Hesston Corporation, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1969

175 N.L.R.B. 96 (N.L.R.B. 1969)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hesston Corporation , Inc. and United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO and Hesston Manufacturing Workers
Association , Party to the Contract. Case
17-CA-3293
March 26, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 5, 1968, Trial Examiner John G.
Gregg 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 Examiner's Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint,
and recommended that such allegations be
dismissed. Thereafter, the Respondent and the
Association filed exceptions to the Trial Examiner's
Decision and supporting briefs.
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.
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 the
supporting briefs, and the entire record in the case,
and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations only to the
extent consistent with this Decision and Order
The Trial Examiner found Menno Regier to be a
supervisor within the meaning of Section 2(11) of
the Act, predicating his result on the ground that
there was "ample credible testimony" to convince
him that Regier in the performance of his duties as
a crew chief exercised supervisory authority. Regier
did testify that he had been a crew chief for 5 years.
At the time of the hearing there were 6 employees in
his crew, while in the past there had been as many
as 15. However, the record shows that Regier works
in the machine shop under a foreman, that he has
no authority to hire or discharge employees or
effectively recommend such action, that he does not
grant or select employees for overtime nor grant
time off, and that he cannot effectively recommend
pay raises. Regier does assign employees in his crew
to their work. However, such assignments are based
on the foreman's work orders. Regier has no
authority to change these assignments and does not
do so unless instructed by the foreman. Regier will
help a new employee set up a machine and show
him how to operate it. Finally, Regier receives the
same vacations, holiday, sick leave, insurance,
pension, and other benefits as his crew members,
does not attend supervisory meetings nor wear the
typical supervisor's white jacket, and cannot use the
parking lot, dining rooms, or other facilities
reserved for supervisors. Thus the evidence shows
that Regier is neither treated as a supervisor by the
Respondent nor enjoys the supervisors' privileges,
that he does not exercise responsible independent
judgment in assigning work or transferring
employees from machine to machine and that he
does not exercise such judgment with respect to the
other activities of his crew. Consequently, as he
further has no authority to hire, discharge, or
discipline employees or effectively to recommend
such action, we find, contrary to the Trial Examiner
that Regier is not a supervisor.
The Trial Examiner further found that the
Respondent violated Section 8(a)(2) and (1) of the
Act by permitting Regier to serve as president of the
Association and being active in representing the
employees in bargaining and in the day-to-day
administering of the contract. In view of our finding
that Menno Regier is not a supervisor within the
meaning of the Act, we do not impute liability to
the Respondent for Regier's serving as president of
the Association. Accordingly, we do not find that
the Respondent violated Section 8(a)(2) and (1) of
the Act.
The Trial Examiner also found that the
Respondent violated Section 8(a)(2) and (1) of the
Act by interfering in the affairs of the Association
by rendering unlawful assistance and support. He
reasoned that the record revealed the conduct by the
Association of internal union business on company
time, using company facilities with pay, conducting
steward classes on company time and property, and
allowing interruptions of production to allow the
election of stewards on company time with pay, all
while the Respondent recognizes and bargains
collectively with the Association through its board
of directors of which a supervisor and agent (Regier)
is a member. He concluded that these activities
considered in their totality resulted in unlawful
assistance and support by the Respondent. We do
not agree. The various concessions and the
furnishing of facilities as related herein, do not in
the circumstances of this case warrant a finding of
unlawful assistance and support. Our conclusion in
this regard is reinforced by our conclusion that
Menno Regier is not a supervisor, for he was the
principal participant in the Association's dealings
with the Respondent. Accordingly, we find that the
Respondent did not violate Section 8(a)(2) and (1)
of the Act, and we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
175 NLRB No. 15
HESSTON CORP., INC.
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner Pursuant to a
complaint and notice of hearing dated September 29,
1967, issued by the Regional Director of the National
Labor Relations Board for Region 17 at Kansas City,
Missouri, alleging violations by the Respondent of
Sections 8(a)(1) and (2) of the National Labor Relations
Act as amended, this case was tried at Newton, Kansas,
on December 5, 6, 7 and 8, 1967. At the trial all parties
were represented. Briefs were filed by all parties and have
been carefully considered. Upon the entire record in this
case, and my observation of the demeanor of the
witnesses, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the Respondent admits that
the Respondent is a Kansas corporation with principal
office and place of business at Hesston, Kansas, where it
is engaged in the manufacture of farm machinery. In the
course and conduct of its business, the Respondent
annually purchases goods and products valued in excess of
$50,000 directly from customers located outside the State
of Kansas and annually sells goods and products valued in
excess of $50,000 directly to customers located outside the
State of Kansas. I find that the Respondent is and at all
times material herein has been an employer engaged in
commerce within the meaning of Sections 2(6) and (7) of
the Act
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, it is admitted , and I find that
the United Rubber , Cork, Linoleum and Plastic Workers
of America , AFL-CIO, is and at all times material herein
has been a labor organization within the meaning of
Section 2(5) of the Act.
The complaint alleges, it is admitted and I find that the
Hesston Manufacturing Workers Association is and at all
times material herein has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that by certain
unlawful threats, interrogation, and unlawful aid and
assistance to the Association , the Respondent has violated
Section 8(a)(1) and (2) of the Act.
A. The Alleged Threats and Interrogation
The complaint alleges that on or about the first part of
June 1967, the Respondent by and through its supervisor,
Clem White, at the plant, threatened employees with loss
of employment if they joined the Union It was stipulated
at the trial that Clem White was a supervisor of the
Respondent.
Eldon Knak, an employee of the Respondent, testified
that Clem White was his supervisor, that after he and
several other employees in layoff status were recalled by
97
the Respondent on May 31, 1967, White called several of
them to his office for the purpose of explaining how the
layoff would affect their seniority, vacation, and other
benefits
Q. Would you please relate the conversation that
took place at that time?
A He explained to us our layoff status and how this
layoff affected our seniority and the like. In the course
of the conversation, something was brought up. . I
don't know who brought it up . . about if we had a
stronger union or an affiliated union some of these
layoffs would not have occurred since they did not
follow seniority. At the time Mr. White made the
statement he thought the union we had was adequate
for our company and that he felt that if any man
entertained the idea, the intent, or the interest of being
affiliated with a big union, if he had any say-so or any
authority, he would like to see him fired.
Clifford Nagley, an employee of the Respondent,
testified that he was present at the foregoing session
during which White discussed the effect of the layoff on
seniority and vacations, Nagley stated that .
somebody mentioned some union might have avoided that
layoff, that is, national union or something, and I think
Mr. White said we didn't have a national union, that is,
we had a union and that was the one we had to go by."
Nagley stated that he did not recall White stating that
anyone who joined a big union ought to be fired.
While Knak specifically recalled the words used by
White he could not recall who started the discussion
concerning the Union nor could he recall more than two
of the four individuals who also attended the meeting.
Based on my observation of Knak's demeanor as he
testified and the lack of certainty in his responses on
cross-examination, I do not credit his verbatim version of
White's statement. However, from the testimony of both
Knak and Nagley I am convinced that the matter was
discussed, and accepting Nagley's account, which I credit,
I find that through White's statement, that the Union
which the employees had was "the one we had to go by,"
the Respondent did express a preference for the
Association. However, as I do not find on this record
sufficient testimony to convince me that White threatened
employees with loss of employment as alleged in the
complaint I do not find his statement of preference for the
Association to be violative of Sections 8(a)(2) and (1) of
the Act. In so finding, I would distinguish Stainless Steel
Products, Incorporated, 157 NLRB at 257, where the
statement of preference was uttered in a context of
threatened economic loss in the event the employees voted
for the Union, together with other acts of unlawful
preference I would also distinguish Eldo-Craft Boat Co.,
Inc , 166 NLRB No. 52, wherein the supervisors'
statement encompassed a threat of reprisal if the
employees persisted in their union activities Accordingly,
I shall recommend dismissal of that portion of the
complaint alleging a threat by Supervisor White in
violation of Sections 8(a)(2) and (1) of the Act.
B. The Alleged Unlawful Interrogation by Churchill
At the trial the General Counsel was permitted to
amend the complaint, to allege additionally as follows- On
or about December 1, 1967, Respondent, by and through
its attorney and agent, W. Stanley Churchill, did
interrogate employee Eldon Knak concerning his union
activities and sympathies and his testimony and
statements to agents of the Board on matters pertaining to
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these proceedings.
Eldon Knak, employed by the Respondent as a broach
operator, testified concerning the Churchill incident that
he was told to report to the office immediately after his
workshift on a Friday morning When he arrived at the
office, Mr Churchill was there with Mr. Galle. Galle
introduced Churchill and, according to Knak, Galle stated
that as he understood that Knak was planning to testify or
had been subpenaed by the NLRB, would Knak mind
talking to the Company's attorney about it Galle then
excused himself, and directed Knak and Churchill into an
adjoining office, where according to Knak, Churchill
asked Knak what his reasons were for wanting to testify,
or why he was subpenaed to testify According to Knak,
Churchill asked if Knak would want to tell him, and Knak
told him he thought he could as he felt he had nothing to
hide. Churchill allegedly asked Knak how his relations
were with the Company, Knak then relating some
discouragement with the Company over the manner in
which he had been treated, essentially involving the fact
that he had had specific assurances when hired that the
work was not temporary, had quit his job on this
assurance, then soon received a notice of layoff from the
Respondent. Knak stated that he had also purchased
expensive tools expecting some permanency of
employment Knak testified further that Churchill asked
him if he had made a statement to the Board, and
whether Knak would want to tell him the nature of what
he had told the Board. According to Knak, Knak then
recounted to Churchill the story he had given the Board
concerning the conversation in the office with White, and
Knak's feeling about the layoff Knak testified that at the
opening of the discussion Churchill made it clear that it
was immaterial whether Knak favored the Union or not,
that there would be no reprisals whatsoever taken against
Knak as a result of talking or refusing to talk with
Churchill, and that it was entirely up to Knak whether he
talked or not.
The statement which Knak signed for Churchill at the
close of the interview included the following, "At the
beginning of this interview at which this affidavit was
taken the man taking this affidavit introduced himself to
me as Stan Churchill and he explained to me that he was
the attorney for the Hesston Corporation. He also
explained that the purpose of his talking with me was to
investigate, on behalf of the Hesston Corp matters which
are now pending before the National Labor Relations
Board. He said that it was immaterial whether I was in
favor of or against any union , or whether any other
employees were in favor of or against any union. He also
stated that there would be no reprisals whatsoever taken
against me or any other employee by my employer as a
result of my talking, or refusing to talk with him or
because of anything that was said. He also said that it was
up to me whether I talked with him or not and that I
could terminate this interview at any time I desired. I
chose to talk with Mr. Churchill of my free choice and I
voluntarily told him the following:. . .
There is no indication in the affidavit of any
conversation between Churchill and Knak relative to
Knak's statement to the Board, but essentially a
recounting of Knak's layoff and discussions with Knak's
foreman White. Included as part of the affidavit is a
statement by Knak that he "lost faith i n the union and the
company." Also included was information regarding
discussions of the union organizing activities and White's
statements relative thereto.
W. Stanley Churchill , Esq., of Wichita , Kansas,
testified that he is associated with the law firm of Martin
and Wooley , Wichita, Kansas . Churchill denied asking
Mr Knak whether or not he had made a statement to the
National Labor Relations Board , and denied asking him if
at any time he had been subpenaed to testify i n this case.
He also denied asking Mr. Knak what he had told the
National Labor Relations Board Churchill stated that he
was familiar with the law of labor - management relations.
I credit the straightforward version given by Churchill in
his testimony and do not credit the version of Knak who
hedged and displayed lapses in memory in his testimony.
The Board has long held that the Act does not prohibit,
in the absolute , the questioning of an employee relative to
his union attitudes and activities , depending on the
circumstances involved . N L R B. v. Zimnox Coal Co ,
336 F.2d 516 (C A 6); N L.R B v Syracuse Color Press,
209 F .2d 596 (C.A. 2). As stated by the Board in
Johnnie's Poultry Co , 146 NLRB 770; "In allowing the
employer the privilege of ascertaining the necessary facts
from employees i n these given circumstances , the Board
and courts have established specific safeguards designed to
minimize the coercive impact of such employer
interrogation Thus the employer must communicate to
the employee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his
participation on a voluntary basis; the questioning must
take place in a context free from employer hostility to
union organization and must not be itself coercive in
nature, and the questions must not exceed the necessities
of the legitimate purpose by prying into other union
matters, eliciting information concerning an employee's
subjective state of mind or otherwise interfering with the
statutory rights of employees. When an employer
transgresses the boundanes of these safeguards , he loses
the benefit of the privilege "
I am convinced , by the testimony of record which I
have credited , and I find, that Churchill did not exceed or
transgress the boundaries laid down by the Board in
Johnnie's Poultry While an examination of the affidavit
would indicate that Knak discussed matters going to his
subjective state of mind and other union matters , I do not
find on this record that the information was elicited
through questioning by the attorney but am convinced
that it was volunteered naturally as a part of Knak's story
related by Knak • in response to proper questioning by the
attorney, which was well within the test of Johnnie's
Poultry, and which clearly communicated to the employee
the purpose of the questioning , and assurance that no
reprisal would take place The participation of Knak was
obtained on a voluntary basis, there is no indication on
this record that it was obtained in a context of employer
hostility to union organization nor that the questioning
was coercive in nature or that it exceeded the necessities
of the legitimate purpose . On the contrary , Churchill,
indicating an awareness of the requirements of law, made
every attempt to follow the guidelines laid down by the
Board. As I was impressed with his sincerity in testifying,
I credit his version and am convinced that he did not
interrogate the witness in a clearly unlawful manner but
that his questions bore probative value with respect to the
violation charged . Joy Silk Mills v. NL.R. B., 185 F.2d
732, 743 (C.A.D.C.). Accordingly , I find the interrogation
by Churchill , on this record,' to have been privileged
within the safeguards of Johnnie 's Poultry, and will
recommend the dismissal of that portion of the complaint
alleging the unlawful interrogation of Knak by Churchill.
HESSTON CORP., INC.
C The Alleged Unlawful Aid and Assistance to the
Association
The General Counsel alleges that since January 28,
1967, and continuing to date, the Respondent by its
supervisors, Menno Regier, Charles Butin, and Walter
Schmidt, has participated in the organization and has
managed the affairs of the Association, and that since on
or about January 28, 1967, the Respondent has furnished
facilities to the Association for the conduct of internal
Association affairs and, has compensated Association
officers and agents for the time spent in the conduct of
said affairs; and has recognized and bargained with the
Association. The General Counsel maintains that the
Respondent has donated meeting facilities to the
Association for regular meetings of the board of directors
for which the Board members are paid at their regular
rate; that the Company has provided the Association with
meeting facilities for the conduct of steward classes, that
management does not attend these meetings, that these
are internal union functions and that the stewards as well
as the members of the Association's board of directors are
paid their regular wage rate for the time spent attending
these classes. The facilities involved in these activities,
according to the General Counsel, are on company
premises and the meetings held during regular working
hours In addition, according to the General Counsel, the
Company allows and permits the Association to conduct
elections of Association stewards on company time; the
company stewards maintain their records in the
Respondent's foreman's office and on occasion the
Association utilizes the Company's foreman's office for
the conduct of internal union business without charge and
on company time for which time the Association board of
directors are compensated at their regular wage rate. The
General Counsel alleges that the Association is and has
been actively governed by its board of directors, three of
whom are crew chiefs, and that within the Respondent
Corporation's framework crew chiefs are supervisors
within the meaning of the Act; and that the Association
board of directors negotiates contracts, maintains internal
union discipline and handles grievances, in fact,
completely running the day-to-day operation of the
Association.
On the other hand, the Respondent contends that there
have been over a period of years some five contracts
which have been negotiated by the Respondent with the
Association at arms length and in good faith after many
lengthy meetings, the contracts themselves being fair and
equitable contracts under labor law as currently existing
According to the Respondent, during this time,
management and the Union have adopted a policy of
preventive grievance procedure, and have engaged
incessantly in an effort to keep labor peace in the
community, conducting biweekly meetings in an effort to
prevent small problems from becoming large problems
The Respondent indicates that it encouraged the Workers
Association to have their own meetings separately to work
out grievance problems, whatever they were, and then to
bring them forward to management, and, by so doing, the
grievance and arbitration structure of the Company was
enhanced, with most grievances settled in the early steps,
and no arbitrations necessary. As far as the election and
training of stewards are concerned the Respondent
indicated that the Company engaged in a pattern of
allowing the election of company stewards on company
time within the last several years, that this was a matter
which had been sought by the Workers Association and
99
the Company agreed to it as in the interest of both the
Association and the Respondent since the grievance
machinery could not operate without stewards The
Respondent denies that the crew chiefs involved in this
case were supervisors and states that the three crew chiefs
named in the complaint, Regier, Butin, and Schmidt, were
nonsupervisory
The Alleged Supervisory Status of Regier, Butin, and
Schmidt
The General Counsel offered testimony at the hearing
for the purpose of establishing the fact that crew chiefs as
a class possessed and exercised supervisory authority. Of
the three crew chiefs mentioned in the complaint only one,
Regier, testified at the hearing. The General Counsel's
contention was that crew chiefs as a generic class were
supervisors, and that having once established this as a
fact, it would follow then that crew chiefs Regier, Schmidt
and Butin must be supervisors. To establish the fact that
crew chiefs as a generic class were supervisors, the
General Counsel adduced testimony through several other
crew chiefs and several employees. Testimony was also
provided by Siemans, Director of Labor Relations for the
Respondent, who testified concerning the definition,
status, and duties of crew chiefs The General Counsel
also argued that if crew chiefs were not supervisors then
the Respondent's ratio of employees to supervisors is
inordinately disproportionate
There is no serious question on the record concerning
the fact that the Association affairs were managed by the
Board of Directors, nor that Regier, Butin and Schmidt
were members of the Board and also crew chiefs for the
Respondent at the times material herein The question is
whether the three named individuals, or any of them, are
supervisors within the meaning of the Act.
The collective-bargaining agreement between the
Respondent and the Association in effect from December
1966 to October 1967 contains the following pertinent
provisions:
CREW CHIEF DIFFERENTIAL PAY-Crew chiefs
shall be paid differential pay of fifteen cents (15 cents)
per hour more than their regular base rate or fifteen
cents (15 cents) per hour above the highest base rate of
any employee regularly under their direction whichever
is greater The rate of pay of the crew chief will not be
reduced as a result of transfer or termination of any
employee from his section. Crew chiefs may be assigned
any specialized function in the department in addition
to his regular work assignment except those normally
reserved for salaried supervisors such as disciplining,
hiring, and terminating employees
John Siemens, director of industrial relations for the
Respondent, testified that there are between 650 and 700
production and maintenance employees in the employ of
the Respondent, approximately 525 or 550 of the
employees being direct labor employees. Siemens testified
that the Respondent had 45 salaried supervisor employees
supervising the 650 to 700 employees. Included among the
salaried supervisors were the director of manufacturing,
five personnel who report to him, the general foreman,
and the foreman. The five individuals who report to the
director of manufacturing are department managers who
do not spend a large portion of their time out on the line
although the production manager himself spends a
considerable amount of his time in the plant but not
supervising particular employees. Also included as
supervisors are four general foreman, the foreman and
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant foreman, or shift foreman. Siemens testified that
the Respondent had 35 to 40 front line supervisors
With respect to crew chiefs, Siemens testified that,
depending on the department in which employed, crew
chiefs might or might not have a regular assigned manual
or machine job like other employees in the crew. Siemens
said that he knew that some of the crew chiefs in the
welding department are assigned regular welding jobs
Siemens testified that the Respondent employs
approximately 75 crew chiefs, that these crew chiefs all
have a classification that has been assigned to them and
they can be expected to perform the duties of that
classification. In addition to this they may be assigned
other duties. According to Siemens, crew chiefs are
responsible to assure that setups are accomplished
properly, help the employees make the setup, and help the
employee check out the first part to make sure that it is
correct Siemens testified that the sequence of work is
setup by the foreman, with the crew chief delivering it to
the men on the machine.
There was considerable testimony adduced at the
hearing by the General Counsel through witnesses who
were crew chiefs of the Respondent other than those
named in the complaint, and through employees who were
not crew chiefs through which the General Counsel sought
to establish as a fact his contention that all crew chiefs as
a generic class were supervisors under the Act.
James Gronau testified essentially that he was and had
been a crew chief in the shear shop on the third shift for
about 4 years, his crew varying in numbers from 9 or 10,
to 4. Gronau testified that on the third shift one foreman
supervises 4 departments comprising between 30 to 50
employees, that as crew chief he did not have a regular
manual job to perform or regular machine to run. He
stated that when the shift reports at midnight the second
shift foreman tells them of any "hot orders" which should
be run and tells them whether to run shears or saws. In
response to the question of who tells the men to change
machines, stop what they are doing and move on to
something else, Gronau stated "Well, if we get the job
done the foreman has told us to do at midnight, then from
there I'll take them and put them on another work
order." Gronau stated that he recommended employees to
the day shift foreman when the night shift was working
without a foreman, mentioning the manner in which
employees were performing their jobs, but not for raises
Gronau's testimony indicated that there was a 3-month
period during which time the third shift was without a
foreman:
Q. During that period of time who told the men what
to do, who gave them their instructions?
A. I did, other than if there were hot orders or
something like this, the second shift foreman would tell
us to run the saws and then I'd get them lined out and
we'd run the saws, or if he said to run the shears then I
would line them out and we'd run the shears.
Gronau's testimony in essence indicated that while, he
was a crew chief on the third shift he executed some of
the functions of a supervisor, but the exercise of this
authority appeared limited to the time during which the
third shift had been left without a foreman. However,
Gronau went on to testify that as to the 3 years prior to
August 1966, when Gronau was crew chief on the second
shift, the second shift shear shop had no foreman, received
its starting instructions and orders from the first shift
foreman and from that point on Gronau would decide
which orders to run, assigned men from one task to
another, would decide whether to run an additional or
open machine to be responsive to requests for additional
parts by foremen or crew chiefs from one of the other
departments, and recommended to the foreman merit
increases for the 9 to 14 employees in the shop Gronau
indicated that his recommendations were usually accepted.
It is clear from Gronau's testimony that he did in fact
exercise supervisory authority within the meaning of the
Act. While it is clear that emphasis in the testimony was
placed on that period of time during which the third shift
was without a foreman it is also indicated by the
background testimony as to Gronau's authority and
activities prior to August 1966, as crew chief on the
second shift that the absence of a foreman on the shift
during the shift period was more common than
uncommon I am persuaded and I find that, even though
labelled a crew chief, Gronau in fact possessed and
executed supervisory authority within the meaning of the
Act on the third shift at the time material to the
complaint herein. This leads then to the question of how
much weight should be accorded this evidence in the
establishment by the General Counsel of a generic class of
crew chiefs possessing and exercising supervisory authority
and to the ultimate finding of whether or not Regier,
Butin and Schmidt are properly included in this generic
class. Assuming, arguendo, that it was established that 5,
or even 10 crew chiefs were found to have supervisory
status in a class of 75 crew chiefs, would this necessarily
prove a generic class all of whom possessed or exercised
this authority? I do not think so, absent sufficient
testimony of probative value on the record to establish the
similarity of the duties, functions, authorities and exercise
of activities of the crew chiefs For I am persuaded, as
contended by the counsel for the Respondent, and I find,
that crew chiefs, as identified and described on this record,
are heterogeneous in authority possessed and executed,
that this is based on the makeup of the crew and the
nature of its function , and that such makeup and functions
differ and in many cases are peculiar to the various shops
and departments. There was uncontradicted, credible
testimony of record by crew chiefs Dester and Hege
establishing the fact that functions of various crews
differed and that all crew chiefs did not operate in the
same manner or possess the same authority.
It would serve little purpose to rehash the considerable
testimony of the other crew chiefs and additional
employees called by the General Counsel to establish the
supervisory status of crew chiefs as a class . It is clear to
me from a careful consideration of the testimony of
record that if anything, the weight of the testimony
preponderates in establishing distinctions in the activities
of crew chiefs, differences in the size and makeup of the
crews, functions performed, and in the manner of
performance, and on balance, the record contains
insufficient probative evidence to establish the fact that
crew chiefs, as a class, and merely through their generic
classification necessarily possess or exercise supervisory
authority within the meaning of the Act.
The General Counsel has attempted to bridge the gap,
contending that the ratio of front line salaried supervisors
to employees is so inordinately high as to weigh heavily in
favor of a finding that crew chiefs necessarily were
supervisors. I do not find sufficient evidence on this record
to convince me of such an imbalance , particularly since
there is no way of knowing how many of the 75 crew
chiefs actually possess or exercise the authority of a
supervisor. The General Counsel also argues that the
collective-bargaining agreement itself refers to crew chiefs
with the words, "employees regularly under their
HESSTON CORP., INC. 101
direction," but the question of whether this direction in
each case is of a routine nature or of a nature such as to
require the exercise of independent judgment or otherwise
bringing it within the purview of the Act is left
unanswered. If Regier, Butin and Schmidt are to be found
to be supervisors on this record it must be established
through testimony relating directly to their individual
status, duties, and functions and their possession or
exercise of statutory indicia of supervisory status.
This leads to a final consideration of the evidence of
record bearing specifically on the authority and activities
of Regier, Butin and Schmidt.
Focusing on the testimony of record relating specifically
to Menno Regier, it appears that Regier has been a crew
chief for 5 years, that in his department there are 3 crew
chiefs and 50 to 60 employees. In his direct testimony
Regier stated essentially that he was not a supervisor, that
he possessed no supervisory authority and that he did not
exercise any supervisory authority Regier stated among
other things that he did not grant overtime, did not select
the employees to work overtime, did not grant time off,
was not responsible for production, had no responsibility
for safety, could not effectively recommend raises and had
no authority to hire, discharge or transfer employees in
the crew.
Regier testified that if a new employee came in he
would help him in setting up and showing him how to run
the machine. According to Regier, he is treated like the
other employees, receives the same vacation, holiday, sick
leave, insurance, pension and other benefits as the
employees in his crew, is not included by management in
meetings of supervisors, does not wear any distinguishing
uniform and does not enjoy the special privileges of
supervisors.
Regier testified that he had 6 men under his direction
as a crew chief, that this number fluctuated and that times
he might have had 14 to 15. He stated that his crew
worked in the machine shop under the direction of
Foreman Dirkson who had about 50 to 60 employees
under him. Dirkson had under his supervision three crews,
a drill press crew and two machine crews each having a
crew chief, one of which was Regier Dirkson has a
separate office but works around the work area.
In addition to Regier's testimony concerning his duties,
functions and activities, the General Counsel called to the
stand other employees to testify concerning Regier. Alfred
Wulf, an employee of the Respondent and a drill press
operator, stated that while he did not presently work in
Regier's department he used to, in the spring, until about
June or July of 1967. He worked under Regier for
approximately 1 year. He currently works in the drill
press section which is under the same foreman, Dirkson.
Wulf testified that when he worked under Regier there
were 15 to 18 men in the crew, that the foreman's office
was in the same area as the crew. Wulf testified that
Regier usually gave the men their work orders, that
Regier transferred men within the department but it was
his understanding that he did it with instructions from the
foreman He testified similarly that the crew chief told the
men when to work overtime. While he stated that he
understood that the crew chief gave the order with
instructions from the foreman he did not personally know
that this was true. Wulf in essence testified that the main
responsibility for seeing that the work got out fell on the
foreman but that the crew chief "might have some
responsibility." Wulf testified that at times the crew chief
would ask him if he would be willing to transfer to
another machine to get another job out, that the crew
chief never came right out and asked him to move but
often put it in the form of a question, but that the
foreman never directly asked him to move from one
machine to another
Walter Casper testified that he was employed by the
Hesston Corporation, worked on the third shift, worked in
the drill press department, and worked under Regier's
direction for about 3 months in the spring of 1967.
According to Casper, when he worked under Regier, his
foreman was Dillard Dirkson, who is still his foreman.
Casper testified that Regier gave the men the orders, a
slip of paper, but he did not know where he got it from
and that the men would then try to fulfill the order. The
men would set up the machine and when the first part had
been run would take that part to the crew chief, that is,
Regier Regier would stamp it, if it was correct or
acceptable, and then it would go to the inspector. Casper
testified that he sometimes worked overtime and on
Saturdays, and that he was instructed by the crew chief in
this regard. Casper testified that when the order is filled it
is put in a box in the foreman's office by the employee,
the employee then goes to the crew chief to find out what
the next order is.
A careful consideration of the testimony of record with
respect to the status of Menno Regier leads me to the
conclusion that he is in fact a supervisor within the
meaning of the Act. While I was impressed by Regier's
sincerity in testifying and his straightforward denial of the
possession of supervisory authority, I gave careful
consideration to. both his testimony and the testimony of
others on the record in considering whether or not he in
fact exercised any one or more of the indicia of
supervisory status and was permitted to do so by the
Respondent. I find ample credible testimony of record to
convince me that Regier in the performance of his duties
as crew chief did in fact exercise such authority, in the
training of crew members, in the assignment of work, the
transfer of crew members from machine to machine, and
the responsible direction of crew members and that in all
these activities he exercised independent judgment of a
nonroutine nature. Accordingly, I find Regier to be a
supervisor within the meaning of the Act Ohio Power
Company v. N.L R B , 176 F.2d 385, cert. denied 338
U.S. 899.
I have considered also the question of the status of
Butin and Schmidt and in view of the paucity of any
testimony of record dealing directly with their authorities
and activities I do not find sufficient evidence of-record to
establish the fact of their supervisory status. Nor do I find
on this record that they were held out by management as
acting for and on its behalf. Accordingly, I find that Butin
and Schmidt are not supervisors within the meaning of the
Act.
The Alleged Unlawful Assistance and Support
The record indicates that the Association was formed
approximately 10 years ago and that it has been
recognized as the collective-bargaining representative for
the production and maintenance employees since 1958.
Approximately 75 percent of the eligible employees are
members of the Association and authorize the Respondent
to check off dues. The Association is' controlled by its
board of directors composed of Menno Regier, president,
Unruh, secretary ; and Butin , Goering and Penner,
members. The board of directors negotiates the
collective'-bargaining agreement and also acts as the
grievance committee . A contract committee assists the
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board by gathering and providing factual information for
use in Board negotiations with the Respondent. There is
ample testimony of record to establish the fact, which is
not controverted on the record, and I find that
Association-Respondent negotiations were marked by long
and hard meetings, and the flareups and disagreements
normally associated with hard bargaining Aside from the
question of unlawful aid and assistance, there is no
allegation in this case that the bargaining between the
Respondent and the Association was anything other than
bona fide
John Siemens testified that he was Director of
Industrial Relations for the Respondent Corporation, and
chairman of the committee that negotiates the contracts
for the Respondent with the Association. Siemens testified
that the Association board of directors conducts a
biweekly Tuesday meeting on company premises in the
company conference room, that this Tuesday meeting is
not attended by management representatives but is
confined to members of the Association board of directors
or such individuals as they might on occasion summon to
the meeting Mr. Siemens testified essentially that some of
the members of the board of directors received their
regular wage for the time they spent attending the
meetings but others did not, for the reason that the
meeting was normally held on the first shift, and that
some of the Directors worked on the second and third
shifts Those who were not on the first shift would not
receive pay for the time spent by them in the meeting
during the first shift. Siemens testified that the
Association did not reimburse the Company for the use of
the room.
According to Siemens, the meetings took place every
other Tuesday, followed the next day with a regularly
scheduled Wednesday meeting which included
representatives of both the Association and management
Siemens testified that his understanding of the purpose of
the Tuesday meeting was simply to permit the Directors
to prepare for the Wednesday meeting, that the
Wednesday meeting is a two-way communication channel
for the employees and the Company, and that essentially
the Tuesday meeting was designed to give the Union the
opportunity to discuss and prepare those items it wished
to bring up with management in the meeting on
Wednesday. Siemens testified that at the meeting on
Wednesday, topics discussed were safety factors, wages,
hours, and other conditions of employment, and that the
purpose of this meeting is a preventive measure primarily
to reduce time on grievance handling and to serve as an
effective, positive, employer-employee relations channel,
and that the Respondent had found it quite effective.
Siemens stated unequivocally that at the Tuesday meeting
there was no representative of management present, and
that the meeting was conducted by the Union's board of
directors. Siemens stated he would have no way of
knowing whether the Union's board of directors used the
Tuesday meeting for improper purposes inasmuch as they
were on their honor as far as the Respondent was
concerned He admitted that it would be possible that they
could discuss such internal affairs as union membership
and getting new members , and that they might also use
the time to discipline or to reprimand members who took
actions which the director felt contrary to the interest of
the Association. However , Siemens made it clear that no
information concerning such use of the facility had come
to the attention of the Respondent, because if it had, he
would not have been in favor of continuing such meetings.
Siemens testified further that the Respondent was
aware that the Association conducted steward classes on
company premises during company time but that this
privilege was granted by the Company at the request of
the Association According to Siemens, the Respondent
first refused to grant this request, then later on decided to
go along with it, the purpose being to assure that each
department had a steward as required by the contract and
that matters in the department were handled
expeditiously Siemens admitted that this activity was
conducted on the Respondent's time, and that it included
elections of stewards on company time for the purpose of
expediting and getting stewards in the department. He
testified that there had been four such meetings, or
steward classes, conducted on company time and property,
the purpose being to train stewards, with class lasting
normally from 2.30 to 4.30 p m., a time period which
covered the last hour of the first shift and the first hour of
the second shift. Those stewards who worked on the first
shift and attended these classes were paid for the period of
time from 2.30 to 3:30 that they spent in the class, and
those stewards who were on the second shift were paid for
attending the meeting for the period of time from 3.30 to
4 30. Siemens testified that he believed that the board of
directors of the Association had also attended the steward
classes and were paid their regular wages for the time
spent in attendance, if their attendance happened to be
during their regular work shift.
According to Siemens, the Association did not pay or
reimburse the Respondent for the use of the facilities of
the plant used in holding the steward classes, and the
Association did in fact keep or store records in a
foreman's office, however, he stated that the Association
was granted permission to place only one of its own files
in an office for the purpose of keeping its
employee-relations committee minutes close at hand, but
not for the purpose of keeping their entire records on
company premises. Siemens stated that the Association
did not pay or reimburse the Respondent for the use of
this space. Siemens testified that he was unaware, or had
no knowledge of any transaction of business in that
foreman's office by the board of directors. He did state
that the Association conducted steward elections in the
various departments on company property, that they
would be held on company time, and that those employees
who voted in the election were paid their regular wages
for the time spent in that activity Siemens reiterated that
the whole purpose of this was to expeditiously handle
grievances in the department and to save the time of the
Respondent in the long run.
Menno Regier, president of the Association, testified
that when James Gronau resigned as a member of the
Association's board of directors and the Association, a
30-minute discussion was held on the matter of the
resignation in the morning on worktime on the company
premises He also testified to a discussion held by the
board of directors of the Association in the morning on
worktime on company premises to discuss the circulation
of petitions by steward Lawrence Long regarding
stewards, that this meeting took place in the conference
room where the usual Tuesday biweekly meetings were
held Regier testified that the meeting was attended by the
Board members who were paid for the time spent in this
activity.
Lawrence Long, an employee of the Respondent,
testified that the only regular meeting of the Association
is the annual meeting in January but that special meetings
were called possibly twice a year with the exception of
HESSTON CORP., INC. 103
contract years.
It would serve little purpose to rehash here the
voluminous testimony of record by various witnesses.
There is little significant dispute concerning the facts.
There is ample credible testimony of record to establish
the fact and I find, that the Respondent permitted the
Association board of directors to hold Tuesday biweekly
meetings on the Respondent's premises for the purpose of
discussing items to be presented to management the next
day and under circumstances in which it was possible for
the Association to conduct, and which the record indicates
it did conduct internal union affairs It is also established
on this record, and I find, that the Respondent paid
members of the Board for a part of the time spent in this
activity. The record also establishes the fact that the
Association, with the consent of the Respondent,
conducted steward classes on company time and property
without reimbursing the Respondent for the facilities and
that the Respondent paid most of the employees and
stewards involved I hour's time for a 2-hour meeting; and
that the Respondent permitted interruptions to production
to allow the Association to elect stewards on the
Respondent's time and premises and that the Respondent
paid employees and Association officers regular wages for
the time spent in voting in and conducting these elections.
Finally, the record established the fact that under the
circumstances prevailing as found hereinabove, the
Respondent recognized and bargained with the
Association as the exclusive bargaining representative of
the Respondent's employees, and maintained in full force
and effect a collective-bargaining agreement with the
Association.
While the Respondent argues that Regier never tried to
influence the board of directors with respect to the
approval of the contract and that the board of directors
made no recommendation with respect to approval or
disapproval of the Respondent's proposal, it is in the very
fact of his presence on the board of directors that such
influence is engendered and exists. As stated by the Board
in Nassau & Suffolk Contractors Association, Inc, 118
NLRB 187, "employees have the right to be represented
in collective-bargaining negotiations by individuals who
have a single minded loyalty to their interests." In view of
the finding herein that Regier is a supervisor within the
meaning of the Act and the uncontroverted testimony of
record establishing his position as president of the
Association and his activities- in representing the
employees in bargaining and in the day-to-day
administration of the contract, I find that the Respondent,
through its supervisor and agent Regier, has unlawfully
participated in the affairs of the Association, thereby
interfering with the rights of its employees in violation of
Section 8(a)(1) and (2) of the Act.
The Association argues that it did not receive unlawful
aid and assistance from the Respondent, that the biweekly
Tuesday meetings have a sound basis in
employee-employer relations , that if the Association
abused this privilege it was without the knowledge of the
Respondent; that had the Respondent known of such
abuse it would have terminated the privilege. The
Association argues with respect to the holding of the
steward classes and elections that this technique provided
qualified stewards assuring the expeditious handling of
grievances, that in any event these activities, together with
the space provided for the filing cabinet by the
Respondent , are in fact de minimis and not of such
magnitude as to amount to unlawful aid and assistance.
The Association cites several cases in support of its
position alleging essentially that the General Counsel has
confused the difference between the terms "support" and
"cooperation" with respect to the Respondent's dealings
with the Association. Similarly, the Respondent argues
that the basic purpose of the National Labor Relations
Act is to avoid industrial strife and that this result can
only be achieved through cooperation between
management and labor. This no one will deny. But the
question for disposition is the determination of the thin
line-which divides that which may be cooperation from
that which may be unlawful aid and support. For even if
the support is innocently provided, as argued herein, and
provided for a good purpose such as sound
employer-employee relations, such support is nevertheless
unlawful. Wean Manufacturing Company, 147 NLRB
112.
The Respondent also argues that this case is within the
ambit of Hotpoint v. N L R.B , 289 F.2d 683 (C.A. 7),
and Chicago Rawhide Mfg. Co V. N.L.R.B., 221 F.2d
165 (C.A. 7), wherein the court found cooperation in lieu
of unlawful aid and assistance in situations similar to
those in the case at hand. Chicago went to the formation
of the organization, while Hotpoint considered the
institution of "solo" meetings similar to the biweekly
meetings herein. The Respondent also cites N.L.R B. v.
Prince Macaroni Mfg. Co., 329 F.2d 803 (C A. 1), where
the holding of union elections on company time and
property was involved. I-have carefully considered these
cases, and, aside from the duty to follow Board precedent,
Iowa Beef Packers, 144 NLRB 615, 1 am impelled, with
due regard for the decisions of the court in the cases cited,
to find unlawful aid and assistance in the case at hand.
When the testimony of record herein is distilled, revealing
the conduct by the Association of internal union business
on company time, using company facilities, and with pay;
the conduct of steward classes on company time and
property; and interruptions of production to allow the
election of stewards, all on company time and property
and with pay, all while the Respondent recognizes and
bargains collectively with the Association through its
board of directors of which a supervisor and agent of the
Respondent is a member, it is apparent that the
Respondent, not by any one of these acts but in their
accumulation, has crossed the line from the area of
cooperation into the interdicted area of unlawful
assistance and support, and is interfering in the affairs of
the Association by rendering such assistance and support
in violation of Section 8(a)(1) and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section 111,
occurring in connection with the business operations of the
Respondent as described in section 1, 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
It has been found that, by permitting Menno Regret,
one of its supervisors, to act as Association president and
member of its board of directors and by dealing with him
in this capacity both in the handling of the grievances of
its employees and in the negotiation of its contracts with
the Union, the Respondent has interfered with its
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' right to bargain collectively through, and be
generally represented by, an, independent bargaining
representative of their own choosing, and has thereby
committed unfair labor practices within the meaning of
Section 8(a)(l) and (2) of the Act.
It has also been found that by certain of its actions the
Respondent has rendered unlawful assistance and support
to the Association in violation of Section 8(a)(1) and (2)
of the Act.
I will recommend that the Respondent cease and desist
from these unfair labor practices and take certain
affirmative action which I find will effectuate the policies
of the Act.
There has been no allegation of domination herein, nor
do I find it in this record. I would distinguish this case
from Wean Manufacturing wherein it was clear that the
shop committee had no financial resources of its own and
relied almost exclusively on the provision of support by
the Respondent. I would also distinguish this case from
Federal Mogul Corporation 163 NLRB No. 131, wherein
the domination by the Respondent of the committee was
sharply reflected in its control or potential control over
the membership of the committee, and where the
committee had no constitution or bylaws, imposed no dues
or assessments, received no income or revenue, and had
no meeting hall, on the basis of the fact that in the case at
hand, based on this record, there is no indication of any
financial reliance by the Association on the Respondent,
nor apparent financial condition from which such reliance
might be inferred. There is similarly no indication of any
domination by the Respondent of the Association reflected
in the type and nature of the bargaining sessions and the
contractual arrangements arrived at after collective
bargaining. On the contrary the record would indicate that
such bargaining was in good faith and that consessions
were sought, were contested and were gained through a
bona fide collective-bargaining process, and that the
Association is not dominated by the Respondent.
Accordingly, I shall not recommend disestablishment of
the Association, but shall recommend that the Respondent
cease recognizing and bargaining with the Association
until and unless the Association is certified by the Board.
CONCLUSIONS OF LAW
t. The Respondent, Hesston Corporation, Inc., is an
employer engaged in commerce within the meaning of the
Act.
2. United Rubber , Cork, Linoleum and Plastic Workers
of America , AFL-CIO, and the Hesston Manufacturing
Workers Association are labor organizations within the
meaning of the Act.
3. Since at least January 28, 1967 , the Association has
been the exclusive bargaining representative of an
appropriate bargaining unit of the Respondent's
employees within the meaning of Sections 9(a) and (b) of
the Act, and has been continuously so recognized under a
contract or contracts between it and the Respondent.
4. Menno Regier is , and has been at all material times,
a supervisor of the Respondent within the meaning of
Section 2(11) of the Act.
5. By permitting Menno Regier , although one of its
supervisors , to act as Association president and member
of its board of directors and by dealing with him in this
capacity , both in the handling of the grievances of its
employees and in the negotiation of its contracts with the
Association , and by recognizing and bargaining with the
Association as exclusive bargaining representative of the
Respondent 's employees and maintaining in full force and
effect a collective- bargaining agreement with the
Association under the circumstances found herein, the
Respondent has interfered with its employees ' right to
bargain collectively through , and be generally represented
by, an independent bargaining representative of their own
choosing, and has thereby committed unfair labor
practices within the meaning of Section 8 (a)(1) and (2) of
the Act.
6. By furnishing facilities to the Association for the
conduct of internal Association affairs, and compensating
Association officers and agents for time spent in the
conduct of such affairs , the Respondent has rendered
unlawful aid and assistance to the Association and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1) and (2) of
the Act.
7. Those portions of the complaint alleging unlawful
threats by Supervisor Clem White and unlawful
interrogation by Attorney Stanley Churchill alleging the
supervisory status of Butin and Schmidt , are hereby
dismissed.
[Recommended Order omitted from publication.]