Keeler Brass Co.

National Labor Relations Board - Board Decisions

Jul 14, 1995

317 N.L.R.B. 1110 (N.L.R.B. 1995)

1110
317 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 1, 1994, Charles J. Morris moved to file an ami-
cus brief. The Board denied the motion by Order dated September
8, 1994 (Member Cohen and former Member Devaney dissenting).
Thereafter Morris filed a notice of representation of the Charging
Parties. On January 23, 1994, the Charging Parties filed a motion
for leave to file a supplemental brief. The Board denied the motion
by Order dated January 26, 1995. On January 27, 1995, the Charg-
ing Parties filed a motion for reconsideration. The Board denied the
motion by Order dated January 31, 1995.
2 All subsequent dates are in 1991 unless otherwise indicated. The
charge was filed on August 8, 1991; thus the 10(b) period began on
February 8, 1991.
3 The modified 1991 Grievance and Complaint procedure estab-
lished by the Respondent is set forth in Appendix A.
4 The judge’s finding that the first meeting was held on June 26
is incorrect. This error is immaterial to our disposition of this case.
Keeler Brass Automotive Group, a division of
Keeler Brass Co., K B Lighting, a joint venture
of Keeler Brass Co. and Robert Puckett and
Lynn Wells. Case 7–CA–32185
July 14, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On October 1, 1992, Administrative Law Judge El-
bert D. Gadsden issued the attached decision. There-
after, the General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in oppo-
sition to the General Counsel’s exceptions and in sup-
port of the judge’s decision.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs1
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.
The issues presented are whether the Keeler Brass
Grievance Committee is a labor organization and, if so,
whether the Respondent dominated or interfered with
the formation or administration of the labor organiza-
tion and contributed financial and other support to it,
in violation of Section 8(a)(2) and (1) of the Act. The
judge found that the Grievance Committee is not a
labor organization within the meaning of Section 2(5)
of the Act because the Respondent did not ‘‘deal
with’’ the Committee, and he accordingly dismissed
the complaint.
The General Counsel excepts, arguing that the Com-
mittee is a statutory labor organization, that the Re-
spondent dominated it, and that the Committee should
be disestablished. We find merit in the General Coun-
sel’s position.
I. FACTUAL BACKGROUND
The Respondent manufactures automotive parts and
related products at its Kentwood and Stevens plants in
Kentwood and Grand Rapids, Michigan. The Griev-
ance Committee was established in 1983. The purpose
of the Committee and the procedure governing the
Committee’s operation were outlined by the Respond-
ent’s human resources department (HRD) in a Novem-
ber 15, 1983 document entitled ‘‘Grievance and Com-
plaint Procedure.’’
About 8 years later, by HRD memorandum dated
March 26, 1991,2 the Respondent’s vice president,
Leck, informed employees that
we have been studying different approaches to the
establishment of a new grievance procedure. After
much thought and input, we have decided to hold
a new election. The excellent performance of the
committee during the past several months was a
great factor in our decision to continue the prac-
tice of selection by election.
The memo advised employees that positions on the
Committee would be for 2-year terms, that interested
employees should sign up, and that more information
would be forthcoming.
About March 26, the Respondent posted a signup
list and eligibility rules. About May 3, the Respondent
posted a letter to employees announcing the approved
plant candidates for a May 13 election and the election
procedures. On May 13, the Respondent posted an out-
line of its election procedures. On May 15, Vice Presi-
dent Leck announced the names of those elected to the
Grievance Committee.
Leck testified that he had amended the original
Grievance and Complaint Procedure in 1991.3 The Re-
spondent reduced Grievance Committee membership
from nine representatives to five, changed the regular
meeting days, eliminated all references to a separate
‘‘Complaint Committee,’’ and abolished the Commit-
tee’s discretion to call special meetings without Leck’s
prior approval. Leck acknowledged that under the
amended policy, the Committee meets in the Respond-
ent’s conference room, and the Respondent pays em-
ployee-members for time spent on Committee business
and provides secretarial or clerical assistance when re-
quested.
The Grievance Committee prepares minutes of its
meetings and forwards these minutes to the human re-
sources department where a summary is typed for post-
ing on the employee bulletin boards. The first meeting
of the newly elected Committee was held on June 12.4
Minutes from the June 26 meeting establish that
Leck attended this meeting to clarify a misunderstand-
ing concerning the number of committee members, in-
cluding alternates. Leck presented the Committee with
a letter which provided that the number of Committee
members would be five, three from the Kentwood
plant and two from the Stevens plant, with no alter-
nate. The Committee then agreed.
1111KEELER BRASS CO.
5 Caudill had previously been an HRD representative for the
Kentwood facility.
6 The secretary acts as liaison with HRD by communicating Com-
mittee decisions to HRD in the event that HRD wishes to respond
to recommendations of the Committee. See pars. IV, 3, d of the
Grievance and Complaint Procedure set forth in Appendix A.
7 The summary prepared by HRD concerning the August 28 Com-
mittee meeting states: ‘‘Suggestions were made to Mr. Leck on pos-
sible solutions to the problem [the Clinton grievance-no call, no
show policy]. Mr. Leck stated he would consider the various propos-
als and return to the Committee with a decision.’’
8 On cross-examination by the Respondent, Kruyswijk testified that
the Clinton case was only the Committee’s second grievance. He
further testified that because the Committee was unfamiliar with lim-
itations on its authority, it proposed items 1 through 6 above because
it needed these ‘‘questions’’ answered prior to making a ‘‘final de-
liberation.’’
9 Contrary to the Respondent’s contention on brief, Kruyswijk’s
testimony establishes that after the Respondent’s consideration of the
no-call, no-show policy, the policy was changed, not merely clari-
fied.
An HRD summary dated July 29 reflects that the
Committee discussed and clarified policies contained
in the Respondent’s policy and procedure manual. Vice
President Leck and Personnel Manager Patricia
Caudill5 assisted in this discussion and clarification.
The July 10 Committee minutes address employee
Kevin Clinton’s discharge grievance and a related mis-
understanding about Committee access to employee
personnel files. Chairperson Gerard Kruyswijk testified
that the Committee instructed its secretary to inform
HRD that a grievant should authorize Committee ac-
cess to personnel documents. The Committee secretary
agreed to discuss this issue with HRD.6
Committee minutes from August 7 reflect further
discussion of Clinton’s grievance. The Committee
members came to a ‘‘mutual understanding’’ that Clin-
ton had a ‘‘negative record’’ and ‘‘has not been an
honorable asset to the Company.’’ Personnel Manager
Caudill (the HRD representative to the Committee and
an admitted supervisor) suggested that the Committee
give Clinton the opportunity to plead his case. Clinton
did so, apparently on August 14. Committee minutes
of August 28 reflect that ‘‘all the members were in fa-
vour of re-hiring Kevin as a new employee . . . except
(one committee member).’’
Chairperson Kruyswijk testified that the Committee
decided that the Respondent’s discharge of Clinton
was too severe. The Committee then met with Leck
and made the following recommendations to him:
1. Request to hire Kevin (Clinton) back as a
new employee.
2. Kevin will receive a new seniority date.
3. Kevin will be on probation for one year.
4. Within this year Kevin may not receive any
write-ups.
5. Kevin will not receive any back pay.
6. Keeler Brass can place Kevin where . . .
needed.
Leck informed the Committee that he would consider
their proposals, that he would contact the supervisors
involved, and that he would then report back to them.
Committee minutes and Kruyswijk’s testimony estab-
lish that the Committee also asked Leck to clarify the
Respondent’s ‘‘no call, no show’’ policy.7
Leck responded to the Committee by memorandum
dated September 3. Leck reminded the Committee that
‘‘we had considerable discussion regarding the policy
of No Call, No Show’’ and he explained how the pol-
icy had been applied in the past to uphold termi-
nations. Leck also complimented the Committee for es-
tablishing a productive and fair operation, and he again
reminded the Committee to apply past practice. Leck
concluded that ‘‘regrettably, we feel the discharge
should stand.’’
The Committee reversed its decision. The September
11 minutes state:
After talking to Patti [Caudill] about some similar
cases we came to the mutual decision to agree
with the advice of Mr. P. Leck, as stated in his
letter of Sep. 3, 1991 (see file) that ‘‘the dis-
charge should stand’’ . . . .
Furthermore, we were informed that the ‘‘now
show/no call’’ terminology was changed in some
way to make the rule more understandable. HRD
will post the change on the bulletin boards.
Kruyswijk testified that the Committee’s initial deci-
sion concerning Clinton’s grievance was tentative, not
final, and that the Committee made proposals to Leck
to work out the overall problem. Kruyswijk also testi-
fied that the Clinton grievance was an exception and
the Committee generally does not deal with the Com-
pany over grievances.8 Kruyswijk acknowledged that
the HRD representative, Personnel Manager Caudill,
informed the Committee that the no-call, no-show pol-
icy had been changed in response to the Committee’s
request that the Respondent reconsider this policy.9
The October 23 minutes reflect discussion of em-
ployee Diane Podpolucki’s termination grievance. The
Committee decided that Podpolucki should be rein-
stated with backpay for three specified reasons. The
November 6 minutes, as amplified by Kruyswijk’s tes-
timony, establish that the Committee heard additional
evidence after the Committee advised HRD of its
‘‘tentative decision.’’ The Committee had decided to
take more evidence after Chairperson Kruyswijk initi-
ated a discussion with Bob DeWispeleare, a supervisor
in Podpolucki’s department. During this discussion,
DeWispeleare asked to present additional evidence.
Thereafter, the Committee asked permission from HRD
Representative Caudill to conduct a special meeting on
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 HRD Representative Caudill apparently advised the Committee
as to policy and past practice before the Committee reversed its po-
sition on the Clinton discharge. See the above-quoted September 11
Committee minutes.
11 The following testimony is noteworthy.
Production employee Elva Jackson, who served on the Committee
from January 1988 until March 1991, testified that HRD informed
the Committee that HRD would process a grievance filed by A. Jay
Johnson. Thereafter, the Committee had no further involvement with
Johnson’s grievance.
Jackson also testified about a grievance filed by Mike Butler on
January 10, 1989. Jackson testified that three members of the Com-
mittee met ex parte with a witness concerning Butler’s grievance.
HRD Representative Caudill then filed a grievance against Jackson
alleging that Jackson acted improperly by contacting other employ-
ees to obtain private information regarding the witness. Initially, Deb
Orchard, HRD employee relations manager, granted Caudill’s griev-
ance and informed Jackson that she had ‘‘no alternative but to dis-
miss [Jackson] from [her] duties as a member of the Grievance
Committee.’’ Subsequently, Orchard apprised Jackson that Caudill’s
grievance ‘‘has been dropped by the Company. After investigating
this grievance we have found a few inconsistencies.’’
Other background evidence in the form of testimony from former
Committee Chairperson Bill Bates shows that the Respondent re-
fused to abide by its then-prevailing written procedure permitting the
Committee chairperson to call special meetings to address a backlog
of termination grievances, which the Respondent felt did not warrant
an emergency meeting. By contrast, the Respondent encouraged spe-
cial meetings when they advanced its interests. Thus, the Charging
Party and former grievance chairperson, Lynn Wells, testified re-
garding a 1987 seniority grievance that the Committee decided in
favor of one employee with less overall seniority but greater depart-
ment seniority than another employee. When Wells told Dick
Rumfeld, Leck’s predecessor, that she thought the Committee had
erred, Rumfeld told her that if a special meeting were called,
Rumfeld would explain how the Committee’s resolution could affect
bumping rights during a layoff. Wells testified that after a special
meeting with Rumfeld, the Committee reconsidered the grievance,
reversed itself, and granted the job to the more senior employee irre-
spective of department seniority, thereby allowing bumping between
departments.
12 The judge based this finding on Leck’s testimony that he be-
lieved that employees suggested having a Grievance Committee in
1983 and that the Respondent approved this suggestion, and on the
fact that both the Respondent and the employees understood that the
grievance procedure, as prepared and amended by the Respondent,
would govern.
13 Member Stephens did not participate in E. I. du Pont & Co.
Both cases were decided before Chairman Gould and Members
Browning, Cohen, and Truesdale were appointed to the Board.
Member Cohen does not necessarily adopt the entire legal analysis
in Electromation and E. I. du Pont & Co. He finds that the Commit-
tee in this case falls literally within the language of Sec. 2(5). Fur-
ther, the pattern of exchanges between the Committee and the Re-
spondent, with the Respondent having the ultimate power to decide,
was clearly ‘‘dealing’’ within the meaning of Sec. 2(5). Finally, the
Respondent has exercised pervasive control over the formation and
administration of the Committee, thereby plainly establishing inter-
ference and domination.
November 6. The November 13 minutes indicate that
after DeWispeleare’s evidence was considered, the
Podpolucki grievance was denied, and the prior Com-
mittee decision to reinstate Podpolucki was reversed.
Kruyswijk testified that when the Committee delib-
erates, as opposed to taking testimony or hearing wit-
nesses, no grievants or management representatives are
present, unless the Committee requests that an HRD
representative present additional evidence or advice as
to policy and past practice.10 Kruyswijk also testified
that no one from management participates in making
the grievance decisions.
The Clinton and Podpolucki grievance decisions
were the only ones occurring within the 10(b) limita-
tions period, so far as the record shows. Background
evidence concerning other grievances predate the 10(b)
period.11
II. THE JUDGE’S DECISION
The judge found that the Respondent dealt with the
Committee only by processing and disposing of griev-
ances and making minor changes in the grievance pro-
cedure. He reasoned that the Respondent’s contacts
with the Committee concerning Clinton’s grievance
fell within the Committee’s written purpose, and that
by considering the Committee’s recommendations the
Respondent was not dealing with the Committee in a
‘‘negotiating’’ sense.
Similarly, the judge found that the Respondent’s ap-
provals or disapprovals of Committee recommenda-
tions pertained to changes in the grievance procedure
and were otherwise not related to wages, hours, and
other terms and conditions of employment. The judge
found that Leck was not obligated to consider the
Committee’s request that he change the Respondent’s
no-call, no-show policy, and the fact that Leck did so
did not constitute ‘‘negotiations concerning wages,
hours, and other terms or conditions of employment.’’
The judge concluded that the Respondent had not dealt
with the Committee as a labor organization.
Additionally, the judge found a mutual intent to cre-
ate a grievance committee for the sole purpose of fair-
ly resolving employee grievances regarding application
of Company policies and procedures.12 As such, the
judge found that the Committee is not a statutory labor
organization. He dismissed the complaint, relying on
NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), and
John Ascuaga’s Nugget, 230 NLRB 275 (1977). For
the reasons explained below, we reverse.
III. ANALYSIS
After the judge issued his decision, the Board issued
its decisions in Electromation, Inc., 309 NLRB 990
(1992), enfd. 35 F.3d 1148 (7th Cir. 1994), and E. I.
du Pont & Co., 311 NLRB 893 (1993).13 In these
cases, the Board stated that in determining whether an
employer violates Section 8(a)(2) and (1) by interfer-
ing with, dominating, or supporting a committee, its
inquiry is two-fold. The first inquiry is whether the en-
tity involved is a ‘‘labor organization’’ as defined in
Section 2(5) of the Act. If not, the allegation is dis-
missed. If so, the second inquiry is whether the Re-
spondent’s conduct vis-a-vis this labor organization
1113KEELER BRASS CO.
14 Contrary to the judge’s view, the handling and discussion of
grievances plainly falls within the subject matter listed in Sec. 2(5),
which includes ‘‘grievances.’’
15 See also E. I. du Pont & Co., supra, 311 NLRB at 894 (‘‘deal-
ing with’’ is a bilateral process that ordinarily entails a pattern or
practice in which a group of employees makes proposals to manage-
ment, management responds by acceptance or rejection, and com-
promise is not required). The Board’s construction of the statutory
term ‘‘dealing with’’ was upheld by the Seventh Circuit in
Electromation.
constitutes domination or interference with the organi-
zation’s formation or administration, or unlawful sup-
port of the organization. Electromation, Inc., supra,
309 NLRB at 996.
A. The Labor Organization Issue
A Section 2(5) labor organization is defined in terms
of certain critical elements: whether employees partici-
pate; whether the entity in question addresses ‘‘griev-
ances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work’’; and whether it has
a purpose, in whole or in part, of ‘‘dealing with’’ the
employer about the foregoing subject matters.
Electromation, supra, 35 F.3d at 1158. These elements
are all present here.
It is undisputed that employees participate in the
Grievance Committee. We also find that the Commit-
tee handled Section 2(5) subject matters. As its name
implies, the Grievance Committee was set up to, and
did in fact, address ‘‘grievances.’’14 In addition, the
Committee addressed the ‘‘no-call, no-show’’ policy,
clearly a term or condition of employment. The more
difficult issue, which we discuss below, is whether the
Committee’s purpose, at least in part, was to ‘‘deal
with’’ the Respondent concerning grievances and con-
ditions of work. The Committee’s purpose is shown by
what the organization is set up to do and by what it
actually does. Electromation, supra, 309 NLRB at 996.
The actual functions of the Grievance Committee show
that it existed for the purpose, at least in part, of
‘‘dealing with’’ the Respondent concerning grievances
and other conditions of employment.
In NLRB v. Cabot Carbon Co., supra, 360 U.S. 203,
210–211, the Supreme Court held that the term ‘‘deal-
ing with’’ in Section 2(5) is broader than the term
‘‘bargaining’’ and applies to situations beyond the ne-
gotiation of a collective-bargaining agreement. For ex-
ample, it covers such matters as presenting grievances
and making recommendations concerning terms and
conditions of employment. Thus, in Cabot Carbon the
Court found that certain employee committees existed,
at least in part, for the purpose of dealing with the em-
ployer concerning grievances. 360 U.S. at 213.
The committees at issue in that case received griev-
ances filed by employees, considered the merits of the
grievances after consulting with relevant supervisory
and management officials and, if the grievance was de-
termined to be justified, the committees presented their
findings to senior management officials, who retained
the final authority to decide how the grievance would
be resolved. In finding that the committees were labor
organizations, the Court explained:
[T]he Employee Committees undertook the ‘‘re-
sponsibility to,’’ and did, ‘‘[h]andle grievances
[with respondents on behalf of employees] . . .
according to grievance procedure set up [by re-
spondents] for these plants and departments.’’ It is
therefore as plain as words can express that these
Committees existed, at least in part, for the pur-
pose ‘‘of dealing with employers concerning
grievances. . . .’’ This alone brings these com-
mittees squarely within the statutory definition of
‘‘labor organization.’’
Cabot Carbon, 360 U.S. at 213.
The Supreme Court additionally observed that the
committees before it made proposals and requests to
the employer on many matters involving the employ-
ment relationship, and that the employer considered
and discussed these recommendations with the com-
mittees, granting some and rejecting others with expla-
nations. The Court found that the employer’s ‘‘consid-
eration of and action upon’’ the proposals and requests
also constituted ‘‘dealing with’’ within the meaning of
Section 2(5). Cabot Carbon, supra, 360 U.S. at 213–
214.15
Applying these principles, we find that the Keeler
Brass Committee, like the employee committees in
Cabot Carbon, exists, at least in part, for the purpose
of dealing with the Respondent concerning grievances.
Focusing on the Respondent’s actual practice with re-
spect to the Committee, the record reflects several in-
stances, within the 10(b) limitations period, in which
the Respondent and the Committee dealt with one an-
other concerning grievances and terms and conditions
of employment, including the grievance procedure, the
Committee’s recommendations concerning Clinton’s
discharge and reinstatement, the Podpolucki discharge
grievance, and the future application of the Respond-
ent’s no-call, no-show policy.
For example, when the Committee considered Clin-
ton’s grievance involving application of the Respond-
ent’s no-call, no-show policy, the Committee decided
that the Respondent’s decision to discharge Clinton
was too harsh. The Committee recommended that the
Respondent rehire Clinton under certain conditions.
The Respondent advised the Committee that the Re-
spondent would consider its proposals and report back
to the Committee. As set forth in Vice President
Leck’s September 3 memorandum, the Respondent
considered the Committee’s proposals, but decided that
Clinton’s discharge was justified by past practice. It re-
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 See fn. 11 above. We rely on this earlier evidence of dealing
to shed additional light on the pattern or practice of dealing within
the limitations period. Machinists Local 1424 v. NLRB (Bryan Mfg.
Co.), 362 U.S. 411, 416 (1960). The Respondent contends that the
Grievance Committee was not established for the purpose of dealing
with the Respondent concerning grievances, noting in this regard that
the grievance policy expressly states that decisions of the committee
are ‘‘final.’’ According to the Respondent, any bilateral dealing that
may have taken place in adjusting the Clinton and Podpolucki griev-
ances was an exception to a general practice of according the com-
mittee’s decisions the finality contemplated under the policy. We
find no merit to these contentions, as the evidence set forth above
shows that, regardless of the language of the policy, the Respondent
consistently has not considered the committee’s decisions to be final
and has instead treated them as recommendations that it was free to
accept or reject. See Electromation, supra, 309 NLRB at 996
(‘‘[p]urpose is a matter of what the organization is set up to do, and
that may be shown by what the organization actually does’’).
17 Because those two cases are distinguishable from this one,
Member Browning finds it unnecessary to pass on whether those two
cases were correctly decided.
18 We do not pass on the situation when an employee committee
receives ‘‘input’’ from management and then independently and fi-
nally resolves employment issues. In that case, there is contact be-
tween the committee and management, but only as an aid to the
committee’s independent authority to render a final decision. That is
not the case here.
19 The General Counsel additionally contends that the policy on its
face contemplates that the Respondent will deal with the Committee
concerning grievances. We find it unnecessary to pass on this con-
tention, as we have found that the Respondent has, in practice, dealt
with the Committee concerning grievances as well as other Sec. 2(5)
subject matters.
20 In Electromation, the Seventh Circuit enforced the Board’s find-
ing of domination of action committees in circumstances when it
was the employer’s idea to create the committees; the employees
were not given any real choice in the committees’ formation; the
employer drafted the purposes and goals of the committees, which
defined and limited the subject matter to be covered by each com-
mittee; and the employer determined the management members of
the committee. The employer there posted signup sheets for action
committees to deal with employees’ complaints; drafted the written
purposes and goals of the committees; determined how many mem-
bers would compose a committee; explained committee membership
in a memorandum to employees; and posted a notice announcing the
members of each committee and the dates of initial committee meet-
ings. Management representatives also participated in the meetings
to facilitate the discussions.
fused to reinstate him as requested by the Committee.
The Committee capitulated. At its September 11 meet-
ing, the Committee heard additional testimony from
HRD about previous applications of the no-call, no-
show policy. The Committee then reversed itself and
denied the grievance. Thereafter, the Respondent
changed the no-call, no-show policy.
Similarly, with respect to Podpolucki’s grievance,
the Committee initially decided to reinstate her with
backpay. Thereafter, however, after consultation with a
supervisor and with the Respondent’s permission, the
Committee arranged for a special committee meeting
to hear additional testimony from a management offi-
cial. The Committee then reversed its prior decision
and denied Podpolucki’s grievance.
These events show that the grievance procedure
functioned as a bilateral mechanism, in which the Re-
spondent and the Committee went back and forth ex-
plaining themselves until an acceptable result was
achieved. This pattern of ‘‘dealing’’ within the 10(b)
limitations period is further illuminated by events out-
side that period, e.g., the Johnson, Butler, and seniority
grievances.16
This ‘‘dealing’’ between the Respondent and the
Committee distinguishes the Keeler Brass Grievance
Committee from the grievance committees at issue in
Mercy-Memorial Hospital, 231 NLRB 1108 (1977),
and John Ascuaga’s Nugget, 230 NLRB 275 (1977).17
Those employee committees could definitively resolve
grievances without further recourse to the employer.
The Keeler Brass Grievance Committee, in contrast,
does not have full grievance handling authority without
dealing with management. This is reflected by Clin-
ton’s case. The Committee recommended conditional
reinstatement. The recommendation was considered by
HRD, but received a negative reaction followed by
outright rejection. The Committee then considered ad-
ditional evidence from HRD and reached a result that
yielded to HRD. Similarly, in Podpolucki’s case, the
Committee decided that reinstatement and backpay
were warranted but then changed course after ex parte
discussion with management.18
In addition, the Committee recommended changes in
terms of employment that management acted on. At
the August 28 meeting, the Committee requested reex-
amination of the no-call, no-show policy. The Re-
spondent did so. Moreover, by discussing and chang-
ing special meetings, the Respondent and the Commit-
tee dealt with each other concerning a term and condi-
tion of employment, i.e., the grievance procedure itself.
Based on the foregoing, we find that the Respondent
and the Committee dealt with one another concerning
grievances and other conditions of work.19 Because the
Committee met all other aspects of the statutory test,
we conclude that the Keeler Brass Grievance Commit-
tee is a statutory labor organization.
B. The 8(a)(2) Conduct
We now address whether the Respondent unlawfully
dominated or interfered with the Committee. We find
that the Respondent dominated the formation of the
Committee in 1983, dominated its reformation in 1991
(within the 10(b) period), and continued to dominate
its administration thereafter.
A labor organization that is the creation of manage-
ment, whose structure and function are essentially de-
termined by management, and whose continued exist-
ence depends on the whim of management, is one
whose formation or administration has been dominated
under Section 8(a)(2). Electromation, supra, 35 F.3d at
1169–1170, enfg. 309 NLRB at 995.20 In this case, as
1115KEELER BRASS CO.
21 Thus, the Respondent’s involvement ‘‘cannot fairly be character-
ized as ‘mere cooperation.’’’ See Electromation, supra, 35 F.3d at
1165–1166 and 1168, distinguishing Chicago Rawhide Mfg. Co. v.
NLRB, 221 F.2d 165 (7th Cir. 1955).
22 When asked by counsel for the General Counsel whether the
1983 Grievance Committee was established through employee par-
ticipation and then approved by the Employer, Leck, whose tenure
commenced in May 1989, testified, ‘‘I believe that is correct.’’
23 Contrary to the suggestion of our concurring colleague, we be-
lieve that the instant case presents at least as compelling a case for
a violation as did Electromation. On the ‘‘labor organization’’ issue,
there is clear ‘‘dealing’’ between Respondent and the Committee
concerning grievances and other terms and conditions of employ-
ment. On the ‘‘domination’’ and ‘‘interference’’ issues, the Respond-
ent drafted the Committee’s charter, set time limits for terms of
Committee members, established eligibility rules for being on the
Committee, set forth election procedures, announced the election re-
sults, determined the number of employees who would serve, dic-
tated the meeting days, and permitted special meetings only with
company approval. In both cases, the evidence failed to establish
that the employees came up with the idea for the committees. On
the other hand, in neither case did the employer designate the em-
ployee members of the committees. Further, in neither case was the
employer acting in response to a union organizational drive.
In view of the foregoing, we believe that our finding of a violation
herein is amply supported by Electromation. Further, our finding is
quite consistent with the Seventh Circuit’s refusal to find a violation
in Chicago Rawhide. As that court noted, the employer in Chicago
Rawhide did not control the creation, structure, and administration
of the committee involved therein. Electromation v. NLRB, supra, 35
F.3d at 1168.
24 See generally Clapper’s Mfg., 186 NLRB 324, 332–334 (1970),
enfd. 458 F.2d 414 (3d Cir. 1972) (domination found when employer
suggested the form and structure of the committee, established its
purpose, and retained power to determine its composition); Fire
Alert Co., 182 NLRB 910, 915–917 (1970), enfd. per curiam 77
LRRM 2895 (10th Cir. 1971) (domination found when employer in-
structed the employees to elect three representatives, assigned each
employee to a particular representative who would present griev-
ances for that employee, and so told employees); Han-Dee Spring
& Mfg. Co., 132 NLRB 1542, 1543 (1961) (domination found when
employer organized and determined nature, structure, and function of
employee grievance committee).
in Electromation, actual domination is established by
virtue of the Respondent’s specific acts of recreating
the organization, modifying and amending it, and de-
termining its structure and function.21
Contrary to the judge’s factual finding, the probative
evidence fails to show that employees suggested hav-
ing a grievance committee in 1983, which the Re-
spondent merely approved. The documentary evidence
shows that the original 1983 grievance procedure was
prepared by HRD and approved by the Respondent.
The Respondent’s written policy established and speci-
fied the purpose of the Committee, its composition,
and its role in the grievance procedure. The judge
based his finding entirely on Vice President Leck’s
‘‘belief’’ concerning the 1983 events. That ‘‘belief,’’
however, could not have been based on first-hand
knowledge because Leck was not there.22 In our view,
Leck’s testimony cannot overcome the strong docu-
mentary evidence that plainly shows that the Respond-
ent effectively established the original Committee and
determined its structure and function by drafting its
written purposes and goals.
Further, even if the judge were correct in finding
that the Respondent did not dominate the creation of
the Committee in l983, there would nonetheless be a
violation based on the reformation of the Committee in
1991 within the 10(b) period. Respondent dominated
that reformation and the subsequent evolving adminis-
tration of the Committee during the 10(b) period. The
grievance procedure was modified unilaterally by the
Respondent to reduce the number of members on the
Committee, to change the days that the Committee
met, and to require the Respondent’s approval for spe-
cial Committee meetings. The Respondent, as evi-
denced by a flurry of memoranda addressed to employ-
ees, determined the Committee’s membership eligi-
bility rules, solicited employees to elect committee
membership, posted signup sheets, approved the can-
didates, conducted the election, counted the ballots,
and announced committee membership. The Commit-
tee’s Charter (see Appendix A), which was drafted by
the Respondent, determines the eligibility for commit-
tee membership, the number of committee members
and the length of their terms, and the scheduling of
committee meetings. This pervasive involvement in the
Committee’s composition inherently interferes with the
employees’ choice of their bargaining representative.
Further, management representatives participated in
and influenced committee meetings by focusing discus-
sion on particular grievances and conditions of work
important to the Respondent.
Based on these facts, which parallel many of those
present in Electromation,23 we find that the Respond-
ent’s conduct vis-a-vis the Grievance Committee con-
stituted ‘‘domination’’ in its reformation and ongoing
administration.24
Under all the circumstances, we further find that the
Respondent unlawfully contributed support to the
Committee. In particular, committee meetings were
scheduled biweekly in a company conference room.
The Respondent supplied the necessary materials, in-
cluding secretarial and clerical assistance. The Re-
spondent also paid committee members for their time.
The Board made clear in Electromation that paying
employee members of a committee for their time and
giving that committee supplies and space to meet is
not per se a violation of Section 8(a)(2). 309 NLRB
at 998 fn. 31. We recognize that the difference be-
tween unlawful assistance and unlawful domination is
often one of degree and that the line of demarcation
between permissible cooperation and unlawful support,
domination, or interference is sometimes difficult to
draw. In the totality of the circumstances of this case,
however, as in Electromation, the Respondent’s assist-
ance is in furtherance of its unlawful domination of the
Grievance Committee. Electromation, supra, 35 F.3d at
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 See, e.g., BASF Wyandotte Corp., 274 NLRB 978, 980 (1985),
enfd. 123 LRRM 2320 (5th Cir. 1986).
26 Our reasoning and ruling in this case is limited to the Grievance
Committee at issue and does not foreclose the lawful use of legiti-
mate employee grievance committees that are truly independent.
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 230 NLRB 275 (1977).
2 231 NLRB 1108, 1118–1121 (1977).
1170. Because the Respondent’s conduct in supplying
materials, furnishing space, and paying committee
members for their services is in furtherance of the Re-
spondent’s domination of the Committee, we find this
case distinguishable from cases when an employer
confers such benefits during arm’s-length dealing with
a legitimate labor organization.25
Based on these facts, we find that the Respondent
dominated the reformation and administration of the
Keeler Brass Grievance Committee and contributed un-
lawful support to it. The Committee, in structure and
governing protocol, was the creation of the Respond-
ent. Thus, the Respondent did more than merely co-
operate with employees or their representatives in car-
rying out their independent intention to establish a
grievance committee.26 In these circumstances, dis-
establishment of the dominated labor organization is
the proper remedy. We shall order that the Respondent
immediately disestablish the Committee. Electro-
mation, supra, 309 NLRB at 995 fn. 24 and 998.
ORDER
The National Labor Relations Board orders that the
Respondent, Keeler Brass Automotive Group, a divi-
sion of Keeler Brass Co., K B Lighting, a joint venture
of Keeler Brass Co., Kentwood, Michigan, and Grand
Rapids, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Dominating, assisting, or otherwise supporting
the Keeler Brass Grievance Committee created in 1983
and modified in 1991.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately disestablish and cease giving assist-
ance or any other support to the Keeler Brass Griev-
ance Committee.
(b) Post at its facilities in Kentwood, Michigan, and
Grand Rapids, Michigan copies of the attached notice
marked ‘‘Appendix B.’’27 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CHAIRMAN GOULD, concurring.
I join my colleagues in finding that the Respondent
violated Section 8(a)(2) in connection with the Griev-
ance Committee. In other circumstances, I would find
that employee participation groups do not fall within
the statutory definition of labor organization and are
not, therefore, subject to the proscriptions of Section
8(a)(2). I would also find that in certain circumstances
an employer’s involvement with an employee partici-
pation group does not amount to unlawful domination
under Section 8(a)(2). For the reasons set forth below,
however, I find that none of these circumstances are
present in this case. On this basis alone, I concur with
my colleagues.
The Board found that employee participation groups
were not labor organizations under Section 2(5) in two
important decisions: John Ascuaga’s Nugget1 and
Mercy-Memorial Hospital.2 The committee at issue in
John Ascuaga’s Nugget was an Employees’ Council
established by the employer to resolve grievances of
employees who were unable to resolve problems with
their supervisors. Employees in each department voted
annually for an employee representative on the Coun-
cil. When the Council met to handle grievances, it was
composed of the employer’s director of employee rela-
tions, who acted as chairman, the employee elected
from the grievant’s department, and a third member se-
lected by the first two. The third member had to be se-
lected from the management of a department other
than that of the grievant. When a grievance could not
be resolved in discussions with the supervisor and the
department head, the grievant could make a timely re-
quest for the Council to be convened. The Council
would receive testimony and/or exhibits from the
grievant and from the grievant’s immediate supervisor.
The Council would then render a final and binding de-
cision.
In dismissing the 8(a)(2) allegation concerning the
Council, the Board found that the Council was not a
labor organization because it did not ‘‘deal with’’ the
employer within the meaning of Section 2(5) of the
Act. It did not interact with management for any pur-
pose other than to render a final decision on a griev-
ance. In this regard, the Board found that the Council
1117KEELER BRASS CO.
3 See, e.g., William B. Gould IV, Japan’s Reshaping of American
Labor Law (MIT Press, 1984); and William B. Gould IV, Agenda
for Reform: The Future of Employment Relationships and the Law,
(MIT Press, 1993).
4 221 F.2d 165 (7th Cir. 1955).
5 Gould, Agenda for Reform, supra, fn. 3 at p. 140.
6 Id. at 167.
7 Id.
performed a purely adjudicatory function which had
been fully delegated to it by management.
Similarly, in Mercy-Memorial Hospital, the em-
ployer established a grievance committee with 10 em-
ployees (one from each hospital department). Em-
ployee-members were elected by all employees for 2-
year staggered terms. A meeting of the committee was
called if presentation of the grievance to the immediate
supervisor and department head failed to resolve the
matter. When the committee convened to hear a griev-
ance, the grievant chose four employee-members and
a department head, other than his own or that of a sit-
ting committee member. After the committee heard the
evidence, it rendered a decision by majority vote. That
decision was final and binding unless the grievant
chose to appeal to the personnel committee of the
board of directors. The Board agreed with the adminis-
trative law judge’s finding that the committee was not
a labor organization because it did not deal with the
employer on grievances. Instead of discussing the
grievances with management, the committee by itself
decided the validity of the employees’ complaints.
I fully agree with the Board’s decision and rationale
in those cases. It is consistent with the movement to-
ward cooperation and democracy in the workplace
which I have long supported.3 This movement is a
major advance in labor relations because, in its best
form, it attempts nothing less than to transform the re-
lationship between employer and employees from one
of adversaries locked in unalterable opposition to one
of partners with different but mutual interests who can
cooperate with one another. Such a transformation is
necessary for the achievement of true democracy in the
workplace. However, it does pose a potential conflict
with the National Labor Relations Act, enacted in 1935
at a time when the adversarial struggle between man-
agement and labor was at its height.
The importance of John Ascuaga’s Nugget and
Mercy-Memorial Hospital is that these decisions find a
place, however limited, for legitimate cooperation
within the confines of the language of the statute and
Board and court precedent. Accordingly, when em-
ployees freely participate in a committee which, in
itself, has the authority to resolve grievances and make
final decisions, I would apply John Ascuaga’s Nugget
and Mercy-Memorial Hospital and find that the Com-
mittee is not a labor organization, and that the em-
ployer, therefore, did not violate Section 8(a)(2) even
though it created the Committee and assisted it.
The Committee at issue here, however, does not
have the authority to make final and binding decisions
on grievances. It, therefore, is not controlled by John
Ascuaga’s Nugget and Mercy-Memorial Hospital. In
contrast to those cases, the practice of the Committee
here has consisted of exchanges between the Commit-
tee and higher management on the grievances. Thus,
the Committee made an initial decision to reinstate
Podpolucki with backpay. After a negative response
from management, the Committee heard additional tes-
timony and reversed its prior decision. Similarly, the
Committee initially recommended conditional reinstate-
ment for Clinton. After this was rejected by manage-
ment, the Committee considered additional evidence
from management and reached a result that yielded to
management. These transactions tend to show that the
Committee was not the final arbiter of grievances. It
simply made recommendations and then often changed
those recommendations after consultation with man-
agement. This amounts to dealing with the employer
on the matter of grievances and compels the finding
that the Committee is a labor organization within the
meaning of Section 2(5).
The question remains as to whether the Respondent
unlawfully dominated or interfered with the labor orga-
nization. The Court of Appeals for the Seventh Circuit
considered such a question in Chicago Rawhide Mfg.
Co.4 and set forth a standard, different from that used
by the Board, for determining whether the employer’s
conduct violated Section 8(a)(2). Like John Ascuaga’s
Nugget and Mercy-Memorial Hospital, the Seventh
Circuit’s reasoning in Chicago Rawhide, set forth
below, is a sound interpretation of the statute which al-
lows for the lawful existence of some cooperative ef-
forts. I have stated agreement with the court’s ap-
proach in writings published before I joined the
Board.5 I adopt the court’s approach in this decision.
In Chicago Rawhide, the court, noting that Section
8(a)(2) and (1) were designed to keep the employer
from influencing unions or the employees’ choice of
unions, found that it was necessary to draw a line be-
tween support and cooperation. The court defined sup-
port as the presence of ‘‘at least some degree of con-
trol or influence,’’6 no matter how innocent. Coopera-
tion, on the other hand, was defined as assisting the
employees or their bargaining representatives in carry-
ing out their ‘‘independent intentions.’’7 The court
went on to find that assistance or cooperation may be
a means of domination, but that the Board must prove
that the assistance actually produces employer control
over the organization before a violation of Section
8(a)(2) can be established. Mere potential for control
is not sufficient; there must be actual control or domi-
nation. The court set forth the following test: ‘‘The test
of whether an employee organization is employer con-
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Id. at 168, quoting NLRB v. Sharples Chemicals, 209 F.2d 645,
652 (6th Cir. 1954), and NLRB v. Wemyss, 212 F.2d 465, 471 (9th
Cir. 1954).
9 Id. at 170.
10 Electromation, Inc. v. NLRB, 35 F.3d 1148 (7th Cir. 1994),
enfg. 309 NLRB 990 (1992).
11 308 U.S. 241, 249 (1939).
12 Electromation, 35 F.3d at 1170.
13 Of course, legislation amending the Act may be necessary—par-
ticularly in light of uncertainty about the position of the United
States Supreme Court on Chicago Rawhide and unnecessary litiga-
tion about what constitutes a ‘‘labor organization’’ within the mean-
ing of the Act. See William B. Gould IV, ‘‘Cooperation or Conflict:
Problems and Potential in the National Labor Relations Act’’ New
York University’s 48th National Conference on Labor, May 31,
1995.
trolled is not an objective one but rather subjective
from the standpoint of the employees.’’8
Applying this rationale to the facts in Chicago Raw-
hide, the court held that the Board, in finding domina-
tion and interference, had confused lawful cooperation
with unlawful support. The court emphasized that the
employee organization was formed by employees with-
out any involvement of the employer, that the organi-
zation actually represented a majority of the employ-
ees, and that the employees demonstrated their positive
attitude toward the committee by engaging an attorney
to file a brief with the court in opposition to the
Board’s violation finding. The court noted that the
Board could point to no evidence establishing actual
domination of the organization by the employer. In-
stead, the Board relied on indicia of potential control
such as the unrestricted and unexercised power to lay
off or transfer committee members and the assistance
rendered to the committees in such forms as permitting
elections for the committees to be held on company
premises and allowing the committee to process griev-
ances on companytime. In disagreement with the
Board, the court found that in the absence of evidence
that the potential for control had been realized, these
acts did not provide a basis for an unfair labor practice
finding. The court stated: ‘‘We are not going to permit
the destruction of a happy and cooperative employer-
employee relationship where there is absolutely no evi-
dence to support a finding of unfair labor practice.’’9
The same court clarified its approach to the dif-
ference between support and cooperation in its opinion
enforcing the Board’s Order in Electromation.10 In that
case, the court rejected the employer’s argument that
under Chicago Rawhide, a violation of Section 8(a)(2)
can be found only if there is evidence of employee dis-
satisfaction with the labor organization. The court as-
serted that, while the subjective wishes of employees
should be taken into account, the interpretation of Sec-
tion 8(a)(2) cannot be limited solely to the consider-
ation of employees’ subjective will. To do so would
contravene NLRB v. Newport News Shipbuilding &
Dry Dock Co.,11 where the Supreme Court held that
employer motivation and employee satisfaction with a
labor organization were not controlling in the test of
independence under Section 8(a)(2). The Seventh Cir-
cuit summarized the test for domination as follows:
The Supreme Court has explained that domination
of a labor organization exists where the employer
controls the form and structure of a labor organi-
zation such that the employees are deprived of
complete freedom and independence of action as
guaranteed to them by Section 7 of the Act, and
that the principal distinction between an independ-
ent labor organization and an employer-dominated
organization lies in the unfettered power of the
independent organization to determine its own ac-
tions.12
Applying this test to the facts in Electromation, the
court concluded that substantial evidence supported the
finding of a violation. The court emphasized that the
Action Committees were created solely by the em-
ployer who alone determined their functions, controlled
the subject matter to be considered, and both partici-
pated in and gave financial support to the committees.
The court found that, in these circumstances, the com-
mittees lacked the independence of action and freedom
of employee choice to warrant a finding that they were
independent labor organizations not dominated by the
employer.
The determining factor in the court’s analysis is the
degree of independence enjoyed by the employee par-
ticipation group. In Chicago Rawhide, the committee
originated with the employees and met outside the
presence of management. Management did not deter-
mine the subject matters to be considered, determine
who should be on the committee, or have veto power
over any committee recommendations. Those facts es-
tablished the independence of the committees. Elec-
tromation involved radically different facts. There, the
employer controlled all aspects of the committees from
their creation to their functioning. Those facts estab-
lished the lack of independence.
I agree with the Seventh Circuit’s analysis in both
Chicago Rawhide and the above-described portion of it
in Electromation.13 Those cases, however, represent
extremes. A minimal degree of employer involvement
was present in Chicago Rawhide, whereas a high de-
gree was present in Electromation. A wide range of
employee participation programs lies between these ex-
tremes. Indeed, the committee at issue in the present
case has neither the minimal involvement of Chicago
Rawhide nor the maximum involvement of Electro-
mation.
More guidelines are necessary in order to properly
evaluate cases which do not fall under either extreme.
First, there is the question of how the employee group
came into being. The court in Chicago Rawhide
1119KEELER BRASS CO.
14 Gould, Agenda for Reform, supra, fn. 2 at p. 140.
stressed that the idea for an employee group began
with the employees. Does this mean that any employee
group which does not originate with employees is sub-
ject to unlawful employer domination? I think not.
Much of the initiative for cooperative efforts in the
workplace has come from employers, particularly in
the nonunion sector.14 I do not think these efforts are
unlawful simply because the employer initiated them.
The focus should, instead, be on whether the organiza-
tion allows for independent employee action and
choice. If, for example, the employer did nothing more
than tell employees that it wanted their participation in
decisions concerning working conditions and suggested
that they set up a committee for such participation, I
would find no domination provided employees con-
trolled the structure and function of the committee and
their participation was voluntary.
Second, the circumstances surrounding the creation
of an employee committee are material to a determina-
tion of whether there is unlawful domination of the
committee. If the employer created an employee par-
ticipation organization in response to a union organiz-
ing campaign, I would draw the inference that the or-
ganization was designed to thwart employee independ-
ence and free choice.
Following these guidelines in the present case, it is
clear that there are some factors which favor a dismis-
sal and others which favor a finding of unlawful domi-
nation. Considered as a whole, the factors favoring a
violation finding outweigh those favoring dismissal.
One factor favoring dismissal is that the employer
here did not create the committee in response to orga-
nizing efforts by a union or concerted action by the
employees. There is no indication that the committee
was created as a means to undercut independent action
by employees. Instead, the employer simply wished to
involve employees in the grievance procedure. Under
my view, the creation of the committee in these cir-
cumstances, standing alone, does not support a viola-
tion finding. Other factors favoring dismissal are that
participation on the committee was voluntary, employ-
ees were the only voting members of the committee,
and all voting members were elected by employees.
The committee, therefore, allowed some exercise of
free choice and provided some scope for independence.
There are many other aspects of the committee,
however, that remain within the employer’s control
and, therefore, support a finding of domination. The
employer set the time limit of terms for membership
in the committee, established eligibility rules, estab-
lished election procedures and conducted the election,
announced the results of the election, dictated the num-
ber of employees who could serve on the committee,
established the meeting days, and allowed special
meetings (outside regular meeting days) to be held
only with management approval. These elements of
control indicate that the committee is not capable of
action independent of the employer. Perhaps the most
telling aspect of dependency is that the committee can-
not even make a decision about when it will meet
without prior approval from the employer.
Taken as a whole, I find that the factors favoring a
violation outweigh those favoring dismissal. The free-
dom of choice and independence of action open to em-
ployees on the committee is too strictly confined with-
in parameters of the employer’s making for the com-
mittee to be a genuine expression of democracy in the
workplace. For these reasons, I concur in finding a
violation of Section 8(a)(2) in this case.
APPENDIX A
I. PURPOSE
To insure that all employees are treated fairly and
consistently under Keeler Brass Company Policies and
Procedures.
To provide the employees of Keeler Brass Company
with a formalized method of resolving grievances
which may arise out of misunderstanding or misap-
plication of current company policies or procedures.
This procedure is to be administered by the employees
of Keeler Brass Company, for the employees of Keeler
Brass Company, in accordance with the procedures
outlined in this policy.
II. SCOPE
This policy applies to all Keeler Brass Company
employees as an optional procedure.
III. RESPONSIBILITY
The immediate supervisor is responsible for the first
step in the procedure, the Human Resources Depart-
ment is responsible for the second step, and members
of the Grievance Committee for the third step.
IV. GENERAL SECTION
This procedure is to be used by individual employ-
ees of Keeler Brass Company who feel an irregularity
occurred in the application of policy or procedure. By
using this grievance procedure, all employees can be
assured of having a formalized method of expressing
their concern(s) about the misapplication of Company
policy, or what is thought to be misapplication of
Company policy by the employee. In reviewing indi-
vidual cases, the committee will be fair to the employ-
ees as well as the Company by weighing all the facts
before arriving at a conclusion. Each grievance will be
heard on the merits of the case and not the personal-
ities.
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Grievance Committee
1. Organization of the Committee
a. The members of the Grievance Committee will be
elected from each plant as follows:
Kentwood 3
Stevens 2
b. All terms for the Grievance Committee will be
for two years.
c. Members may not seek reelection for two years
after serving on the committee.
d. The Vice President of Human Resources or
his/her representative will act as an advisor to the
Committee regarding Company Policies and Proce-
dures.
e. The Chairperson and Secretary will be elected by
the Committee members.
f. The Chairperson will vote only in the event of a
tie.
2. Meeting of the Grievance Committee
a. The Committee will meet twice a month (the sec-
ond and fourth Wednesdays).
b. The Committee will place the grievances on the
agenda for the next meeting and inform the Human
Resources Department to notify the employee of the
time and place of the meeting.
c. All persons involved with the grievance will be
notified and asked to present their views at the meet-
ing. All witnesses will be in attendance (limit 2). All
available evidence should be presented at this time.
d. The Chairperson of the committee may request to
schedule an emergency meeting with the approval of
the Vice President of Human Resources.
3. Settlement of a Grievance
a. After all parties involved have been heard and all
evidence is presented, they will leave the hearing.
b. The Committee will vote on each grievance after
it has been heard or table the problem until more in-
vestigation can be made.
c. The Committee will notify the Vice President of
Human Resources of its decisions and recommenda-
tions as to corrective actions.
d. After the Committee has made its decision, it is
final. The Vice President of Human Resources will re-
spond to the Committee’s recommendations as to cor-
rective actions taken.
e. The grievance will be followed to insure that cor-
rective action has been taken.
V. SPECIFIC FUNCTION
The process of entering a grievance or complaint
shall be handled in the following manner:
A. First Step
1. Whenever an employee has a problem, it will be
discussed with his/her immediate department super-
visor.
2. After discussing the problem, the department su-
pervisor shall give the employee his/her verbal answer.
B. Second Step
1. If the employee is not satisfied with the solution
offered by his/her supervisor, he/she will then write a
summary of the problem on a form obtained from ei-
ther the supervisor or the Human Resources Depart-
ment.
2. After completing this form, the employee will
then make an appointment with a representative from
the Human Resource Department. This meeting will be
held within five (5) working days.
3. The employee has the option of taking a fellow
employee to the meeting.
4. The Human Resources Department representative
will act as a mediator and attempt to resolve the prob-
lem.
5. At the meeting, the mediator may call anyone
with knowledge of the problem into the meeting.
6. If the problem seems to be a direct violation of
policy, the Plant Operations Manager or functional
head will be called into the meeting to help find a so-
lution to the problem.
7. The Human Resources Department will reply (to
the employee) on the bottom of the form filled out by
the employee. If the reply is lengthy, an attachment
may be necessary.
C. Third Step
1. If after meeting with the Human Resources De-
partment, the employee is unsatisfied with the solution,
he/she should contact the Human Resources Depart-
ment within three (3) working days and request that
the form be submitted to the Grievance Committee for
action.
2. All forms will be held in sealed envelopes and
forwarded to the Committee Chairperson.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT dominate, assist, or otherwise support
the Keeler Brass Grievance Committee.
1121KEELER BRASS CO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL immediately disestablish and cease giving
any assistance or support to the Grievance Committee.
KEELER BRASS AUTOMOTIVE GROUP, A
DIVISION OF KEELER BRASS CO., K B
LIGHTING, A JOINT VENTURE OF KEELER
BRASS CO.
Howard Dodd, Esq., for the General Counsel.
Peter J. Kok, Esq. and Elizabeth McIntyre, Esq. (Miller,
Johnson, Snell & Cummiskey), of Grand Rapids, Michigan,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On a
charge of unfair labor practices filed on August 8, 1991, by
Robert Puckett and Lynn Wells (employees or Charging Par-
ties), against Keeler Brass Automotive Group, a division of
Keeler Brass Co., and K B Lighting, a joint venture of
Keeler Brass Co. (Respondent).
The complaint in essence alleges, but the Respondent de-
nies, that the Grievance Committee is a labor organization
within the meaning of the Act. The complaint further alleges
that Respondent solicited employees to become members of
the Grievance Committee; on May 13, 1991, Respondent
conducted an election whereby employees elected other em-
ployees to be members of the Grievance Committee; that
since on or about May 13, 1991, the Grievance Committee
has processed employee grievances and dealt with Respond-
ent concerning wages, hours, and other terms and conditions
of employment; since on or about May 13, 1991, Respondent
has rendered aid, assistance, and support to the Grievance
Committee, which Respondent has admitted, by:
(a) Permitting the Grievance Committee to utilize
Respondent’s facilities and equipment.
(b) Providing services such as secretarial services for
the Grievance Committee.
(c) Compensating the Grievance Committee members
for their time spent at Grievance Committee meetings
and conducting business of the Grievance Committee,
all in violation of Section 8(a)(1) of the Act; that by
doing all of the alleged above-described things, Re-
spondent has dominated and interfered with the forma-
tion and administration of a labor organization, and
contributed financial and other support to the Grievance
Committee; that by so doing Respondent did interfere
with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act; and that
by engaging in the above conduct, Respondent did
dominate and interfered with the formation and admin-
istration of a labor organization, and contributed finan-
cial and other support to it, resulting in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(2), (6), and (7) of the Act.
On September 20, 1991, the Respondent filed an answer
denying the unadmitted allegations set forth in the complaint.
The hearing in the above matter was held before me in
Grand Rapids, Michigan, on January 29, 1992. Briefs have
been received from counsel for the General Counsel and
counsel for Respondent, respectively, which have been care-
fully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Keeler Brass Automotive Group, a divi-
sion of Keeler Brass Company, K B Lighting, a joint venture
of Keeler Brass Company is, and has been at all times mate-
rial, a corporation duly organized under, and existing by vir-
tue of, the laws of the State of Michigan.
At all times material, Respondent has maintained its prin-
cipal office and place of business at 2929 32d Street, S.E.,
Kentwood, Michigan (the Kentwood plant or facility); and
that Respondent maintains other plants in the State of Michi-
gan, including a plant at 236 Stevens Street, S.W., Grand
Rapids, Michigan (the Stevens plant or facility), where it has
been engaged at all times material, in the manufacture, sale,
and distribution of automotive parts and related products.
During the calendar year ending December 31, 1990, which
period is representative of Respondent’s operations during all
times material, Respondent, in the course and conduct of its
business operations, manufactured, sold, and distributed at its
Kentwood and Grand Rapids, Michigan plants automotive
parts valued in excess of $100,000, of which products valued
in excess of $50,000 were shipped from the plants directly
to points located outside the State of Michigan.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer denies that Keeler
Brass Company’s Grievance Committee (Grievance Commit-
tee) is, and has been at all times material herein, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
At its Kentwood and Stevens plants, Respondent is en-
gaged in the manufacture, sale, and distribution of auto-
motive parts and related products.
Respondent’s employees organized a Grievance Committee
and Respondent approved it and rendered secretarial and
clerical assistance to the committee. Because the complaint
contains allegations that Respondent’s human resources man-
ager participated, through a member of his staff, in the
Grievance Committee’s operations, the questions presented
for determination are as follows:
Is the Grievance Committee a labor organization
within the meaning of the Act, and if so, did Respond-
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
ent dominate and interfere with the formation and ad-
ministration of the Grievance Committee, as a labor or-
ganization?
The following named persons occupied the positions set
opposite their respective names and have been, at all times
material, supervisors of Respondent within the meaning of
Section 2(11) of the Act or agents of Respondent within the
meaning of Section 2(13) of the Act:
Paul Leck Vice president of human
resources
Patricia (Pattie) Caudill Human resources
representative to the
Grievance Committee, and
currently personnel manager at
the Stevens plant.1
B. Respondent’s Involvement with the Employees’
Grievance Committee
In 1983 Respondent’s employees established a Grievance
Committee which was approved by Respondent. The proce-
dure governing the committee’s operation was outlined in a
document dated November 15, 1983, entitled ‘‘Grievance
and Complaint Procedure’’ (G.C. Exh. 2), and maintained by
Respondent to the present time.
Respondent’s, vice president of human resources, Paul
Leck, posted a memorandum on the employees bulletin board
dated March 26, 1991, which in essence read as follows:
For some time we have been studying different ap-
proaches to the establishment of a new grievance proce-
dure. After much thought and input, we have decided
to hold a new election. The excellent performance of
the committee during the past several months was a
great factor in our decision to continue the practice of
selection by election.
The following positions are available for persons in-
terested in serving on the Grievance Committee (these
positions are for a two-year term):
Stevens Street 1 opening
Kentwood 2 openings
Alternate Covering
S.S. and Ktwd. 1 opening
All interested employees should sign the form next
to this announcement at your plant no later than April
12, 1991. You will be advised of the election date and
procedures.
Eligibility to run for the Grievance Committee was out-
lined in a document entitled ‘‘Election Rules’’ (G.C. Exh. 6),
posted for employees by Vice President of Human Resources
Paul Leck, as follows:
Each plant will have an election in its own facility
to elect the designated number of committee members.
A. Only those employees with a satisfactory work
record will be eligible to run (no more than one write-
up during the past 12 months). Management positions
with line responsibility are exempt.
B. The employee must have completed his initial 90-
day probationary period.
C. At least 15 days prior to election, a list will be
posted on the bulletin boards for those who wish their
name to appear on the ballot.
D. Employees listed will be contacted for confirma-
tion that they wish their name listed on the ballot.
E. Election will be made by secret ballot.
F. The alternate will be the person receiving the next
highest votes; to be determined at the regular election.
Term for alternate: 1 year.
G. You will vote only on the people from your plant.
H. An employee cannot succeed him/her self for a
period of two years.
A memorandum to employees from Leck dated May 3,
1991, announcing the candidates for election, was posted and
read as follows:
Re: Grievance Committee Election
Keeler Brass Automotive will be holding a Grievance
Committee Election on Monday, May 13, 1991. The
candidates for this Committee are:
KENTWOOD:
C. J. Burger—Department 233
Steven Davis—Department 233
Marvin Fergusen—Department 238
Gerard Kruyswijk—Department 292
Ike Prizada—Department 533
STEVENS STREET:
Rebecca Cadena—Department 350
Diana Durst—Department 350
Two representatives will be elected from Kentwood
and one representative will be elected from Stevens
Street. All hourly employees are invited and encouraged
to vote for representatives from their respective plant.
Voting and the counting of votes will be handled in
the following manner:
1. Each supervisor will be issued ballots for the
number of employees in his/her department.
2. Along with the ballots, each supervisor will re-
ceive a sealed box for completed ballots.
3. Employees will be given only one ballot by the
supervisor and asked to return this ballot—complete
or incomplete—to the sealed box provided.
4. When all employees have returned their ballots,
the supervisor and a representative from his/her de-
partment will bring the box to the Human Resource
Department for counting.
5. Human Resources, the supervisor, and the em-
ployee representative will count the ballots and
maintain a plant-wide count.
After all ballots are cast and the votes counted, the
results of the election will be announced to all employ-
ees as soon as reasonably possible, but no later than
Thursday, May 16, 1991.
Help us to make this election successful, and we
wish all of the candidates luck.
Thank you.
1123KEELER BRASS CO.
A document dated May 13, 1991, outlining the procedure
to be used at the election (G.C. Exh. 8) was also posted by
Respondent on the employees’ bulletin board.
In a memorandum from Leck dated May 15, 1991, an-
nouncing the names of the candidates elected to the Griev-
ance Committee from the Kentwood and Stevens facilities,
respectively (G.C. Exh. 9), was posted on the employees’
bulletin board.
The uncontroverted and credited evidence of record further
shows that the newly elected members of the Grievance
Committee first met June 26, 1991, when they chose a chair-
man and a secretary. The secretary is responsible for prepar-
ing the minutes of each meeting and they are sent to Leck’s
human resources department, where a summary of the min-
utes are prepared and posted for viewing by all employees.
In testifying, Leck admitted he was involved in modifying
or amending the original 1983 Grievance and Complaint Pro-
cedure (G.C. Exh. 2) by rewriting policy and reducing the
number of members on the Grievance Committee from 9 to
5, changing the dates of the Committee’s regular meeting
from the second and fourth Thursdays to the second and
fourth Wednesdays of each month, eliminated all references
to a ‘‘Complaint Committee’’ which had been abandoned,
eliminated the committee’s discretion to call special meetings
and required it to obtain prior approval for special meetings
from the human resources department, and there were essen-
tially no substantive changes from the original 1983 proce-
dure.
Conclusions
Respondent has acknowledged and the record evidence
shows that Respondent helped its employees create a Griev-
ance Committee; that Respondent established the grievance
procedure and policy which since 1983 provides:
I. Purpose
To insure that all employees are treated fairly and
consistently under Keeler Brass Company Policies and
Procedures.
To provide the employees of Keeler Brass Company
with a formalized method of resolving grievances
which may arise out of misunderstanding or misappli-
cation of current company policies or procedures. This
procedure is to be administered by the employees of
Keeler Brass Company, for the employees of Keeler
Brass Company, in accordance with the procedures out-
lined in this policy.
II. Scope
This policy applies to all Keeler Brass Company em-
ployees as an optional procedure.
III. Responsibility
The immediate supervisor is responsible for the first
step in the procedure, the Human Resources Depart-
ment is responsible for the second step, and members
of the Grievance or Complaint Committees for the third
step. . . .
IV. General Section
This procedure is to be used by individual employees
of Keeler Brass Company who feel an irregularity oc-
curred in the application of a company policy or proce-
dure. By using this grievance procedure, all employees
can be assured of having a formalized method of ex-
pressing their concern(s) about the misapplication of
company policy, or what is thought to be misappli-
cation of company policy by the employee.
In reviewing individual cases, the committee will be
fair to the employees as well as the company by weigh-
ing all the facts before arriving at a conclusion. Each
grievance will be heard on the merits of the case and
not on the personalities involved.
Respondent further acknowledged that it posted a notice
inviting all employees interested in becoming candidates in
the election for membership on the Grievance Committee to
sign the sheet attached to the announcement; that Respondent
provided the committee with secretarial and clerical assist-
ance by summarizing and typing the minutes and other writ-
ten documents of the committee; and that Respondent also
provided the Committee with a meeting place and paid mem-
bers of the Committee for their time spent in committee
meetings, and when transacting Committee business.
In view of the evidence of Respondent’s above-described
admissions, the first question presented for determination is
whether the employees’ Grievance Committee constitutes a
labor organization within the meaning of the Act. In this re-
gard, Section 2(5) of the Act provides:
The term ‘‘labor organization’’ means 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, for
dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.
Thus, in construing Section 2(5) of the Act, the Supreme
Court in NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959),
held that the words ‘‘dealing with’’ in Section 2(5) of the
Act is interpreted broadly, and are not synonymous with nor
restricting to the words ‘‘bargaining collectively’’; that
‘‘dealing with’’ means bargaining with, and that an employee
committee which makes proposals, requests, or recommenda-
tions to the employer concerning any term or condition of
employment is a labor organization within the meaning of
Section 2(5) of the Act.
The Board, in following Cabot Carbon, has gone further
by holding that in determining labor organization status it is
critical to look to the intent of the parties when they created
the committee; and that if the parties intended to deal with
the employer regarding wages, hours, and other terms and
conditions of employment, whether or not they have actually
done so, an employees’ committee may be found to con-
stitute a labor organization within the meaning of Section
2(5) of the Act. Armco, Inc., 271 NLRB 350 (1984).
Respondent’s Contacts with the Grievance Committee
In the instant case the record evidence is clear that over
the years (1983 to and after July 1991), Respondent has dealt
with the Grievance Committee by only processing and dis-
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
posing of grievances and minor changes in the grievance pro-
cedure. Specifically, in the summer of 1991, the Grievance
Committee decided that the Respondent’s discharge of em-
ployee Clinton was too severe and recommended leniency by
requesting Respondent to rehire him. In support of its rec-
ommendation, the committee also recommended to Vice
President of Human Resources Department Leck that em-
ployee Clinton:
(1) Be rehired with a new seniority date.
(2) That he be placed on 1-year probation and not
receive a writeup during that period.
(3) That he not receive backpay.
(4) Be assigned to a position within the discretion of
Respondent.
The minutes of the Grievance Committee shows that Leck
informed the committee he would consider their rec-
ommendation and report back to the Committee. The record
evidence further shows that Leck considered the Committee’s
recommendation.
By considering the Committee’s recommendation, I find
that the Respondent was not dealing with the committee in
a negotiating sense but only in an effort to dispose of the
grievance concerning the Respondent’s discharge of Clinton.
I find Respondent’s conduct was within the written purpose
of the Grievance Committee.
During a meeting of the Grievance Committee on August
28, 1991, Leck, having been invited to the meeting, told the
Committee (Respondent’s human resource committee) he
would consider their discussion and get back to them. Leck
also told the Committee he would consider the Committee’s
request for a change in the no-call/no-show company policy.
After Leck’s consideration, the policy was changed.
Respondent human resources department (Leck), or a rep-
resentative of the department, discussed the number of mem-
bers which would constitute the Committee and the Commit-
tee’s authority to call special meetings.
After the new members were elected to the committee in
1991, Respondent (Leck) told the committee to reduce the
number of its members.
Prior to November 6, the committee requested and Re-
spondent approved a special meeting called by the commit-
tee.
I therefore find, on the foregoing uncontroverted and cred-
ited evidence, that Respondent’s (Leck) discussions with the
Grievance Committee and its acts of approval or disapproval
of recommendations by the committee were in reference to
changes in the grievance procedure and otherwise not related
to wages, hours, and other terms and conditions of employ-
ment.
Although Respondent (Leck) agreed to consider changing
the Company’s no-call/no-show policy, he was not obligated
to do so under the explicit language of the purpose of the
grievance procedure. The fact that he did consider it does
not, in my judgment, convert the committee’s request and
Leck’s consideration into negotiations concerning wages,
hours, and other terms or conditions of employment. Since
the evidence fails to establish any dealings between Re-
spondent and the Grievance Committee which involved
wages, hours, and other terms or conditions of employment,
I do not find that Respondent has dealt with the Grievance
Committee as a labor organization. Consequently, I find
NLRB v. Cabot Carbon Co., supra, and Armco Inc., 271
NLRB 350 (1984), cited by counsel for the General Counsel,
do not support his position.
Additionally, the uncontroverted and credited evidence of
record shows that the employees suggested having a griev-
ance committee and Respondent approved the suggestion;
that Respondent prepared an original and an amended griev-
ance procedure, which both Respondent and the employees
understood would govern the grievance procedure. Based on
the foregoing evidence, I find that both the Respondent and
the employee members of the Grievance Committee intended
to create a grievance committee for the sole purpose of re-
solving employee grievances fairly, with respect to any mis-
understanding or misapplication of company policies and
procedures and, as such, the committee does not constitute
a labor organization within the meaning of the Act.
Having found that the Grievance Committee is not a labor
organization and that Respondent has not dealt with the com-
mittee as a labor organization within the meaning of the Act,
I find that the complaint should be dismissed. Cabot Carbon
Co., supra, and Sparks Nugget, 230 NLRB 275 (1977).
ORDER
Accordingly, the complaint should be, and it is, dis-
missed.2