Harvey Aluminum, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1966

156 N.L.R.B. 1353 (N.L.R.B. 1966)

HARVEY ALUMINUM ( INCORPORATED) 1353
to the 1962 negotiations as evidence of group bargaining is counter-
acted by proof of individual action and conduct by some of the employ-
ers, in derogation of the multiemployer unit concept, and by the affirm-
ative indications that the Petitioner accepted the objections of
individual employers to contracting on the terms otherwise deemed
acceptable by other participants in the group negotiations."
In sum, considering all the above circumstances, the element of an
unequivocal intention to be bound by group action has not, we believe,
been established. Wire find, therefore, that the requested multiem-
ployer unit is inappropriate. As we have no basis for asserting juris-
diction over any of the employers involved in the absence of a finding
that they were engaged in true multiemployer bargaining, we shall
dismiss the petition.
[The Board dismissed the petition.]
8 See Van Eerden Company, 154 NLRB 496; Cf, Greater Syracuse Prtntong Employ-
ers' Association , 140 NLRB 217.
Harvey Aluminum ( Incorporated ) and Michigan Contractors, In-
corporated and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW),
AFL-CIO. Case No. 7-CA-4801. February 8,1966
DECISION AND ORDER
On October 7, 1965, Trial Examiner Alba B. Martin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. 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
'At the hearing, the Trial Examiner permitted Respondents' counsel to examine the
General Counsel's trial brief on one witness, but thereafter refused to require the Gen-
eral Counsel to submit to Respondents' counsel his trial briefs for other witnesses. In
addition to the reasons assigned by the Trial Examiner for his conduct, we find, without
deciding whether the Trial Examiner acted correctly in the first instance, that in the
exercise of his discretion he properly refused to require the General Counsel to produce
his trial briefs for other witnesses.
156 NLRB No. 115.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision,2 the exceptions, the brief, and the entire record
in the case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications :
1. The Trial Examiner found that Respondent's letter of July 25,
1964, contained an implied threat to close the plant in the event of a
strike. We do not agree that this is the effect of the letter. Accord-
ingly, we do not adopt the Trial Examiner's finding that this letter
was violative of Section 8(a) (1).
2. The Trial Examiner found on the basis of employee Barnwell's
testimony that Foreman Salcido had said to another employee, Gibson,
that after the election Salcido might have to go down to Kentucky to
get a job. The Trial Examiner further found that this statement of
Salcido's was coercive.
Salcido denied making the statement attributed to him by Barnwell.
The Trial Examiner credited Barnwell, apparently because he found
that Gibson had not specifically denied Barnwell's testimony.3 How-
ever, Gibson testified that he did not recall any such conversation with
Salcido or with any other foreman. In view of Salcido's denial, we do
not adopt the Trial Examiner's finding that Salcido made the state-
ment about Kentucky attributed to him. Accordingly, we do not adopt
the Trial Examiner's findings of an 8(a) (1) violation based thereon.
3. The Trial Examiner recommended that a broad cease-and-desist
order issue against Respondents. We do not believe that the unfair
labor practices found justify the broad order recommended. Accord-
ingly, we shall modify "1(j) " of the Order to read "In any like or
related manner . . ." in place of "In any other manner...."
[The Board adopted the Trial Examiner's Recommended Order
with the following modification : Amend paragraph 1(j) and the 10th
indented paragraph of the notice by substituting the words "In any
like or related manner ..." for the words "In any other manner...."]
[The Board dismissed the complaint insofar as it alleges any viola-
tion of Section 8(a) (1) not found by the Board.]
'The Trial Examiner 's Decision contains minor inadvertent or typographical errors
which do not affect our ultimate findings.
Accordingly , we hereby correct line 54, page 4 of the Trial Examiner's Decision to read
"Hinz did not mention" rather than "Harvey did not mention "
We also hereby correct footnote 3, page 1356 of the Trial Examiner' s Decision to
read "Case No. 7-CA-4188" rather than "Case No. 7-CA-4801."
a In footnote 6 of his Decision , the Trial Examiner found : "Gibson denied Salcido said
this to Barnwell but did not deny that Salcido said it to Gibson."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Alba B. Martin, in Adrian, Michigan, on February 8-11, 1065, on complaint 1 of the
General Counsel and answers of Harvey Aluminum (Incorporated) (herein called
1 The charge was filed on July 24, 1964 . The amended charge was filed on August 4, 1964.
HARVEY ALUMINUM (INCORPORATED) 1355
Respondent Harvey Aluminum. Harvey Aluminum, Respondent Harvey, and Respond-
ent) and of Michigan Contractors, Incorporated (herein called Respondent MCI, and
Respondent MCI). The issues litigated were whether Respondents violated Section
8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151,
et seq., herein called the Act, by written, recorded, and verbal threats, by increasing
the hiring wage of existing wages in the plant, by promising employees a raise to
defeat the Union, and by promulgating a no-distribution rule. After the hearing
Respondents filed a memorandum which has been carefully considered. After the
hearing counsel for Respondent Michigan Contractors filed a motion to correct the
record in a number of instances. As the General Counsel has not opposed this motion
and as the proposed corrections all appear to me to be corrections of errors in the
transcript, Respondent's motion is hereby granted.
Upon the entire record any my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENTS
The sole plant involved herein, situated in Adrian, Michigan, is the same plant
run by the same parties as was involved in a case before Trial Examiner Reel, at which
both Respondents before me were present and represented by counsel. The Board
decision adopting the findings, conclusions, and recommendations of Trial Examiner
Reel appears at 147 NLRB 1287. I hereby take official notice of the Board Decision
and Order, including the Trial Examiner's findings and conclusion that Respondent
Harvey, as well as Respondent MCI, was responsible for unfair labor practices com-
mitted at the Adrian plant.2 Set forth below are Trial Examiner Reel's findings and
conclusions on this subject:
Respondent Harvey, a California corporation, owns, among other properties,
the plant at Adrian, Michigan, which is involved in this proceeding. Respond-
ent MCI is a Michigan corporation which operates that plant under contract
with Harvey. The plant, which is devoted to the manufacture, sale, and dis-
tribution of aluminum products, receives annually over $250,000 worth of mate-
rials directly from outside the State of Michigan, and annually ships over $100,-
000 worth of products directly to points outside that State. On these facts
there can be no question but that the Board's jurisdiction extends to unfair labor
practices committed at this plant, and I find that MCI, which admits to being the
employer of the employees there (except for one auditor employed by Harvey),
is an employer engaged in commerce within the meaning of the Act. General
Counsel alleges, however, and Respondents deny, that Harvey jointly operates the
plant with MCI, and that they are "affiliated business constituting a single
employer operating an integrated enterprise at the Adrian plant." Resolution of
the question whether Harvey is jointly liable with MCI for unfair labor practices
committed against employees at this plant requires a statement in some detail
of the relationship between Harvey and MCI at this plant.
Harvey owns the land, buildings, fixtures, tools, and materials at the Adrian
plant. The plant is operated by MCI under a contract which, as Respondents
view the matter, establishes that Harvey is merely a "customer" of MCI. The
finished products are then sold and delivered to customers of Harvey. The plant
is generally known as the Harvey Aluminum plant; it is so identified in the tele-
phone directory and by the telephone operators at the plant as well as by the
sings on the premises. Several members of the supervisory hierarchy at the plant
were employed by Harvey in its operation in Oregon or California; the general
manager, John Alico, was hired by Harvey in the spring of 1961 and was paid
through January 15, 1962, by a concern named "Harvey Aluminum of Michi-
gan." The next day, without change of salary, he became an employee of MCI.
MCI was organized in December 1961, for the avowed purpose of establish-
ing a manufacturing plant to "generate products from aluminum . . . and other
materials," to deal in such materials, "and in general to carry on any other
lawful business whatsoever . . . . Its entire working capital appears to be
$2,000 representing 2,000 shares of stock with a par value of $1 per share. All
but 20 shares are held by Aloysius O'Mara, a member of the Michigan bar,
21 also take official notice that this case is now before the United States Court of
Appeals for the Sixth Circuit on the Board's petition for enforcement of Its Order One
of the issues before the court is the responsibility of Harvey Aluminum for the unfair labor
practices found by the Board to have been committed at the Adrian plant.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose office in Blissfield, Michigan, is also the office of MCI. Apparently the
sole business of MCI is to operate the Adrian plant for Harvey. The customers
of the plant are Harvey's customers; MCI does not bill them in its name or have
any accounts receivable.
The contract between Harvey and MCI provides, inter alia, that personnel
engaged by MCI "shall be in the numbers, classifications, and at wage rates
approved by" Harvey. Under the contract Harvey may require MCI to remove
any employee Harvey "deems incompetent, careless, insubordinate, undepend-
able, or otherwise not devoting his undivided cooperative industrious efforts to
the performance of his duties." Under the contract, the foreman or superin-
tendent and any necessary assistants must be "satisfactory" to Harvey. MCI
in the contract agreed "to employ such labor which shall not conflict with other
labor on the job or with labor employed by other contractors on the job." The
contract requires that whenever MCI "has knowledge that any actual or potential
labor dispute is delaying or threatens to delay the timely performance of the
work," MCI "shall immediately give written', notice thereof, including the rele-
vant information with respect thereto," to Harvey.
The contract, which may be canceled by Harvey at its sole discretion at any
time, also contains other provisions consistent with MCI's status as employer of
the plant personnel. The provisions summarized above, however, as well as the
other facts already adverted to lead me to find that for purposes of the Act, Har-
vey is also an employer of the employees at the Adrian plant. See N.L.R.B. v.
New Madrid Manufacturing Company and Harold Jones, etc., 215 F. 2d 908,
913 (C.A. 8), where the court observes that an important "test of employer-
ship",under the Act is whether the contract "either expressly or by implication"
gives the nonoperating "employer" any voice whatsoever in the selecting or dis-
charging of [the] employees, in the fixing of wages for such employees, or in any
other element of labor relations, conditions and policies in the plant." See also
General Engineering, Inc., et al., 123 NLRB 586, and the subsequent cases
involving that company, cited in Harvey Aluminum (Incorporated), et al., 139
NLRB 151, 155-156, all holding that under an arrangement in many respects
similar to that in this case Harvey and General Engineering, Inc, are joint
employers of the employees in a plant at the Dalles, Oregon, owned by Harvey
and operated by General Engineering. The cases relied on by Harvey in its
brief in this case, notably Site Oil Company, et al., v. N L.R.B. 319 F. 2d 86
(C.A. 8); Knight Newspapers, Inc., 138 NLRB 1346; and Clark Oil & Refining
Corporation, 129 NLRB 750, did not involve situations where the owner of the
premises retained as much control over the employment of the operator's employ-
ees as Harvey retains here.3
In the case before me the answers and counsel for Respondents admitted, and I
find, that the Board has jurisdiction over each Respondent as a single enterprise, and
that each is engaged in commerce in a sufficient amount to justify the Board in taking
jurisdiction over this case. The pleadings, and admissions in the answers, showed
that during the calendar year 1963, a representative period, at its principal plant in
Torrance, California, Respondent Harvey manufactured, sold, and distributed prod-
ucts valued in excess of $500,000, which were shipped from said plant directly to
points located outside California; that during calendar year 1963 Respondent Harvey
caused to be transported and delivered to the Adrian plant, directly from points out-
side of Michigan, aluminum ingots and other goods and materials valued in excess
of $250,000; that during calendar year 1963 Respondent MCI manufactured at the
Adrian plant products valued in excess of $100,000, which were shipped from said
plant directly to points outside of Michigan; that during calendar year 1963 Respond-
ent MCI performed services for Respondent Harvey valued in excess of $50,000.
At issue here, as in 147 NLRB 1287, is the question as to whether Respondent
Harvey, as well as Respondent MCI, is responsible for the unfair labor practices
found herein to have been committed. Certain evidence in this record, in addition
to the evidence before Trial Examiner Reel, of which I take official notice, leads to the
conclusion that Respondent Harvey is responsible.
1. The record in the hearing before me showed without contradiction that the
name of Respondent Harvey Aluminum appeared on the outside of the Adrian plant
and on the trucks that arrived at the plant; that although the employees were paid by
checks bearing the name of Respondent MCI, at least one employee, Deyo, assumed
he worked for Harvey since he "figured" Harvey owned the plant.
$ I take official notice that in the representation case, Case No. 7-CA-4801, the Board
took official notice of 147 NLRB 1287.
HARVEY ALUMINUM (INCORPORATED) 1357
2. In addition, Respondent Harvey's industrial relations director, Hinz, was in
and out of the plant at different times every day or night from July 13 through
July 30, during the preelection period and through the election. He was there when
the antiunion propaganda, considered below, was issued in the name of the "Commit-
tee to Keep the Union Honest" and MCI. He told at least one employee, Cleghorn,
that she would get a raise and spoke to others on that shift. He told another employee,
Tiede, as is seen below, that the Harvey people would not stand still for a union but
made no mention of MCI people; that if the Union got in Tiede would always have
a good job at another plant with the Company. Harvey did not mention which com-
pany, but as Harvey had other plants and MCI did not, insofar as the record showed,
and since a Harvey official was talking, it is a fair conclusion that Hinz was talking
about another Harvey plant and was so understood by the employee. On election
day, July 29, an employee went to see Hinz and asked him how "they" or "he" could
use employees' names the way they had in company propaganda. In answering Hinz
did not deny the inference that Hinz was somehow responsible for this propaganda.
He replied that anybody can use anybody's name unless they use it in vain.
It is clear from the above, and I conclude, that Hinz, Harvey's industrial relations
director from California, was at the plant in Michigan for 16 days before the election
and on election day to influence employees of MCI on how they should vote in the
election. Indeed the record suggested no other purpose of his visit.
3. One employee, Tiede, testified without contradiction, that during his first 2 or 3
months of employment at the plant he received his paychecks from "Harvey Alumi-
num of Michigan"; that one day he was laid off by that firm and was hired by MCI
the same day.
4. Some 10 representatives of Harvey Aluminum (Incorporated) and Harvey
Aluminum Sales, Inc., visited the Adrian plant so frequently that their names were
typed on the "Daily Gate Attendance Report for Salaried Personnel" rather than
hand written each time they entered. MCI's personnel director testified that these 10
names are carried as they are because they are constantly in and out of the plant. One
man, out of Detroit, is in the Adrian plant two or three times a week. In addition to
these, other Harvey Aluminum personnel from around the country are admitted upon
presentation to the guard of their identification cards which include their picture.
MCI's personnel mnager testified that they have to present these cards under standard
policy of Harvey Aluminum.
5. As is seen below, in November 1963, Respondent MCI wished to increase wages
but did not because Respondent Harvey Aluminum did not approve of the increase.
In May 1964, MCI sought Harvey's approval for new hiring rates: MCI requested
Harvey's approval "for reimbursement under our contract terms." This request was
granted in June, when Harvey informed MCI that Harvey Aluminum (Incorporated)
"will approve for reimbursement under its purchase order No. 1160 with Michigan
,Contractors," the requested raises and an upward adjustment of existing wage rates.
6. On the opening morning of the hearing, a Monday, I asked counsel for Respond-
ent MCI if the contract between Harvey and MCI had been changed "in any way
relating to the circumstances pointed out by" Trial Examiner Reel. Counsel replied
in the affirmative. I asked, "are you prepared to tell us what those changes are?"
Counsel replied:
I would be except I don't have a copy of it. I asked Mr. Elliott 4 Friday if he
would procure and furnish me with a copy of that contract, and I expect to
receive it by mail today, and at such time as I do ieceive it, I will provide it to
the Hearing Examiner, so he can take a look at it. I had a telephone discussion
with Mr. Elliott regarding that particular matter on Saturday and he informs me
it has been changed substantially and those matters that were alluded to by the
Trial Examiner in the previous pioceeding has been changed, so I guess we are
are contending it has been changed .. .
The hearing lasted 31/2 days, during which I waited for Respondent to come forth
with his evidence of changes in the contract. Respondent never produced the alleged
changes in the contract, in fact never mentioned the alleged changes again, and never
made any explanation as to why he failed Under the circumstances I conclude that
the contract between Harvey Aluminum and MCI iemains the same as that described
by Trial Examiner Reel.
7. Thus the evidence and admissions in the case before me showed that under the
contract between Harvey and MCI, Harvey must approve increases of hiring rates
and existing wage rates before MCI will make them; that Harvey's industrial rela-
'The Elliott referred to is presumably Maxwell H. Elliott, counsel for Respondent
Harvey Aluminum , whose office is in California and who was not present at the hearing.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions director from California was at the Adrian plant in Michigan for at least 16
days before the election for the purpose of influencing employees on how they should
vote in the election; that it was during the period of his visit that the written and
recorded threats, found below, were made to employees for the purpose of influencing
employees on how they should vote in the election; that given an opportunity, Harvey's
industrial relations director did not deny to employees that he was somehow respon-
sible for the antiunion propaganda prior to the election; that Harvey's industrial rela-
tions director told an employee he would get a raise and another that the Harvey
people would not stand still for a union and that if the Union got in the employee
would always have a good job with Harvey at another plant. I find on this evidence
(as illumined, clarified, explained, and made meaningful by the record before Trial
Examiner Reel), and upon the entire record in the case before me, that for the pur-
poses of the Act Respondent Harvey, as well as Respondent FCI, is an employer of
the employees at the Adrian plant and that both Respondents are responsible for
and must remedy the unfair labor practices found below. In view of this finding I
do not always distinguish between the Respondents in the findings and conclusions
below, but sometimes for ease of exposition, refer to either as Respondent or both as
Respondents.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile , Aerospace and Agricultural Implement
Workers of America (UAW) AFL-CIO, herein called the Union , is now, and has
been at all times material herein , a labor organization within the meaning of Section
2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. Written threats
On July 16, 1964,5 the Acting Regional Director advised the parties that the elec-
tion would be held July 29, in Case No. 7-RC-5933. The election had been ordered
by the Board itself on June 30.
On each 5 of the 7 days before the July 29 election one or both of the Respondents
caused to be prepared and distributed to employees a 1, 2, or 3-page single-spaced
typewritten document giving the employees reasons why they should vote "no" in
the election. Three of these purported to come from Michigan Contractors Incor-
porated, two of them purported to come from a "Committee to keep the Union
honest "
1. The July 22 document, purportedly from the committee, opened as follows:
The Union has asked you to pay part of your paycheck to support the union
officials; in turn they have promised you security.
Did the Union get you your job?
The answer, of course, is no. You applied for work and your company hired
you. There have been NO lay-offs and you have never lost a days work, nor
have you had to support a union boss who plays while you work to support him.
Compare your present status with the Unions proven record of security in this
same plant.
° Then followed a page-long recitation of an alleged history of the plant, referring to
numerous strikes against previous occupiers of the plant by the "union " It said
one previous occupant, after a 14-day strike, "had had enough. They shut the plant
down and everyone was out of work. This was real union security." After a strike
another occupant "had enough and the plant was again shut down. The union was
successful in having all the employees put out of work." Later it recited that a pre-
vious occupant "had had enough and the plant was closed and the union security
was proven again." Later it said "Bridgeport Brass opened the plant in 1954 and
they, too, shut it down on April 30, 1960, for the reason: Due to excessive costs
that placed them out of competition in the aluminum industry " This pamphlet
ended, "Amazingly enough, there is real union security, the union boss, who gets rich
from your paychecks, never lost a day's pay through all the strikes and shutdowns.
Don't let the union security cost you your job."
A fair appraisal of this document is that it not only betrayed Respondent's deep
hostility toward unionism, but it was also a warning to employees that unionism at
this plant costs employees their jobs, either by plant shutdown following a strike, or
by plant shutdown because of "excessive" wages caused by a union Thus, during
the preelection period when the Union was not yet the bargaining agent, had no real
organization in the plant, and there was no talk of a strike insofar as the record
5 All events herein occurred in 1964.
HARVEY ALUMINUM (INCORPORATED) 1359
revealed , Respondent was impliedly threatening employees that a union victory at the
polls would ultimately cost them their jobs. By this threat Respondents interfered
with , restrained , and coerced employees in the rights guaranteed in Section 7 of the
Act, Respondents thereby violating Section 8 ( a) (1) of the Act.
2. The July 23 letter started as follows:
Your Company feels such an important decision as the coming election, in
which you must decide if you want to pay part of your earnings each month to
some outside Union official or remain free in the same tradition on which these
United States were founded ; free to speak for yourself , free from threats of
strikes and free from having to pay someone for the work you perform , should
be a decision of not just the employee but the entire family.
The pay check that comes home each week is for the entire family.
We feel certain that you would not spend your money to hire an attorney if
you had no use for one , neither would any of us hire a doctor if we did not need
one. Now, do you want to hire the Union) What can they do for you?
Unions do not pay your wages, only your Company can do that ....
This July 23 letter referred , among other things, to alleged rumors by the Union
"that this plant cannot close down ." The letter said:
About these typical Union rumors, your Company will pay $500.00 in
cash to any person who will offer proof that this plant cannot close its doors at
any time. There is no obligation or agreement that this plant must operate and
unless we can all work together and prove that there is enough old fashion Yan-
kee togetherness to operate at a profit , no company can expect to remain open.
Many of our employees feel they should belong to a Union. This is their
privilege . Of course , we hope the majority of you have enough confidence in
your Company to vote in the secret election that you and your Company can
work together without an outsider who has nothing invested in this plant and
who demands part of your earnings and can give you nothing in return.
As the first paragraph of this letter referred to some "outside " union official and
alleged "freedoms " without a union, the later reference to closing down in the absence
of "enough old fashioned Yankee togetherness to operate at a profit" reasonably, on
this entire record, meant to employees , as was undoubtedly intended by Respondents,
that Respondents might close down the plant if the employees chose the "outside"
union at the polls. By this implied threat, and by stating that the Union "can give you
nothing ...... thereby suggesting the futility of the employees ' support of the Union,
Respondents further interfered with, restrained , and coerced employees in the rights
guaranteed in Section 7 of the Act , and thereby further violated Section 8(a)(1).
3. The July 25 letter itemized some alleged loss of fredoms "once you start paying
the Union bosses to run your life." After much other matter, this letter said,
Remember, Unions are losing members . Each year, for the past few years,
Union membership is decreasing . Workers around the country are wise to the
Union promises.
Remember, if a few people are unhappy with their work and a strike is called-
regardless of your feeling , you are out of work.
Protect your security and give your Company a vote of confidence for your
future-
VOTE NO
Viewed along with the other threats to close the plant , as discussed in this record
and found herein, the failure to limit the period employees would be "out of work"
in this letter to the time they were on strike , was a deliberate attempt to mislead them
into thinking they would be permanently out of work in the event of a strike . By this
further implied threat to close the plant in the event of a strike , made to defeat the
Union at the election and when no strike was being discussed among employees,
Respondents further interfered with, restrained , and coerced employees in the rights
guaranteed in Section 7 of the Act, thereby further violating Section 8 ( a) (1).
4. The letter of July 27, 2 days before the election, ended as follows:
The relationship you enjoy with your Company today is a team effort-between
you and the Company. When work is slack , the Company looks for something
to keep you busy; if a machine breaks down , you are given other work for the day;
whenever possible, you are given overtime. This is only possible because you
have decided to work directly with your Company and both have placed confi-
dence in each other, both share mutual responsibilities.
Now-What happens when the Union represents you?
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This relationship does not exist. Your Company then deals with the Union.
No overtime means more employees; more employees means more Union Dues.
Laying off when a machine breaks down and finding ways to cut payroll costs is
quite normal in Union shops If the employees have no confidence in their Com-
pany, then, of course, the Company feels no responsibility for the employees.
The employees who have worked in Union shops are aware of this and they
also know that the Union does not pay your salary and they will not represent
you unless you give them part of your earnings.
Don't support Union Bosses and protect your job conditions and job security-
VOTE NO
The third paragraph quoted above, stating what allegedly would happen if the Union
won the election and represented the employees, unmistakably informed the employ-
ees that in that event the working conditions would be different and worse for the
employees. It implied there would be no more overtime, and that employees would
be laid off when machines broke down rather than given other work as at present.
The last sentence stated that to protect your job conditions, vote against the Union.
By threatening that if the Union won the election employee job conditions would
be changed for the worse, and that they would be laid off when the machines broke
down, Respondents further interfered with, restrained and coerced employees in the
rights guaranteed in Section 7 of the Act, thereby further violating Section 8(a)(1).
Respondents' defense to the written violations of the Act in their campaign
propaganda found above, was that their statements were in answer to, and justified
by, the Union's claims in its pamphlets that employees would have greater job
security with the Union than at present without it. But, as has been seen above,
Respondents went beyond merely answering the Union's claims and made threats
and other statements in violation of the Act, as has been found above, not protected
by Section 8(c).
B. Recorded threats
Respondents caused to be prepared, and to be posted on company bulletin boards
and near telephones in the plant, for a week or two before the election, white card-
board signs, 14 inches by 11 inches in size, bearing the red and blue painted
legends, "Learn the Score dial 224," and "A Message for Me? dial 223." Employ-
ees who dialed these numbers on the plant telephone system heard the recorded
voices of Production Superintendent Virgil Freude and General Foreman Jesse
Salcido.
According to the uncontradicted, credible, and credited testimony of employees
Roy Deyo and Dale Couts, Freude's voice stated in substance how much less "Harvey"
was getting per pound for metal than its last predecessor in the plant, Bridgeport Brass
got; that the plant was operating in the red; that the plant had no government contracts
to "back it up"; that he wanted the full cooperation of everyone in the plant; that if
they could not get the full cooperation of everyone they would have to move the plant
to some other place; that if they could not operate in the plant profitably they would
have to move it elsewhere.
According to the uncontradicted and credited testimony of Deyo and Couts,
Salcido's voice said he had worked for the Company for 20 years; that he had never
been laid off; that he had a steady income which helped him support his family; that
he started as a helper and had progressed and was now a supervisor; that he urged
employees to vote "No "
Upon this entire record considered as a whole it is clear and I find that Freude's
threat to move the plant unless he could get full cooperation and could operate
profitably, was intended and reasonably meant to employees that Respondents would
close the plant if the Union won the election; for employees reasonably understood
from Respondents' written propaganda campaign, discussed above, and from all the
events in this entire record, that full cooperation and profitability meant, to Respond-
ents, rejection of the Union by the employees. By this further implied threat to close
the plant if the Union won the election, Respondent further interfered with, restrained,
and coerced employees in the rights guaranteed in Section 7 of the Act, Respondent
thereby further violating Section 8(a)( I).
C. Verbal threats
1. According to the uncontradicted testimony of employee J P. Pounders, the day
before the election Production Superintendent Freude came up to him in the plant
and asked him what he thought about the Union and about the election. Freude con-
tinued by saying that he had just talked with another employee who had told him that
the Company could not afford to close the plant if the Union came in. Freude said
that he did not agree with that statement, that when Leo Harvey bought this plant
HARVEY ALUMINUM ( INCORPORATED) 1361
"the boys" were against it, but that "Mr. Leo and I both thought we could have a good
plant here in Adrian and have good relationship with the workers and make a go
of it." Freude also said, "Mr. Leo Harvey put me in here to run this plant .... He
told me that if I ever left here that he would close this plant, and ... if the Union
comes in here I won't be around."
Freude testified about other conversations with Pounders but did not deny any part
of this conversation the day before the election Freude's remarks, if true, amounted
to a threat that the plant would be closed because Freude would leave if the Union
won the election. In -view of all the other threats made by Respondents during the
preelection period, as found herein, I believe and find on the entire record considered
as a whole that Freude also made this one, Respondents thereby further interfering
with, restraining, and coercing employees in the rights guaranteed in Section 7 of the
Act, Respondent thereby further violating Section 8(a)(1). Under all the circum-
stances of this case Freude's interrogation of Pounders as to what he thought about
the Union and the election was an act which reasonably tended to interfere with,
restrain and coerce employees in the rights guaranteed in Section 7 of the Act,
Respondents thereby further violating Section 8(a) (1).
2. Employee Bobby Barnwell credibly testified that about a week or two before
the election when an employee asked General Foreman Jesse Salcido how it was
that they were not getting any orders on the press, referring to press 18 where they
were standing, Salcido replied that "they would have to wait until after the election
to see how it come out before they brought any more orders out." Barnwell testified
further that during the same preelection period Salcido said to another employee,
Gibson,6 that after the election he, Salcido, might have to go down to Kentucky to get
a job.
Respondents presented a massive defense to this testimony. Salcido denied this
testimony, stated that shortly before this he had bought a farm near Adrian of which
he was proud and that the Harvey facility in Kentucky was a rolling mill and that he
had never worked in a rolling mill. However he admitted that during this preelection
period some orders were held up while machines were tooled up for these orders.
And he admitted that employees were concerned about the slowness with which orders
were coming in and asked why the work was so slow. Other testimony showed that a
subject of much discussion and concern among employees was whether the plant would
shut down if the Union won the election. Salcido testified further that employees
wanted to know what the Company's position was. Respondents' production control
manager testified from production control projection sheets that during this period
the plant was working at full capacity for the crews that were scheduled.
As the Companies' threats to close the plant and move elsewhere if the Union won
the election were well documented by written, recorded, and verbal testimony in this
record; as Salcido's reply about awaiting the outcome of the election before bringing
out any more orders for the presses would have been, even though possibly said partly
in jest, consistent with these threats and this revealed company way of trying to win
the election; and upon the entire record considered as a whole, I believe that Salcido's
indirect threat that orders might not come out, or not so frequently, if the Union won
the election, and that he might have to go to Kentucky because this plant might close,
if the Union won the election, were made substantially as testified by Barnwell and
were reasonably calculated to interfere with employee rights. By these threats, made
to try to influence the results of the election, Respondents further interfered with,
restrained, and coerced employees in the rights guaranteed in Section 7 of the Act
and thereby further violated Section 8(a) (1)
3. The morning before the election employee Sharon Cleghorn served on a com-
mittee for the Union to check the list of those eligible to vote. Later that day Melvin
Benschoter, whose status as leadman or supervisor is in dispute, told her, according
to Cleghorn's credible and undenied testimony, that, in substance, she "got her feet
wet" by performing that function that morning. Benschoter asked her if he knew
what she was doing, and added, according to Cleghorn's testimony, that he did not
think she cared about the other men and women working in the plant because if the
Union got in, the plant would close down. He told her she was on the night shift and
had gotten in with the wrong people, and that he thought she would vote against the
Union if she was on the day shift in his department
Cleghorn quit the Company soon after the election because she could not get back
on the day shift and wanted to be home nights to see her children when they spent
their days at school. About a month later, according to her credited testimony on
cross-examination, in a conversation with Benschoter somewhere away from the plant,
U Gibson denied Salcido said this to Barnwell but did not deny that Salcido said it to
Gibson.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter told her the Company would have to let her return to work on the day
shift "if I had not been for the Union, because Mr. Wilkerson had told him that as far
as he was concerned I would never get back on days because I was for the Union."
Benschoter did not deny this testimony.
Benschoter denied telling any employee the plant would close if the Union came in,
but admitted that in a conversation with employees he probably expressed his opinion
more than once that the plant would or might close down if the Union got in. In the
light of the entire record, and as his saying this would have been consistent with what
supervisors and some employees were saying at the time and consistent with well-
documented company policy, I believe and find that Benschoter uttered this implied
threat. Also I find that Benschoter's later repetition to Cleghorn to Wilkerson's
alleged statement to Benschoter that Cleghorn would never get back on days because
she was for the Union, was a threat not protected by Section 8(c) of the Act. The
question remains whether Respondents were responsible for these two threats uttered
to Cleghorn on July 28, the day before the election, and about a month later.
Benschoter testified he became a foreman on August 1, some 4 days after this threat,
and that prior to August 1 he was a working leadman. He went on salary August 1,
when his monthly income was increased from about $500 a month to $550 a month.
It appears from his testimony, and others, however that he performed about the same
functions and duties before as after and that his authority was no greater after
August 1 than before. Before, he effectively recommended the discharge of at least
two employees. Although he testified he was given the authority to fire on August 1,
he also understood he would have to fire through his superiors as he had before, so
that his authority continued as effectively to recommend firing, rather than authority
to fire. Before, he effectively recommended the transfer of a man in his crew to a
better job for the man, on the basis of Benschoter's independent judgment as to the
man's ability. Before as well as after, he had some nine men under him, all of whom
he had trained when they were hired and whom he directed in their work; he assigned
them to the various machines on the basis of his independent judgment of their
abilities on various machines, and when machines were down assigned them to other
work. Before August 1 he effectively recommended discipline of his employees and
told at least one employee to go to work when the whistle blew. He reported absentees
to the general foreman Before, Benschoter excused an employee from work during
a shift, in an emergency, and made out a gate pass for her. The finishing department,
where Benschoter worked, on the day shift when Benschoter worked, was under a
general foreman, who had some 30 to 40 employees under him working in an area
estimated to be half the size of a football field. Over this vast area and this large
number of employees prior to August 1 there was only the general foreman and one
other foreman, Haverson, having supervisory authority, unless Benschoter also had
that authority. Upon this testimony I conclude that at all times of concern herein
prior to August 1, Benschoter had authority, in the interest of the Respondents, to
direct and assign the employees and effectively to recommend their discharge, transfer,
and discipline ; and that in the exercise of this authority he used his own independent
judgment. It follows that Benschoter was a supervisor under the Act prior to
August 1, and that Respondents are responsible for the threats made by him. In any
case Respondents held him out as a supervisor and employees understood that he had
supervisory authority. By Benschoter's threats, as found above, the Respondents
further interfered with, restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7, Respondents thereby further violating Section 8(a) (1).
4. About a week before the election, according to the uncontradicted and credited
testimony of William Tiede, a credible witness, A. W. Hinz, then industrial relations
director for Respondent Harvey Aluminum with headquarters in California, was in
the plant in Michigan. With reference to the election Hinz told Tiede that "the
Harvey people wouldn't stand still for a union right now ... vote for me." Tiede
was an electrician who had been with the plant almost 3 years. Hinz told Tiede
that he had a good job, and that if the Union got in Tiede would always have a job
with the Company, he would have a job in another plant. Although there was evi-
dence Hinz had had some drinks that evening before this conversation, the evidence
did not support a conclusion that he was unaware of what he was saying or should
not be held responsible for his utterances. Under all the circumstances of this case
Hinz' statement that Tiede would have a job with the Company and in another plant
was an implied threat, consistent with other threats in this record, that the Adrian
plant would be closed down if the Union won the election. By this threat Respond-
ents further violated Section 8(a) (1) of the Act.
HARVEY ALUMINUM (INCORPORATED) 1363
D. The wage increase
Effective July 6 , Respondents raised the plant-hiring wage for males from $1.75
per hour to $2 per hour, and for females from $ 1.50 per hour to $1.60 per hour;
and adjusted the wages of present employees upwards so as to bring them up to the
new hiring rates. This meant an increase of from 10 cents an hour to 25 cents an
hour to some 47 employees out of the approximately 260 to 270 employees in the
plant. The General Counsel contended this wage change was made to induce
employees to refrain from becoming or remaining members of the Union or to affect
the results of the election.
The hearing in the representation case, Case No. 7-RC -5933 , was held October 23,
1963. The Board Decision and Direction of Election was issued June 30, 1964.
The General Counsel contended that the timing of the July 6 wage increase, just a
few days after the Board 's Decision was proof that the wage increase had an illegal
motivation . Respondents ' defense successfully rebutted this contention however.
For months before July 6 , Respondent , because of its low starting wages, had been
having difficulty obtaining and holding efficient personnel , and the decision to make
the wage adjustment effective July 6 was made at least by June 18, prior to the
Board's Decision of June 30 . A Harvey Aluminum "Adrian Sales Activity Report"
week ending May 15 , 1964, reported that:
We are still having the problem of building up press crews to take care of the
increase in workload . We are experiencing difficulty in hiring qualified people,
and as a result , it is going to be hard to build up our volume of business in the
plant ....
On May 26 , 1964, the personnel manager of Respondent Michigan Contractors at
the Adrian plant wrote an interoffice memorandum , subject "new hiring rate"
addressed to Harvey Aluminum , Torrence ( California ) and reading as follows:
Confirming previous communications with representatives of Harvey Alumi-
num over an extended period, it has become increasingly difficult to hire and
retain efficient personnel and this situation is just approaching a crisis. The
overriding reason is that our hiring wage of $1.75 per hour is very substantially
below those of other companies in Adrian and the surrounding area. Conse-
quently applicants are very scarce , and personnel are leaving to take jobs as
new hires in other plants at higher rates than they are receiving here. The lack
of competent personnel is causing progressive extension of delivery dates which,
in turn , results in loss of sales.
In order to put. Michigan Contractors more nearly in a competitive position
with other companies in the area , due to the existing tight labor market in
Lenawee County, we again submit a proposed new hiring wage of $2.00 an
hour (with shift differential ) for male and $ 1.60 an hour (with shift differen-
tial) for female. Again we request its approval by Harvey Aluminum for
reimbursement under our contract terms.
Other testimony , some of it disinterested testimony , corroborated the statements
in this memorandum that Respondents' hiring rates were substantially below those
of other companies in the area and that the labor market was tight.
On June 18, the assistant treasurer of Harvey Aluminum wrote an interdepart-
mental memorandum to the chief accountant for MCI saying that Harvey Aluminum
will approve the requested changes in the wage structure and that:
It is our understanding that Michigan Contractors intends to put these new rates
into effect commencing Monday, July 6, since this is the first Monday after a
full holiday ....
Thus this decision to make the wage adjustment and to make it effective July 6 was
made at least by June 18, prior to the Board 's Decision of June 30.
In November 1963, after the hearing in the RC case, MCI first requested of
Harvey Aluminum approval of an upward wage adjustment , and approval was denied
by Harvey. There was no proof in the record that Harvey then denied approval
because it assumed the Board Decision would not be forthcoming ; and there was no
proof that in June Harvey had any knowledge that the Board Decision was about
to issue.
217-919-66-vol. 156-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find on the above evidence and considerations and upon all the evidence in the
record on this subject, that Respondents were motivated, in granting and approving
the wage adjustments, by the demands of business competition. The fact that after
July 6, on July 16, the Acting Regional Director advised the parties that the election
would be held July 29, did not place upon Respondents any obligation to revoke this
decision or to withdraw the pay raise.
When the wage adjustment became effective July 6, Respondents made no
announcements or explanations to employees concerning it. One evening in the
plant Industrial Relations Director Hinz told an employee that employees would be
getting an increase. The General Counsel contended that Hinz did this to induce
employees to refrain from supporting the Union. As Hinz made no reference to
the election or the Union, as this must have occurred prior to July 16 when the date
of the election was set, and as the wage adjustment was made for business reasons,
the evidence does not support the conclusion that Hinz's informing employees of
the raise was done to affect the results of the election or to induce employees not to
support the Union. If Respondents had any such intention they had a good oppor-
tunity to execute this intention in a big way, but they did not choose to do so.
E. The no-distribution rule
The complaint alleged that Respondents further violated Section 8(a)(1) of the
Act by promulgating and maintaining a rule which prohibited, upon pain of disci-
pline and possible discharge, "distributing written or printed literature." This was
included on page 5 of some 17 pages of papers, stapled together, which were handed
to all new hires at all times material herein after early 1964. I refer to this as the
broad rule. This broad rule was 1 of 32 "rules of conduct" given new employees.
The other papers included a statement of welcome, general information about secu-
rity, bulletin boards, parking, cafeteria, badges, attendants, leaves of absence, etc.,
first aid procedures, safety rules, fire regulations, and such "employment policies"
as wage policy, the workday and pay week, overtime pay, timecards, group insur-
ance, holidays, and so forth.
Concurrently with the passing out of these papers to new employees, and anti-
dating it, Respondents maintained on bulletin boards and the cafeteria wall a notice
reading as follows:
Rules of conduct are necessary in any business to protect the welfare of the
entire group. Because of questions that have been asked, we are restating a
company rule which will be enforced strictly and impartially. Violation of the
rule is ground for disciplinary action, including discharge. The rule is,
There shall be no distribution or posting of written or printed literature,
or solicitation for any purpose, during working time of either the employee
making the distribution , posting or solicitations , or the employee receiving
literature or being solicited.
This notice was posted at all times since it was first posted in August 1963. I refer
to this posted rule as the narrow rule. Certainly, it was much more prominently
displayed to employees than the broad rule which was buried in a mass of papers and
rules. This narrow rule was posted pursuant to several requests: By a church to
sell tickets to a church dinner; by the United Fund to solicit the employees; by a
man who wished to pass out cards announcing his television repair shop at his home.
It is seen that the broad rule was not limited to working hours or to working areas
of the plant; and for this reason the General Counsel contended that it violated
Section 8(a)(1) even though he did not contend and there was no showing that,
the rule was ever enforced against the union campaign.
During the union campaign there were some "vote no" and "vote yes" posters at
various places in the plant. Some employees wore union buttons in the plant, pre-
sumably while working. For several months before the election at least, one
employee, Tiede, passed out union authorization cards on his own time in the plant.
Tiede, an electrician, passed them out "pretty much all over the shop," usually on
his own lunchtime.
Upon the above evidence I conclude that the broad rule was modified by the nar-
row rule and by practice in the plant. The narrow rule narrowed the distribution
prohibition to the working time of the distributor and the distributee, thereby
impliedly permitting distribution in the plant during nonworking time. As Tiede
passed out union cards all over the plant during his off hours, and possibly some
during working time, for months (which he scarcely could have done without man-
agement being aware of it ), and was not prevented from doing so by the antiunion
HARVEY ALUMINUM (INCORPORATED) 1365
management, both employees and management must have understood that it was
the broad rule rather than the narrow one which prevailed. Further, the presence
in the plant of election posters and union buttons, without penalty to any employee
tended to show, as MCI's personnel manager credibly testified, that the rule was not
enforced against union literature during the campaign.
As the narrow rule was not a violation of Section 8(a)(1); as it originated to
control private distributing and soliciting and not in an antiunion context; as it was
not used against the employees or the Union in the preelection campaign; as it nar-
rowed the broad rule and did not bar distributions on nonworking time or non-
working areas in the plant; and as it was looked to by employees and management
as the governing rule rather than the broad one, I find that the mere inclusion of
the broad rule among the list of rules did not violate the Act. See Aerodex, Inc.,
149 NLRB 192; Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621; Pharma-
seal Laboratories, Inc., 152 NLRB 1212.
Procedural Matters
Although the complaint, together with information volunteered by the General
Counsel pursuant to Respondent's request for a bill of particulars, showed that this
was a simple 8 (a) (1) case with uncomplicated issues, from the beginning Respond-
ents have used this case as a vehicle to try to change the Board's customary, time-
honored, court-approved, way of adjudicating unfair labor practice cases under
Section 10(b) of the Act, and under its rules and regulations. Given an opportunity,
Respondents did not state that they have ever tried to persuade the Board to change
its rule prohibing Board employees from disclosing the contents of Board records
and files (Section 102.118, Board's Rules and Regulations, Series 8, as amended)
or have ever tried to persuade Congress that this rule should be amended. Yet they
spent a great deal of hearing time trying to prepare a record on which to change the
rule by judicial legislation. This tended to disrupt and disorganize the hearing.
After complaint and prior to hearing, Respondent MCI applied to take the depo-
sitions of four Regional Office employees of the Board, including the Acting Regional
Director and the attorney, Thomas Wilks, assigned to present the case to the Trial
Examiner. It also addressed interrogatories to the Acting Regional Director "requir-
ing" the Board to answer under oath pursuant to Rule 33 of the Federal Rules of
Civil Procedure These applications for depositions and interrogatories were denied
by Trial Examiner Charles W. Schneider for the reason that:
1. Discovery provisions of the Federal Rules of Civil Procedure are not appli-
cable to Board Complaint Proceedings. Del E. Webb Construction Co., 95
NLRB 377 (1951) ; W. L. Rives Co., 125 NLRB 772 (1959).
2. Information in the nature of pre-trial discovery is not authorized under
the Act. Chambers Manufacturing Corp., 124 NLRB 721 (1959); N.L.R.B. v.
Globe Wireless Ltd., 193 F. 2d 748 (1951, C.A. 9).
On January 14, 1965, prior to hearing, Respondent MCI caused subpoenas duces
tecum to be served upon the same four Regional Office employees, calling upon them
to produce many documents, records, transcriptions, notes, and written communica-
tions from the files in their possession or control. Respondent MCI requested the
General Counsel for his written consent under Section 102.118 of the Board's Rules,
that these four Regional employees appear and testify and "bring all documents,
books and records in their possession or under their control relating to the alleged
misconduct of said Respondent . . . General Counsel Ordman rejected this
request by telegram and by letter giving as the reason that:
Section 10(b) of the National Labor Relations Act, as amended, provides that
any complaint proceeding shall, so far as practicable, be conducted in accord-
ance with the Federal Rules of Civil Procedure. The Board, with court
approval, has held that this provision of Section 10(b) clearly relates to the
introduction of evidence before the Board and does not extend to materials
which are contained in and a part of the Board's investigative file.' Under the
circumstances, and after careful consideration, your request is accordingly
denied.
1 See Vapor Blast Manufacturing Company, 280 F. 2d 205 (C.A. 7), cert. denied,
364 U.S. 910; W. L. Rives Company, 125 NLRB 772, enf. denied on other grounds,
283 F. 2d 511 (C.A. 5) ; Chambers Manufacturing Company, 124 NLRB 721, enf. 279
F. 2d 715 (C.A. 5) ; Del B. Webb Construction Company, 95 NLRB 377.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This denial is without prejudice to your right under Section 102 . 118 of the
Board's Rules and Regulations to examine the statements of witnesses called
by the General Counsel to testify at any hearing in this case.
Before me at the hearing was the General Counsel 's motion to revoke the subpoenas
duces tecum. The subpenas were revoked for the reason given above by General
Counsel Ordman in refusing his written consent. In addition , there was no showing
of "need" or "good cause" for the production of the documents or the testimony of
the four Board agents. In seeking Ordman's consent for these Board agents to
testify Respondent stated as his necessity for their appearance:
The testimony of these persons and the evidence to be furnished by them is
necessary to the Respondent in the preparation of its defense of the aforesaid
cases. The Board's investigation made in such case was substantially contem-
poraneous of the happenings of the events in issue and this Respondent has
little or no information regarding said alleged events. The only source of such
information is the testimony of the Board's agents and the documents in the
possession of these persons.
In urging the denial of the motion to revoke the subpenas at the hearing, Respondent
made an offer of proof that if allowed to testify the Board agents would testify, in
substance, that their investigation revealed that Respondents had in no way violated
the Act. As the subpenaed Acting Regional Director had issued the complaint, and
the subpenaed Thomas Wilks prosecuted it, the proffered evidence that the investiga-
tion revealed Respondents had not violated the Act was a "mere shot in the dark."
See N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725 (C.A. 2).
None of these stated reasons established need or good cause for the testimony of
the Board agents or the documents from the Board's files. All of the information
concerning the wage raise was in Respondents' control; the names of all Respondents'
agents who had allegedly made unlawful threats and promises were in the complaint;
and Respondents itself or themselves had offered and were admittedly responsible
for the written and recorded threats. The fact that Respondents failed to make an
adequate investigation prior to the hearing, it they did, did not establish cause or need
for the subpenaed information. See Goldman v. U.S 316 U S. 129, 132; N.L R.B. v.
Quest-Shon Mark Brassiere Co., Inc, 185 F. 285, 289-290 (C.A. 2); International
Broadcasting Corporation (KWKH), 102 NLRB 1434, 1435-1436.
For the first day-and-a-half of the 31/2-day hearing Respondents sought, at great
cost in hearing time and in complete defiance of the "orderly working of our system
of legal procedure" to engage in a "fishing expedition" by trying to invade the Board
files under the custody of the General Counsel and by claiming an absolute right to
do so. As the Supieme Court has said in Hickman, administrator v. Taylor, et al.,
329 U.S. 495, at 512:
... the general policy against invading the privacy of an attorney's course of
preparation is so well recognized and so essential to an orderly working of our
system of legal procedure that a burden rests on the one who would invade that
privacy to establish adequate reasons to justify production through a subpoena
or court order.
Here Respondents were given ample opportunity to establish "adequate reasons," and
they failed to do so.
At the beginning of the second day of the hearing, and once or twice thereafter
while the General Counsel was calling witnesses during General Counsel 's case-in-
chief, Respondents sought to call Counsel for the General Counsel, Thomas Wilks,
to the witness stand to question him about documents in the Board files relating to
testimony from people who would be witnesses as well as those who had been wit-
nesses. Respondents requested affidavits of prospective witnesses in advance of their
appearances.
Although the complaint and volunteered information pursuant to Respondents'
request for a bill of particulars had given Respondents sufficient information to
apprise Respondents of the issues involved and to enabel them to prepare their
defense. Respondent betrayed his lack of pretrial preparations and his misconcep-
tion of his rights by arguing that Board agents have authority to talk to witnesses
prior to hearing but that "conversely the Respondents do not have the power to
investigate these things and have not done so . . . . Respondent's counsel has abso-
lutely no idea of what the Board is claiming in these proceedings ......
Although the complaint had issued a month before the hearing alleging that
A. W. Hinz, Respondent Harvey's industrial relations director, had allegedly made
threats against the employees and unlawfully promised benefits to them, on certain
HARVEY ALUMINUM (INCORPORATED) 1367
dates, Respondent , in arguing for a continuance at the conclusion of the General
Counsel's case, stated, "Mr. Hinz is one of the people who has most prominently
been mentioned here. Mr. Hinz . . . has no longer any connection with these
Respondents as I understand it . . . . I am informed, I believe that he is in Los
Angeles. It is necessary that I have someone contact him and discuss this matter
with him to see if we couldn't possibly have him here as a witness which is going
to take some time." Respondents did not explain why they had failed to have Hinz
under subpena and at the hearing, since they knew from the pleadings that he was
prominently involved in the case.
The first day and a half of the hearing, at great cost in hearing time, Respondents
repeatedly demanded counsel for the General Counsel's work papers and notes made
in preparation for the hearing and used during the hearing. They sought the latter
by contending, contrary to the proof, that they were substantially verbatim tran-
scriptions of witnesses' oral statements. Respondents were permitted liberal cross-
examination far beyond the scope of direct examination, and when they clearly did
not know what answers they would get, in their efforts to show, which they failed
to do, that witnesses had adopted or approved Wilks' work papers or trial briefs.
They proved also, in this quest, that Wilks had conducted himself properly in his
pretrial contracts with the witnesses and that there was no "Capitol Fish" 7 issue
in this case.
The second morning of the hearing I permitted counsel to see one of Wilks' trial
briefs, that for the witness Cleghorn. This led to long cross-examination out of all
proportion to the direct, and it was nothing but a time consuming probing for
irrelevancies. Respondents cross-examined Cleghorn from her affidavit, which is
in evidence. The questions phrased from Wilks' trial brief showed that the trial
brief was obviously based upon the affidavit. It was the affidavit, if anything, not
the trial brief, which was the substantially verbatim transcription of the witness' oral
statement. The trial brief was already a typewritten document when Wilks was
talking with Cleghorn a few days before the hearing, and Wilks was writing a few
words on it by hand; he was not typing. It was obviously not a verbatim transcrip-
tion of that interview, and the fact that Wilks wrote a few words on it as the witness
was talking to him did not convert it from an attorney's work paper in preparation
for the trial to a verbatim transcription. Nor did the witness sign or otherwise adopt
the trial brief. Therefore I rejected it.
Thereafter, in the interest of saving hearing time and government expense, I endeav-
ored to hold cross-examination to the scope of direct and to stay within the rule con-
cerning the nondisclosure of Board documents, Section 102.118 of the Board's Rules
and Regulations, Series 8, as amended As it turned out the General Counsel called
two more witnesses, Barnwell and Tiede. Other than Barnwell's affidavit there was
no proof of the existence of any other documents or notes relating to him, no proof
he adopted any such, and no proof of any substantially verbatim transcription, despite
many questions, completely irrelevant, as to conversations Barnwell had had with
Wilks. Tiede testified that he gave Wilks and the General Counsel only one affidavit.
Respondent cross-examined Tiede at length and had full use of the affidavit, which is
in evidence. In order to shorten the hearing I excluded questions (of which there
would have been very many) concerning a later conversation Tiede had with Wilks
after the one in which he had given him his affidavit. The entire record up to that
point showed that nothing which occurred in the later conversation with Wilks in any
way could possibly have related to the issues raised by the pleadings; it would have
been completely irrelevant Respondent had ample opportunity to cross-examine
Tiede, as well as all other witnesses, for credibility purposes and on the merits. All
affidavits had been handed over on request for cross-examination. The fact that I
was over lenient in permitting irrelevant cross-examination for 11/z days did not give
Respondents a vested right to continue it.
At the end of his case-m-chief Respondent MCI attempted once more, after several
earlier unsuccessful attempts, to call Counsel for the General Counsel, Thomas Wilks,
to the witness stand, and to make an offer of proof of what Wilks would testify. Ear-
lier, as has been seen above, Respondent had offered to prove that Wilks would testify
that his investigation revealed that Respondents had in no way violated the Act. As
Wilks had spent 31/2 days before me putting the results of his investigation into the
record, as Wilks' point of view was adverse to MCI's, as MCI did not claim it had
ever talked to Wilks and did not lay any other foundation for its alleged knowledge
of how Wilks would testify, and in order to conserve hearing time, I did not permit
Respondent to call Wilks as a witness and I did not permit Respondent to make the
7 Capitol Fish Company, 294 F. 2d 868 (C.A. 5).
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer of proof. As to the issues before me Wilks' testimony would have been hearsay
and irrelevant. If this was an erroneous ruling, as claimed by Respondent, it was
nonprejudicial error, for it related to irrelevant hearsay testimony.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondents 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.
V. THE REMEDY
Having found that Respondents have engaged in the unfair labor practices set forth
above, I recommend that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the Act.
The violations of the Act committed by Respondents are persuasively related to
other unfair labor practices proscribed by the Act and the danger of their commission
in the future is to be anticipated from the Respondents' conduct in the past. The pre-
ventive purposes of the Act will be thwarted unless the Order is coextensive with the
threat. In order, therefore, to make more effective the interdependent guarantees of
Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize
industrial strife which burdens and obstructs commerce and thus effectuate the poli-
cies of the Act, I shall recommend that Respondents be ordered to cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. For the purposes of the Act, Respondents are joint employers of the employees
at the Adrian plant. Respondents are engaged in commerce within the meaning of
the Act.
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees that a union victory at the polls would cost them
their jobs; by threatening employees that Respondents might close or move the plant
if the employees chose the Union at the polls; by threatening to close the plant if there
was a strike; by threatening that if the Union won the election employee job condi-
tions would be changed for the worse; by threatening that if the Union won the elec-
tion employees would be laid off when the machines broke down; by suggesting
the futility of the employees' support of the Union; by threatening that orders might
not come out to the presses so frequently if the Union won the election; by telling
a former employee that she would never get back on the day shift because she was
for the Union; and by interrogating an employee as to what he thought about the
Union and the election; Respondents interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby vio-
lated Section 8 (a) (1) .
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, and upon
the entire record in the case considered as a whole, I recommend that Respondents,
Harvey Aluminum (Incorporated) and Michigan Contractors, Incorporated, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that a union victory at the polls would cost them their
jobs.
(b) Threatening employees that Respondents might close or move the plant if
the employees chose the Union at the polls.
(c) Threatening employees that Respondents would close the plant if there was
a strike.
(d) Threatening that if the Union won the election, employee job conditions would
be changed for the worse.
HARVEY ALUMINUM (INCORPORATED) 1369
(e) Threatening that if the Union won the election , employees would be laid off
when the machines broke down.
( f) Suggesting the futility of the employees ' support of the Union.
(g) Threatening that orders might not come out to the presses so frequently if
the Union won the election.
(h) Informing any employee that he would never get back on the day shift because
he was for the Union.
(i) Interrogating any employee as to what he thought about the Union and the
election.
(j) In any other manner interfering with , restraining , or coercing their employees
in the exercise of their rights to self-organization , to form labor organizations , to join
or assist International Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage in
concerted activities for the purposes of collective bargaining or other mutual aid or
protection ; or to refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment , as authorized in Section 8(a)(3), as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at their plant in Adrian , Michigan , copies of the attached notice marked
"Appendix " S Copies of said notice , to be furnished by the Regional Director for
Region 7 (Detroit, Michigan ), shall, after being duly signed by an authorized repre-
sentative of each of the Respondents , be posted immediately upon receipt thereof,
and be maintained by them for a period of 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to employees are customarily
posted at the Adrian plant . Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered , defaced, or covered by any other material.
(b) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Trial Examiner 's Decision , what steps the Respondents have taken
to comply herewith .9
s 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 . In the further event that the Board's Order be 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."
v If this Recommended Order be adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 7, in writing, within 10 days from the
date of this Order, what steps the Respondents have 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 threaten employees that an election victory by International
Union, United Automobile, Aerospace and Agricultural Workers of America
(UAW), AFL-CIO, will cost them their jobs.
WE WILL NOT threaten employees that Respondents might close or move away
from the Adrian plant if the employees choose the Union at the polls.
WE WILL NOT threaten employees that Respondents will close the plant if
there is a strike.
WE WILL NOT threaten that if the Union wins an election, employee job con-
ditions will be changed for the worse.
WE WILL NOT threaten that if the Union wins an election, employees will be
laid off when the machines break down.
WE WILL NOT suggest the futility of the employees' support of the Union.
WE WILL NOT threaten that orders might not come out to the presses so fre-
quently if the Union wins an election.
WE WILL NOT tell any employee that he will never get back on the day shift
because he is for the Union.
WE WILL NOT interrogate employees as to what they think about the Union
and the election.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights to self-organization, to form labor orga-
nizations, to join or assist International Union, United Automobile, Aerospace
and Agricultural Workers of America (UAW), AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of International Union, United Automobile, Aerospace and
Agricultural Workers of America (UAW), AFL-CIO, or any other labor organiza-
tion, except to the extent that this right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
MICHIGAN CONTRACTORS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HARVEY ALUMINUM (INCORPORATED),
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 pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3244.
William Eaborn , d/b/a Eaborn Trucking Service and General
Teamsters, Chauffeurs and Helpers Local 249, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case No. 6-CA-3199. February 10,
1966
DECISION AND ORDER
On August 5,1965, Trial Examiner Eugene F. Frey issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, 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, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and the
156 NLRB No. 121.