Higgins Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1964

150 N.L.R.B. 106 (N.L.R.B. 1964)

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith 33
131n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local
No. 40, as the exclusive representative of all employees in the bargaining unit
described below in respect to rates of pay, wages, hours of employment, or other
conditions of employment, and, if an understanding is reached, embody it in a
signed agreement. The bargaining unit is:
All our production, maintenance, and stockroom employees, excluding
office clericals, professional employees, guards, and supervisors as defined in
the Act.
WE WILL NOT engage in surveillance of union activities among our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join, or
assist International Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, Local No. 40, or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by the provisos in Section
8(a)(3) of the Act, as amended.
COSMODYNE MANUFACTURING COMPANY,
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.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, Room 2023, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any questions concerning this notice or compliance with its
provisions.
Higgins Industries , Inc. and International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, (UAW) AFL-CIO and Higgins Industries Em-
ployees' Association. Case No. 7-CA-4469. December 15, 1964
DECISION AND ORDER
On August 14, 1964, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
150 NLRB No. 25.
HIGGINS INDUSTRIES, INC. 107
certain affirmative action as set forth in the attached Trial Exam-
iner's Decision. He also found that Respondent had not engaged in
certain other alleged unfair labor practices. Thereafter, the General
Counsel and Respondent filed exceptions to the Trial Examiner's
Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman
McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,' conclusions 2
and recommendations of the Trial Examiner, except as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
i The Respondent has excepted to certain of the Trial Examiner ' s credibility findings.
As the clear preponderance of the relevant evidence does not persuade us that Trial Ex-
aminer's resolution of credibility issues was incorrect , we find insufficient basis for dis-
turbing his credibility findings Standard Dry Wall Products , Inc, 91 NLRB 544, enfd
188 F. 2d 362 (CA 3)
z a. The "no -solicitatsonr-no-distribution" rule. We do not adopt the Trial Examiner's
finding that the promulgation of this rule was unlawful , as there is no showing that the
rule was promulgated within the limitations period of Section 10(b). We likewise dis-
agree with the Trial Examiner ' s finding that the "no -distribution" provision of the rule
was presumptively invalid in its application to working areas of Respondent 's business
premises . Stoddard Quirk Manufacturing Co , 138 NLRB 615 ( Members Fanning and
Brown dissenting , -Member Jenkins does not consider it necessary to pass on this point
here). In all other respects we agree with the Trial Examiner ' s findings respecting the
presumptive invalidity of the "no-solicitation- no-distribution" rule and we adopt his con-
clusion that the maintenance of that rule violated Section 8 (a)(1) of the Act.
b. The Section 8(a) (2) violations . The Trial Examiner found, and we agree, that Re-
spondent violated Section 8 ( a) (2) and (1) of the Act by rendering unlawful assistance
to the Higgins Industries Employees ' Association . We also agree with the Trial Exam-
iner's conclusion that Respondent additionally violated Section 8 ( a) (2) on the theory of
Midwest Piping and Supply Company, 63 NLRB 1060, but, in agreeing with this con-
clusion, we rely on the fact that Respondent continued to bargain with the Higgins In-
dustries Employees ' Association on and after November 15, 1963 , despite being confronted
with a substantial claim for recognition by the UAW on or about that date. Shea Chemical
Corporation, 121 NLRB 1027, 1029.
c. The Section 8(a) (3) violations . We adopt the Trial Examiner 's conclusion that Re-
spondent violated Section 8 ( a)(3) and (1) of the Act by the discriminatory transfer of
employees Spreeman and Harvey Sides and by the discriminatory suspensions of Harvey
Sides, Powers , and Goff However, in addition to the findings of the Trial Examiner in
support of this conclusion , we also rely on Supervisor Forman's admission at the hearing
that, from a conversation with employee Bernie Cole on or about October 21, 1963,
Forman knew that employees Harvey Sides , Goff, and Powers had attended the meeting
at Spreeman ' s house on October 19, 1963.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers, agents , successors , and assigns , shall take the action set.forth
in the Trial Examiner 's Recommended Order, with the following
additions and modifications :
1. Delete paragraph 1(e), substitute the following , and renumber
paragraphs 1(f) and (g) :
"(e) Promulgating , maintaining in effect, enforcing, or applying
any rule or regulation prohibiting its employees when they are on
nonworking time from distributing handbills or other literature on
behalf of any labor organization in nonworking areas of Respond-
ent's property.
"(f) In any manner prohibiting its employees during. nonworking
time from otherwise soliciting their fellow employees to join or sup-
port International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, (UAW) AFL-CIO, or any
other labor organization."
2. Delete paragraph 2(b) and substitute the following:
"(b) Forthwith rescind its existing "no-solicitation-no-distribution"
rule to the extent that it prohibits employees from soliciting mem-
bership in a labor organization during nonworking time on the
Respondent's premises and to the further extent that it prohibits
employees, from distributing union literature during nonworking
time in nonworking areas on the Respondent 's premises."
3. Add- the following sentence to paragraph 2 (c) immediately fol-
lowing*the first sentence:
"Notify each of the aforementioned employees if presently serving
in the , Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on November 21, 1963, by International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, (UAW) AFL-
CIO, herein called the UAW or the Union, the General Counsel issued a complaint
dated January 17, 1964, and an amended complaint dated March 3, 1964, against
Higgins Industries, Inc., herein called the Respondent or the Company. The com-
plaint , as amended , alleges that the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1), (2 ), and (3 ) of the National Labor Rela-
tions Act. In a duly filed answer the Company denied the unfair labor practice
allegations.
Pursuant to due notice , a hearing was held before Trial Examiner Phil W . Saunders
at Gaylord , Michigan , on March 17, 18, 19, 25 , and 26, 1964 . All parties were repre-
sented and were given full opportunity to examine and cross -examine witnesses, to
introduce relevant evidence, and to argue orally. The General Counsel and the
Respondent also filed briefs which have been given due consideration in arriving at
my finding herein.
HIGGINS INDUSTRIES, INC. 109
Upon the entire record, and from my observation and demeanor of the witnesses,'
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has maintained its principal office and
place of business in the city of Vanderbilt and State of Michigan. Respondent is, and
has been at all times material herein, engaged in the manufacture, processing, sale,
and distribution of copper and brass tubing and related products. During the fiscal
year ending September 30, 1963, which period is representative of its operations during
all times material herein, Respondent, in the course and conduct of its business opera-
tions, manufactured, processed, sold, and distributed at its Vanderbilt, Michigan,
plant, products valued in excess of $500,000, of which products valued in excess of
$50,000 were shipped from said plant directly to points located outside of the State
of Michigan. During the period referred to above the Respondent, in the course and
conduct of its business operations, caused to be manufactured, processed, sold, and
distributed at its Vanderbilt, Michigan, plant, products valued in excess of $500,000,
of which products valued in excess of $100,000, were furnished directly to H & H Tube
and Manufacturing Co. located at 271 Forman in the city of Detroit and State of
Michigan, which latter enterprise annually manufactures, sells, and distributes at its
aforesaid Detroit, Michigan, place of business products valued in excess of $500,000,
of which products valued in excess of $50,000 are shipped from said place of busi-
ness in Detroit, Michigan, directly to points located outside of the State of Michigan.
The complaint alleges, the answer admits, and I find that the Respondent is engaged
in commerce as defined in the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America , (UAW) AFL-CIO, and Higgins Industries Employees' Asso-
ciation , an interested party, and herein called the Association , are each labor organi-
zations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The main allegations of the complaint, as amended, are that: on various dates in
October, November, and December, 1963, the Respondent warned employees that it
would transfer them to more onerous jobs, discharge them, and shut down the plant
because of their activities on behalf of the Union; the Respondent threatened dis-
charge if employees did not surrender union authorization cards; the Company interro-
gated employees concerning their union activities; the Respondent promised wage
increases; the Respondent urged employees to sign a petition requesting the Company
to discharge employees who were giving support to the Union; the Respondent had
maintained and enforced an illegal no-solicitation rule; and agents of the Company
had also engaged in surveillance of union meetings and had created the impression of
surveillance. The complaint further alleges that the Respondent has dominated and
interfered with the formation and administration of, and rendered unlawful aid,
assistance, and support to, the Association, and recognized and commenced bargaining
with the Association notwithstanding the fact that the Association has never repre-
sented an uncoerced majority, and that the Respondent did so at a time when the
Union was asserting a rival representation claim. The complaint also alleges that
employees Fred Spreeman and Harvey Sides were transferred to more onerous work
assignments, and that the Respondent suspended Harvey Sides, Ichabud Goff, and
Grant Powers because of their activities for the Union.
i The declaration that my findings are based on my observation of the witnesses is in-
tended to apply to the testimony of each and every witness, and my failure to comment on
the demeanor of a particular witness is not to be_ taken to mean that in evaluating his
testimony I have not taken his demeanor into consideration. Moreover, when given logi-
cal reasons for rejecting the testimony of a particular witness, either in Its entirety or on
a particular point, it should not be assumed that I rely exclusively on such reasons, and
that the demeanor of the witness has not been considered in evaluating his testimony.
When I have indicated that I regard a particular witness as,generally untrustworthy, it
is to be construed to mean that I reject his testimony as a whole, unless, I explicitly in-
dicate that I accept his testimony on a particular point.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The supervisory issue; findings and conclusions
This record shows that the Company maintains three shifts at its plant: the day
shift (7:30 a.m. to 3:30 p.m.), the afternoon shift (3:30 p.m. to 11.30 p.m.), and the
midnight shift (11:30 p.m. to 7:30 a.m.). Approximately four men are employed
on the midnight shift, and the rest of the employees being more or less distributed
between the day and afternoon shifts. Respondent's Plant Manager Richard Yuill is
in charge of the overall operations at the plant. Reporting directly to Yuill are gen-
eral foreman, Leo Forman, and assistant foreman, Ralph Robinson, who superintend
the day shift and the afternoon shift, respectively. Ralph Robinson also authors
written production instructions for the midnight shift, but neither he nor Forman are
present during the midnight shift. On the day shift, stationed at the north end of the
plant and reporting directly to Leo Forman, is job leader James O'Rourke. Also on
the day shift and reporting directly to Leo Forman, but stationed at the south end
of the plant, is job leader Howard Buckler (Buckler is not specifically involved in
this case). On the afternoon shift, stationed at the north end of the plant and report-
ing directly to Ralph Robinson, is job leader Floyd Robinson. Also on the afternoon
shift and reporting directly to Ralph Robinson, but stationed at the south end of the
plant, is job leader Michael Cherwinski. Job leader Robert Green is the sole indi-
vidual other than production employees who is physically present on the premises
during the midnight shift. The specific question for determination here is whether
James O'Rourke, Floyd Robinson, Michael Cherwinski, and Robert Green, herein
called job leaders, are supervisors within the meaning of the Act.
This record shows that Plant Manager Yuill administers policy set up by the
Respondent's board of directors, has the responsibility for the procurement of
materials, hires all employees, handles all the final disciplining of employees, and is
in charge of scheduling for the entire plant.2 Leo Forman is in charge of two sub-
foremen and is also in charge of the job leaders-the four individuals in question
here. This record further reveals that Leo Forman makes up a detailed manufac-
turing procedure for each order in writing, and these are given to the job leaders on
each shift. Leo Forman meets with job leaders O'Rourke and Buckler, 15 minutes
before the start of the day shift to give them their detailed instructions, again in
writing. In the afternoon he gives instructions to Ralph Robinson, the afternoon
foreman, who relays them to his job leaders Mike Cherwinski and Floyd Robinson.
At 10 o'clock each night Forman talks with Ralph Robinson, and Robinson then
makes up the list of job instructions for the midnight job leader, Robert Green.
In accordance with these written instructions, the job leaders set up the different
jobs on the machines and then assign these jobs to the employees. The job instruc-
tions show which machine is to be used, and the men who are regularly assigned to
certain machines day in and day out do the jobs which are assigned to their machines.
Where there is an assignment of men back and forth on different machines, the
selection of men is made by the job leaders "within the normal range" of the men's
work. Any changes in the written instructions made during the day are given
verbally by Leo Forman.3 The job leaders "set up" the drawbenches, and also set
up straightening machines, flat tube machines, and the burring operation. They
normally check or inspect jobs which they have set up once an hour, and inspectors
at the plant do likewise. Job leaders are paid 15 cents per hour more than production
workers.4 The regular foremen in the plant receive better benefits on Blue Cross
insurance coverage than those received by the job leaders and other employees.
The General Counsel produced testimony through Harvey Sides that O'Rourke
had granted him permission in October to take time off. Kenneth Moore testified
that O'Rourke told him what to do and gave employees "heck." David Coultes stated
that O'Rourke gave him his orders, and that Floyd Robinson's duties were to give
out work assignments and see that they were carried out. Coultes testified that after
setting up jobs Floyd Robinson walked around and gave orders. Coultes also stated
that Michael Cherwinski does no production work, but walks around and gives
orders. Robert Loshaw testified that Floyd Robinson gave orders, but admitted that
he is familiar with all the work assigned to him and that the jobs are usually pretty
much repetitive. Loshaw also stated that on occasions he would ask Floyd Robinson
2 Basically the plant is a redraw mill. The Company buys large diameter tubing and
then processes it by redrawing it into smaller diameters for the automotive and refrigera-
tion field.
3 The regular foremen at the plant have keys to all parts of the plant, all offices, and all
facilities,' as do the watchmen. The job leaders have keys to the toolboxes and storage
facilities.
* Green receives 25 cents more.
HIGGINS INDUSTRIES, INC. 111
for time off and that in turn Floyd would then ask Ralph Robinson.5 Grant Powers
stated that approximately a month before the hearing he asked Leo Forman whether
he should put some tubing in a box or on the rack for stock. Forman then pointed
across the shop at O'Rourke and said, "See that guy in the blue shirt over there? He
tells you what to do." Powers admitted that he had never seen O'Rourke lay anyone
off, but stated that O'Rourke had given him permission to go home because of illness.
On cross-examination Powers testified that he had asked for such permission at 10:30
in the morning but did not actually leave until 12:30, and that in the interval O'Rourke
would have had time to check this request with others. Ichabud Goff related that in
August 1962 Yuill and Forman told him that O'Rourke and Buckler were out there
as bosses and "we had to do as they told us." Walter Goff stated that he thought the
job leaders were bosses over the employees, but had recently been informed by Floyd
Robinson that they had no authority.
In essence the General Counsel argues that the four job leaders in question here
make work assignments , transfer workers, reprimand employees, and can grant
employees' requests for time off. I find, however, that the evidence for the General
Counsel is inadequate and insufficient to support a conclusion that the four job
leaders involved herein are supervisors.
The specific and reliable testimony adduced at the hearing established the follow-
ing: Job leaders do not hire, discharge, or effectuate changes in employment status.
As only intermediaries between their regular foremen and other employees in their
respective departments and shifts, they routinely distribute work on the foremen's
specific oral and written instructions. Furthermore, this record shows that in actual
practice they merely relay to their foreman grievances, requests for time off, or
requests for transfers. Job leaders are hourly paid, have substantially the same hours
as production workers, and have the same vacations, health insurance, and the same
other general conditions of employment as the people they assist. They may on
occasions report and correct defective work, but their recommendations in that regard
are not solicited. They seek to remedy defective work by warning and assisting
employees in correcting their errors. Although they received slightly higher pay,
such pay merely reflects their greater skill and experiences
In summary amplification of the above, several witnesses for the General Counsel
admitted that the job leaders receive written instructions before the start of a shift
as to what jobs to run and how they are to be run.7 Ichabud Goff stated that O'Rourke
assigned him to the machine he was to work on for the day, but then admitted that
O'Rourke gets his instructions from Leo Forman in writing. On one occasion in
December O'Rourke sent Goff to the south end of the plant to work under Buckler
to replace Jack Spreeman. Certainly no discretion is involved in sending Goff, who
had worked on the drawbench for 11/2 years and off and on it for the 7 years of his
employment, to replace an employee who was called out of the plant for a few hours.
Spreeman testified that O'Rourke directed him to go to work at the drawbench on
October 21. Before the end of the shift he went to see Yuill about the transfer to
the drawbench. Yuill told him to see Leo Forman. Instead of seeing Forman, he
saw Yuill the next day. It is clear that Spreeman knew that O'Rourke had no author-
ity with respect to this matter. Moore admitted that when he traded jobs with Harvey
Sides he not only talked to O'Rourke but also Leo Forman, and that several days
later his request was granted. Coultes testified as to job transfers on three occasions
and each time the job leader involved had to check the request with his foreman.
These incidents show clearly that job transfers are not within the authority or scope
of job leaders.
This record also shows that the granting of time off to employees is not within the
authority of job leaders. Harvey Sides gave testimony that he received permission to
go hunting and attend a calf sale from O'Rourke. The evidence shows that notices
8 The supervisory status and capacities of Yuill, Leo Forman, and Ralph Robinson are
admitted
9 Before the start of the midnight shift Ralph Robinson calls Leo Forman and reports to
him on what progress the afternoon shift has made, and Forman then instructs Robinson
what Green is to do on the midnight shift and Robinson records such instructions in writ-
ing for Green to follow.
7 An example on how job assignments rested upon the authority of the foremen is the
transfer of Harvey Sides to the drawbench. On cross-examination Sides testified that
O'Rourke told him that he had had an argument with Leo Forman the previous Friday
night after work and that Leo Forman had said that Sides had to go to work at the south
end of the shop. It appears clear to me that the instruction emanated from Leo Forman
and that O'Rourke, at most, conveyed Forman' s decision on the assignment to Sides.
775-692-65-vol. 150-9
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were posted as to hunting,'and Sides admitted that all that was required was that
employees "notify" his foreman,'and that it was a common practice to let employees
go. Yuill gave Sides permission to help his uncle with a calf, and Sides was also told
to notify O'Rourke that he was leaving. Ichabud Goff testified'that there was a notice
on the bulletin board which required that an employee who wanted time off should
report'to his "immediate foreman" and then admitted that he would go to Leo Forman
or Yuill to find out. Loshaw testified that if he wanted time off on his afternoon
shift he would ask Floyd Robinson, and Floyd Robinson would go to Ralph Robinson
and ask him about it. Walter Goff stated that an employee would 'ask his immediate
superior, who' would then go to the office or the general foreman. By numerous
admissions from the General Counsel's own witnesses, as above set forth, job leaders
had no authority in giving employees time off from their work.
Likewise, this record is abundant with proof that no employees were disciplined
by job leaders. On one occasion when Sides found his timecard missing, Sides then
went to Yuill and not to O'Rourke, and under like situations Powers and Goff went
to Yuill also.8
On the occasion testified to by Powers, when Leo Forman was alleged to have told
him that O'Rourke told Powers what to do, Formari gave the credited explanation
that O'Rourke had available to him the information needed to answer Powers' ques-
tion.' Forman himself would either have had to check with O'Rourke or make an
investigation to determine-whether the tubing in question was surplus to be put in
stock or should be shipped with the order. When asked whether he told Powers that
O'Rourke tells him what to do, Forman replied that he might have said, "Jim knows
what to do."
It should be further noted here also that the plant employees themselves considered
the four job leaders eligible to join either labor organization. They were asked to
sign UAW cards and attend its meetings. They were also solicited to join the Asso-
ciation and certain demands were made on their behalf by the membership to the
Company.
In the matters of transfers, discipline, the adjustment of grievances, the assignment
of overtime, and the granting of leaves of absence or time off, it is clear that the job
setters do nothing more than report employee requests and that decisions are made
by Yuill and Forman, or Ralph Robinson. These decisions are then sometimes,
although not'always, communicated through the job leaders
In delineating between authority which is "of a merely routine or clerical nature"
and that "which requires the use of independent judgment,'-' the Board has found the
following, among others, not supervisory. Dispatchers at an, auto transport company
who routinely report employees' infraction of rules, but have no authority to inflict
penalties, Auto Transports, Inc., 100-NLRB 272; shipping and receiving clerk who
transmits supervisor's instruction to other employees working with him and directs
them in routine duties, Massachusetts Mohair Plush Company, 115 NLRB 1516;
employee who makes routine assignments of work, exercises some judgment on a
small part of the work, and makes no effective recommendations as to employees'
performance, Legion Utensils Company, 109 NLRB 1327, and Clearwater Fishing
Company, 108 NLRB 268. Since I have found that the four job leaders involved
herein are not supervisors, the Respondent is not chargeable for their statements and
conduct attributed to them.
B. ,Union activities and main events
In the latter part of 1962, the UAW instituted an unsuccessful organizing drive at
Respondent's plant. On that occasion, Respondent's Plant Manager Yuill promised
the -employees certain fringe 'benefits , as an alternative to UAW organization and
also suggested to the employees that they start a union of their own. An insurance
plan or program was, in fact, awarded to the employees at the time. Nothing, how-
ever, came at that time of Yuill's suggestion that the employees form their own union.
The UAW organizational campaign under consideration in this proceeding started
on October 14, 1963,8 when employees Grant Powers, Harvey Sides, and Fred
BIchabud Goff testified that he had been ordered by O'Rourke to go uptown to a hard-
ware store to get some paint. He refused because he did not wish to sign his name to a
receipt for the paint. He testified that he was afraid that he would be fired for signing
his, name. On cross -examination , however, lie testified that he was afraid that he might
be fired If , Leo Forman discovered that he had gone. Leo Forman then had another em-
ployee get the paint.' - •
s All dates are 1963 unless specifically stated otherwise.
HIGGINS INDUSTRIES, INC. 113
Spreeman met with UAW Representative William Treadgold . On this occasion
Treadgold informed these three employees that in order to organize the Company
it was necessary to set a date for a meeting of the employees and, in the interim, to
urge employees to attend that meeting. It was agreed that a meeting would be held
the next Saturday, October 19, at Spreeman 's house. During the period from Octo-
ber 14 to October 19, Harvey Sides, Powers, and Spreeman personally solicited fellow
employees to attend the meeting. The organizational meeting was held as scheduled
at Spreeman's house on October 19, a Saturday. Fourteen employees, including
Harvey Sides, Ichabud Goff, Powers, and Spreeman, met for over 11/z hours on
Spreeman's front lawn with UAW Representative Treadgold. Commencing immedi-
ately after the October 19 meeting, Harvey Sides, Ichabud Goff, and Powers continued
to openly advocate their support for the UAW in the plant. On October 21 Spreeman
was transferred to the drawbench. On October 30 Harvey Sides, Ichabud Goff,
and Powers were given "disciplinary" suspensions. All three suspensions expired on
November 11. On October 28 Harvey Sides was also transferred to the drawbench.
On or about November 1, there were passed around in the plant for signature three
petitions with a heading statement that the undersigned would like to form an "Inter-
plant Grievance Committee." 10 These petitions contained 37 signatures. On
November 4 the petitions were given to Plant Manager Yuill. The petitions were
then sent to Pierce Wright, the Respondent's labor relations counsel in Detroit. On
November 9 the employees held a meeting at a public hall for the purpose of officially
forming the Association. This meeting was attended by 43 employees who signed a
document reiterating their intent to establish the Association (Respondent's Exhibit
No. 12). Temporary officers for the Association were also elected." On Novem-
ber 11 Yuill called Rich and Williams into the office and told them that the Company
would recognize the Association. On November 14 the UAW requested recognition
in a letter sent to the Respondent.12
C. Interference, restraint, and coercion; findings and conclusions
Based on my observation and demeanor of the witnesses, events, admissions, and
for other reasons given here, the testimony I credit shows the following: That on or
about October 22, Spreeman asked Manager Yuill if he knew about the UAW organi-
zational meeting at his home on October 19, as aforestated.13 Yuill replied that he
knew all about it, but that he was sorry the employees went "behind his back." 14
Yuill also informed Spreeman that in the event of union organization the Company
would abandon its policy of making jobs during slack periods, and also told Spreeman
that if the UAW cards which had been signed were brought into his office or if he
was given proof that the cards had been destroyed, the Company would forget about
"everything." 15 On the same basis the credited testimony of Harvey Sides reveals
that on October 30, during the course of Sides' suspension interview, Yuill pointed to
a picture of C. B. Higgins in his office (C. B. Higgins was the founder of the Com-
pany), and then informed Sides that C. B. Higgins did not want anything to do with
the UAW and wanted the plant shut down if "they" organized the plant, "and that's
10 General Counsel's Exhibits Nos. 10, 11, and 12.
11 Richard Rich, president ; Warren Soper, vice president ; Lee Williams , secretary ; and
Harold Ashley , treasurer.
22 General Counsel's Exhibit No. 8.
13 On the day before Spreeman had asked Yuill why he had been transferred to the draw-
bench. Yuill replied that Spreeman should see Leo Forman about the matter.
34 Yuill admits in his testimony this conversation with Spreeman , and also admits that
Spreeman on this occasion informed him that he had signed a union card , and that he
told Spreeman he was sorry the employees went behind his back. Yuill denied the other
statements attributed to him by Spreeman in this conversation.
35 Yuill's position that he could not have made the anti-UAW statements attributed to
him because he did not know of the UAW's drive until mid-November is without merit in
view of the open and strenuous nature of the activity and counteractivity , hereinabove and
hereinafter detailed , and particularly in view of the fact that he himself admits that on
or about October 22 he and Spreeman discussed the October 19 meeting at Spreeman's
house and the fact that Spreeman signed a card. Without substantial basis also is Yuill's
testimony that his discussion with Spreeman did not contemplate Spreeman 's having
signed a union card or Spreeman 's having attended a union meeting. Yuill even admitted
in his testimony that on October 19 he received word of the meeting at Spreeman 's house
when he was at a local hardware store.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the way it would be." 16 Leland Dunham also gave credited testimony to the effect
that a few days after Sides, Goff, and Powers were suspended , Yuill inquired if
Dunham was for the UAW, and then also told Dunham , "I had to lay off some men.
I had to play cop and lay off some men."
Kenneth Moore gave reliable testimony for the General Counsel to the effect that
Leo Forman asked Moore if he would be willing to sign a petition calling for the dis-
charge of employees who started the Union 's organizational drive, and also informed
Moore that if the Union organized the Company "everyone in here is going to lose
their job," and the plant would close.17
The amended complaint alleges that on October 19 Leo Forman and Ralph Robin-
son engaged in surveillance of the UAW organizational meeting held at Spreeman's
house. The General Counsel produced credited testimony through several of his
witnesses (Sides, Powers, Spreeman , Coultes, Cecile Sides, Jr.) to the effect that
during this meeting Supervisor Ralph Robinson drove by the house, slowed down
his car, and then minutes later drove back in the opposite direction . These witnesses
further established that, in a short period thereafter , the Respondent 's General Super-
visor Leo Forman also drove by at a reduced rate of speed and looked in at the
meeting.18 The point on Spreeman 's lawn where the men were sitting is parallel to
and approximately 150 feet distant from the public highway which runs through
Vanderbilt . The lawn is partially obscured by a row of fir or evergreen trees which
line its perimeter , and there is considerable testimony in this record bearing on
whether or not these trees block the view from the road . From a careful review of
all the testimony and exhibits in this respect , I am satisfied that the lawn surrounding
Spreeman 's house where the employees were assembled can be seen from the road
through the trees, and also through a driveway opening leading into the property from
the highway.
The complaint alleges that the Respondent has promulgated , maintained, and
enforced the following rule, known as shop rule 13, governing the conduct of its
employees at its plant:
Soliciting or the selling of any merchandise or the distribution of literature for
any cause or the circulation of any petition , by any person without permission of
the Management is forbidden in the factory or on Company property.
The Respondent's answer admits the existence of the rule, but contends that it has not
constituted or resulted in any interference with employees ' rights as guaranteed in
Section 7 of the Act . The Respondent argues in its brief that the language of the rule
on its face does not prohibit the carrying on of union activity, that it only pertains to
three specific items,19 and that there is no evidence that any employee was actually
disciplined or discharged under the rule.
It is now well established that a rule against solicitation which prohibits employees
from soliciting union membership on nonworking time on the employer 's premises is
an invasion of the employees ' rights guaranteed in Section 7 of the Act . The Respond-
ent's lack of specific intent to violate the Act is immaterial where the natural conse-
quence of the Respondent 's act would constitute an interference with those rights.
The rule in question here prohibits at all times the distribution of literature for any
cause. I find, therefore , that by promulgating and maintaining in effect rule 13, the
Respondent has interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The complaint alleges that during certain dates in October the Respondent promised
its employees wage increases and other benefits to induce them from becoming or
remaining members of the Union or giving it any assistance or support . Goff and
Sides testified that O 'Rourke told them that there was a 10-cent raise waiting as soon
as the union activity was over with . Since I have found O'Rourke not to be a super-
visor, as aforestated , his statements and antiunion sentiments cannot be imputed to the
18 Yuill testified that he had mentioned C. B Higgins ' "philosophy" many times , but did
not remember if he had mentioned it on this occasion, and stated that he could not recall
pointing to the picture , but that he "may have."
17 Leo Forman stated that a number of employees had approached him and asked if
they could get a petition to get rid of the employees that were causing a " lot of trouble in
the plant " Forman admitted that be then talked to Moore and asked his opinion about
the matter , but denied making the above statements attributed to him.
18 Leo Forman openly admitted that he drove by Spreeman ' s house at the time of the
meeting in question here , but then stated that he had no idea what was going on.
18 Soliciting or selling merchandise , distributing literature , and circulating petitions.
HIGGINS INDUSTRIES, INC. 115
Company. Moreover , there is no testimony in this record that Yuill, Ralph Robinson,
or any other supervisor made any promises or suggestions relative to wage increases or
other benefits if employees ' activities for the Union came to an end, as so alleged 20
There is an additional allegation in the complaint , as amended , that on or about
January 6, 1964 , the Respondent also granted wage increases to induce employees
from refraining in their activities for the Union. As set forth in more detail later, the
record shows that the pay increase was consistent with raises given by the Company
over the past 5 years. Accordingly , these specific pay allegations in the complaint are
hereby dismissed.
The foregoing instances , however, that have been attributed to the Respondent
include unlawful threats to shut down the plant, to change working conditions, and to
discharge employees ; unlawful interrogations and canvassing of employees signing
cards for the Union , asking for a petition calling for the discharge of employees active
for the Union ; 21 engaging in the surveillance of a union meeting; and promulgating
and maintaining an illegal no -solicitation rule. All of which , under these conditions,
reasonable probability , purposes , setting, and sequence of events here, have the effect
of interfering with and restraining the employees and constitute violations of Section
8 (a) (1) of the Act, and I so find.
D. The 8 (a) (3) violations; findings and conclusions
The complaint alleges that the Company transferred Jack Spreeman and Harvey
Sides to more onerous work because of their activities for the UAW.
Leo Forman testified that he transferred Spreeman from his job at the furnace to
the draw bridge on October 21, because he would not stay on his job. Forman
stated that after Spreeman had been on the furnance job for a while , he began to get
slack in his work, wander around the plant, and not attend properly to his work sta-
tion. Forman also related that he himself had to unhook bundles of tubing brought
by the cranemen because Spreeman was nowhere around, and that he told Spreeman
to stay at the furnace 22
Witnesses for the General Counsel , including Spreeman , readily admit that Spree-
man was frequently away from his work when loading the furnace, but it is their testi-
mony that this job did not call for full-time presence in keeping the furnace in opera-
tion. There is reliable testimony that when the furnace is loaded with long tubing the
employees loading and unloading are not required to be present at all times.23 The
record shows that in the wait period on long tubing the furnace loader was not
required to stay at the furnace , but customarily could leave his job, and that this was
the usual and common practice of all such employees.24
Leo Forman also testified to transferring Harvey Sides off the crane to the draw-
bench. Forman stated that while operating the crane Sides would manage to talk
to everybody he came in contact with, that he persisted in this, and that each time
he stopped to talk it got a little lengthier . The result was that he was interfering
20 Although there may well have been some discussions or talk circulating around the
plant in this period relative to the possibility of some raise, it is obvious by this record
that the rumors had no basis as emanating from company supervisors , and in this respect
there is totally lacking any evidence on which the General Counsel can support this
allegation.
21 It is well-settled law that Section 8(a) (1) of the Act makes it unlawful for an em-
ployer to instigate and promote a decertification proceeding or induce employees to sign
some other form of union-repudiation petition . Clark & Lewis Co., 122 NLRB 865;
N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258, 262 (C . A. 9), cert. denied 348 U.S.
829; N.L.R.B. v . Louisville Container Corporation, 209 F. 2d 654 , 655 (C.A. 6).
22 It appears that an operator on the south end of the furnace is responsible for the
heat regulation and the employees on the south end load the furnace ( Spreeman's main
job). The north end is where the tubing is discharged, and the man at this end has the
responsibility to see that the product is put into a diluted sulfuric acid solution and then
placed in proper boxes . The furnace is 85 to 90 feet long.
2$ For instance , when using 20-foot tubing an operator must wait until it goes into the
furnace before another batch of tubing can be inserted , and between batches of long tub-
ing there is approximately a 5- to 10-minute time interval . The wait between batches is
determined then by the length of the tubing. On a redraw of long tubing the loader and
unloader on the furnace actually only works about 30 to 35 minutes out of 60 minutes.
When using short tubing continued attention is required.
21 During such wait periods the furnace loader would wander around the plant and in
so doing often made idle talk with other employees.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the men that were working, so they were not getting out their production. This
record shows that Sides operated the crane for about 1 year before his transfer, and
that although he engaged in. various types of conversations with other employees
while running the crane, he was never reprimanded for doing so and his verbal dis-
cussions did not interfere with his work or the work of others 25
Spreeman and Sides both testified that the drawbench job to which they were
transferred was more onerous and dirty than work on the furnace and on the crane.
Yuill and Leo Forman stated that the drawbench is only as dirty as the operator
himself makes it, and that employees so assigned are given special gloves, rags, and
other materials and are also allowed cleanup periods during the day.
It appears clear to me that the transfers of Spreeman and Sides were discriminately
motivated by 8(a) (3) considerations, and from my observations and demeanor of the
witnesses and for the reasons given here I so find. Both employees, as aforestated,
were leaders in the organizational efforts of the UAW. Yuill informed Spreeman on
October 22 that he knew all about their meeting at Spreeman's house. In addition, the
effective surveillance by Leo Forman and Ralph Robinson on October 19, as afore-
stated, produced full knowledge for the Company as to which employees attended and
were active for the Union. Furthermore, both Spreeman and Sides talked in the plant
for the Union on several occasions prior to their transfers soliciting attendance at the
meeting and cards for the Union. '
Respondent's defense that Spreeman and Sides were transferred to the drawbench
from their former jobs because they had taken to wandering about the shop talking
instead of spending their full time at their work, is without merit and merely a pretext.
The record clearly shows that as a crane operator Sides was required to move around
the plant. Spreeman, like all the other furnace operators of Respondent, left the
furnace and walked about the shop talking with other employees when he was not
loading the furnace. It is also apparent that talking and moving about the shop is
common, that such conduct was not a detriment to production, and that production
was not affected by such conduct in the situations under discussion here. It is also
noted that the Company was at all times aware of the wanderings and conversations in
like circumstances, and that on no occasion was any crane operator or furnace operator
even so much as reprimanded for such conduct until Sides and Spreeman were given
their transfers.
It is also apparent from this record that the drawbench is a more onerous or burden-
some job than either the crane or the furnace. In addition to working in a "dirty"
place, drawbench operators are literally pinned down to one position for the course of
an entire workday, and gone are the opportunities offered by the crane and the fur-
nace jobs to move about and to visit once in awhile with fellow employees.
Ichabud Goff, Grant Powers, and Harvey Sides were suspended by the Company
on October 30, until November 11, for an alleged violation of shop rule 24 26 Yuill
stated that he had several complaints from his general foreman that certain people
were bothering others. Yuill related that on October 30 Leo Forman reported to
him that employee Charles Hawley had been interfered with on his way back from
lunch by Harvey Sides, Cecil Sides, Sr., and Goff. Yuill then called Cecil Sides into
his office and informed him that "somebody" had made a complaint that he was trying
to get an employee to sign a union card. Hawley and Harvey Sides were then called
in and after certain discussions on the matter between these individuals Cecil Sides
was told to go back to his work. Yuill, however, then informed Harvey Sides that in
view of the many complaints on him the Company would have to mete out some sort
of discipline, and Harvey Sides was then suspended. Shortly thereafter Leo Forman
told Yuill that Goff and Powers had also been bothering employees about union
cards, and they too were then suspended. Harvey Sides testified that on October 30
he had asked Hawley to sign a union card. Powers testified that in the early after-
noon on October 30 he had asked inspector Dale Paquin, as he walked by in the plant,
25 The record adequately reflects that it was a rather common practice for many of the
employees to engage in frequent conversations or idle talk while working in the plant, and
it is obvious that in a small shop and small community employees will naturally do so.
The Company appeared to have no objections to such practices until the advent of the
Union and its identification of the leaders.
26 Shop rule 24 provides for disciplinary' action ranging from reprimand to immediate
discharge, depending upoh the seriousness of the offense in the judgment of management:
24. Threatening, intimidating, coercing or interfering with fellow employees on the
premises at,any time.
HIGGINS INDUSTRIES, INC. 117
if he would sign a union card. Powers stated that on occasions he had also asked
Office Manager Stanley Robinson and Lee Williams to sign union cards on worktime.
Goff testified that he had asked employees to sign union cards on company time 27
The three employees were supposedly suspended for interfering with and molesting
other employees within the meaning of shop rule 24, but Yuill stated that the signing
of the union cards had nothing to do with it. I disagree, and find that Sides, Goff, and
Powers were suspended because of their union activities in violation of the Act. The
evidence in this record as it pertains to conduct within the plant merely shows that
Hawley was asked to sign a card when returning from lunch, and Powers asked Paquin
to sign a card as he walked by. On prior occasions other people were also asked to
sign cards, but there is definitely lacking sufficient testimony to show that such conduct,
other than conclusionary summaries, intimidated or interfered with such employees.
In addition, Leo Forman admitted that none of the three employees suspended were
given any warning about such practices, and then further admitted that the Respond-
ent's reprimand procedures specifically call for a warning to an employee on his first
offense.28 Here there was no following whatsoever of the normal plant disciplinary
system for first offenders. It is mentioned here also that in a prior section of this
Decision I have found that Yuill made a statement to Dunham after the suspensions
to the effect that he (Yuill) had to "play cop" and lay off three men. For the reasons
given here, the demeanor of the witnesses , and in consideration of the events, the
record as a whole, and the Respondent's union animus, it is clear that Sides, Goff,
and Powers were suspended because of their union activity, and that this factor
weighed much more heavily in motivating their suspensions than any violation of the
shop rule 24.
E. The 8(a) (2) violation; findings and conclusions
The record shows that on October 23 or 24, after the UAW's presence became known
in the shop, Respondent's Supervisor Ralph Robinson informed Cecil Sides, Sr., and
Robert Loshaw that he had just attended a company meeting wherein management
had discussions about a "shop union," and then stated that he thought this would be
a "good thing" and if the employees would contact Yuill they "could get about any-
thing they wanted." 29 This record also shows that on or about November 1 David
Coultes asked Ralph Robinson where he could find out about the Association as he
had heard rumors circulating around about it. Within a short time thereafter, Ralph
Robinson informed Coultes that he had talked to Yuill and had been told by Yuill that
"anytime anybody" got a petition with enough names on it, to bring it to the office,
and that Yuill would have a charter up from Detroit within 24 hours, and the Com-
pany would pay the fees for a lawyer. Ralph Robinson then asked Coultes to circu-
late a petition around the plant and obtain the signatures of employees who would
support the Association.30
This record establishes that the Association falls within the statutory definition of
a labor organization, and that its function is not limited merely to the conveying of
information and keeping all the employees informed. The employee representatives
are not mere messengers for the transmission of information. They act to settle griev-
ances at the foreman level, and deal with management on a variety of subjects within
the employment relationship. I have found that the Association is a labor organization
within the meaning of Section 2(5) of the Act. Whirlpool Corporation, 126 NLRB
1117; Coppus Engineering Corporation, 115 NLRB 1387.
The evidence here is overwhelming that the idea for the Association originated with
the Company, and that its management supervisors were responsible for its conception.
The contention by Respondent's witnesses admitting questions about the Association
from employees, but then taking no action in furtherance of such inquiries, cannot
27 While not directly germane to the specific issue here there is, nevertheless, some
additional testimony showing pressure on employees to sign cards . Employee Coady testi-
fied to incidents that happened around his house during the period he was being asked to
sign a card. Employee Karslake also testified to unusual incidents happening around his
house during the same period, and Hawley testified he was run off the road three times.
23 The second offense calls for time off , and a third offense results in discharge.
29 Loshaw 's testimony on this conversation is that Ralph Robinson informed him that
the Company was "thinking about organizing a union just among the men themselves."
80 Ralph Robinson admitted in his testimony to a discussion with Coultes, and also that
he made an inquiry of Yuill about it. Robinson stated that Yuill also informed him that
he probably could have "something" within 24 hours. Robinson denied drafting a peti-
tion or asking Coultes to circulate one. Yuill admitted that Ralph Robinson asked him
about information on the Association , but stated that no one contacted him after this
inquiry and as a result he did not get any information on the matter.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be supported by this record. Within a few days following such conversations, three
identical petitions calling for the formation of the Association were circulated in the
plant , the Association then conducted a preliminary meeting on November 9 for
organizational purposes, and on November 11 the Association was given official recog-
nition by the Company, as aforestated. It is obvious that the Respondent's whole idea
of relieving tension and restoring harmony in the plant was to eliminate the organiza-
tional efforts of the UAW by supplanting it with the Association. The character and
degree of Respondent's support and assistance is clearly evident. In addition to the
above, the Respondent allowed the Association use of a bulletin board for the posting
of notices, and it also permitted the use of the plant premises for the Association's
executive board meetings. This record further reveals that at the initial organizing
meeting of the Association on November 9 Lee Williams, an inspector in the plant,
did most of the talking. Williams as spokesman and secretary for the Association
then informed those employees present that he had made a trip to Detroit and had
there contacted a lawyer by the name of Fleming, and that the recommendation to see
Fleming came from the Company. Williams then read to the group from what he
described to them as a "charter." At the second meeting of the Association member-
ship on November 23, Attorney Fleming was present, but it then became obvious to
the employees attending that Williams and Fleming had never before met. When
questioned about this Williams then stated that it was not Fleming at all whom he con-
tacted on his trip to Detroit, but that he had seen Attorney Pierce. It appears to me
that regardless of whether it was Fleming or Pierce, or both, from whom Williams
received advice in Detroit, the Respondent cannot avoid the direct references in this
record that the consultation was arranged by the Company. Furthermore, regardless
of Williams' capacity or his status to bind the Company with his conduct and state-
ments, Supervisor Ralph Robinson's statement to Coultes, as aforestated, duly estab-
lishes in itself that the Company did arrange for legal assistance to the Association in
the initial stages of its existence.
There is a good deal of testimony in this record relating to the negotiations between
the Association and the Company, and I will set forth certain portions of this evidence
later'on as it pertains more directly to the question of domination. For the purposes
here it is sufficient to state that at the various general membership meetings of the
Association no company supervisors were present. However, nothing is more clearly
established in the line of "company union" cases than the principle that acts of unlaw-
ful interference and assistance rendered during the initial stages of organization are
not dissipated merely because in succeeding stages assistance is withdrawn and the
organization then appears to function independently. It is also possible that had the
Respondent made an outright disavowal of support and repudiated the presence and
participation of its managerial staff when initial inquiries concerning the Association
were directed to them, and, had the three petitions been freely circulated at the employ-
ee's own independent will, it might then be said that the effects of unlawful support was
thereby dissipated, but this it did not do.
The Supreme Court has declared that "slight suggestions as to the employer's choice
between unions may have telling effect among men who know the consequences of
incurring the employer's strong displeasure"; and that "existence of-interference must
be determined by careful scrutiny of all the factors, often subtle, which restrain the
employees' choice and for which the employer may fairly be said to be responsible."
International Association of Machinists, Tool, etc. (Serrick Corporation) V. N.L.R B.,
311 U.S. 72, 78, 80. I find that the Respondent here did interfere with employees'
rights and unlawfully assisted the Association in violation of Section 8(a)(2) of
the Act.
Respondent also rendered illegal assistance and support to the Association when
the Company granted it recognition on November 11, on the basis of the three peti-
tions, as aforestated. The Company maintains, however, that the Association did
represent an uncoerced majority of the employees, that the petitions presented to the
Company contained 37 signatures, a majority,31 and that the Respondent was unaware
of a substantial representation claim by another labor organization. The Company
further argues that plenty of time existed for the UAW to put the Respondent on notice
of their claim prior to the recognition of the Association, and that no offer was made
by the UAW even after its letter to the Company on November 14, to prove its claimed
majority status 32 It is clear from my prior findings in this Decision that I cannot
accept the Respondent's contention and arguments that the Association, by numerical
a At the time in question there were 66 possible eligible unit employees
At no time did the UAW file a representation petition with the Board, but by Novem-
ber 14 the UAW had secured 39 signed authorization cards from the unit complement of
66 employees . General Counsel's Exhibits Nos . 3-a through 3-mm.
HIGGINS INDUSTRIES, INC. 119
majority of signatures on the three petitions, precluded any determination that a real
question concerning representation existed. A cardinal element of the Board's Mid-
west Piping doctrine is that an employer cannot arrogate unto himself authority to
determine which of two or more contending unions is entitled to recognition as the
exclusive bargaining agent 33 The numerical percentage of employees represented by
one of the contending unions does not foreclose the existence of a real dispute as to
representation so as to privilege a premature recognition.34 In view of the extensive
unlawful conduct by the Company, I cannot find that the Company had any reason-
able basis for believing that the signatures secured on the petitions, and on which the
Respondent's recognition of the Association was based, reflected the free choice of its
employees. As previously pointed out the Company was well aware of the UAW's
interest and its activity to organize the employees and also suspected and knew that
some of its employees were actively supporting the UAW. Therefore, it cannot be
successfully maintained that the Company was justified in taking upon itself to resolve
the claims of the rival unions. It is also now well settled by the Board that the filing
of a petition is no longer the test of the substantiality of a union's claim.35 In the
circumstances of this case, including the Respondent's unlawful opposition to the
UAW, it appears clear to me that the conflicting demands of the rival unions presented
a question concerning representation which was for the Board's, rather than the
Respondent's, determination. I accordingly find that by recognizing and negotiating
with the Association, in the face of an existing question concerning representation,
the Respondent granted unlawful assistance and support to the Association in violation
of Section 8(a)(2) and (1) of the Act. Iowa Beef Packers, Inc., 144 NLRB 615.36
Over the years the Board has distinguished between employer conduct which merely
gave illegal assistance to a labor organization, or which improperly interfered with the
employees' freedom to act independently on the matter, and activities which could be
said to "dominate" a labor organization. This dichotomy follows the language of
Section 8(a)(2), which makes it illegal for an employer "to dominate or interfere
with" a labor organization "or contribute financial or other support to it." The
material effect of this distinction has been that in the first situation the employer is
ordered to discontinue the illegal assistance or interference and not to deal with such
a union until it establishes majority status on the basis of a Board-conducted election,
while in the second case it is ordered to disestablish the assisted union entirely. In this
proceeding the General Counsel requests, in his brief, that a finding of domination be
made and that the Respondent be ordered to disestablish the independent. The record
in its entirety does not warrant such an extreme conclusion or remedial order.
There is no evidence that the Respondent participated in the internal activities of the
Association. The main contention by the General Counsel in support of his allegations
and arguments regarding domination appears to be that, because O'Rourke, Green,
Cherwinski, and Floyd Robinson attended the Association meetings, the Company
should, by implication, be held to have actively participated in the Association. This
contention is without merit since these individuals are not supervisors as detailed in an
earlier section of this Decision, and, therefore, their actions cannot be attributed or
imputed to the Company. Moreover, the exhibits and other evidence in this record
show that the Association is incorporated under the laws of the State of Michigan,
that the Association has its own officers independently selected by its members, col-
as Midwest Piping and Supply Co., 63 NLRB 1060.
94 Duralite Co., Inc., 132 NLRB 425, 427, footnote 4; Shea Chemical Corporation, 121
NLRB 1027.
°5 Air Master Corporation, etc., 142 NLRB 181, 188; Genesee Foundry Company, In-
corporated, 109 NLRB 1253.
m Yuill was interviewed during the investigative stage of this case, and his statements
were recorded in the usual manner and then submitted to him for signature. While Yuill
did not sign the document he did make penned corrections on it. A pretrial interview with
Leo Forman was also reduced to writing and submitted to him for his signature. After
a discussion with Yuill on the matter, Forman did not sign his interview statement.
Ralph Robinson also gave a pretrial affidavit to the Board agent, and Robinson signed his.
At the trial the General Counsel questioned these Respondent's supervisors as to certain
matters contained in these documents. As the record shows, all three witnesses were then
given the widest and broadest latitude at the hearing for a complete and full answer on
such questioning, and were afforded extensive opportunities to testify on all such matters.
However, I have totally disregarded all such documents and my resolving, reasoning, find-
ings, and conclusions herein are based only upon evidence adduced while the witnesses
testified under oath at the hearing before me.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lects dues, and pays its own expenses, that all of its general membership meetings have
been held in a public hall, and there is no evidence that the Company ever paid any
officers of the Association for time spent in meetings.
In addition to the above I am also unable to find any "domination" in the negotia-
tion sessions between the Company and the Association. The General Counsel argues
that a disestablishment order is warranted because the Company channeled and guided
the precise direction the Association would take by superintending the contractual
demands made by the Association, and then granting only those demands of which it
approved. An analysis of the Association's contract demands shows that in the first
instance a substantial package was presented to the Company. Seventeen demands
were made by the Association, and the Company granted 10 of them in whole or in
part.37 As examples, the Company agreed to retain all benefits the employees were
presently receiving; granted a 7-cent-an-hour across-the-board wage increase (the
Association was asking for 15 cents plus a cost-of-living increase); 38 pay shift rates
for holidays and vacations as requested by the Association were refused; extra pay on
midnight shift was given; vacation periods on length of service were denied, but still
open for discussion; and the initial selection of a doctor of the employees' own choice
was rejected 39 As noted herein, the officers and negotiators of the Association were
without any management status or control and freely presented to the Company sev-
eral highly desirable employee benefits. Had the Association really been under the
Respondent's wing or control, the Company would more likely have had fewer
demands and would have also, under such circumstances, been much more likely to
grant all of them.40 In the final analysis here no representatives of management took
any part in the meetings or'activities of the Association or attempted to influence its
policies after its assistance in the organizational stages 41
In conclusion I find, on the basis of the evidence as a whole, that an order to dis-
establish the Association would not be justified here. Accordingly, the Respondent
will be ordered to cease and desist from continuing the illegal assistance it has been
giving the Association, and not to accord it recognition as exclusive bargaining agent
until such time as it shall have proved its majority status pursuant to a Board-con-
ducted election.
R
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section III, above, occurring in connec-
tion with the operations of the Company 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 the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
which I find necessary to effectuate the policies of the Act.
I shall recommend that the Respondent reimburse Harvey Sides, Ichabud-Goff, and
Grant Powers for any loss of pay they may have suffered by reason of the discrimina-
tion against them, by payment to them of a sum of money equal to that which they
would have earned as wages from the date of the discrimination against them to the
date of their reinstatement less interim earnings and in a manner consistent with the
Board policy set out in F. W. Woolworth Company, 90 NLRB 289, to which shall be
added interest at the rate of 6 percent per annum as prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
37 The Association committee, which met with the Company on various dates after No-
vember 11, consisted of Richard Rich, Lee Williams, Warren Soper, Harold Ashley, and
Edward Lick, Sr
sa This raise is consistent with raises given by the Company over the past 5 years (Re-
spondent's Exhibit No. 14). Likewise, the timing of the raise, being approximately 1 year
from the date of the last raise, Is consistent with the time spread of raises over prior years
19 At the time,of this hearing the Company had a written but unsigned agreement with
the Association
40I have also taken into consideration the fact that the Association has filed grievances
against employees. Such a procedure, standing alone,and by itself, would add strength to
the strong argument by the General Counsel. , But coupled with all the other pertinent
circumstances as aforestated , the case is still not elevated to domination status by this
factor when the entire and complete situation is fully evaluated.
u Nutone, Incorporated, 112 NLRB 1153; Plastic Age Company, etc., 111 NLRB 121;
Guard Services, Inc., 134 NLRB 1753; and Jomas Apparel Company, 146 NLRB 526.
HIGGINS INDUSTRIES, INC. 121
It will be recommended that the Respondent offer Fred Spreeman and Harvey Sides
immediate and full reinstatement to their former or substantially equivalent positions
without prejudice to seniority and other rights and privileges , and make them whole
for any loss of earnings , if any, in accordance with the above formula.
I will further recommend that the Respondent withdraw all recognition from the
Association and refrain from recognizing and dealing with it , unless and until the
Association shall have demonstrated its exclusive majority status pursuant to a Board-
conducted election.
I shall also recommend that the Respondent preserve and make available to the
Board or its agents , upon request, for examination and copying , all payroll records,
social security payment ' records, timecards , personnel records and reports, and all
other records and reports , and all other records necessary to analyze the amount of
backpay due and the right to reinstatement under the terms of these recommenda-
tions in order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend that the Respondent cease and desist from , in any manner, infring-
ing upon the rights guaranteed in that section . N.L.R.B . V. Express Publishing Com-
pany, 312 U.S. 426 ; N.L.R.B. v. Entwistle Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Unions are labor organizations within the meaning of the Act and admit to
membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Fred Spree-
man, Harvey Sides, Ichabud Goff , and Grant Powers, thereby discouraging member-
ship in the above Unions , Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (3) of the Act.
4. By engaging in the conduct set forth in the section entitled "Interference,
Restraint , and Coercion ," the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By contributing unlawful assistance and support to Higgins Industries Employ-
ees' Association the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(2) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce 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 Act, I hereby recommend that Higgins Industries, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering in the formation of, or contributing assistance to, the Association,
or any other labor organization of their employees.
(b) Discouraging membership in the UAW, or in any other labor organization,
by discharging, refusing to reinstate, or in any other manner discriminating against
employees in regard to their hire or tenure of employment or any term or condition
of employment.
(c) Encouraging membership in the Association, or in any other labor organization.
(d) Interrogating, canvassing, and threatening employees with discharges, changes
in working conditions, and closing the plant in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(e) Promulgating or maintaining in effect any rule which prohibits its employees
from soliciting membership in the UAW, or any other labor organization, or from
engaging in other lawful concerted activities on company premises during nonworking
time.
(f) Engaging in the unlawful surveillance of union meetings.
(g) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Withhold all recognition from the Association as the exclusive representative
of the employees for the purpose of dealing with it concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other terms and conditions of
employment, unless and until such labor organization shall have been certified by the
Board as the exclusive bargaining representative of such employees.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Forthwith rescind its existing rule against solicitation to the extent that it
prohibits employees from soliciting membership in a labor organization or from
engaging in other lawful concerted activities on company premises during nonworking
time.
(c) Offer to Harvey Sides and Fred Spreeman immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their seniority
or other rights and privileges and make them whole for any loss of pay, if any, suffered
as a result of the discrimination against them. Reimburse Harvey Sides, Ichabud
Goff, and Grant Powers for any loss of pay suffered by them in accordance with the
provisions set forth in the section entitled "The Remedy."
(d) Post at its Vanderbilt, Michigan, plant copies of the attached notice marked
"Appendix." 42 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall, after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing, within 20 days from the
date of receipt of this Decision, what steps the Respondent has taken to comply
therewith 43
42 In the event that this Recommended Order be 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."
43 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify the Regional Director for Region 7, In writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effecutate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL NOT interfere with the formation of, or contribute assistance to,
Higgins Industries Employees ' Association , or any other labor organization of
our employees.
WE WILL NOT recognize the above-named Association , or any successor
thereof, as the exclusive representative of our employees for the purpose of
dealing with us concerning grievances , labor disputes, wages, rates of pay,
hours of employment , or other conditions of employment , unless and until
such labor organization shall have been certified by the Board as the exclusive
representative of such employees.
WE WILL NOT unlawfully engage in surveillance of employees' union activities.
WE WILL NOT promulgate or maintain in effect any rule which interferes with,
restrains , or coerces employees in the exercise of their right to self-organization.
WE WILL NOT interrogate , canvass, threaten discharges , changes in working
conditions , or closing of the plant because employees ' engage in union activities.
WE WILL NOT discourage membership in the (UAW) AFL-CIO, or any other
labor organization of our employees , by failing and refusing to reinstate any of
our employees , or otherwise discriminating in regard to their hire or tenure of
employment , or any term of condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self -organization, to form labor organi-
zations, to join or assist the Union , or any other labor organization , to bargain
collectively through representatives of their own choosing , or to engage in con-
certed activities for the purpose of collective bargaining , or other mutual aid or
protection , or to refrain from any or all such activities.
WE WILL offer to Fred Spreeman and Harvey Sides immediate and full rein-
statement to their former or a substantially equivalent position without prejudice
to seniority and other rights and privileges , and make them whole for any loss
of pay, if any, suffered as a result of the discrimination against them.
PLASTIC APPLICATORS, INC. 123
WE WILL reimburse Harvey Sides, Ichabud Goff, and Grant Powers for any
loss of pay they may have suffered by reason of the discrimination against them.
HIGGINS INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any question concerning this notice or compliance with its provisions.
Plastic Applicators, Inc. and Carpenters District Council of
New Orleans and Vicinity , Local 2258 , AFL-CIO . Case No.
15-CA-2408. December 15, 1964.
DECISION AND ORDER
On September 15, 1964, Trial Examiner Thomas N. Kessel issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices in violation 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 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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 Respondent's exceptions and brief,
and the entire record in this case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, with the following addition :
150 NLRB No. 16.