Keller Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1966

161 N.L.R.B. 21 (N.L.R.B. 1966)

KELLER LADDERS SOUTHERN, INC. 21
Keller Ladders Southern , Inc., a subsidiary of Keller Industries,
Inc. and United Steelworkers of America , AFL-CIO and Local
666, Concrete Products & Material Yard Workers' Union , Allied
Industries Division , International Hod Carriers ' Building and
Common Laborers ' Union of America , AFL-CIO, Party to the
Contract
Keller Industries, Inc. and United Steelworkers of America,
AFL-CIO and Local 666, Concrete Products & Material Yard
Workers' Union , Allied Industries Division , International Hod
Carriers' Building and Common Laborers ' Union of America,
AFL-CIO, Party to the Contract . Cases 23-CA-2029 and 204Pi.
October 17,1966
DECISION AND ORDER
On March 23, 1966, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. She further found that Respondents had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be dismissed. There-
after, Respondents and Local 666 filed exceptions to the Trial
Examiner's Decision and supporting briefs.
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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on April 19 and 27 and May 6, 1965 , by United Steelworkers
of America, AFL-CIO, herein called the Steelworkers , against Keller Ladders South-
ern, Inc., herein called Keller Ladders, in Case 23-CA-2029 and a charge filed on
May 6, 1965 , by the Steelworkers against Keller Industries , Inc., herein called Keller
Industries or Keller Chairs, in Case 23-CA-2042, a consolidated complaint was
issued on July 30, 1965, alleging that Respondents had engaged in unfair labor
practices in violation of Section 8(a)(1), (2 ), and (3 ) of the National Labor Rela-
tions Act, as amended . Respondents jointly filed an answer , denying that they had'
engaged in any unfair labor practices alleged in the complaint . A hearing was held
before Trial Examiner Fannie M. Boyls at Bryan, Texas, on October 26 through 29,
1965. All parties, including the Charging Party, and Local 666, Concrete Products &
161 NLRB No. 4.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Material Yard Workers' Union, Allied Industries Division, International Hod Car-
riers' Building and Common Laborers' Union of America, AFL-CIO, herein called
Local 666 (as party to the collective-bargaining contracts with Respondents) were
represented at the hearing and participated therein. The parties waived oral argument
at the conclusion of the hearing but thereafter filed briefs, which have been carefully
considered.
Upon the entire record in this case and from my observation of the witnesses as
they testified, I make the following:
FINDINGS OF FACT
1. RESPONDENTS' BUSINESSES
Respondent Keller Industries is a Florida corporation having its principal offices
in Miami, Florida, and operating wholly owned subsidiaries and plants in several
States, including the States of Florida, New Jersey, and Texas. At all times material
herein it has operated at Caldwell, Texas, an aluminum chair plant, where it is
engaged in the manufacture, sale, and distribution of aluminum chairs and related
products. For the 12-month period commencing in January 1965, which is a repre-
sentative period, Respondent Keller Industries has sold and shipped manufactured
products valued in excess of $50,000 from its Caldwell plant directly to points outside
the State of Texas.
Respondent Keller Ladders is a wholly owned subsidiary of Respondent Keller
Industries. At all times-material herein, it has maintained its principal office and plant
in Caldwell, Texas, where it has been engaged in the manufacture, sale, and distri-
bution of aluminum ladders and related products. In the course and conduct of its
business operations, commencing in March 1965 and for a 12-month period there-
after, which is a representative period, Respondent Keller Ladders has sold and
shipped manufactured products valued in excess of $50,000 from its plant in Caldwell,
Texas, to points outside the State of Texas.
I find that each of Respondents is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondents admit, and I find that Local 666 and the
Steelworkers are each labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Issues
Except in a few instances there is no substantial dispute as to the facts. The issues
presented are whether the assistance and support given by Respondents to Local 666
at the newly opened chair and ladder plants in Caldwell, Texas, amounted to unlawful
assistance and support to that labor organization within the meaning of Section
8(a)(2) and 1 of the Act and whether Respondent Keller Ladders' discharge of two
employees who supported the Steelworkers at the ladder plant was discriminatorily
motivated.
B. Respondents' conduct at the chair plant
In August 1964 Keller Chairs commenced the construction of a plant in Caldwell,
Texas, but it was not until about January 21, 1965, that it started hiring production
employees and training them to make chairs.' The first chairs were actually produced
about February 1, by which time about 50 or 55 employees had been hired.
On Sunday evening, January 31, Charles Prevost, then plant manager of the chair
plant at Caldwell (at the time of the hearing also plant manager of the ladder plant),
received a telephone call from Gerald Schwartz, a representative of Local 666, who
had just arrived from his headquarters in Miami, Florida. Schwartz explained that
Keller Industries' vice president, L. P. "Red" Randall, in Miami, had furnished him
with Prevost's telephone number. He asked Prevost to "give him two employees"
who would help him organize the Caldwell plant. He assured Prevost that he had
talked the matter over with Respondent's Miami office and had been authorized by
that office to appear in Caldwell and make a speech to the employees there. Prevost
told Schwartz that he would have to check with Respondent's Miami office before
complying with Schwartz' requests.
i For convenience In distinguishing it from the home office operations in Miami, Florida,
the Caldwell operation of Keller Industries will be referred to herein as Keller Chairs.
KELLER LADDERS SOUTHERN, INC. 23
On the following morning, February 1, Prevost did check with the home office
in Miami and was told to "go ahead," do what Schwartz suggested and not stick his
own nose in union business. Prevost then selected two employees, William Edwards
and Earl Humphreys, and the three of them drove to the Surrey Inn, a motel about
3 miles away, where Schwartz was staying.2 Prevost introduced Edwards and
Humphreys to Schwartz and stayed with them while Schwartz talked to them about
the Union and about passing out union cards to other employees. The meeting began
about 8:45 a.m. and lasted' about a half hour. At the conclusion of this meeting,
Schwartz asked Prevost for permission to address the employees at the plant and
Prevost gave him permission to talk to them during the 10-minute coffee break which
began at 10 a.m. that morning.
Just prior to the morning coffee break, the approximately 50 or 55 employees then
employed were told by Humphreys and Edwards that there would be a meeting in
the dining area in the front part of the building at 10 a.m. When the employees
assembled, Plant Manager Prevost introduced Union Representative Schwartz, told
the employees that he knew a union would eventually want to organize the employees;
that he would not try to keep a union out and that the employees could do what
they wanted to about it. He and Supervisor Turner then left the meeting and Schwartz
talked to the employees about the benefits which he expected to obtain for them.
Among the benefits he mentioned was a 10-cent increase in pay which would be
graduated' over a period of time. He told the employees that they would not have to
pay any union dues until the amount of their pay increases were sufficient to cover
the dues. Combination union authorization and dues deduction authorization cards
were circulated among the employees and many of the employees present signed at
that time. The meeting lasted about 15 or 20 minutes. At the 'conclusion of the
meeting employee E. M. Burdine, who worked for Keller Ladders, which at that
time was using space in the rear of the building occupied by Keller Chairs, approached
Schwartz and started asking him questions. Humphreys thereupon tapped him on the
shoulder and, told him he was not supposed to be there. The two of them then left
the room. All employees were paid for the time spent by them listening to Schwartz.
After the employees returned, to work, Edwards and Humphreys came around to
those who had not already signed cards and offered them cards. When employee
Nina Burdine asked Edwards if she had to sign, he answered that she did not have
to but that her signing would mean a 10-cent wage increase. One of the employees,
Marek, signed his card during the lunch period and returned it directly to Union
Representative Schwartz who was still on Respondent's premises. Marek asked
Schwartz whether Local 666 was a company union and Schwartz replied, "I have
never waltzed with Mr. Keller and Mr. Keller has never waltzed with me."
On the same day, after Schwartz had obtained signed cards from about 45 of the
employees, he took them to Plant Manager Prevost and showed them to him. Prevost
informed Schwartz that he had, no authority to negotiate and that Schwartz would
have to deal with the Miami office of Respondent. The Miami office kept all the
payroll records of the Caldwell employees and all union contracts were negotiated
through the Miami office.
A 3-year contract between Local 666 and Keller Industries covering its Caldwell,
Texas, chair plant was executed in Miami on February 19, 1965, and Plant Manager
Prevost was informed of it by telephone about that date. Humphreys, who had been
appointed shop steward, left Caldwell for Miami and was gone about 2 days around
this date apparently after the contract was executed. He told Prevost that he was
going to Miami "to get himself a little more familiar with the contract." Humphreys,
however, was not paid by Respondent either for the time lost from his work while
in Miami or for the expenses incurred on his trip .3 After his return from Miami,
2 The General Counsel contends that both Edwards and Humphreys were then super-
visors within the meaning of the Act. Although in late January and early February
Prevost occasionally assigned men to help Humphreys and he and Edwards undoubtedly
displayed leadership qualities which caused Prevost to select them to represent the em-
ployees in the initial interview with Schwartz and soon thereafter to promote them to
supervisory positions, I am not satisfied on the basis of the record as a whole that they
were, in fact, supervisors until March 15. Respondent's payroll records show that effective
as of March 15, 1965, Humphreys and Edwards were each promoted to a supervisory posi-
tion. Moreover, it was not until that date that Humphreys' rate of pay was increased from
$1.25 to $1 50 an hour and that Edwards' rate of pay was increased from $1.25 to $1 40
an hour
3 After being made a supervisor on March 15, 1965, Humphreys left Respondent's em-
ploy in July and did not testify at the hearing. Although at sometime after becoming a
supervisor , Humphreys ceased being Local 666's shop steward, the record is not clear
as to when this occurred.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humphreys, with Respondent's permission, called a meeting of the employees at the
plant after working hours and read them the contract. By a show of hands, they
.voted in favor of it. The contract provided inter alia, for wage increases in graduated
steps totaling 10 cents an hour at the end of the first year of employment-the
amount Schwartz had promised he would attempt to get the employees-and for
further graduated increases totaling an additional 10 cents an hour at the end of
the second year of employment.
There is testimony by J. S. Denning, who from August 1964 to February 21, 1965,
was general sales manager for Keller Ladders, that after Schwartz addressed the
Keller Chairs employees on February 1, he, Denning, was told by Don Anderson,
then general manager of the Ladder Division of Keller Industries, including the
ladder plant in Caldwell then under construction, that only two employees at the
chair plant had failed to sign cards for Local 666 and that one of the two was the
wife of E. M. Burdine, one of Denning's supervisors at a plant in Seagoville, Texas,
which Denning had owned and operated before selling it to Keller Industries. Burdine
was a good friend of Denning and had been employed by Denning at the ladder plant
in Caldwell. According to Denning, General Manager Anderson told him to tell
Burdine to tell his wife that if she did not join the Union, she would be fired in
several days.
Over the weekend, following Schwartz' talk to the employees, either on Saturday
or Sunday (February 6 or 7) Denning did, according to his own testimony and that
of Burdine, tell Burdine in the presence of Keller Ladder employee Jim Christianson,
what General Manager Anderson had purportedly said. Mrs. Burdine signed a union
card on February 8, after her husband talked to her.
Don Anderson testified that he recalled no conversation with Denning with refer-
ence to Burdine and a union problem. He specifically denied telling Denning that
Burdine's wife should sign a union card or be fired. Respondents contend that Denning
was not even in Caldwell during the period when he allegedly had his conversations
with Anderson and with Burdine. Denning's travel expense report and duplicate
airline tickets introduced by Respondents in support of this contention do not prove
Respondents' point. This data indicates that Denning departed from College Station
(near Caldwell) on Tuesday, February 2, at 9:57 p.m., and arrived back on Saturday
morning, February 6 4 Accordingly, it was possible for Anderson, who was staying
at the same motel where Denning stayed, to have made the statements attributed
to him on February 1 or 2. before Denning left town or upon his return, and it was
also possible for Denning to have told Burdine on Saturday or Sunday, February 6
or 7, of Anderson's alleged statements.
I am satisfied on the basis of the credited testimony of E. M. Burdine, corroborated
by the testimony of Denning, that Denning did, in fact, tell Burdine that Anderson
had said that if his wife did not sign a union card, she would be fired Denning at
that time, was a responsible management representative and whether or not Anderson
made the statements attributed to him by Denning, Respondent was responsible for
the coercive effect of Denning's conduct, for he was acting within the apparent scope
of his authority The inference is clear that Mrs. Burdine was coerced into signing a
union card for Local 666 because of the threat made by Denning and communicated
to her by her husband. Nor is it of controlling importance that Denning was general
sales manager of Keller Ladders and that Mrs. Burdine was employed by Keller
Chairs, for Keller Ladders was a wholly owned subsidiary of Keller Chairs. both
businesses were operated out of the same building at that time, Denning
had an office next to that occupied by Keller Chairs Plant Manager Prevost, the
employees used the same dining and restroom facilities, and employees would nat-
urally assume that management representatives of Keller Ladders and Keller Chairs
were cooperating and that their labor management policies were the same The
record, moreover, clearly shows that Keller Ladders and Keller Chairs in fact had a
common labor policy directed from Keller Industries in Miami and that management
representatives of each of the Caldwell plants cooperated with and assisted each
other in carrying out that labor policy In these circumstances, the individual
Respondents must be held accountable for the assistance given in their behalf by
4The photocopy of the copy of the return airlines ticket introduced by Respondents is
almost illegible but, examined under a magnifying glass, it apnears to he for a Trans-Texas
flight, No 482, from Houston to College Station (about 46 miles from Caldwell) scheduled
to leave Houston on February 6 to 5 • 30 a m (A check of the official airline schedules
discloses that Flight 482 was scheduled to leave Houston at that time and to arrive in
College Station at 6 : 07 a m.)
KELLER LADDERS SOUTHERN, INC 25
management representatives of either corporate entity to Local 666 to the same
extent as if they were joint employers 5
In arguing that Respondents unlawfully assisted and gave support to Local 666 at
the Keller Chairs plant the General Counsel relies in part upon certain preorgani
zational statements attributed by General Sales Manager Denning to Don Anderson
general manager of Respondents Ladder Division about Respondents relations with
Local 666 which if true would indicate that Local 666 Union Representative Schwartz
was working with Respondents Miami officials in organizing their various plants
throughout the country into different unions and were entering into sweetheart
contracts with those various unions Anderson sharply controverted this testimony
He testified that he never heard of Local 666 prior to about February 1965 and
never heard of Schwartz until about March 1965 I find it unnecessary to resolve
and do not resolve the conflicts in this testimony because even accepting Denning s
testimony as true this would not mean that Respondent unlawfully assisted and
supported or had a sweetheart contract with Local 666 at Keller Chairs in Cald
well Upon the basis of that evidence I am constrained to find as alleged in the coin
plaint that Respondents did unlawfully assist and support Local 666 within the
meaning of Section 8 (a)(2) and ( 1) of the Act
In reaching this conclusion in respect to the chair plant I have taken into consid
eration all of the circumstances under which the employees were organized but have
relied principally upon the fact that it was Plant Manager Prevost rather than the
employees who selected the two employees Humphreys and Edwards who were to
talk to Union Representative Schwartz and help him organize the plant that Prevost
went with these employees during working hours to interview Schwartz and stayed
with them during the interview that these two employees one of whom was appointed
union shop steward acted as Respondents agents in assemblymg the employees that
same morning to listen to an organizational talk by Schwartz on the plant premises
and that Prevost introduced Schwartz to the employees Where as here a union
first approaches management rather than the employees for help in getting the plant
organized and management furnishes the requested assistance as Keller Chairs did
here it is reasonable to infer that the employees did not have that complete and
unfettered freedom of choice which the Act contemplates N L R B v Link Belt
Company 311 US 584 588 Salmirs Oil Company 139 NLRB 25 26 American
Standard Cargo Container Company 151 NLRB 1399 Less significant but also con
sidered as a part of the total picture was Respondents payment of Humphreys and
Edwards for the time spent by them during working hours on the visit with Union
Representative Schwartz at the Surrey Inn the contribution of the use of its plant as
a meeting place for the organizational meeting as well as for several union meetings
thereafter and the payment of the employees on February 1 for their working time
spent while listening to Schwartz 6 Also constituting unlawful support and assistance
to the Union as well as an independent violation of Section 8(a)(1) of the Act
was the conduct of General Sales Manager Denning in conveying to employee
Burdine the threat that his wife would be discharged if she did not sign a union card
C Respondents' conduct at the ladder plant
1 The advent of Local 666 at the ladder plant
The ladder plant about 400 feet from the chair plant was completed and beginning
to produce ladders about March 10 or 15 1965
In seeking to organize the ladder plant Union Representative Schwartz-as he had
done at the chair plant-first sought the aid of management representatives Upon
arriving in Caldwell the latter part of March he called the chair plant manager
s 'either Denning nor Anderson were working for Keller Ladders at the time of the
hearing Denning s services had been terminated on February 21 1965 apparently for
reasons having nothing to do with the issues herein and Anderson left Keller Ladders
employ in August 1965 There was an obvious ill feeling between the two men I find it
unnecessary and do not resolve the conflicts in their testimony
9 Although as the Board recognizes the grant by an employer of some company time and
facilities to a union seeking to represent its employees is not in and of itself sufficient
to warrant a finding that the union is unlawfully assisted it may properly be considered
as one facet in the pattern of conduct constituting such unlawful assistance N L R B N
Stowe Spinnsng Company 336 U S 226 230-231 Ferguson-Lander Box Co 151 NLRB
1615 Coamo Kntttsng Mills Inc 150 NLRB 579
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prevost, for assistance. Prevost told Schwartz that he had nothing to do with the
ladder plant and suggested that Schwartz talk to the ladder plant manager, Don
Anderson. Prevost then passed the word on to Anderson that Schwartz was looking
for him.
In the meantime Schwartz obtained the name of a Keller Ladder employee, I. P.
Schigut, from Earl Humphreys who, since March 15 had been a supervisor at the
Keller Chair plant, and on Sunday night, March 28, telephoned Schigut at his home.
He told Schigut that he was trying to get a union in the ladder plant, as he had done
in the chair plant, and asked if he could see Schigut the next morning. Schigut replied,
"Well, I,don't know. I would have to ask Mr. Anderson about it and get his permis-
sion to see the fellows." Schigut did ask Anderson's permission the next morning
and Anderson said it would be all right.
Schwartz called Anderson at the plant early Monday morning, March 29, and
requested permission to talk to the employees in the plant. Anderson replied that he
would not allow anyone in the plant because that would interrupt production.
Schwartz then asked if he could speak to employee Schigut. Anderson stated that it
was necessary for him to go to Surrey Inn to pick up some notes from his room there
and that he would bring Schigut along to talk to Schwartz, who was also staying at
Surrey Inn.
Anderson then asked Schigut to go with him to see Schwartz. Schigut requested
and received permission to take another employee, Leroy Sexton, along.? Upon arriv-
ing at the Surrey Inn, Anderson introduced Schigut and Sexton to Schwartz, then
left on personal business, returning a time or two to inquire if they had finished
talking. The meeting with Schwartz lasted 20 or 30 minutes. During the meeting,
Schwartz explained that he would like to organize the ladder plant as he had the
chair plant and asked Schigut and Sexton if they could help him. Schigut replied, "I
don't know very much about unions or anything like that. As far as helping or any-
thing like that." At the conclusion of the meeting, Anderson brought the two employ-
ees back to the plant. They were paid by Keller Ladders for their time spent away
from the plant that morning.
On the same day after checking with the home office in Miami and obtaining its
approval, Anderson gave Schwartz permission to address the employees at the plant.
Supervisor Reece told the 25 or 30 employees then working for Keller Ladders that
there would be a meeting in the front part of the building during the 10 a.m. coffee
break. When they had assembled, Anderson introduced Schwartz as the Union's repre-
sentative from Miami and told them that Schwartz would like to talk to them.
Anderson and Reece then left the room and Schwartz talked to the employees for
about 20 or 25 minutes. He told them, among other things, that he represented the
employees of the chair plant next door as well as those of some of the other com-
panies owned by Keller Industries; that he expected to get them paid holidays, a
week's vacation and progressive 21/2-cent wage increases during the first year so
that by the end of 1 year they would have a 10-cent increase and that by the end
of the second year they would receive an additional 10-cent increase. He mentioned
that he had obtained a similar 10-cent increase for the employees of the chair plant.
He told the employees that no initiation fee will be charged for those who signed
cards at the meeting but that those who signed later would have to pay the fee. He
also told them as he had the chair plant employees, that dues would not be deducted
from their pay until the wage increases were sufficient to cover the dues. During the
meeting he passed out combination union authorization and dues deductions authori-
zation cards and a majority of the employees signed them. Following the meeting,
Schwartz informed Schigut that he was appointed temporary shop steward. All
employees were paid for the time they spent listening to Schwartz.
After the meeting Schwartz took the signed cards to Anderson, stated that a
majority of the employees had authorized Local 666 to represent them and requested
recognition. Anderson looked at the cards, ascertained that a majority of the employ-
ees had signed, and granted the requested recognition. On April 9, 1965, less than
2 weeks later, a contract between Keller Industries and Local 666 was executed in
Miami covering the employees at the Keller Ladder plant in Caldwell. The employees
learned of it when a copy was thereafter sent to Shop Steward Schigut and he
7 There is testimony by E. M. Burdine which would indicate that Sexton might have
been a supervisor on the night shift about that time, but I am satisfied, on the basis of
other evidence that Sexton did not become a supervisor until May 22, when according to
Respondents' records, his pay was increased from $1.25 to $1 .85 an hour.
KELLER LADDERS SOUTHERN, INC. 27
informed the employees of it at a union meeting.8 The employee benefits provided
in the contract were substantially as predicted by Schwartz.
Before work on the morning of April 9, 1965, the date of the contract between
Local 666 and Keller Industries covering the ladder plant employees, employee
George Peart passed out Steelworkers union cards to some of his fellow employees
at the entrance to the Keller Ladder plant and inside the plant. Peart testified that
he did not believe his foreman, Reece, saw him and there is no evidence that any
supervisor or management representative knew that the Steelworkers Union was
trying to organize the employees of either Keller Ladders or Keller Chairs until after
the contract had been executed. During his lunch period on April 12 Peart placed
some leaflets announcing a Steelworkers' meeting at the Steelworkers union hall on
April 13, on the empty tables in the lunch area of the Keller Chairs plant. Plant
Manager Prevost, after seeing the leaflets, asked where Peart was from and, upon
ascertaining that he worked at the Keller Ladder plant, admonished him against
coming into the chair plant except to use the toilet facilities while the Keller Ladder
facilities were being repaired. He told Peart, "We don't allow this sort of thing in
the plant." Peart then picked up the leaflets and left. He acknowledged on the
witness stand that he knew what he had done was in violation of Respondents'
no-distribution rule.
I find nothing unlawful in Prevost's admonition to Peart against coming into the
chair plant and distributing leaflets there. Nor do I find any support in the record
for the General Counsel's contention that Keller Ladders entered into a contract
with Local 666 at a time when it knew a rival union was seeking to organize the
Keller Ladder plant. These findings, however, do not dispose of the question whether,
on the basis of the other evidence set forth in this subsection, a finding is warranted
that Respondent Keller Ladders unlawfully assisted or supported Local 666.
On the basis of all the evidence, I am convinced that Respondents unlawfully
assisted and supported Local 666 at the Ladder plant, as they had at the chair plant.
Here Union Representative Schwartz first sought the assistance of management in
organizing the ladder plant as he had earlier done next door, rather than going
directly to the employees themselves. He first talked to Chair Plant Manager Prevost,
and Chair Plant Supervisor Humphreys, who referred him respectively to General
Manager Anderson and to employee Schigut. Schigut, appeared to have been a
somewhat unenthusiastic if not reluctant participant in the events into which he was
propelled. He protested to Schwartz that he knew nothing about the Union and
would have to get General Manager Anderson's permission before talking to any of
the other employees about the Union. Schigut's wife had been selected as an assistant
shop steward for the chair plant next door but this fact had apparently not generated
any enthusiasm on his part for the leading role thrust upon him when he was
directed by General Manager Anderson to accompany him to the Surrey Inn for the
interview with Schwartz and when he was shortly thereafter appointed shop steward
for the Keller Ladder plant. In these circumstances, General Manager Anderson's
action in transporting Schigut and Sexton during working hours to the Surrey Inn
and introducing them to Schwartz, Foreman Reece's instructions to all the employees
to attend the meeting in the plant during their morning coffee break, where Anderson
introduced Schwartz to the employees and gave him an opportunity to talk to them
and solicit their signatures on union cards, Anderson's precipitate recognition of
Local 666 as the employees' bargaining representative on the same day, and Respond-
ents' payments to Schigut and other employees for the time spent by them with
Schwartz, all add up, in my view, to unlawful assistance and support to Local 666,
in violation of Section 8(a)(2) and (I) of the Act.
2. The discharges of employees Peart and Tydlacka
Employees George Peart and Arnold Tydlacka, who worked on the ladder assem-
bly line, were discharged on April 23, 1965, for the asserted reason that Keller
Ladders was not satisfied with their work performance. In support of his contention
that these two employees were in fact discharged because they had engaged in
organizational activities in behalf of the United Steelworkers of America, a rival
of Hod Carriers Local 666, the General Counsel relies upon the following evidence.
He points out that George Peart passed out Steelworkers cards to some employees
s The findings in this subsection regarding the conduct of Respondents ' representatives
are based upon the credited testimony of Scbigut, Prevost, and Foreman Reece and to the
extent not inconsistent, upon the testimony of Anderson also. Where inconsistencies ap-
pear, I have accepted the recollections of Schigut , Prevost, and Reece as more accurate.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the ladder plant on April 9 and that he openly distributed leaflets on April 12 at
both the Keller Ladder and Keller Chair plants announcing a Steelworkers meeting
for April 13 On the morning following the Steelworkers meeting Peart handed em
ployee Stanley a letter which the Steelworkers representative had prepared inform
ing Respondents of the Steelworkers organizational campaign and listing the
names of 15 Keller Ladder employees who had signed Steelworkers cards and
requested Stanley to deliver the letter to Foreman Reece Stanley with employee
Tydlacka as a witness did present the letter to Reece on that morning Reece accepted
the letter but made no comment
Although it is clear that Keller Ladders through its foreman Reece knew at least
by April 13 that Peart and Tydlacka were supporting the Steelworkers and undoubt
edly knew that Peart was one of those most active in the Steelworkers campaign
these facts do not support any inference that Keller Ladders was discrimmatonly
motivated in terminating Peart and Tydlacka My finding in the preceding subsection
that Respondents unlawfully assisted and supported Local 666 does not mean that
it was opposed to the Steelworkers or that it even preferred one union over the
other It was stipulated at the hearing that Keller Industries in other plants had con
tracts with the Steelworkers as well as with Local 666 and other unions Moreover
Keller Ladders adduced convincing evidence that it discharged Peart and Tydlacka
because it was not satisfied with their work performance
Both employees had been hired about mid March Their principal duties consisted
of putting feet and locks on extension ladders along with two other employees
Stanley and Gerland all of whom worked on the same assembly line On two occa
sions prior to the discharges Foreman Reece had called the group into his office and
admonished them to speed up their production and keep their production up explain
ing that the ladders on which they had not worked were stacking up and that this
slowed up the whole production line On at least one of these occasions however
Pearl was absent from the plant and was therefore not in the group admonished
by Reece
According to the credited testimony of Reece employee Stanley who was the
fastest of the four employees came to Reece s office about 1'A or 2 weeks before
the discharges and announced that he was planning to quit his lob When Reece
inquired as to the reason Stanley replied that he was getting tired of carrying Peart
and Tydlacka s load 9 Reece asked Stanley not to quit and promised to try to do
something about Stanley s complaint Thereafter about a week before the discharges
when Stanley was absent from work employee Shupak told Reece that he believed
that Stanley had quit because Stanley had told him he would probably leave the
plant because Peart and Tydlacka were not doing their share of the work 10 Stanley
did however return to work on the following Monday
During the week before the discharges according to Reece s credited testimony
he observed the work of all four men on the assembly line and saw that Tydlacka
and Peart were falling behind and that Stanley and Gerland were carrying their load
On Friday April 23 when Stanley was again absent from work Reece observed that
Tydlacka and Peart were wasting time talking and walking around for about 1'h to
3 minutes between each ladder while the ladders were stacking up At the end of
the day he called them into his office and discharged them explaining that they had
been talking too much and not producing enough
On the basis of all the evidence I am convinced and find that Peart and Tydlacka
were not discharged because of their activities on behalf of the Steelworkers as
alleged in the complaint
CONCLUSIONS OF LAW
I By unlawfully assisting and supporting Local 666 Respondents have engaged in
unfair labor practices within the meaning of Section 8(a)(2 )and (1) of the Act
2 By threatening to discharge an employee if she did not sign a union authon
zation card on behalf of Local 666 Respondents not only furnished further unlawful
6 kltbonrh Stanley at one point testified that the production of all four of those on his
assembly line was about even he conceded on cross examination that he had told Foreman
Reece something to the effect that he was thinking about quitting because he was having
to do other peoples work that Reece had told him he was a good employee had asked
him not to quit and had promised to try to remedy the situation
10 Schupak testified that Stanley had in fact made this statement to him and that he
later told Reece about his conversation with Stanley but did not disclose to Reece the
reason Stanley gave for not wanting to continue working Schupak did not Impress me
as being entirely frank and I find Reece s testimony on this point the more credible
KELLER LADDERS SOLTHERN, INC 29
assistance and support to Local 666 in violation of Section 8(a)(2) but also
independently interfered with restrained and coerced employees in the exercise of
their Section 7 rights in violation of Section 8 (a)( 1 ) of the Act
3 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act
4 The General Counsel has not established by a preponderance of the evidence
that Respondent Keller Ladders discharged employees George Peart and Arnold
Tydlacka in violation of Section 8(a) (3) of the Act
THE REMEDY
It having been found that Respondents have engaged in unfair labor practices
within the meaning of Section 8 (a) (2) and (1) of the Act my Recommended Order
will require that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
As already indicated herein Keller Ladders is a wholly owned subsidiary of Keller
Industries which from its home offices in Miami handled the payrolls for both its
chair plant and ladder plant employees in Caldwell Texas and directed the labor
policies of both those plants the management representatives of both those plants
cooperated with and assisted each other in dealing with labor relations problems
(e g Denning from Keller Ladders took coercive action to cause a Keller Chairs
employee to sign a Local 666 card Prevost from Keller Chairs directed Schwartz to
see Anderson at Keller Ladders about organizing the Keller Ladders employees and
Humphreys at Keller Chairs referred Schwartz to employee Schigut at Keller Ladders
for assistance in organizing the ladder plant) and Prevost became plant manager of
both plants after Anderson severed his connection with Keller Ladders and Keller
Industries on August 5 1965 In these circumstances and in view of the similar
nature of the unfair labor practices engaged in by each Respondent it would seem
appropriate that a single order issue against both Respondents
Since it has been found that each Respondent has unlawfully assisted and supported
Local 666 the latter cannot be considered the free and uncoerced choice of Respond
ents employees as their representative It follows that the contracts which each
Respondent has executed with Local 666 must be set aside and that Respondents
must be required to withhold recognition from Local 666 until and unless that labor
organization has been certified by the Board as the employees bargaining repre
sentative Nothing herein shall be construed however as requiring Respondents to
vary any wage or other substantive feature of their relations with their employees
which Respondents have established in the performance of their contracts 11
The General Counsel argues that my Recommended Order should also require
Respondents to reimburse the employees who signed Local 666 s combination union
representation and dues checkoff authorization cards for any dues deducted from
their pay However since the record shows that pursuant to Union Representative
Schwartz promise no dues were deducted from the employees pay until the amount
of their increase in pay under the contracts was sufficient to cover the dues and
since the contracts contained no union security clauses which required employees to
maintain their union membership and authorizations for dues deductions it is not
deemed appropriate in this case to require Respondents to reimburse the employees
for the dues deducted Cf Local 60 Carpenters (Mechanical Handling Systems) v
NLRB 365 U S 661 Duralite Co Inc 132 NLRB 425 429
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record and pursuant to Section 10(c) of the Act there is hereby issued the
following
RECOMMENDED ORDER
The Respondents Keller Ladders Southern Inc and Keller Industries Inc their
officers agents successors and assigns shall
1 Cease and desist from
(a) Furnishing financial or other support or assistance to Local 666 Concrete
Products & Material Yard Workers Union Allied Industries Division International
Hod Carvers Building and Common Laborers Union of America AFL-CIO or
any other labor organization of their employees
(b) Threatening any employee with loss of employment because of his failure to
sign a union card on behalf of Local 666 or any other labor organization
u Bernhard Altmann Teceas Corporation 122 NLRB 1289 1294 enfd 280 F 2d 616
(C A D C) affd 366 U S 731
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Recognizing Local 666 as the representative of any of their employees for the
purpose of dealing with them concerning, grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions of employmeent, unless and
until the Board' shall certify Local 666 as such representative.
(d) Giving effect to the collective-bargaining agreement with Local 666 dated
February 19 and April 9, 1965, or to any modification, extension, renewal, or sup-
plement thereto; provided, however, that nothing herein-shall" require Respondents to
vary or abandon any wage or other substantive feature of their relations with their
employees, which they have established in the performance of such agreements, or
prejudice the assertion by the employees of any rights they may have thereunder.
(e) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of the rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Withdraw and withhold all recognition from Local 666, as the collective-
bargaining representative of any of their employees for the purpose of dealing with,
Respondents concerning grievances, labor disputes, wages, rates of pay, hours of-
employment, or other terms or conditions of employment, unless and- until said'
Local 666 shall have demonstrated its exclusive representative stattis pursuant to an,
election conducted by the Board.
(b) Post at their plants in Caldwell, Texas, copies, of the attached notice,-marked'
"Appendix." 12 Copies of said notice, to be furnished by the Regional Director for
jtegion 23, after being duly signed by Respondents," representatives; shall be: posted
i:by Respondents immediately upon receipt thereof, and, be maintained by them for 60
.,co"ecutive days; in conspicuous places, including all places where notices to employ-
,.ees. are customarily posted. Reasonable steps shall! be taken by Respondents tiainsure
--that said notices' are not altered, defaced, or covered' by any other material.
(c) Notify the Regional Director for Region 23, iii suiting, within 20 dams from
the receipt of this Decision, what steps Respondents have taken to comply hemwith.13
IT Is FURTHER ORDERED that the complaint be dismissed insofar as;it allegesunfair
labor practices not specifically found herein.
17 In the event that this Recommended Order is adopted by the Board , the words "a
Decision, and Order" shall be substituted, for the words "tile Recommended Order of a
Trial Examiner" In, the, notice . In, the f>srther event that the Board ' s Order is enforced
by a' decree of a, United States Court of Appeals, the words- "a Deeree of the United States
Court of Appeals Enforcing an Order " shall be stobstitutedt for the words "a . Decision
and Order."
13 In the event that this Recommended Order is adoptedt by the Board , this. provision
shall be modified to read : "Notify said Regional Director , in, writing , wiitieih 10 days from,
the date of this Order, what steps the Respondents have taiien to com I , herewith."
APPENDIX
NOTICE To ALL EMPLOYiIEu
Pursuant to the Recommended Order of a Trial Examiner of the Nati nal Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT furnish financial or other support or assistance to Local 666,
Concrete Products & Material Yard Workers' Union, Allied Industries Division,
International Hod Carriers' Building and Common Laborers,' Union of America,
AFL-CIO, or any other labor organization of our employees.
WE WILL NOT threaten any employee with loss of employment because of
his failure to sign a union card on behalf of Local 666 or any other labor
organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed them under Section 7
of the Act.
WE WILL withdraw and withhold recognition from Local 666 as the collective.
bargaining representative of any of our employees unless and until it is certified
by the Board as such representative.
WE WILL NOT give effect to the collective-bargaining agreements with Local 666
dated February 19, 1965, and April 9, 1965, or to any modification, extension,
HOPCON, INC. 31
renewal, or supplement thereto. However, we are not required to vary or
abandon any wage or other substantive feature of those agreements and our
employees are not precluded from asserting any rights they may have thereunder.
All our employees are free to become, remain , or refrain from becoming or
remaining, members of the above -named labor organization or any other labor
organization.
KELLER LADDERS SOUTHERN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
KELLER INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue , Houston , Texas 77002, Telephone 228-4722.
Hopcon, Inc. and Teamsters Local No. 524, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Independent . Case 19-.CA-3330.
October 17,1966
DECISION AND ORDER
On June 21, 1966, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Charging Party filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
1. The complaint alleged, Respondent in its answer admitted, and
we find, that the following employees constitute a unit appropriate
161 NLRB No. 1.