Detroit Plastic Products Co.

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1014 (N.L.R.B. 1955)

fflt4 , DECISIONS OF NATIONAL LABOR RELATI ONS BOARD
several States, and tend to lead to labor disputes burdening and obstructing com
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
affecting commerce, the Trial Examiner will recommend that it cease and desist there-
from and take affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Furniture and Appliance Salesmen's Union, Local No. 981, Retail Clerks
International Association, AFL, is a labor organization within the meaning of
,Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
4. T he preponderance of evidence does not sustain the allegations of the complaint
that the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
H. H. Erikson and Erik E. Erikson , Co-partners, d/b/a Detroit
Plastic Products Company and Rosella Katulski . Case No.
7-CA-1157. November 16, 1955
DECISION AND ORDER
On April 19,1955, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the General Counsel and the Respond-
ent filed exceptions 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 Intermedi-
ate Report, the exceptions and the briefs, and the entire record in t he
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in-the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
114 NLRB No. 163.
DETROIT PLASTIC' PRODUCTS COMPANY 1015
Board hereby orders that the Respondent, H. H. Erikson and Erik
E. Erikson, Co-partners, d/b/a Detroit Plastic Products Company,
Detroit, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in,
or activities in behalf of, any labor organization.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Post at its plant at Detroit, Michigan, copies of the notice
attached to the Intermediate Report marked "Appendix." 1 Copies
of said notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being duly signed by the Respondent's represent-
ative, be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8 (a)
(2) and (1) of the Act by contributing to the support of, dominating,
or interfering with the administration of the Employees Representa-
tive Group, and insofar as it alleges that the Respondent's notice to its
employees independently violated Section 8 (a) (1) of the Act.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
1 This notice shall be amended by substituting in the caption thereof the words "A
Decision and Order" for the words "The Recommendations of a Trial Examiner " 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 "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
1016 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charge, dated August 23, 1954, and December 6,
1954, respectively, filed by Rosella Katulski, an individual, herein referred to at times
as "Rosella," the General Counsel of the National Labor Relations Board, herein
called the General Counsel and the Board, issued his complaint and notice of hear-
ing thereon against H. H. Erikson and Erik E. Erikson, Co-partners,, d/b/a Detroit
Plastic Products Company, Detroit, Michigan, herein called the Respondent, alleging
violations of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the Act.
Copies of the charges, the complaint, and notice of hearing thereon were duly
served upon the Respondent, the Charging Party, and a representative of the allegedly
dominated labor organization named in the complaint.
With respect to the unfair labor practices, the complaint, as originally issued, and
thereafter as particularized in accordance with an order, issued by W. Gerard Ryan,
Trial Examiner, dated January 24, 1955, in disposing of a motion filed by Counsel
for the Respondent for a "Further and Better Statement of Facts," alleged in sub-
stance, insofar as the alleged unfair labor practices are concerned, that the Re-
spondent: (1) By its officers, agents, representatives, and employees has since on or
-about August 16, 1954, and continuing to the date hereof, engaged in a continuous
course of interference, restraint, and coercion of its employees in the exercise of
-their rights as guaranteed in Section 7 of the Act; and (2) by its officers, agents,
and representatives has since the year 1952 or thereabouts and at all times thereafter,
continuing to the date hereof, dominated and interfered with the formation and
administration of a labor organization, herein referred to as the Employee Represent-
ative Group, and/or its various committees. The complaint then goes on and alleges
certain particular acts in furtherance of the conduct described above. It further
alleges that by said described conduct the Respondent has dominated and interfered
with, and is dominating and interfering with, the formation and administration of a
labor organization of its employees, has contributed and is contributing financial
and other support to said labor organization, and has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act.
Respondent duly filed an answer in which it admitted certain pertinent facts as
regards its business operations but denied certain other allegations in the complaint
as regards its sales of finished products to the Aluminum Toy Products Corporation,
and neither admitted nor denied that it was engaged in commerce within the meaning
of the Act. Answering further it denied the commission of any of the alleged unfair
,labor practices.
Pursuant to notice a hearing was held on February 8, 9, 10, and 11, 1955, before
the duly, designated Trial Examiner at Detroit, Michigan. The General Counsel and
the Respondent were represented by Counsel and the Charging Party appeared in
person and entered an appearance, but thereafter did not choose to participate in
the proceedings.
At the close of the hearing all parties were advised of their privilege to orally
argue their respective positions before the Trial Examiner. All waived the privilege.
They were also advised of their right to file proposed findings of fact and conclusions
of law and briefs in support thereof. To date none of the parties have taken ad-
valitage of this opportunity. Since the time for filing thereof has expired the Trial
Examiner concludes that this privilege has likewise been waived by all parties.
- Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
As indicated above the Respondent admitted certain facts as regards the nature
of its business operations but neither admitted nor denied that it was engaged in
commerce within the meaning of the Act. Upon the admitted facts as regards its
-b'usiness operations and certain stipulations made at the hearing herein the Trial
Examiner makes the following findings in this regard.
H. H. Erikson' and Erik E. Erikson are, and have been at all times material
hereto, copartners, doing business under the trade name and style of Detroit Plastic
Products Company, with its principal offices located at East Detroit, Michigan. At
all times material hereto it has operated and maintained its manufacturing plant at
1 H. H. Erikson is the wife of Erik E. Erikson.
DETROIT PLASTIC. PRODUCTS COMPANY :1017
-21614 Grossback Highway, in East Detroit, Michigan, where it is engaged in the
manufacture, sale, and distribution of plastic injected molded products.,
The Respondent annually, in the course and conduct of its business, sells goods and
products valued in excess of $100,000 to concerns located in the State of Michigan,
each of which annually ships goods valued in excess of $50,000, to points located
outside the State of Michigan. During the year 1954, Respondent sold goods valued
in excess of $100,000, to Aluminum Model Toys, Inc.,2 a Michigan company which
annually ships in excess of $50,000 worth of products directly to points located out-
side the State of Michigan. The aforesaid goods sold by Respondent are directly
utilized by Aluminum Model Toys, Inc., in the manufacture of its own products.
In view of the foregoing, and upon the record considered as a whole, the Trial
Examiner finds that the Respondent herein is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upon the record considered as a whole, and for reasons which will be fully set
forth below in that section of this report styled "The alleged violation of Section 8
-(a) (2) of the Act," the Trial Examiner concludes and finds that the so-called "Em-
ployee Representative Group" is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8 (a) (2) and (1) of the Act
In the considered opinion of the Trial Examiner no proper understanding of the
issues involved herein could be had. without a resume of the Respondent's business
operations from the time it started up to and including times material herein.
According to the uncontradicted, undenied, and credible testimony of Erik E.
Erikson, the Respondent is a copartnership, composed of himself and his wife, H. H.
•Erikson. It started its business operations on or about February 7, 1950. At the
time it started the Respondent had only .1 employee, Howard Caughill, now plant
superintendent, and 2 plastic molding machines, but had only enough business to
.keep 1 in- operation. Erikson and Caughill ran the business for several months.
Both operated the. machine and worked side by side 8 to 10 hours per day. As the
business grew additional machines were installed in the plant. By the summer of
1952 the Respondent had about 15 girls in its employ. During this period Erikson
continued to work side by side with the employees, operating machines, packing the
finished products, and at other odd jobs in and around the plant. At the same time
he was acting as general manager, salesman, or as he put it, "chief cook and bottle
washer." His activities in the summer of 1952 are best described in his testimony
in this regard at the hearing herein.
Q. Now, do I understand that as of 1952 you still were taking turns on the
machine? I mean relieving anybody?
A. No, I -Wasn't relieving anybody at that time. We had gotten relief girls
by that time.
Q. Just exactly what kind of work did you do around the shop in 1952?
A. Well, we had general things, such as keeping stock close to the machine,
or packaging. I was supervising that end of it. We had 'a project at that time
which was packaging a little toy gun, and it was quite a mess, and I had to go
out in the plant and dig right into the work.
Q. You worked right in just like one of the girls, is that correct?
A. Yes.
Q. Do you still do that on trouble sometimes?
A. Yes, on some that we have trouble on. I try not to do it.
Q. Approximately how much of your time were you spending in the shop
actually working, either supervising or changing dies, or supervising the packag-
ing or working on packaging? I mean physical work that is ordinarily done by
an employee? About what percentage of your time were you spending on that
type-of work in 1952?
A. I would say about fifty-fifty, Miss Edwards.
Q. You mean about fifty per cent in the shop and about fifty per cent in
the office?
A. Yes, office or outside. I had to go out and do some selling, too.
2 At the hearing herein the General Counsel amended his complaint to show the true
name of this Company. It originally read "Aluminum Toy Products Corporation."
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Q. So you did have constant contact with all-correct me-with the em-
ployees on what shift?
A. Most of the day and part of the afternoon.
Q. That's in 1952?
A. Yes.
From what the Trial Examiner gleans from the record the "International Union,
'Doll, Toy-Novelty Workers Union, AFL," herein called the Union, started an organi-
zational drive amongst the Respondent 's employees sometime in either July or
August 1952. The record clearly shows that there was considerable talk amongst
the employees about the Union-usually amongst themselves and not with either
Erikson or any other representative of management. According to the credible testi-
mony of Joyce Constance, a witness called on behalf of the General Counsel, and of
whom more anon, the employees had been advised by a representative of the Union
to refrain from "talking up" the Union either on company time or property, and to
also refrain from discussing it in the presence of representatives of management.
Nevertheless, Erikson who at this time was spending about 50 percent of his time
working in the shop, by the very nature of the physical setup in the shop, was well
apprised of what was going on and the discussions pro and con amongst the em-
ployees as regards the Union. Regardless of this situation, however, there is no
substantial evidence in the record tending to show that either Erikson or any other
representative of management interfered in any manner during this period with the
employees in the exercise of their statutory right to engage in either union or other
concerted activities. Sometime in August 1952, the Union filed a petition for certifi-
cation of representative pursuant to provisions of Section 9 (c) of the Act, Case-
No. 7-RC-1875. Thereafter the Respondent and the Union entered into a consent
election agreement . On August 22, 1952, the Board , pursuant to this agreement,
conducted an election amongst the Respondent's employees. The result of the elec-
tion was as follows: I1 against the Union and 4 for the Union. No objections to the
conduct of the election were filed by the Union.
We now come to the formation or organization of the so-called "Company Union,"
if one may borrow a phrase from the vernacular of the day in the field of labor
relations . To begin with there is little if any conflict in the testimony elicitated at
the hearing herein from the witnesses called by both the General Counsel and the
Respondent in support of their respective positions , as regards the formation and the
activities of the labor organization which the General Counsel alleges the Respondent
"has dominated and interfered with and is dominating and interfering with the forma-
tion and administration of" and "has contributed and is contributing financial and
other support to ," and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
As indicated immediately above there is little, if any, conflict , in the testimony of
the witnesses who testified at the hearing herein as regards the formation and activities
of the so-called "Employee Representation Group." After a careful persual of the
record herein the Trial Examiner is convinced that the best account thereof is found
in the testimony of Joyce Constance, a witness called on behalf of the General Counsel
in support of his case -in-chief. She impressed the Trial Examiner as an intelligent and
honest witness . Consequently he fully credits her testimony in this regard , a summa-
tion of which follows immediately below.
She was hired by 'the Respondent sometime in March 1952 . At 'the time of the
hearing herein she was employed as a relief operator . As such she was required to
relieve the machine operators during their rest periods, which at all times material
herein consisted of two 10 -minute recesses a day and a 20-minute period for lunch.
When not so occupied she worked as a packer . She was paid by the hour and received
the same hourly rate as the machine operators. The record clearly shows that she was
not a supervisory employee within the meaning of the Act. At the time of the hearing
herein , and for at least 2 years prior thereto , she was the oldest employee on the shift.
As indicated above the record shows that there was considerable talk among the
employees both pro and con as regards the Union . After the election was over, and
the Union had been overwhelmingly rejected by the employees , they continued to dis-
cuss the merits and demerits of some form of "collective bargaining" representation
to present their everyday problems, such as grievances and the like, to management.
They realized that it was impracticable for each individual who had a "gripe" or a
grievance about her work to run into the front office with it willy-nilly, so to speak,
everytime such a problem arose. The very nature of their work precluded such a
procedure. It must be remembered that the machine operators were required to stay
at their machines , until they were relieved by the relief operator . As will be shown
hereafter the machines were of a type that could not be shut down at the -whim' and
a caprice of the operators . To have done so would have caused a considerable eco-
DETROIT PLASTIC PRODUCTS COMPANY 1010
nomic loss to the Respondent. The end result of their discussions as regards some
form of representation and their feeling in this regard is likewise best told in Con-
stance's own language. An excerpt from her testimony in this regard follows below.
Q. (By Miss Edwards.) In connection with the original formation of the
group, or the original election of representatives, do you recall whether or not a
movement for such a group started on your shift?
A. It was all shifts.
Q. All of the shifts started it?
A. Yes.
Q. They had just defeated a union. Why do you think they wanted that kind
of a setup? Why do you think they wanted to get a grievance committee?
A. Because there were a lot of things the girls did want, and to pester Mr. Erik-
son time after time-he was too busy-and so we just had the girls go in there.
That was their job, to take in the grievance for the girls if they wanted something,
if they weren't satisfied.
As a result of the discussions among the employees they decided to select one of
their coworkers on each shift to present their problems to the Respondent, that is
Erik Erikson. From what the Trial Examiner gleans from the record the employees
actually started their so-called "Employees Representative Group" sometime in either
the latter part of September or early October 1952. The record shows that prior
thereto there had also been considerable discussion between the employees on the
three shifts in this regard, usually in the ladies' restroom as the shifts were changing.
According to Constance she was selected by the employees on her shift by an in-
formal voice vote, or verbal agreement, because she was the oldest employee in point
of service. The record shows that a similar procedure was followed on the other
shifts, concerning which more anon below.
That Erikson was apprised of the employees' activities in this regard is well estab-
lished in the record by the credible testimony of Lillian E. Cornwall, who at the time
was employed as Erikson's secretary.
According to Cornwall it was her custom to mingle with the employees during the
lunch periods. Since the shop was small and there were only about 15 or 20 em-
ployees at this time she came in contact with most of the girls in the shop, in this man-
ner she came to know most of them and would eat her lunch at "random" periods,
as she put it, with first one and then the other, depending on who was free at the time.
During these visits she discussed with the girls their individual and mutual problems.
During the course of these tete-a-tetes the girls on several occasions discussed some
form of representation to discuss their problems with the Respondent. While there
had been some discussion with her in this regard before the election, no definite action
was taken until sometime after the election was held on August 22, 1952. Cornwall's
testimony in this regard follows below.
Q. Then they-did they come to you about-did any of the girls come to you
about a representative group, or did Mr. Erikson9 I mean first?
A. The girls. I often ate lunch with one or two of them, whoever happened
to be free at the time that I was free to go. I had no established lunch hour.
I went at random, whenever it was apportune for me to do so.
Q. Did you discuss the matter of such a group with Mr. Erikson?
A. I believe I mentioned to him that the girls made the suggestion.
Q. What did he say to you?
A. Now, what period are you talking about, Miss Edwards?
Q. This is after the election.
A. After the election I came to Mr. Erikson again, and confronted him with
the question of whether or not the girls could form their representative group for
their immediate shift, and he said to do whatever might please the girls that
worked with them, and anything that was feasible for management.
Q. Did he tell you to give them ballots, pencils, and paper, as he testified?
A. Yes, I passed paper and pencils out to their respective machines, or wher-
ever they were stationed at the day's work.
Q. Do you know whether or not they were used?
A. I don't believe so. I went out prior to going to lunch the morning that
the day shift was to have done so, and there were no slips available. They
had appointed a girl.
Q. They had appointed a girl?
A. Yes, it was a verbal agreement, a ladies' agreement, I believe.
Q. Have you any idea how the girls were elected on the afternoon shift?
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.,d believe it was the same procedure. I again passed pencils and paper,-
and as far as I can recall, Eileen, a girl at ;the front machine, was elected to
serve as a representative. I ,
Q. You mean she had already been elected when you took} the paper
out?
A.-Apparently, or during the course of the day. I believe' their lunch
hour was over, or after I had left for the day, but I know it was definitely
established. There had been some talk in the washroom.
Q. Had there been any campaigning among the girls for any of them to be
elected steward or committee woman or anything? Had anybody been pro-
moting candidacies?
A. I don't believe so. Not to my knowledge.
Q. Were there any restrictions on this election?
A. No, I think it was pretty much up to the girls to make the decision.
After the employees on the three shifts had selected their representatives, Cornwall
arranged their first meeting as a group with Erikson. She was present at the meet-
ing and took notes as to what transpired at the time. As she recalled the incident
at the hearing herein, first thing the representative did was to ask for a raise. Erikson
advised them in substance that at that time it was economically impossible for the
Respondent to grant any increase in wages but that it would do so just as soon as
business conditions warranted an increase, which it did some few weeks later.
Cornwall's testimony insofar as the passing out of the ballots and pencils to the
employees is concerned was corroborated by that of Alice DeCook. According to
DeCook, Cornwall came around to the employees on her shift with the ballots and
pencils, but they did not use them because they had already selected her by voice
vote or verbal agreement to be their representative, on a seniority basis after an-
other employee, Sue Sky, had refused to serve as such for personal reasons.
DeCook's credible testimony as regards the formation and activities of the so-
called "Employees Representative Group" follows below:
Q. Specifically do you recall any suggestions from anybody in a position
of authority or representing Management, suggesting that such a committee be
formed?
A. No, I don't.
Q. Can you tell, to the best of your recollection, what the first instance was
when you ever heard of the idea of having a committee or thought of it, or
discussed it?
A. After we had the vote for the union Mr. Erikson said, "If you girls have
any complaints or any gripes, feel free to come in and tell me," and, well, we
figured if he had one of us going in there all of the time his office would be
full of girls complaining, and we decided to select one girl and have the other
girls go to her with their gripes and griefs and so on.
Q. Do you recall any grievances that you were unable to get adjusted?
A. No, I don't.
Q. Do you recall any restrictions being put on the topics that you could
bring up?
A. No, I don't.
Q. Do you recall having a disagreement with Mr. Erikson, you or any other
member of the committee? I mean being at odds when you were in there?
A. No.
Q. Did you always agree on everything you proposed?
A. We discussed it and talked it over, and he adjusted' it to the best of his
ability. Like I say, it took time for the raise, but we got it.
Q. How did you report the results of your committee meetings to the
girls?
A. On our reliefs and our lunches we would stop and tell them what we had
discussed at the meeting.
Q. How did you find out what they wanted taken up?
A. If they had anything, anything they wanted taken up, they would come
to us and tell us, or else before the meeting we would go up to them and
ask them if they had anything they wanted to be reported.
Q. Did you discuss this matter with the foreman before you went in to Mr.
Erikson?
A. No.
Miss EDWARDS: Your witness.
TRIAL EXAMINER: Any cross examination , Mr. Farkas?
Mr. FARuAs: I guess a little bit.
DETROIT PLASTIC PRODIICTS COMPANY- 1021
The Trial Examiner has indicated above that the testimony of Joyce Constance was
corroborated by that of several other witnesses, called by both the General Counsel
and the Respondent. Among those called to testify on behalf of the General Counsel
in support of his case-in-chief was Martha M. Paga, at the time of the hearing herein
the group representative for the night shift. In addition to her testimony that she
subscribed to that of Constance, she offered certain other testimony that has a bearing
on the issues herein. In the course of her testimony on cross-examination she testified
that she was chosen as representative of the employees on the night shift under the
following circumstances.
Q. I am going away back to the time you were elected shift representative.
A. The very first time?
Q. The very first time. How were you elected? Did the girls have a meeting?
A. No, the first time I was the third girl on the midnight shift. The midnight
shift was only two weeks old when I started working there-
Q. What do you mean, you were the third girl?
TRIAL EXAMINER: Let her finish her answer.
The WITNESS: They had started the midnight shift after the fourth of July,
and-let me see-well, as new girls were hired in, and the two other girls were
transferred to the day shift, and that made me number one girl on the midnight
shift, and as new girls came in I taught them, showed them how to run the press,
and, why, the time-the well, let's see now. I don't know how to word it.
TRIAL EXAMINER: What happened?
The WITNESS: When Mr. Erikson asked to have a meeting by a representative
of the girls, the foreman at the time was Harold. I don't know his last name.
He evidently was informed there was to be a meeting, and he asked me, because
I was the oldest girl on the midnight shift, to represent the girls to start off.
Then that was sometime in March. My first meeting was in March, 1953.
TRIAL EXAMINER: You were the only girl on the shift?
The WITNESS: No, we had new ones.
TRIAL EXAMINER: Oh, I see.
Q. (By Miss Edwards.) Didn't the girls have anything to say about it?
A. Not at that time. It was sort of new. The midnight shift was a little slow
getting into this, and Harold asked me, being I was the oldest girl on midnights, to
start it off.
Q. Then did you have an election afterwards?
A. Not until we had, all three of us, had the election, and I had nothing-I
didn't pass any papers or anything, but when I came on duty at eleven o'clock,
after our afternoon meeting, all of that was already settled, the first ten-minute
relief period at one o'clock, one a. m., Shirley Klinefelder called me over to her
machine and told me, said, "Martha, we want you to continue to represent us."
Q. That was after you had been meeting about a year, or when was it?
A. This was in August.
Q. In other words, from March to August you met by sort of appointment?
A. Yes.
It was later established for the record that the "Harold" mentioned by Paga in her
testimony as being a foreman was Harold Shalk. Other than her testimony that
"Harold" was a foreman, there is not a scintilla of evidence in the record as to just
who he was, what his duties were, or when he worked for the Respondent. Nor was
it established in the record either by stipulation or otherwise that Shalk's position
with the Respondent was such that his emoluments and duties were of a nature to
classify him as a supervisory employee within the meaning of the Act. In such
circumstances the Trial Examiner cannot find that Shalk was a supervisory employee.
The mere fact that Paga, a rank-and-file employee, dubbed him a "foreman" in the
course of her testimony before the Trial Examiner is not enough. Such a finding by
the Trial Examiner must be supported by a preponderance of the reliable, probative,
and substantial evidence when considered in the light of the whole record. Since
such evidence is lacking here the Trial Examiner shall ignore Paga's testimony in this
regard, on the ground that as it now stands in the record it is devoid of probative value
and cannot be used as a predicate to a finding that Shalk was at times material herein
a supervisory employee within the meaning of the Act.
In the course of her testimony, Paga also testified that she received 2 hours' pay
for participating in the monthly meetings between management and the "group."
Whether or not she meant that the 2 hours was added to her regular weekly wages or
that she was paid her regular hourly rate for the time she spent at the meetings, is not
too well established in the record, particularly in view of the testimony of Constance
and other representatives that they received no extra pay for attending the meetings,
1022 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and were paid their regular rate for the time spent in the meetings , which all agreed
usually lasted for about 2 hours. Since Paga worked on the midnight shift, 11
p. m. to 7 a. m., and the meetings were usually held between 4 p. m. and 6 p. m. on
the second Monday of each month , it well may be that she was paid by the Respondent
for going to the trouble of leaving her home to participate in the meetings which as
indicated above were held at least 7 hours before she was expected to report for
work . Paga impressed the Trial Examiner as an honest and forthright witness, and
he credits her testimony in this regard . Its effect on his ultimate findings herein will
be disposed of below.
Erik Erikson's [one of the copartners ] accounts of the formation of the so-called
"Employee Representative Group" was in substantial agreement with that of the
employees who testified herein in this regard. According to Erikson, who impressed
the Trial Examiner as an honest and forthright witness, 5 or 6 of the employees came
to him shortly after the Board election on August 22, 1952, and informed him in sub-
stance that they would like to have some means to present their problems to manage-
ment. His testimony in this regard, which the Trial Examiner credits, was as
follows:
Q. What was your response to the several people who asked you if there
were some way of setting up some formal channel of communication?
A. My immediate response was that if this was the wishes I didn't want
to stand in their way. I told my secretary, Miss Lillian Cornwall, at the time,
to give them the cooperation that may be necessary to grant their wishes.
Q. What did you tell the people themselves, when they talked with you?
A. Well, I said, "I am glad to hear that there are some differences," be-
cause I wasn't aware of too many differences that were of any consequence.
Perhaps I wasn't able to differentiate between the important ones and the ones
that were grievances coming to me in a kidding manner, and therefore I gained
a serious composure and realized there were some legitimate grievances that
I would have to face.
Q. Did you tell these people that, that came to you?
A. No, I was quite mute on the subject insofar as-I was quite embarrassed
to know that I had been so close to the people and did not know they did
have legitimate gripes, and therefore, I instructed my secretary to give them
the cooperation.
Q. Well, I know, but what I want to know now is do you recall, for in-
stance, any single instance of any particular person coming to you , either in
your shop or in your office, saying, "How about having a grievance committee
of some kind?" Do you recall any single instance of that, by either one per-
son or some two or three persons?
A. Well, as my memory serves me, if it serves me right, Miss Edwards, I
think Miss Virginia Nowack was championing the cause, and Miss or Mrs. Alice
DeCook was championing the cause. They were the outstanding ones.
Q. Now, what did you say directly to either of them about the matter
when they brought it up9
A. Verbatim, I can't recall, Miss Edwards.
Q. What was the substance of what you said?
A. I only indicated if this is what they wanted then we would cooperate
with them. "If this is what you want, we will cooperate with you."
Q. By "you" did you mean them, or did you mean the shifts, or who did
you mean by "them"-by-Was that singular or plural?
A. That means the company would cooperate with them.
Q. When you told the girls, "If this is what you want"-who wants?
A. I meant the girls.
Q. All of them, or just Alice-
A. All of them, all of them. All of them were interested in this.
Q. Now, is this just the day shift you are talking about, or are you talking
about the afternoon shift, too?
A. It was on both the days and afternoons.
Erikson further testified that he had no knowledge that the Harold Shalk, referred
to above in Paga's testimony, had requested her to serve as a representative of the
employees on her shift.
During the course of the General Counsel's interrogation of Erikson on cross-
examination he was questioned as regards a meeting of the employees on the day
and afternoon shifts. He testified that no such meeting was called either by him
or by the employees, and that consequently he at no time ever discussed with the
employees on the shifts referred to above as a group the organization of the so-called
DETROIT PLASTIC PRODUCTS COMPANY 1023
"Employee Representative Group ." He was then confronted with an affidavit
he had executed and given to the Board field examiner who investigated the charges
herein . The affidavit contained, the following. statement , "After the- last N . L. R. B.
election, about 21/z years ago, which the Union lost, I saw the need for employee
representative . I give the employees ballots which were passed out and a representa-
tive was elected on each shift. I think I held a meeting of the day and afternoon
shifts to inform like employees of the purpose of the system." [Emphasis supplied.]
When confronted with this apparent inconsistency between his oral testimony be-
fore the Trial Examiner and the statement in his previously executed affidavit, he
explained that while he had discussed at some length the formation of the "Employees
Representative Group" with the field examiner, he did not make the statement
attributed to him in the affidavit, and that he had not examined the statements there-
in as carefully as he should have before he executed it. He then went on to ex-
plain that what he meant was that he had discussed the formation of such a group
with the employees on the two shifts referred to on several occasions during his
trips through the plant. He then pointed out that the very nature of the Respondent's
business operations , particularly the design and construction of its plastic molding
machine, made such a meeting next to impossible , since the machines in use at that
time required an operator to be in attendance at all times while the machine was in
operation . As the Trial Examiner sees it , it was for this reason that the Respond-
ent used relief operators, such as Constance, to take over the machines for the girls
when they took their 10-minute recesses.
After carefully considering the entire record the Trial Examiner is convinced
and finds that Erikson 's testimony at the hearing herein was a true account of his
activities as regards his role in the formation of the so-called "Employees Rep-
resentative Group ," and that the statement in the affidavit given a field examiner
of the Board in this regard was erroneous. As a matter of fact the Trial Examiner
sees little variance in the two statements . His reasoning in this regard is predicated
on the fact the phrase "meeting with the- employees " quite easily could be accom-
plished mingling^with either groups of employees in the course of his rounds through
the plant or by discussions with individual employees while they were "tied," so to
speak, to their machines.
Further evidence as regards the formation of the "Group " is found in the credible
testimony of Julia Schaller . In the main her testimony corroborated that of Con-
stance , DeCook , and Erikson as regards the formation of the "Group ." She suc-
ceeded DeCook as representative for the employees on the day shift and served
thereafter as such for about a year . From what the Trial Examiner gleans from
her testimony the idea of forming the "Group " stemmed originally from the em-
ployees themselves , and not from either Erikson or any other representative of
management . Moreover , her testimony as regards the selection of shift representa-
tive is likewise corroborative of that of the witnesses mentioned above. She too
was chosen by the employees on her shift as their representative on a seniority basis
in the same mode and manner as described by Constance, DeCook , and others in
their testimony.
So much for the formation of the "Employees Representative Group." We now
turn to the functioning of the "Group" and its relations with the Respondent. The
record clearly shows without contradiction that the "Group," makeshift, as it clearly
was, nevertheless did function as a labor organization . There is no question but what
it did take up with the Respondent such legitimate bargainable questions as wages,
hours, conditions of employment, such as grievances or "gripes" of the individual
employees, and the like. A composite of the credible testimony of witnesses called
by both the General Counsel and the Respondent is most interesting, and clearly
shows that the organizational setup of the "Group" was to say the least most
"nebulous." As a matter of fact it never had a name until the hearing herein, when
it was "dubbed" the "Employees Representative Group" by the General Counsel,
with the acquiescence of counsel for the Respondent, and without objection by those
representatives of the "Group" who had either been served with a copy of the com-
plaint herein, or were physically in attendance at the hearing. The record also
shows that though the "Group" was at times material herein and is a labor organiza-
tion within the meaning of the Act, as the Trial Examiner will find below, it never
has had any of the "trappings" so to speak, that one usually expects to find in any
organization. For example, it has no constitution or bylaws, written or otherwise;
no officers, such as president, secretary, treasurer, etc; no dues or initiation fees;
no formal books or records; each shift representative keeping her own notes of
matters she deems of importance, no insignia; and no formal meetines are held either
by the employees on the separate shifts or of those on any combination of shifts.
Moreover, it has no formal procedure for accepting employees into membership.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The sole requirement in this regard is that one must be an employee of the
Respondent.
The group representatives hold no formal meetings among themselves . The only
time they meet is when they as a group meet with management the second Monday
of each month. These meetings are held in Erikson's office and usually last for
about 2 hours. At this time the representatives take up with the Respondent any
"gripe" or grievances or requests made to them by the employees on their respective
shifts. These matters are then discussed and disposed of one way or the other. In
addition Erikson tells the representatives his problems and advises them of the
Respondent's plans, etc.
The record shows that it was the custom of each of the representatives to go to
the employees on her shift the day before the meeting with the Respondent and ask
each and every employee if they have any problems or grievances that they wish
taken up and discussed at the meeting. If any complaints or "gripes" are lodged
with the shift representative by any of the employees on her shift they are brought
up at the meetings and fully discussed with the representative of the Respondent:
There is no evidence that either the employees or their shift representatives were
restricted in any manner by the Respondent as regards the nature of the complaints
lodged by the employees. In addition to complaints, the employees from time to
time requested their representatives to secure various articles for their comfort
ranging from garbage cans to furnishings for their restroom which were presented to
the Respondent and favorable action taken thereon. After the meetings were over
it was the custom for the shift representatives to report back to their fellow employees
what transpired at the meetings. As a matter of fact the employees expected a
report from their-shift representative and their failure to do so was openly resented
by the employees. That this was so is amply demonstrated in the record by the
testimony of Dixie Plunkett, who testified that the employees replaced her as their
representative because they felt that she had neglected to give them a full and
complete report on what had transpired at the meetings.
The record also shows that an employee can request the shift representative to
go with her personally to the Respondent's representatives to discuss a grievance or
a problem at anytime, and is not required to wait until a formal meeting of the
group. Moreover, employees may on their own initiative go directly to- either
Erikson or other representative of management and discuss their problems personally
at any time and are not required to first go to their group representative.
The record further shows that the "Group" over the years has been successful in
having the Respondent establish certain rules, such as asserting seniority in "bumping"
an employee with less seniority for shift assignment , sick and maternity leave
privileges, and one seniority or employees who take a voluntary leave of absence.
The "rules," as they were called by the members of the "Group" at the hearing herein;
are first posted on a bulletin board in the plant and then filed in the Respondent's
offices. No formal book of rules has ever been published or distributed to the
employees by the Respondent. The record shows that the reason for this is because
the Respondent expects to move to a new plant in the near future and if and when
that occurs it will be necessary to change some of the present rules and negotiate as
regards new ones on account of the physical setup of the new plant. Some of the
rules that the parties expect to change being those relative to smoking in the shop
and matters of a similar nature. After the new rules have been agreed upon the
Respondent expects to have them published and posted and made available to all
parties.
Now as to the alleged support rendered to the "Employees Representative Group"
by the Respondent. After due and careful consideration of the entire record the
Trial Examiner is convinced that the evidence in support of this allegation is of such
a picayunish nature that it merits little, if any, discussion herein. From what the
Trial Examiner gleans trom the record the evidence in this regard may be summed
up as follows: (1) The questionable testimony of Martha Paga that she received 2
hours' pay for attending committee meetings; (2) the furnishing of pencils and paper
for the employees to use in the selection of their group representative at the time the
group was organized, which incidentally were never used by them; and (3) the
expense entailed in giving the employees a Christmas party each year. As to the
latter the record shows that the Respondent financed in part the parties and gave each
of the employees a Christmas present and they in turn presented presents to manage-
ment. There is no evidence in the record that will support an inference that the
Respondent's motive in giving the parties for its employees was a desire to impress
upon them its favoritism or support of the "Employees Representative Group." The
only inference that the Trial Examiner draws from the Respondent's participation
and financial contribution to the Christmas parties for its employees is that it was
DETROIT. PLASTIC PRODUCTS COMPANY - 1025
motivated by the spirit of the season, and a sincere desire to aid Santa Claus during
this his busy season rather than to impress upon its employees its approval or
favoritism towards the "Employees Representative Group." 3
Conclusion as to the 8 (a) (2) Allegation
From all of the foregoing the Trial Examiner is convinced and finds that the Re-
spondent by its officers, agents, and representatives neither sponsored the establish-
ment of the "Employees Representative Group" nor since its formation has interfered
with and dominated its operating facilities, nor rendered other than trivial financial
or other support to either it or its committees from the time it came into being in
either September or October 1952, up to and including the present time. Conversely
the Trial Examiner finds that the preponderance of the reliable, probative, and sub-
stantial evidence when considered in the light of the whole record clearly shows that
the "group," dubbed at the hearing for the sake of convenience by the General Counsel
the "Employees Representative Group," was sponsored, initiated, and formed by the
employees; themselves, after full discussion pro and con as regards the merits and
demerits of self-organization. Moreover their action in this regard was taken after
they had rejected the bid of an outside labor organization to act as their collective-
bargaining agent by an overwhelming majority of 11-4 in a Board-conducted election.
It is significant that for over a period of almost 2 years no suspicion was ever cast on
the legitimacy of the "group," nor is there any evidence in this record that any of the
employees during this period of time chose to question its conduct or lodge a complaint
of any kind with the Board. It was not until the Charging Party herein had been
discharged by the Respondent for cause that suspicion was cast upon the formation
and conduct of the group. And this in face of the fact that the Charging Party
herein was not even an employee of the Respondent at the time the group was
organized.
While it is true that the group is a most informal organization, without any of the
characteristics of formal labor organizations, nevertheless the record clearly shows
that regardless of its crudeness it did function as a labor organization in its dealings
wi h the Respondent in that it asked tor and bargained for wage increases, h i"died
"gripes" or grievances for individual-employees, requested better working conditions,
and selected its representatives from time to time in a democratic manner. The mere
fact that its organizational setup leaves much to be desired is not controlling. The
test as to what constitutes a labr'r organization within the meaning of the Act is found
in the Act itself which defines a labor organization as follows:
Sec. 2 (5) The term "labor organization" means any organization of any kind,
or any agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work. [Emphasis supplied.]
The Trial Examiner has found above that the "Employees Representative Group"
was initiated, sponsored, and organized by the Respondent's employees and "exists"
and has "existed" at all times material herein for the "purposes" stated in the Act.
In such circumstances the Trial Examiner now finds that the group at issue herein
is a labor organization within the meaning of the Act.
As the Trial Examiner sees it the facts tound herein justify the findings made above.
In a recent case the Seventh Circuit Court of Appeals was faced with a situation
somewhat similar to that found herein. In that case, Chicago Rawhide Manufac-
turing Ceimpany,4 the court speaking through Swaim, circuit judge, said:
The acts complained of show only laudable cooperation with the employees'
organization, which represented a majority of the employees, rather than inter-
ference or support. Allowing the use of Company property, and even time, for
employee meetings is not in itself an unfair labor practice. Wayside Press, Inc.
v. N. L R. B., 9 Cir. 2u6 F. 2d 862. The fact that the Company did not know
that a few employees were attending meetings on Company time, but did put
a stop to the practice as soon as it was discovered, shows that the Company was
not intending, by permitting this practice, to coerce or influence the employees'
choice of a bargaining representative.
The only financial support extended by the Company was to the Recreation
Committee. Both the hearing officer and the Board found that the Recreation
3 See Member Murdock's dissent in Niles-Bement-Pond Company, 97 NLRB 165, at 171.
4 See Chicago Rawhide Mfg. Co. v. N. L. it. B., 221 F. 2d 1G5, setting aside 105
NLRB 727.
1026 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Committee was not a labor union as defined by the Act. The Board's only argu-
ment,is that,the Recreation Committee was associated, in the minds of the em-
ployees, with the other. committees which were unions, and that by helping the
Recreation Committee to be more successful in its activities, the Company raised
the prestige of the other committees. This is an inference completely unjustified
by the facts, which show only the Company's desire to aid its employees' recrea-
tional activities. Again this might be a means by which the Company could
exert pressure with regard to the bargaining representative selected by the
workers, but there is not a scintilla of evidence that it was so used, or was so
considered by the employees.
The attitude of the Rawhide employees throughout this controversy is clearly
demonstrated by the fact that, through their Association, they have now engaged
an attorney who has filed a brief in opposition to the Board's holding. The
Company and the great majority of its employees are now, as they always have
been, in complete accord as to the bargaining representative. We are not going
to permit the destruction of a happy and cooperative employer-employee rela-
tionship when there is absolutely no evidence to support a finding of unfair labor
practice. [Emphasis supplied.]
In the considered opinion of the Trial Examiner the language of the court quoted
above is apropos to the situation herein. In the circumstances the Trial Examiner
finds that the conduct of the Respondent in its relationship with the "Employees
Representative Group" was not violative of Section 8 (a) (2) of the Act as alleged
in the complaint. In the circumstances the Trial Examiner will recommend that this
allegation in the complaint be dismissed in its entirety.
B. The alleged independent violations of Section 8 (a) (1) of the Act
As the Trial Examiner interprets the pleadings the General Counsel in paragraph
numbered 8 (e) of his complaint alleges as an independent violation.of Section 8 (a)
(1) of the Act, that the Respondent by its officers, agents, and representatives, inter
alia, engaged in a course of conduct which had the effect of "discouraging" the
employees from exercising the rights guaranteed them by virtue of Section 7 of
the Act by "expressing disapproval of outside labor organizations." While it is
true that this particular allegation is tied in, so to speak, with the allegations per-
taining to the alleged domination of the "Employees Representative Group," never-
theless the proof offered at the hearing herein by the General Counsel in support of
his overall position indicates to the Trial Examiner that this particular allegation
was inserted in the complaint for a much broader purpose than a casual perusal of
the complaint would indicate. The record at least bears out this assumption, when
the host of testimony that was offered by the General Counsel as regards the activities
of the Charging Party, Rosella Katulski, is taken into consideration. As he sees it
the disposition of this allegation in the complaint is dependent upon evidence adduced
at the hearing herein as regards Katulski's tenure of employment with the Respondent,
and the incidents that grew out of that relationship.
Rosella Katulski was first hired by the Respondent sometime in December 1953
as a temporary employee. She worked as such for about a month-and was laid off.
She then filed an application for employment with the Respondent. On or about
May 1, 1954, she was given permanent employment as a machine operator on the
afternoon shift. At the time there were 7 girls on the shift, 6 operators and a relief
operator, Joyce Constance. In addition there were two male employees, Eddie
Schaller, the "hopper" boy, and Eugene Richie, the foreman.
'That her tenure of employment with the Respondent was, to say the least, a stormy
one is amply demonstrated in the record. For example within a year after her
employment as a machine operator she had incurred the enmity of at least 2 of the
7 girls on the shift and was not on speaking terms with at least I of them. It is in
the light of this background that the events with which we are now concerned
herein must be viewed.
Sometime in the early part of August 1954, probably around the 6th, the Union
started a mail campaign among the Respondent's employees, and sent to each em-
ployee an application-for-membership form and supporting literature. Thereafter
there was a great deal of conversation in the shop among the employees about the
Union. The record clearly shows that the vast majority of the employees were
opposed to the Union and openly stated their views on the question. It is important
to note at this time that there was no rule in the shop against talking about the
Union or any other subject either while the employees were at their machines or
on their own time. As Erikson put it in his testimony they could talk about anything
they pleased anytime, anywhere in the plant, as long as it did not interfere with
DETROIT PLASTIC PRODUCTS COMPANY : - 1027
their work, or putting it another way, tended to distract attention from the work at
hand. While the discussions as regards the Union were at their peak, several em-
ployees on Katulski's shift went to Erikson and to their foreman, Richie, and com-
plained that she was so insistent in her campaign on behalf of the Union that she was,
to put it mildly, obnoxious, since `they were not interested in the Union and resented
her activities in its behalf. In addition to complaints made to Erikson and others
as regards Katulski's activities on behalf of the Union, some of the employees
complained to their group representative, Joyce Constance. The situation finally
came to a head, so to speak, on or about August 16, 1954. On that date Katulski
was called into the Respondent's office and questioned by him as regards her activities
on behalf of the Union and the complaints that had been made to Erikson and
others by the employees.
There are several versions as regards that incident. In the circumstances the
Trial Examiner feels compelled to review at some length the testimony adduced at
the hearing therein in this regard.
Let us first consider the testimony of Katulski and her version of what transpired
at the meeting. According to Katulski, Joyce Constance came to her at around
4 p. in. on the afternoon of August 16, 1954, and told her that Erikson wanted to
see her in his office. She complied with Constance's request and went to the office.
Upon arrival she found the following present: Erikson and General Manager
Richards. As she came into the office Erikson told Richards to get Joyce Constance,
which he did. What immediately transpired is best told in Katulski's testimony.
Accordingly an excerpt therefrom follows below:
Q. Then what occurred?
A. Erickson asked me if I had received any union literature.
Q. What did you say?
A. I told him I had.
Q. Beg your pardon? You said you had?
A. I had, I did.
Q. What did he say?
A. He asked me what I did with it, and I said I misplaced it.
Q. Then what occurred?
A. Then Joyce Constance was present, and he said-
Q. You mean Mr. Richards came back?
A. Yes, with Joyce Constance.
Q. Then what occurred?
A. Mr. Erickson said, "I am informed you are a union organizer from Mr.
David Spencer, and that you are terrorizing the girls about the union."
Q. Did you say anything?
A. I told him that wasn't true. That everybody was discussing the union
if they had received the literature. He said, "Would you like to have me make
a her out of you by calling the girls in here and proving it?"
Q. What did you say?
A. I said, "Call the girls in."
Q. You said what?
A. I said for him to call the girls in.
Q. Did he?
A. Bill Richards-he then asked Bill Richards to call the girls, one at a
time.
Thereafter the girls on Katulski's shift, who had complained to the Respondent
as regards her activities on behalf of the Union, were called 1 by 1 into Erikson's
office. Among those called in were Dixie Plunkett, Barbara ----------------- a
deaf-mute, Angelina Romsberg, and Myrtle Clark. The latter was excused by
Erikson when he was informed that she and Katulski had been on the "outs" for
about a year and were not even on speaking terms. Dixie Plunkett and Angelina
Romsberg were questioned by Erikson as regards Katulski's activities and each told
Erikson that she had spoken to them about the Union in the shop. Barbara ________
________, the deaf-mute, indicated by answers to written questions submitted to her
by Erikson that she too had been questioned by Katulski about the Union. Richards
and Constance were present while Erikson interviewed the above employees.
According to Katulski, the following colloquy transpired between her and
Erikson after the above employees had been interviewed and left the office.
Q. Did you have anything to say, or anyone have anything to say?
A. Erikson says, "Furthermore," he said, "I have heard it from the girls on
the day shift, and I heard it from the girls on the midnight shift. You are only
387644-56-vol. 114-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making an ass out of yourself 'by denying it." And he said , "I have never fired
anybody in the shop for wanting a union, but let me warn you, if I hear you
have spoken to anyone about the union between these four walls I will fire you,
and I can do it, too."
Q. Did you say anything to that?
A. I said, "Well, you will probably find some excuse to, fire me," and he
said, "Maybe so, maybe so ." So I said, "Well, how is it you don't want us to
have a union in the shop?" and he said, "You had better go back to school and
find out why. I am not going to have anybody tell me how to run my business."
Q. Anything else?
A. So I asked him, well , then, the conversation ended there , and I said, "Are
you finished with me?" and he said , "Yes," and I got up and walked out.
Katulski in her testimony before the Trial Examiner emphatically denied that
she had been either active on behalf of.the Union or had even attempted to discuss
the Union with her fellow employees while they were at their machines. She
admitted , however, that she had discussed the Union with some few of the em-
ployees on her shift, particularly Dixie Plunkett, "Angie" Romsberg, and Barbara,
the deaf-mute, but that the conversations were general in nature as regards the
Union. In addition she flatly denied that she had either been in touch with the
Union prior to its mail campaign or thereafter.
Erikson's account as regaids his interview with Katulski follows:
Erikson's version of this incident is somewhat different from that of Katulski. He
testified that at about the time the employees received the letters from the Union that
several of them complained to him personally about Katulski bothering them about
the Union while they were engaged in operating their machines. They also told him,
in substance , that they wanted her activities in this regard curtailed, primarily be-
cause they were not interested in the Union; and that her insistence upon discussing
it while they were operating their machines was so distracting that they were afraid
of turning out "scrap" or damaged articles which in turn would subject them to
criticism . He further testified that Joyce Constance also came to him in her capacity
as group representative and lodged a complaint on behalf of Angelina Romsberg
on the same grounds.
After receiving the complaints referred to above Erikson called Katulski into his
office. His account of what transpired at that time is, in the considered opinion of
the Trial Examiner, best told in his testimony on direct examination.
Q. What was the conversation when Myrtle and Dixie came in? If you can
recall9
A. Well, again, not verbatim , but I asked each one of them if Rosella had
at any time bothered them or come up to them and tried to talk union on the
company's time, and Myrtle said, "As for me, I had an allercation with Rosella
for over a year and we are not speaking , now on speaking terms," and I said,
"Well, it is kind of foolish for me to ask you that question , then . You may
leave." And Dixie said yes, that Rosella had been talking union to her, and
she left.
Q. What did you ask Angie? What was the conversation when she came
in?
A. I asked Angie the same question , whether Rosella had been talking to
Angie about joining the union on the company time, and Angie said yes, she
had done so.
Q. Did you know, before you received the complaints from Dixie and
Angeline, that Rosella was active in the organization?
A. Just as I say, Miss Edwards, in a small group , a small company such
as ours, you hear things as general conversation.
Q Did you know that?
A. I beg youi pardon?
Q Did you know that specifically before Angie's complaint?
A. Yes, yes, I did.
Q. Did you know of anyone else that was active in an organizing drive at that
time?
A. No, I didn't.
Q What was the conversation between you and Rosella after the last of the
girls had left? That is, Angeline, Dixie and Barbara? Was Barbara the last
one in?
A. I think so, yes
Q. Do you recall the testimony as to Barbara?
A. Barbara was very difficult, as has been brought out in this hearing. She
was a deaf mute, and I don't think she has ever taken any formal education,
DETROIT PLASTIC PRODUCTS COMPANY 1029
and consequently, since I don't read their language , I doubt very much if she
has had.any"formal education in writing, because her sentence structure is
poor, it was difficult to ask Barbara any logical question. Joyce assisted me
in so doing, and Barbara answered yes, that she had discussed the joining of the
union on company time.
Q. Joyce put the question to Barbara?
A. Yes.
Of particular importance is Erikson's testimony as regards his use of the phrase
on company ,time" while interrogating the employees about Katulski's activities
on behalf of the Union. This is so because there is a host of uncontradicted and
t►ndenied testimony in the record that the Respondent had no rule at times material
herein as regards its employees talking about the Union or any other subject for
that matter while either on their own time or while they were operating the ma-
chines. Even Erikson in the course of his testimony on cross-examination readily ad-
mitted that the Respondent never had established any such rule. However, in the
course of his testimony he explained why he used this phrase while interrogating
the employees as regards Katulski's activities. His testimony in this regard is most
interesting . Consequently an excerpt therefrom is likewise set forth below:
Q. That phrase, "on company time," that keeps coming up, back and forth.
Is there any reason why it should?
A. Yes, Miss Edwards, I am kind of a babe in the woods when it comes to
labor relations. I belong to an SPI organization.
Q. What is that?
A. The Society of Plastic Industry. And they send out bulletins which
keep us briefed as to what is going on in the industry, and labor, and I recall
at the time of this difficulty a bulletin came through with regards to a decision
handed down by the NLRB where a man had been fired because of wasting
company time in an effort to organize , and consequently, I based my actions
on just that.
As indicated above Katulski testified that Erikson told her that she was "
making an ass" out of herself by denying that she had been active on behalf of
the Union. Erikson's account of this incident was as follows:
Q. Well, what did you say to Rosella after Barbara left?
A. Well, I said to her, it is quite assanine for her to give such testimony
in-the light of the evidence given by the girls, and that she should-I would
like her, in the future, to refrain from wasting the girls' time trying to organize
this drive, and if she would like to organize a drive, even in her basement
or at Solidarity Hall, it is quite all right with me.
Q. What was her response?
A. Well, she made some remark about, "I suppose you will find some way
of firing me," and I told her, "I don't know how I could do that in light of the
fact that the NLRB," or the NLRA, I guess, that they had protected her for
just such things as that.
Q. Did she ask you, as she testified, why you didn't want them to have a
union?
A. Yes, she asked me why don't I want a union, and I said , "Well, Rosella,
I think that is a pretty stupid question, and I don't think that I even have to
answer it." I said something about she had better go back to school and learn the
answers to those questions; I didn't have to have a union organizer to tell me
how to run my business, That's about what the gist of the conversation at
that point was.
Erikson's testimony in this regard was corroborated by that of Joyce Constance
who was present throughout the meeting in Erikson's office. Since the Trial Ex-
aminer has found above that Constance was a credible and forthright witness and
that Erikson likewise so impressed him, he credits Erikson's version of the incident
and rejects Katulski's account thereof. Though Katulski impressed the Trial Ex-
aminer as a fundamentally honest person, nevertheless from her demeanor and after
a careful perusal of her testimony in the light of the whole record he is convinced
that on the whole her testimony was none too reliable. Primarily because she obvi-
ously was a very sensitive person and quite frankly she impressed him as being
possessed with a "persecution complex." There is ample testimony in the record to
support this observation. For example there is a host of credible testimony in the
record as regards her inability to get along with her fellow workers stemming back
to times long before the Union started its mail campaign in August 1954. Again,
certain portions of her testimony do not jibe, so to speak, with her emphatic denials
that she had been active on behalf of the Union and had solicited her fellow em-
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployces to support it. For example on direct examination she testified that she asked
Erikson in the course of her meeting with him on August 16, 1954, ". . . how is it
you don't want us to have a union in the shop?" While to some this may seem in-
significant, but not so to the Trial- Examiner since- it is-completely out of character
with her emphatic denials that she had ever been active on behalf of the Union. If
the latter were true, then why would she ask Erikson why he was opposed to the
employees joining the Union? The resolution of credibility is a difficult and thank-
less task and a trier of the facts is compelled to rely at times on many facets of a
witness' testimony in the light of the record considered as a whole to reach his ulti-
mate determination of this troublesome issue. So is it here.
So that there may be no misunderstanding as to the purpose of the Trial Examiner's
observation as to Katulski, he desires to point out that his comments in this regard
are solely for the purpose of resolving the issue-as regards her credibility as a witness,
and are not to be construed as directed to her statutory right to engage in either
concerted or union activities.
There yet remains to be disposed of insofar as Katulski is concerned, her testimony
as regards a conversation she had with Foreman Eugene Richie on August 17, 1954,
the day after she had been interviewed by Erikson in his office. Her testimony in
this regard was as follows:
Q. Now, have you had any other conversations with anyone, that you can
recall?
TRIAL ExAMINER: Management?
Mr. FARKAS: Yes, representing Management?
The WITNESS: Yes, Eugene Richie.
Q. (By Mr. Farkas.) When did that occur?
A. He called me into the foreman's office.
Q. When was this?
A. This happened about August the 17th, I believe.
Q. Incidentally, can you remember the day which your employment ceased
with the company, terminated? Do ygu recall when you left the company?
A. August 19th.
Q. August 19th?
A. Yes.
Q. This conversation, then, as I understand it, occurred a couple of days
before that?
A. No, I believe this happened the day before. It was on August 18th.
Q. All right.
A. Maynard-
Q. Where did it take place?
A. In the foreman's office.
Q. How did you get there?
A. He approached my machine and said he wanted to talk to me, and I
followed him into the foreman's office, and he said, "I want no union talk."
I told him I wasn't talking to anybody that day except Angeline Romsberg be-
fore working hours. He said the first girl-no, he said, "I don't want no union
talk." I told him I hadn't been talking to anybody about the union, and he
said, "Do you withdraw?" and I said, "What do you mean by that? Do you
mean quit?" and he said, "Yes", and I said, "No, I have no reason to."
Q. Was anything else said?
A. He said, "You go back to your machine and mind your business."
Q. Now, did you have any other conversations with anyone that you can
recall? Anyone representing Management, of course?
A. You mean on the last day I worked there?
Q. Relating to this matter, your talking about unions?
A. Not that I can recall.
Katulski's testimony as regards her conversation with Foreman Richie stands un-
contradicted and undenied in the record. Richie appeared at the hearing herein in
answer to a subpena served upon him by the General Counsel. However he did not
choose to call him as a witness on his behalf and stated his position in this regard to
the record Nor did the Respondent choose to call him as a witness on its behalf
though he appeared at the hearing herein after Katulski had offered the above testi-
mony. In such circumstances the Trial Examiner credits Katulski's testimony in
DETROIT PLASTIC PRODUCTS COMPANY " 1031
this regard and finds that Richie made the statements attributed to him by Katulski
in the course of her testimony on direct examination .5
Concluding Findings as Regards the Above
The Trial Examiner is convinced that President Erikson's conduct in interrogating
Katulski in the presence of other employees as regards her union activities was vio-
lative of the Act. His reasoning in this regard is premised primarily on the manner
in which he conducted his interrogation. To begin with the Trial Examiner does
not question the right of either the Respondent herein or any other employer to
discipline an employee for interfering with others in the performance of their duties.
The exercise of this right is inherent and is and always has been a prerogative of
management, and no specific rules in this regard are necessary. The vice of the
Respondent's conduct here is the mode and manner in which it exercised its prerog-
ative. As the Trial Examiner sees it the staging of the interrogation of Katulski
was bad for two reasons: (1) She was interrogated in the presence of at least four of
her fellow workers; and (2) Erikson's interrogation was couched in language that
referred primarily to her activities on behalf of the Union, rather than as regards
her alleged interference with the employees while they were operating their ma-
chines. Since there admittedly was no rule against discussing the Union or any
other subject matter on or off company time or property at the time the incident
took place, it is only reasonable to infer that the end result of the interviews was to
impress upon the employees who were interrogated that the Respondent not only
was opposed to their exercising the rights guaranteed them in Section 7 of the
Act, but that they themselves would be subjected to reprisals if they too engaged in
either union or concerted activities in the shop. In other words the setting of the
interviews when considered in the light of the fact that Erikson's interrogation of the
employees was confined primarily to Katulski's activities on behalf of the Union and
not to the time and place thereof, then it is reasonable to infer that it had the
effect inferred above on the employees who were present at the time.
In the circumstances found and described above the Trial Examiner is convinced
and finds that by such conduct the Respondent herein interfered with, restrained, and
coerced its employees in the exercise of the right guaranteed them in Section 7
of the Act and was therefore violative of Section 8 (a) (1) of the Act.
Now as regards Katulski's undenied and uncontradicted testimony as regards her
conversation with Foreman Richie on or about August 18, 1954. Clearly Richie's
remarks were coercive, since they carried therein an implied threat of reprisal, that is
discharge, if Katulski did not refrain from discussing the Union with her fellow
employees .6 Again, since they were made at a time when the Respondent had no
rule against such activities they took on added importance, particularly since they
in substance implied that she was not to discuss the Union with her fellow employees
at any time or in any place. In such circumstances the Trial Examiner finds that by
such conduct the Respondent likewise interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and was
thereby violative of Section 8 (a) (1) of the Act.
There yet remains for consideration the testimony adduced at the hearing herein
by the General Counsel in support of his case-in-chief as regards a certain notice
that the Respondent posted upon the door of the ladies' restroom a few days after
the employees had received the application for membership cards and accom-
panying literature from the Union in the early part of August 1954. A composite
of the credible testimony of several of the witnesses who testified at the hearing here-
in, both on behalf of the General Counsel and the Respondent, shows that there
suddenly appeared on the door of the ladies' restroom a notice bearing the following
legend:
"GIRLS .
THINK'-TWICE
WE HAVE ONE TOO"
Erikson testified that the notice referred to the fact that both he and his wife,
as well as General Manager Richards and his spouse , had each received letters
6It is well "settled law that where a witness' testimony is not contradicted, a trier has
no right to refuse to accept it." See N. L. P. B. v. Pay Smith Transport Co., 193 F. 2d
142 (C. A 5), setting aside 89 NLRB 1045.
6 See KFSD-TV, 111 NLRB 566; Serv-Air Aviation, Stallings Air Base, 111 NLRB 689.
1032 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
from the Union containing :th'e same literature, that was enclosed in the- letters
sent to its employees. His testimony in this regard- is most illuminating and in the
considerate opinion of the Trial Examiner should be inserted herein. Consequently
an excerpt therefrom follows below:
Q. (By Miss Edwards.) You said you didn't put this notice up?
A. That's right.
Q. What did you mean by that statement?
A. When Mr. Richards and I both had a conversation in the office, regarding
the notices our wives had received, we discussed the matter and thought perhaps
we might inform the employees that we, too-our wives also had been included as
employees of the company, and we discussed the possibility of putting up some
sort of a notice which indicated to the employees that this union drive was
pretty comprehensive, that it included not only employees of our company but
also the wives of the executive personnel, and the matter was dropped at that
time.
However, I found out later that Mr. Richards had printed this thing up and
put it up. Now, this-I reveal this in the light of the fact that I realize that at that
time, in my absent-minded way, at that time I thought that I was the one who
had put it up, because of the discussion that had gone on.
However, in further conversation-this case has brought up further conver-
sation and further light has been put on it-and consequently I now amend my
testimony here.
Q. In other words, you would say the statement is correct in the sense that
the company put it up, but not that you, personally, did it with your own little
hands?
A. Yes, ma'am.
Q. All right. Was that what you had in mind when Mr. Farkas asked you as
to who put it up?
A. Yes.
Q. You said you also took it down.
A. Yes, I did.
Q. Why did you take it down?
A. I had some customers coming in the following day, and it didn't look
very nice, plus the fact I noticed the paper upon which it was written was a
Ford Motor Company print, and I took it down, and I said, "Hey, Rich, what
goes on here? How come you are hanging the jobs we have been quoting up
on the Board?" and he said, "Don't worry. We lost the job."
Q. Had you already heard talk about the union? That is, do you recall
whether or not you had heard any discussion of the cards being mailed out, in the
shop, before this notice was put up?
A. Yes, I had heard-I am pretty sure I had heard the general conversation of
the cards.
As indicated in Erikson's testimony the notice was neither signed by any represent-
ative of management nor was it typed on the Respondent's stationery. The record
however indicates that at least some of the employees knew what the legend referred
to. As the Trial Examiner sees it, it is his duty to determine whether or not the
legend on the notice had such an effect upon the female employees of the Respondent
as to have interfered with, restrained, and coerced them in the exercise of the rights
guaranteed them in Section 7 of the Act. The disposition of this issue is not an easy
one since its ultimate determination unquestionably would depend upon the state of
mind of the person or persons who read it. Though the Trial Examiner is not a
psychiatrist, he is convinced that the exercise of plain everyday common sense will
suffice to dispose of this issue. As he sees it the employees of the Respondent repre-
sent a cross-section of our society. In the circumstances, it is reasonable to assume
that their reaction as a group to the legend on the notice would be about the same as
any similar group in the same environment. For example, some few no doubt were
endowed with the mentality of a Knight of the Garter, if so, they would ignore it.
On the other hand some may have read the legend through the eyes of an Anthony
Comstock, and their reaction to its portent would be perhaps the same as if he him-
self had read it. But the Trial Examiner is convinced that the great majority of the
employees were normal everyday folks, and though they might chuckle a bit, or wink
their other eye at its portent, they would quickly laugh it off and forget about it. After
long, careful, and ponderous consideration and search of the authorities for a prece-
dent in such a situation the Trial Examiner is convinced that the Respondent's conduct
DETROIT"PLASTIC PRODUCTS COMPANY ' ' 1033
in this regard was not violative of the Act, and he too shall ignore it and its portent.
Suffice it to say that if it did cause a chuckle or two then its posting came at an oppor-
tune time, since surely such a reaction in these trying and tragic times is well worth-
while.
As, indicated above the Charging Party herein, Rosella Katulski, alleged in her
charge against the Respondent that she had been discriminatorily discharged by it be-
cause of her activities on behalf of the Union. After due consideration the Acting
Regional Director of the Seventh Region administratively refused to so allege in his
complaint. His reasons for so doing are of course not before the Trial Examiner, and
quite rightly so. Nevertheless the General Counsel's representative and counsel for
the Respondent, in particular, touched upon this matter in the course of the presenta-
tion of their respective cases. The record clearly shows that the purpose of their
interrogation of the witnesses in this regard was primarily for two reasons. (1) for the
purpose of testing the credibility of Katulski as a witness; and (2) for background
purposes, particularly to present a picture of the events leading up to Katulski's inter-
rogation by Erikson as regards her alleged activities on behalf of the Union, which
has been thoroughly discussed and disposed of above. Since the Trial Examiner has
heretofore resolved the question as regards Katulski's credibility as a witness, he
deems it unnecessary to dwell at length herein upon the events leading up to her dis-
charge by the Respondent on August 19, 1954. In the circumstances he will ignore
the testimony adduced at the hearing herein concerning Katulski's discharge for
obvious reasons, the foremost of which is that this issue is not before him.
Upon the basis of the foregoing and the above findings of fact, and upon the entire
record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. H. H. Erikson and Erik E. Erikson, Co-partners, d/b/a Detroit Plastic Products
Company, are engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. "Employee Representative Group" is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By interrogating its employees as regards their union activities and expressing
disapproval thereof the Respondent thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) of the Act.
5. The Respondent, except as stated above, has not engaged in acts or conduct in
violation of Section 8 (a) (1) and (2) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations-Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with reprisals because of, or interrogate
them as to, their membership in any labor organization.
WE WILL NOT in any like ' or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist any labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except to the
extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
All our employees are free to join or assist any labor organization and to engage
in any self-organization or other concerted activities for the purposes of collective
bargaining or other mutual aid or protection or to refrain from such activities ex-
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cept to the extent that such right is affected by an agreement made in conformity
with Section 8 (a) (3) of the Act.
H. H. ERIKSON AND ERIK E . ERIKSON, CO-PARTNERS,
D/B/A DETROIT PLASTIC PRODUCTS COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must .remainposted for 60 days from , the date hereof, and must not be
altered , defaced , or covered by any other material.
The Englander Company, Inc. and District 15, International
Association of Machinists , AFL and Local 21, Retail Clerks
International Association, AFL, Party to the Contract. Cabe
No. 2-CA-4163. November 16,1955
DECISION AND ORDER
On August 16, 1955, Trial Examiner Robert E. Mullin 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 Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the Party to the Contract filed
exceptions to the Intermediate Report together with supporting
briefs.
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 and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the modifications set forth
below.'
i The Trial Examiner found that Organizer Lew called employee Rath a troublemaker
at a meeting of the employees on December 2, 1934 The Trial Examiner attributed testi-
mony on this to employee Driscoll. The record shows that Garland testified to hearing
the remark made by Lew. We correct the Intermediate Report in this respect. Our
correction does not alter our concurrence in the remainder of the Trial Examiner's find-
ings and conclusions.
2 The Trial Examiner found that the Respondent discharged employee Wilbur Rath in
"violation of Section 8 (a) (3) of the Act. The finding here rests on the Trial Examiner's
credibility resolutions . The Respondent asks the Board to upset those resolutions. It has
been the Board' s settled practice not to disturb the credibility findings of a Trial Examiner,
based on his observation of the demeanor of the witnesses, unless the clear preponderance
of all the relevant evidence demonstrates that the Trial Examiner 's resolution was in-
correct. Standard Dry Well Products, 91 NLRB 544, enfd. 188 F. 2d 362 (C. A. 3). We
find, on consideration of the record as a whole, that the preponderance of the evidence
114 NLRB No. 160.