Famco, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1966

158 N.L.R.B. 111 (N.L.R.B. 1966)

FAMCO, INC 111
ruled and as the Petitioner has obtained a majority of the valid ballots
cast,' we shall certify the results of the election
[The Board certified Local Union 505, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the collective-bargaining representative of the
employees of Logan-Mingo Gas & Oil Co, Inc
1 On the basis of the initial tally of ballots , the Regional Director recognized that the
Petitioner could fail to receive a majority of votes only in the event that two or more of
the challenged voters were found eligible and voted against the Petitione) He properly
deemed this to be a remote possibility since the challenges had been interposed by the
Employer and the three employees had been discharged allegedly for discriminatory
reasons on the eve of the election The Regional Director therefore decided without
exception by the Employer , to open and count the three ballots in order to expedite a final
tally of the voting This action was in no way a determination of the eligibility of the
three voters As it is now disclosed that all three voted for the Petitioner , a decision as
to their eligibility becomes unnecessary to this representation proceeding since a hether
any or all of the three were eligible or ineligible to vote the Petitioner has, in any event,
received a majority of the valid votes cast
Famco, Inc. and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amei ica, UAW-
AFL-CIO. Case No 9-CA-3493 April 19,1966
DECISION AND ORDER
On January 7, 1966, Trial Examiner Robert L Piper issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 attached Trial Examiner's Deci-
sion Thereafter, the Respondent filed exceptions and a supporting
brief
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relation, Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria]
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Trial
Examiner's Decision , the exceptions and brief , and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner
[The Board adopted the Trial Examiner's Recommended Order ]
158 NLRB No 23
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act as
amended, was heard before Trial Examiner Robert L Piper at Louisville , Kentucky,
on August 31, 1965, pursuant to due notice The complaint , which was issued on
April 30, 1965 , on a charge dated March 3, 1965, alleged in substance that Famco,
Inc , herein called Respondent , engaged in unfair labor practic es proscribed by
Section 8(a)(1) by various specified acts of interference , restraint , and coercion of
employees in the exercise of rights guaranteed in Section 7 of the Act Respondent's
answer denied the alleged unfair labor practices The General Counsel and Respond
ent filed briefs
Upon the entire record in the case , and from my observation of the witnesses, I
make the following
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent is a Kentucky corporation engaged in the processing and manufacture
of glass fibers at its plant in Louisville , Kentucky During the past year it sold and
shipped more than $50 000 worth of products directly to points outside the State of
Kentucky Respondent admits and I find that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II IHE CHARGING PARTY INVOLVED
International Union, United Automobile Aerospace and Agricultural Implement
Workers of America, UAW-AFL-CIO, herein the Union , is a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Introduction and issues
The Board conducted a representation election among Respondent 's employees on
January 29 , 1965 1 Thereafter , a runoff election was held on February 25 The
Union lost The alleged unfair labor practices , with the exception of those dealing
with Respondent's "no solicitation" rules and its shop committee , occurred between
the two elections
The issues as framed by the pleadings are interference , restraint , and coercion by
(1) interrogation of employees ' union activities and sympathies , ( 2) threats of
adverse changes in employee management relationships , job reprisals , refusal to
bargain the cessation of all current economic benefits, and layoffs or discharges, if
the Union won the election , ( 3) prohibiting the distribution of union literature in
the plant at any time and destroying union literature in the presence of an employee
while leaving antiunion literature untouched , (4) publishing, maintaining , and enforc-
ing an unlawful no solicitation rule, and ( 5) assisting and/or dominating an employee
organization called the shop committee , alleged to be a labor organization within
the meaning of the Act
B Interference , restraint , and coercion
I Interrogation , threats, and the prohibition and confiscation of union insignia
Between the election on January 29 and the runoff election on February 25, con-
siderable electioneering took place in the plant Several mimeographed circulars,
of unknown origin , against the Union appeared throughout the plant A number of
the employees began wearing hats and buttons in the plant Russell Hendrick-
son had been employed by Respondent for about 9 years
Hendrickson had formerly operated a filter machine He had become afflicted
with an allergy which caused him to choke and be unable to breathe because of a
fine mist or spray ejected by the machine As a result , Hendrickson's doctor had
advised Respondent that Hendrickson could not work with the filter machine and he
had been transferred to another position Respondent operated a system of filling
vacancies , set forth in its book of rules, entitled "Our Blue Book ," under which
1 All dates hereinafter refer to 1965 unless otherwise indicated
FAMCO, INC., 113
employees "bid" for vacancies in the plant . The jobs were awarded on the basis
of seniority among the bidders. Hendrickson had secured his transfer to his job in
fine filters by such a bid.
Hendrickson began wearing a union hat and button on February 8. On February 9,
while wearing the hat and button, he was approached by Roy L. Skeeters, Respond-
ent's factory manager. Skeeters remarked to Hendrickson that it looked as if
Respondent had been too fair with him, because some people had been complaining
about his not operating filter machines. Skeeters further stated that he had "stuck
up" for Hendrickson in the shop committee and asked him how many plants would
keep him with the allergies and disability that he had. Respondent did not call
Skeeters. It seems clear, and I find, that this was a veiled threat of reprisal for
engaging in union activities in violation of Section 8(a)(1) of the Act.
On February 10 Helen Hornback was working in the dry pack department of
Respondent's assembly, department. She and four other ladies broke for lunch about
7:30 p.m. They found a small pile of union hats at the end of the tape line in their
department . She and one of the other women put on one of the hats before they
returned to work. Each of the women picked up one of the hats. Hornback also
carried several of the hats back to their work station and placed' them on a table.
The hats were made of paper and carried the name or initials of the Union. Joseph
H. Johnson, Respondent's general foreman, entered the department as the women
returned from their break. Johnson told Hornback that she was not supposed to
carry such material through the plant. He asked Hornback if the hats belonged to
her and she replied that they did. He removed the hats from the table, crumpled
them, and took them away. There were three antiunion circulars on the table next
to the hats, but Johnson did not remove or destroy them.
Johnson testified that he picked up only one hat and stuffed it in his back pocket.
He said that Hornback told him that the hat was not hers, but admitted that she
said she had placed it there after he told her that he had seen her put it on the
table. Johnson denied seeing any antiunion literature on the table when he picked
up the hat. However, he admitted seeing and not confiscating a substantial amount
of antiunion propaganda in the form of circulars throughout the plant. Johnson
did not deny that he told Hornback that it was against the rules to carry such hats
through the plant. I credit Hornback.
It is well settled that prohibiting the carrying, wearing, or displaying of prounion
insignia , such as hats and buttons, absent unusual circumstances not present here, is a
violation of Section 8(a)(1) of the Act.3 For the same reasons, the destruction or
confiscation of such material also interferes with, restrains, and coerces employees
in violation of the Act.4 Assuming arguendo that Respondent's prohibition against
carrying union insignia as announced by Johnson was valid, Johnson's confiscation
and destruction of the union hats while ignoring the antiunion circulars on the same
table and throughout the plant would constitute a discriminatory application of such
a rule in violation of Section 8 (a) (1) of the Act.5
On or about February 18, about a week before the election, Dalton McElvain, who
was employed as an inspector in the flat mat department, had a conversation in the
vicinity of his work station with his foreman, George O. Brunson. Brunson began
discussing the Union and the forthcoming election. Brunson stated that he thought
he knew how McElvain had voted in the prior election but that it didn't make any
difference. Brunson said that he did not see how the Union could help the employees
if it got in. McElvain replied that he had voted for the Union the first time and
probably would again. Brunson told McElvain that Brunson had been overlooking
some things in the past which he could not overlook if the Union won the election.
2 The transcript of testimony reads: "It looks like the company hasn ' t been too fair
with you. Some people have complained about you not operating filter machines " In
view of the overall context and my recollection of the testimony, I believe this to be a
typographical error and that Hendrickson actually testified that Skeeters said: "It looks
like the company has been too fair with you"
8 N.L.R.B. v. Ertel Manufacturing Corp., 352 F. 2d 916 (C.A. 7) ; N.L R.B. v. Wix Corp.,
336 F. 2d 824 (C.A. 4) ; Caterpillar Tractor Company, etc. v. N.L R.B., 230 F. 2d 357 (C A.
7) ; N.L.R.B. v. Dixie Shirt Company, 176 F. 2d 969 (C.A. 4) ; The Shelby Manufacturing
Company, 155 NLRB 464 ; Peoples Service Drug Stores, Inc., 154 NLRB 1516; Heinrich
Motors, Inc., 153 NLRB 1575; and Mallory Plastics Company, a division of P. R. Mallory
t Co., Inc., 149 NLRB 1649.
+ Elias Brothers Big Boy, Inc., 137 NLRB 1057.
5 Wigwam Mills, Inc., 141 NLRB 1601.
221-731-67-vol. 158-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days prior to this conversation McElvain had made a mistake in his work by
setting his machine improperly and cutting some 127 rolls of material 24 instead of
25 inches wide. He informed Brunson of the mistake . Brunson told McElvain that
Respondent could use the material, they would set it aside, and he would overlook
McElvain's mistake.
Brunson admitted having a conversation with McElvain . Brunson also corrob-
orated the incident several days prior when McElvain had made the mistakes and
Brunson had said that Respondent could use the material and he would overlook it.
Brunson denied stating that he knew how McElvain had voted and threatening him
with not overlooking such mistakes if the Union got in . However, Brunson admitted
discussing discharges and advising McElvain that seven people had been fired at
American Air Filters where there was a union as contrasted with only two at Famco
where there was no union . I credit McElvain , and find that Brunson threatened him
with job reprisals or discharge for future mistakes in the event that the Union won
the election , a violation of Section 8 (a)( I) of the Act. The evidence in the record
establishes neither unlawful interrogation , nor conveying the impression that Respond-
ent would never bargain with the Union by stating that the selection of the Union
would be a futile act, as alleged in the complaint.
On February 22 Brunson had a conversation with another of his employees, Clar-
ence Nugent . The conversation took place at the same location as that with McElvain,
near the work stations in the flat mat department . Brunson asked Nugent how he
thought the election was going to come out . Nugent asked Brunson if he was
speaking as a foreman or man to man. Apparently Brunson and Nugent were friends.
After Brunson replied man to man , Nugent said that he did not know how the
election was going to come out . Brunson asked Nugent how the Union would benefit
him or any of the employees . They had a rather extensive conversation on the pros
and cons of unions , with Nugent expressing his views as to why the Union would be
of benefit to the employees . Brunson said that it was his opinion that there could
not be the same personal relationship between foreman and employee if the Union
came in, because Respondent was dead set against the Union . Nugent replied that
he had worked for another company that had a union for 13 years where there had
always been good company-employee relationships . Without reviewing it in detail,
it is apparent that the discussion was a mere expression of views and opinions by
both parties , without interrogation or threats . The record establishes no unlawful
interrogation or threats of adverse changes in employee-management relationship if
the Union were elected , as alleged in the complaint . It is concluded and found that
Brunson's conversation with Nugent was not in violation of Section 8(a)(1) of
the Act.
Brunson admitted discussing the Union and the forthcoming election individually
with all nine employees in his department , five at their work stations and the other
four, including McElvain and Nugent , away from their work station but within the
department . The General Counsel contends that because Brunson called some of
the employees away from their work stations to a location in the center of the same
department , this fact establishes inherent coercion within the meaning of the General
Shoe doctrine .6 The fact that Brunson discussed the forthcoming election with some
of the employees at a location away from their work stations but nearby in the same
department does not give rise to the same degree of inherent coercion present in the
General Shoe case, where each employee was called individually to the president's
office and interviewed by him.
On or about February 22, Skeeters, the factory manager, had a conversation with
Pauline Jones. Jones had been employed in the smoke filter department as a
hand stapler , but had developed a condition in her wrist which resulted in hand
stapling causing her hand and wrist to swell . As a result she had been transferred
to another department pursuant to her physician 's request . Skeeters told her that
he could see that she was working for the Union and looked like she was trying to
change people for the Union. When Jones said she did not know how he could
know, Skeeters replied that he could tell by looking at her face. Jones told Skeeters
that she was not working for the Union "this time." 7 Skeeters then said that she
knew that if the Union won the election she would have to stick with a job for 6
months after bidding on it, that he was doing her a favor by giving her her present
job, and that if the Union got in it would not hurt just her but would hurt many
9 General Shoe Corporation ( Marman Bag Plant ), 97 NLRB 499
7 Accusing an employee that he is for a union, rather than asking , and thus getting
the employee to confirm or deny it , is of course a sophisticated method of interrogation
concerning such employee 's union activities and sympathies.
FAMCO, INC. 115
people . Clearly this constituted a threat of an adverse change in the bidding pro-
cedure used by the employees to secure promotions or transfers, and ' a threat that
Jones would be removed from the job given to her because of her physical condition.
As found above, Skeeters was not called by Respondent. Such threats of adverse
change in working conditions and job reprisals clearly constitute interference, restraint,
and coercion in violation of the Act, and I so find.
On the afternoon of February 23, 2 days before the runoff election, Everett W.
Currier, Respondent's vice president and general manager, gave a speech to an
assembly of all of Respondent's employees. In general , the speech consisted of
various arguments why the employees should reject the Union. During the course
of this speech, Currier threatened the employees with the loss of existing benefits
if the Union won the election. After referring to the subject of collective bargaining
between Respondent and the Union, Currier stated:
This bargaining, I want you to thoroughly understand, might result in more or
less benefits-but it would start from scratch with a blank piece of paper, not
the Blue Book. The bargaining session would actually start off as if this were
a brand new company.
At this point in his speech Currier used a blank piece of paper as a prop. It was
stipulated that the General Counsel had one or more witnesses who would testify
that Currier used the words, "not the Blue Book," and that while Currier had no
present recollection of referring to the Blue Book, he would not deny having done so.
In all other respects, Currier's speech was stipulated. Respondent had in effect a
booklet entitled "Our Blue Book" published by it in 1960, a copy of which was given
to every employee. This booklet contained, inter alia, Respondent's policy and rules,
and set forth the terms and conditions of employment, including wages, seniority,
job bidding, hours, vacations, paid holidays, leaves of absence, and group insurance.
It also included the establishment, maintenance, method of election , and functions
of the shop committee , which will be considered in more detail hereinafter.
It is now well settled that the threat of discontinuance of existing benefits if a
union is elected constitutes interference, restraint, and coercion in violation of the
Act. Clearly Currier advised the employees that if they elected the Union bargaining
would "start from scratch with a blank piece of paper" and that all of their existing
benefits as set forth in Respondent's Blue Book would be eliminated, just as if
Respondent was a brand new company. The Court of Appeals for the Sixth Circuit
has held that just such a threat constitutes a violation of Section 8(a) (1) of the
Act. The court said:
The Trial Examiner found that the evidence was clearly preponderate in favor
of the conclusion that at least at some of the meetings Gordon plainly conveyed
the message that a consequence of the selection of the union would be the dis-
continuance of existing benefits and a "start from scratch," the coercive effect
of which was plain. The Board adopted this finding, which we also approve.
In our opinion, this constituted a violation of Section 8(a)(1) of the Act.
N.L.R.B. v. Marsh Supermarkets, Inc., supra, 327 F. 2d 109, 111, C.A. 7th, cert.
denied 377 U.S. 944; Hendrix Manufacturing Co. v. N.L.R.B., supra, 321 F. 2d
100, 105, C.A. 5th.8
It is concluded and found that by such threat of the loss of existing benefits in the
event of a union election , Respondent violated Section 8(a) (1) of the Act.
During the course of Currier's speech, he also discussed the possibility of a strike
in the event the Union won the election. In this connection he advised the employees
as follows: "... I would guess that a 3 or 4 weeks' strike might cost us up to i/3 of
our business, at least for a while. In all probability, we would never get it all back.
... A loss of r/3 of our business, for example, would mean a loss of r/3 of our
employees.... If I were a relatively new employee at Famco, the last thing in the
world that I would want would be a strike. Frankly, what really, scares me on this
business of strikes is the rumors that I hear that when we get a union , we will strike
and fix the company. I hope those people that are making such statements realize
they are also talking about themselves."
At 1 a.m. on February 24, less than 12 hours after Currier's speech, George Small-
wood, a machine operator for Respondent, had a conversation with his foreman,
Robert L. Jackson, also employed by Respondent as an engineer. Jackson had a
piece of paper in his hand with Smallwood's clock number on it. Jackson said that
8 Surprenant Manufacturing Co v. N.L.R.B., 341 F. 2d 756 (C.A. 6). See also Wigwam
Mills, Inc, supra.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he wanted to remind Smallwood where he stood in seniority. Jackson stated that if a
third of Respondent's production was cut back and a third of the plant was laid off,
Smallwood would be one of the employees to go. Jackson told Smallwood that was
something to think about This was the day before the runoff election. In the light
of Currier's statement quoted above, the implied threat is self-evident.
Jackson denied having any such conversation with Smallwood. Jackson admitted
discussing seniority with another employee about that time, and advising him that
he was in the upper two-thirds of the employees in the plant. He also admitted dis-
cussing seniority in February with another employee, whom he did not identify.
On cross-examination Smallwood admitted apologizing to Jackson for having given
an affidavit concerning this incident to a representative of the General Counsel.
Apparently Smallwood considered Jackson a friend and apologized to him for having
given an affidavit to the General Counsel informing him of the statements made by
Jackson. Contrary to Respondent's contention, this in no way reflects on Smallwood's
credibility. I credit Smallwood, and accordingly find that Respondent, by this state-
ment, threatened Smallwood with the possibility of his layoff in the event the Union
was elected in violation of Section 8 (a) (1) of the Act.
2. The no-solicitation rules
As hereinabove found, in 1960 Respondent published and continued in effect its
Blue Book, containing its policies, work rules, terms and conditions of employment
and the details with respect to the shop committee . Respondent stipulated that the
Blue Book was its publication and that it was given to all employees upon their being
hired. Among the rules therein, section 19, Pp(d), provides as follows:
There may be no solicitations for any purpose on Company property except when
submitted through the Shop Committee and authorized by the Company. Any
such contributions collected by employees must be done by a member of the
Shop Committee or persons appointed by the Committee.
Admittedly this rule was promulgated in 1960, and accordingly the allegations of
the complaint are limited to Respondent's publishing, maintaining, and enforcing
this rule within the limitation period provided in Section 10(b) of the Act .9 In the
light of the standards established by the Board and approved by the courts, this is
patently an unlawful no-solicitation rule.10 In substance, the Board has held that
oral solicitations on company property during an employee's own time are appro-
priate and that the only valid limitation is a prohibition against such solicitation
during working time. In the same decision, the Board also held that the appropriate
limitations on the distribution of union literature are that it be during nonworking
time in nonworking areas of the plant.ll Respondent contends that its Blue Book
rule applies only to the solicitation of contributions, but the first sentence thereof
plainly prohibits all solicitations at any time for any purpose unless specifically
authorized by Respondent.
The parties stipulated that on December 30, 1964, Respondent posted the following
notice on its bulletin board:
FACTORY NOTICE
RULES ON SOLICITATION AND DISTRIBUTION
(1) There shall be no distribution of literature in any of the company's pro-
duction areas.
(2) There shall be no solicitation and distribution of literature at any time
during an employee's actual working time.
The General Counsel contends that this rule on solicitation and the distribution of
literature likewise is invalid. However, it appears to meet the standards enunciated
by the Board in Stoddard-Quirk.12 It prohibits distribution of literature only in work
areas during working time and solicitation only during working time . These are
precisely the appropriate limitations established by the Board. However, at least
prior to the posting of the above rule on the bulletin board on December 30, 1964,
there can be no question but that Respondent published, maintained , and enforced
the prior in-'alid no -solicitation rule in violation of Section 8(a)(1) of the Act.
9 Higgins Industries, Inc., 150 NLRB 106.
10 N.L R B. v. Ertel Manufacturing Corp., 352 F. 2d 916 (CA. 7) ; N.L R B. v . Walton
Manufacturing Company, 289 F. 2d 177 (C A. 5) ; Chevrolet Motor Division, General Motors
Corporation, 144 NLRB 862; Stoddard-Quirk Manufacturing Co., 138 NLRB 615
11 Stoddard-Quirk Manufacturing Co., supra, footnote 10
12 Ibid.
FAMCO, INC. 117
Respondent contends that the posting of the notice on the bulletin board constituted
a,rescission or revision of the prior rule published in the Blue Book and that at least
thereafter Respondent was not in violation of the Act. This contention lacks merit.
There is no evidence in the record that the posting of the factory notice on Decem-
ber 30, 1964, constituted a revocation of the rule contained in the Blue Book. There
was nothing in the notice to indicate that the Blue Book rule had been rescinded.
In fact, Respondent's position that the Blue Book rule dealt only with contributions
would indicate that its view was to the contrary; namely, that the notice posted on
December 30, 1964, did not revoke the rule in the Blue Book. Furthermore, it was
admitted that new employees continued to receive copies of the Blue Book, and there
is no evidence that its printed form was modified in any way. Thus new- employees
would see the rule therein and be unaware of the notice posted on December 30, 1964,
assuming arguendo its effectiveness as a rescission. Inasmuch as the employees are
required to follow the rules set forth in the Blue Book, as stated therein, some pro-
cedure resulting in actual revision of the printed Blue Book, or notice thereof, would
be necessary to call such changes to the attention of any new employee. In other
words, there was no effective revocation of the rule printed in the Blue Book.13 It
is concluded and found that Respondent, by publishing, maintaining, and enforcing
an unlawful no-solicitation rule since September 3, 1964, interfered with, restrained,
and coerced its employees in violation of the Act.
3. The shop committee
The complaint alleged that Respondent's shop committee was a labor organization
within the meaning of the Act, and that since September 3, 1964, Respondent violated
Section 8(a)(1) of the Act by soliciting, permitting, postponing, and encouraging
meetings of the shop committee on Respondent's premises, paying the wages of the
members of the shop committee for the time spent in said meetings, directing its
management employees and supervisors to attend and participate in all meetings of
the shop committee, paying for and/or providing and distributing printed minutes
of the meetings of the shop committee, permitting its supervisors to participate and
supervise the election of the officers of the shop committee, and unilaterally adopting
proposals submitted by Respondent to the shop committee concerning wages, hours,
and working conditions of its employees. Respondent denied both that the shop
committee was a labor organization within the meaning of the Act and that Respond-
ent in any way assisted or dominated said organization within the meaning of the Act.
As hereinabove found, Respondent published, maintained, and enforced its booklet,
entitled "Our Blue Book," which contained provisions covering the establishment,
maintenance, election of members, and functions of the shop committee. Pursuant
to stipulation, Respondent admitted that it permitted and postponed meetings of the
shop committee on its premises, paid wages of the employee members of the shop
committee for the time spent in said meetings, directed its management employees
and supervisors to attend and participate in all meetings of the shop committee, and
paid for and/or provided and distributed printed minutes of the meetings of the
shop committee. In addition, the parties stipulated that matters discussed at the
shop committee meetings included such items as painting windows to block out direct
sunlight, when wage review would be held by Respondent, which rule of Respondent
applied in job bidding by employees not working, and complaints about items to be
repaired, slick floors, and what other employees were doing at work. Patently the
foregoing include wages and terms and conditions of employment within the meaning
of the Act. In addition, the last section in the Blue Book states: "This booklet has
been compiled with the assistance and suggestions of our Shop Committee. With the
assistance of the Committee, additions and revisions will be made as needed." As
hereinabove found, Respondent's Blue Book sets forth all the terms and conditions
of employment, such as wages, hours, vacations, etc. Thus it is clear, and is found,
that Respondent dealt with the shop committee concerning wages, hours, and terms
and conditions of employment.
Respondent contends that the shop committee is not a labor organization within
the meaning of the Act because it did not "negotiate" with Respondent. Much the
same contention has been considered and rejected by the Supreme Court in its Cabot
Carbon decision, where the Court held:
Section 2(5) includes in its definition of "labor organization" any "employee
representation committee or plan ... which exists for the purpose, in whole or
in part, of dealing with employers concerning grievances, labor disputes, wages,
3 Flambeau Plastics Corporation , 151 NLRB 591.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay, hours of employment, or conditions of work." ( Emphasis added.)
Certainly nothing in that section indicates that the broad term "dealing with"
is to be read as synonomous with the more limited term "bargaining with."
See, e.g., Labor Board v. Jas. H. Matthews & Co., 156 F. 2d 706, 708, and
Indiana Metal Products Corp. v. Labor Board, 202 F. 2d 613, 620-621. The
legislative history of § 2(5) strongly - confirms that Congress did not understand
or intend those terms to be synonomous.... The proposal was that the term
"bargaining collectively " be substituted for the term "dealing." But the proposal
was not adopted . It is therefore quite clear that Congress , by adopting the broad
term "dealing" and rejecting the more limited term "bargaining collectively," did
not intend that the broad term "dealing with" should be limited to and mean
only "bargaining with" as held by the Court of Appeals.14
Accordingly it is concluded and found that Respondent 's shop committee is a labor
organization within the meaning of Section 2(5) of the Act.
Section 2 of Respondent 's Blue Book deals with the shop committee . That section
concedes that Respondent established the shop committee. The section further pro-
vides for the annual election of a shop committee member from each operating
section of the plant and regular biweekly meetings of the shop committee with man-
agement's representatives . It also provides that Respondent 's manager can call extra
meetings as required . The section further delineates which employees are eligible
to vote, provides that no supervisors or foremen can vote , defines what type of
employees may be elected to the committee , provides that a committee member trans-
ferred to another department may no longer be a member of the shop committee,
and sets forth the procedure for the removal of incumbent shop committee members
by written request of 70 percent of the employees in the department . It is clear that
Respondent not only established the shop committee but controls its composition,
method , and manner of selection and removal , and the eligibility of employees to
participate in such selection . In addition , Respondent admitted that it permitted
and postponed meetings of the shop committee on its premises , paid the wages of
shop committee members for the time spent in the meetings , directed its management
employees and supervisors to attend and participate in the meetings , and paid for
and/or provided and distributed printed minutes of the shop committee meetings.
Thus it is clear, and I find , that Respondent not only assisted the shop committee, a
labor organization , but also dominated and interfered with its administration as
proscribed in Section 8(a) (2) of the Act, thereby interfering with , restraining, and
coercing its employees in'the exercise of rights guaranteed in the Act in violation of
Section 8 (a)( I) of the Act.15
Although the allegations of the complaint are limited to Section 8(a)(1), the
General Counsel proposes, and Respondent opposes, the customary order where
domination of a labor organization in violation of Section 8(a) (2) is found ; i.e., the
disestablishment of the shop committee . In this connection , it is well established
that a failure to state the "right" section of the Act or even stating the wrong section
of the Act is not grounds for dismissal where the issue has been fully litigated 16 It
is equally well settled that the selection of the appropriate remedy to expunge the
effects of the unfair labor practices found is the particular province and one of the
chief responsibilities of the Board.17 Accordingly , it is concluded and found, since
the issue was alleged and fully litigated and the record establishes that Respondent
both dominated and assisted the shop committee , the disestablishment thereof is
necessary in order to expunge the effects of Respondent 's unfair labor practices and
remedy the interference with, restraint , and coercion of its employees in violation
of the Act.
14 N.L R.B. v. Cabot Carbon Co., et at., 360 U.S. 203. See also Ferguson-Lander Boa
Co., 151 NLRB 1615, and Hammond Organ Company, 149 NLRB 997.
15 N L.R B. v. The Chardon Telephone Company, 323 F. 2d 563 (C.A. 6) ; N.L R B. v.
Western Reserve Telephone Co., 323 F. 2d 564 (C.A. 6) ; Aluminum Extrusions, Inc.,
148 NLRB 1662; and Certain-Teed Products Corporation, 147 NLRB 1517.
19 Associated Home Builders of the Greater East Bay, Inc . v. N.L.R.B., 352 F. 2d 745 ;
Frito Company , Western Division v. N.L R.B., 330 F. 2d 458 (C.A. 9) ; N L.R.B. v. Pecheur
Lozenge Co ., Inc., 209 F 2d 393 (CA 2) ; cert denied 347 U.S 953; American News-
paper Publishers Association v. N.L.R.B., 193 F. 2d 782 (C.A. 7) ; Independent Metal
Workers Union, Local No. 1 ( Hughes Tool Company ), 147 NLRB 1573.
17 Franks Bros . Company v . N.L.R.B., 321 U.S. 702; N L R B. v. P. Lorillard Company,
314 U.S. 512 ; N.L.R.B. v. Delight Bakery, Inc , 353 F. 2d 344 (C.A. 6) ; N.L R.B. v.
American Compress Steel Corporation , 343 F. 2d 307 (D.C.D.C.).
FAMCO, INC.
IV. THE REMEDY
119
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action of
the type which is conventionally ordered in such cases as provided in the Recom-
mended Order below, which I find necessary to remedy and remove the effects of
the unfair labor practices and to effectuate the policies of the Act. Because it has
been found that Respondent dominated as well as assisted the shop committee, I shall
also recommend that Respondent completely disestablish said shop committee.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce, and the Union and the shop committee
are labor organizations, within the meaning of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregong findings of fact , conclusions of law , and the entire record and
pursuant to Section 10(c) of the National Labor Relations Act, as amended , I recom-
mend that the Respondent , Famco , Inc., its officers, agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating coercively its employees concerning their union activities and
sympathies.
. (b) Threatening employees with discharge , layoff, job reprisal , transfer, more
onerous working conditions , or the cessation of current economic benefits because
of their union activities.
(c) Prohibiting the carrying , wearing, or displaying of union insignia in the
plant , or confiscating or destroying such union insignia in the presence of employees.
(d) Publishing , maintaining in effect , enforcing, or applying any rule or regulation
prohibiting its employees during nonworking time from soliciting their fellow employ-
ees to join or support International Union , United Automobile , Aerospace and Agri-
cultural Implement Workers of America , UAW-AFL-CIO, or any other labor
organization.
(e) Dominating or interfering with the administration of the shop committee, or
with the formation or administration of any other labor organization of its employees,
or contributing financial or other support to the shop committee or any other labor
organization of its employees.
(f) Recognizing , or in any manner dealing with , the shop committee, or any
reorganization or successor thereof, as a representative of any of its employees for
the purpose of dealing with Famco, Inc., concerning grievances , labor disputes , wages,
rates of pay , hours of work , or other terms and conditions of employment.
(g) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the purposes of
the Act:
(a) Withdraw all recognition from the shop committee as a representative of any
of its employees for the purpose of dealing with Famco, Inc., concerning grievances,
labor disputes , wages, rates of pay, hours of work, or other terms and conditions of
employment , and completely disestablish the shop committee as such representative.
(b) Forthwith rescind its existing rule against solicitation as published in its Blue
Book to the extent that it prohibits employees from soliciting membership in a labor
organization during nonworking time on its premises.
(c) Post at its plant in Louisville , Kentucky , copies of the attached notice marked
"Appendix." 18 Copies of said notice , to be furnished by the Regional Director for
18 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 9, shall, after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 con-
secutive 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 Region 9, in writing, within 20 days from the
date of receipt of this Decision, what steps Respondent has taken to comply herewith.19
It is further ordered that the additional allegations in the complaint of interference,
restraint, and coercion not hereinabove found be and hereby are dismissed.
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National. Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees concerning their union
activities and sympathies.
WE WILL NOT threaten our employees with discharge, layoff, job reprisal, trans-
fer, more onerous working conditions, or the cessation of current economic bene-
fits for engaging in union activities.
WE WILL NOT prohibit the carrying, wearing, or displaying of union insignia in
our plant, or confiscate or destroy such union insignia.
WE WILL NOT publish, maintain in effect, enforce, or apply any rule or regula-
tion prohibiting our employees during nonworking time from soliciting their
fellow employees to join or support International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO,
or any other labor organization.
WE WILL NOT dominate or interfere with the formation or administration of,
or contribute financial or other support to, any labor organization of our
employees.
WE WILL NOT recognize, or in any manner deal with, the shop committee, or
any reorganization or successor thereof, as a representative of any of our employ-
ees for the purpose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of work, or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain or coerce
our employees in the exercise of any of the rights guaranteed them by the Act.
WE hereby completely disestablish the shop committee as a representative of
any of our employees for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of work, or other terms and conditions
of employment, and withdraw all recognition from the shop committee as such
representative.
WE hereby rescind our existing rule against solicitation as published in Our
Blue Book to the extent that it prohibits our employees from soliciting member-
ship in a labor organization during nonworking time on our premises.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named Union, or any other labor organization,
except to the extent that such right may be affected by an agreement conforming to
the provisions of Section 8(a) (3) of the Act requiring membership in a labor organi-
zation as a condition of employment.
FAMCO, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 684-3627.