Double A Products Co.

National Labor Relations Board - Board Decisions

Nov 15, 1961

134 N.L.R.B. 222 (N.L.R.B. 1961)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Does he:
Accept instructions good -naturedly?___- Try to improve skill?________
Try new methods willingly? ___________ Take an interest in his job?_____
Accept changes cheerfully?___________ Try to learn other jobs?______
Observe safetyrules?________________ Provide own tools?__________
Observe plant rules of conduct ?---------. Make helpful suggestions ?_____.
Unsatisfactory . Very unsatisfactory attitude and cooperation . Use this 0
degree for anyone who habitually is late or leaves early.
Below Average. Only fair attitude and cooperation . Leaves something to 2
be desired in this respect.
Average. Tries to do what is expected and takes normal interest in job. 4
Above Average. Tries to do more than is expected and takes more than 6
average interest in job.
Unsatisfactory . Any of the following characteristics : Quarrelsome , surly 0
and hard to get along with.._ . Other employees unwilling to work with
him because of disposition or some unpleasant personal characteristic___ .
Always causing friction and stirring up other employees.
Below Average. Occasionally temperamental and apt to "flareup" or be 2
hard to get along with. - -
Satisfactory. Normally obliging and easy to get along with. 4
REMARKS:
----------------------------------
---------------------------------
Total:
-------------------------------- ----------------------------
Foreman
---------------------------
Superintendent
Double A Products Company and International Union , United
Automobile , Aircraft and Agricultural Implement Workers
of America (UAW) AFL-CIO and Manchester Union, Party
to the Contract. Cases Nos. 7-CA-2963 and 7-CA-3003. Novem-
ber 15, 1961
DECISION AND ORDER
On June 29, 1961, Trial Examiner Thomas F. Maher 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 Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
did not engage in certain other alleged unfair labor practices and he
therefore recommended that the complaint be dismissed in that re-
gard. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report, :together with a supporting brief, in which he was
joined by the Charging Party. The Respondent filed a brief in sup-
port of the Intermediate Report.
134 NLRB No.'26.
DOUBLE A PRODUCTS COMPANY 223
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions thereto, the brief, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following modifications: I
THE REMEDY
Having found , in agreement with the Trial Examiner, that the
Respondent has engaged in and is engaging in certain unfair labor
practices, we- shall require it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We have found, in agreement with the .Trial Examiner, that the
Respondent unlawfully assisted the Union in, among other things,
maintaining and enforcing an illegal contract whereby employees are
required to join the Union and pay dues sooner than they may law-
fully be required to do under Section 8 (a) (3) of the Act. In such
circumstance , we find, contrary to the Trial Examiner, that- it will
effectuate the policies of the Act to require the Respondent to'reim-
burse employees for dues unlawfully exacted 2 We shall, accordingly,
order the Respondent to reimburse the first month's dues to all em-
ployees hired during the period beginning 6 months prior to the filing
of the charges herein. We shall not order the Respondent to reim-
burse such employees for any initiation fees that they may have been
required to pay during their first month of employment, as all em-
ployees would have had to pay such initiation fees pursuant to a law-
ful union-security clause. However, if there be any employees who,
during the applicable period, paid these initiation fees but worked
less than 30 days, the -Respondent shall reimburse such employees for
the initiation fees so deducted.
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 the Respondent, Double A Prod-
ucts Company, Manchester, Michigan, its officers, agents, successors,
and assigns, shall
I Member Brown would find, contrary to the Trial Examiner, that the Respondent vio-
lated Section 8(a) (3) and (1) of the Act by discharging Rudolph Vacek and laying off
Kenneth Waters.
z Cadillac Wire Corp , 128 NLRB 1002, enfd..290 F 2d 261 (C A. 2).
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interfering with the administration of, and rendering support
and assistance to, the Manchester Union.
(b) Recognizing and contracting with the Manchester Union as the
'bargaining representative of its employees unless and until said labor
organization shall have been certified as such representative by the
National Labor Relations Board.
(c) Giving force and effect to any agreement, or renewal or ex-
tension thereof, with the Manchester Union, unless and until it has
been certified by the National Labor Relations Board as the majority
representative of Respondent's employees.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
-concerted activities for their mutual aid or protection, or to refrain
.from any and all such activity, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Reimburse all employees for dues illegally exacted from them,
in the manner and to the extent set forth in the section of this Decision
entitled "The Remedy."
(b) Withdraw and withhold all recognition from Manchester
Union, unless and until it has been certified by the National Labor
Relations Board as the majority representative of Respondent's
employees.
(c) Post at its plant in Manchester, Michigan, the notice attached
hereto marked "Appendix." 3 Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
-Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from receipt hereof, what steps Respondent has
taken to comply herewith.
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."
DOUBLE A PRODUCTS COMPANY 225
IT IS FURTHER ORDERED that so much of the complaint herein as
alleges a violation of the Act with respect to Rudolph Vacek or Ken-
neth Waters, and to conduct attributable to Willie Fry, be, and the
same is, hereby dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, as amended, we hereby notify our employees that.
WE WILL NOT interfere with the administration of or render sup-
port•or assistance to the Manchester Union.
WE WILL NOT recognize or contract with the Manchester Union
as the bargaining representative of our employees, unless and,
until it shall have been certified as such representative by the Na-
tional Labor Relations Board.
WE WILL NOT give force or effect to any agreement, or renewal
or extension of any agreement, with the Manchester Union unless
and until it has been certified as the majority representative of our
employees by the National Labor Relations Board after a Board-
conducted election.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form, join or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activity, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE wu,L. withdraw and withhold all recognition from Man-
chester Union as the majority representative of our employees,
unless and until it is certified as described above.
WE wu.L reimburse our employees for dues illegally exacted
from them.
All our employees are free to become, remain, or refrain from be-
coming members of any labor organization, except to, the extent that
this right may be affected by a lawful, agreement requiring member-
ship in a labor organization as a condition of employment, as author-
630849-62-vol. 131-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
DOUBLE A PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must noc be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed on November 3 and December 15, 1960 , by International
Union , United Automobile , Aircraft and Agricultural Implement Workers of
America (UAW) AFL-CIO, the Regional Director of the National Labor Relations
Board for the Seventh Region on January 31 , 1961 , issued an amended complaint
against Double A Products Company, herein referred to as the Respondent , alleging
violations of Section 8(a)(1), (2 ), and (3 ) of the National Labor Relations Act,
as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed
answer Respondent , while admitting certain allegations in the complaint , denied the
commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Thomas F. Maher , the duly desig-
nated Trial Examiner , at Jackson , Michigan , on February 16 and 17 and June 1,
1961 . All parties were represented at the hearing and were afforded full opportunity
to be heard , to introduce relevant evidence , to present oral argument, and to file
briefs with me. Parties waived oral argument and in lieu thereof filed briefs.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of the witnesses ,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Double A Products Company is a Michigan corporation with its plant and principal
office located at Manchester , Michigan , where it is engaged in the manufacture,
sale, and distribution of hydraulic valves, pumps , and power units. While so
engaged Respondent annually transports finished products valued in excess of
$250,000 to points outside the State of Michigan. Upon the foregoing facts, admitted
by Respondent in its answer , I find that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO, referred to herein as the UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
The Manchester Union, not affiliated with any national or international labor
organization, is also a labor organization within the meaning of Section 2(5) of
the Act. -
III. THE ISSUES
1. The status of the Manchester Union.
2. The absence of credible evidence to establish Respondent's knowledge of the
activity of employees Vacek and Waters in behalf of the UAW.
3. The discharge of Vacek was established as being for cause.
1 Unless specifically indicated to the contrary , any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part , upon his de-
meanor as I observed it at the time the testimony was given. Cf Bryan Brothers Packing
Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject in part
or entirely the testimony of any given witness, it is my intent thereby to indicate that
such part or whole of the testimony , as the case may be, is discredited by me. Jackson
Maintenance Corporation, 126 NLRB 115 , 117, footnote 1.
DOUBLE A PRODUCTS COMPANY 227
4. The layoff of Waters was established as being in proper order, with his acqui-
escence, for economic reasons.
IV. THE UNFAIR LABOR PRACTICES
A. The Manchester Union
For the past 15 or 16 years most , if not all, of Respondent's employees have been
members of the Manchester Union and a committee of that organization has met
periodically with and bargained with representatives of management on matters
affecting the employees ' wages and working conditions . On or about January
15, 1960 , representatives of both parties met and executed , as they had on previous
occasions , a collective agreement covering the employees , which agreement was
shown on the record to have been in full force and effect on June 15, 1960, and
thereafter . 2 Included in this agreement were the following clauses:
ARTICLE II
Recognition
SECTION 1. The Company recognizes the Union as the exclusive collective
bargaining agent for the employees of the company, and all eligible employees
must be members of the Union.
ARTICLE VI
Grievances -
SEC. 4. The actual number of members of the grievance committee shall be
mutually agreed by the general superintendent of the plant and the Union, and
in no case shall there be more than two members in any department. If possi-
ble, all shifts and departments are to be represented. The members of the
grievance committee shall be men who have been employed by the Company
a sufficient length of time to have a comprehensive knowledge of the daily
operations of their departments.
* * * * * * *
ARTICLE XIX
Insurance Clause
The Company and the Union will split fifty-fifty the balance of all hospital
and surgical claims of those employees eligible for Prudential Insurance for
which the Prudential Group Insurance Policy covers a specified amount. In
other words, the Union and Company will pay only the balance of such hospital
or surgical claims for which Prudential Insurance Company is liable for a
part. We are operating under the same rules as are in force under the Pru-
dential group policy. The reinsurance by the Company and Union becomes
effective sixty days after employment.
All employees eligible for the Prudential Group Insurance may be assessed for
amounts necessary to cover the Union's yearly share of this joint insurance
coverage. Each eligible employee whether a member of the Union or not,
will be assessed $1.50 per month to cover the Union's share of this Insurance
with a further assessment if necessary. Any of our employees or their de-
pendents that are eligible for either the Prudential or Double A and Union
Group benefits that contract Tuberculosis may be covered by the Prudential
Group policy but will not be covered by the Double A Products Co. and Union
coverage. The same will hold true for our employees or their dependents
that use the Veteran's Hospital and facilities.
Any person leaving the employ of Double A will not be covered by the joint
Union and Company coverage unless they have a written leave of absence agree-
ment , with a specified termination date.
Herbert H. Upton, president of Respondent, testified that during the period fol-
lowing June 15, 1960, he and his son, Herbert Upton, Jr., general manager, hired new
employees and in doing so brought to their attention the requirement of the fore-
9 The date of June 15, 1960, has significance only as the extreme of the 6-month period
preceding the filing and service of charges In this matter See Section 10(b) of the Act
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going agreement that they must join the Manchester Union. Union dues for such
employees were, according to President Upton, automatically deducted from the
employees' pay without further notification or request for authorization. In this re-
spect Upton identified for the record the payroll account of three employees hired
during the period in question, Cox, Hyder; and Philo, each of whose union dues
were deducted within 3 weeks of their employment in July 1960?
President Upton, in describing the relationship that existed between the Company
and the Manchester Union, conceded that, completely unaware of any possible
wrongdoing, the Company made a practice of paying the union committeemen for
the time spent at union meetings when such meetings coincided with the shift on
which the employee would normally have been working. He also testified that they
permitted union officials to be absent from work on union business without loss of
pay.
The Company likewise provided the Union with space throughout the plant for the
installation and maintenance of food, cigarette, and soft drink vending machines,
the proceeds from which were collected by the Union and the profits allocated by it
to the payment of its share of the reinsurance fund, referred to herein supra, as
article XIX of the collective agreement.
With respect to the matter of insurance benefits it appears from Upton's testimony
that the basic group insurance plan for which the Company paid the full cost was,
deemed by both company and union officials to be inadequate to meet the medical,
surgical, and hospitalization requirements of the employees. Consequently, and as
previously noted in the contract provision quoted herein (supra), the Company and
Union agreed to purchase additional insurance coverage and divide the additional
cost between them. Each employee, whether a member of the Union or not, was
required by the agreement to pay a mouthy assessment of $1.50. In actual practice,
however, the individual employee's assessment was paid in substantial part out of
union funds derived from vending machine profits .4 -
In addition to the foregoing the Company has in the past made available to the
Union and its officials its clerical and duplicating facilities for the purpose of prepar-
ing copy and reproducing ballot forms used in the Union's elections
It is Respondent's contention that the foregoing conduct does not constitute
domination or unlawful interference or assistance with the administration of the
Manchester Union for the reason that it was done in complete good faith without
any knowledge of its unlawful connotations and with no intent to dominate, inter-
fere, or assist the organization of its employees. It further contends that what un-
lawful defects attach to the collective agreement which it administered and main-
tained during the period following July 15, 1960, have been cured by the execution
of a new agreement in January 1961; which agreement contains none of the pro-
visions of the earlier agreement alleged to be unlawful. In response to Respondent's
effort to excuse itself by reliance upon its manifest good faith and its lack of intent to
violate the statute, it is sufficient to note that neither good faith nor lack of intent
to violate the Act are.of significance to any finding in that respect, for it is the effect,
and not the motivation of an action, which determines whether the Act has been
violated.5
I am not unmindful of the fact, as will be considered in detail hereafter, that the
Respondent has engaged in no other unfair labor practice. Moreover, I am con-
vinced that Respondent, and particularly President Upton, was motivated by a
sincere desire to deal fairly with the employees when engaged in the aforementioned
conduct, especially in its effort to accomplish a correction by refunds of dues, revision
of the contract, and otherwise. Nevertheless, Respondent by its conduct invaded a
field of activity that is exclusively reserved for its employees, and the Board under
such, circumstances has nevertheless held that such conduct as described above is
violative of the Act .6
"Upton testified credibly that dues thus collected from these three individuals were
thereafter refunded , but neither he nor anyone else testifying to the matter gave any
reason for such action being taken . In one case the refund was made in August 1960 and
in both other instances the refund was made a week prior to the hearing in this case
As will be noted In detail hereafter (infra), this action has no significance to a factual
determination that dues were deducted without notice or authorization
'The credited testimony of Manchester Union Treasurer Homer F. Dennis.
5 N L R.B. v. J. E. SfcCatron, et al ., d/b/a Price Valley Lumber Co , et al, 216 F 2d
212, 215 (CA. 9). See also Old King Cole, Inc. v. N.L.R.B, 260 F. 2d 530 (C.A. 6)
N.L.R.B. v. Bell Aircraft Corporation , 206 F. 2a 235, 237 (C.A. 2).
Ed Taussig, Inc, 108 NLRB 470, 476.
DOUBLE A PRODUCTS COMPANY 229
Here Respondent, under the contract currently in force, relied upon it (article II)
in hiring employees Cox, Hyder, and Philo, instructing them that they "must be
members of the Union." By thus "maintaining in force a collective bargaining
agreement which embraces a union-security clause granting employees less than
thirty days in which to join the contracting union" the Respondent is clearly in vio-
lation of Section 8(a) (2)?
Article VI, section 4, of the contract (supra), dealing with the constituted mem-
bership of the grievance committee, requires, in final effect, mutual agreement as to
who will be a member of that committee. To the extent that the Company's agree-
ment is necessary it thereby has a right to veto over any selection with whom it does
not agree. To this extent, therefore, the employer thereby intrudes into the in-
ternal administration of the Manchester Union and clearly exercises a degree of
control not consistent with the neutrality expected of it and thus constitutes further
evidence of a violation of Section 8(a) (2).8 I do not, however, view the contractual
requirement of full employee participation in the reinsurance program, as outlined
in article XIX (supra) and as described in its current operation by employee Dennis,
to constitute independent evidence of domination, support, or assistance. Indeed
were nonmembers of the Manchester Union excluded from the coverage of this
added insurance there would be every reason for complaint that discrimination was
being visited upon them by depriving them of valuable insurance coverage. I would
recommend, therefore, that so much of the complaint as alleges that the contract is
independently violative of Section 8(a)(2) or (3) of the Act by virtue of the
insurance clause be dismissed.
In addition to the foregoing instances of unlawful conduct deriving from the
enforcement and maintenance of the contract, the Repondent has been shown by its
own admission to have engaged in other conduct which is equally unlawful. Thus
it has permitted union officers and committeemen time off with pay for the attendance
at union meetings and for the prosecution of union business; 9 it has deducted
union dues from employees' pay without prior authorization or notice; 10 it has
provided the Manchester Union with space throughout the plant for the installation
and maintenance of vending machines, thereby foregoing for itself the profits which
inure to the Union; 11 and it permits the use of its clerical force and equipment for
the printing of ballots used by the Manchester Union for its election-.12
Having concluded as I do that the conduct enumerated above constitutes a viola-
tion of Section 8(a) (2) of the Act there remains to be determined the extent of this
violation. That is, whether it be a form of domination or of unlawful assistance,
support, and interference. A review of the cases indicates that the criteria for estab-
lishing the extent of employer control "is not an objective one but rather sub-
jective from the standpoint of the employees." N.L.R.B. v. Sharples Chemicals, Inc.,
209 F. 2d 645, 652 (C.A. 6). Thus to find domination, the more arrant of the
types of conduct violative of Section 8(a)(2), an employer's conduct must be of a
grosser variety, insensitive to the rights of his employees as well as to the requirement
of neutrality imposed upon him by the statute.13
Respondent here, in my evaluation of his conduct, has not indulged in what has
come to be recognized as the grosser forms of employer intrusion. On the contrary,
its contractual relations, however misguided, appear to have been of mutual ad-
vantage to both it and its employees. The same applies to the benefits it provided
the Manchester Union over the years., Moreover, it is to be noted that these activities
have consistently occurred in an atmosphere free of interunion competition and, so
far as the record discloses, free of any attempt to impede the introduction of an
"outside" union. Under such circumstances, and in view of Respondent's frankness
as to its actions and its efforts to rectify the irregularities in the collective agreement,
I would hesitate to characterize the Manchester Union as a company-dominated
union, with all of the connotations of malfeasance attaching to it. Rather, I would
N.L R B v Associated Machines , Inc , 239 F 2d 858 (C A. 6).
s Cf. Pacemaker Corporation, an Indiana Corporation v. N L R B , 260 F. 2d 880 (C A 7).
9 Mt Clemens Metal Products Company, 126 NLRB 1297, 1310, enfd. 287 F. 2d 790
(CA 6)
i°Illinois Malleable Iron Company and Appleton Electric Company, 120 NLRB 451.
11 N.L.R B v. Shedd-Brown Mfg Co., 213 F. 2d 163, 168 (C.A. 7).
12 Mt Clemens Metal Products Company, supra
13 N L R B v. Sharples Chemicals, Inc, 209 F. 2d 645 (C A. 6) ; N L ,R B. v. Polynesian
Arts. Inc., 209 F. 2d 846, 847 (C A 6) ; N.L R.B v. Edwin D. Wemyss, d/b/a Coca-Cola
Bottling Company of Stockton, 212 F. 2d 465, 471 (C A. 9) ; N L R B. v. The Summers
Fertsltzer Company, Inc, et at, 251 F. 2d 514 , 518 (C.A. 1). See also Mt. Clemens Metal
Products Company, supra.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limit my findings to those of company interference with the Manchester Union's ad-
ministration and to the contribution of financial and other support to it. In these
respects I find that Respondent has violated Section 8 (a) (2) of the Act.
With respect to the further allegation in the complaint that by maintenance of the
contract during the period following June 15, 1960, Respondent also violated Section
8(a)(3) of the Act, it is sufficient to note that it is a legal precept of long standing
that a union-security provision in a contract which fails to provide new employees
with the statutory 30 days within which to join the union constitutes a discrimination
against them .14 Accordingly, I find the Respondent to have further violated the Act
by discriminating against its employees in violation of Section 8(a) (3).
B. The alleged discriminations
1. Rudolph Vacek
Rudolph Vacek , employed by the Company for a period of 1i/2 years , was dis-
charged from his job as OD grinder operator on October 20, 1960. When termi-
nating Vacek , Respondent assigned as its reason his propensity for wandering about
the plant visiting with his fellow employees and the causing of excessive scrap on
the work assigned him.15
General Counsel , on the other hand , contends that no such justification existed
for Vacek 's discharge , and that actually the reasons supplied were but a pretext for
eliminating him because of his activities in behalf of the UAW. In this regard, and
contrary to General Counsel 's contention , I am persuaded upon the credible evidence
submitted that Vacek did indulge in wandering about the plant, did create an excessive
amount of scrap , and that he was, in fact, discharged for these reasons. But this
does not dispose of the issue if it should appear that his activities in behalf of the
UAW were known to Respondent 's officials directly or through its supervisors, and
that his discharge was for this added reason.
There is nothing in the testimony of any credited witness to suggest, however, that
Respondent did know of Vacek's activity in behalf of the UAW. In so concluding, I
do not credit the testimony of either Vacek , Kenneth C . Waters, or Supervisor James
F. Heslip, the only witnesses whose testimony would suggest company knowledge of
the UAW's interest in organizing the employees in the fall of 1960.
Upon my observation of Vacek and also in view of his hedging testimony, fre-
quently contradictory and equivocal , I reject him as a credible witness.16
As to Kenneth Waters his demeanor on the witness stand and the equivocal and
hedging manner in which he answered questions put to him persuade me that he is not
a reliable witness.17
Supervisor Heslip 's testimony is equally incredible . In addition to my general ob-
servation of him as a witness, his testimony clearly establishes his unreliability in
that respect. Thus he testified both affirmatively and negatively when questioned
14 N L R B v . Associated Machines , Inc, supra ; NLRB v Cadillac Wire Corp, at al,
290 F 2d 261 (C.A. 2) ; Chun King Sales, Inc, 126 NLRB 851, 853
>s These findings are based upon the credited testimony of President Upton , employee
Yarckow, Chief Engineer Dorff , Chief Inspector Bauer, Franz Hayes, chief of the gerotor
department , and the production records introduced by Respondent at the hearing Testi-
mony to the contrary is accordingly not credited
16 Illustrative of Vacek's unreliability were his evasive answers when asked on cross-
examination if lie had signed up Supervisor Heslip in the UAW ; and his contradictory
testimony when asked if, following his discharge , a meeting had been arranged between
the grievance committee and management concerning his discharge In this instance,
after testifying that he did not know whether such a meeting had been arranged , he then
testified that he told a committeeman he could not stay for the meeting that had been
arranged because of a previous engagement
17 Illustrative of this is his testimony concerning a pretrial affidavit given by him. He
contradicted statements made in the affidavit , he was evasive concerning contents shown
him in the affidavit , and he was reluctant to supply information from the affidavit itself
when questioned concerning it by me. The sentences in Waters ' affidavit to which he
showed particular reluctance was "Franz Hayes never said anything to me about the
union None of the supervisors or foremen ever said anything to me about a union, and
I never mentioned my activities to them " He claimed he could not read the handwritten
words "none of," as they appeared in the statement As I stated on the record, I per-
sonally inspected the document in question and found the words "none of" to be as clear
as any of the other words which Waters readily read I draw particular significance
from Waters ' difficulty to read this sentence from the fact that he had already testified
to the contrary , and to the effect that he had discussed the UAW with Supervisor Heslip.
DOUBLE A PRODUCTS COMPANY 231
whether Supervisor Hayes had spoken to him about Vacek trying to bring in the
UAW; a conversation which Hayes thereafter credibly denied. Similarly, Heslip
testified that he never had reprimanded Vacek, and yet thereafter in his testimony con-
ceded that at Hayes' suggestion he spoke to Vacek about this excessive scrap. Upon
his general demeanor and because of contradictions and equivocations as illustrated
above, I cannot credit Heslip 's testimony except as it relates to technical or operational
matters not in issue here, or as corroborated by the testimony of credited witnesses.
But apart from my resolution of Supervisor Heslip's credibility (the only basis upon
which Respondent's knowledge of Vacek's or the UAW's activities could be based), it
should be noted that except for the alleged conversation. Heslip had with Super-
visor Hayes ( a conversation denied by Hayes and contradicted by Heslip himself),
Heslip concedes he never mentioned Vacek's UAW affiliations to either of the Uptons,
or to Chief Engineer Dorff, or to his assistant Hayes. Thus the most charitable treat-
ment of Heslip's testimony reveals his failure to supply Respondent with the knowl-
edge necessary to establish discrimination with respect to Vacek.
At it does not appear, therefore, that Respondent was aware of Rudolph Vacek's
union activity when it discharged him, and as the evidence to support Respondent's
stated reasons for the discharge is ample in the record, I shall recommend that so much
of the complaint as relates to Rudolph Vacek be dismissed.
2. Kenneth C. Waters
Kenneth Waters was hired on January 5, 1959. He was first assigned to work on
the turret lathe and was thereafter assigned to the drill press and milling depart-
ments, working interchangeably, in both departments. As a result of a drop in orders
work in each of these departments was seriously curtailed. On October 28, 1960,
Waters was one of a group laid off for lack of work, another group having been laid
off on the previous week. None of the employees of either of these two groups have
since been recalled and further layoffs have occurred, including one a week prior to the
close of the hearing in this case.
Witnesses appearing in behalf of Respondent credibly testified that Waters was a
good employee, that he was, in fact, laid off because there was no work to,be done
in his department, that no one who has since been hired to do his or any other laid-
off employee's work, and that upon the improvement of business Waters will be
recalled.18
The layoff of Waters, as of the other employees in his particular group , and in the
group laid off on the week previous, was accomplished by meetings of management
with the grievance committee of the Manchester Union, of which committee Waters
was a member. The meeting at which the individuals were selected for the Octo-
ber 28 layoffs, which meeting appears to have been held on October 25, is best
described in Waters' own admission:
Q. (By Mr. CHERPELIS.) At the October 28th meeting, or committee meet-
ing-1 believe it was October 25th. The meeting at any rate at which Mr. Upton
discussed who was going to be laid off, or give the names, was any mention
made at that meeting regarding the seniority status of any of the employees in
the Gerotor department?
A. Yes, there was. Mr. Ross wanted to know where I was at on the seniority
list, and I told him I was at the top of the list, and that's when he started going
to bat for me. He was trying to get me-get Mr. Upton to put me somewhere
else, and he also brung it up he wanted me to take Julius Lavender's job, and I
told Mr. Ross I would think about it, but in the meantime Mr. Upton said "Hell,
no, he is the only man in the mill department and therefore he will go," so the
following morning of the 26th Mr. Ross came back to me and said "Let's go in
,and talk to the old man and maybe he will have a change of heart," and I told
Lefty, I said "No, I am not built like that; if I have to take another man's job
in order to stay in the shop, I don't want it."
Thus, when he was selected, Waters understood the reasons for the selection and
appears willingly to have abided by the decision.
It is General Counsel's contention that Waters' layoff occurred out of turn and
because of his known solicitation in behalf of the UAW. As previously noted in the
case of Vacek, the only evidence of Respondent's knowledge of UAW activity in the
plant derives from the testimony of Vacek, Heslip, and Waters, none of whom I
credit. There is, however, some question as to whether President Upton had, on the
same day Waters was selected for layoff, already received a telephone call from a
Mr. McLean, a representative of the UAW, protesting the handling of Vacek's dis-
18 The testimony of President Upton, 'Chief Engineer Dorff , and Chief Inspector Bauer.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, and the language used by Upton concerning it. Upon the assumption that
Upton did become aware of the UAW activity contemporaneously, if not before,
Waters' layoff, it would require an inference much too weak and remote for me to
indulge in to find that Upton therefore knew that Waters was one of the prime movers
in this campaign and that this fact and not the normal economics of plant personnel
operations was the reason for his layoff. Accordingly, I find upon the testimony of
credible witnesses that Respondent had no knowledge of Waters' UAW activity.19
Under such circumstances, therefore, as has been presented by the testimony of
credible witnesses I conclude and find that Kenneth Waters was properly laid off
for lack of work and for no other reason. 3 will recommend therefore that so
much of the complaint as alleges discrimination against him be dismissed.
C. The alleged interference, restraint, and coercion
It is alleged in the complaint that Respondent's supervisor, Willie Fry, "threatened
its employees with discharge or other reprisals if they became or remained mem-
bers of the Charging Party or gave aid and support to it." In support of this allega-
tion General Counsel adduced testimony from Kenneth Waters, whose testimony I
have rejected (supra), and from his brother, Keith Waters, and Charles Todd. Todd
first testified that Fry, in midOctober 1960, "said if Mr. Upton heard anything about
anybody trying to organize or get the UAW in, he would probably be fired." But
thereafter on cross-examination he testified that to the best of his knowledge no
foreman or any representative of the Company knew what was going on in connec-
tion with the union activity, and that none of them ever mentioned it to him. Such
a contradiction renders Todd's testimony unreliable.
Similarly, Keith Waters testified to the effect that Fry attributed Vacek's discharge
to union activity and said, with reference to Upton, "Yes, and he will probably get
rid of everybody that had anything to do with the union." But on cross-examination
Keith Waters, when recounting Fry's stated feelings "about getting the CIO in there,"
stated that Fry "said it would be a good thing. He said he would even-he would
either be boss or he would be a set up man." Such obvious contradiction destroys
any credence I could otherwise place on Keith Waters' testimony.
As to the further allegation that during the`same period Foreman James Heslip
also threatened employees with discharge or other reprisal for UAW membership or
assistance, I find that this has support in the record only from the testimony of
Kenneth Waters. As I have rejected Kenneth Waters' testimony, I must necessarily
reject any allegation based upon it. For the foregoing reasons, therefore, and upon
my observation of the witnesses, I find there is insufficient credible evidence to support
an allegation that Respondent has unlawfully interfered with, restrained, or coerced
its employees. I shall accordingly recommend that the complaint be dismissed in
such respects.
V. THE REMEDY
Having found that the Respondent maintained and enforced a contract with the
Manchester Union which in certain specified respects constituted discrimination
against employees in violation of Section 8(a),(3), as well as a form of unlawful
assistance and support to the Manchester Union and interference with its administra-
tion, in violation of Section 8(a) (2), and having found that Respondent otherwise
interfered with and rendered unlawful support and assistance to the Manchester
Union, I shall recommend that Respondent cease and desist from such conduct,
that it withdraw and withhold all recognition from the Manchester Union and cease
giving effect to any agreement, or renewal or extension thereof, with said labor
organization unless and until it has been certified by the National Labor Relations
Board as majority representative of Respondent's employees following a Board-
conducted election.
As the conduct indulged in by Respondent has not been found to be of such
gravity as would constitute unlawful domination, I shall not require disestablishment
of the Manchester Union nor do I believe it would effectuate the policy of Act
29 It is suggested that the wearing of lapel buttons sponsored by the CIO Committee on
Political Education (COPE), endorsing the campaign of President Kennedy, constituted
evidence whereby Respondent's knowledge of UAW activity could be inferred I must
necessarily reject any suggestion that would equate national political interest and prefer-
ence with a union organizing campaign. I would similarly conclude with respect to
pamphlets published by COPE concerning the voting records of Michigan candidates for
congressional office which Waters and others allegedy distributed, and which Waters
claims he saw on Upton's desk on the day of his layoff.
LEONETTI FURNITURE MANUFACTURING CO. 233
to require , as urged by the Charging Party , reimbursement of employee dues and
other payments made to Manchester Union by them.
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO, and Manchester Union are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. The operations of Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By interfering with the administration of and rendering unlawful assistance
and support to the Manchester Union and by maintaining and enforcing an unlawful
agreement with it, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (2) of the Act.
4. By discriminating against its employees by maintaining and enforcing an
unlawful agreement with the Manchester Union , Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the
Act.
5. By the foregoing conduct only Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them by Section 7
of the Act and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com -
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate Section 8 (a) (3) or (1) of the Act by the discharge
of Rudolph Vacek or the layoff of Kenneth Waters.
[Recommendations omitted from publication.]
Fred Leonetti and Benjamin Sussman, Partners doing business
as Leonetti Furniture Manufacturing Co. and Warehouse-
men's Union Local 206, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America..
Case No. 36-CA-1001. November 15, 1961
DECISION AND ORDER
On June 29, 1961, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that the Respondents had not
engaged in other unfair labor practices alleged in the complaint and
recommended that these allegations be dismissed. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a brief in
support thereof.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
No exceptions were filed to the Trial Examiner's recommended dismissal of allegations
In the complaint.
134 NLRB No. 28.