Lowen Co., Inc.

National Labor Relations Board - Board Decisions

May 3, 1973

203 N.L.R.B. 449 (N.L.R.B. 1973)

LOCAL 212, TEAMSTERS
Lowen Company , Inc. and Joe R. Corwin and Employ-
ees Committee, Party in Interest . Case 17-CA-5068
May 3, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On January 26, 1973, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Lowen Company, Inc.,
Hutchinson, Kansas, its officers, agents , successors,
and assigns , shall take the action set forth in said
recommended Order.
1 Like the Adminstrative Law Judge, we find that the Employees Commit-
tee functioned at all relevant times as described by employee Collins, who
was committee chairman until March or April 1972, and that, in absence of
evidence to the contrary, the Committee continued to function in the same
manner thereafter . We also find that record evidence further demonstrates
that within the 10(b) period , Respondent's president and its vice president
continued to dominate the administration of the Committee. For example,
in February 1972, employee Beer made a suggestion that Respondent grant
employees a cost-of-living increase . When no mention of this appeared in the
Committee minutes, Beer inquired as to why, as a result of which, about
March I , President Lowen called Beer to his office to talk to him about his
suggestion . Lowen told Beer that the best thing for him to do was to find
another job; that he was a troublemaker; that Respondent had no place in
the company for a troublemaker, and that "We have just gotten rid of one
troublemaker because he wasn ' t as careful as you are." This appears to us
to be an obvious demonstration of the lengths to which Respondent went to
insure that the functioning of the Committee and the subjects it ought even
to discuss were kept firmly under the control and domination of Respondent.
This evidence relates to dates within the 10(b) period and is independent
evidence of the continuing domination by Respondent of the Committee.
DECISION
STATEMENT OF THE CASE
449
SIDNEY J. BARBAN, Administrative Law Judge: This matter
was heard at Hutchinson, Kansas, on October 3 and 4, 1972,
upon a complaint issued on July 12, 1972. Charges and
amended charges, upon which the complaint was based,
were filed by Mr. Joe R. Corwin on March 21, 1972 (served
on the parties the same day), alleging violations of Section
8(a)(1) and (3) of the Act (specifying the termination of
Corwin's employment), and on May 15, 1972 (served on the
parties on May 16, 1972), adding allegations that the above-
named Respondent had since October 15, 1971, dominated,
interfered with the administration of, and rendered support
to the Employees Committee, asserted to be a labor organi-
zation representing employees of the Respondent.
Respondent's answer denies the commission of any un-
fair labor practices, but admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under cur-
rent standards of the Board (Respondent, in the course of
manufacturing metal signs , annually sells and ships prod-
ucts valued in excess of $50,000 in interstate commerce).
Although served with the complaint and notice of hear-
ing, the Employees Committee did not seek to intervene or
make an appearance at the hearing.
FINDINGS AND CONCLUSIONS
The following findings of fact and conclusions are based
upon analysis of the record as a whole, the testimony of the
witnesses for all parties, and upon consideration of the de-
meanor of the witnesses as they testified.' To the extent that
the testimony of any witness is inconsistent with these find-
ings of fact and conclusions that testimony is not credited.
I THE ISSUES
1. Is the Employees Committee a labor organization
within the meaning of Section 2(5) of the Act?
2. Did Respondent since on or about November 16,
1971, dominate, interfere with the administration of, or sup-
port the Employees Committee in violation of Section
8(a)(2) of the Act?
3. Were Brian Cole and Roger Cannon supervisors with-
in the meaning of Section 2(11) of the Act during times
material to this case?
4. Did Respondent on February 17, 1972, discharge Joe
R. Corwin in violation of Section 8(a)(1) and (3) of the Act?
II THE FACTS
A. Background
Inasmuch as the charge alleging that Respondent has
dominated, interfered with, and supported the Employees
Committee was not served upon Respondent until May 16,
1972, I have considered all events occurring prior to No-
1 A separate order has been issued correcting the record in this matter.
203 NLRB No. 86
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vember 16, 1971 (6 months prior to the service of that
charge),2 as background merely to the allegations that the
Respondent violated Section 8(a)(2) of the Act. I do not
believe that in the circumstances of this case , the prior
charge alleging the discharge of Corwin , filed and served on
March 21, 1972, was sufficiently related to the latter charge
to put Respondent on notice that its activities in respect to
the Employees Committee might be brought into question.
1. The 1970 union campaign
The events with which we are concerned in this case had
their roots in an attempt by International Printing Pressmen
and Assistants Union of North America, AFL-CIO (herein
the Union) to become the collective -bargaining representa-
tive of certain of Respondent's employees in 1970 .3 During
that campaign employee Robert Beer was quite active on
behalf of the Union. He was discharged by Respondent on
May 11, 1970. A charge was filed, in Case 17 -CA-4302, in
his behalf on May 20,1970 . On August 6, 1970, the Regional
Director for Region 17 approved a settlement agreement in
that case by which Respondent agreed to reinstate Beer with
a specified amount of backpay, and to refrain from interro-
gating employees concerning their union activities, from
creating the impression of surveillance of union activities,
and from discriminating against employees in violation of
Section 8(aX3) of the Act, as well as agreeing to post a notice
to its employees advising them of these commitments. The
settlement agreement also contains an express denial that
Respondent had engaged in the unfair labor practices al-
leged.
On September 11, 1970, the Union filed a petition for
certification as bargaining representative of an appropriate
unit of Respondent 's employees , in Case 17-RC-6457. Pur-
suant to a Decision and Direction of Election issued by the
Regional Director on November 2, 1970, a secret ballot
election was held on December 2, 1970, in the appropriate
unit found by the Regional Director . A majority of the
employees voting voted against representation by the
Union.
2. The formation of the Employees Committee
E. M. (Red) Hawks, Respondent 's vice president in
charge of production, testified that the Employees Commit-
tee came about as the result of Respondent 's action, about
2 months after the election . He stated that Respondent "had
an opinion survey made , polled the people by the company
and they outlined some of the things that we should be
doing to help the people ," that Respondent 's executive com-
mittee discussed among themselves matters that Respon-
dent "should be doing for the betterment of the people,"
after which, according to Hawks, "we outlined talks to the
people that we were going to do certain things ." The idea
2 Sec . 10(b) of the Act provides , in pertinent part , that the Board shall not
issue any complaint upon an unfair labor practice occurring more than 6
months poor to the filing and service of the charges , except in circumstances
not relevant to this case.
3 I take official notice that the Union is a labor organization within the
meaning of the Act . This is confirmed by its participation in the poor repre-
sentation case before the Board.
of an Employees Committee was discussed by Hawks with
the employees in an assembly, at which the employees were
told that the first purpose of the committee would be to
establish wage rates for the employees in the different de-
partments.
The Employees Committee was composed of one em-
ployee representative elected from each of Respondent's
five departments. The employees were notified of the elec-
tion by a notice posted on Respondent's bulletin board.
They voted in the plant by writing their choices on pieces
of paper deposited in a ballot box. The results were posted
on the bulletin board and announced over the plant com-
munications system . One of the original employee repre-
sentatives was Roger Cannon, who General Counsel con-
tends continued to serve as a member of the Employees
Committee after he became a supervisor.
3. Activities of the Employees Committee
The meetings of the Employees Committee were origi-
nally held twice a week, then once a week, and later once
a month. Up until a wage scale had been established, these
meetings were held at a location away from the plant. Dur-
ing this period, but apparently not after early September
1971, C. W. (Mike) Lowen, president of Respondent, regu-
larly paid for the Committee's lunch. Thereafter, the Em-
ployee Committee meetings were held in Lowen's office in
the plant. Except for a few meetings at which the Employees
Committee was attempting to formulate a wage proposal,
the Committee did not meet unless Lowen or Hawks was
present. These two management officials not only discussed
employee problems and suggestions with the Committee,
but actually voted on these problems as members of the
Committee. Indeed, it appears that these two, for most pur-
poses, acted as members of the Employees Committee.4
The Employees Committee, with the assistance of Lowen,
made a wage and benefit survey among certain employers
in the vicinity, after which the employee representatives met
by themselves and formulated a wage proposal for each
employee and job in the areas which were represented on
the Committee. This proposal was submitted to Lowen and
discussed, after which the proposal was submitted to
Respondent's executive board. It was rejected by the execu-
tive board. Thereafter, the employee representatives met
and reduced the wage proposal. This was accepted by Re-
spondent, and the new pay scale, which apparently included
some substantial wage increases , became effective in June
1971.
At Lowen's suggestion , a "Communication Box" was
constructed and installed in the plant for the purpose of
giving the employees an opportunity to make complaints or
suggestions or raise problems concerning general working
conditions in the plant .5 Before each meeting, the chairman
° In its brief, Respondent refers to "the committee including Mr. Lowen"
making a wage survey (p. 3), and asserts "[a]fter the wage survey was com-
pleted , which was conducted by all members of the committee including Mr
Lowen (R. 59 and 60) the committee including Mr. Lowen prepared a wage
schedule.. " (p. 4) [All emphasis supplied.]
3 According to employee Harold Collins, the chairman of the Employees
Committee at the time , "If an employee had a grievance about his pay or
about a supervisor or about something personal to him in connection with his
LOWEN COMPANY, INC. 451
of the Employees Committee, Collins, who had been ap-
pointed by Lowen to the post,6 opened the box, and the
employee complaints or suggestions were read and dis-
cussed by the Employees Committee, including Lowen or
Hawks. On occasion Collins would present employee de-
sires for improvements given him directly by employees.
The method of disposing of these complaints, requests, or
suggestions was basically controlled by Lowen. Those
deemed to be minor matters, such as a problem concerning
vending machines, were decided by the Employees Com-
mittee , with Lowen (or Hawks) voting as a member of the
Committee. Personal grievances of employees and major
problems, such as the installation of better ventilation to
control paint fumes, were handled by Respondent's man-
agement alone . Employees submitting suggestions deemed
by the Committee to be good were awarded $5, paid by
Respondent.
It would appear that the Employees Committee also
played some role in the formulation of the "Lowen
Employee's Handbook," which was distributed in October
1971. The employees were advised of the activities of the
Employees committee by minutes of their meetings posted
on the company bulletin board, and by the employee repre-
sentatives on the Committee. The purpose of the Commit-
tee, according to Collins, was to represent the position of the
employees to management with respect to wages and other
employee problems. However, the Committee collected no
funds from the employees and had no money with which to
carry on its activities.
B. The Employees Committee Within
the 10(b) Period
The principal witness concerning the structure, organiza-
tion, and activities of the Employees Committee was Harold
Collins. He ceased being a member of that Committee in
either March or April 1972. While there is no evidence as
to the details of the Committee's operation after that date,
it is clear that the Committee continued in existence until
Roger Cannon resigned from the Committee in May or
June 1972. In the absence of any evidence that the Commit-
tee has ceased functioning, or that its operations have
changed in any way, it is found that it continues to function
as described by Collin.? See McCormick on Evidence (West
1954) p. 642 ("when a condition, ordinarily continuing, is
shown to exist it is presumed to continue as long as is usual
for such condition"); IX Wigmore, Evidence 2530 (esp. fn.
7); see also N.L.R.B. v. Southern Association of Bell Tele-
phone Employees, 319 U.S. 50, 57.
job," which was submitted in the box , "it was handled by Mr. Hawks or Mr.
Lowen , and the committee had nothing to do with this." (Emphasis supplied.)
6 When asked how he became chairman , Collins first testified that the
other members "lust appointed me more or less " Later , after refreshing his
recollection , Collins recalled that after he volunteered to give a speech "that
had to be given to the employees ," "Mr. Lowen said , '0 K., You can become
chairman then and give the speech. " '
The employees ' handbook currently in effect refers to the Employees
Committee and its activities in relation to the communication box as an
established condition of employment
C. The Supervisory Status of Brian Cole
and Roger Cannon
Respondent admits that C. W. Lowen and E. M. Hawks
are supervisors within the meaning of the Act, but, as noted,
denies that Brian Cole and Roger Cannon had supervisory
authority at times material to the complaint. Nevertheless,
it is asserted in Respondent's brief that, after Joe Corwin,
then a part-time employee, had left Respondent in Septem-
ber 1971, it was "Brian Cole, the assistant production super-
intendent, who rehired Corwin," and advised him of the
benefits he would then receive as a full-time employee. In
his testimony, included the following departments: Metal
Printing, Welding Shop, Sheet Metal Shop, Metal Shipping
Department, Metal Roller Coating Department, and Screen
Making Facilities. The record shows that Cole had dis-
charged employees in the past. These facts and the record
as a whole are convincing that Cole, during times material
to this matter was the chief assistant to Hawks, the produc-
tion superintendent, and is a supervisor within the meaning
of Section 2(11) of the Act, and it is so found.
During the first period of Corwin's employment in the
metal printing department, his immediate supervisor was
Gary Stucky (spelled "Stuke" in the transcript). It is noted
that in the Regional Director's Decision and Direction of
Election in Case 17-RC-6457 (of which I have taken official
notice at the suggestion of both General Counsel and Re-
spondent), Stucky is found to be "the working foreman in
the metal printing and roller coating department," and a
supervisor within the meaning of the Act. At that time Rog-
er Cannon was a screen printer in that department, as was
Corwin. When Corwin returned to work for Respondent in
November 1971, Cannon was then his immediate supervi-
sor, and remained such until Corwin was discharged on
February 17, 1972. According to Cannon, he was made
supervisor within the meaning of the Act. At that time Rog-
er the "group leader" of the department about the time that
Corwin returned, but did not become foreman until May or
June 1972. However, during this last period of Corwin's
employment, Cannon clearly spent most of his time super-
vising the department, he assigned work to the men, gave
them directions and assistance, criticized and commended
their work, and played a substantial and effective part in the
periodic evaluation of the employees' work performance
and attitudes, upon which their merit raises depended. He
was consulted by higher levels of supervision with respect
to personnel actions taken in respect to employees in his
area . Further, Cannon, during this period, occupied the
same level of authority as Brian Lewis (also designated as
a "group leader") in the shipping department, who was
described by Respondent as "in charge of shipping and .. .
is to be respected as a supervisor." As discussed hereinafter,
it is asserted that the immediate cause of Corwin's discharge
was his failure to obey an instruction of Brian Lewis while
Corwin was in the shipping area, which Respondent de-
scribed as "a flagrant act of insubordination." On the basis
of these facts and the record as a whole it is found that on
and after November 8, 1971, during the times material to
this case, Roger Cannon was a supervisor within the
meaning of Section 2(11) of the Act. It seems to be admitted
that Cannon became a supervisor when he was made a
foreman in May or June 1972. At that time, the Respondent
told Cannon to resign from the Employees Committee.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Discharge of Joe R. Corwin
Corwin was first employed by Respondent in September
1969 as a part-time employee . He left Respondent 's employ
in September 1971, but returned in November 1971 at the
solicitation of Brian Cole , as a full-time employee . Corwin
was a screen painter in the Real Estate Sign section of
Respondent's Metal Printing Department , and at that time
was apparently a well -regarded employee . During his previ-
ous employment , he had made it known to the employees
and the Respondent that he did not favor the Union 's effort
in 1970 to become bargaining representative of the employ-
ees.
However , as a result of the "Merit Review and Evalua-
tion" of Corwin made by Cole and Cannon on January 18,
1972, Corwin did not receive a merit increase at the time.
Also, Corwin did not receive pay he thought he was entitled
to for the time he was out sick on January 4 and 5. This
caused him to go to employee Rgbert Beer to find out if the
Union could be interested in making another effort to or-
ganize Respondent 's employees . At Beer's suggestion, Cor-
win spoke to other employees to ascertain if they were
interested in the Union. Corwin did not contact the Union
before his discharge . However, about the last of January,
Corwin told Cannon, as Corwin was leaving work that day,
that he (Corwin) "was planning on doing everything I could
to get a union started ." Cannon recalls Corwin mentioning
union activity to him , but denies that Corwin said he was
involved . Corwin's version is credited. Cannon advised Cole
and Hawks of what Corwin had said . Cole agreed that
Cannon told him and Hawks , about this time , that Corwin
had said "that it was about time for the employees to think
about a union again ." Hawks , however , testified that he still
did not know about this remark , or Corwin 's union activity,
at the time he discharged Corwin on February 17. I do not
credit Cole or Hawks to the extent that their testimony
indicates that they did not know prior to February 7 of
Corwin's desire to get union activity started among
Respondent's employees and find that they did know of
this.
About Friday, February 4, Corwin was assigned the task
of printing more than 300 signs , referred to as the "Kansas
Jack" order. Cannon assigned Clark Miller , from the ship-
ping department , to help him . Miller had previously assisted
Corwin , and Corwin was aware that Miller had painted
some small signs in the department previously. At Miller's
suggestion , Corwin permitted Miller to print the Kansas
Jack order while Corwin racked the signs for drying. How-
ever, because of Miller's lack of experience with signs of the
Kansas Jack type, he painted many of these signs badly.
Corwin failed to correct Miller's errors during the course of
the printing . Although some of Respondent 's supervisors
were aware that Miller was painting some of this order, it
does not appear that they were aware of the errors in paint-
ing these signs until the order had been completed. On
February 7 , Corwin was told by Cannon and Cole to correct
the signs that were badly printed. Corwin was also called
into Hawks' office , where , in the presence of Cole and Can-
non, he was reprimanded for his general work performance
as well as the work on the Kansas Jack order . Hawks also
criticized Corwin for a comment he had put in the Commu-
nications Box to the effect that employees on the Employees
Committee were given favored treatment by Respondent.
Corwin was then sent home early in the afternoon, before
the end of the workday, to reflect on the criticism and write
how he expected to do better in the future. Corwin was to
report to Cannon with this the next day.
The following morning, Corwin reported orally to Can-
non, apologized and promised to do better. Cannon ex-
pressed himself as quite pleased. Cannon testified that after
that, up until the time Corwin was discharged, Corwin's
attitude and performance improved "100%," and that he
(Cannon) advised Cole of this. To the extent that Cole's
testimony is to the contrary, it is not credited. (I was not,
on the whole, favorably impressed with Cole's testimony.)
Corwin was discharged on February 17, as the result of
an incident in the shipping area where metal printing em-
ployees were accustomed to take their break periods.' Dur-
ing the morning break period, which began at 10 AM,
Corwin went into the shipping area as usual . Because there
were not enough benches or places to sit, other than the
floor, Corwin sat on a cutting table, which was divided
down the middle. Corwin and other employees had previ-
ously sat on this table during break periods without repri-
mand or discipline. On this occasion, however, Corwin was
aware that a sign had been placed on the table (specifically
the half of the table opposite to that on which he sat) stating
that employees should not sit on the table. While he was
sitting there , Brian Lewis, in charge of the shipping area,
came up and asked Corwin if he had not seen the sign.
When Corwin said he had seen the sign, Lewis told him that
if he did not get off the table he would have to take his break
periods elsewhere. Lewis waited for Corwin to get off the
table. When Corwin did not, Lewis left to get Brian Cole.
According to Corwin, he originally sat on the table because
he thought the sign referred only to the half of the table
opposite to that on which he was sitting. He further stated
that he continued to sit on the table "because of the way
[Lewis] told me to get off the table." Corwin asserted that
he took offense because "he didn't ask me to get off the
table, he told me to get off the table."
As the whistle blew at 10: 10 A M, signalling the end of the
break period, Cole came through the door of the shipping
area . About that time, Corwin got off the table. Cole asked
Corwin if Lewis had requested him to get off the table
earlier . When Corwin said that Lewis had asked him to get
off, Cole asked how Corwin would like other employees
sitting on Corwin's printing table, to which Corwin replied
that they did it all the time . Cole recommended to Hawks
that Corwin be discharged. After consulting with Lewis and
Cannon, Hawks decided to terminate Corwin, and before
the end of the workday, Corwin was given his final pay-
checks, and a letter of termination, referring to Corwin's
performance on the Kansas Jack order, the fact that he had
shown improvement "on a slow basis," until that morning
when he had refused to comply with the request of Brian
8 There is considerable testimony concerning a talk Cole gave the employ-
ees about February 7 concerning their use of the shipping area for their break
period, and also with respect to the employees being excluded from the area
prior to February 17. 1 do not find these matters particularly relevant to the
resolution of the issues in this matter I am further not inclined to place much
credence in Cole's testimony concerning these matters.
LOWEN COMPANY, INC.
Lewis (described as "in charge of shipping . . . and to be
respected as a supervisor") to get off "the stock sheeting
table," which had been posted against employees sitting on
it. The letter concluded that "Lowen Company considers
your actions this morning as a flagrant act of insubordina-
tion and coupled with the attitude of the past two or three
weeks we are doubtful of your worth to Lowen Company
so we are terminating you as of 5 o'clock today."
Two weeks later, employee Robert Beer had a conversa-
tion with Lowen in which the latter made references upon
which the General Counsel relies in support of his allega-
tions that Corwin was discriminatorily discharged, as well
as in support of his claim that Respondent interfered with
the exercise of employee rights under the Act.
Beer had previously submitted a suggestion in the Com-
munications Box that Respondent grant the employees a
cost-of-living increase. When no mention of this appeared
in the posted minutes of the Committee, Beer asked Cannon
about this. Cannon advised that Hawks would talk to Beer
about it, and thereafter, Hawks said that he would tell Low-
en that Beer wanted to talk to him. When called to Lowen's
office, Beer told Lowen that he wanted to talk to him about
the suggestion that Respondent give cost-of-living increas-
es. To this Lowen replied, "Bob, I think the best thing for
you to do is find another job. . . . You're a troublemaker
and you have no place in the Lowen Company, we are
trying to organize a team spirit out here and you are not part
of the team. . . . We have just gotten rid of one trouble-
maker because he just wasn't as careful as you are." Lowen
further said, with respect to Beer's suggestion, that the Re-
spondent "was not committed to giving cost of living in-
creases," that Beer "had cost the company a great deal of
money . . . $10,000 in legal fees, money which could have
gone for improvements such as cost of living increases."
Lowen did not testify. However, Respondent sought,
principally through Hawks, to establish a basis for the infer-
ence that Lowen referred to Beer as a troublemaker in this
instance solely because Beer was opposed to Respondent's
policy of requiring employees to work 50 hours a week. Beer
had been outspoken to management and employees that in
his opinion the 50-hour policy was counterproductive, and
that with a little more effort the employees could produce
the work in a 45-hour week, to which Beer did not object.
When he had reason therefor, Beer would refuse to work
overtime. Respondent contends that this had a bad influ-
ence on other employees, that this was the reason Beer was
discharged in 1970, and that it was for this reason Hawks
called Beer a troublemaker when he was reinstated in 1970,
after the settlement of charges before the Board in Beer's
behalf. It is unnecessary to further detail this evidence. I
found it to be labored and unconvincing. There was no
mention of this point in Lowen's conversation with Beer.
The context of the remarks lead to the conclusion that Low-
en was principally concerned with Beer's previous union
activity,9 and with Beer's present proposal that Respondent
make provision for cost-of-living increases for the employ-
9 The record shows that Respondent had expert management representa-
tion in connection with its previous labor problems; this was undoubtedly
the basis for Lowen's claim that Beer had cost Respondent dearly in legal
fees
453
ees, and it is so found. I have no doubt that Corwin was the
"other troublemaker" to whom Lowen referred. The only
connection between Beer and Corwin that appears is the
Union. Lastly, the fact that Lowen did not testify with
respect to the basis of his remarks, and submit this issue to
cross-examination, further indicates that the basis contend-
ed by Respondent is subject to grave doubt.
III ANALYSIS AND CONCLUSION
A. The Employees Committee
The Committee clearly is an organization in which em-
ployees participate which exists for the purpose of repre-
senting employees in their dealings with Respondent in
respect to their working conditions. It is therefore a labor
organization within the meaning of the Act. See Section 2(5)
of the Act. The Committee was originally organized at the
instigation of Respondent. Since about September 1971, it
has regularly met only in the office of the president of
Respondent, and only when an official of Respondent was
present. In fact, members of management regularly partici-
pate in the Committee's affairs and vote as part of the
Committee on consideration of complaints, suggestions,
and proposals submitted by employees. Respondent' s presi-
dent, Lowen, indeed, effectively determines which employ-
ee complaints, suggestions, and proposals shall be
considered by the Committee, and which shall be beyond its
reach, and handled by Respondent alone. The organization
and operation of the Committee continues essentially as
described to the time of the hearing. On the basis of these
facts, and on the record as a whole, it is found that Respon-
dent has dominated, assisted, and interfered with the ad-
ministration of the Employees Committee in violation of
Section 8(a)(2) and (1) of the Act.
B. Alleged Threat to Robert Beer
Beer had been the primary proponent of the Union in its
unsuccessful campaign in 1970, and had been reinstated
with backpay as a result of the settlement of the charges
filed with the Board in 1970, after Beer's discharge. After
Beer proposed to the Employees Committee, in 1972, that
Respondent should be requested to grant cost-of-living rais-
es to the employees, Lowen told Beer that he was a "trouble-
maker," and that he should look for a job elsewhere since
he had no future with Respondent. Lowen criticized Beer
for costing the Respondent a considerable amount of mon-
ey as a result of his prior union activities, and told Beer that
Respondent had just gotten rid of another troublemaker
(Corwin) who was not so careful as Beer. It is clear, as had
been found, that Lowen, in this conversation, threatened
Beer with reprisals because of Beer's prior activities in pro-
moting the Union, and his present activity in seeking to
secure, through the Employees Committee, an agreement by
Respondent to institute a program of paying the employees
cost-of-living increases. This latter activity, as was the advo-
cacy of the Union, is a type of concerted activity protected
by the Act. In threatening Beer because of these activities,
Respondent violated Section 8(a)(1) of the Act.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Discharge of Joe R. Corwin
I have no doubt on this record that Respondent knew of
Corwin's incipient drive to get the Union to renew its cam-
paign to secure representation of Respondent's employees,
as previously found . I also have no doubt that Respondent
welcomed the opportunity to get rid of such a troublesome
employee . However, it is also clear that Corwin gave Re-
spondent more than adequate cause to terminate his em-
ployment . General Counsel argues that this was
nevertheless seized upon as a pretext to get rid of Corwin
because of his advocacy of the Union . In other words, that
the Respondent would not have discharged Corwin except
for his union activities . I do not believe that the record
supports such a conclusion . Corwin had previously made a
costly error in judgment in connection with a customer's
order, after a period of deteriorating work performance on
his part . Although Respondent was aware of his union ac-
tivities at the time , he was not discharged , but was given
opportunity to rehabilitate himself . The incident giving rise
to his termination occurred within 2 weeks thereafter, and
involved the deliberate disregard of the reasonable instruc-
tion of a person known to Corwin to occupy a supervisory
position . There was evidence that Respondent had dis-
charged other employees in analogous circumstances in the
past . I am convinced that Respondent was justified in dis-
charging Corwin in this case , on the basis of the record
considered as a whole , and I shall recommend that this
allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and the Employees Committee are labor
organizations within the meaning of the Act.
3. By dominating , assisting, and interfering with the ad-
ministration of the Employees Committee , on and after
November 16, 1971, as set forth hereinabove, Respondent
violated Section 8(a)(2) and (1) of the Act.
4. By threatening employee Robert Beer with reprisals
because of his union and other protected concerted activity,
Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not engage in unfair labor practices in
violation of the Act by its discharge of employee Joe R.
Corwin, as alleged in the complaint.
THE REMEDY
as the collective-bargaining representative of any of the
Respondent's employees for the purpose, in whole or in
part, of dealing with the Respondent concerning grievances,
labor disputes, wages, rates of pay, commissions, hours of
employment, or other conditions of work. I shall further
recommend that Respondent cease giving effect to any
agreements, oral or written, made with the Employees Com-
mittee, provided that nothing herein shall require the Re-
spondent to vary or abandon any wage, commission, hours,
seniority, or other substantive feature of its relations with its
employees that the Respondent has established in perfor-
mance of its agreements or arrangements with the Employ-
ees Committee, or prejudice the assertion of any rights
acquired by the employees thereunder, or by reason of any
established practice in regard to wages, hours of employ-
ment, or conditions of employment.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:10
ORDER
Lowen Company, Inc., the Respondent herein, its offi-
cers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating, or interfering with the formation or ad-
ministration of, or contributing aid or assistance to, the
Employees Committee, or any successor thereto as the col-
lective-bargaining representative of any of its employees, or
giving effect to any agreements with the Employees Com-
mittee, as provided in the section hereinabove entitled "The
Remedy."
(b) Threatening any employee with reprisals for engag-
ing in activities on behalf of a union, or engaging in other
concerted activity protected under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the purposes of the Act:
(a) Withhold all recognition from and completely dises-
tablish the Employees Committee as the collective-bargain-
ing representative of any of its employees for the purpose
of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other terms or
conditions of employment.
(b) Post at its operations at Hutchinson, Kansas, copies
of the attached notice marked "Appendix." 11 Copies of said
notice , on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's author-
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (2)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since Respondent has dominated, assisted , and interfered
with the administration of the Employees Committee, I
shall recommend that Respondent withdraw recognition
from and completely disestablish the Employees Committee
10 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,
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
11 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
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
LOWEN COMPANY, INC.
ized representative, shall be posted by it 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. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any material.
(c) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed with respect to any alleged violations of the Act
not found hereinabove in this Decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL disestablish and stop dealing with the Em-
ployees Committee as a representative of the employ-
ees with respect to the employees' wages, hours of
employment, or other conditions of employment.
WE WILL NOT assist , dominate, or interfere with the
455
administration of any labor organization in violation of
the law.
WE WILL NOT threaten employees with reprisals be-
cause they join, or assist a union, or engage in union
activities, or engage in other activities in connection
with their work protected by the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
Dated By
LOWEN COMPANY, INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 610 Federal Building, 601 E. 12th
Street, Kansas City, Missouri 64106, Telephone 816-374-
5181.