KUX Mfg. Corp.

National Labor Relations Board - Board Decisions

Nov 8, 1977

233 N.L.R.B. 317 (N.L.R.B. 1977)

KUX MFG. CORP.
Kux Manufacturing Corporation and Continental
Marketing Corporation: A Joint Employer and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW) and Employee Representative
Committee, Party of Interest. Cases 7-CA-13157
and 7-RC-13565
November 8, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 27, 1977, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, to which Respon-
dent filed an answer and cross-exceptions, as well as
a motion to reopen the record ' and a brief in support
thereof, and the General Counsel filed a brief
answering Respondent's cross-exceptions and mo-
tion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Charging Party has filed exceptions to the
Administrative Law Judge's failure to find the
Employee Representative Committee (hereafter the
Committee) to be a dominated labor organization
and to order that it be disestablished. For the
following reasons we find these exceptions meritori-
ous.
Initially, we note that the Administrative Law
Judge found that the undisputed evidence establish-
ed that the Committee exists solely at the discretion
of Respondent and was and is a construct of
Respondent and not the employees. He further
concluded that "the Committee exists as an instru-
mentality of the Respondent with no independent
i On the basis of our discussion hereinafter, Respondent's motion to
reopen the record for the taking of additional evidence is hereby denied.
2 We affirm the Administrative Law Judge's finding that the vote taken
among the employees on February 25 constitutes an independent violation
of Sec. 8(aXl) inasmuch as, under the circumstances present here. it was an
implementation of Respondent's efforts to unlawfully induce its employees
to abandon the Union. However. we find it unnecessary to, and therefore do
not, rule on the Administrative Law Judge's further finding that this same
action, considered alone, constitutes an illegal polling of employees, since
not all instances of preference polls are unlawful and because this finding
would, in any event, be merely cumulative in that the absence of such a
finding will not alter the remedy ordered.
233 NLRB No. 50
existence of its own, and its functions are totally
controlled and financed by management." He
nevertheless failed to find that the Committee was
dominated by Respondent or to order its disestab-
lishment as requested by the Charging Party in its
posthearing brief, citing the fact that the General
Counsel did not specifically allege domination in his
complaint and did not seek disestablishment as a
remedy. He finds instead that the General Counsel's
failure specifically to allege or request a domination
finding with its usual remedy of disestablishment
means that Respondent was not on notice to defend
against these allegations and hence that granting the
Charging Party's request would constitute a denial of
due process to Respondent. We disagree.
As noted, the Administrative Law Judge concluded
that Respondent established and controlled the
Committee based on facts, fully litigated at the
hearing, showing that Respondent: created the
position of employee representative; conducts the
election held annually by virtue of the edict in the
employee manual prepared solely by Respondent;
controls the time of Committee meetings and the
attendance of employee representatives at these
meetings which are held in management offices; pays
the representatives for time spent in meetings;
conducts and controls the content of the meetings;
unilaterally prepares and issues minutes of the
meetings; and responds favorably only to those
complaints and suggestions brought by the represen-
tatives which it finds beneficial to its own best
interests.
In these circumstances, where a material issue of
unlawful conduct related to the subject matter of the
complaint has been fully litigated and the facts
necessary to decide the question have been adduced
without objection by Respondent, the Administrative
Law Judge, contrary to his conclusion, is not
precluded from deciding the issue, regardless of
whether it has been specifically pleaded. Fremont
Manufacturing Company, Inc., 224 NLRB 597 (1976).
We note further that Respondent had actual notice
of the Charging Party's claim that the Committee
was dominated by virtue of the specific allegation of
domination in the underlying charge.
Therefore we find that Respondent dominated the
Committee in violation of Section 8(aX2) of the Act.
3 In adopting the Administrative Law Judge's findings that Respondent's
June 3 speech contained threats of plant closure and exceeded permissible
limits of preelection propaganda, thus violating Sec. 8(a)(l) of the Act,
Member Murphy notes that the statements involved herein demonstrate
that this speech differs greatly from those which she found not violative of
the Act in such cases as The Lundy Packing Company. 223 NLRB 139, 140
(1976); Ludwig Motor Corp., 222 NLRB 635. 637-639 (1976); and Mt. Ida
Footwear Companry, a Division of Munro Company, Inc., 217 NLRB 1011
(1975).
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall order that it cease and desist
from such conduct and that it not only withdraw
recognition from the Committee, as recommended
by the Administrative Law Judge, but also complete-
ly disestablish it as the representative of any of
Respondent's employees for the purpose of dealing
with Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or
other conditions of work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Kux Manufacturing Corporation and Conti-
nental Marketing Corporation: A Joint Employer,
Detroit, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraphs l(a)
and (b):
"(a) Dominating or interfering with the administra-
tion of the Employee Representative Committee, or
with the formation or administration of any other
labor organization of its employees, and contributing
support to the Employee Representative Committee,
or to any other organization of its employees.
"(b) Recognizing or in any matter dealing with the
Employee Representative Committee, or any reor-
ganization or successor thereof, as a representative of
any of its employees for the purpose of dealing with
Kux Manufacturing Corporation and Continental
Marketing Corporation: A Joint Employer, concern-
ing grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of work."
2. Substitute the following for paragraph 2(a):
"(a) Withdraw all recognition from the Employee
Representative Committee as a representative of any
of its employees for the purpose of dealing with Kux
Manufacturing Corporation and Continental Mar-
keting Corporation: A Joint Employer, concerning
grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of work and
completely disestablish the Employee Representative
Committee as such representative."
3. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT directly or indirectly threaten
you with plant closure or move or loss of jobs in
order to discourage you from joining or assisting
the International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW), or any other labor organiza-
tion.
WE WILL NOT question you, directly or indirect-
ly, regarding your union sympathies or activities,
or those of other employees.
WE WILL NOT give employees wage increases or
other benefits in order to induce you to refrain
from supporting any union.
WE WILL NOT give any support or assistance,
financial or otherwise, to the Employee Represen-
tative Committee, or any other labor organiza-
tion, nor will we recognize or bargain with
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), or any other labor organization,
unless and until it is certified as your collective-
bargaining representative by the National Labor
Relations Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
We have notified the members of the Employee
Representative Committee that they may no longer
act as your representatives on grievances, labor
disputes, wages, rates of pay, hours of employment,
or other conditions of work, and we have completely
disestablished the Employee Representative Com-
mittee as such representative.
Kux MANUFACTURING
CORPORATION AND
CONTINENTAL
MARKETING
CORPORATION: A JOINT
EMPLOYER
318
KUX MFG. CORP.
FINDINGS AND CONCLUSIONS
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
consolidated proceeding was heard before me on Decem-
ber 6 and 7, 1976., in Detroit, Michigan. Charges and
amended charges were filed in Case 7-CA- 13157, on July 7
and 13, respectively, by International Union, United
Automobile, Aerospace & Agricultural Implement Work-
ers of America, hereafter referred to as the UAW. A
consolidated complaint, which was amended at the
hearing, issued on August 31. Kux Manufacturing Corpo-
ration and Continental Marketing Corporation: A Joint
Employer, herein variously called the Respondent, the
Employer, and the Company, filed a timely answer denying
the commission of any unfair labor practices. The consoli-
dated complaint alleges that the Respondent violated
Section 8(a)(1) and (2) of the Act by coercively interrogat-
ing an employee concerning her union activities and those
of other employees; by seeking to create an impression of
surveillance of employee union activities: by granting wage
increases to employees in order to dissuade them from
union activities; by threatening employees with plant
closure and/or removal should they select union represen-
tation; by giving unlawful aid, assistance, and support to
the Employee Representative Committee, herein called the
Committee; and by recognizing and bargaining with the
Committee concerning terms and conditions of employ-
ment at a time when the Committee did not represent a
majority of the employees and a question concerning
representation had been raised by petition for an election
filed by the UAW in Case 7-RC-13565.
The UAW filed its petition in Case 7-RC 13565 on April
7. The Regional Director for Region 7 issued a Decision
and Direction of Election on May 7, and an election
pursuant thereto was held on June 4. The UAW filed
timely objections to conduct affecting the results of the
election, and the Regional Director, on August 31, issued
an order and notice of hearing consolidating certain of the
objections in Case 7-RC-13565 for hearing with the
complaint in Case 7-CA-13157.
The Committee, although originally an intervenor in
Case 7-RC-13565, withdrew from the representation case
proceeding on May 5 and therefore did not appear on the
ballot in the June 4 election. Similarly, the Committee
made no appearance or attempt to intervene at the hearing
even though certain of its representatives were called as
witness and it was served with a copy of the complaint and
notice of hearing.
Upon the entire record, including my observation of the
witnesses as they testified, and after due consideration of
the posthearing briefs filed by the parties, I make the
following:
I All dates herein are in 1976 unless otherwise specified.
2 The facts set forth herein are based on a synthesis of the credited
aspects of the testimony of all witnesses, the exhibits. and careful
consideration of the logical consistency and inherent probability of the facts
found. Although I may not, in the course ol this Decision. advert to all of
I. RESPONDENT'S BUSINESS
The complaint alleges, the Respondent admits, and I find
that the Respondent is a joint employer composed of two
Michigan corporations with its principal office and place of
business at Detroit, Michigan, herein called the facility,
where it is, and has been at all times material, engaged in
the manufacture and processing of labels, decals, and
silkscreen products, and that the Respondent annually
purchases and receives at its facility goods and materials
valued in excess of $50,000 which are shipped directly to its
facility from points located outside the State of Michigan. I
further find that the Respondent is now and has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
The complaint alleges, the Respondent admits, and I find
that the UAW and the Committee are, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
I. The Committee
The Committee has been in existence for more than 5
years. The record shows neither its date of origin nor the
method by which it was established. Respondent's current
employee manual, dated December 1975 with an introduc-
tory foreword from Company Board Chairman Richard
Kux, sets forth the following with respect to employee
representatives:
EMPLOYEE REPRESENTATIVES
In order to foster good communications and under-
standing between each employee and management,
representatives of various departments meet on a
regular basis with an officer of the Company to discuss
problems, complaints, and suggestions, as brought to
them by employees. The ideas and requests are
presented anonomously, discussed and considered, and
replied to by the Company officer.
The representatives are selected periodically by the
employees through the process of nomination and
election.
The content of the employee manual is unilaterally
prepared by the Respondent; there has never been a
bilateral written collective-bargaining agreement between
the Respondent and the Committee; and the functions of
the record testimony or documentary evidence, it has been carefully
weighed and considered and to the extent that testimony or other evidence
not mentioned herein might appear to contradict the findings of fact, that
evidence has not been disregarded but has been rejected as incredible,
lacking in probative worth, surplusage. or irrelevant.
DECISION
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Committee are unilaterally prescribed by the Respon-
dent.
The employee representatives are elected each January
by secret ballot. There are no preliminary nominations for
the position by employees. When the time comes for the
annual election, the Employer prepares and delivers a
ballot to each employee with his or her paycheck. The
ballot contains the names of all the employees in the voter's
department. The voter checks off one name of his or her
choice and deposits the ballot in a ballot box placed by the
timeclock. The employee receiving the most votes then
becomes the department or section employee representa-
tive. I infer from the evidence proffered that the Respon-
dent conducts the election, including preparing the ballot
box, and employee participation in the election is limited to
casting a ballot.
The employee representatives so elected meet as a
committee or group with a management representative,
usually Respondent's vice president, Joseph Garson, on a
periodic basis about every 2 months. The meetings are held
in Garson's office during working time, last from an hour
and a half to 2 hours, and the employee representatives are
paid by the Employer for the time so spent in attendance.
The Respondent may refuse to permit an employee
representative to leave his work station and attend a
committee meeting if it determines he is needed on the job.
Garson is in charge of the meetings and conducts them by
asking each representative in turn what complaints or
suggestions they may have. Garson and the representatives
then discuss employees' complaints and suggestions relat-
ing to wages, hours, and working conditions including,
inter alia, the cleaning of restrooms and work areas, the
presence of unpleasant fumes in working areas, the timing
of holidays, vandalism, shift-starting times, overtime,
scheduling of breaks, work supplies, plant safety, parking
facilities, minority discrimination in hiring temporary help,
faulty equipment, maintenance of first aid facilities and
supplies, extension of the lunch hour, and vending machine
facilities. The Respondent adopts those suggestions and
remedies those complaints, or does not do so, at its
discretion with no enforceable recourse by the Committee.
After conclusion of each meeting, the Employer prepares
minutes of what transpired therein and distributes copies to
the employees. All costs of the meeting and preparation
and duplication of the minutes are borne by the Company.
2. UAW activity and contemporaneous events
The UAW commenced its organizational efforts at the
facility in late November 1975. From that time until
January, when a UAW representative started passing out
UAW literature to employees as they left the plant, which
continued at least through February, employee Wilma
Picha was the sole in-plant organizer for the UAW. She
distributed literature and solicited and received employee
signatures on about 100 UAW authorization cards.3
3 I found Picha an intelligent, thoughtful, and reliable witness whom I
credit. On the other hand, I observed Supervisor Patricia Zander to be a
witness of vague memory whom I do not credit where her testimony
conflicts with that of Picha.
4 The parties stipulated that Ulnick is, and was at all times materinal a
supervisor within the meaning of Sec. 2( Il) of the Act.
Patricia Zander, Picha's supervisor, who the Respondent
admits has been a statutory supervisor at all times material
herein, testified she learned that the UAW was organizing
at the facility at the beginning of the year when an
employee told her that there was UAW literature in the
ladies' bathroom Zander also testified that she saw a
UAW representative passing out literature, that he gave her
some when she left the plant premises, that this occurred
prior to February 25, and that she promptly reported this
UAW literature distribution to her supervisor, plant
production manager, Jim Ulnick. 4
On February 19, Zander approached Picha at the end of
the day and asked her if Picha knew of anyone passing out
union cards. Picha replied that if she did know she would
not tell Zander or anyone, whereupon Zander said, "Well,
are you passing them out?" Picha's response was, "Pat, you
better have proof of that," and Zander then terminated the
conversation by stating she had to leave and would see
Picha the next day.
Picha credibly testified that, after the February 19
conversation with Zander, she saw Supervisors Ulnick and
Kuhar 5 standing behind some shelves observing her. She
does not say how long they were there, or whether this
happened on more than one occasion.
On February 24, all of the Respondent's employees were
called to a meeting in the lunchroom which was presided
over by Respondent's chairman of the board, Richard
Kux.6 From a composite of the credible testimony of
witnesses testifying regarding this meeting, which testimo-
ny I find to be complementary rather than contradictory, I
find that Richard Kux told the employees assembled that
he had built the business up; thought he had given the
employees good benefits; and he did not understand why
there was unrest in the plant; but that he understood some
employees were dissatisfied because they had been given
no part in drawing up the employee manual. He then
suggested that maybe the employees would like to form a
"people's union," which had worked in other companies,
and have their incumbent employee representatives draw
up a contract between the employees and the Company.
He also expressed his opinion that the employees did not
need outside representation and should try the "people's
union" method first. Kux told the employees that they
could vote on whether or not they wanted the employee
representatives to negotiate a contract for them, and that
the vote could be held right then and there. I conclude
from this latter remark and the testimony of Wina Morrow
that the ballots for such an election were already prepared.
After some employees expressed a desire to think it over
and to take the ballots home, Employer President Harold
Friedman 7 interposed that they could not take the ballots
home and if they wanted to vote at all it would have to be
held the first thing the next morning. It was then agreed
that the employees would consider the question and vote
the next day on whether or not they wanted the employee
representatives to negotiate a contract with the Company.
I The parties stipulated that Norm Kuhar is, and was at all times
material, a supervisor within the meaning of Sec. 2(1 1) of the Act.
6 Kux did not testify at the heanng.
I Although Friedman was called by General Counsel as an adverse
witness and testified on other matters, he did not testify regarding this
meeting.
320
KUX MFG. CORP.
The following morning, about 7 a.m., the employees were
advised by their supervisors that it was time to vote. In this
connection, Wina Morrow testified that Zander told
employee Ruth Williams, who had stated that she did not
want to vote and did not have to, that she did have to vote
and Zander did not care how she voted, but go vote.
Zander states Ruth Williams said she did not want to go
vote, and that she (Zander) told Williams she should vote
but did not have to. Williams testified that she does not
remember what was said on that occasion.s
The vote was conducted by secret ballot. Vice President
Garson gave each employee a ballot which read as follows:
The Employee Representative Committee shall bargain
with the management of Kux Manufacturing Co. and
Continental Marketing Corp. with regard to wages and
terms and conditions of employment.
E - FOR
E]- AGAINST
The employees marked their ballots and placed them in a
ballot box prepared by the Company and placed by the
timeclock. Garson conducted the election, with two
employees present to check off voters names, and kept
custody of the box until the ballots were counted by
employee representative Drake. According to Picha, whom
I credit, the count was 30 for, 62 against, and 2 void ballots.
Thereafter, specifically on April 13 and August 10, the
Respondent met with the Committee, as it formerly had, to
discuss employee suggestions or complaints, but there is no
evidence that the question of a contract between the
Committee and the Employer was ever again raised other
than that the Employer told the Committee at the April 13
meeting it could not pursue the matter further while the
UAW petition for election was pending before the Board.
The UAW filed its petition in Case 7-RC-13565 on April
7, and the Regional Director directed an election in a unit
of full-time and regular part-time production and mainte-
nance employees, including shipping and receiving em-
ployees, plant clerical employees and truckdrivers. The
election was held on June 4 with the UAW losing. Prior to
the election the Employer held a series of meetings with
employees in April and May explaining why the employees
should not select union representation. These meetings,
estimated variously at about eight total and two to three a
week, were held in the lunchroom where management
officials spoke in front of a potpourri of postings on the
wall relating information about companies that had ceased
operations because of UAW organization.
None of the foregoing meetings were described in any
detail except one on June 3, the day before the election.
There is no allegation or evidence that the June 3 meeting
was held within 24 hours of the election. 9 This meeting was
conducted by the Respondent's board chairman, Kux.
Although the several employee witnesses called by the
I I find no significance in Picha's testimony that Zander told her, on
February 25. "go vote now," or. "You can go vote now." Neither version
impresses me as either coercive or otherwise unlawful.
9 See Peerless Plywood Companty. 107 NLRB 427 (1953).
l0 The employees say Kux used the word "marbles," one says "chips,"
and one says "papers." I conclude he used the word "marbles." but the use
of any of the three words would not change the import of K ux's statement.
General Counsel and the Respondent to describe this
meeting do so in varying degrees of detail there are no
substantial differences or contradictions between them.
Some refer to statements by Kux that are not mentioned by
others but stand uncontradicted. A careful examination of
this testimony persuades me that the following recitation
sets forth the material content of Kux's remarks with
substantial accuracy.
Kux opened his comments by relating how he had
started the Company and how hard he had worked to build
it up. He continued that he had always treated the
employees well; that the Respondent had an open door
policy whereby employees could bring their problem to
him or other management members; that he did not feel
the employees needed UAW representation because it
would cause problems rather than solve them; and if the
UAW came in it couldn't fulfill its promises to employees
and would leave them stranded and out on strike. In this
latter event, said Kux, the Company would continue to get
its work done by having it done by other companies, or
having management do it, and the Company could assure
the employees that it would get the work done. Kux
concluded his remarks with the statement that he had
always enjoyed coming to work, but if he had to come in
everyday and be harassed by screaming union stewards he
would pick up his marbles '1 and leave. According to Picha,
whom I credit, Kux also said that although he would like to
stay until he was 85, he just couldn't take "screaming union
stewards" and would have to move.
3. The wage increases of May II
The employee manual states, "Your first ninety days in
the company are on a probationary basis. After this time
your performance is reviewed, and if we want to continue
your services, you become a regular employee," but makes
no reference to wage increases other than cost-of-living
adjustments three times a year, in March, July, and
November, based on the Consumers Price Index published
by the U.S. Department of Labor. According to Employer
President Friedman, about 60 to 70 percent of the
employees hired by the Company get raises on completing
90 days employment, and of the remaining employees
about half get raises before 90 days and the rest get raises
sometime thereafter. Of the eight permanent employees
hired in 1974 and 1975 by the Company, each received his
or her first raise after different lengths of employment (78,
83, 90, 100, 118, 137, 225, and 237 days). The payroll cards
of the two who received raises at 83 days and 118 days,
respectively, bear the notation "90 days raise." I
Friedman testified that the Respondent hired 14 or 15
employees on March 17, 1976, of whom 12 remained on the
payroll on May 11, and that 10 of the remaining 12 were
given wage increases on May 11.12 None of the 10
receiving wage increases were given prior notification and
first received notice of the raise when it showed up on their
I" Although the General Counsel placed these two payroll cards in
evidence, there was no testimony or documentary evidence adduced as to
what, if any. notation was on the other six.
12 According to Fnedman. two were denied raises due to their poor
attendance records, and Kuhar made this decision.
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paycheck with a notice stamped thereon reading "Note
your pay increase." Friedman avers that the Employer
normally so stamps checks reflecting an increase. No
reason for granting these 10 wage raises was given by
Friedman, the sole witness on the subject, other than that
he believes the decision on the raises was made by Plant
Manager Kuhar.
B. Discussion and Conclusions
I am persuaded from the testimony of Picha and Zander,
and the comments by Kux at the February 24 meeting to
the effect that employees did not need representation by an
outside union, that the Respondent was aware of the UAW
organizational campaign at the facility for several weeks
prior to the February 24 meeting and set out on a
deliberate course of defeating that campaign by unlawful
means.
Prior to this meeting, on February 19, Zander had
interrogated Picha about the union activities of other
employees, and then interrogated Picha regarding her
personal union activities. I find both of these interrogations
by Zander to be violative of Section 8(a)(1) of the Act. I do
not however conclude, as General Counsel urges, that
Zander's questioning of Picha can be viewed as a
conveyance to Picha of an impression of surveillance of her
union activities, nor do I find that the mere fact Picha saw
Supervisors Ulnick and Kuhar looking at her through some
shelves on, so far as the record shows, one occasion gives
rise to any reasonable inference or conclusion that they
were engaging in unlawful surveillance on that occasion.
Futhermore, the purported surveillance by Kuhar and
Ulnick was neither alleged in the complaint nor fully
litigated at the hearing. I will therefore recommend
dismissal of the complaint allegation that Zander "sought
to create the impression" that the Respondent was
engaging in surveillance of union activities, and I reject
General Counsel's contention in his brief of surveillance by
Ulnick and Kuhar.
It is clear from the substantially undisputed evidence
that the Committee, although cognizable under the Act as
a labor organization,' 3 exists solely at the discretion of the
Respondent and was, and is, a construct of the Respon-
dent, not the employees. The Respondent created the
position of "employee representative"; conducts the
election held annually by virtue of the Respondent's edict
set forth in the employee manual prepared solely by the
Respondent; controls the time of committee meetings and
the attendance of employee representatives at these
meetings which are held in management offices; pays the
representatives for time spent in meetings; conducts and
controls the content of the meetings; unilaterally prepares
and issues minutes of the meetings; and responds favorably
only to those complaints and suggestions brought by the
representatives which it finds beneficial to its own best
interests. From the foregoing, and the record as a whole, I
conclude and find that the Committee exists as an
"3 See N.L.R.B. v. Cabot Carbon (Company and Cabot Shops. Inc., 360 U.S.
203 (1959).
14 The General Counsel did not allege domination of the Committee in
his complaint nor does he seek disestablishment as a remedy. The
Respondent was not put on notice that any such allegation or remedy was
instrumentality of the Respondent with no independent
existence of its own, and its functions are totally controlled
and financed by management. "The fact that all benefits
sought by the Committee depended solely upon Respon-
dent's magnanimity demonstrates the servile and ineffec-
tive character of the labor organization as a bargaining
mechanism." Hydraulic Accessories Company, 165 NLRB
864, 868-869 (1967).
That this control, assistance, and support of the Commit-
tee has been going on for years does not alter the fact that
it continued without cessation until at least the date of the
hearing herein, and that the Respondent conducted
meetings with the Committee, in the same manner and on
the same subjects as it had from its inception, on April 13
and August 10, well within the period encompassed by the
charges filed herein. Furthermore, I consider the Respon-
dent's efforts on February 24 and 25, with respect to the
suggestion and conduct of an election to secure authority
from the employees for the Committee to bargain a written
collective-bargaining agreement, to be an effort not only to
induce employees to withhold their support from the
UAW, which in my view was the Respondent's primary
motivation for this election, but also a clear attempt to
enhance the prestige of the Committee in the eyes of the
employees and assist it in securing employee support.
I conclude that during the period encompassed by the
charges until the date of the hearing, the Respondent
assisted and supported the Committee in violation of
Section 8(a)(2) and (1) of the Act.'4 In view of this finding,
it is deemed unnecessary to pass on the question of whether
or not the Respondent's actions also ran afoul of the
doctrine set forth in Midwest Piping and Supply Co., Inc., 63
NLRB 1060 (1945), which would afford no greater remedy.
Turning to the various incidents alleged as independent
violations of Section 8(a)(1) of the Act, I find that Kux's
statement to the employees on February 24 that they
should try a "people's union" first and did not need outside
(i.e., UAW) representation interfered with and restrained
employees in violation of Section 8(a)(1) of the Act. I
further find that Kux, on February 24, illegally induced
employees to abandon the UAW by suggesting they have
the Committee negotiate a contract for them; that the vote
held on the matter on February 25 was an implementation
of this illegal inducement; and that the February 25 vote
was also illegal polling of employees because its inevitable
result would be to reveal the number of employees
favorably inclined toward "outside representation"; all
individually and collectively in violation of Section 8(a)(l)
of the Act.
With respect to Zander's remarks to Ruth Williams on
February 25, 1 am persuaded that Zander did not tell
Williams that she had to vote in the Employer's election,
for I observed no reason in Williams' demeanor to discredit
her testimony that she did not remember what was said,
and I am of the opinion that a mandatory direction
contrary to her own expressed desire is not a matter likely
to be forgotten. Although the matter is not entirely free
contemplated by General Counsel, and it cannot fairly be said that. in these
circumstances, these matters were fully litigated as the dictates of due
process require. Thus, the Charging Party's request for a finding of
domination and a remedy of disestablishment argued in its posthearing brief
is rejected.
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KUX MFG. CORP.
from doubt, I find that Zander did not coercively pressure
Williams to vote as the complaint alleges.
The content of Kux's remarks to employees at the June 3
meeting must be examined in the context they occurred.
The National Labor Relations Board election was to be
held the next day. The Employer had already held several
meetings against a backdrop of postings relating to
companies that had gone out of business because of UAW
presence. The meeting was the culmination of an anti-
UAW campaign and followed previous unlawful efforts,
detailed above, to deter employees from supporting the
UAW. After expressing the Respondent's view that the
employees did not need UAW representation, which in
itself is a permissible comment, Kux went on to state that
this was true because the UAW would cause problems
rather than solve them and if the UAW came in it couldn't
fulfill its promises to employees and would leave them
stranded and out on strike, in which case the Respondent
would continue to get its work done by shipping it out or
management production. There is no evidence in the
record that the UAW had made any promises to employ-
ees, much less extravagant ones that it could not deliver on,
or that any strike action had even been considered by the
UAW or the employees, nor that the UAW would cause,
rather than solve, problems. In my opinion, these gratui-
tous assumptions and comments by Kux were designed to
impress upon the employees the futility of union represen-
tation and the inevitability of a strike with accompanying
loss of work for those who engaged therein. This is
something more than mere election propaganda, especially
when uttered by the Respondent's chairman of the board
whose very name is synonymous with that of the Company,
and raises to the stature of a threat that the selection of the
UAW would motivate the Respondent to so deal with it
that it would be forced to strike and thereby cause
employees to lose their jobs. I can perceive of few things
more certainly calculated to dissuade employees from
freely exercising their Section 7 rights than the fear of loss
of jobs, and I am persuaded that Kux's remarks in this
regard were designed to stimulate and give credence to
such fear. Accordingly, I find that Kux by these remarks
violated Section 8(a)(1) of the Act.
I further find that Kux's statements to the employees on
June 3 that if he had to come in everyday and be
confronted by "screaming union stewards" he would pick
up his marbles and leave, and that, although he would like
to stay until age 85, he couldn't take "screaming union
stewards" and would have to move, were violative of
Section 8(a)(1) of the Act. Kux, and no one else, raised the
spectre of "screaming union stewards" and such statements
emanating from Respondent's chairman of the board, and
its namesake, clearly stating his intention to withdraw his
financial interest from the Respondent and leave its
management if compelled to deal with union representa-
tives of the employees, "were calculated to engender fear
among the employees that if they voted for the Union, their
employment future would be adversely affected by [Kux]
withdrawing from the management and ownership of the
lb Walton Manufacturnng Company, 124 NLRB 1331 (1959).
16 Performance Measuremenis Co. Inc.. 148 NLRB 1657, 1658(1964).
17 N.L.R.B. v. Exchange Parts Comnpan, 375 U.S. 405 (1964).
Respondent," Audubon Cabinet Company, Inc. and Period
Tables, Inc., 117 NLRB 861, 864 (1957), and the employees
could reasonably understand Kux's adamant refusal to
stay and contend with union stewards as the equivalent of
a threat to close or move the plant rather than deal with the
UAW.15
The wage increases given to 10 employees on May II
were granted after the UAW's petition for election was
filed and before the election. The Respondent's payroll
records indicate two significant factors: (1) there is no set
time period within the Respondent grants wages to new
employees; and (2) although the 10 employees in question
received raises within 55 days of their permanent employ-
ment, no other employee hired in 1974, 1975, or 1976 had
received a wage increase in less than 78 days of employ-
ment. The raises granted on May 11 came but 4 days after
the Regional Director issued his Decision and Direction of
Election, and the Respondent offered no explanation for
the grant. The Board has long held that when employee
benefits are granted during the immediate preelection
period they will be regarded as calculated to influence the
employees in the election, and the burden of showing that
the grant was due to factors other than the election falls on
the Employer.' 6 The Respondent has not met that burden.
I find and conclude that the May 11 raises were granted in
order to induce employees to refrain from supporting or
voting for the UAW in the upcoming election, and that this
grant was therefore violative of Section 8(a)(X I) of the Act. 7
IV. THE OBJECTIONS TO ELECTION
The specific objections to the election set for hearing in
Case 7-RC-13565 read as follows:
1. The company representatives threatened to close
the plant and move out if the Union won the
election.
* * *
3. The company made policy changes in regards to
employee benefits between the filing of the
petition and the election.
The Board has consistently held that consideration of
objectionable conduct uncovered by the Regional Director
in his investigation may not be properly ignored, even
though not specifically alleged in the formal objections.
Therefore, inasmuch as I have found that the Respon-
dent engaged in serious unfair labor practices between the
date of the filing of the petition in Case 7-RC-13565 and
the subsequent election held on May 7, including violations
of Section 8(a)(1) and (2) of the Act, I find that these unfair
labor practices interfered with the employees' free and
uncoerced exercise of their right to vote as they chose in the
election.19 I further find that the gravity of the unfair labor
practices prior to the election may be considered insofar as
1' Thomas Products Co., Division of Thomas Industries. Inc.. 169 NLRB
706 (1968).
19 Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786(19621.
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they lend "meaning and dimension to related post-petition
conduct," 20 and intensified the impact of the Respondent's
unlawful acts within the objectionable period.
Accordingly, I will recommend that the objections to the
election be sustained and the election set aside, and that a
new election be held at a time found appropriate by the
Regional Director for Region 7.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II1,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the following findings of fact and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
and the Employee Representative Committee are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By interfering with the administration of the afore-
said Committee and by contributing financial or other
support to it, the Respondent has violated and is violating
Section 8(a)(2) and (1) of the Act.
4. By its coercive interrogation of employees regarding
their union activities and those of other employees, implied
threats to move or close down made to its employees,
coercing and inducing its employees to designate the
Committee as their agent for purposes of negotiating a
collective-bargaining agreement, threats of an inevitable
strike and loss of jobs should its employees select the
UAW, polling its employees regarding their preference of
agents for purposes of collective bargaining, and granting
wage increases or other benefits in order to induce its
employees to refrain from supporting the UAW, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed in
Section 7 of the Act, and has thereby violated and is
violating Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices have affected
and are affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent has not committed any other unfair
labor practices alleged in the complaint.
20 M & W Marine Ways. Inc.. 165 NLRB 191 (1967): Stevenson
Equipment Company. 174 NLRB 865, 866. fn. 1 (1969): Warren W. Parke,
d/b/a Parke Coal Company, 219 NLRB 546 (1975).
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
THE REMEDY
Having found that the Respondent has unlawfully
interfered with the administration of the Committee and
has contributed financial and other support to it, I will
recommend that the Respondent be required to cease and
desist from giving financial or other support to the
Committee, or any successor thereto, and cease and desist
from recognizing or bargaining with the Committee as the
exclusive collective-bargaining representative of Respon-
dent's employees unless and until it is certified as such by
the National Labor Relations Board.
Having found that the Respondent engaged in other
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that it be ordered to cease and
desist from such conduct, or any other conduct which
infringes upon employees' Section 7 rights, and that it take
certain affirmative action to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 21
The Respondent, Kux Manufacturing Corporation and
Continental Marketing Corporation: A Joint Employer,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with the administration of, or contributing
financial or other support to, the Employee Representative
Committee or any successor thereto, or any other labor
organization.
(b) Recognizing or bargaining with the Committee or
any successor thereto as the exclusive collective-bargaining
representative of Respondent's employees unless and until
it is certified as such by the National Labor Relations
Board.
(c) Directly or indirectly threatening its employees with
plant closure or move, or with causing a strike and/or loss
of jobs should its employees select the UAW as their
bargaining representative.
(d) Coercively interrogating its employees regarding their
union activities or those of others.
(e) Directly or indirectly polling its employees regarding
their preference of collective-bargaining agents.
(f) Granting wage increases or other benefits in order to
induce its employees to refrain from supporting the UAW,
or any other labor organization.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the purposes of the Act:
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
324
KUX MFG. CORP.
(a) Withdraw all recognition from the Committee as the
collective-bargaining representative of its employees with
respect to wages, hours, rates of pay, grievances, and other
terms and conditions of employment.
(b) Post at its place of business in Detroit, Michigan,
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
22 In the event that the Board's 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
ensure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
IT IS FURTHER ORDERED that Case 7-RC-13565 be, and it
hereby is, transferred to and continued before the Board in
Washington, D.C., and that the provisions of Section
102.46 and 102.69 of the Board's Rules and Regulations,
Series 8, as amended, shall govern the filing of exceptions
in said case.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
325