H. & H Plastics Mfg, Co.

National Labor Relations Board - Board Decisions

Jun 6, 1966

158 N.L.R.B. 1395 (N.L.R.B. 1966)

H. & H. PLASTICS MFG., Co. 1395
unit described below , iL respect to rates of pay , wages, hours of employment,
or other conditions of employment , and, if an understanding is reached,
embody it in a signed agreement . The bargaining unit is:
All our employees at our location in Charleston , West Virginia , including
office clerical employees , but excluding truckdrivers , salesmen, ware-
housemen, professional employees , guards, and supervisors as defined in
the Act.
WE WILL NOT threaten our employees with reprisals for concerted activities,
or coercively interrogate or poll our employees about their union sentiments.
WE WILL NOT discourage membership in Food Store Employees Union,
Local # 347, Amalgamated Meat Cutters and Butcher Workmen of North
America , AFL-CIO, or any other labor organization by discriminating against
employees with regard to their hire or tenure of employment or any other term
condition of employment.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their rights to self -organization , to form , join or
assist Food Store Employees Union , Local #347, Amalgamated Meat Cutters
and Butcher Workmen of North America , AFL-CIO, or any other labor orga-
nization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities, except to the extent that such right may be affected by the provisos
in Section 8(a)(3) of the Act.
WE WILL offer Joyce Null and Chloe Ferrell immediate and full reinstate-
ment to their former or substantially equivalent positions , and make them
whole for any loss of pay suffered by reason of the discrimination against them.
All our employees are free to become , remain, or refrain from becoming or re-
maining, members of Food Store Employees Union , Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization.
PREISER SCIENTIFIC, 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
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
684-3627.
H. & H. Plastics Mfg., Co . and Local 406, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America I and Employees' Committee-H. & H. Plastics Mfg.
Co., Party in Interest . Cases Nos. 7-CA-5241 and 7-RC-6842.
June 6, 1966
DECISION AND ORDER
On March 4, 1966, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
i Eereinatter called the Union.
158 NLRB No. 138.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision. The Trial Examiner also found, merit in cer-
tain objections to the election filed in Case No. 7-RC-6842 and recom-
mended that the election be set aside. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b)-- of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 consolidated case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner '2 with the following
additions and modifications.
We agree with the Trial Examiner that the Respondent dominated
the Employee's,Committee=H. & H. Plastics Mfg. Co., in violation
of Section 8(a) (2) of the Act. We further agree that, in most
respects, the Board's recent decision in Modern Plastics Corporation,
155 NLRB 1126, is controlling herein, in the light of the factors dis-
cussed by the Trial Examiner.3 The Respondent's role in the func-
tioning of the Committee cannot accurately be characterized merely
as permissible cooperation or courtesy, as Respondent contends.
Indeed, the cases in which an isolated act of an employer toward its
employee committee is held to fall within the area of permissible
2 The findings and conclusions of the Trial Examiner are based in part upon his
credibility determinations , to which the Respondent has excepted . After a careful review'
of the record herein, we conclude that the Trial Examiner 's credibility resolutions are not
contrary to the clear preponderance of all the relevant evidence and, accordingly, find
no basis for disturbing them . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd.
168 F. 2d 362 (C.A. 3).
8 To the extent relevant to the ultimate conclusion of unlawful domination, we find it
necessary to correct certain factual findings of the Trial Examiner . The Trial Examiner
found that the Committee could not act without using company premises or in the absence
of members of company management. While these are logical inferences to be drawn fiom
the record , it is sufficient to state that, as a matter of fact, the Committee actually met
only on company premises and only when members of management were piesent at its
meetings . We find it unnecessary to decide whether it could have met elsewhere and
without management representatives . Similarly, the Trial Examiner found that, as a
result of the Committee' s activities , the Respondent adopted a written employment policy
for its employees in 1964. In fact, the employment policy was adopted shortly prior to
the formation of the Committee in the summer of 1964. In this iegard, we agree with the
Trial Examiner that events pertaining to the formation of the Committee prior to the
Section 10 ( b) period may be used as background in assessing the legality of conduct
within that period . See Local Lodge No. 1424 , International Association of Machinists,
AFL-CIO v. N.L.R.B. ( Bryan Manufacturing Co.), 362 U.S. 411. We further find that
the Trial Examiner correctly relied upon the Respondent' s assistance and participation
in the holding of committee elections in finding unlawful domination , regardless of whether
management "ordered" the elections as found by the Trial Examiner or conducted them
at the request of employees. Modern Plastics, supra
H. & H. PLASTICS MFG., CO. 1397
cooperation are easily distinguishable from the numerous and signifi-
cant respects in which the Respondent controlled the operation of
the Committee herein. In fact, as the Trial Examiner aptly noted,
Respondent's employment policy identifies the Committee as the
"Employee-Management Committee," a fair description of the joint
nature of the Committee's administration. As stated by the, United
States Court of Appeals for the Sixth Circuit, "The Employer is
under a duty to refrain from any action which will place him on
both sides of the bargaining table." 4 In every realistic sense, how-
ever, and to the extent that any meaningful bargaining ever occurred
between the Committee and the Respondent,' the Respondent partici-
pated actively-and unlawfully-on both sides of the table.
We also agree `with the Trial Examiner that, at the time the Union
made its demand for recognition on April 19, 1965, it represented a
majority of the 34 employees in the agreed-upon unit, and that the
Respondent declined in bad faith to recognize and bargain with the
Union. With respect to the Union's majority status, the Trial Exam-
iner found that it had cards for 23 of the 34 employees executed by
April 19.8 Respondent attacks the validity of certain of the 23 cards
possessed by the Union. The validity of two of the cards, those of
Hewitson and Kolenda, turn on credibility resolutions of the Trial
Examiner, which, as noted previously, the Board will not upset with-
out clear proof that those resolutions are contrary to a preponder-
ance of all the relevant evidence, a showing absent here.
Respondent also attacks the validity of six cards obtained by
employee Harold Jones, according to Jones' testimony,' on the
grounds that Jones told the employees that when the Union had
enough people sign the cards, there would be an election. The Trial
Examiner correctly held, in accordance with existing precedent, that
the cards were not rendered invalid by Jones' statements to the em-
ployees in question. Moreover, the membership application cards
were unambiguous, and clearly authorized the Union to represent the
card signer for purposes of collective bargaining. There exists still
another reason for holding that the Union represented a majority
of the unit employees at the time of its bargaining demand.
Employees Henry Kersten testified that he, rather than Jones,
obtained three of the six cards in question .8 Thus, since the Trial
' N.L.R.B. v. Mt. Clemens Metal Products Company, 287 F. 2d 790.
In this regard, Vice President James Hummel testified that employee members of the
Committee had no power other than to make suggestions and that all decisions were made
by managemem alone.
6 The word "counted" in the second sentence of section IV, A, 2 of the Trial Examiner's
Decision should read "discounted."
711;hose of employees Sremba, Kruizinga, Sharp, Harlan, Rischow, and Nabors.
s hose of Sharp, Harlan, and Risehow.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner specifically credited Kersten with respect to the cards
obtained by him and discredited all of Respondent's evidence mi con-
sistent therewith , 3 of the 6 cards challenged by the Respondent
would be valid , giving the Union in any event a majority of 20 ,
cards of the 34 unit employees.
Finally, although we find in agreement with the Trial Examiner
that the Respondent unlawfully refused to recognize the, Union in
violation of 8(a ) ( 5) of the Act , we do so for reasons different from
those stated 'by him. In John P. Serpa , Inc., 155 NLRB 99, the
Board held that where the General -Counsel seeks to establish a vio-
lation of Section 8(a) (5) on the basis of a card showing , he has the
burden of proving both that a' majority of employees in the appro-
priate unit signed cards designating the Union as bargaining repre-
sentative and that the Employer in, bad faith declined ' to recognize
and bargain with the Union .9 Unlike Serpa , however , the record in
the present proceeding amply supports a finding of the Respondent's
bad faith . First, as found by the Trial Examiner , when Raymond
Hummel , 'Sr., initially received the Union's demand for recognition,
he commented , "Well, I guess we will just close down and move out
of town ." 10 Similarly , Hummel 's almost identical remark to an
employee about a week later, found to violate Section 8(a) (1), is
valid evidence of Respondent 's lack of good faith in formulating its
response to the Union and in refusing to recognize it. In addition,
Respondent's continued dealing with the unlawfully dominated Com-
mittee throughout the spring and summer of 1965 , and its offer of
" benefits to employees in the form of pension and profit sharing plans
-and recreational benefits, approximately a month following the
Union's demand, constitute further evidence that Respondent had re-
jected the collective-bargaining principle except when dealing with
its own employee organ, herein found to be unlawfully dominated."
'Ve agree with the Trial Examiner that the Respondent 's evidence
that two employees questioned Vice President Raymond Hummel,
- Jr., 'about the Union and told him they regretted signing cards, in
9 See, also, Striydel Incorporated, 156 NLRB 1185
?°,Iiummel 's dental of this statement was not credited by the Trial Examiner. who
.properly considered the remark on the issue of the Employer's good faith even though it
was not alleged,as violative of Section 8(a) (1).
u It is pertinent to note in this respect that the Trial Examiner found that the continued
dealing with the Committee and the offer of benefits in May 1965 constituted conduct
which interfered with the election held on June 4, 1965, a finding to which the Respondent
did, not except. That conduct thus supports the conclusion that one of Respondent's
objects in Insisting upon an election, rather than permitting the Union to verify its
.majority-,status through an Independent check of Its authorization cards, was to gain
time within which to undermine the Union and dissipate Its majority . See Serpa and
Strydel, supra ; Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 (C.A.D.C.).
In analyzing the legality and effects of the Respondent's suggestion of profit-sharing and
pension plans , we find it unnecessary, and do not, pass upon the question of whether these
subjects had been previously discussed by the Respondent with Its employees.
H. & H. PLASTICS MFG., CO. 1399
the days following the Union's request for recognition, is not suffi-
cient to show a good-faith doubt of the Union's majority status, par-
ticularly when viewed in the context of its violations of Section
8 (a) (1) and (2) of the Act and its conduct found to interfere with
the election upon which it had earlier insisted.
On the basis of the foregoing, we find that the General Counsel met
his burden of proving that the Respondent declined to recognize and
bargain with the Union in bad faith, thus violating Section 8(a) (5)
of the Act.
[The Board adopted the Trial Examiner 's Recommended Order
and dismissed the petition for certification of representative , filed in
Ca F_-, No. 7-RC-6842.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a consolidated case consisting of an unfair labor practice case (Case No.
7-CA-5241) and a case involving objections to conduct affecting the results of an
election (Case No. 7-RC-6842).
In Case No. 7-CA-5241, a charge was filed on June 16, 1965, against H. & H.
Plastics Mfg., Co., herein called Respondent or the Company, by Local 406, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of
America. Upon that charge, the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 7 (Detroit, Michigan ), issued
a complaint on August 3, 1965, in substance alleging the commission of unfair
labor practices by Respondent in violation of Section 8(a)(1), (2 ), and (5), and
affecting commerce as defined in Section 2(6) and (7), of the National Labor
Relations Act, herein called the Act. Respondent has answered admitting some
facts but denying that it engaged in any unfair labor practices.
In Case No. 7-RC-6842, Local 406, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, herein called the Union or
Petitioner, on April 23, 1965, filed with the Board a petition for certification of
representatives covering the Company's employees in a unit composed of all pro-
duction employees, maintenance employees, and truckdrivers at Grand Rapids,
Michigan. On June 4, 1965, pursuant to a stipulation for certification upon con-
sent election executed by the parties on May 17, 1965, a consent election by secret
ballot was conducted under the supervision of the Regional Director of Region 7.
The Union lost the election and, on June 10, 1965, it filed objections to conduct
affecting the results of the election. The Acting Region: I Director issued a report
on objections and recommendation, dated August 30, 1965, in material part recom-
mending a hearing on Petitioner's objections 1 and 2 and further recommending
that said hearing be consolidated with the hearing on the complaint in Case No.
7-CA-5241. On September 16, 1965, the Board ordered a hearing on objections
1 and 2.
By an order dated September 21, 1965, the Regional Director consolidated Cases
Nos. 7-CA-5241 and 7-RC-6842 for the purposes of hearing, ruling, and decision
by a Trial Examiner.
Pursuant to due notice, a hearing was held before Trial Examiner James V.
Constantine on the consolidated case at Grand Rapids, Michigan, on November 2
and 3, 1965. All parties were represented at and participated in the hearing,
and were granted the right to adduce evidence, examine and cross-examine wit-
nesses, file bri.,.s, and present oral argument.
The General Counsel has submitted a motion to correct transcript. In the
absence of objection, said motion is hereby granted.
Lpon the entire record in the consolidated case, and from my observation of
the witnesses , I make the following:
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
Respondent, an Illinois corporation, is engaged at Grand Rapids, Michigan, in
manufacturing, selling, and distributing plastics and plastic products During the
year ending September 30, 1964, Respondent purchased goods and materials valued
in excess of $50,000 directly from points located outside the State of Michigan
During the same period Respondent shipped products valued in excess of
$50,000 directly points outside the State of Michigan I find that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the purposes of the Act to assert jurisdiction over the
Company
II THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
Respondent disputes that Employees' Committee-H & H Plastics Mfg, Co,
herein called the Committee, is a labor organization within the meaning of said
Section 2(5) For the reasons set out below, I find that such Committee is a labor
organization comprehended by said Section 2(5)
III THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO CONDUCT AFFECTING
THE RESULT OF THE ELECTION
In the unfair labor practice case (Case No 7-CA-5241) the issues litigated are
whether Respondent (1) threatened employees that it would discontinue the bib
department if they persisted in union activities (2) dominated, assisted, rendered
unlawful aid to, contributed to the support of, and interfered with the administra-
tion of, the Committee, and (3) refuses to recognize and bargain with the Union
as the exclusive bargaining representative of its employees in an appropriate unit
In the objections case (Case No 7-RC-6842), the issue is whether the election
should be set aside because Respondent allegedly (a) advanced proposals to the
company dominated Committee of benefits to be granted to the employees, and
(2) offered the employees a profit sharing plan not discussed prior to the request
for recognition by the Union Although evidence has been received on all issues,
only those events occurring between the filing of the petition (on April 23, 1965),
and the holding of the election (on June 4, 1965), have been considered in the
objections case, except as otherwise expressly noted
A The Unions majority
I General Counsel's evidence
About April 13, 1965,1 employee Henry Kersten induced Umon Business Agent
Robert Anderson to become interested in organizing the Company's employees
Among other things Anderson "outlined the procedures" to Kersten, explained that
51 percent of the employees had to sign up before a demand for recognition could
be made, and suggested an employee committee to aid him in organizing The
next afternoon Kersten, accompanied by employees Harold Jones and Adrian
Potter, again called on Anderson When Anderson "explained procedures" nec-
essary to demanding recognition, his audience replied they could sign up more than
51 percent Thereupon Anderson issued them union membership application cards
to be used in obtaining new members Kersten received about 20 or 25 About
April 16, Kersten asked Anderson for more membership application cards for him-
self, Jones, and Potter, claiming they had used up those already received Anderson
gave him 8 or 10 more
Anderson scheduled a meeting for all company employees at the union hall on
Saturday, April 17 About seven persons attended Six employees signed 2 mem-
bership application cards at this meeting The seventh was a nonemployee visitor
These six, when added to other cards that day turned over 3 to Anderson, plus those
i All dates hereafter mentioned refer to 1965 unless otherwise specified
2 Judy Hamm , Dorothy Kangas Adrian Potter Robert D Young G Henry Kersten Jr,
and Harold Jones Kersten 's card was erroneously dated April 16
O The cards turned over were those of Frank Schwander , Johannes Kruizinga, and
Harold Nabors
H. & H. PLASTICS MFG., 'CO. 1401,
he already had in- his possession ,4' provided, "enough cards" for him to demand
recognition on the following - Monday, morning, April 19 . At this meeting Ander-
son asked for the names of all company employees to ascertain the total work
force and , whether a- majority thereof- had, been obtained . Then , he announced
that he had "better.- than- a; good majority signed up" and informed those present
that he would type up a letterr, demanding, recognition and present it to, the Company.
on April 19, the following Monday morning. Anderson testified that at the meet-
ing of April 17 , 1965; at the union hall , he, told the employees , that since more
than a majority- had signed cards; there were available three avenues to obtain
recognition after more than 50 percent signed cards: one, the employer could
recognize the Union voluntarily; two, the employer could agree to a cross-check of
cards by a, disinterested party, and, if the Union, had- a majority the Union auto-
matically got recognition; and, three, by an election, which Respondent probably
would prefer.
In speaking to, Kersten on April 1-3, Anderson mentioned that the employer could
give recognition voluntarily , or agree to a cross-check of cards, or have an elec-
tion . He made a substantially similar exposition to Kersten, Jones, and Potter the
next day, and added that he would like 100 percent of the employees to. sign
cards. At the April 17 meeting Anderson informed those present that "it might
go to an election ," among other things. But he also explained the various "methods
of recognition."
When employee- Henry Kersten, Jr., handed a card to Linda Harlan, he did
not explain to her the purpose of the card because she already knew this. She
readily signed the card. Joyce Rischow signed' a card shortly after Kersten gave
her one. Patricia Sharp signed a card after Kersten told her it "was for a union
representative , or to represent us as the bargaining agent ." Kersten also gave cards
to. Bea Tanis and Johanna. Bolt on April 17. Both signed up.,
With Harry Nuberg, a fellow business agent, Anderson on April 19 called on
Raymond Hummel, Sr., Respondent's president, and served Hummel with a written
demand (signed, by President, Lee. Haney of, the Union) for recognition in a unit
described as "all production employees, maintenance employees , and truckdrivers
(excluding clerical, sales, supervision ,, and watchman as defined in the Act)." In
this demand it was stated' also that the Union, enjoyed a majority in that unit and
that "one of our representatives will call on you at your office on Wednesday,'
April 21, 1965 at 11, a.m.for the purpose -of negotiating a collective-bargaining
agreement. , If such date is inconvenient for you please 'notify us so, that another,
more convenient date can be agreed upon. We. are willing to permit a neutral'
person to check our authorization , cards at the time of such meeting for, the purpose
of verifying our majority status." ' (General' Counsel's Exhibit 2.) Mentioning that
he was retiring and could not "fool with this," Hummel directed a nearby secretary
to "get Jim." Continuing, Hummel, said, "Well, I guess we will just close her,
down and move out of town."
At this point Ray Hummel, Jr., arrived. After reading the demand' for recogni-,
tion, Ray, Junior, informed the union agents that he would try to. meet with them
at 11 a.m. on Wednesday, April 21. Following the demand of April 19 the Union
received cards signed by Charlene M. Durkee, Victoria Schumaker, and William
Matteson. They were turned in by Henry Kersten. Since these three cards post
date: the Union's 'demand' for recognition on April 19, they have been disregarded
in ascertaining whether the Union enjoyed a majority on that day. In my opinion
a contrary result is not dictated by Henry Spen & Company, 150 NLRB 138, and
Scobell Chemical Company v. N.L.R.B., 267 F. 2d 922 (C.A. 2). Those cases are
distinguishable because they involve more than a naked demand and thus present
a continuing demand for recognition.
Nuberg's testimony differs from Anderson's as to whether Hummel, Senior, read
the letter demanding recognition. Nuberg testified that Hummel did open the
letter. But this variance relates to a minor matter, for it is admitted that the
letter was received by Respondent. However, Nuberg's testimony otherwise sub-
stantially confirms Anderson's as to the events which transpired and pronounce-
ments uttered, at the time the demand letter was delivered to Respondent. Hence
it need not be reiterated ' here.
* There were 14 additional cards as of this date See General Counsel 's Exhibit 12(a)-
12(n). Matteson (General Counsel 's Exhibit 11(c)) did not sign until April 20. Durkee
and Schumaker signed on April 26 (General Counsel 's Exhibits 11(a) and 11 ( b), accord-
ing to a stipulation of, the parties.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B The threat to discontinue the bib department
I General Counsel's evidence
As set forth above, Hummel, Senior , on April 19 told Business Agent Anderson
and Nuberg, "I guess we will just close her down and move out of town" This
is not alleged in the complaint as a violation of the Act
About a week and a half after April 17, Raymond Hummel, Sr, Respondent's
president, whom I find to be a supervisor and agent under the Act, spoke to bib,
department employee Dorothy Kangas During this conversation Hummel said "I
am going to move them right out of town "
C Dealings with the employees
A general meeting of the Company s employees was held in the plant's coffee
room on May 28 at noon Hummel, Senior, Hummel, Junior, and Milton Spaan,
Respondent's controller, and employees attended 'Different things to make the
work easier" and to give employees some "extra" money were discussed by Spaan
In particular profit-sharing and pension plans were mentioned Then Hummel,
Junior, elaborated on profit sharing and pension plans These had been "brought
up to the Company" by the Committee These matters had not previously been
discussed by H & H management with employees Although no definite promises
were made to the employees, management said "there was some extra money to be
distributed '
D The Committee
1 General Counsel's evidence
The Employees' Committee-H & H Plastics Mfg, Co, is composed of three
representatives of employees These representatives meet with management to
discuss problems of the employees It was organized about June or July 1964,
when representatives were elected in the lunchroom either at noon or 3 30 pm,
the quitting hour Ron Sremba and Charlene Durkee were the first elected repre-
sentatives Ballots were not used The Committee has never had a constitution
or bylaws, and has never collected dues It was "understood" representatives were
to remain in office for a year
Representatives of the Committee brought to the Committee grievances pre-
sented to them by employees In the beginning Jim Hummel, and Ray Hummel,
both of whom were company vice presidents, gave the Committee ideas "as to
how things were to be conducted" because Sremba and Durkee "had very little
idea as to how it was to be done " Meetings of the Committee were called when-
ever a committee member (or representative) or Jim Hummel, or Controller
Spaan's secretary, suggested the same to Durkee, who then requested a meeting
Spaan "responded " Meetings of the Committee were held in the office of Jim
Hummel or Ray Hummel, Jr Representatives of management always attended
Wages and working conditions were discussed After the first meeting minutes
were taken and kept by Controller Spaan
At a general meeting of employees held on April 3, Management Officials Jim
Hummel and Controller Spaan discussed such topics as cost of living, insurance,
and committee members Vice President Jim Hummel told the assembled employ-
ees, among other things, that he "had to have a member [of the Committee] out
of the extrusion department "
During the first few months it met with management once or twice a month
Jim Hummel and Spaan represented management, while employees Durkee and
Sremba acted as employee representatives Spaan kept minutes They were typed
up under his instruction and later posted on the bulletin board In addition copies
of the minutes were given to Durkee and Sremba, and some were placed in the
coffee room for employees to take In late June or early July 1965, employee
representatives were again elected by secret ballot One member was allotted to
and elected by the conversion department and the extrusion department, one also
was elected by a group composed of the remaining departments Ballots for those
elections were prepared by an office clerk under the supervision of Controller
Spaan Their form was determined by Spaan They were then distributed by a
clerk under Spaan's supervision Distribution was made by having the ballot
accompany each paycheck 5 Results of the election are posted on the bulletin
5In one instance the ballots may have been distributed alone by the extrusion depart-
ment manager
H. & H. PLASTICS MFG., CO. 1403
board by a clerk under Spaan's supervision, directed to do so by Spaan. Ballots
are counted by Spaan, his clerk, and a member of the Committee or a candidate.
After the results of an election are ascertained Spaan kept the ballots in his files.
Employee Committee meetings were conducted usually during working hours.
Some were held entirely after quitting time at 3:30 p.m., and some started before
3:30 p.m. but lasted until after that time. No wages were received for that part
of any meeting conducted during nonworking hours, but employee representatives
were paid for the time spent on committee business during working hours.
Shortly after the first few committee meetings Respondent adopted an employ-
ment policy which was embodied in a written document (General Counsel's
Exhibit 5). Durkee distributed copies to employees in her department.
At the meeting of May 19, 1965, management presented to the Committee for
discussion as "types of wage increases" profit sharing and pensions. At least on
one occasion, May 25, 1965, the Committee met with management during working
hours and received wages for the time spent thereat.
An election for representatives of the Committee was held about July 1, 1965.
It was conducted by secret ballots accompanying paychecks which were distributed
by "special representatives." Each voter deposited his completed ballot in a sug-
gestion box by the timeclock, from which it was later removed and counted. The
counting occurred,in the presence of Spaan, Hummel, Junior, and a candidate for
election as employee representative. Elections were held at the suggestion of
management made to the Committee. Management also decided that the employ-
ees should vote by departments during"the course of meetings between manage-
ment and the Committee. Results of the election.were posted on the bulletin
board.
On one occasion a tie vote resulted for a committee member from the conver-
sion department. Controller Spaan then directed that a runoff election be held
and it was. At a meeting between management and the Committee in late Sep-
tember or early October 1965, Jim Hummel, Jr., ordered a "re-election" in the
extrusion department because the incumbent had quit as an employee of the Com-
pany. The minutes of the April 3, 1965, meeting disclose that this was discussed
also. (General Counsel's Exhibit 7.)
Management called a meeting with the Committee for about October 21, 1965.
It was held as scheduled. The Company's new employment policy was discussed.
It was later distributed to, employees (see General Counsel's Exhibit 4) by the
members of the Committee. -
In the Company's employment policy distributed in October 1965 (General
Counsel's Exhibit 4) the Committee is recognized as the representative of the
employees on grievances. It is there (Article X) described as the "Employee-
Management Committee."
Profit sharing was discussed with the Committee in at least one meeting in 1964.
E. Respondent's evidence on all issues
On April 19, President Raymond Hummel, Sr., was handed a letter by two
representatives of the Teamsters, one of whom was Anderson. Hummel "just took
it" and called in Ray and Jim Hummel. The Senior Hummel denied that he said,
"Guess, we will just close it out and move out."
On April 19, 1965, Respondent received a letter from, Local 406 demanding
recognition. Ray Hummel, Jr., was handed this letter by his father, Ray Hummel,
Sr. At the same time Anderson of Local 408 requested a meeting with manage-
ment on the following Wednesday. Hummel, Junior, replied, "All right. Fine."
Later Hummel, Junior, requested Respondent's counsel to answer the letter of
Local 406, after two employees, Nabors and Kruizinga, told Hummel that they
regretted they had signed union cards, and after "there was a lot of talk going on
pro and con" about the Union.6
By letter dated April 21, 1965, Respondent's counsel, Jack R. Clary, wrote to
Lee Haney, president of Local 406 that, among other things, "There exists a real
doubt in their [management's] mind as to your majority status," and refusing
therefore to meet with the Union for the purpose of negotiating a collective-
bargaining agreement. That letter further suggested that an RC petition be filed
with the Board to determine this matter. See General Counsel's Exhibit 14.
9 Nabors and Kruizinga also on April 20 and 21 asked Hummel if they "had to go for
the Union" because they had signed "this card."
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The testimony of Harold Jones
In January or February of 1964', Harold Jones, an employee who testified for
Respondent, discussed with Vice President Ray Hummel, Jr., the formation of an
employee committee . In June 1964 , his "floor man" told Jones to attend ' a meet-
ing of employees called by the Company for 2 p.m. in the Company's lunchroom.
Various subjects were discussed by Vice President James Hummel and Controller
Spaan, many of them touching upon wages and working conditions. An unidenti-
fied employee suggested- forming an employees' committee. After some talk of it,
Ray Hummel said it would be a good' idea' to form a committee. Thereupon all
members of management present left the room and the employees, after debating
the question of a committee , decided to meet again in the same room on the next
day, a Saturday.
On that Saturday, which was not a working day, nominations were made for
employee representatives on the Committee. On the following Thursday an elec-
tion was held by ballot. Votes were deposited in a box by the timeclock. Jones
made up the ballot box and conducted the election. The next working day the
ballots were counted by three employees and Controller Spaan. A tie vote was
counted for representation . from the conversion department . This necessitated
another election therefor ; it was conducted the following week in the same manner
as the previous election. Management was notified of the results of the election
and posted the same on the bulletin board.
. About April 14, 1965, Jones went to the union hall with another employee
called "Hank." Union Representative Anderson asked both employees to distrib-
ute union cards to employees in the plant . Anderson said he wanted "enough
people to bring ' an election at the Company , so he passed us enough cards, and he
said he's like to have at least 65 percent ' of the' cards signed ." Thereupon Jones
accepted a number of cards. He did pass out cards 7 at the shop, asking each
employee to' sign a card ' and "that when we had enough people to sign the cards
we would have' an election." After receiving the cards, Jones gave them to "Hank"
who turned them- in at the union hall.
At a meeting of employees at the union , hall Jones also signed a card , but did
not read' it then . He did later . At this meeting Anderson stated ' that he "would
have to have 65 percent to have an' election ; and he would' also like to have at
least 80 percent of the people signed up." Although he received more cards from
Anderson , Jones _ did not pass these out to . employees.
In June 1965, an election of employees representatives to the Committee was
again ' conducted'' - Ballots with the' names of candidates accompanied the paycheck
of each , employee. Completed ' ballots were- deposited in the suggestion box and
later counted. Jones was elected in his department . A runoff was necessary, and
was held , in the conversion department because of a tie vote.
2. Judy Hamm's testimony
In April ,1965', employee Hamm went to a meeting of employees at the union
hall. About six other employees' were present. While there she signed a union
card. Anderson, who addressed them, said that the employees of H. & H. Plastics
"would like to have a union come in" and asked that cards be "passed out so he
could have a voting for a union, the Teamsters Union." Anderson also said the
Union "would be- in" if 51 percent' of the employees signed cards and after a
"voting." Hamm' was in favor of the Union, and wanted the Union to represent
her when she signed the card.
Employee Edward Hewitson signed a union card on April' 17 after Henry Ker-
sten , Jr., told him' "this is to , see if we have enough people to get a vote to see if
you want a union in 8 . we needed about eighty percent' of the' people td sign
cards." Nevertheless, Hewitson read the card before he filled in all blank spaces
himself and understood its contents because he "went through this before" at some
other plant.
Employee Henry Kolenda signed a card given to him on April 17 by Henry
Kersten, Jr., after Henry asked him "to sign for, representation, by, the Union."
7 To Sremba, Kruizinga, Young, Sharp, Nabors, Schumaker, Hamm, Harlan, and' Riscliow.
8 Kersten denies he said the purpose of the card "was to see if you have enough people
to have an election." However, Kersten testified that, when Hewitson "asked what the
majority were, if most people had signed so far," he replied in the affirmative . There-
after Hewitson signed a card
H. & H. PLASTICS MFG., Co. 1405
Although Kolenda also testified he "knew quite a bit about it" because "they were
talking about getting the union in" for about "a couple of weeks," he "understood
we were going to have some -kind of an election at the end when all of these cards
were in." Kolenda added that Kersten also told him "they were trying to get more
than fifty percent to sign cards, so they could have representation by the union.
The best I could understand we were going to have some kind of an election at
,the end when all of these cards came in." However, Kolenda finally testified that
he wanted Local 406 to represent him at the time he signed the card, after much
indecision as a result of the questions put to him on direct - and cross-examination.
3. Additional evidence
The first committee meeting in 1965 was held about the third week in January.
Controller Spaan -and Vice President James Hummel, and .employee representatives
Sremba and Durkee, attended. About four or five meetings were held thereafter
until April 3. In October 1964, after the Committee became formed , Respond-
ent's employment policy was changed to contain a provision relating to the Com-
mittee . See Respondent's Exhibit 1, article X, where among other things, it is
stated that, in connection with grievances, "If you are not satisfied with your fore-
man's decision or action, you may present all of the facts to your representative
who will present the grievance to the Employee- Management Committee." This
was not distributed to employees. Respondent's Exhibit 1 represents changes in
General Counsel's Exhibit 5, the 1964 policy .9 General Counsel's Exhibit 5 was
later amended, as noted above, by General Counsel's Exhibit 4.
Respondent's employment policy was further revised on July 1965, as a result
of suggestions arising at committee meetings . See General Counsel's Exhibit 4.
This was.distributed to employees.
A mass meeting of employees was called by Respondent on Saturday, April 3,
1965, at the request of employee committee representative Sremba to discuss prob-
lems which "he felt could not get,solved with the Committee, and for further
explanations as to vacations." Shortly prior to this employee Kolenda of the
extrusion department had asked Vice President James Hummel that the extrusion
department have its own representative on the Committee. Hummel promised to
take it under consideration. At said April 3 employee mass meeting it was decided,
in a manner not disclosed by the record, that the extrusion department would have
its own representative.
An election for committee members was held in mid or late June 1965. This
was held pursuant to -an understanding in prior committee meetings that a new
election would be held 'following any change in.company policy which came up for
review. As noted above, a new policy had been reviewed in 1965 and was adopted
in July thereof. Respondent prepared the ballots for this -election following dis-
cussion .thereof at a committee meeting. Employes Jones, Kolenda, and Durkee
were elected. When Kolenda left the Company in August, employee Nabors was
elected to replace him.
Committee meetings were called by employee or management members and ,were
very informal. They were usually convened at 3 or '330 p.m. Employee mem-
bers were reimbursed only for time spent during working hours, but not for time
after working hours, on committee business.
The purpose of the Committee, according to Vice -President James Hummel, is
"to keep up communications with the people, bring their problems up before they
get too far astray so they ,can bedealt with at .the moment"; also to discuss and
resolve employee grievances. Hummel also stated" that the Committee discussed
profit sharing in -1964 and wages often, but its,function was not to "adjust" wages.
Only -management could do that.
James Hummel, one of 'Respondent's vice presidents, -directed Spaan to Jake
minutes of the Committee. Hummel also testified that whether a committee
General Counsel's Exhibit 5, the Company's employment policy, was adopted in July 1964
for the guidance of employees. It was thereafter dispensed toempIoyees. At that-time
the Committee had not yet come into existence
A -few weeks later the Committee was organized. James Hummel, a vice president,
represented management on the Committee. Besides Hummel, Controller Spann and em-
ployees Sremba and Durkee "were in attendance" on the Committee At first meetings
were informal , and no minutes were kept thereof. Working conditions and wages were
discussed. About 10 or 12 meetings were held in 1964 In them employee .grievances
were presented to management.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative must be an employee would be first discussed by the Committee,
and, after that, would be considered by "probably the President of the Company."
The 1964 policy (General Counsel's Exhibit 5) was decided by management.
The 1965 policy (General Counsel's Exhibit 4) involved some employee sug-
gestions, but the policy itself was decided upon solely by management.
In the summer of 1964 a meeting of all the employees was held. At this
meeting management told the employees that it would be a good idea to have
an employees ' committee for representation.IO Other matters were discussed also.
This occurred after the 1964 policy had been adopted and made known to
employees. Vice President Ray Hummel, Jr., who attended, replied that they
should have representation and testified, "We ended up with a committee." That
committee was elected by a hand vote; but no one from management was present
when the selecting process took place. Ray Hummel, Jr., was soon notified of
this by an employee representative, and Hummel designated Vice President James
Hummel "to represent management on this Committee.
IV. -CONCLUDING FINDINGS AND DISCUSSION AS TO THE UNFAIR LABOR PRACTICES
A. As to the Union's majority status
1. The appropriate unit
No serious dispute has arisen as to the appropriateness of the unit involved.
While a slight variance exists between the unit mentioned at - the time of the
Union's demand for recognition (General Counsel's Exhibit 2) and that pleaded
in the complaint (paragraph 10), the divergence is not sufficient to destroy the
validity of the demand. Brewery and Beverage Drivers and Workers, Local
No. 67, Teamsters (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F. 2d
194, 196 (C.A.D.C.). Accordingly, I find that the appropriate unit on April 19-
and all material times since was and is: all production and maintenance employees,
including truckdrivers, shipping and receiving employees, and printing press
operators and helpers, but excluding office clerical employees, professional employ-
ees, guards, and all supervisors within the meaning of the Act.
2. The number of the cards
Twenty-six cards have been received in evidence. Three were executed after
April 19 and have been counted in ascertaining whether the Union had a majority
on April 10. (See General Counsel's Exhibit 1la, b, and c.) Thus 23 cards"
may be considered. Since the parties have stipulated that on April 19 the unit
comprised 34 employees, I find that on that date the Union patently enjoyed a
majority in that unit. It follows, and I find, that Respondent was under a statutory
compulsion to recognize and bargain with Local 406 on April 19 and thereafter
unless it is excused therefrom by any one or more of two defenses asserted
(N.L.R.B. v. Irving Taitel, et al. d/b/a Taitel and Son, 261 F. 2d 1 (C.A. 7)) or
by the fact that the Union failed to demonstrate its majority in the election of
June 4. I proceed first to discuss the two defenses, i.e. (a) whether Respondent
had a good-faith doubt of a majority, and (b) whether the Union's majority is
tainted because obtained by illegal methods.
3. The good-faith doubt of a majority
It is my opinion, and I find, that Respondent did not entertain a good-faith
doubt of the Union's majority on April 19 within the contemplation of Emma
Gilbert, et al., d/b/a A. L. Gilbert Company, 110 NLRB 2067, 2069-2071. In
the first place I attach some significance to the fact that, when presented with
the demand for recognition, Vice President Ray Hummel, Jr., failed to express
any doubt to Union Representative Anderson. If Hummel, Junior, harbored a
doubt it was incumbent upon him to assert it; an uncommunicated doubt can
hardly qualify as a manifestation capable of comprehension by union representa-
tives. Moreover, Hummel, Junior, exhibited a willingness to meet with the Union
w It was decided upon to suggest this to employees some time before after an employee
discussed it with a vice president.
"Computed as follows: General Counsel's Exhibit 9a-9f, 6 cards ; General Counsel's
Exhibit 10a-10c, 3 cards : and General Counsel's Exhibit 12a-12n, 14 cards.
H. & H. PLASTICS MFG:, 'CO. -1407
on the following 'Wednesday. - This, too, is laden with probative force; for if
Hummel , Junior, questioned the 'Union's majority he would not have acquiesced
in a meeting requested "for the purpose of negotiating a collective-bargaining
agreement ." (See General Counsel 's Exhibit 2.)
In the second place , good faith in doubting the Union's majority on April 19
is negated by the statement of Raymond Hummel , Sr., at the time of being served
with the Union's demand for recognition , that "Well, I guess we will just close
down and move out of town ." 12 I do not credit Hummel 's denial . While the
General. Counsel does not allege in his complaint that this utterance is unfair
labor practice, I have nevertheless taken it into consideration on the issue of a
good-faith doubt of majority. It discloses , and I find , an attitude inconsistent with
doubt and more consonant with ' an awareness of possible majority and a desire
not to deal with an outside union.
In the third place, the evidence of Respondent relied on to show a good-faith
.doubt of majority does not support such a conclusion , and I so find. Thus,
Respondent contends that "employees" questioned Raymond Hummel , Jr., "regard-
ing the status and authority of the Union." But the record discloses only that
employees Nabors and Kruizinga told Hummel they regretted signing cards and
asked questions . Nabors wanted to know if he "had to go for the Union" after
signing a card, and Kruizinga asked "what happens" after he signed a card. I
find that such regret and these questions do not manifest a repudiation of the
Union. Indiana Rayon Corporation v. N.L.R.B., 355 F . 2d 535 (C.A. 7), is
distinguishable. In any event, even if they do amount to withdrawals from the
Union, I find that two defections are insufficient to justify a reasonable belief that
the Union lacks a majority in a unit of 34. N.L.R.B. v. Mid-West Towel & Linen
Service, Inc., 339 F. 2d 958 (C.A. 7).
Ray Hummel, Jr., also testified "there was a lot of talk going on pro and con"
about the Union. Respondent contends this establishes a good-faith doubt of
majority. But I find this is not sufficient to raise a bona fide or reasonable doubt
as to the Union's majority.
Finally, lack of good faith is found in Respondent's failure to look into the
Union's offer to demonstrate its majority : "Where, as here, the union had proof
of its majority status readily available and [ Respondent ] chose not to learn the
facts, it took the chance of what they might be." Jas. H. Matthews & Co. v.
N.L.R.B., 354 F. 2d 432,-439 (C.A. 8). In my opinion, John P. Serpa, Inc.,
155 NLRB 99,-and Strydel Incorporated, 156 NLRB 1185, are distinguishable.
' Accordingly, upon an appraisal of the entire record, I find that Respondent was
not justified in good faith to question the Union's majority on April 19. But this
does not end the matter; for if the Union's majority was tainted because it was
obtained by illegal or improper methods, the Respondent need not recognize a
union whose majority is so contaminated . This is because the cards must reflect
the employees' true choice (Teletype Corporation , 122 NLRB 1594, 1595), and
coercion or fraud in soliciting cards vitiates a union 's majority . (Stor-All Corpo-
ration , 94 NLRB 1148; Ottenheimer and Company, Inc., 144 NLRB 38, 46.)
4. Whether the Union's majority is infected
Upon this branch of the law the Board and the courts almost uniformly have
held that the burden is on the General Counsel to show that cards were not signed
as the result of fraudulent misrepresentations , coercion, duress, or other illegal
conduct destroying the employee's freedom of choice; and that a statement that
the purpose of the card is to obtain an election may vitiate the validity of that
card (Englewood Lumber Company, 130 NLRB 394), if, but only if, the solicitor
making that statement asserted that an election was the sole or only purpose of
that card. S. E. Nichols Company, 156 NLRB 1201; N.L.R.B. v. Gotham Shoe
Manufacturing Co., Inc., 359 F. 2d 684 (C.A. 2); Engineers & Fabricators, Inc.,
156 NLRB 919; N.L.R.B. v. Delight Bakery, 353 F. 2d.344 (C.A. 6); N.L.R.B. v.
Cumberland Shoe Corp., 351 F. 2d 917 (C.A. 6). Furthermore, the Board has
held that a false statement that others have already signed a card is insufficient to
constitute fraud which will invalidate a,card signed by such inducement . Engineers
& Fabricators, supra.
12 In late April Hummel , Senior , also told employee Kangas "I am going to move them
right out of town." Although I find this is an unfair labor practice , I have disregarded it
on the issue of a good-faith doubt since it took place much later than the demand for
recognition
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To begin with I credit Anderson that in speaking to employees whom he asked
to sign or to-distribute cards',he mentioned three alternative methods of obtaining
recognition, that -one of these methods was by an election (which Respondent
probably preferred), and that the other two involved a card 'check by an inde-
,;pendent person or -voluntary recognition without a -card .check. Hence I find that
-no utterance -by -Union Representative Anderson depicted the cards as intended
solely -to obtain an election; and I further find, as a consequence, that Anderson's
-conduct in this area may not be condemned as illegal or improper. It is true
that I also-find.that-at the April -17-meeting Anderson also informed the,employees
;present that "it,might go to an election";,.but this does not change the foregoing
-findings.
,Further, I find that the cards obtained by employee 'Henry Kersten, Jr., are
valid and may be counted in computing the Union's majority. Upon this branch
,=of the case I -credit Kersten.and -do not credit that part of Respondent's evidence
inconsistent with Kersten's testimony. Thus Z find that Kersten did not tell any
of those -from whom he solicited signatures to cards that the card was solely for
the purpose -of having an election.
Further I find that the signatures to cards obtained by employee Harold Jones
are valid-and that such cards maybe included in reckoning the Union's majority.
In this, connection I do not credit Jones that the union representatives told'him
that Anderson about April 14 wanted Jones to obtain signatures to cards "to
-bring an election to the Company." In this respect I credit Anderson'that he-told
Jones,that-an-election was,-but one of three ways of obtaining recognition.
However, Jones testified in giving out cards he told the recipient thereof to sign
and "that when we had enough people to sign the cards we would have an elec-
tion." In some instances, Jones testified, he did not give-the employee to whom he
,distributed a card sufficient,time to read it before "it was signed. But I expressly
find that Jones did not say the cards were only for the purpose of having an elec-
tion. Hence the cards are not invalid because Jones merely mentioned the election.
N.L.R.B. v. Gotham Shoe Mfg. Co., supra, Engineers & Fabricators, supra,
N.L.R.B. v. Cumberland Shoe, supra. Nor is it fatal -that the signers did not read
the cards; nothing prevented them from doing so.13 Cumberland Shoe, supra;
Bernard S. Happach d/b/a 14th'St. Market v. N.L.R.B., 353 F. 2d 629 (C.A. 7).
Moreover, none of the signers has repudiated or sought to cancel his designation
of the Union. Hence such designation -may -not be disturbed, because there is
no evidence in the record "to contradict the clear designations expressed in .the
cards they signed:" Conren, Inc., 156 NLRB 592. "It has been held that an
employee's thoughts (or afterthoughts) as to why he signed a union card, and
what he thought that card meant, cannot negative the overt action of having
signed a card designating a union as bargaining agent . There is no show-
ing that [the signer] ever communicated his reservations about his designation
of the-Union." Jas. H. Matthews & Co., supra, 437.
Judy Hamm's card is valid, and I so find. This is because although -Union
Representative Anderson told her that there would be voting for a union , he also
stated that the employees of the Company "would like to have a union come in."
Further, Hamm wanted the Union to represent her when she signed the card; and
she has never revoked her action in signing. Hence her designation of the Union
is valid.
Employee Edward Hewitson's card likewise is valid and must be counted.
Although Hewitson testified that employee Kersten, mentioned "a vote to see if you
want a union," Kersten denied it. I credit Kersten. In any event I find that
Kersten did not say that "voting" was the only purpose of the card, that Hewitson
read the card before signing, and that Hewitson knew the nature of -the card from
a similar experience at another plant. Hence his designation must stand. Jas H.
Matthews & Co., supra. Nor is a contrary result required because Kersten also
told Hewitson that a majority had also already signed. Apart from the fact that
no evidence contradicts the assertion that a majority had already signed, it is not
fatal to claim that others had signed. Engineers & Fabricators, supra.
The card of employee Henry Kolenda must also be counted. Although Kolenda
vacillated extensively as to what Kersten told him, I find that Kersten's remarks
related solely to obtaining cards for the purpose of obtaining representation by a
union after more than 50 percent of the employees had signed cards. That -part of
Kolenda's -testimony inconsistent with this finding is not credited. Even if I do mot
13 "The very act of signing . .. calls for a finding that the employee knew what he
was doing." Jas. H. Matthews & Co. v. N.L.R.B , 354 F 2d 432, 438.
H. & H. PLASTICS MFG., CO. 1409
credit Kolenda as to what Kersten said , because Kolenda gave more than one ver-
sion , no contrary result is dictated . For then no evidence is in the record to show
what Kersten said ; and no findings can then be made attacking the fact that Kolenda
signed a card authorizing the Union to represent him.
Accordingly , I find that the Union 's majority has not been shown to have been
unlawfully achieved. Happach v. N.L.R.B., supra; The Shelby Manufacturing
Company, 155 NLRB 464 . Hence I find that the Union enjoyed a majority on
April 19 when it demanded recognition and that Respondent was lawfully bound
to recognize such Union as the exclusive bargaining agent of all the employees in
the unit heretofore found to be appropriate. N.L.R.B. v. Cumberland Shoe, supra;
N.L.R.B. v. Delight Bakery, supra.
B. Concluding findings as to threats to discontinue the bib department
In late April ,14 President Raymond Hummel , Sr., told bib department employee
Dorothy Kangas that "I am going to move right out of town ." I do not credit
Hummel's denial thereof. Hence I further find that by said remark Respondent
violated Section 8(a)(1) of the Act.
C. As to the Committee
1. Nature of the Committee
It is my opinion , and I find , that the Committee is a labor organization within
the meaning of Section 2(5) of the Act. In this connection it is not necessary
to enumerate all its functions warranting such a conclusion ; it is sufficient to men-
tion that it is (a) an organization in which employees participate through repre-
sentatives elected for such purpose , and (b) that it exists for the purpose of deal-
ing and has dealt with the Company, an employer, concerning grievances , wages,
rates of pay, pensions, profit sharing, and other conditions of employment. Char-
don Telephone Company, 139 NLRB 529, enfd. 323 F. 2d 563 (C.A. 6); Prince
Macaroni Mfg. Co., 138 NLRB 979, enfd. on this issue 329 F. 2d 803 (C.A. 1);
N.L.R.B. v. Cabot Carbon Company, 360 U.S. 203; N.L.R.B. v. Sharpies Chem-
icals, Inc., 209 F. 2d 645, 652 (C.A. 6).
2. Origin of the Committee
In early 1964 employee Harold Jones talked to Vice President Ray Hummel,
Jr., about the necessity and formation of an employee committee. Hummel was
for it. Then in June 1964, all employees were assembled by the Company so that
Hummel could discuss with them some topics relating to wages and working condi-
tions. Other members of management also attended. At this meeting an employee
suggested the creation of a committee for employees, and Hummel said it would
be a good idea to create such a committee. Thereupon the members of manage-
ment left so that the employees could hold an election. However, the employees
decided to hold an election the next day, a Saturday and a nonworking day. On
that day the employees met in the plant and decided to organize a Committee and
voted for representatives on it. The election was conducted in the following
manner:
Employees voted by ballots consisting of a plain piece of paper. Ballots were
deposited in a ballot box placed by the timeclock. Jones prepared the ballots and
the ballot box. The next working day the ballots were counted by Jones and
Controller Spaan. Thereafter management was notified of the results and it posted
the same on the bulletin board. A tie resulted in one department. Controller
Spaan ordered a runoff election. It was held the following week. This election
was run in the same manner but on company time.
3. Functioning of the Committee
The Committee has no bylaws or treasury and neither imposes nor collects
dues. From the beginning members of management have always sat on its meet-
ings, and, daring the time he worked for Respondent, Controller Spaan kept
minutes of the meetings at the direction of Vice President Hummel. Spaan had
3-The testimony of Kangas is that these words were uttered about a week and a half
after April 17.
221-731-67-vol. 198-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his secretary type up these minutes. They were placed on the bulletin board and
in the coffee room . After Spaan left Respondent's employ no minutes have been
kept. No other person has taken down the minutes at any meeting.
Meetings were held whenever any member of the Committee or management
desired it. Meetings were informal and were held on company premises. They
were usually set for late afternoon . Employee representatives attending did not
lose pay for that part of the meeting occurring during their working time ; but they
received no compensation if any portion or all of the meeting was held after
working hours.
As a result of the Committee's activities, Respondent adopted a written employ-
ment policy in late 1964 (General Counsel's Exhibit 5). It was revised in early
1965 (Respondent's Exhibit 1). It was overhauled a few months later (General
Counsel's Exhibit 4). This last policy was distributed to employees in October 1965.
Among other things it refers to the Committee as "the Employee-Management
Committee." It is there provided that, after an unsatisfactory disposition by "your
foreman ," grievances may be submitted to "your representative who will present
the grievance to the Employee -Management Committee" for consideration. An
appeal lay to the president of the Company if the Committee's decision was not
accepted (article X of General Counsel's Exhibit 4).
Another election of employee representatives was conducted about July 1, 1965.
It was held as follows:
Ballots accompanying paychecks were handed to employees on payday by the
payroll department "special representatives." Completed ballots were then dropped
during working hours in a ballot box placed next to the timeclock. They were
counted in the presence of Controller Spaan , Vice President Ray Hummel , Jr., and
an employee. Management decided that employees should vote by departments
and that each department should have one representative. When the employee
representative in the extrusion department elected at this July election quit his
employment, one of the Company's vice presidents ordered a "re-election" in this
department to select a replacement . This happened in late September or early
October.
In my opinion Respondent at least interfered with the administration of the
Committee ( Respondent 's relation to the formation of it may not be considered
because, under Section 10(b), this occurred more than 6 months next prior to the
filing of the charge ) and contributed financial and other aid, assistance, and support
to it. I so find . Thus I find that Respondent prepared ballots and ballot boxes,
distributed ballots, permitted the election to be conducted on company premises
during working hours, and posted results of elections on bulletin boards. Patently
this conduct is forbidden by Section 8(a)(1) of the Act. N.L.R.B. v. Prince
Macaroni Mfg. Co., 329 F. 2d 803.
But I am of the opinion, and further find, that Respondent dominated the Com-
mittee, contrary to the provisions of Section 8(a)(2) of the Act. In this connec-
tion I do not base this finding on any acts of Respondent occurring prior to
December 16, 1964, which is 6 months before the charge was filed on June 16,
1965. Such acts may only be used as background to evaluate Respondent's con-
nection with the Committee after said December 16. Local Lodge 1424, 1AM v.
N.L.R.B., 362 U.S. 411; N.L.R.B. v. Sharples Chemicals, 209 F. 2d 645, 653.
The ultimate finding in this paragraph is based upon the foregoing findings and
the following, all of which I find as subsidiary facts:
(a) The Committee 's formation was encouraged by Hummel in his talk with
Jones and further inspired by Respondent when it discussed the matter at an
assembly of employees called by Respondent.
(b) The Committee could not act without using company premises . Modern
Plastics Corporation, 155 NLRB 1126.
(c) The Committee could not act except when members of management were
present at its meetings . In some cases the presence of minor supervisors at a
union meeting has held to amount to no more than assistance or support , but not
domination , of a labor organization. Anchorage Businessmen 's Association, 124
NLRB 66" 663; Nassau and Suffolk Association, Inc., 118 NLRB 174. But when
executive members of management take part in the affairs of a union , domination
occurs. Chardon Telephone Co., 139 NLRB 529, enfd. 323 F. 2d 563; Lawson
Milk Company, 136 NLRB 538, enfd. on this issue 317 F. 2d 756 (C.A. 6).
(d) Employee members were paid for attending committee meetings. Further
no dues were collected and no bylaws were adopted.
(e) Management ordered some of the elections of employee representatives.
In other instances management participated in discussions affecting composition of
the Committee. Thus the minutes of April 3, 1965, reveal that "Employee Com-
H & H PLASTICS MFG, CO 1411
mittee-The group discussed addition of a member from the Extrusion Department,
teams of office of committee members, frequency of meetings " The group
included Vice President J Hummel and Controller Spaan
Moreover, committee minutes for May 25, 1965, disclose that "The Employee
Committee presented a list of questions and requests 10 That an election be
held on July 1, 1965, for new employee representatives on the Committee Man-
agement [J Hummel, R J Hummel, and Spaan] agreed to hold a general meeting
with all employees on Friday, May 28, 1965 at 3 p in to discuss the above matters "
Finally, management had the "power to remove an employee representative by
transferring him to another department " N L R B v Sharples Chemicals, supra
at 652
(f) Management kept the minutes
(g) Respondent itself refers to the Committee as the Employee-Management
Committee " See Article X of General Counsel's Exhibit 4 Manifestly this is
some indication that management must be represented on the Committee, a fact
inconsistent with a independent employee association In many respects, Modern
Plastics Corp, supra, is controlling
D The refusal to bargain
The Complaint alleges, and the General Counsel contends, that the refusal to
recognize and bargain with the Union, as well as the acts of dealing with the
Committee and with the employees directly, constitute violations of Section 8(a) (5)
Manifestly a refusal to recognize and bargain with a majority union in an appro-
priate unit transgresses Section 8(a)(5) Since I have found that Respondent with-
out justification denied recognition to the Union and refused to bargain with it on
and after April 19, it follows, and I find, that such refusal contravenes Section
8(a)(5) of the Act
Moreover, in dealing with the Committee and the employees at a time when
Respondent was under a statutory obligation to recognize and bargain with the
Union, Respondent also violated Section 8(a)(5) This is so regardless of the
motive of Respondent in dealing with the Committee or the employees, for
Respondent is under a duty to treat the Union as exclusive bargaining agent upon
subjects of compulsory bargaining, and must deal with it as such except for the
narrow situation set forth in the proviso to Section 9(a) of the Act Mid-west
Towel & Linen Service, 142 NLRB 744, 754-755, enfd 339 F 2d 958 (C A 7)
See N L R B v Benne Katz, 369 US 736, 743, George E Light Boat Storage, Inc,
153 NLRB 1209
V REPORT ON OBJECTIONS
As found above, Respondent dealt with the Committee, which was dominated
and assisted by Respondent Some of those dealings occurred in the period elaps-
ing between the filing of the petition in the representation case (Case No 7-RC-
6842) on April 23 and the holding of the election on June 4 Under Ideal Elec-
tric Mfg Company, 134 NLRB 1275, the above period is the crucial period before
an election during which any conduct which tends to prevent a free election may
constitute a basis for setting aside the election I find that during this period
Respondent made suggested benefits to employees as revealed in the minutes of
the committee meetings of May 3, 19, and 25 See General Counsel's Exhibits
8a, 8b, and 8c In addition, a suggestion that employees might receive "extra
money" and profit sharing and pension plans were made at a meeting of employ-
ees called by Respondent on May 28 and held at noon in the coffee room of the
plant These benefits include improvements in vacations, insurance, and wages, a
pension plan, and a profit-sharing plan
In addition, I find that Respondent continued to dominate and assist the Com-
mittee during the critical period For example, the Committee's minutes 15 for the
May 25 meeting contain the notation
The Employee Committee presented a list of questions and requests 1
10 That an election be held for new employee representatives on the Com-
mittee Management agreed to hold a general meeting with all employees on
Friday, May 25, 1965 at 3 00 P M to discuss the above matters
Accordingly, I find merit in objections 1 and 2 Since I have found that
Respondent violated Section 8(a)(5) and will recommend an order requiring
15 Present were employees Durkee Hewitson, and Sremba and management executives
J Hummel, R J Hummel, and Spaan
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to bargain with the Union (Bernel Foam Products Co., Inc., 146
'NLRB 1277), I further find that no current question concerning representation
exists. Hence, I shall recommend that the petition in Case No. 7-RC-6842 be
dismissed and that all proceedings held in connection ' therewith be vacated . Shelby
Manufacturing Co., 155 -NLRB 464.
VI.'THE 'EFFECT OF 'THE"UNFAIR LABOR `PRACTICES `UPON - COMMERCE
'The activities of Respondent set forth in section IV, above, occurring ,in con-
nection with its operations :described- in section I, above, -have a close, intimate,
,and substantial relation to. trade, traffic, and, commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce. .
.vH. THE REMEDY
It having -been,found that Respondent' has engaged in certain unfair labor, prac-
tices .prohibited, by, Section 8(a),(1)„(2), and (5) of the Act, it will be recom-
mended that it cease and desist therefrom and that it take specific affirmative
action, as set forth below, designed to effectuate the policies of the Act. 'Respond-
ent's activities in my opinion do not demonstrate a general hostility to the entire
Act. Hence, the remedy adopted should be commensurate with the violations
found; and broader relief is not warranted. It follows that an order is appropri-
ate enjoining the conduct.found constituting unfair labor practices and similar or
like,acts.
Upon.the basis of the foregoing findings of,fact and the entire record in this
-case, 'I make the following:
CONCLUSIONS OF LAW
1. Local 406 and the Committee are labor organizations within the meaning of
sections 2(5) -and 8(a) of the Act.
2. Respondent is an employer engaged in commerce as defined in Section 2(6)
and (7) -of the Act.
3. By threatening employee Kangas that it would -move out of-town Respondent
has engaged in,an unfair labor, practice -within the meaning'of-Section '8(a)(1') of
-the Act.
4. By dominating the Committee Respondent has engaged -in conduct violative
of Section-8(a)(2) and-(1) of the Act. '
'5. By interfering with the,administration 'of, and assisting, aiding, and contribut-
ing to the support of, the Committee, Respondent has engaged -in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. All production and maintenance employees at Respondent's plant, including
truckdrivers, shipping and receiving employees, and printing press operators and
helpers, but excluding office clerical employees, professional employees, guards, and
all supervisors within the meaning of the ,Act, constitute a unit iappropriate for
the,purposes of collective' bargaining within,the meaning of, Sections 8(a) and 9(b)
of the Act.
7. On April-19, 1965, and at all material times thereafter, the Union represented
a majority, ,and was the exclusive bargaining representative, of all the employees
in the aforesaid, appropriate unit for purposes of collective .bargaining within the
meaning of Section 8(a)(5) and 9 of the Act, and Respondent was on that date,
and has been since obliged to recognize, and bargain with the Union as such.
8. By refusing to recognize or' bargain with the Union 'in an appropriate • unit on
-and since April 19, 1965, by recognizing and dealing with the Committee upon
bargainable matters since said date, and 'by dealing with employees directly upon
bargainable matters since said date, Respondent has engaged in unfair -labor prac-
tices within the meaning of -Section 8(a) (5) and (1) of the Act.
9. The above-described unfair labor practices affect commerce within _the mean-
ing of Section 2(6) and(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Respondent, its officers,
agents, successors, and assigns, -shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain collectively with the Union as-the exclusive
bargaining. agent of all the employees in the above-mentioned appropriate unit.
H. & H. PLASTICS MFG., co. 1413`
(b) Dealing directly with employees, or recognizing and, dealing, with the Com-
mittee; upon bargainable matters affecting employees in said appropriate unit.
(c) - Threatening, to move out, of, town to discourage employee activities on
behalf of, the Union.
(d) Dominating, assisting, aiding,. contributing to the support of; or interfering
with the administration of, the Committee, or any, successor, thereto.
(e) In, any like or related. manner, interfering with, restraining, or coercing
employees in. the exercise of rights guaranteed to them by Section 7 of the Act,
except to, the extent, that such rights may be. affected by an agreement requiring
membership in a- labor organization as a- condition of employment as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the Union as the exclusive repre-
sentative of- all employees in the aforesaid appropriate unit and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Withdraw and withhold permanently all recognition from, and completely
disestablish,. the Committee, or any successor thereto, as the representative of its
employees for the purpose, in whole or in part, of dealing with or discussing
grievances'; labor disputes; wages, rates of pay, hours of employment, or conditions
of work.
(c) Post at its premises at Grand Rapids, Michigan, copies of the attached
notice marked "Appendix." 16- Copies of- said notice; to' be furnished by the
Regional Director for Region 7, after being duly signed by a duly authorized
representative: of the Respondent, shall- be posted by it immediately upon receipt
thereof, and be maintained by, it for 60 consecutive days thereafter, in conspicuous
places;, including, all places where such notices are- customarily posted. Reasonable
steps shall be taken by the Respondent to, insure- that, said; notices are not, altered,
defaced, or covered by- any other material.
(d) Notify the Regional Director for Region 7, in writing, within 20 days' from
the receipt of this Decision, what steps- Respondent has taken to comply herewith.I7
Upon the basis of the applicable findings of fact and conclusions of law, and
and upon that part of the record pertinent- to the disposition- of the objections in
Case No. 7-RC-6842, it is further recommended that the Board dismiss the peti-
tion in said case and, vacate all proceedings- held in' connection- therewith. ' Shelby
Mfg. Co., 155 NLRB 464.
m If 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. If the Board's Order Is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by substituting the words "Decree of the United States
Court of Appeals, Enforcing an Order" for the words "a Decision and Order."
17 If this Recommended Order is adopted- by the Board, this provision shall be modified
to read: "Notify said Regional Director, In writing, within 10 days from the date of this
Order, what steps the 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
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT deal with or recognize Employees' Committee-H. & H.
Plastics Mfg., Co., or any successor thereto, and we withdraw permanently
recognition from it; and we hereby disestablish it as the representative of any
of our employees for the purpose, in whole or in part, of dealing with or
discussing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.
WE WILL NOT deal directly with employees in the unit described below upon
bargainable matters during the period we are under a statutory obligation to
recognize and bargain with Local 406 of the Teamsters Union as the exclusive
bargaining agent of employees in said unit.
WE WILL NOT dominate, assist, aid, contribute to the support of, or interfere
with the administration of the above-mentioned Committee, or any successor
thereto.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to move out of town in order to discourage activities
in support of said Local 406.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of rights guaranteed to them by Section 7
of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively with the said Local 406 as the
bargaining representative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All our production and maintenance employees, including truckdrivers,
shipping and receiving employees, and printing press operators and help-
ers, but excluding office clerical employees, professional employees, guards,
and all supervisors within the meaning of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of said Local 406, or any other labor organization.
H. & H. PLASTICS MFG., CO.,
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
provisions, they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
226-3244.
J. H. Rutter-Rex Manufacturing Company , Inc. and Amal-
gamated Clothing Workers of America , AFL-CIO. Cases Nos.
15-CA-721 and 15-CA-723. June 6, 1966
SUPPLEMENTAL DECISION AND ORDER
On February 13, 1956, the National Labor Relations Board issued
a Decision sand Order 1 in the above-entitled case, in which it found
that Respondent violated Section 8 (a) (5) and (1) of the National
Labor Relations Act, as amended, by unlawfully prolonging a strike
of its employees. The Board ordered Respondent to offer, upon
application, to all those employees who went on strike on April 21,
1954, or thereafter, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if necessary, all
persons hired on or after that date, and make such applicants whole
for any loss of pay suffered by reasons of the Respondent's refusal,
if any, to reinstate them, from 5 days after the date of their appli-
cations to the dates of Respondent's offer of reinstatement. There-
1J. S. Rutter-Rem Manufacturing Company, Inc., 115 NLRB 388.
158 NLRB No. 122.