Hydraulic Accessories Co.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 864 (N.L.R.B. 1967)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydraulic Accessories Company and Walter
Burtenshaw and Employees ' Committee (of
Hydraulic Accessories Company at its
Warren , Michigan Plant ). Case 7-CA-5-630
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 30, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged 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. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Hydraulic
Accessories Company, Warren, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL M. SINGER, Trial Examiner: This case was
heard at Detroit, Michigan, on October 26 through October
28, 1966,' pursuant to a charge and amended charge filed
on July 12 and September 7 and a complaint issued on
September 8. The complaint, as amended at the hearing,
alleged that Respondent violated Section 8(a)(1), (2), and
(3) of the National Labor Relations Act, as amended, by
' Unless otherwise noted, all dates herein refer to 1966.
1 Transcript corrected by my order dated January 3, 1967.
General Counsel' s motion at the conclusion of the hearing to
conform the pleadings to the proof in minor respects is hereby
granted See Serv-Air Inc., 161 NLRB 382, fn. 1; Consolidated
Edison Co v N L R B , 305 U.S 197, 225
engaging in certain acts and conduct. Respondent in its
answer denied commission of the unfair labor practices
charged. All parties appeared and were afforded full
opportunity to be heard and to examine and cross-examine
witnesses . Only Respondent filed a brief.
Upon the entire record 2 and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, with its office and
place of business in Warren, Michigan, is engaged at its
Warren plant in providing general machine and job-shop
services for manufacturers of hydraulic products. During
the calendar year 1965, a representative period,
Respondent performed services and manufactured
products valued in excess of $500,000, of which over
$50,000 worth were for and sent to enterprises in States
other than Michigan. I find that at all material times
Respondent has been and is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW),
AFL-CIO (herein called the Union), at all material times
has been a labor organization within the meaning of
Section 2(5) of the Act.
For reasons hereinafter stated, Employees' Committee
at Respondent's Warren, Michigan, plant (herein called
the Committee or Employees' Committee at all material
times has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case are whether Respondent
violated: (1) Section 8(a)(2) of the Act, by dominating,
assisting, and interfering with the formation and
administration of the Employees' Committee; (2) Section
8(a)(3) of the Act, by reprimanding and taking disciplinary
action (a 3-day layoff) against an employee in reprisal for
union activities; and (3) Section 8(a)(1) of the Act, by the
above conduct and other acts, including threats of
reprisals and granting of benefits (wage increases) in order
to discourage union activity.
B. The Alleged 8(a)(1) and (2) Violations
1. Company President Monahan's interviews
The Union commenced its organizational campaign
among Respondent's employees in July 1965. The
campaign slowed down in November, some employees
having become "despondent" over its outcome. In
January, during a lull in the union drive Company
President Monahan summoned employees to his office
and separately discussed with each his complaints and
grievances.3 Subjects of discussion included wages,
3 Employee Hojnacki credibly testified that in early January,
Monahan, after expressing concern about "huddhng in groups"
and reduced production , asked Hgtnacki to ascertain the
employees ' "gripes." After doing as requested, Hojnacki
"suggested" that Monahan interview each employee to "find out
everybody's individual gripes "
165 NLRB No. 130
HYDRAULIC ACCESSORIES CO.
seniority, and job classifications. Three of the seven
employees testifying about these interviews stated that the
Union was also mentioned.4 Employee Jankila quoted
Monahan as saying he "understood there was a union
movement on, not much he could do, and if the union does
come in , business will have to go on as usual." Employee
Burtenshaw testified that he (Burtenshaw) "compared"
some of the conditions in the shop with those in "union
shops." Employee Schall testified that although, when he
brought up the Union, Monahan declined to discuss it
because it was "illegal," Schall nevertheless told Monahan
that the Union "would call another meeting" and that he
had asked the Union' s organizer , Czerwinski, "if he
couldn't hold off, that maybe the company could do
something for us, and maybe we wouldn't need a union."
Monahan assured Schall that "most of the things could be
ironed out without a union . Most of the complaints he had
heard up to that point could be taken care of very easily."
Monahan also told Schall that he "could be sure" that
"there would be a raise." Employee Woolner also quoted
Monahan that "there would be a wage increase in the
future."
Employee Hojnacki testified credibly that in the course
of his interview Monahan asked him what he "thougfit of -a
committee to be representing the people," to which
Hojnacki replied that "it would be a good idea. It would be
something that we didn't have before." Employee Woolner
credibly testified to the same effect, quoting Monahan that
"they were having a lot of trouble in the plant, and he
would like to straighten out anything he could." Neither
employee had previously heard any mention of such a
committee.5
2. The wage increases
On January 23, shortly after Monahan's interviews,
Respondent placed into effect a general wage increase for
all job classifications. Several employees testified that
their increases amounted to 15 cents an hour (in the case
of Burtenshaw, from $2.80 to $2.95).
3. The Employees' Committees
a. The first committee
Shortly after the Monahan interviews, Company
Superintendent Finn requested employee Mario (Onorio)
Iannucchi to pass out slips of paper ("ballots") among the
employees on his shift (the day shift in the hydraulic
division) to elect the shift's representatives on an
employee committee. Iannucchi obtained a pad from
Finn's desk, distributed ballots, and asked employees to
jot down four names, of whom the two receiving the most
votes would be elected. After collecting the ballots,
Iannucchi took them to Finn's office where he, Finn, and
another employee counted them. Iannucchi and Leonard
Hojnacki won the election. The balloting took place during
working hours, on company time.
Subsequently the committeemen met with Finn weekly
on Thursdays (the first two times after work hours and the
third time during work hours) and discussed employee
grievances and complaints on matters such as job
' Monahan did not testify at all
' Although denying he could "recollect too much talk" about a
committee , Schall later indicated that it was he who first "brought
it up" it up in his interview with Monahan
' The above findings on the Committee are based on the
uncontradicted and mutually consistent and credible testimony of
865
classifications, pensions, seniority, wages, and paid
holidays. Finn explained the Company's position on these
matters, promising to check into some. The last scheduled
(fourth) meeting with the Committee was canceled by Finn
upon receiving a letter from the Union on February 10,
claiming it had signed up a majority of Respondent's
employees.6
b. The second committee
On March 4 the Union filed its petition for a
representation election, which it lost on March 30 by a vote
of33to31.
Iannucchi testified credibly that since after the Board
election "some of the people" wanted to revive the
Employees' Committee, he asked Superintendent Finn if
the Committee could be reestablished. Finn's response
was that "if the employees wanted it, go ahead."
Iannucchi and Finn discussed the procedure for electing a
new committee. Finn testified that he thereafter "wrote
out what the employees" wanted, asked Company Vice
President Gray to compose "the proper language," and
directed one of the office girls to type up a notice for
posting (by Iannucchi) on the company bulletin board. The
notice, dated April 27, on company stationery, in the form
of a memorandum "To All Shop Personnel" from Finn,
read:
On Monday, May 2, 1966, each of you will be invited
to nominate, by secret ballot, a candidate from your
work unit, to represent you on the Hydraulic
Accessories Company-Employees' Committee.
The names of the three candidates from each work
unit that receive the greatest number of votes will
subsequently be posted on the bulletin board.
On Thursday, May 5, 1966, you will be given the
opportunity to vote, again by secret ballot, for one of
the three candidates in your work unit.
The individual that receives the greatest number of
votes from each work unit will represent that unit on
the Committee.
The Committee will consist of one member from each
of the following work units:
Hydraulic Division - Day Shift
Packing Division -Day Shift
Hydraulic Division -Afternoon Shift
Subsequently, two elections-one to select nominees and
the other the unit representative-were conducted in
accordance with the procedure outlined above. As in the
case of the first Employees' Committee, Iannucchi
distributed "ballots" which he made up from a pad in
Finn's office. He then passed them out among the
employees twice. Iannucchi took the "ballots" to Finn's
office where he, two other employees, and Finn counted
them. Both elections were conducted on company
premises and time.7
employees Iannucchi and Hojnacki, corroborated by the
testimony of Burtenshaw and Jankila.
r Employee Tempia, a second-shift (afternoon) employee,
credibly testified that he followed substantially the same
procedure in selecting the nominees and, later, the representative
for his shift
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finn and another high company official played a role at
least twice in selection of employee nominees for the
Committee. After the names of the three nominees for the
hydraulic day-shi#'t division (Iannucchi, Hojnacki, and
Burtenshaw) were! posted on the bulletin board, Hojnacki
asked Finn whether he had "the right to decline." Finn
promised to "find out." On the next day Vice President
Gray called Hojnacki into his office and asked him why he
"didn't want to be on this committee." When Hojnacki
explained that he had another part-time job and could not
spare the time, Gray assured him that since the
Committee would meet on company time, Hojnacki
"wouldn't be losing any time." Hojnacki thereupon agreed
to remain as a nominee but campaigned against himself.
Similarly, after Burtenshaw advised Finn that he "didn't
want to be a candidate," Gray summoned him to his office
and told him he "would like to have [him] run as a
candidate." Gray stated that he "felt that the people
looked up to [Burtenshaw] as a leader." Burtenshaw
insisted that he had "too much personal business to take
care of" and refused to run in the election. He was
thereafter replaced by Rudy Dressig, the employee with
the next most votes willing to run.
Iannucchi was elected representative of the day-shift
hydraulic division. He and the two men representing the
other two divisions met with company officials (Finn and
Gray) every Wednesday. At the first meeting, lasting 45 to
60 minutes, the Committeemen took up with management
grievances and "suggestions" passed on to them by
employees, including requests for rugs at machines, air
hoses, and a window in the restroom. Other subjects
discussed at this or later meetings included complaints
about distribution of paychecks, inaccuracy of a
timeclock, and parking lot conditions. The Company
usually rectified the grievances. At one meeting, Finn
instructed the Committeemen not to discuss "wages" and
"employment" since those matters were already
covered in a company booklet and "the committee was
formed purely for grievances, suggestions ." The booklet,
setting forth the Company's "guarantee relating to policies
and procedures, working conditions, wages," etc., was
issued by the Company on June 10, without prior
discussion with the Committee. The section therein
dealing with grievances, provided that any complaint
unresolved by step 1 (discussion between the aggrieved
employee and his foreman) was to be handled at
subsequent stages between management and
Committeemen.
Committeemen were paid for all time spent in meetings
with management during working hours. The Committee
did not hold any meetings with employees, did not collect
dues, and had no constitution or bylaws. On September 14
the Committee posted a notice on the company bulletin
board to the effect that it was being "terminated" as the
employees' "personal pipeline of communications with
management" in view of a "formal" complaint to the
National Labor Relations Board that its existence
constituted an unfair labor practice. The notice, signed by
the "Employees' Committee," concluded with the
statement: "The Charging Party is one of our fellow
workers.... no comment."8
' The findings herein as to the second as well as first
Employees' Committee are based on substantially uncontradicted
testimony, largely that of lannucchi, corroborated by others,
including Burtenshaw and Hojnacki Finn himself characterized
Iannucchi 's testimony as to the second Committee 's meetings as
C. The Alleged 8(a)(1) and (3) Violation
1. Burtenshaw's union activity
Walter Burtenshaw, a lathe operator on the first shift,
was 1 of about 16 employees attending the Union's first
meeting in October. He thereafter became the Union's
leading advocate at the plant. Burtenshaw attended all
union meetings , distributed union cards to employees on
the second as well as first shift, enlisted others to
distribute cards, and persuaded employees to join the
Union. When Schall, who originally contacted the Union,
became "despondent" over the organizational drive in
November (supra, B, 1), it was Burtenshaw to whom
International Representative Czerwinski turned to keep
the drive going. Burtenshaw "kept on plugging" and
insisting that "sooner or later " the Union was "going to get
this thing over the hill." He maintained daily telephone
contact with Czerwinski, asking the latter to see named
individuals. Pointing out at the Union's February 27
meeting that Burtenshaw was "very instrumental in
pushing and making the contacts in behalf of the Union,"
Czerwinski requested the members to "channel" all
matters through Burtenshaw because he was in constant
touch with him.
2. Superintendent Finn's alleged March 31 threat of
reprisal
On March 31, the day after the Union lost the election,
Burtenshaw, anxious "to clear the air," visited
Superintendent Finn and told him that although he "had
been pushing the Union" he "hoped that [they] could
continue to work together in the future." Finn replied,
"Well, we're not dumb here .... We know a few things
that are going on. And the next time the union comes
around ... anybody caught talking will go out the door, and
no questions asked." Finn also said "that before he would
let a union or anybody else come into the place and tell
him how to run it that he would walk out." As Burtenshaw
left Finn's office he encountered his immediate superior,
Foreman Mott, and told him he had just seen Finn "and
had got a few things off [his] chest." Burtenshaw added
that he "hoped we could work together in the future," to
which Mott said, "All right," and they shook hands.
Finn testified that after Burtenshaw identified himself
as "a union organizer," Burtenshaw remarked that "if the
company is going to rub my nose dirty, I might just as well
quit"; that Finn thereupon "guarantee[d] nothing will
happen" so long as Burtenshaw maintained production
standards and followed company rules; that when
Burtenshaw complained that Mott "was picking on him,"
he suggested that he talk and "bury this axe with Bob
Mott"; and that in the course of the conversation he
remarked that he "would not permit union activities to be
carried on during working hours" and if he "caught them,
they could be fired." Mott testified that in approaching
him, Burtenshaw stated that he "wanted to turn over a
new leaf, that he wanted things cleared up between him
and I and wanted to shake hands and start new. He was
sorry he had goofed off so much and he would try to do
"quite accurate " Neither Finn nor Gray contradicted the
statements attributed to them by Hojnacki and Burtenshaw
urging them to remain candidates for the second Comi.uttee Gray
did not testify.
HYDRAULIC ACCESSORIES CO.
better in the future." According to Mott, he told
Burtenshaw that "if he just followed company rules and
did what he was supposed to be doing, nobody would
bother him and so we shook hands and that was about it."
The significant discrepancy in the testimony of Finn and
Burtenshaw is in the nature of Finn's alleged remarks
concerning union discussion or activity. While Finn
testified that he only told Burtenshaw he would not permit
such conduct during working hours, Burtenshaw did not
attribute to Finn such qualification. Although Burtenshaw
impressed me as a basically honest witness, his testimony
on this point reveals some uncertainty. He frankly
admitted that Finn had spoken of restricted union
activities during working hours "in the past," but, as he
put it, "I can't say that he said it at that meeting." I credit
Finn's testimony on this point.
3. Foremen Clark's and Mott's antiunion remarks
Burtenshaw testified that some time after the Board
election, as he was walking out of the shop, Buster Clark,
then a night-shift foreman, warned him to "Watch out ....
The word is out .... They're out to get you for your union
activities." Similarly, Jankila, a night-shift employee
working under Clark, testified that around the same time,
as he was leaving for lunch one evening, Clark came up to
him and said that he (Jankila) and Burtenshaw were on
Foreman Mott's "s-t list," and asked Jankila to "warn"
Burtenshaw. I credit this straightforward and convincing
testimony by Burtenshaw and Jankila, corroborated as it
was by Clark.
Clark also testified in detail as to two conversations with
Mott, in which the latter told Clark that: (1) Mott was going
"after" Burtenshaw as a "union negotiator"; and (2)
Jankila was "at the top of [Mott's] s-t list" because he,
too, was "a union negotiator." Mott allegedly could not
"recall" talking to Clark concerning Burtenshaw, nor
"remember" any conversation concerning Jankila,
claiming that his conversations with Clark were always
confined to "business" matters.
I credit the testimony of Clark, who impressed me as a
frank, honest witness.9 On the other hand, Mott appeared
not altogether averse to coloring his testimony in order to
present his version of an incident in the best possible light
for Respondent.
4. The alleged May 9 reprimand to Burtenshaw
Burtenshaw testified that while at his workbench in May
he was either leaning against a skid (where materials are
kept) or had his leg thrown over it when Mott came by and
said, "Stand up when you're working." Burtenshaw
' In crediting Clark I have not overlooked the fact that 4
months before the hearing he was fired by Respondent for cause
("drunkenness") Clark displayed no grudge or anticompany bias
on the witness stand
10 For reasons hereinafter shown, it is unnecessary to resolve
the conflicting details between Burtenshaw 's and Mott 's versions
Burtenshaw 's recollection of the event was vague , since among
other things he admitted that he could not recall Mott's answer to
his assertion that his legs were bothering him, while conceding
that Mott "could have" suggested that he ought to "excuse"
himself for the rest of the day
11 Prior to this incident the employees voted to turn down "a
definite" 10-minute rest period in the afternoon, preferring to
867
replied that his legs were "hurting" and that he was
"trying to take some weight off of them." The incident did
not result in a written reprimand. According to
Burtenshaw he had not previously been told "how to stand
at [his] machine" and standing in the position he
described was not unusual.
Mott testified that Burtenshaw was actually sitting on
his bench while working; Burtenshaw explained that he
had "a sore leg" and "was resting it"; and when he told
Burtenshaw he should have obtained permission to
operate the machine sitting, Burtenshaw remarked, "If I
can't set down and rest my leg I might as well take off and
go home the rest of the day." Mott replied that "if he felt
as though he had to go home the rest of the day, he could
leave." Mott insisted that in order to operate Burtenshaw's
turret lathe machine properly and efficiently, it was
necessary "to stand next to the machine." Burtenshaw
remained at work, operating the machine in standing
position, as instructed.10
5. The July 11 reprimand and disciplinary action against
Burtenshaw
Burtenshaw testified that on July 11, as he returned
from the vending machine to his workbench with a cup of
coffee and was opening his toolbox to get a piece of cake,
Foreman Mott walked over to him and said, "We don't
have a 10-minute coffee break around here." Explaining
that he was not taking such a break, Burtenshaw said that
if Mott "didn't quit riding me and didn't quit
discriminating that I was going to report him." When Mott
asked "report me to who," Burtenshaw answered, "I'll
report you to the Labor Relations Board." Mott replied,
"Well ... I'll show you what I'm going to do about it" and
proceeded to his office. Shortly afterward Burtenshaw
went to Mott's desk and explained that it was his
"understanding that we voted for this . . . that we could
take coffee any time of the day as long as we took it back to
our machines."11 Mott replied, "Here's what I'm going to
do about it," pulling a warning slip out of a folder and
giving it to Burtenshaw and asking him to "Let me know
what their answer is."
The warning notice described Burtenshaw's infraction
as "loitering and unauthorized coffee break," noting that
this was his second notice,12 and directing him to take a
"three-day disciplinary lay-off," effective the next day.
Burtenshaw took the 3 days off and then returned to work.
According to Burtenshaw, he was standing by the
machine and running it when Mott came up to see him;
and he never got to eat his piece of cake. Amplifying his
claim that Mott had been "discriminating" against him,
Burtenshaw explained that although he had "got along
continue the existing practice of obtaining " the vending machine
products for consumption while working " at their machines In
announcing the employee vote in its May 18 memorandum to its
employees , Respondent stated "However, loitering or
unauthorized absence from your station of work, will, as in the
past , be considered a violation subject to disciplinary action " The
vote did not affect the employees ' practice of taking a 10-mi n ute
coffee break in the morning
12 Burtenshaw was one of about seven employees reprimanded
3 years earlier (September 7, 1963 ) for "washing up before 4 25
p in " and for "unauthorized absence from work station "
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good" with "the bosses" until the union election, Mott
"seemed like he was riding" him thereafter.13
Mott's version of the July 11 incident accords in
substantial part with Burtenshaw's.'a Mott testified that
after he "watched" Burtenshaw awhile he walked over to
him, observed him sitting on the end of his bench eating a
roll with coffee (the motor was running but the machine
was not in operation), and asked if he was not aware that
the men had voted down a 10-minute afternoon
coffeebreak. Burtenshaw replied that he "knew it was
turned down, but he thought it was all right for him to go
back to the machine and have his coffee." When Mott told
him that he could get his coffee "as long as he continued
working," Burtenshaw said that Mott was "picking on him
and he would take [him] to the Labor Relations Board."
Mott testified, "I was getting hot and he was getting hot
and so I walked away." Mott further testified that he
thereafter made out the warning slip ; that after he handed
it to Burtenshaw the latter asked him to "tear it up and
forget about it," which he refused to do.
D. Conclusions
1. The 8(a)(2) and (1) violation
The substantially undisputed evidence amply supports
the allegation in the complaint that Respondent dominated
and interfered with the formation and administration of a
labor organization and contributed support thereto,
thereby violating Section 8(a)(2) and (1) of the Act. As
found, in his interview with employees in January 1966,
Company President Monahan raised the desirability of
setting up a committee, and the Committee was promptly
thereafter formed, to be dissolved only after Respondent
received the Union's February 10 letter claiming to
represent a majority of the employees.15 Subsequent to the
Union's defeat in the March 30 election, Superintendent
Finn concurred in revival of the Committee "if the
employees wanted it." After discussing the matter with
employee Iannucchi, Finn and Vice President Gray
drafted a notice to the employees, signed by Finn, setting
forth the procedure for electing the candidates in one
election and the work-unit (or division) representatives in a
second election. Finn helped tally the ballots in both
elections. Finn and Gray also intervened in the selection of
nominees , encouraging two employees (Hojnacki and
Burtenshaw) to run as candidates. When Hojnacki
explained his reluctance to serve on the new Committee
because he could not spare the time, Finn assured him
that the Committee would meet on company time so that
he "wouldn't be losing any time."
Respondent's interference with and control of the
Employees' Committee is evidenced by the Committee's
13 Burtenshaw cited as illustrations the incident in which he
was "leaning against the skid," described supra, another incident
in which Mott unjustifiably upbraided him for faultily cutting one
out of nearly 200 pieces "of a tough job," and Mott's habit of
staring at and closely watching him "to make a wrong move "
Mott did not contradict Burtenshaw 's testimony on these points
Mott cited another (preelection) incident in January when he
broke up a group standing by the coffee machine, according to
Mott, all complied without comment with his direction to return to
their machines, except Burtenshaw who, while complying,
complained that Mott "was picking on him."
141 credit Burtenshaw 's account to the extent it differs from
Mott's As previously noted, Burtenshaw impressed me as an
essentially truthful witness whereas Mott was prone to conform
his testimony to what he regarded as the best interest of his
employer.
operation and function, as well as formation. All
committee meetings were held on company time and
property. The Company compensated the employee
members for time spent at meetings . The Committee
collected no dues and had no fixed means of financial
support. It had no constitution or -bylaws. It held no
general membership meetings and did not report to the
employees as a group. Furthermore, Respondent
instructed the Committee as to what subjects it could or
could not discuss. ("Wages" and "employment" were
proscribed topics.) Finally, Respondent had the implicit
power to control the composition of the Committee by
exercising its managerial power to transfer, promote, or
discharge the employee representatives.
Contrary to Respondent's contention, the Employees'
Committee constituted a labor organization within the
meaning of the Act, despite its limited role in representing
employees. Section 2(5) defines "labor organization" in
broad terms so as to include "any organization of any kind,
or any agency or employee representation committee or
plan, in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers
concerning grievances ... or conditions of work." Here,
the employees "participate [d] " in the Committee through
their elected (work-unit or division) representatives who
met and conducted business with management. The
Committee existed for the purpose of-and actually
engaged in-"dealing with" management concerning
"grievances" or "conditions of employment." And the
Company acted on complaints made by the Committee.
Indeed, Respondent's June 10 booklet on company
"policies and procedures" expressly provided for the
processing of employee grievances through the
Committee.
The fact that the Committee merely presented
"suggestions" or recommendations for improving working
conditions is not determinative. The term "dealing with,"
as used in the statute, is broader than the term "bargain
with" and includes discussions with management of
proposals such as those advanced on behalf of employees
by the Committee herein. See N.L.R.B. v. Cabot Carbon
Company, 360 U.S. 203, 211-213. The obvious purpose of
the broad definition of the term "labor organization" was
to bring within the proscription of Section 8(a)(2) of the Act
precisely such entities as the Committee, which, by virtue
of their employer-dominated character, exercise no more
than advisory functions but nevertheless are continuing
obstacles to the full exercise of the employees' right to
self-organization and to bargain collectively. Porto Mills
Inc., 149 NLRB 1454, 1472. The fact that all benefits
sought by the Committee depended solely upon
Respondent' s magnanimity demonstrates the servile and
IS Since Respondent's conduct respecting the formation and
operation of the first Committee occurred outside the 6-month
statutory limitation, prescribed in Sec 10(b) of the Act, I denied
General Counsel 's motion at the hearing to amend the complaint
so as to allege that conduct as a violation of Sec 8 ( a)(2) However,
I permitted General Counsel to adduce evidence as to
Respondent's conduct poor to the cutoff date under the well-
settled rule that, while events outside the Sec 10(b) period may
not constitute the basis for an unfair labor practice finding, they
may be used as background for "shedding light upon the
company's actions during the statutory period " N L.R B v
General Shoe Corporation, 192 F.2d 504, 507 (C A 6), cert denied
343 U S 904; N L R B v Sharples Chemicals, Inc, 209 F 2d 645,
653 (C.A. 6)
HYDRAULIC ACCESSORIES CO.
ineffective character of the labor organization as a
bargaining mechanism. See N.L.R.B. v. James H.
Matthews Company, 156 F.2d 706, 708 (C.A. 3); General
Shoe Corp., supra, 192 F.2d at 507; N.L.R.B. v. Stow
Manufacturing Co., 217 F.2d 900, 903-904 (C.A. 2).
I conclude that Respondent dominated, assisted, and
supported the second Employees' Committee, a labor
organization, in violation of Section 8(a)(2) and (1) of the
Act.
2. The 8(a)(3) and (1) violation
(a)
General Counsel's contention that Respondent violated
Section 8(a)(3) and (1) is predicated on Foreman Mott's oral
reprimand to Burtenshaw in May for leaning against a skid
or sitting on his workbench while working; and Mott's
written July 11 reprimand and disciplinary action (3-day
suspension ) against Burtenshaw for allegedly taking an
unauthorized coffeebreak. It goes without saying, as
Respondent urges, that an employer retains under the
statute his right to discipline employees, so long as his
action is not motivated-exclusively or substantially-by
union animus. 16 In issue here is whether the
"disciplinary" actions were thus motivated.
(b)
The record as a whole does not support the allegation in
the complaint that the May "reprimand" was
discriminatorily motivated. The incident was of dubious
significance irrespective as to whether Burtenshaw's or
Mott's account thereof is credited. On seeing Burtenshaw
operate his machine leaning against a skid (as Burtenshaw
testified) or sitting on his bench (as Mott testified), Mott
directed him to operate it standing. When Burtenshaw
claimed that his leg was sore, Mott told him to take leave if
his condition prevented proper operation of the machine.
Burtenshaw decided to remain at work, running his
machine while standing. I find that Mott's conduct fell
within the normal area of routine day-to-day operating
decision relating to the manner in which work is to be
performed.
(c)
The July 11 incident, however, stands on a different
footing. The substantially uncontradicted facts show that
on noticing Burtenshaw with a cup of coffee and cake (or
roll) at his bench, Mott upbraided him for taking an
unauthorized coffeebreak. Disputing Mott's assertion that
he was in breach of the Company's rule against taking
afternoon breaks, Burtenshaw complained that Mott was
"riding" or "picking on him," and stated that unless Mott
"quit discriminating" against him he would "report" him
to the National Labor Relations Board. Mott then wrote
'6 "[T]he protective mantle of Section 7 is tempered by the
employer's right to exact a day's work for a day's pay and to
maintain discipline, and does not reach activities which
inherently carry with them a tendency toward, or likelihood of,
disturbing efficient operation of the employer' s business "
Caterpillar Tractor Company v N L R.B., 230 F 2d 357, 358
(C.A 7)
'r Mott conceded that Burtenshaw 's machine was running at
the time, but insisted that Burtenshaw was not "operating" it I
credit Burtenshaw's testimony to the effect that he could not
physically operate the machine while getting his coffee from the
869
out a warning slip and suspended Burtenshaw for 3 days
for "loitering and unauthorized coffee break."
On the basis of the entire record, I am persuaded that it
was Burtenshaw' s unionism rather than his alleged
infraction of the coffeebreak rule that motivated the
disciplinary layoff.
To begin with, the incident appears to be
disproportionately trivial in relation to the disciplinary
action meted out. Respondent admits (br. p. 3) that its rule
"permits employees to have coffee and eat" so long as the
employees continue to work. Burtenshaw's credited
testimony indicates that Burtenshaw did only that. 17 Mott
admitted that under the Company' s rules an employee
could make as many trips as desired to the vending
machines for coffee, cookies, candy, etc., and it "didn't
matter what they take as long as they went back to their
machine . . . to work." It is undisputed that there were "a
few good coffee drinkers" on Burtenshaw's shift, some
drinking from four to seven cups of coffee during the day,
and some occasionally partaking of cake, cookies, or a
sandwich with the coffee.'' In some cases , employees
working on "a greasy job" would take additional time to
wash their hands before going for coffee. There is no
evidence of any recent management complaints against
any employee conduct in this respect except in the case of
Burtenshaw.'" Nor is there any evidence of production
loss as the result of Burtenshaw's conduct. On the basis of
the total situation I am convinced that the incident was too
inconsequential to be the real ground for Burtenshaw's
suspension . The insubstantiality of Respondent 's reasons
for its action fortifies the conclusion that Burtenshaw's
offense would not have prompted his suspension were it
not for his leading union advocacy.
Burtenshaw was the Union's chief contact with the plant
employees. It was he who "pushed" the Union when less
hearty unionists were ready to give up. There is no
question that Respondent was aware of his union
leadership. Company Vice President Gray recognized his
influence with employees when he sought in May to
prevail on him to reconsider his decision not to run for
membership on the Employees' Committee, a Company-
dominated device to supplant a union . As shown above,
Mott (who meted out the punishment) admitted to a fellow
supervisor that Burtenshaw was one of the two men he
(Mott) was "after" because of union activities.
I find and conclude that the preponderance of credible
evidence and the reasonable inferences to be drawn
therefrom establish that the dominant motivation for
Respondent's July 11 reprimand and 3-day disciplinary
layoff of Burtenshaw was its opposition to Burtenshaw's
leading union advocacy. I further find that the reasons
advanced by Respondent for the disciplinary action were
pretexts to cloak the true ground for its action. It follows,
and I conclude, that Respondent by its action violated
Section 8(a)(3) and (1) of the Act.
vending machine and while in the process of reaching for a piece
of cake in his toolbox Because of Mott's intervention,
Burtenshaw never got "a chance" to unwrap the cake
's Burtenshaw normally went to the coffee machine only once
or twice an afternoon
'9 Hojnacki, who described himself as "a pretty good drinker"
(four or five cups a day sometimes with cake ), testified that no one
ever complained about his coffee habits Mario lannucchi, an
even greater coffee drinker, recalled only one instance-2-1/2 or 3
years earlier-when anyone said anything to him about his coffee
routine
299-352 0-70-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged independent 8(a)(1) violations
(a)
I find that Foreman Clark's repetition to employees of
Foreman Mott's statements to Clark that he (Mott) was
"out to get" Burtenshaw and that Burtenshaw and Jankila
were on Mott's "s-t list" because of their union activities
constituted independent violations of Section 8(a)(1) of the
Act. Clark's communications constituted company threats
of reprisal for exercising the right to self-organization.
Revelation by an apparently friendly supervisor such as
Clark of future management reprisals for union activity
undoubtedly has even greater inhibitory impact upon self-
organizational activity than direct threats by an outspoken
antiunion supervisor, given to making extravagant
antiunion statements.
(b)
I find that the following conduct by Respondent's
supervisors did not constitute unlawful interference,
restraint, or coercion:
(i) Foreman Mott's revelations to Clark that Mott was
going after Burtenshaw and that Jankila was on Mott's
"s-t list," because of their union activities since such
statements were communicated to a fellow foreman. (As
previously noted, only Clark's repetition of those remarks
to employees constituted unlawful interference, restraint,
and coercion.)
(ii) Superintendent Finn's alleged March 31 threat to
Burtenshaw that any employee caught discussing or
engaging in union activity would be fired, since Finn's
statement related to union activity during working hours.
Finn's further remark that "he would walk out" "before he
would let a union or anybody else ... tell him how to run"
the Company, at most evidenced only antiunion
disposition, not illegal restraint or coercion. See Kaufman-
Straus Company,137 NLRB 151,181.
(iii) Respondent's January 23 general wage increase.
The record as a whole does not establish that
Respondent's action was motivated by a desire to interfere
with or restrain employee organizational activity. Insofar
as it appears, the wage increases were announced during a
lull in organizational activity and in response to employee
complaints and grievances to Company President
Monahan.
CONCLUSIONS OF LAW
1. The Employees' Committee at Respondent's
Warren, Michigan, plant formed in April 1966, at all
material times has been a labor organization within the
meaning of Section 2(5) of the Act.
2. By dominating, assisting, supporting, and interfering
with the formation and administration of said Employees'
Committee, Respondent violated Section 8(a)(2) of the Act.
3. By reprimanding and taking disciplinary action
against employee Walter Burtenshaw because of his union
sympathies and activities, Respondent discriminated in
regard to the hire and tenure of his employment, in
violation of Section 8(a)(3) of the Act.
4. By the foregoing conduct and by threatening
employees with reprisals for engaging in union activities,
20 The record shows that on September 14 the Committee posted
a notice to the effect that it was being terminated because of the
pending unfair labor practice charges. The Committee's action
Respondent interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights and
thereby engaged in unfair labor practices, in violation of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), (2), and (3) of the
Act, I shall recommend the customary cease-and-desist
order and affirmative relief conventionally ordered in
cases of this nature. Respondent shall withdraw all
recognition from and completely disestablish the
Employees' Committee.20 Respondent shall also make
whole the employee discriminated against (Walter
Burtenshaw) for any loss of wages suffered by reason of
his 3-day discriminatory layoff, with interest to be
computed in the manner prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716. It shall expunge from
Burtenshaw's personnel file the July 11 written warning
notice, so that such warning will not be a blot upon his
employment record in the future. See Graber
Manufacturing Company, Inc., 158 NLRB 244; General
Electric Company, 155 NLRB 1365.
Because of the nature and extent of the unfair labor
practices engaged in by Respondent, I deem it necessary
to recommend that Respondent be required to cease and
desist from infringing in any manner upon the rights of
employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following:
RECOMMENDED ORDER
Hydraulic Accessories Company, Warren , Michigan, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or
administration of the Employees ' Committee at
Respondent 's Warren, Michigan, plant , or of any other
labor organization of its employees , and from contributing
financial or other support to any labor organization, and
from otherwise interfering with the representation of its
employees through a labor organization of their own
choosing.
(b) Recognizing or bargaining with the above
Employees' Committee , or any successor thereto, as the
representative of any of its employees for the purpose of
dealing with Respondent concerning grievances, labor
disputes , wages, rates of pay, hours of employment, or
other conditions of employment.
(c) Discouraging membership in and lawful activities on
behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other labor
organization of its employees , by reprimanding , taking
disciplinary action against , laying off or suspending, or by
otherwise penalizing employees in regard to hire or tenure
did not constitute company action nor does it obviate compliance
with the requirements of this Recommended Order
HYDRAULIC ACCESSORIES CO.
of employment or any term or condition of employment
because of their union membership or activity.
(d) Threatening employees, directly or indirectly, with
reprisals because of union membership, sympathy,
support, or activity.
(e) Interfering in any other manner with, or restraining,
or coercing any employee in the exercise of his right to
self-organization, to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of his own choosing; to engage in concerted activities
for the purposes of collective bargaining or other mutual
aid or protection; or to refrain from any and all such
activities.
2. Take tie following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from, and
completely disestablish, the above-named Employees'
Committee, as the representative of any of its employees
for the purpose of dealing with Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
(b) Make whole Walter Burtenshaw for any loss of
wages suffered by him by reason of the discrimination
against him, in the manner set forth in "The Remedy"
section of this Decision.
(c) Remove and expunge from the personnel file of
Walter Burtenshaw the written warning notice issued to
him on July 11, 1966.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its plant in Warren, Michigan, copies of the
attached notice marked "Appendix."Z1 Copies of said
notice, to be furnished by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply herewith?'
IT IS FURTHER RECOMMENDED that the complaint, as
amended, be dismissed in all other respects.
R1 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
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 "
22 In the event that this Recommended Order is 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
871
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT dominate or interfere with the
formation or administration of the Employees'
Committee at our Warren , Michigan , plant, or any
other labor organization , or contribute financial or
other support thereto.
WE WILL NOT recognize , bargain, or otherwise deal
with the above-named Employees ' Committee, or any
successor thereto, and we hereby permanently
withdraw recognition from and disestablish the
Employees ' Committee as representative of any of our
employees for the purpose, in whole or part , of dealing
with or discussing grievances , labor disputes, wages,
rates of pay , hours of employment , or conditions of
work.
WE WILL NOT discourage membership in and lawful
activities on behalf of International Union, United
Automobile , Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, or any other
labor organization of our employees , by reprimanding,
taking disciplinary action against , or suspending, or
by otherwise penalizing employees because of their
union membership or activity.
WE WILL make Walter Burtenshaw whole for any
loss of wages he may have suffered as a result of the
discrimination against him.
WE WILL remove and expunge from our personnel
record of Walter Burtenshaw the warning notice
issued to him by us on July 11, 1966.
WE WILL NOT directly or indirectly threaten
employees with reprisals because of union
membership , sympathy, support , or activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization , to form labor organizations,
to join or assist any labor organization , to bargain
collectively through representatives of their own
choosing , to engage in concerted activities for the
purposes of collective bargaining or other mutual aid
or protection ; or to refrain from engaging in any or all
such activities.
HYDRAULIC ACCESSORIES
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.