Committee was to discuss employee complaints concerning
working conditions. He further admitted, and the minutes
circulated by the Respondent confirm, that Committee
members brought to the meetings complaints about the
poor conditions in the restrooms , inadequate ventilation
and lighting, and the need for certain types of tools and
equipment in order to perform work. The employees,
through The Committee, requested the installation of coke
and other vending machines and of water coolers. The
minutes introduced into evidence reveal that in certain
instances , Respondent through Clapper, acted favorably
with regard to these requests and complaints. Also, an
agreement was reached with the Committee with regard to
overtime work and discussions were held at Committee
meetings regarding the elimination of the night shift in
building number 1.
Paraphrasing the statutory definition of labor organiza-
tion, it is clear from the foregoing that The Committee, or
Group Conference, constituted a committee or plan in
which employees, the representatives, participated and
which existed for the purpose, either in whole or in part, of
dealing with employer grievances, hours of employment,
and conditions of work.
Although it is true The Committee did not bargain with
the Respondent in the usual concept of collective
bargaining and the proposals made by The Committee
possibly amounted only to recommendations, the fact
remains that The Committee dealt with the Respondent
concerning employees' complaints. This demonstrates that
The Committee was a labor organization within the
meaning of the Act, and I so find.20
It is abundantly clear and undisputed that the proposal
and impetus for the formation of The Committee came
from the Respondent's President Clapper at meetings held
with the employees in the various buildings during the
month of April 1969. Clapper suggested , without any
assistance from any of the employees, the form and
structure of The Committee. He informed the employees
that the representatives of The Committee would be chosen
from each floor of each building. He gave the employees no
alternative to this suggestion. Beside dictating the form and
structure of The Committee, Clapper alone established that
the purpose of the organization was to meet with
management in order to discuss employee complaints
relating to working conditions. Additionally, no secret
election was held among the employees to determine
whether a majority of them wished to have this form of
representation. The only balloting or selection was for the
members of the various floors of the various buildings to
serve on The Committee. And even there, in the instance of
building number 3, Clapper closed the nominations when
the employees had nominated but one individual from each
floor.
Additionally, The Committee was so constructed by
Clapper as to enable him to control the membership of The
20 See N.L.R.B. v. Cabot Carbon Co., Inc., 360 U.S. 203; Jansen
Electronics Manufacturing, Inc., 153 NLRB 1555; Holland Manufacturing
Company, 129 NLRB 776, enfd. 292 F.2d 870 (C.A. 3).
21 Holland Manufacturing Company, 129 NLRB 776, 785.
22 Holland Manufacturing Company, supra; N.L.R.B. v. H. E. Fletcher
Committee by exercising managerial discretion to transfer,
promote, or discharge employee representatives. This is
illustrated by the instance when Glessner, the elected
representative of building 2 was transferred to another
building and employee Thomas was informed by foreman
Sines that Thomas was to be the new representative of
building number 2. The mere existence of such power,
whether exercised or not, the Board has repeatedly held,
places the employer in a dominant position over the
organization.21
Moreover, The Committee has no existence independent
of the Respondent. As stated above, it has no resources
financially other than that which is contributed by the
Respondent. There are no dues, no membership require-
ments, no constitution, no bylaws, and no charter.
Additionally, the employee representatives receive wages
for time spent working in their conferences with manage-
ment and such payments under these circumstances have
long been regarded as "an aspect of control." 22 Additional-
ly, the conferences with management were held on
Company time and property and the minutes of these
conferences were prepared, printed, and distributed by
Respondent. The very existence and functioning of The
Committee has been made possible by management's
furnishing them the place on its property to hold meetings,
affording The Committee what facilities are needed and by
paying Committee members for their time spent in
performing their functions. These factors have generally
been regarded as an aspect of control 23
I find and conclude that because the Respondent
initiated The Committee, dictated its form and structure,
controlled its composition, and, furthermore, assisted its
members by paying them for the time spent in performing
their function that the Respondent dominates and assists
The Committee, or Group Conference, in such a manner as
to constitute a violation of Section 8(a)(2) of the Act.24
IV. THE OBJECTIONS TO THE ELECTION
As heretofore related , on June 26, 1969 objections to the
conduct of the second election were filed by the Union, the
Petitioner in the representation case . The objections, in
general , allege that the Respondent formed and assisted a
plant committee ; that on the night of June 19 , 1969 the
Respondent questioned the employees on the night shift as
to their intention toward and their affiliation with the
Union within the 24 hours time prior to the election; the
Company stated to employees that there would be a strike
as there was in the Coleman plant , a plant nearby the
Company's premises . Also the objections allege there were
many misstatements ; the Respondent stated at meetings
that the employees would lose some of their benefits if they
voted for the Union.
As heretofore set forth , the Respondent has been found
to have violated Section 8 (a)(1) by interrogating the
employees as to their union sympathies, by stating that
there would inevitably be strikes against the Respondent if
Co., 108 F.2d 459-465 (C.A. 1).
23 Holland Manufacturing Company, supra.
24 Holland Manufacturing Company, supra; Tuscarora Plastics, 167
NLRB No. 154 ; Grafton Boat Co., Inc ., 173 NLRB 150.
CLAPPER'S MANUFACTURING
the Union came in and that the employees would have to
participate therein. It has been further found that the
Respondent formed, assisted and dominated The Commit-
tee or Group Conference, this being a violation of Section
8(a)(2) of the Act.
The Board has held that such conduct as has heretofore
been found to be violative of Section 8(a)(1) and (2) is, a
fortiori, conduct which interferes with the exercise of a free
and untrammeled choice in an election.25 On this basis,
therefore, there is sufficient reason to set aside the results of
the election. Accordingly, I shall recommend that the
second representation election heretofore held in Case
6-RC-4801 be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of the
Respondent as set forth 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.
VI. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action set forth below designed to
effectuate the policies of the Act. One of the more basic
rights conferred upon employees by Section 7 of the Act is
the right to freely, without coercion or restraint from the
employer, express their choice in a Board conducted
election designed to determine the wishes of the employees
with respect to collective-bargaining representative. Since it
has been found that Respondent interfered with this right,
an Order commensurate with the violations found designed
to assure Respondent's employees the opportunity to fully
express their rights guaranteed them by Section 7 of the Act
is appropriate.
It having been found that the Respondent by threats,
interrogation, and promises of benefits interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act, I shall recommend that the Respondent
cease and desist therefrom.
It having been found that the Respondent has dominated
and interfered with the formation and administration of
The Employees' Committee or Group Conference and has
contributed support thereto, it is recommended that the
Respondent cease and desist from such conduct and that it
withdraw recognition from and completely disestablish The
Employee's Committee or Group Conference as the
representative of any of the Respondent's employees for the
purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
335
1. The Respondent, Clapper's Manufacturing Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western Pennsyl-
vania, AFL-CIO and Clapper's Employees' Committee or
Group Conference, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By dominating and interfering with the formation
and administration of the Clapper's Employees' Committee
or Group Conference, and contributing support thereto, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(2) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that Clapper's Manufacturing Inc.,
its officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and their sympathies toward the Union, threaten-
ing employees with reprisals if the Union is selected by the
employees to become their bargaining representative,
creating the impression of surveillance of union activities
and sympathies, and promising the employees benefits if
they abandon their adherence to the Union.
(b) Dominating or interfering with the administration of
Clapper's Employees Committee or Group Conference or
with the formation or administration of any other labor
organization of its employees, and contributing support to
Clapper's Employees Committee or Group Conference or
to any other labor organization of its employees.
(c) Recognizing, or in any manner dealing with Clapper's
Employees Committee or Group Conference, or any
reorganization or successor thereof, as a representative of
any of its employees for the purpose of dealing with the
Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
work.
(d) In any other manner interfering with, restraining or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Withdraw all recognition from Clapper's Employees
Committee or Group Conference as a representative of any
of its employees for the purpose of dealing with the
Respondent concerning grievances, labor disputes, wages,
25 Playskool Manufacturing Company, 140 NLRB 1417-1419.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay, hours of employment, or other conditions of
work and completely disestablish Clapper's Employees
Committee or Group Conference as such representative.
(b) Post at its plant in Meyersdale, Pennsylvania, copies
of the notice attached to the intermediate report and
marked "Appendix." 26 Copies of said notice, on forms
provided by the Regional Director for Region 6, shall, after
having been duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 6 in writing,
within 20 days from the date of the Trial Examiner's
Decision, as to what steps the Respondent has taken to
comply herewith.27
It is further ordered that the consolidated complaint be,
and it hereby is, dismissed insofar as it alleges violations of
Section 8(a)(1) of the Act other than those found herein,
and,
IT IS FURTHER ORDERED that Case 6-RC-4801 be, and it
hereby is, severed and transferred to the Regional Director
for Region 6 for further processing with the recommenda-
tion that the said Regional Director set aside the second
election heretofore held in that case.
26 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
27 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 6 , in writing, within 10 days from the date of this Order as to what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question any employees about their
union activities or their attitude toward or sympathy
with the Union.
WE WILL NOT make any threats to our employees in
the event that any union is successful in organizing our
employees or wins any election held for the purpose of
determining the bargaining representative of our
employees.
WE WILL NOT make promises to our employees of
better working conditions and work assignments and so
forth in order to get them to disaffiliate or disassociate
themselves from any labor organization.
WE WILL NOT create the impression that we are
spying upon our employees' union or concerted
activities.
WE WILL NOT dominate or interfere with the
administration of Clapper's Employees' Committee or
Group Conference, or with the formation or adminis-
tration of any other labor organization of our
employees, nor will we contribute support to The
Committee or to any other labor organization of our
employees.
WE WILL NOT recognize or in any manner deal with
The Clapper's Employees' Committee or Group
Conference or any reorganization or successor thereof,
as a representative of any of our employees for the
purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
other conditions of work.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist United Brotherhood of Carpenters and
Joiners of America, Carpenters District Council of
Western Pennsylvania, AFL-CIO, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL withdraw all recognition from Clapper's
Employees Committee or Group Conference as the
representative of any of our employees for the purpose
of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, and
other conditions of work, and completely disestablish
the Committee as such representative.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members in good
standing of United Brotherhood of Carpenters and Joiners
of America, Carpenters District Council of Western
Pennsylvania, AFL-CIO, or any other labor organization.
Dated By
CLAPPER'S
MANUFACTURING, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Pittsburgh, Pennsylvania
15222, Telephone 412-644-2977.