Eastern Industries

National Labor Relations Board - Board Decisions

May 2, 1975

217 N.L.R.B. 712 (N.L.R.B. 1975)

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Victor M. Sprys d/b/a Eastern Industries andLabor- ers' International Union of North America, Con- struction, General Laborers and Material Handlers, Local Union No. 1058 , AFL-CIO. Case 6-CA-7437 May 2, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On November 29, 1974, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding.' Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief, as well as a brief in answer to the Respondent's exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-excep- tions, and briefs and has decided to affirm the rulings, findings,' and conclusion3 of the Administrative Law Judge and to adopt his recommended Order.' 1 The "Employees' Committee" appeared at the hearing as a Party in Interest 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (CA. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 3 Respondent contends in its exceptions and bnef that the Administrative Law Judge erred procedurally when, for purposes of establishing jurisdiction over Respondent under the Board's indirect outflow test, he took judicial notice to prior Board cases establishing jurisdiction over P P.G Industries without first warning Respondent that he would do so. We note, however, that the Administrative Law Judge thoroughly discussed the jurisdictional question in this Decision, that Respondent therefore had full opportunity in its exceptions and bnef to show that the Administrative Law Judge erred substantively in his discussion, and that Respondent did not even attempt so to show. Accordingly, we conclude that Respondent has failed to estab- lish that it has suffered any prejudice from the Administrative Law Judge's actions See Union de Tronquistas de Puerto Rico, Local 901, d/b/a Hotel La Concha, 193 NLRB 591 (1971). Respondent also contends that the Administrative Law Judge erred when he ruled that the Board agent who interviewed Dale Rarrigh did not violate pertinent General Counsel guidelines in failing to contact Rarrigh's counsel before the interview We note, however, that Rarrigh never requested the Board agent to contact his counsel and that, in any event, Respondent has not even attempted to'show how the presence of counsel might possibly have altered the content of Rarrtgh's affidavit in particular or the outcome of these proceedings in general. Accordingly, we conclude that Respondent has failed to establish that it has suffered any prejudice from the Administra- tive Law Judge's ruling 4 Our adoption of the Administrative Law Judge's recommended Order, insofar as it requires that Respondent cease and desist from recognizing and bargaining with the Employees' Committee, is not to be construed as requir- ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act,' as amended, the National Labor Relations Board adopts as its Order the recommended`Order of the Administrative Law Judge and hereby orders that the Respondent, Victor M. Sprys d/b/a Eastern Indus- tries, McKees Rock, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER JENKINS, concurring in part and dissenting in part: I am in agreement with the findings of the Adminis- trative Law Judge, adopted by my colleagues, that by encouraging employees to form and support the Em- ployees' Committee and by recognizing and dealing with said Committee Respondent violated Section 8(a)(2) and (1) of the Act, and that by promising and granting benefits to employees in the midst of union organizing activity Respondent violated Section 8(a)(1). However, I find merit in the General Counsel's exceptions to the Administrative Law Judge's failure to conclude that Respondent General Manager Rarrigh did solicit grievances from employees during the gen- eral employee meeting on April 26, 1974. The record reveals that the Laborers' Union com- menced organization of Respondent's employees in April 1974 and filed a representation petition on April 11. During that month, employees expressed dissatis- faction with working conditions and apparently several unidentified employees requested, through employee Phillips, a meeting with General Manager Rarrigh. On April 26, Rarrigh called the employees to a meeting and stated that he was shocked to hear from the Union because he didn't think that the problems were that vast in the plant. Following Rarrigh's opening remarks several employees expressed complaints, and Rarrigh impliedly promised to act favorably on the grievances and suggested that the employees establish or reacti- vate the Employees' Committee. The Administrative Law Judge correctly found that Rarrigh's comments promising and eventually granting benefits, encourag- ing employees to support the Employees' Committee, and recognizing and dealing with the Committee vi- olated Section 8(a)(1) and (2). However, the Adminis- trative Law Judge found that, because there is no evi- dence that Rarrigh initiated complaints by employees, the situation herein is unlike the "classic" form of un- lawful grievance solicitation, and Respondent cannot be said to have unlawfully set the stage for ascertaining ing that Respondent rescind any benefits already granted employees as a result of Respondent's prior recognition of and bargaining with the Em- ployees' Committee 271 NLRB No. 118 EASTERN INDUSTRIES the union sentiment to-individual employees by indirect inquiry as to their complaints. I reject this rather simplistic approach which totally ignores the extant realities. Thus, shortly after the La- borers' Union filed a representation petition, Respond- ent summoned its employees to a meeting, the obvious purpose of which was to discuss employee complaints. The fact that the impetus for this meeting may have come from several employees rather than from Re- spondent is of little consequence, for I have no doubt that Rarrigh knew that several employees had com- plaints, and he willingly provided a forum for the voic- ing of those complaints. The credited testimony in- dicated that Respondent intended to and did in fact utilize the April 26 meeting as a vehicle to dissuade employees from supporting the Laborers' Union by promising benefits and suggesting the employee com- mittee. The finding that other unfair labor practices were committed at the April 26 meeting lends support to the conclusion that the meeting was held in order to solicit grievances, with the view toward restraining the employees from supporting the Union. Moreover, even if this backdrop of unfair labor prac- tices did not exist, I would find that the April 26 meet- ing amounted to an actual remedy of the very employee dissatisfaction which created their interest in the Union-the failure of management, to communicate with the employees. Thus, in my view, the mere holding of the meeting, considering its purpose and timing and in the absence of any probative evidence that Respond- ent had independent reasons unconnected with the ad- vent of the Union for holding such a meeting to solicit or discuss grievances, also interfered with the em- ployees' choice of representative and thus violated Sec- tion 8(a)(1). DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This pro- ceeding was heard in Pittsburgh, Pennsylvania, on September 24, 25, 26, and 27, 1974, pursuant to a charge filed on April 24, 1974, as amended on July 25, 1974, and a complaint issued on July 31, 1974, alleging that Respondent violated Section 8(a)(1) by threatening plant closure in the event em- ployees organized, by solicitation of grievances from em- ployees, by promising and granting benefits to discourage umcn activity, and Section 8(a)(2) of the Act by assisting, dominating, and contributing support to the administration of a labor organization; namely, the Employees' Committee. Through its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were filed by the General Counsel and the Respondent. 713 Upon the entire record in this proceeding including my observation of the witnesses while testifying, and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT I JURISDICTION The complaint, as amended, alleges and the record shows that Respondent, an individual entrepreneur, with a principal office located in McKees Rock, Pennsylvania, is engaged in the business of providing services to P.P.G. Industries, Inc., at the latter's facility in Lower Burrell, Pennsylvania, the sole facility involved here. During the 12-month period immedi- ately preceding the issuance of the complaint, a representa- tive period, Respondent has provided goods and services valued in excess of $50,000 to P.P.G. Industries at said Lower Burrell facility.' As P.P.G. Industries is directly engaged in commerce,2 I find that Respondent's operations satisfy the Board's indirect outflow standards,' and that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Laborers' International Union of North America, Construc- tion, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. The allegation in the complaint that the "Employees' Com- mittee" is a labor organization within the meaning of the Act, is not the subject of an admission. On the basis of uncon- tradicted evidence I find that the Committee is composed of representatives designated on a departmental basis and elected by vote of the employees within each of the respective departments. I further find that said representatives collec- tively presented employment demands which originated with employees to Respondent, and that the representatives collec- tively met with Respondent, with said meetings resulting in the formulation of new terms and conditions of employment. Accordingly, and as the sole purpose of the Committee was the representation of employees for purposes of treating with the Employer concerning mandatory subjects of collective bargaining, I find that the Employees' Committee constitutes a labor organization within the meaning of Section 2(5) of the Act ° ' Based on the credited testimony of Victor M Sprys 2 Respondent's counsel declined to concede that P P.G Industries is an employer engaged in commerce within the meaning of the Act, and there is no commerce evidence in the record with respect to that enterprise. In any event, considering the numerous past decisions, of which judicial notice is taken, where the Board, with court approval, has asserted jurisdiction over P P G. Industries, I find that the latter is an employer which meets the Board's jurisdiction standards and is itself engaged in commerce 3 See Szemons Mailing Service, 122 NLRB 81, 85 (1958) ° Sec. 2(5) of the Act defines a labor organization as "any organization of any kind, or any agency of 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 " 714 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues DECIS][ONS OF NATIONAL LABOR RELATIONS BOARD The key issues in this case relate to Respondent's dealings with the Employees' Committee during the pendency of a representation petition previously filed by the Laborers' Union. The complaint alleges various acts attributed to Dale Rarrigh, Respondent's general manager, and Arthur Phillips, whose alleged supervisory status is in dispute, which accord- ing to the General Counsel constitute 8(a)(2) domination of and assistance to the Employees' Committee, and independ- ent violations of Section 8(a)(1) calculated to dissuade em- ployees from supporting the Laborers'- Union. B. Background The Lower Burrell, Pennsylvania, facility involved here is owned by P.P.G. Industries, and was designed to develop and produce a new fiberglass product, as part of a joint venture involving P.P.G. Industries and Union Carbide. The Re- spondent, under an arrangement with P.P.G. Industries, fur- nishes certain blue collar and supervisory personnel who en- gage in various production and maintenance functions at the Lower Burrell facility. Under this arrangement, which appar- ently is terminable,at will by P.P.G. Industries, four classifi- cations of employees are defined with Respondent compen- sated by a set hourly rate for each employee, depending on his classification. The amount of this rate is not automatically influenced by the wages paid by Respondent, and Respon- dent's profit represents the difference between the classifica- tion rate paid by P.P.G. Industries, and the rate Respondent actually pays the employee. Respondent commenced operations under this arrange- ment at Lower Burrell in 1969. During the early stages, Respondent's work force consisted of about 15 employees, who worked in the plant side by side with Union Carbide and P.P.G. Industries personnel. In 1969, a committee was estab- lished to deal with various employment problems in the plant. Thai, committee represented all employees engaged at the facility irrespective of whether they were employed by Re- spondent, Union Carbide or P.P.G. Industries. Sometime in 1973, Union Carbide withdrew substantially all of its employees from the Lower Burrell facility. P.P.G. Industries and Respondent hired additional employees to re- place them. At the same time, the 8-hour daily operation at the plant was expanded to a three-shift, round-the-clock op- eration. As a result of these adjustments, manpower needs increased, and Respondent's employee complement at Lower Burrell grew from some 50 employees to about 125 em- ployees. The Laborers' Union commenced organization of Respon- dent's employees at Lower Burrell in April 1974. That Union filed a representation petition on April 11, 1974. Also in that month, according to the testimony of Arthur Phillips, dis- satisfaction with working conditions was very much a topic of conversation among employees. According to Phillips, cer- tain of them, who are unidentified, requested, through Phil- lips, a meeting with General 'Manager Rarrigh. Phillips at that time told the employees of the committee that had repre- sented employees in the past and suggested that this arrange- ment be reinstituted. Following this, Phillips spoke to Rar- righ concerning the request that-he meet with employees, and Rarrigh agreed to do so. Subsequently, the meeting with employees was held on April 26, 1974. In the course thereof, the employees ex- pressed complaints concerning working conditions. Rarrigh responded by indicating, among other things, that he would take -the demands to higher levels; namely, Victor Sprys and P.P.G. Industries.' Also during this meeting, the idea of es- tablishing a commrttee6 was raised, and under any version of the testimony, it is clear , that Rarrigh expressed his will- ingness to meet with such a committee if formed. Following this meeting, employees in each department voted to have a committee and then elected one representa- tive to serve on the Committee. Rarrigh first met with the designated representatives of the Employees' Committee in either late April or early May. Employee demands for im- proving hospitalization and insurance, wages, sick pay, holi- days, and a variety of other terms were presented at that time. Rarrigh agreed to look over the demands, and to select those items which warranted immediate action. He indicated he would get back to the Committee or post a notice on the bulletin board concerning management's response. Subse- quently, in early June, the Committee again met with Rar- righ. Rarrigh at that time informed the Committee that work- ing conditions would be improved through an increase in hospitalization, life insurance, and sick pay benefits. He fur- ther advised that an additional pay holiday would be granted, as well as a 5.5-percent increase in pay, and that the Respond- ent would pay 75 percent of the cost of work shoes. Subse- quently, these benefits were actually received by employees. The circumstances surrounding the -formation of the Em- ployees' Committee, the Respondent's recognition of and dealings with, the Committee, as well as the legitimacy of the fruits of these dealings, in the light of the pending question concerning representation, all give rise to what I perceive to be the critical issues presented in this proceeding. C. Independent Interference, Coercion, and Restraint 1. The meeting of April 26, 1974 The complaint alleges that, in the course of the April 26, meeting , Dale Rarrigh independently violated Section 8(a)(1) of the Act by (1) threatening to close the operation if em- ployees designated the Laborers' Union, (2) soliciting griev- ances from employees, and (3) promising employees hospital- ization and other benefits to discourage activity on behalf of the Laborers' Union. I note initially that the meeting in question was not ini- tiated or conceived by Rarrigh. Indeed, since I shall find, infra, that Arthur Phillips, was neither a supervisor nor agent, whose actions were in any way binding on the Re- spondent, it is a plainly established fact of record that the 5 As heretofore indicated, any increased employment costs sustained by Respondent, under its arrangement with P.P.G Industries, would reduce Respondent's profit margin unless the former agreed to an upward adjust- ment in the rates paid to Respondent. 6 Whether discussion of the Committee was initiated by an employee or by Phillips or Rarrigh is the subject of a conflict in testimony Rarrigh had not met with the committee which previously had existed, for some 6 to 8 months prior to the April 26, 1974, meeting EASTERN INDUSTRIES meeting was sought by employees, and held solely at their behest. With respect to the alleged threat of a closedown, the topic arose only when employees questioned Rarrigh as to such possibility. Witnesses called by the General Counsel to testify in support of this allegation, related that Rarrigh responded simply by indicating that he did not know thatproduction was down and that it was up to P.P.G. Industries as to whether P.P.G. Industries would allot more money or just pull out.' This noncommittal statement by Rarrigh, made in response to employee inquiry, neither directly, nor by reason- able implication, linked any future uncertainty as to con- tinued operation, with union activity. In the circumstances I find that the various versions of Rarrigh's comments fail to substantiate General Counsel's contention that Respondent threatened a termination of operations in violation of Section 8(a)(1). As indicated, the complaint also alleges that Rarrigh fur- ther violated 8(a)(1) in the course of the April 26 meeting, by soliciting employees grievances. During the meeting em- ployees expressed their gripes to Rarrigh. However, there is no evidence whatever that Rarrigh or any other agent of Respondent invited such action by the employees.' Accord- ingly, the evidence does not establish that Respondent vi- olated Section 8(a)(1) of the Act in this respect. On the other hand, the evidence does indicate that Rarrigh made statements indicating that the demands expressed by the employees would be favorably acted upon by manage- ment. In this regard, August Bierhals credibly testified that during the April 26 meeting, Rarrigh said he would look over the demands and discuss them with Sprys and P.P.G. Indus- tries and try to take care of them. In addition, after the possible establishment or reactivation of an employee com- mittee was raised, according to credited testimony by Russell Hack, Rarrigh, speaking in favor of this concept, stated that he was going to "talk to everybody in the plant . . . through his committee, so that all the problems could be worked out." In similar vein, Bierhals credibly testified that the employees were informed by Rarrigh that "if at all possible, we would try to get the committee to solve all the problems, without 7 Based on a composite of the testimony of Russell Hack and August Bierhals, both of whom are presently employed by Respondent. Hack and Bierhals were the only witnesses examined by the General Counsel in support of this allegation Rarrigh admits to telling employees at that time that the Company's position was critical, and that the next 2 months would be critical to a determination of whether the operation would stay open because new equipment was being installed, which had to work if operations were to continue 8 The testimony of Russell Hack does not identify any individual or individuals as responsible for the opening of the meeting to employee asser- tion of grievances. August Bierhals testified that it was his belief that Art Phillips said, "does anybody have any questions or anything," and then somebody said, "what's the problem, and so, I couldn't tell you who spoke first." Since I shall find, infra, that Phillips is not a supervisor, the General Counsel has failed to establish that Respondent solicited employee griev- ances at the meeting of April 26, 1974 Thus, unlike the classic form of unlawful grievance solicitation, Respondent cannot be said to have unlaw- fully set the stage for ascertaining the union sentiment of individual em- ployees by indirect inquiry as to their gripes. Cf. Swift Produce, Inc., 203 NLRB 360 (1973), Landis Tool Company, Division ofLitton Industries, 190 NLRB 757, 758 (1971), Vaughan Printers, Inc, 196 NLRB 161,164 (1972) The General Counsel's claim that Rarrigh's opening remarks to the effect that he did not realize "things" were so bad at the plant, somehow invited employees to express their grievances is regarded as a strained interpreta- tion of the evidence and is rejected 715 bringing the Union in." 9 Rarrigh's statements as related by Hack and Bierhals plainly establish that Respondent at the April 26, 1974, meeting promised benefits in violation of Section 8(a)(1) of the Act. Prior to the meeting, the em- ployees were troubled by the conditions of work maintained by Respondent at Lower Burrell, and in order to produce a change, had previously supported the organizational efforts of the Laborers' Union.Rarrigh, as of April 26,1974, was not unmindful of this background. His resort to terms of assur- ance signaled his own view as to the merit in the problems raised and tended to leave employees with the impression that their problems would be satisfactorily resolved without need for intervention of the Laborers' Union. In doing so, Rarrigh, in my judgment, clearly conveyed a renewed interest on the part of management in upward revision of terms and condi- tions of employment, and a willingness to accomodate em- ployees with respect to the very problems that formed the backdrop for organizational activity by the Laborers' Union. I am persuaded that the General Counsel has established that Rarrigh, in the course of the April 26, 1974, meeting, ex- tended assurances calculated to neutralize the economic con- siderations giving impetus to the organizational effort by the Laborers' Union, and that Respondent thereby violated Sec- tion 8(a)(1) of the Act.10 2. Grant of benefits The complaint alleges that in May 1974, Rarrigh violated 8(a)(1) by granting wage increases, additional life insurance coverage and other benefits to discourage activity on behalf of the Laborers' Union. Undisputed evidence establishes that at the second meeting between Rarrigh and the Employees' Committee, Rarrigh announced that new benefits would be placed into effect. Shortly after that meeting the improve- ments in terms of employment were placed in effect. The issue raised with respect to this allegation is controlled by the nature of the ultimate disposition of the General Counsel's contention that the Employee' Committee was, unlawfully dominated or assisted. A proof failure as to these 8(2)(2) allegations, would preclude any finding of impropriety in Respondent's grant of recognition to and dealings with the Employee' Committee. As the benefits in issue here, were the product of such negotiations, it would follow that no illegality 9 Although Arthur Phillips in testifying as to Rarrigh's responses to both the employee complaints and the formation of the committee was not as -explicit as Hack and Bierhals, his testimony is not inconsistent with the accounts of the latter To the extent that Rarrigh's testimony may be con- strued as conflicting with that of Hack and Bierhals, it is discredited. Hack and Bierhals, at the time of the hearing, were actively employed by Re- spondent and impressed me as intent on limiting their testimony to the facts as they occurred. I was not similarly impressed with Rarrigh, who reflected a bent towards exaggeration, and furnished patently unacceptable explana- tions, in self-servingfashion, to justify his various actions under examination in this proceeding . I regarded as particularly suspect his attempts to denude this record of any basis for assumption that he opposed the Laborers' Union, and his attempt to justify such a stance of neutrality, by reference to the alleged responsibility of P P.G. Industries to cover any additional labor costs that might be incurred by Respondent. Furthermore, Ramgh's tendency to give pat answers to leading questions posed by his counsel , which upon subsequent examination proved to include overstatements, contributes fur- ther to Rarrigh's unreliability. I accept his testimony only to the extent that it contains declarations against interest and insofar as it relates to matters having no material bearing on resolution of the issues involved here i° Lincoln Supply Co., Inc., 198 NLRB 932 (1972). 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would attach to the grant of such benefits in consequence to legitimate collective bargaining. Accordingly, I shall consider this allegation in the part of this decision dealing with the Respondent's alleged domination, assistance and support to the Employees' Committee. D. Alleged Assistance, Domination , and Interference with Administration of the Employees' Committee The 8(a)(2) allegations in the complaint attribute specific acts of assistance, domination, and interference as to the Employees' Committee to Rarrigh and Arthur Phillips. Since Respondent denies that Phillips was either a supervisor or an agent, a threshold question is presented as to Phillips' status. Phillips was assigned to Respondent's maintenance depart- ment, which apparently was engaged in production fixing, normal plant maintenance, and to some extent, a plant expan- sion project. There are six individuals assigned to the mainte- nance group, who work on three separate shifts: Phillips and three other maintenance men work on the day shift. The maintenance group, at all times, was responsible to Rarrigh. In addition, the authority over the maintenance force, but the record does not clearly establish precisely when this inter- mediate supervisory level was established in relation to the events here in issue. Phillips has no authority to hire or fire or effectively to recommend such action. He punches a timeclock and like other rank-and-file employees, spends about all of his time performing manual work. There is no competent testimony that any acknowledged representative of Respondent -ever informed Phillips or any other employee that Phillips either was a supervisor or possessed any of the traditional indicia of supervisory authority. Nonetheless, the General Counsel argues that Phillips is a supervisor, relying on evidence that Phillips (1) assigns work to other members of the mainte- nance group, (2) has escorted job applicants around the plant, (3) has initialed timecards of employees who neglected by oversight to punch in, (4) has corrected an employee's work, and (5) has assigned overtime, In my opinion these factors, when considered against the clear evidence that Phillips did not possess any traditional attributes of supervisory status, fall short of establishing that Phillips was either a supervisor or that he was held out to be an agent of Respondent. I am not persuaded that Phillips exercised independent judgment of a nonroutine nature in assigning work. Accord- ing to Phillips, maintenance men are assigned to jobs from a log sheet prepared on the prior shift. Although Phillips testi- fied that he made assignments from the log to the mainte- nance men, and that he based determination as to who should do a job upon his "experience," considering the small number of employees in Phillips day shift group, and the apparent fact that each possessed specialized skills, I am unwilling to find that this entailed the exercise of the degree of independent judgment contemplated by the statutory definition of a super- visor. It is also noted that testimony of Phillips and former maintenance employee Bruce Lawson further establishes that the judgment exercised by Phillips is diluted by the fact that individual maintenance men engage in frequent consultation with Rarrigh as to job assignments, methods of performing a job, and the corrections to be made on incorrectly_ per- formed jobs. Lawson's testimony that Rarrigh had direct contact with all maintenance men and informed them as to what their jobs were, considered against the total record, strongly implies that Phillips was not an intermediate level- management functionary, between Rarrigh and the three other maintenance men on the day shift. Also unpersuasive is the evidence concerning Phillips' role in assigning overtime. According to Phillips, he could author- ize overtime if, at the end of a shift, a job that had to be completed, if production was to resume, remained unfin- ished. Determinations of these kind hardly constitute the exercise of nonroutine independent judgment. Furthermore, concerning the distribution of overtime, since Phillips assigns overtime on the basis of seniority, he is not called up to exercise discretion in this area. Finally, there is no evidence that Phillips ever imposed overtime on maintenance men who were unwilling to work extra hours, nor does it appear that he possessed authority to do so. - Phillips and Lawson both testified as to the former having escorted new employees around the plant. Although the re- cord is vague as to whether all such employees had been hired before being taken on these tours, Phillips in relating the details of such tours mentioned only one specific example. In that case the applicant had been previously hired. Neverthe- less, according to Phillips only six individuals were escorted by him around the plant and this testimony that he had no real input into hiring decisions, leaves me unimpressed that this aspect of Phillips' employment experience tended to es- tablish or create the impression that he was a part of supervi- sion. Finally, Phillips' role in initialing timecards of those who neglected to punch in is not regarded as indicative of supervi- sory authority. Phillips' selection by Respondent to attest to the fact that an employee, whose card'did not reflect that he was on the job, actually worked, is perfectly consistent with trust imposed in a longstanding employee, having nonsuper- visory, leadman status. Based on the foregoing, and the entire record, I' find that the General Counsel has failed to establish that Arthur Phillips" was, or was held out to be a supervisor within the meaning of Section 2(11) of the Act. While the 8(a)(2) allegations involving Phillips will there- fore be dismissed, there remains for consideration the further allegations of unlawful assistance attributed to the complaint to Respondent's General Manager, Dale Rarrigh. In this connection the General Counsel claims that Rarrigh, through his conduct at the April 26 meeting with employees, en- couraged them to form or reactivate a committee, and told them he would negotiate with such committee once formed. The General Counsel also argues that following formation of the Committee, Ramgh engaged in further acts of assistance by meeting with the Committee, and in consequence of such meetings, setting new terms and conditions of employment. In this regard, Art Phillips credibly testified that at the April26 meeting, after his reference to the old committee and suggestion that employees form another, Rarrigh stated "it was a good idea." Testimony of Hack and Bierhals comple- I find no record support for the General Counsel's claim that Phillips adjusted grievances of other employees. The evidence is too vague to sub- stantiate such a claim and is beclouded further by the fact that Phillips was the grievance representative of Respondent's employees under the old coin mittee which had represented them in the past EASTERN INDUSTRIES merited that of Phillips, with that of Hack indicating that Rarrigh said that there had been a committee and the em- ployees "should more or less activate it, more than it has been, and meet with him" . . ., and that Rarrigh further indicated that he "was going to . . . get to everybody in the plant, through this committee, so that ail the problems could be worked out." Bierhals credibly related that Rarrigh said that "there was a committee, but it wasn't too active." Bier- hals went on to testify that Rarrigh suggested that "we should try to get a more active committee, to try to get the problems solved," and also stated "we would try to get the committee to solve all the problems, without bringing the Union in." Rarngh denied that he told anyone that the employees should activate the committee.12 According to Rarrigh, he was asked by the employees if he would accept a committee, and that he responded simply by stating, "my door is open .. . you guys can come up and beat on my door, any time, or can come in my office, and it will continue as it always has been." I have heretofore discredited Rarrigh. The circum- stances bearing on a consideration of his testimony as to this phase of the case hardly enhances his reliability. Based on the credited testimony of Phillips, Hack, and Bierhals, I find that Rarrigh made statements at the April 26 meeting, affirma- tively encouraging employees to form and support a commit- tee as an alternative to representation by the Laborers' Union, while assuring them that the Committee was the vehicle through which their problems would be resolved. Shortly after this meeting the employees met in their respective de- partments, and voted to have a committee and each depart- ment elected its own representative to serve thereon. Thereafter, in the period through June 1974, Rarrigh met with the Committee on several occasions. In the course of these meetings, Rarrigh entertained demands expressed by the Committee on behalf of employees, discussed them, and then following consideration of the issues by management further acknowledged the Committee's status as employee representative by reporting to the Committee that manage- 12'The pretrial affidavit afforded the General Counseiby Rarrigh, includes the following recital concerning his response to the suggestion that the committee be reinstated- I agreed that the committee should be reinstated and apologized for not having meetings in the past months ." Respondent's counsel at various stages of the hearing asserted that this statement was obtained in contravention of the instructions of the General Counsel set forth in Section 10056.5 of the N L R.B Field Manual, concerning a charged party's right to counsel during a pretrial interview Ultimately I ruled at the hearing that the Board investigator, in taking the statement, did not improperly deny Ramgh any right of counsel In doing so, I accepted as true , for purposes of ruling, Rarrigh 's testimony that when he arrived at the Board's office to give a statement, he asked the Board agent if he needed an attorney. The Board agent replied, "it wouldn't be necessary, that Rarrigh could have his attorney present if he wanted, but it wasn't necessary " In my opinion, this evidence does not substantiate Respondent's claim that Rarri gh in violation of the General Counsel 's guidelines , was denied a right to counsel during the interview In affirming my ruling in this regard, I note, additionally that the General Counsel's policy as set forth in Section 10056 5 of the Field Manual does not apply with respect to "a supervisor or agent of the charged party where the individual comes forward volun- tarily .. " See The Singer Company, 176 NLRB 1089, 1090 (1969). The testimony of Rarrigh admits that the Board agent did not demand, but requested his presence at the Board office, and that Rarrigh was under no compulsion to attend the interview or to give information The subjective reasons offered by Rarrigh as to why he attended are immaterial Accord- ingly, I also find that Rarrigh both attended the interview with the Board agent and gave his pretrial statement voluntarily and, for this further reason, I find that the conduct of the Board agent was in no sense in conflict with ne General Counsel's instructions . See The Singer Company, supra 717 ment would adopt a variety of new benefits, including (1) a 5.5-percent across-the-board wage increase , (2) an additional paid holiday, (3) Employer contribution to part of the cost of an employee's work shoes, and (4) increased benefit levels under sick pay, hospitalization, and life insurance program. Based on the foregoing, I find merit in the General Coun- sel's claim that, based on the totality of Rarrigh's conduct, the Committee was unlawfully assisted. Although Rarrigh did not initially suggest establishment of the Committee, and informed the employees at the April 26 meeting that they had their choice as to whether they wanted representation by a committee or by the Laborers' Union, he at that time and thereafter engaged in a course of conduct, plainly calculated to influence employees to create and support the committee and abandon their interest in the Laborers' Union. Rarrigh's expression that he ' would meet with the Committee, if formed , and his assurance that under such arrangement, the problems of employees would be resolved were not accom- panied by indications that Respondent would be similarly receptive were employees to designate the Laborers' Union. On April 26, employees were left by Rarrigh with a choice between an immediate basis for obtaining relief through the Committee, on the one hand, and the delay and uncertainty that would be occasioned by further efforts to establish the Laborers' Union as majority representative through a Board- conducted election, on the other. Against this background, the decision by employees to establish the Committee could hardly be viewed as uninfluenced by Rarrigh 's assurances that economic relief would follow such a determination. In- deed, Rarrigh later proved to have kept his word. His con- duct following the April 26 meeting in recognizing the committee13 and setting new terms of employment through that entity, contributed substantially to an easing of the em- ployee dissatisfaction giving rise to the organizational effort by the Laborers' Union and thwarted perhaps decisively, any continuing support among the employees for that Union. In these circumstances , I find that Respondent's encouragement of employees to form the Committee; its indication that it would meet with the Committee, once formed; its assurances that employee problems would be solved through the Com- mittee; its recognition and bargaining with the Committee;14 and its announcement of improved terms and 13 I find no merit in Respondent 's claim that the Employees ' Committee which was formed in 1974 was merely a continuation of a committee which had existed at the plant since 1969 The original committee had been dor- mant for some 6 to 8 months prior to the Laborers ' organizational effort in April 1974. Unlike the new committee the old committee's representative base was not limited to Respondent's employees , but included all rank-and- file employees in the plant Under the former committee, committee repre- sentatives were not selected on a departmental basis. Finally, the new com- mittee was established only after a vote by Respondent 's employees and their own determination as to its internal structure. Accordingly, I find that the old committee and that which was established in April 1974 were distinct entities, and that Respondent is not free to claim that its dealings with the new Employees' Committee constituted a on-going collective- bargaining relationship with an existing statutory labor organization pre- sumably representing an uncoerced majority of its employees See, e.g., Sweater Bee by Banff, Ltd, 197 NLRB 805 (1972) 14 I discredit Rarrigh's testimony that he met with the Committee only after employees had informed him that (1) the organizational effort on behalf of the Laborers' Union had been "dissolved," (2) the Laborers' Union had been advised by the employees that they did not want that Union to represent them, and (3 ) the Laborers' petition was no longer pending. This testimony was uncorroborated despite the fact that two of the employees (Continued) 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment through the Committee-all dur- ing the pendency of a representation petition filed by the Laborers' Union-constituted unlawful support and assist- ance to a labor organization violative of Section 8(a)(2) and (1) of the Act.15 - In connection with the foregoing, it is noted that the 8(a)(2) violation involved here and the remedy appropriate to redress that unfair labor practice would not be affected even if all issues of credibility had been resolved in favor of Respondent. It is well established-that "an employer faced with conflicting claims of two or more rival unions which give rise to a real question of representation may not recognize . . . one of these unions until its right to be recognized has finally been determined under the special procedures provided in the Act." Novak Logging Company, 119 NLRB 1573, 1574 (1958), citing Midwest Piping and Supply Co., 63 NLRB 1060. This longstanding policy of the Board is designed to preserve the integrity of Board election machinery from em- ployer intervention which effectively neutralizes the claim for representation of one of two rival unions. On the undisputed facts that is precisely what occurred here. Thus, on April 11, 1974, the Laborers' Union filed a representation petition. On April 19, 1974, all parties were notified by the Regional Di- rector of the Board that a hearing had been scheduled on said petition. There can be no question that, through its petition, the Laborers' Union raised a real question concerning repre- sentation . Rarrigh concedes, that at least by April 26, 1974, he was aware of the pendency of that petition. Nonetheless Rarrigh subsequently recognized, bargained with, and set new terms of employment through the Employees' Commit- tee. On these limited facts, Rarrigh contravened the strict duty of neutrality required of employers pursuant to the Board 's Midwest Piping doctrine. True, Respondent,_ through Rarrigh, asserted that it de- clined to deal with the Committee until led to believe, through unverified information from secondary sources, that the Employees' Committee represented a majority, that or- ganization on behalf of the Laborers' Union had ended, and that the latter's petition was no longer pending. However, the fact that Respondent may have relied on such information in dealing with the Committee furnishes no defense under the Midwest Piping doctrine and hardly justified Respondent's intervention under conditions which not only involved a des- ignation of the Committee as exclusive representative, but also resulted in economic concessions which rendered aca- demic any continuing employee interest in representation by the, Laborers' Union, thereby frustrating the selection of a bargaining representative pursuant to the safeguards right- fully expected by those filing valid representation petitions. Having found that Respondent violated Section 8(a)(2) of the Act, by inter alia, recognizing and negotiating with the Employees' Committee, it follows that the various new bene- identified by Rarngh as have informed him to this effect, Phillips and Hack, testified in this proceeding Neither impressed me as particularly hostile to Respondent's cause, yet neither was examined as to such conversation with Rarrigh On the basis of my general distrust of Rarrigh, as heretofore ex- pressed, I am unwilling to accept, as believable, his self-serving testimony as to this matter. 15 See Wisco Industries, Inc, 188 NLRB 326 (1971) I do not find that the record in this proceeding substantiates the General Counsel's claim that Respondent dominated the Employees' Committee within the meaning of Sec 8(a)(2) of the Act: fits adopted pursuant to said dealings constituted grants of benefits violative of Section 8(a)(1) of the Act. There can be no question that the new benefits were given in response to the employee dissatisfaction which prompted organizational activity on behalf of the Laborers' Union. They plainly amounted to no less than an implementation of Rarrigh's unlawful assurances announced to employees at the meeting of April 26, 1974. Respondent's entire course of conduct with respect to the Committee plainly reflected an intention on its part to influence employees to accept the Committee. The benefits granted through recognition of the Committee can- not be disassociated from Respondent's overall effort to un- lawfully establish an acceptable alternative to employee des- ignation of the Laborers' Union. I fmd that the benefits granted through the Respondent's bargaining with the Em- ployees' Committee violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent Victor M. Sprys d/b/a Eastern Industries is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Laborers' International Union of North America, Con- struction, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, and the Employees' Committee are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent, by encouraging employees to form and support the Employees' Committee, and by recognizing, bar- gaining with, and setting new terms of employment through the Employees' Committee violated Section 8(a)(2) and (1) of the Act. 4. Respondent, by assuring employees that new benefits would be granted on formation of the Employees' Commit- tee, and by granting new benefits after meeting with the Employees" Committee, violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action to effec- tuate the policies of the Act. It has been found that Respondent assisted the Employees' Committee in violaton of Section 8(a)(2) by, inter alia, recog- nizing and setting new terms and conditions of employment in consequence of its dealing with that labor organization. I shall therefore recommend that the Company withdraw recognition from, and curtail all dealings with, the Em- ployees' Committee, unless and until that Union shall have been certified by the Board. Finally, as the unfair labor practices found herein entailed a deliberate effort to undermine the attempt by the Laborers' Union to vindicate its representation claim through Board election machinery, I find merit in the General Counsel's claim that, in view of the severe nature of the unfair labor practices involved, a broad cease-and-desist provision is ap- propriate herein. EASTERN INDUSTRIES Upon -the basis of the foregoing findings of fact, and con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 16 Respondent, Victor M. Sprys d/b/a Eastern Industries, Mckees Rocks, Pennsylvania, its officers, agents, successors and assigns, shall: 11. Cease and desist from: (a) Promising and granting benefits under conditions in- ducing employees to refrain from engaging in activity on behalf of Laborers' International Union of North America, Construction, General Laborers and Material Handlers, Lo- cal Union No. 1058, AFL-CIO. (b) Encouraging employees to support the Employees' Committee, or recognizing the Employees' Committee as the exclusive representative of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the Employees' Committee has been duly certified by the Na- tional Labor Relations Board as the exclusive representative of said employees. (c) In any other manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist Labor- ers' International Union of North America, Construction, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action found necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Em- ployees' Committee as the exclusive representative of its em- ployees for the purposes of collective bargaining unless and unto l said labor organization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of said employees. (b) Post at business site in Lower Burrell, Pennsylvania, copies of the attached notice marked "Appendix."17 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by an authorized represen- tative of Respondent, shall be posted by Respondent, upon receipt thereof, and be maintained by it for a period of 60 days thereafter, in conspicuous places, including all places where- 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become the Board's findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes '1 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enfforcing an Order of the National Labor Relations Board." 719 notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, and Administrative Law Judge of the Na- tional Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT interfere with your right to join or sup- port Laborers' International Union of North America, Construction, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, by encouraging you to form and support the Employees' Committee through our giving assurance that new employment benefits will be granted if such a committee is formed. WE WILL NOT interfere with your right to join or sup- port Laborers ' International Union of North America, Construction, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, by encouraging you to support the Employees' Committee by meeting with and granting new benefits through the Employees' Com- mittee, until said Employees' Committee shall have been duly certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT in any other manner interfere with, re- strain or coerce you in the exercise of your right to self-organization , to form labor organization, to join or assist Laborers' International Union of North America, Construction, General Laborers and Material Handlers, Local Union No. 1058, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of your own choosing, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Sec- tion 7 of the Act, or to refrain from any and all such activities. WE WILL withdraw and withhold recognition from the Employees' Committee as the exclusive representative of our employees for the purposes of collective bargaining, unless and until said labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of our employees. VICTOR M. SPRYS d/b/a EASTERN INDUSTRIES