Detroit Association of Plumbing Contractors

National Labor Relations Board - Board Decisions

Mar 31, 1960

126 N.L.R.B. 1381 (N.L.R.B. 1960)

DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1381
IV. THE REMEDY
It shall be recommended that Respondent Local No. 4355 and Respondent In-
ternational shall cease and desist from the unfair labor practices found and that
they take certain affirmative action deemed necessary to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Respondent International and Respondent Local each are labor organizations
within the meaning of Section 2(5) of the Act.
2. Phelps Dodge Refining Corporation is engaged in commerce within Section
2(6) of the Act.
3. Respondents Local and International have violated Section 8(b) (4) (A) of
the Act by engaging in unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Detroit Association of Plumbing Contractors and James P.
Duffy
Mechanical Contractors Association of Detroit and James P.
Duffy
Farrington Company and James P. Duffy
Goss Mechanical Contractors Company and James P. Duffy
J. W. Partlan Company and James P. Duffy
Stanley Carter Company and James P. Duffy
Donald Miller Company and James P. Duffy
Johnson Service Company and James P. Duffy
United Engineers and Constructors , Inc. and James P. Duffy.
Cases Nos. 7-CA-1709, 7-CA-1710, 7-CA-1784, 7-CA-1785, 7-CA-
1786, 7-CA-1787,7-CA-1788,7-CA-1792, and 7-CA-1793. March
31, 1960
DECISION AND ORDER
On August 17, 1959, Trial Examiner John Fischer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the consolidated complaint and recommending that said complaint be
dismissed as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Charging Party and Intervenors 1 filed ex-
ceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
I United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry, AFL-CIO, and Its Local 636, and Metal Trades Department, AFL-CIO.
,126 NLRB No. 165.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this proceeding, and finds merit in the exceptions of the Charging
Party.
The Respondent Associations and Companies 2 are charged with
interfering with the administration of Local 636 of the United As-
sociation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (here-
inafter called the Union), in violation of Section 8(a) (1) and (2)
of the Act, by causing or permitting 10 supervisors to participate in
such union activities as engaging in contract negotiations on behalf
of the Union, voting in union elections and holding union office.
The Trial Examiner found that the union activities of these 10
supervisors did not interfere with the administration of the Union.
Specifically, he concluded with respect to Kelley, Kruger, McDonald,
Hugh and Alvin McShane, and Derocher, that, while they held union
office or voted in union elections, there was no evidence that these
supervisors acted against the interest of the Union or in the interests
of their employers, or that the Respondents encouraged or ratified the
union activities of these supervisors. With respect to Sieger and
McNamara, who engaged in contract negotiations on behalf of the
Union, in addition to voting in union elections and holding union
office, the Trial Examiner found that Sieger did not participate in
contract negotiations in 1958 because of the protest of one of the par-
ticipating Associations, although he did participate in negotiations
with the Associations in 1956.3 McNamara's participation in contract
negotiations in 1958 while employed as a job foreman by the Davis
Company, was deemed a technical violation, but, because he was the
only supervisor out of approximately 14 union negotiators, the Trial
Examiner concluded that such activity did not warrant a finding of
a violation.' With respect to McGibbon and Luzon, the Trial Ex-
aminer recommended dismissal, and we agree on the ground, inter alia,
that their employer, the Green Plumbing and Heating Company,
was not named as a Respondent and their union activities could not
2 The two Associations involved are the Detroit Association of Plumbing Contractors
and the Mechanical Contractors Association of Detroit. Of the Employers charged
separately, Goss Mechanical Contractors Company, the Farrington Company, the Donald
Miller Company, and the Stanley Carter Company were members of both Associations.
J. W. Partlan was only a member of the Detroit Association of Plumbing Contractors
The two Associations represent the above- named companies in negotiations with the
Union. Johnson Service Company and United Engineers and Constructors are companies
that operate under national agreements negotiated by the National Contractors Associa-
tion, of which they are members.
3 We do not adopt the Trial Examiner 's finding that participation by Sieger in the
1956 contract negotiations is excused because it antedated the Board 's decision in the
Nassau and Suffolk case , infra As an interpretation of the Act, that decision necessarily
had retroactive effect However , consideration of the legality of Sieger' s participation in
contract negotiations in 1956 is barred , in any event, by Section 10(b) of the Act. As to
the legality of his holding of union office and his voting in union elections , in 1958, see
the discussion below.
4 As in the case of Sieger , the Trial Examiner excused McNamara 's participation in the
1957 negotiations while employed by the Farrington Company, because it antedated the
Nassau decision . For reasons already noted, we do not adopt this finding.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1383
be attributed to the Detroit Association of Plumbing Contractors
merely because of Green Plumbing's membership in such Association.
Moreover, McGibbons had not been active in union affairs in recent
years but had merely retained a nominal membership in the Union.
Contrary to the Trial Examiner, we find that the Respondent Asso-
ciations interfered with the administration of the Union by acqui-
=escing in McNamara's participation in contract negotiations in 1957
and 1958 on behalf of the Union, in violation of Section 8(a) (1) and
(2) of the Act.' On the basis of the other union activities of Mc-
Namara and the rest of the supervisors (other than McGibbons and
Luzon), we find that, by participating through their supervisors in
such union activities as holding union office and voting in union elec-
tions, the respective employer of these supervisors interfered with the
administration of the Union in violation of Section 8(a) (1) and (2)
,of the Act.'
These supervisors, long-time members of the Union, have progressed
from journeymen status to their present rank in the supervisory
hierarchy, and, although no longer in the bargaining unit, they still
retain their membership in the Union. While such supervisors may
retain or seek union membership,? we will apply the rule of respondeat
superior to any active participation in them in union affairs to the
same extent as we apply that rule to other areas of supervisory con-
duct. Accordingly, we deem such participation by these supervisors
to constitute in effect participation in union activities by their em-
ployees and, hence, unlawful. This is in accord with the Board's
finding in the Nassau case, supra, that participation by supervisors,
not in the bargaining unit, in the internal affairs of a union of rank-
and-file employees constitutes unlawful interference with the ad-
ministration of the union.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth above, which have
been found to constitute unfair labor practices occurring in connec-
tion with the operations of the Respondents, 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 ob-
structing commerce and the free flow of commerce.
6 Nassau & Suffolk Contractors ' Association, Inc, and its members, 118 NLRB 74, 187.
('Nassau if. Suffolk Contractors' Association, Inc, and its members , supra, at 184;
Anchorage Businessmen's Association, etc, 124 NLRB 662. These supervisors had such
job titles as job superintendent , general foreman , field superintendent. McNamara,
apparently the lowest ranking supervisor , was employed as a "job foreman ." Although
McNamara 's degree of authority appeared to fluctuate with the size and Progress of the
job, an employee testified that, on his job, his foreman was under McNamara.
4 Section 14(a) of the Act states in part ' "Nothing herein shall prohibit any in-
dividual employed as a supervisor from becoming or remaining a member of a labor
organization . 11
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. The Respondent Associations and Companies are engaged in
commerce within the meaning of the Act.
2. Local 636 of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United
States and Canada (Pipefitters), AFL-CIO is, and at all material
times has been, a labor organization within the meaning of Section
2(6) and (7) of the Act.
3. By acquiescing in McNamara's participation in contract negotia-
tions in 1957 and 1958 on behalf of the Union, the Detroit Association
of Plumbing Contractors and the Mechanical Contractors Associa-
tion of Detroit violated Section 8(a) (1) and (2) of the Act.
4. By their supervisors' participation in such union activities as
holding union office and voting in union elections, the Respondent
Farrington Company, Goss Mechanical Contractors Company, J. W.
Partlan Company, Donald Miller Company, Johnson Service Com-
pany, and United Engineers and Constructors, Inc., violated Section
8(a) (1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall require them to cease and desist therefrom and to
take certain affirmative action designed to effectuate the purposes of
the Act. Although we have found that Hugh McShane's voting in
a union election while employed by, the Stanley Carter Company
violated the Act, we do not believe that, under the circumstance of
this case, it will effectuate the policies of the Act to issue any remedial
order against the Company, as it is now defunct.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Detroit Association of Plumbing Contractors and the
Mechanical Contractors' Association of Detroit, their officers, agents,
successors, and assigns shall:
1. Cease and desist from interfering with the administration of
Local 636 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry, AFL-CIO, by engaging
in collective-bargaining negotiations with any committee representing
the above Union which includes as a committee member Donald
McNamara (while employed as a supervisor) or any other supervisor.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1385
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify, in writing, their member-employers of the terms of
this order.
(b) Post immediately in conspicuous places at the offices of the
aforementioned Associations and all projects operated by their re-
spective members, within the territorial jurisdiction of Local 636 of
the Pipefitters Union, copies of the notice attached hereto marked
"Appendix A." 8 Copies of such notice, to be furnished by the
Regional Director of the Seventh Region, shall, after being duly
signed by representatives of the Respondent Associations, be posted
immediately by the Respondent Associations upon receipt thereof and
be maintained by them for a period of 60 consecutive days thereafter,
in all places where notices to members of the Associations are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
B. Respondents Farrington Company, Goss Mechanical Contractors
Company, J. W. Partlan Company, Donald Miller Company, John-
son Service Company, and United Engineers and Constructors, Inc.,
their officers, agents, successors, and assigns shall:
1. Cease and desist from interfering with the administration of
Local 636 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting. Industry, AFL-CIO, by partici-
pating through their supervisors in such union activities as voting in
union elections, or holding union office.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places at their respective
business offices and at all projects now being operated by them within
the territorial jurisdiction of Local 636 of the Pipefitters Union,
copies of the notice attached hereto marked "Appendix B."' Copies
of said notice, to be furnished by the Regional Director for the Sev-
enth Region, shall, after being duly signed by an official representa-
tive of each of the Respondents, be posted immediately by the
Respondents upon receipt and be maintained by them for a period of
60 consecutive days thereafter, in all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by the
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
9 See footnote 8.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES OF MEMBERS OF THE DETROIT ASSOCIATION
OF PLUMBING CONTRACTORS, AND THE MECHANICAL CONTRACTORS
ASSOCIATION OF DETROIT
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with the administration of Local 636
of the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry, of United States and Can-
ada, AFL-CIO, by engaging in collective-bargaining negotiation
with any committee representing the above Union which includes
as a committee member Donald McNamara (while employed as a
supervisor) or any other supervisor.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS
Dated---------------- By-------------------------------------
(Representative ) (Title)
MECHANICAL CONTRACTORS ASSOCIATION OF DETROIT
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF FARRINGTON COMPANY, Goss MECHANI-
CAL CONTRACTORS COMPANY, J. W. PARTLAN COMPANY, DONALD
MILLER COMPANY, JOHNSON SERVICE COMPANY, UNITED ENGINEERS
AND CONSTRUCTORS, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with the administration of Local 636
of the United Association of Journeymen and Apprentices of the
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1387
Plumbing and Pipefitting Industry, AFL-CIO, by participating
through our supervisors in such union activities as holding union
office, or voting in union elections.
FARRINGTON COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
GOSS MECHANICAL CONTRACTORS COMPANY,
Employer.
Dated---------------- By-----------------------------=-------
(Representative ) ( Title)
J. W. PARTLAN COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
DONALD MILLER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
JOHNSON SERVICE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
UNITED ENGINEERS AND CONSTRUCTORS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by James P . Duffy , involving all Re-
spondents herein , the General Counsel of the National Labor Relations Board, by
the Regional Director for the Seventh Region, issued ( 1) an order consolidating
the above-entitled cases , and (2) a consolidated complaint, dated November 21,
1958, against the following Respondents : Detroit Association of Plumbing Con-
tractors , Mechanical Contractors Association of Detroit ; Johnson Service Company;
Farrington Company; Goss Mechanical Contractors Company; J. W. Partlan Com-
pany; Stanley Carter Company ; Donald Miller Company ; and United Engineers and
Contractors , Inc. The complaint charges that all the Respondents had engaged in
and were engaging in unfair labor practices affecting commerce by violating Section
8(a)(1) and ( 2) of the National Labor Relations Act (61 Stat. 136 ), herein called
the Act, in that Respondents assisted, contributed to the support of, and interfered
with the administration of Pipefitters Local (Union ) 636 by:
(a) Causing certain of their respective representatives , agents, and supervisory
personnel to attend and participate in general membership meetings of the Union.
(b) Causing certain of their respective representatives, agents, and supervisory
personnel to attend and participate in executive board meetings of the Union.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) During the negotiations in July 1957 and July 1958 of the reopener clause
in the collective-bargaining agreement of July 1, 1956, between the Union and
Respondent Plumbing Contractors Association, Respondent Mechanical Contractors
Association and their respective members, Respondent Goss and Respondent Farring-
ton caused certain of their respective representatives, agents, and supervisory per-
sonnel to participate as representatives and agents of the Union at said negotiations.
(d) Causing certain of their representatives, agents, and supervisory personnel
to become and remain members of the Union.
(e) Causing certain of their respective representatives, agents, and supervisory
personnel to assume and retain official positions on the executive board of the
Union and other official positions of a policy-making, executive, administrative, and
governing nature within the Union.
(f) Causing certain of their respective representatives, agents, and supervisory
personnel to participate in the general election of officers and other officials of the
Union. -
By their answers all the Respondents denied the commission of any conduct
violative of the Act. Pursuant to due notice, a hearing was held at Detroit, Michigan,
between January 5 and 8 and February 2 and 9, 1959, before the Trial Examiner
duly designated to conduct the hearing. The General Counsel, all of the Respond-
ends, and the Charging Party appeared and were represented by counsel. Pipefitters
Local 636 of the United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-CIO, and the
Building and Construction Trades Department of the AFL-CIO (composed of 20
national and international unions engaged in the building and construction business
in the United States ad Canada) and Building and Construction Trades Department,
AFL-CIO, were allowed to intervene in these proceedings and were represented by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to produce evidence was afforded all parties. After the close of the hearing,
time for filing briefs was extended to April 24, 1958, upon request of certain Re-
spondents, and comprehensive and well-reasoned briefs were submitted on, behalf
of all Respondents wherein a galaxy of Board and court cases were cited. These
impressive briefs have been fully considered by the Trial Examiner. Certain motions
made during the trial are disposed of in light of findings and conclusion, hereinafter.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES AND ASSOCIATIONS
Detroit Association of Plumbing Contractors and Mechanical Contractors Asso-
ciation of Detroit are composed of employers engaged in the plumbing contracting
industry in the Detroit, Michigan, area, and they exist for the purpose of representing
their employer members in collective bargaining with labor organizations (herein-
after referred to as Respondent Plumbing Contractors Association and Respondent
Mechanical Contractors Association). These Associations were at all times material
herein authorized by said member employers to negotiate and have negotiated in
said employers' behalf with labor organizations, and with their employer members
collectively constitute a single employer within the meaning of Section 2(2) of the
Act. The annual purchases of employer members of Plumbing contractors Asso-
ciation and Mechanical Contractors Association of goods and materials shipped
from points located outside the State of Michigan directly to points located in the
State of Michigan exceed $100,000.
Respondents Farrington and United annually, in the course and conduct of their
business operations, each received goods valued in excess of $50,000 at their places
of business in Michigan which were shipped to them directly from points located
outside the State of Michigan. Johnson Service Company, Detroit Branch, annually
received good directly from points outside of Michigan valued in excess of $100,000.
On the entire record I find that the totality of the operations in volume and
character of the Plumbing and Heating Contractors Association and of Mechanical
Contractors Association and their employer members and of Respondents Farrington
Company, Goss Company, Partlan Company, Stanley Carter Company, Donald
Miller Company, Johnson Service Company, and United Engineers Company are
engaged in interstate commerce within the meaning of Section 2(6) and (7) of the
Act.
IL THE LABOR ORGANIZATIONS INVOLVED
The Unions, local and international, are labor organizations within the meaning
of Section 2(5) of the Act.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1389
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
There are two local unions involved in this case, i.e., Pipefitters Local 636 and
Plumbers Local 98, both affiliated with the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada (AFL-CIO). There are three international labor organizations concerned
in the outcome of this case: United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO;
Metal Trades Department, AFL-CIO; and Building and Construction Trades De-
partment, AFL-CIO. The Trial Examiner granted motions for leave to intervene
on behalf of each of these labor organizations.
As previously indicated, Respondents Plumbing Contractors and Mechanical
Contractors are associations of local firms having respectively 55 members and 23
members. Respondents Johnson Service Company and United Engineers and Con-
tractors, Inc., are outside companies. They have no dealings with the local unions,
as they operate under national agreements negotiated by National Contractors
Association, of which they are members. The local companies negotiating through
their local associations directly with the local unions are Farrington Company, Goss
Contractors, Partlan Company, Stanley Carter Company, and Donald Miller
Company.
There are involved in this case 10 union members, admittedly of supervisory
status within the meaning of Section 2(11) of the Act. These member employees
are: William Kelley, general foreman of Pipefitters with United Engineers; Cyril M.
Kruger, superintendent of construction with Johnson Service Company; Edward L.
McDonald, general heating foreman with Goss Mechanical Contractors Company;
Hugh McShane, general superintendent with Stanley Carter Company; Alvin
McShane, job superintendent with J. W. Partlan Company; Harold Derocher,
pipefitting superintendent with Donald Miller Company; Hugo Sieger, field super-
intendent with Farrington Company; John McGibbon, nominal vice president with
John E. Green Plumbing and Heating Co ; Arnold Luzon, job superintendent with
John E. Green Company; and lastly Donald McNamara, job foreman with Farring-
ton Company. These titles given to supervisors do not carry the full connotation
of the position, but rather are loosely used to describe various types and degrees of
local craft foremen. Some are only temporary titles. The situations developed
at the hearing and appearing in the record with reference to each supervisor's
complained-of activity and the respective company's liability is set forth below-
predicated on following general statement of the applicable law.
Legal Principles Governing Case
In the ordinary situations, an employer is held liable under the Act for the activities
of his supervisor in the formation of unions or for his active participation in the
administration of the affairs of a union already established under the agency
doctrine of respondeat superior. This type of activity by an employer's supervisor
is frequently the strongest kind of evidence of an employer's interference with, and
domination of, a union's affairs. However, where employers and unions in a particu-
lar industry have by long practice and custom included supervisors in the bargaining
unit, established by contract in the industry, a different rule of liability is applied.
In such a situation, a finding of liability on the part of the employer for the super-
visors' active participation in the affairs of the union cannot be made from the
mere status of the employee as a supervisor of the employer's rank-and-file employ-
ees. It is not sufficient in such situations to show that the supervisor has become a
member of the Union and that he is taking an active part in the administration of
the Union's affairs. Where supervisors have traditionally been included in a con-
tract bargaining unit in an industry, the mere fact that the supervisory employee
joins the contracting union is per se of no particular significance. In fact the Act,
Section 14 ( a), expressly permits supervisors to join unions representing rank-and-
file employees. The problem arises when the supervisor begins to take an active
part in the affairs of the Union.
How active the supervisor can become in the internal affairs of the Union in
such a situation without compromising his employer, depends upon the nature of
the activity, and how the employer acts in the situation. There are certain types
of activities by a supervisor which result in some benefit to the employer 's interest,
either immediately or in the long run. There are others which are clearly against
the interest of the employer and in favor of the interests of the Union or of the
employees it represents . There are still others which are of a neutral nature which
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not beneficial to the interest of either the employer, the employees, or the
Union. In every case, the activity must be closely scrutinized to determine whether
it is one which will result in a benefit to the employer, to the employees, to the
Union, or to no one. This is a purely factual question and must be resolved before
any determination can be made whether an employer is violating the Act by
permitting the supervisor to continue the particular activity. If it is found that
the supervisor's activity is primarily for the benefit of the employees or the Union
or that it is a neutral action then an inference can safely be drawn that the supervisor
is not acting as an agent of the employer. (See Geilich Tanning Company, 122
NLRB 1119.) However, even where it is found that the supervisor's actions do re-
sult in some benefit to the employer's interests, it does not necessarily follow that the
supervisor is acting as an agent of the employer. It may be, as the Board found in
the Geihch Tanning case, that the benefit to the employer was only incidental and
that the primary purpose of the supervisor in engaging in the particular activity was
to benefit the employees. In any case, even where the activity is found to be bene-
ficial to the employer's interests it must also be found that the employer either
expressly or by his conduct authorized or ratified the supervisor's actions, or that
the employer acted in such a manner as to lead the employees to believe that
the supervisor's actions were being taken on the employer's behalf.
The above rules to determine the liability of an employer under the Act for the
union activities of his supervisors who are usually included in his contract bargaining
unit have been spelled out by the Board in a series of three recent cases.'
Applying the above principles to each of the supervisors involved in this case and
their union activities, I make the following findings and conclusions:
United Engineers and Constructors, Inc.-William Kelley
This employer is a nationally known plumbing and pipefitting company that
established a branch business in the State of Michigan with headquarters at Detroit.
The basic wages and work conditions of the employees it hires throughout all its
branches in the United States are established by a contract that it has with the
United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada. It is the International Union of
which Local 636 is an affiliate. Under the provisions of this national contract, it
is provided that United Engineers should apply the prevailing wages and work
conditions established by the locals of International in the areas where the company
operates. Also it must follow the hiring practices and procedures of the locals where
they operate. Thus when the United Engineers established its headquarters in
Detroit for the State of Michigan in 1951, it was required to follow the wage scales
and hiring procedure of Local 636. At that time it hired William Kelley as its
"general foreman of pipefitters." This type of supervisor is traditionally included
by the employers and unions in the plumbing and pipefitting industry in the con-
tract bargaining units established in the industry. Kelley was under the supervision
of the Company's "pipefitting superintendent " Kelley is admittedly a supervisor
with 200 to 225 pipefitters under his direction, in which are included area foremen,
and crew foremen used by the United Engineers in the Michigan area. Kelley has
been a member of Local 636 since 1936 and has always been active in its affairs.
In 1936 he was elected president and has continued to occupy that office up to the
present time. Kelley takes no part, however, in the negotiation of the National con-
tracts which the National Constructors Association, of which the United Engineers
is a member, has with the United Association of Journeymen. United Engineers has
no relation whatsoever with either of the local employers' associations such as
Detroit Association of Plumbing Contractors and Mechanical Contractors Asso-
ciation of Detroit, the two employer associations with whom Local 636 has bargain-
ing relations. Kelley's employment as general foreman terminated prior to the
employment issues in these proceedings. There is no claim that he has since occupied
any supervisory position with the Company. (Both Kelley and Elgin C. Ruehle,
company superintendent, substantiated each other's testimonies as to the facts found.)
Under these circumstances I cannot find that Kelley's continuance as president
of Local 636 after he was hired as a general foreman by the United Engineers in
1951 has been beneficial to the interest of the United Engineers Company. The
General Counsel has failed to show that any of Kelley's actions as president of
'Indianapolis Newspapers, Inc.. 103 NLRB 1750; Nassau and Suffolk County Con-
tractors' Association, Inc, and its members, 118 NLRB 174; (Geilich Tanning Company,
122 NLRB 1119.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1391
Local 636 has been of any particular benefit to the United Engineers Company.
The evidence on the contrary shows that Kelley acted against the interests of the
United Engineers on one occasion when the interests of the United Engineers were
opposed to those of the members of Local 636 who were employed by United
Engineers. In this instance Kelley instructed the members of Local 636 not to install
certain nonunion pipe material purchased by his employer to complete a contract.
But even assuming that some of Kelley's actions as president of Local 636 may have
been beneficial to the interests of United Engineers, the General Counsel has failed
to shown what these activities were and that they were authorized or encouraged
by his employer. Nor has the General Counsel shown that the United Engineers ever
led its employees, who were members of Local 636, to believe that Kelley's incum-
bency of the presidency of Local 636 was being used to benefit the interests of the
Company. For these reasons I conclude that the charges against the United Engi-
neers Company have no merit and should be dismissed.
Johnson Service Company-Cyril Kruger
This is a Wisconsin corporation engaged in the plumbing and pipefitting business
throughout various States of the United States. Like the United Engineers Company
it operates throughout the Nation and as such is a member of the National Con-
structors Association, an association representing employers of the plumbing and
pipefitting industry who operate on a national basis. It is a party to the national
agreement covering the basic work conditions of its employees working throughout
the Nation which was negotiated for it by the National Constructors Association
with the United Association of Journeymen, etc., the International Union of which
Local 636 is an affiliate. Some years ago Johnson Service established a branch
business in Michigan, and pursuant to the terms of the national agreement, it follows
the wage scales and hiring practices of Local 636. For many years it has employed
Cyril M. Kruger, a member of Local 636, as its "superintendent of construction"
for the State of Michigan. Kruger is admittedly a supervisor with 54 pipefitters under
his direction who work on jobs throughout the State. Kruger, by his own testimony
and that of Manager James Best has been employed by the Company for 33 years
and has been a member of the Union for 41 years. Long before he was hired by
Johnson Service Company, Kruger was elected as a "trustee" of Local 636. A
trustee's function is merely to hold title to union property and check the Union's
finances from time to time. He continued holding this office in the Union with
the knowledge of the company executives after he was hired. Kruger takes no part
in the negotiation of contracts between the National Constructors Association and
the United Association. Johnson Company has no relations whatsoever with the
Detroit Association or the Mechanical Contractors Association, the two employer
associations with whom Local 636 has bargaining relations. The General Counsel
has not shown that Kruger has ever used his office as trustee to benefit the interests
of his employer.
Under these circumstances, I find that Kruger's activities as a trustee of Local 636,
after he was hired as a supervisor by Johnson Service, have not resulted in any
particular benefit to the Johnson Company. Nor has the General Counsel shown
that the Johnson Company ever encouraged or sanctioned Kruger's actions as
trustee of Local 636. Nor has it been shown that the Johnson Company ever
created the impression among its rank-and-file employees that Kruger was acting as
an agent of the Johnson Company in his activities as a member and trustee of Local
636. For the above reasons, the charge filed against Johnson Company should be
dismissed, and it will be so recommended.
Goss Mechanical Contractors Company-Edward L. McDonald
This is a local plumbing and pipefitting employer engaged in business in the
Detroit area. It is a member of both the Detroit Association and the Mechanical
Constructors Association, the two employer associations with which Local 636 has
bargaining relations. The Goss Company employs Edward L. McDonald, a member
of Local 636, as a "general heating foreman" with 17 men under his direction. He
is admittedly a supervisor. McDonald has worked for the Goss Company for over
11 years, the last 3 or 4 years as a supervisor. McDonald has been a member of
Local 636 since 1946 but has never held office. He has attended meetings irregu-
larly and voted in elections of officers on occasions. Under the statute, McDonald
had a right to continue his membership in Local 636 after he was hired as a super-
visor by the Goss Company and to engage in the usual activities of membership in
the Union. These facts are substantiated by the testimony of McDonald and Presi-
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent Walker of Goss Company. The General Counsel has failed to show that
McDonald's membership in Local 636 has resulted in any particular benefit to Goss
Company. The General Counsel has also failed to show that such membership
was encouraged or sanctioned by the Goss Company. Finally the General Counsel
has failed to show that the Goss Company has even created the impression among
the rank-and-file employees that McDonald acted as an agent of the Goss Company
in carrying on his activities as a member of 636. For the above reasons, I conclude
that the charge against the Goss Company should be dismissed.
Stanley Carter Company-Hugh McShane
This Company was engaged in the plumbing and heating business in the Detroit
area until December 1957 when it discontinued its business. Then it was taken
over and continued by the Robert Carter Company. Prior to its going out of busi-
ness, it was a member of both the Detroit Association of Plumbing Contractors and
the Mechanical Constructors Association. In the last 5 years of its operation the
Stanley Carter Company employed Hugh McShane as its "supervisor of its pipefitting
crews," in charge of 200 to 250 steamfitters. McShane has been a member of Local
636 since 1936. In recent years he has been a member of the Union's election com-
mittee. Members of this committee act as tellers and eligibility judges at election of
officers for the Union, Kevin T. Daly, company treasurer, and McShane testified
to these facts. The General Counsel failed to submit proof that McShane's con-
tinued membership in Local 636 and his election and participation as a member of
the Union's election committee resulted in any particular benefit to the Stanley
Carter Company or to either one of the two employer associations to which it
belonged. Even if such activities may have resulted in some benefit to the Company
or Associations, there is no evidence that the Carter Company or the Associations
encouraged or authorized McShane to continue his membership in the Union or his
position as a member of the Union's election committee. There is also no evidence
that Carter Company or the two Associations ever created the impression among
the rank-and-file employees that McShane was acting as an agent of the Carter
Company or of the two Associations while he was a member of the Union and
on the Union's election committee. Furthermore, the Robert Carter Company
with whom McShane now works is not a party to this proceeding. Parenthetically,
McShane has received $3,000 bonuses from both companies in addition to his fore-
man's wage. For the above reasons, I conclude that the charge against the Stanley
Carter Company should be dismissed.
J. W. Partlan Company-Alvin McShane
This Company is engaged in the plumbing and pipefitting business in the Detroit
area. It is a member of the Detroit Plumbing Contractors Association. For the
past 10 years it has employed Alvin McShane as its "general supervisor of its
pipefitting crews" with 10 to 100 men under his direction, including 4 to 5 crew
foremen. Alvin McShane has been a member of Local 636 for the past 25 years.
During the year 1957, he served as a member of the Union's election committee.
This evidence was given by McShane and Company President Arthur F. Link. The
General Counsel has failed to show that McShane's continued membership in Local
636 after he became a supervisor and his participation as a member of the Union's
election committee during the year 1957 resulted in any particular benefit to the
Partlan Company or to the Detroit Plumbing Contractors Association. Nor is
there any evidence that the Partlan Company or the Detroit Plumbing Contractors
Association encouraged McShane to continue his membership in the Union or his
participation in the Union's election committee of 1957. Furthermore there is no
evidence to indicate that the Partlan Company or the Association created the im-
pression among the rank-and-file employees that McShane was acting as their agent
in his activities as a member of the Union or of the Union's election committee.
For the above reasons it is concluded that the charge against the J. W. Partlan
Company should be dismissed.
Donald Miller Company-Harold Derocher
This Company is engaged in the plumbing and pipefitting business in the Detroit
area. It is a member of the Detroit Plumbing Contractors Association. Since 1937
it has employed Harold Derocher as its "general supervisor of its pipefitting crews."
Derocher directs the work of about 30 to 100 pipefitters, including the area foremen
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1393
and crew foremen, and receives a bonus of $3,500 in addition to his foreman's
rate. Derocher has been a member of Local 636 since 1934 and in recent years
has been a member of the Union's election committee. Derocher and Company
Vice President John Malloy testified to the facts in this situation. The General
Counsel failed to submit any evidence to indicate that Derocher's continued mem-
bership in Local 636 after he became a supervisor for the Miller Company resulted
in any particular benefit to the Miller Company or to the Detroit Plumbing Con-
tractors Association. Further, the General Counsel failed to show that the Miller
Company or the Association encouraged or authorized Derocher to continue his
membership in Local 636 or his participation in the Union's election committee.
There is no evidence furthermore, to indicate that either the Miller Company or the
Association created the impression among the rank-and-file employees that Derocher
was acting as agent of the Miller Company or of the Association in his activities as
a member of the Union or of the election committee. For these reasons, I conclude
that the charge against the Miller Company should be dismissed.
Farrington Company-Hugo Sieger
This Company is engaged in the plumbing and pipefitting business in the Detroit
area. It is a member of both the Detroit Plumbing Contractors Association and
the Mechanical Contractors Association. For the past 14 years it has employed
Hugh Sieger as its "general field supervisor" of its pipefitting crews with 25 to 80
pipefitters under his direction including 8 to 15 crew foremen. Sieger has been a
member of Local 636 since 1917 and has been a member of the Union's executive
board during the past 8 years. Extensive testimony was given by Sieger and Company
President Farrington. One of the functions of the executive board members is
to negotiate contracts on behalf of Local 636 with both the Detroit Plumbing
Contractors Association and the Mechanical Contractors Association. After the
Board's decision in the Nassau and Suffolk County Contractors' Association Inc.,
etc. case (supra) was issued, the negotiating committee of the Association protested
Sieger's participation in the bargaining negotiations. As a result, Sieger did not
participate in the contract negotiations in July 1958. Local 636 has since instructed
Sieger to refrain from participating in the bargaining negotiations and he has not
done so. The Board's Nassau decision being unavailable or having antedated
Sieger's last negotiating activities and having been timely complied with by all
parties, obviates the question of legal liability on part of the Company and Asso-
ciations. Thus this is distinguishable from the Nassau situation. The General
Counsel has failed to carry his burden of proof in the Sieger situation and accord-
ingly, I will recommend that the allegations of the complaint be dismissed as to
Farrington Company and both Associations as to this count.
The Farrington Company also employed Donald McNamara as a job foreman
for less than 1 year prior to November 29, 1957, and he has not been employed by
that Company since that time. McNamara joined Local 636 in 1949, and was elected
a member of the executive board in November of 1956. He received a foreman's
rate of pay in the amount of $1 an hour more than journeymen, but usually
worked alone or in company with only one or two other journeymen. However, on
one occasion or so he had 10 or 20 men with him as a job foreman. The evidence
indicates that McNamara was a very minor supervisor. After leaving Farrington,
he was employed by J. P. Davis Company, another member of the Association,
and received a foreman's rate of pay. The Davis Company was not named as a
Respondent or complained of in this case, although it is a member of Detroit
Association of Plumbers. McNamara, as a member of the executive board, par-
ticipated in contract negotiations in 1958 when employed by Davis Company and
had participated in the 1957 reopening session while with Farrington. With ref-
erence to the 1957 session, he is in the same situation as Sieger, and the same
reasoning would apply necessitating dismissal as to Farrington and the Associa-
tions. With reference to the liability of the Association of Plumbers for McNamara's
participation on the negotiating committee while working for Davis Company, I
believe that in this isolated instance, the purposes of the Act would not be effectuated
by finding an unfair labor practice against the Association as this, at most, would
be a technical violation, not warranting the abrogation of the entire area's contracts.
Such would fly in the face of the declared purposes of the Act. As a minor super-
visor he was only 1 out of 14 union negotiators on the teams of Local 636 and
Local 98. His presence could not possibly taint the 1958 bargaining processes.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it will be recommended that the complaint be dismissed as to Detroit
Association of Plumbing Contractors.
John E. Green Plumbing and Heating Company-John McGibbon and
Arnold L. Luzon
This Company was not named as a Respondent. McGibbon was a vice president
"without portfolio" of Green Plumbing Company and has been a member of Local
636 since 1935. He testified that he had not attended a union meeting for 2 years
and that he is presently in a withdrawal status with Local 636. He has no stock in
the Company and no interest except that he holds his position because the laws of
Michigan require three incorporating officers in a corporation. The General Counsel
presented no evidence that Green had ever been caused or encouraged to participate
in actions of Local 636 by management. In fact, Edward J. Green, president, tes-
tified that he was never aware of McGibbon's union activities. Accordingly it will
be recommended that the complaint be dismissed as to Detroit Association of Plumb-
ing Contractors insofar as they are charged with violations by countenancing illegal
activities on the part of McGibbon.
Arnold Luzon, job superintendent of Green Company has been a member of
Local 636 since 1922. Luzon was a job superintendent supervising 20 employees.
His only activity was that as a member of the election committee in recent years.
There is no evidence that he was ever importuned by management to use his union
position in behalf of management or that he has been encouraged or caused to par-
ticipate in union activities by management. The same situation obtains with ref-
erence to Luzon as does to McGibbon in that their activities are not chargeable to
the Detroit Association. Green Company has not been named, therefore I will
recommend that the complaint be dismissed insofar as Luzon is concerned as to
the Detroit Association.
Over the strenuous objection of General Counsel Pisarski, considerable testimony
was taken from union witnesses as to their subjective reactions in having their
various foremen holding offices in Local 636. All testified that they did not consider
their protected rights interfered with. Rather, it was accepted as a custom of long
standing, and in fact an honor awarded to faithful union "old timers." This evidence
is not crucial, nor even absolutely necessary and was not relied on in arriving at
the foregoing findings, but was admitted to illustrate the whole picture in this case.
Also, the evidentiary principle is the subject of very considerable conflict both in
State and Federal jurisdictions. Certainly in quasi judicial hearings in administrative
agencies, the admission of such evidence is a matter of discretion as to whether
it burdens the record, or unduly prolongs the hearing. The Trial Examiner refused
to take further similar testimony when he decided it would be cumulative.
Extensive and convincing testimony by president of Metal Trades Department,
AFL-CIO, Richard G. Gray, based on his 50 years' experience as to supervisors
customarily functioning in virtually every capacity as local union officers was given,
and considered. Secretary-Treasurer B. A. Gritta of Metal Trades Department
testified, from his experience, as to the longtime craft practice of supervisors serving
as union officers, including sitting on the collective-bargaining committees on behalf
of local unions. He also related that the nomenclature of supervisors was not
uniform throughout the industry, and illustrated the fact that the tenure of positions
was variable. Martin J. Ward, secretary-treasurer of United Association, testified
similarly that superintendents and general foremen served in similar official capacities.
Resume of Leading Germane Decisions
From the plethora or galaxy of cases cited and relied on, three require special
treatment. In the Indianapolis Newspapers, Inc. case, the employer had contractual
relations with the Newspaper Employees Guild, a labor organization representing
employees in the printing industry for many years. It is the custom in the printing
industry for unions representing rank-and-file employees to admit supervisors to
membership. The employer and the Guild had always included certain supervisory
employees known as zone supervisors and branch managers in the bargaining unit
set forth in the contract. During negotiations for a new contract, some of the zone
supervisors and branch managers became dissatisfied with the Guild's representation
of their interests. They disaffiliated from the Guild and began to organize an
independent union called the Association. They solicited among the rank-and-file
employees to join the Association, and after securing the signatures of a majority
of the employees induced the employer to recognize and bargain with the Association.
Several of the employer's zone supervisors and branch managers acted as negotiators
for the Association.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 1395
The General Counsel contended in subsequent proceedings brought before the
Board, that the employer violated Section 8(a)(2) of the Act by permitting its
supervisors to form the Association, to solicit members for it among the rank-
and-file employees, and to negotiate a contract on behalf of the Association. The
Board dismissed this allegation of the complaint because the General Counsel had
failed to show that the actions of the supervisors primarily engaged in were to
the benefit of the employer's interests and that the employer had instigated and
encouraged their activities or that the Company had acted in such a manner in the
situation that the rank-and-file employees would believe that the supervisors were
acting as agents for and in the interests of the Company.
In the subsequent, Nassau and Suffolk County Contractors' Association Inc, etc.
case, in which building and construction industry supervisors were involved, it was
shown that in this industry, like the printing industry supervisory employees tradi-
tionally belong to the rank-and-file unions and are usually included in the contract
bargaining units established by employers and unions in the industry. The Board
reaffirmed the rule laid down in the Indianapolis Newspapers, Inc. case with one
exception. In the Indianapolis Newspapers, Inc. case the Board did not find that the
Company violated the Act when it permitted the zone supervisors and branch mana-
gers to act as negotiators for the Association. But in the Nassau Contractors Asso-
ciation case the Board said the Association violated Section 8(a)(2) by permitting
the master mechanics to act as negotiators for the Union. This was the first time
the Board announced its policy that the mere knowledge of and acquiescence on the
part of the employer of his supervisors acting on the union's negotiating team is
sufficient to make him liable under Section 8(a)(2) of the Act. If he fails to
protest the exclusion of the supervisors on the union's negotiating team and he
bargains with them, the Board holds him liable on the theory that the employer
is "interfering with" the rank-and-file employee's statutory right under Section
8(a)(2) to be represented by persons who have an "undivided loyalty" to their
interests. The rule appears to be one of necessity and is based on the public
policy of Congress, clearly apparent in the legislative history of the Act, that the
collective-bargaining process should at all times be clear of employer influence or
control, actual or potential.
In the subsequent Geilich Tanning Company case, supra, the employer had con-
tractual relations with an independent union for several years, with foremen always
forming part of the bargaining unit of the contract. These foremen also were and
had always been members of the independent union. Six months before the exist-
ing contract between the Company and the independent union was due to expire
an outside union began to organize the Company's employees. One of the working
foremen, Delaney, who had been a member of the Independent for many years and
had at one time acted as its president, actively supported a proposal, made at that
time by some members of the independent union, that the existing contract should
be renegotiated immediately, and a new 2-year contract be executed with the em-
ployer. The proposal was adopted by the members of the Independent and there-
after a request was made upon the employer to negotiate the new contract. The
employer agreed and thereafter a negotiating team was selected by the president of
the independent. However, it is important to note that neither Delaney nor any
other working foremen were selected to act as negotiators for the Union. A new
contract was agreed upon which granted some fringe benefits which had not been
included in the old contract. The Board found that the new contract had the
effect of forestalling and defeating the outside union's campaign to organize the
Company's employees. Upon charges being filed by the outside union against the
employer for violation of Section 8(a) (2) alleging domination of or assistance to the
Independent, the Board found, reversing the Trial Examiner, that although the ac-
tions taken by the supervisors in the independent union in supporting the proposal
for the negotiation of a new contract proved beneficial to the employer in that he
was not forced to face conflicting claims of representation, he secured renewed sta-
bility in his labor relations by executing the new contract. The Board found as a
fact that the actions of the working foremen at the union meetings in advocating
and helping put through the proposal to renegotiate the existing contract were taken
primarily for and in the interest of the rank-and-file employees, and not for benefit
of and in the interests of the employer. It is noted that the employer did not
encourage or instigate the working foremen particularly to support the proposal to
renegotiate the contract. It is also noted that no working foreman was selected to
act as a negotiator for the Union, and that the new contract did result in some
new benefits to the rank-and-file employees. It is further noted that the rank-and-
file employees had requested these benefits of the employer prior to the outside union
coming into the picture.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Companies and Associations are engaged in commerce within the
meaning of the Act.
2. International and Local Unions are labor organizations within the meaning of
the Act.
3. Respondents have not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
Bonnie Lass Knitting Mills, Inc . and International Ladies'
Garment Workers ' Union, AFL-CIO
Bonnie Lass Knitting Mills, Inc. and International Ladies'
Garment Workers ' Union, AFL-CIO. Cases Nos. 22-CA-245
and 22-CA-311. March 31, 1960
DECISION AND ORDER
On June 18, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs and memoranda and the Charging Party filed
a memorandum in support of the Intermediate Report.
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 Inter-
mediate Report, the exceptions, briefs, and memoranda , and the en-
tire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner , with the following
additions and modifications.
1. The Trial Examiner found, and we agree, that by threats of
closing the plant, and by promises of economic benefits if the Union
did not come into the plant, the Respondent violated Section 8(a) (1)
of the Act.
2. We agree with the Trial Examiner's finding that the Union
represented a majority of the Respondent' s employees in an ap-
propriate unit on June 3, 1958, when the Respondent refused to bar-
gain, and that the Respondent, by refusing to bargain with the
Union on that date, violated Section 8(a) (5) of the Act. As did the
Trial Examiner, we find that the Respondent did not have a good-
126 NLRB No. 1.64.