McCulloch Motors Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1709 (N.L.R.B. 1958)

McCULLOCH MOTORS CORPORATION 1709
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
4. By this conduct , and by maintaining, operating , and administering the Health
Trust Fund since on or about March 18, 1957, only for the benefit of its members,
thereby restraining and coercing the employees of J. Radley Metzger Co ., Inc., in
the exercise of rights guaranteed in Section 7 of the Act , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
5. The above -described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.
[Recommendations omitted from publication.]
McCulloch Motors Corporation and International Union , United
Automobile, Aircraft & Agricultural Implement Workers of
America , UAW (AFL-CIO). Case No. 21-CA-f404. June 30,
1958
DECISION AND ORDER
On March 15, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, UAW (AFL-CIO),, the Charging Party herein,
filed exceptions to the Intermediate Report and supporting briefs.
The Respondent filed exceptions to certain of the findings of the_ Trial
Examiner, and a brief in support of such exceptions and the Trial
Examiner 's other findings and recommendations.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to extent consistent with our find-
ing, conclusions , and order hereinafter made.'
1 After the reopened hearing in this proceeding was closed on January 29, 1957, the
Respondent , on April 5, 1957, filed a motion with the Board to reopen the record for the
purpose of receiving in evidence the agenda and minutes of a meeting held between the
Committee and management on March 7 , 1957 . The Respondent alleges that the exhibits
are relevant and material to the issue of the Respondent 's domination of the Committee
in that it shows the Committee to be an independent organization . The motion was op-
posed by the Charging Party. We deny the motion as without merit. The proffered
evidence is clearly of a self-serving nature and as such , has little , if any, probative value.
Moreover , the evidence , if received , cannot excuse the Respondent 's earlier unlawful inter-
ference and assistance which we hereinafter find.
120 NLRB No. 222.
1710 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD
1. The Trial Examiner found, contrary to the Employer's conten-
tion, that the Employee Relations Committee was a labor organization
within the meaning of Section 2 (5) of the Act. For the reasons set
forth in his Intermediate Report, we adopt the Trial Examiner's
finding.
2. The Trial Examiner also found that the Respondent did not
dominate, assist, or contribute support to the Committee, and there-
fore did not violate Section 8 (a) (2) and (1) of the Act. We dis-
agree with the Trial Examiner to the extent that we find that the
evidence establishes at least that the Respondent gave unlawful
assistance and support to the Committee in violation of these provi-
sions of the Act.
- As shown by the factual recital in the Intermediate Report and the
record, the Respondent participated in the establishment of the Com-
mittee. Thus, in the latter part of 1946, seven employees, who consti-
tuted themselves an organizing committee, had several conferences
with Robechaud, the Respondent's then director of industrial relations.
As a result of these conferences "there was clarified what was to go
into the document." After personally approving the formation of the
Committee,' Robechaud drafted the proposed plan which was later
adopted apparently without change by the organizing committee. The
proposed plan stressed the fact that "management has approved the
formation of the Committee and will accord it full consideration."
There is also evidence that the Respondent prepared,copies of the plan,
posted them on the plant bulletin boards and placed them near the
time clocks where they were readily available to the employees. The
Respondent subsequently announced the time of the first election for
committee representatives. Although there is no evidence that the
committee plan was ever approved by a majority of the employees, the
Respondent thereafter dealt with the Committee as a representative
of its employees.
The evidence further discloses that the Committee from its incep-
tion, has been dependent on the Respondent for financial and other
support. It has no treasury, collects no dues, and has no other source
of income. Its organization expenses are, in effect,. underwritten by
the Respondent. Ballots for its periodic'elections. are printed by the
Respondent who also furnishes ballot boxes. Elections for committee
members are held on company time and premises. Meetings of com-
mittee members, separate from their meeting with management, are
also held on company time and property, with members being paid
while attending all such meetings. Furthermore, the Respondent has
control over the Committee by its power to unseat representatives by
2 It appears that approval was given at the time when the International Association of
Machinists was attempting to organize Respondent 's employees Although not mentioned
by the Trial Examiner, Robechaud admitted that one of the considerations motivating his
approval of the formation of the Committee was union organization generally.
McCULLOCH MOTORS CORPORATION 1711
transferring them to other departments or by terminating their
employment.3
Other indicia of the Respondent's interference with the adminis-
tration of the Committee and unlawful assistance to it, are also found
in the regularity with which matters relating to the internal workings
of the Committee are placed on committee-management agendas for
discussion. Unlike the Trial Examiner, we find that this practice is
more than a manifestation of "some insecurity on the part of the
Committee representatives." In our opinion, it reflects an unwar-
ranted intrusion by Respondent in the Committee's internal affairs.
Significantly, at no time in a period of 10 years of committee-manage-
ment discussions did the Respondent, while advising the Committee
on many internal matters, undertake to inform the Committee that
it had authority to pursue its own dictates independently of any views
expressed by the Respondent. Indeed, the record discloses that the
Respondent has asserted a right to veto suggested changes in the
Committee's bylaws. Thus, at a meeting in 1953, or 1954, when the
Committee, as the Trial Examiner observed, asked management if its
chairman could be elected for another term, management said it could
not because it was contrary to established policy. Vice President
Egbert, testifying for the Respondent with respect to these incidents,
explained that management said, "No, because it was something agreed
to between the Committee and management back in '46," and that it
felt it was its obligation to construe the Committee's bylaws.
Similarly, at a meeting in 1951, management stated, in answer to a
committee proposal to amend its bylaws so that members of the
Committee could serve 1 year instead of 6 months, that it would
"agree" to whatever decision was made by the Committee. It may
be, as the Respondent contends, that it was in a better position than
the Committee to know what past policy was I and thus to advise the
Committee. However, whether it was simply a case of advice, or
insistence on an agreed method of operation, which more likely appears
to be case, the act of the Respondent in assuming the responsibility
to construe the Committee's bylaws was unwarranted interference with
the administration of the Committee.
Further indicia of improper intrusion by Respondent in the in-
ternal affairs of the Committee are found in the facts surrounding
the formation of an "Employee Relations Committee" at the Re-
spondent's newly acquired Rhodes-Lewis plant and its subsequent
8 Although, as the Trial Examiner found, there is no direct evidence that the Respondent
ever utilized its power to unseat committee members by transfer to other departments
or by discharge, there is evidence, to which the Trial Examiner did not advert, showing
that the Respondent , sometime before July 11, 1955, threatened to use its disciplinary
power in respect to one member of the Committee unless he improved his actions as shop
committeeman.
*It appears that the Respondent prepared the agendas and kept a file of the minutes
of all meetings. The Committee kept no records.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merger with the existing Committee at the main plant. The evidence
shows that at the initial meeting with a temporary employee com-
mittee at the Rhodes-Lewis plant on July 20, 1951, the Respondent
undertook to outline the purposes of the shop committee meetings and
the purposes of the employee committee itself. Among other things,
management informed the temporary committee that "a general
election will be held in the near future to elect a permanent shop
committee." Subsequently, in 1952, the committees were merged when
the Rhodes-Lewis work force was moved to the main plant. However,
nothing appears in the minutes of the committee-management
meetings that either employee committee had made a request for or
had discussed such merger. /What does clearly appear is manage-
ment's announced agreement or approval of the merger.
We are mindful that conduct occurring more than 6 months prior
to the filing and service of the charge herein cannot constitute a
violation of the Act. It is settled law, however, that such evidence
may be used for background purposes in evaluating the Respondent's
conduct within the statutory period. As indicated above, the Com-
mittee in the present case continues to exist and function in all re-
spects in the same manner as it did previously, and the Respondent
continues in general its same practices. Only recently, the Respondent
disapproved of a committee proposal to have an alternate committee-
man serve as a full committeeman; the Respondent proposed that a
standard pin, instead of separate pins, be awarded for all plant com-
mittee services, including the Employee Relations Committee; the
Respondent, apparently on its own initiative, undertook to explain to
committee members and their alternates their duties as committee-
men; 5 at the request of the Committee, the Respondent prepared and
distributed to committee members a document 6 alleged to be a reprint
of an original document, which described how the Committee func-
tioned;' and the Respondent criticized and revised language of a
committee proposal intended to permit the chairman of the Committee
to preside for more than 1 year.8
5 The Trial Examiner found that management was asked to explain their duties to com-
mitteemen. The minutes of this particular meeting, however, show that it was manage-
ment which placed this topic on the agenda for discussion.
8 The original document, if in existence, was not offered in evidence, nor was the date
of its original promulgation or its source disclosed.
7 The reprint, indicating that it was a "guide for Committee members" and represented
by the Respondent as the current bylaws of the Committee provided that committee mem-
bers by majority vote "may suggest revisions" of the bylaws Significantly, however, it
did not set forth any procedure by which such suggested revisions of the bylaws desired
by the Committee could be effectuated without prior. discussion at committee- management
meetings
8 There is no evidence, and the Trial Examiner finds none, that in this instance the
Committee had invited criticism or revision of its proposal that "the Committee chair-
man may be elected to succeed himself for more than 1 year in office by a majority vote
of the Committee members " However, the Respondent's suggested revision, which the
Committee ultimately accepted, provided multiple choices of 1, 2, or 3 years. As a result,
the proposed amendment was rejected, although in tact a majority of the employees voted
in favor of a longer term.
McCULLOCH MOTORS CORPORATION 1713
Of significance is the Respondent's continuing attitude from the
inception of the Committee, and its position in this proceeding, that
the Committee is not a labor organization under the Act, but merely
a "channel of communication" between the employees and the Re-
spondent. Consequently, in particular view of the Respondent's
actual conduct toward the Committee as described herein, there is a
strong implication that the Respondent made no effort to desist from
interfering with, supporting, and assisting the Committee, as the Act
requires in the relations between an employer and a "labor organiza-
tion." 9
In view of the foregoing, we find that the Respondent unlawfully
assisted and furnished financial support to the Employee Relations
Committee and unlawfully interfered with the administration of that
organization thereby violating Section 8 (a) (2) and (1) of theAct.19
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth above, occurring in
connection with the operations of the Respondent described in the
Intermediate Report, has a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that the Respondent has assisted, contributed sup-
port to, and interfered with the administration of the Employee
Relations Committee. We shall therefore order the Respondent to
withdraw recognition from the Employee Relations Committee and
refrain from recognizing and dealing with it, unless and until the
Employee Relations Committee shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted election
among the Respondent's employees at its Los Angeles, California,
plant. We shall order the Respondent to cease and desist from giving
effect to any contracts or agreements with the Employee Relations
Committee. However, the Respondent is not hereby required to vary
the wages, hours, or other conditions of employment heretofore
established.
9 See, e . g., Northeast Engineering , Inc., 112 NLRB 743, 754.
10 Cf., N. L. R. B. v. The Summers Fertilizer Company, Inc., 251 F, 2d 514 (C. A. 1),
enf. 117 NLRB 243. Coppus Engineering Corporation v. N. L. It. B., 240 F. 2d 564
(C. A. 1) setting aside 115 NLRB 1387, upon which the Trial Examiner relied , is factually
distinguishable from the present case.
483142-59-vol. 120-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the entire record in the .case, and pursuant to
Section 10 (c) of the National Labor Relations, Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
McCulloch Motors Corporation, Los Angeles, California, its officers,
agents,, successors, and assigns shall:
L Cease and desist from :
,(a) Assisting, contributing support to, or interfering with the ad-
ministration of, the Employee Relations Committee or any other
labor organization of its employees.
(b) Recognizing the Employee Relations Committee as the repre-
sentative of any of its employees for the purpose of dealing with the
Respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until said organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election among
the Respondent's employees at its Los Angeles, California, plant.
(c) Giving effect to any and all contracts or agreements, supple-
ments thereto or modifications thereof, or any superseding contracts
with the said Committee, or any successor, unless and until said or-
ganization shall have demonstrated its exclusive majority representa-
tive status pursuant to a Board-conducted election among the Re-
spondent's employees at its Los Angeles, California, plant.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the Employee
Relations Committee as the representative of any of the Respondent's
employees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among the -Respondent's em-
ployees at its Los Angeles, California, plant.
(b) Post at its plant in Los Angeles, California, copies of the notice
attached hereto marked "Appendix." 11 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by the
n In the event that this Order is enforced by a decree of a United States Court of Ap-
peals there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
McCULLOCH MOTORS CORPORATION 1715
Respondent to insure that the said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent dominated the Employee Relations Committee and
thereby violated Section 8 (a) (2) and (1) of the Act, be, and it hereby
is, dismissed.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of^the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT assist, contribute support to, or interfere with the
administration of, the Employee Relations Committee or any
other labor organization of our employees.
WE WILL NOT recognize the Employee Relations Committee as
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, unless and until said organization shall have demonstrated
its exclusive majority representative status pursuant to a Board-
conducted election among our employees at our Los Angeles,
California, plant.
WE WILL NOT give effect to any and all contracts and agree
ments, supplements thereto or modifications thereof, or any super-
seding contracts with the Employee Relations Committee or its
successor, unless and until said organization shall have demon-
strated its exclusive majority representative status pursuant to a
Board-conducted election among our employees at our Los
Angeles, California, plant.
WE WILL withdraw and withhold all recognition from the Em-
ployee Relations Committee as the representative of any of our
employees for the purpose of dealing with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organiza-
tion shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among our em-
ployees at our Los Angeles, California plant.
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become , remain, or to refrain from
becoming or remaining, members of any labor organization , except
to the extent that this right may be affected by an agreement author-
ized by Section 8 (a) (3) of the Act.
MCCULLOCH MOTORS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be - altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against McCulloch Motors Corporation., The
complaint, dated October 22, 1956 , and later amended, alleged that Respondent had
engaged in unfair labor practices within the meaning of Section 8 (a) (1)'and (2)
of the Act. Copies of the complaint, the charge upon which it was based , and notice
of hearing thereon were duly served Respondent and upon Employee Relations
Committee , the latter alleged in the complaint to be a labor organization which was
dominated , supported , and assisted by Respondent.
The complaint alleged that Respondent had encouraged the establishment of Em-
ployee Relations Committee , herein called the Committee , in 1946 ; had at all times
since July 19 , 1955 , a date 6 months prior to the filing and service of the instant
charge, assisted the Committee financially and otherwise in various specified ways;
and had exercised control over the operations of the Committee . Respondent's
duly filed answer denied that the Committee was a labor organization and that its
conduct toward the Committee in any way was violative of the Act.
Pursuant to notice , a hearing was held at Los Angeles, California , before the duly
designated Trial Examiner on December 3 and 4, 1956 , and duly reopened on January
29, 1957 , as appears below . The General Counsel and Respondent were represented
by counsel who were afforded full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence ; no appearance was made for the
Committee . At the close of the hearing, the parties were afforded time to argue orally
and to file briefs. Oral argument was waived and a date was set for the submission
of briefs.
On December 27, 1956 , prior to the extended date for the receipt of briefs, the
General Counsel moved to amend the complaint and reopen the hearing solely to
receive newly discovered evidence involving conduct occurring after the close of
the hearing on December 4. The amendment alleged that Respondent had exercised
control over the efforts of the employees to amend the bylaws of the Committee
by conduct including a final determination of the language of proposed amendments
to said bylaws ; a supporting affidavit from an employee was appended to the motion.
On December 28, the Trial Examiner issued an order to show cause why the motion
should not be granted and on January 11, 1957, there being no objection thereto,
it was granted . The hearing was reconvened on January 29,1957 , and additional
evidence was adduced by the parties relative to this allegation . The time for filing
briefs was reset and briefs have been received from the parties.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
McCulloch Motors Corporation is a Wisconsin corporation which is engaged
in the manufacture of small gasoline engines , chain saws , lawn mowers , and aircraft
accessories at a plant in Los Angeles , California . In the course and conduct of this
business , Respondent ships products valued in excess of $50 ,000 per annum to points
outside the State of California . I find that Respondent is engaged in commerce
McCULLOCH MOTORS CORPORATION 1717
within the meaning of the Act and that it would effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America, UAW (AFL-CIO) and Employee Relations Committee are
labor organizations admitting to membership the employees of Respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Introduction; formation of the Committee
The issues are: (1) Is an organization which represents the employees of Re-
spondent and is named the "Employee Relations Committee" a labor organization;
and (2) has Respondent dominated,. supported, and interfered with the operation
and administration of that organization, within the meaning of Section 8 (a) (1)
and (2) of the Act. The complaint specifically claims that Respondent furnished
this organization with facilities, ballots, and ballot boxes; prepared minutes of
committee meetings and bylaws and acted as custodian for same; posted these
documents on plant bulletin boards; paid members of the Committee, i. e., officials,
for time spent on committee business; authorized and participated in elections for
committee representatives on company time and premises; limited service as commit-
tee representatives to employees exclusively; required employees to deal through the
Committee while at the same time withholding recognition from the Committee as
exclusive bargaining representative; unilaterally adopted changes in working condi-
tions after conferences with the Committee and did not treat the Committee as an
equal partner; and assumed control over efforts of employees to amend the bylaws
of the Committee.
The Los Angeles plant of Respondent was opened on or about January 1, 1946,
under the name of McCulloch Aviation; the change to the present name was made
in 1947. The Committee first appeared on the scene in the fall of 1946, subsequent
to an unsuccessful attempt by the International Association of Machinists to organize
these employees. That organization, after an undisclosed amount of organizational
activity, filed a petition for certification of representatives and, on October 30, 1946,
an agreement for a consent election was executed. The election was held on Novem-
ber 6, 1946, on company time, and that labor organization lost. The complement
of personnel, now much larger, was between 100 and 150 at that time.
The first written matter treating with the committee is dated November 12, 1946,
and is a I-page proposal signed by 7 rank-and-file employees urging that a committee
be established to represent the employees in submitting grievances and suggestions to
management. As appears below, this is the final draft of a proposal previously
signed by the seven. The uncontroverted testimony of Otis Gwin, one of the seven,
received in affidavit form, is silent as to the organizational campaign by Machinists
but discloses that the employees were desirous of establishing a channel for com-
municating their needs to management and had discussed this problem on coffee
breaks and lunch periods.
The document as ultimately prepared provided that: (1) elections for committee
members would be held only among rank-and-file employees; (2) a term of office
would last for 6 months; (3) committee members would be elected to represent their
respective departments; and (4) management representatives would not attend
committee meetings . The number of representatives was set at seven .2 The men
were urged to nominate at least two candidates for each job. The proposal stressed
that the Committee would be independent, was not company sponsored and claimed
that unless 65 percent of the electorate cast ballots the plan would be dropped. This
reference to an election, it may be noted, was not to an election on the issue of having
a Committee but on the subsequent step of electing officials. However, there is no
indication herein that a majority of the employees were not receptive to representa-
tion by the Committee.3
1 The evidence in support of this finding with respect to the Committee is set forth in
section III.
2 This number is currently 17 for all 3 shifts.
2 Vice President Robechaud of Respondent, then in charge of industrial relations, testi-
fied that the November 12 document was presented to him after the holding of an election
among employees, but also testified that he knew of no election held on the issue of ac-
ceptance or rejection of the committee scheme. Executive Vice President Egbert testified
that no such election was held and the affidavit of Gwin is silent on the matter. I find
that no such election was held.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Gwin's uncontroverted affidavit, "At the time, all of the persons
whose names are listed were just employees, not leadmen or supervisors. We got
together and wrote down our ideas about a committee . One of the fellows, I
believe it is Isham, had had previous experience with such a committee and we
used his experience. We signed this document and submitted it to the then director
of industrial relations. We had at least two meetings with him. After we had
clarified what was to go into the document, the director of industrial relations
wrote it up. The Committee then had a meeting among ourselves to go over his
draft; I do not recall if we made any changes in it. We then returned it to him,
he had it typed and posted on the bulletin boards. Copies were also placed near
the time clocks where the employees could take them." The director was apparently
Robechaud; although his testimony was vague concerning this period, he did recall
that the men asked permission to form the Committee and that Respondent inter-
posed no objection. In sum, while the foregoing discloses that the director of
industrial relations furnished the men some clerical assistance and assisted in the
final draft of the proposal, there is no evidence that the Committee, in its inception,
was anything other than of employee origin. I so find.
Gwin's affidavit further states, "The first election was held within a few weeks
after the memo of November 12, 1946, issued. The employees knew from the
memo how many had to be elected from their department. The company an-
nounced what hour was to be used for voting. I do not recall now if it was 1 hour
or 2 hours. The voting was on paid company time. In my department the em-
ployees got together and nominated whom they wanted for representative, verbally.
Each one then designated his choice by writing the name of his candidate on a
sheet of blank paper, which ball9t he then deposited in a ballot box which was in
the custody of the department's representative on the organizing committee. In my
department, after all the votes had been cast, I opened the ballot box and counted
the ballots. A small number of the employees of the department stood by and
watched me. No supervisors or leadmen were in this group. While leadmen and
foremen were present in the department during the period of the balloting, to the
best of my recollection none were at any time near the ballot box. .
There appears to have been no subsequent challenge by another labor organi-
zation to the position of the Committee until late in 1955, at which time a repre-
sentation petition was filed by the Charging Union herein, in Case 21-RC-4208.
An election was held on December 12, 1955, pursuant thereto and the Union
lost.
B. Operation of the Committee
Although there has never been a contract or collective-bargaining agreement
between the Committee and Respondent, the Committee has represented the em-
ployees since 1946 not only as a vehicle of communication with management, but
also in handling grievances and disputes. These matters have involved meetings
between the Committee and Respondent's director of industrial relations. They are
currently held on the first Thursday of each month between 2:30 p. m. and 4:15
p. m., the end of the day shift. Those representatives employed on the day shift
punch out their cards when they attend, and, on rare occasions when the meetings
last beyond 4:15 p. m. are paid overtime. The swing shift representatives who
attend are paid overtime inasmuch as the meeting requires their appearance prior
to the commencement of that shift. The 1 representative from the graveyard shift
is paid 4 hours' call-in pay.
The monthly meetings develop in the following manner . The chairman of the
Committee, who is its chief executive, polls the committee members as to matters
they wish to be placed on the agenda; presumably these matters are brought to the
attention of the representatives by the employees of their respective departments.
The chairman then submits the topics he has collected to the director of industrial
relations for placement on the agenda. Management does not change these topics,
but, in turn, it may and does submit other topics for the agenda. The entire agenda
is then typed out by the secretary of the director of industrial relations. The
chairman of the Committee distributes copies of the agenda to the representatives
serving on the Committee prior to the meeting.
The meetings are taken down in shorthand by the secretary of the director of
industrial relations , save for certain nonessentials . She then transcribes the minutes
and the rough draft is submitted to the chairman of the Committee as well as to the
director of industrial relations and the works manager for editing. Any desired
corrections in the rough draft are made by either side and the edited copy is then
run off. These minutes are printed by Respondent and are posted on the plant
McCULLOCH MOTORS CORPORATION 1719
bulletin board. A copy is given to each representative serving on the Committee
and management also maintains a file of the minutes.
As indicated, the Committee has no treasury, funds, or sources of income. Ac-
cordingly, when secret ballot elections for committeemen are held by the Committee,
its chairman asks the industrial relations department of Respondent to print the
ballots and this is done at company expense. Respondent also provides the ballot
boxes, these consisting of cardboard boxes from its shipping department.
The Committee conducts the elections without any participation on the part of
management representatives. For the last 2 years, including the December 1955
election, the ballots have been counted in the office of the director of industrial
relations. This has come about at the request of the Committee, in which Re-
spondent has acquiesced. The counting and checking of ballots is handled by
members of the Committee, although there is a practice of having the assistant
director of industrial relations be present, and he in turn notes down the tally of
ballots subsequent to the count and check. It appears that elections are held on
company time and property, and this was definitely the case in the election held in
December 1956.
The right of employees to participate in elections is based upon their employment
by Respondent and does not involve any voluntary selection of, or act of affiliation
with, the Committee on the part of the employee; all hourly paid employees, except
supervisors, are eligible to vote. Representatives are elected to office on a de-
partmental basis, and the nominees are restricted to employees of the respective
departments. If the elected representative leaves the Company or transfers to
another department, he automatically loses his office and is replaced. During 1956,
there were two cases where special elections were caused by the transfer of employees
to another department or shift; a third election was caused by the voluntary resig-
nation from the Committee of an employee who remained in the same department.
The Committee bylaws, it appears, are silent concerning any procedure whereby
employees can signify that they desire to continue or abandon their organization.
On the other hand presumably any group of employees that wishes to abandon a
particular type of representation is at liberty to do so. For example, note the
numerous cases decided by the Board involving questions of disaffiliation and the
schism doctrine.
As one facet of the issue of domination, the General Counsel points to what took
place after Respondent, in 1951, purchased a concern known as the Rhodes-Lewis
Company which was located some 5 or 6 miles distant from the main plant. The
evidence discloses only that in his response to questions by the employees of that
concern relative to many matters including the question of representation, Vice
President Egbert informed the Rhodes-Lewis employees in general language of the
existence of the Employee Relations Committee. Rhodes-Lewis at that time had
250 to 300 employees, as contrasted with the 800 then in Respondent's employ. The
employees of the Rhodes-Lewis plant decided to establish a committee similar to that
at the main plant and did so.
In 1952, the Rhodes-Lewis work force was moved to the main plant and their
committee was consolidated with the committee at the plant. The record does not
disclose whether the committee at the main plant was consulted on the consolida-
tion; in fact, the record does not disclose just what steps were taken, except that,
according to Egbert, the Rhodes-Lewis committee was desirous of merger, and,
after the work force was transferred, management agreed with the proposal. On
the other hand, although the issue was not litigated, it would appear that the
merger of the two plants logically resulted in an accretion to the existing bargaining
unit. See International Union, United Automobile, Aircraft, and Agricultural
Implement Workers, etc. v. N. L. R. B., 231 F. 2d 237 (C. A. 7); J. W. Rex Com-
pany, 115 NLRB 775; and Hudson Pulp and Paper Corporation, 117 NLRB 416.
C. Meetings with management
Certain of the minutes were introduced in evidence and they reflect some of the
meetings held in 1947, 1950, 1951, 1955, and 1956. All 1955 and 1956 meetings
described therein took place within the 6-month period preceding the filing of the
instant charge. For example, the September 2, 1955, minutes reflect a complaint
by the Committee concerning the lack of ventilation in the trim room and man-
agement 's response to the complaint. In addition, the Committee asked if it was
possible to have another representative serve on the Committee from a particular
department , namely the "Model 33, Supercharger and Lawnmower Department,"
pointing out that the representative of the diecast department serviced this other
department as well . The Committee proposed that the alternate representative serv-
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
icing that area be made a full-fledged committeeman . Management replied that it
,was unwise to increase the size of the Committee as this tended to make it unwieldly:
It suggested that the committee representative from the "Armament Division Machine
Shop" also cover the Model 33 department and the Committee accepted this
suggestion.
At the November 8, 1955 , meeting the Committee inquired concerning the date
of the Christmas holiday vacation and received management 's reply. The Com-
mittee complained concerning dirty showers in the locker room and also asked that
certain guards be placed on the fluorescent lights.
At the January 2, 1956, meeting, management suggested that in lieu of continuing
the existing system whereby a different type of pin was awarded to employees for
service on various plant committees such as the recreation committee , safety com-
mittee, and also the employee relations committee, a standard pin similar to that
awarded to the recreation committee be used . The Employee Relations Committee
representatives accepted this suggestion . The Committee also complained concern-
ing the lack of heat and inadequate parking facilities.
At this same meeting, management was asked the question , "Could the duties
of the committeeman (serving on the Employee Relations Committee , that is) be
repeated for the benefit of the new Members ?" To this management responded:
The purpose of our Employee Relations Committee is primarily one of
communication . Your management wants your help and cooperation in offer-
ing and suggesting such ideas as will promote the mutual interest of both man-
agement and the employees . As elected committee members, you are reflecting
the opinions, ideas and questions of those employees you represent . In order
to keep our meeting within a reasonable time limit , individual employee prob-'
lems should be taken up with the immediate supervisor or when necessary, the
industrial relations department.
"In this meeting we shall primarily concern ourselves with policy discussions
as pertain to the over-all operations of the company . It is most important that
we maintain two way communication between employees and management as
to what has happened and what our plans are for the future. The employee
relations committee has been of invaluable service to management in helping
us make many decisions in the past , and we are confident that the future shall
bring forth many new suggestions which will help keep McCulloch Motors at
the top.
This is not a grievance committee but the opportunity to hear from 17 people
as representatives of the employees' suggestions , ideas or solutions to problems
which will make McCulloch a better place to work. Over the years approxi-
mately 90% of the problems brought up here have been solved.
At our employee group meeting last month it was noticeable that many
employees had not availed themselves of the opportunity to carry their prob-
lems or grievances "up the ladder." A definite procedure, outlined in the June
'54 flywheel', has been established for this and we would like to repeat it. An
employee that has a problem has the option of going directly to his foreman
or asking his committee representative to go with him. If a satisfactory answer
is not received at this step, the employee and/or committeeman should meet
with the general foreman . In cases where the employee is still not satisfied,
the committeeman should contact the chairman of the committee and permission
asked to go to personnel . At this point personnel and the department head
will meet with the employee and committee representatives for a further dis-
cussion of the problem. Should the employee still desire to carry his problem
further, he has a perfect rieht and is encouraged to see the officer of the company
who has authority over his department.
Later in the meeting the Committee asked for an explanation of the duties of the
"committee alternate ." Management . replied that "the purpose of the alternate is
to act as your representative when you are unable to attend a meeting or contact
the emolovees in your section for agenda material. .. .
At the February 2, 1956, meeting management was asked concerning the company
policy on sick leave and replied that there was no sick leave policy as such, but that
other employee benefits including vacation period more than made up for this.
A lengthy discussion followed on the method of management 's performance review
of the various employees.
On June 11, 1956, a reprint of an existing document was run off by Respondent
at the request of the Committee for distribution to members of the latter . Neither
the date of its original promulgation nor its source is disclosed . This document
McCULLOCH MOTORS CORPORATION 1721
spells out for the benefit of committee members the method of functioning of the
Committee and is the latest word on the current modus operandi. It states as
follows:
EMPLOYEE RELATIONS COMMITTEE
The Employee Relations Committee members shall be elected during De-
cember of each year, taking office immediately. All members of the Committee
shall be elected by secret ballot. Nomination ballots shall be distributed in each
department by the retiring Committee member. If a person receives a majority
of the votes cast in a section, no further balloting will be necessary. However,
if no one receives a majority of the votes cast, the three people receiving the
highest number of votes will be placed on another ballot for a runoff election.
This election shall not be held prior to two days after the nomination election.
At the last meeting, the retiring Committee shall elect from among its
members, one person to serve as Chairman for the newly elected Committee.
In order to serve the vast majority of employees, the Chairman must be on
the day shift.
Should there arise a doubt as to the interpretation of any of the policies out-
lined in the employee's handbook, "You and McCulloch Motors," the members
of the Committee shall check with the Chairman. If necessary, the members
and the Chairman will refer the question to the Director of Industrial Relations.
Prior to all monthly meetings the members of the Committee should present
to the Chairman all topics they would like to present to Management for dis-
cussion. These will then be placed on the agenda and a copy given to the
Director of Industrial Relations before the meeting. Management, in turn,
will notify the Chairman prior to the meeting of any topics they plan to bring
up for discussion. Any member of the Committee may place any suggestion in
the agenda over the objection of the Chairman and such suggestion will remain
on the agenda unless withdrawn by the same member who had it placed on
the agenda as called by the Chairman. Subjects not placed on the agenda will
not be discussed by Committee. The Employee Relations Committee, if it
desires, may meet for 15-30 minutes prior to each monthly meeting without
Management present.
The regular monthly meetings of the Committee and Management will be
held on the first Thursday of each month. Should circumstances arise between
regularly scheduled meetings necessitating additional conferences , Management
or the Committee may initiate additional meetings.
As a reminder to us all, please remember all members of the Committee do
not speak as individuals but as representatives of department or section repre-
sented. A summary of each meeting will be typed and given to each Committee
member for use as an outline in conveying information to the employees as
soon after the meeting as possible.
The above points are intended as a guide for each Committee member.
Future Committees may suggest revisions at any time by a majority vote of
any duly elected Committee. We want the spirit of friendliness and cooperation
which has existed in the past to be a guide for each of us in the future.
D. The 1956 election
At the reopened hearing, evidence was developed concerning an election held on
December 19, 1956, at which the employees voted on proposed changes in their
bylaws and also nominated candidates for office during the year 1957. The Com-
mittee, it may be noted, still operates solely under its bylaws and has no constitution;
and, as in the past, it has no treasury or sources of revenue, and collects no dues.
The bylaws have provided for some years that the chairman could serve but one
term of 1 year. During 1953 or 1954, when the Committee wished to retain its
'then chairman for a second year it did not do so but asked management if this
could be done. Management replied that the bylaws of the Committee forbade
such a move; apparently it never occurred to the Committee at that time that its
bylaws could be amended. The matter remained quiescent until at a regular meeting
between the Committee and management on August 9, 1956, the Committee placed
on the agenda for discussion their "Wish to discuss By-Laws change allowing
chairman to preside more than one year."
The topic accordingly was discussed at the August 9, 1956, meeting and manage-
ment suggested that the discussion be continued at the next monthly meeting when
all present could have copies of the bylaws before them. The subject was not
pursued during the next few monthly meetings, but there is no evidence to indicate
that this delay was caused by management. At a regular meeting held on Decem-
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 6, 1956, the Committee asked that a special meeting be held during the following
week at which time proposed changes in the bylaws would be taken up and this
was agreed to. In the interim, Chairman Walker of the Committee consulted
various representatives serving on the Committee and prepared several proposed
changes in the bylaws.
On either December 12 or 14, Walker contacted Industrial Relations Director
Kaiser and gave him a longhand copy of the agenda for mimeographing by Re-
spondent, as is the custom in the plant. The document listed these topics: (1) The
Chairman could be reelected by a majority vote; (2) the candidate receiving the
second highest number of votes in the final election for committeeman should serve
as an alternate; and (3) elections should be held to fill vacancies for'conimitteeman
and alternate when they occurred. Apparently it had been the practice in the last
cited situation to fill the vacancy by committee appointment. Kaiser arranged for
the documents to be run off on a mimeograph machine and distributed copies
thereof to Walker.
The special meeting with management was set up for 3:30 p. in. on Friday,
December 14, in the plant cafeteria. Prior thereto, as was the practice, the Com-
mittee met in the same room at 2:30 p. in. and discussed the proposed revisions
in the bylaws. The committee representatives voted almost unanimously in favor of
the changes. At 3:30 p. in., Kaiser and Works Manager Eichelsbach entered the
meeting and were informed of the result of the Committee vote concerning the
changes in the bylaws. The committee representatives also added two other pro-
posals at this time. The first permitted new employees to vote in elections after a
90-day probationary period and the second provided that the newly elected chairman
should start his term on January 1 rather than immediately after the regular
December election.
According to Committee member Arthur Sutherland who testified for Respondent
herein, all the proposals were acceptable to the management representatives who
indicated no objection to any of them; however, there was some talk concerning the
phraseology. Sutherland claimed that he, himself, had suggested a change in one
item. Kaiser testified that Respondent met with the Committee concerning the by-
law changes because the Committee had requested it.
Kaiser further testified, and I find, that he arranged for the printing of the proposed
bylaws revisions subsequent to the December 14 meeting. It would seem that this
was the customary usage of management printing facilities by the Committee. Kaiser
promptly furnished Executive Vice President Egbert with a copy of the document on
December 17. This document reflects the five points taken up at the December 14
meeting, including the topic chiefly relevant to the present case, namely, the first item
which provided that the chairman "may be elected to succeed himself for more than
one year... . This was' apparently a sample ballot for it did not provide for the
nomination of candidates for office from the respective departments as the ballot
ultimately did. It appears that this other topic did not come up until December 18.
On Tuesday morning, December 18, Chairman Walker of the Committee, ap-
parently unaware that the ballots had been printed, telephoned Kaiser, ascertained
that he was not in, and asked Kaiser's secretary to inform Kaiser that he, Walker,
wished to have the ballots prepared by Respondent in time for the employees to hold
their nominating election on the following day, December 19. There is a conflict
between Walker and Kaiser as to what took place next. According to Walker,
Kaiser's secretary informed him in the same conversation that Kaiser was approach-
ing She then told Kaiser, this being audible to Walker over the telephone, that
Walker wished to talk with him. Kaiser allegedly replied that "We don't want an
election" and that his secretary should tell Walker that she had been unable to con-
tact Kaiser. Walker later testified that Kaiser had said nothing about not wanting
an election but did say that he did not wish an election bulletin posted at that time.
According to Kaiser, the call came in at the indicated time but he told his secre-
tary that he did not wish to speak with Walker at that moment because he was about
to leave for a luncheon engagement with a business acquaintance. I credit Kaiser's
version of the incident which, in view of Walker's self-contradiction here and con-
tradiction elsewhere, impresses me as the more reliable version. And, in any event,
precisely what was said is not controlling herein. What is relevant is that Walker
jumped to the conclusion that Respondent was seeking to delay an election. He
sought out Committeeman Arthur Sutherland and informed him of his fear. Suther-
land testified that he.suggested they contact Vice President Egbert and the men tele-
phoned Egbert's office, an appointment was arranged for 1 p. in. that day.
McCULLOCH MOTORS CORPORATION 1723
This meeting was held as scheduled between the two committee members and
Egbert. At that time Egbert had before him the proposed bylaws revisions prepared
by Kaiser at the request of the Committee on the previous day; these are in evidence
as General Counsel's Exhibit No. 2. Walker told Egbert of his version of the at-
tempted telephone conversation with Kaiser that morning. He in effect claimed that
management was attempting to push the Committee around as though they were chil-
dren, and claimed that Kaiser was stalling in the preparation of the ballot. Egbert
pleaded ignorance of the telephone conversation with Kaiser and disputed the allega-
tion of stalling the election by pointing out that he had on his desk a sample ballot
furnished by Kaiser on the previous day.
At this point, Egbert brought up the language of the ballot; he stated, as Walker
testified on cross-examination, that its terminology was "confusing and it should be
changed." Egbert admitted doing so and further testified that he told the.men that,
as he viewed it, the employees had only two choices; namely, to retain the existing
1-year term for the chairman or to expand it. He recommended a multiple choice
of 1, 2, or 3 successive terms.
Egbert testified that both men agreed with his suggestions. Walker claimed that
neither he nor Sutherland indicated approval. Sutherland testified, however, that
Walker did not state any objections to Egbert's proposal; furthermore, as will appear
below, Sutherland testified that about 1 hour later he and Walker told Kaiser that the
revised ballot was acceptable to them. I find that the 2 committee representatives
did not oppose Egbert's suggestion on this occasion, that they adopted it, and I
credit Egbert's testimony that if the 2 men had not appeared on this occasion the
matter would not have arisen despite Egbert's concern over the ballot which he
admittedly had expressed to Kaiser on the previous day.
Egbert proceeded to telephone Kaiser in the presence of the two men. He in-
formed Kaiser, as the latter testified, that the two committee representatives had
agreed that the ballot should be changed consistent with Egbert's suggestion. One
hour later, the two men appeared in Kaiser's office and conferred with Kaiser and
Works Manager Eichelsbach. By then Kaiser had prepared an amended ballot
which changed the proposal that the chairman be eligible for reelection, with a vote
either for or against the issue, to a proposal with 3 possible votes; namely, the present
policy of 1 year; reelection for a second term of 1 year; and reelection for 2 more
terms of 1 year each. According to Kaiser, Sutherland stated that the change was
satisfactory and Walker, although noncommittal, asked that the ballot be prepared.
Sutherland, as set forth, testified that both men stated the ballot was agreeable
to them .4
Kaiser proceeded to have the ballots run off and turned them over to Walker on
the morning of December 19. The voting was conducted on the respective shifts on
company time and property and the results were 417 in favor of the existing 1-year
term , 216 in favor of 1 additional term, and 256 in favor of 2 additional terms. As
is apparent, a small majority did favor a change from the existing system but as the
largest number of votes was cast for the existing practice, this is still in effect. The
record demonstrates that Respondent has regularly adhered to a position that the
terms of office for committee representatives and the chairman should be brief so
that more employees can serve in official positions with the Committee. Indeed, in
November 1951, the Committee proposed at a meeting with management that the
existing 6-month term then served by shop representatives be extended to 1 year.
Management replied that it favored the existing term. Nevertheless, the Committee
then decided that if the Committee so wished, the matter would be placed before the
employees for a vote. Just when this was done is not disclosed, but the term was
later extended.
E. Conclusions
(1) Respondent has contended that the Committee is not a labor organization
within the meaning of Section 2 (5) of the Act; that it is merely a "channel of com-
munication" between Respondent and its employees; and that Respondent does not
bargain collectively with that organization in behalf of its employees.
Section 2 (5) of the Act defines the term "labor organization" to include "any
organization of any kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the purpose, in whole or
3 One proposal was dropped from the ballot prepared on the previous day under circum-
stances not disclosed herein ; this was the proposal dealing with the eligibility of employees
to vote after 90 days' employment by Respondent.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in part, of dealing with employers concerning grievances, labor disputes, wages, rates
,of pay, hours of employment or conditions of work." The Report of the Senate
Committee which considered the identical provision in the original Act demonstrates
that the term labor organization was purposely phrased "very broadly in order that
the independence of action guaranteed by Section 7 of the bill and protected by
Section 8 shall extend to all organizations of employees that deal with employers."
Report No. 573 on S. 1958, 74th Cong., 1st sess., p. 7.
Tested by the statutory definition in the light of the congressional intent, it is
indeed clear that the Committee constitutes a labor organization within the purview
of the Act. The minutes received in evidence disclose meetings between the Com-
mittee and Respondent at which there' was discussion of such matters as wages,
changes of hours, vacation plans, seniority, bonus plans and ventilation. Meetings
held within the 6-month period prior to the filing of the charge herein reveal discus-
sions of such questions as double time for maintenance employees for Sunday work;
new wage rate schedules; promotion of old employees to new classifications rather
than hiring new employees directly into them; announcement of a new apprenticeship
program; announcement of a general wage increase and the results of a wage survey;
the absence of medical personnel during weekend work; and sick leave pay.
Indeed, when the Charging Union herein, as part of its election campaign in
December 1955, issued a bulletin deploring the absence of a grievance procedure,
Respondent answered this with a bulletin which described how the Committee
handled grievances in such a manner as to make a formal grievance procedure
unnecessary. Respondent referred to the cases of a number of employees who had
been dismissed for cause and pointed out that each case "was reviewed by our per-
sonnel department, by at least two or more supervisors and your shop committee
representative. What more could any formal grievance procedure do that would be
any better?"
It 'is clear that Respondent equated the Committee with a labor organization by
portraying it as performing the functions normally carried on by a grievance com-
mittee, as was the case. It is apparent from the foregoing that the meetings taking
place within the 6-month period established by Section 10 (b) of the Act disclose dis-
cussions and negotiations concerning numerous aspects of wages, hours, and condi-
tions of employment, all relating to the future of the employer-employee relation-
ship and to conditions of work which had a collective rather than an individual im-
pact uron the employees. I find, therefore, that the Employee Relations Committee
is a labor organization within the meaning of Section 2 (5) of the Act. N. L. R. B.
v. Standard Coil Products Co., Inc., 224 F. 2d 465 (C. A. 1), cert. denied 350 U. S.
902; N. L. R. B. v. General Shoe Corporation, 192 F. 2d 504 (C. A. 6). cert. denied
343 U. S. 904; Indiana Metal Products Corporation v. N. L. R. B., 202 F. 2d 613
(C. A. 7): Texas City Chemicals, Inc., 112 NLRB 218; Nutone, Incorporated, 112
NLRB 1153: and California Cotton Cooperative Association, Ltd., 110 NLRB 1494.
(2) The General Counsel and the Union have ably argued that the Committee
is an employer dominated and assisted labor oreanization. And it is true that there
are a number of aspects of the relationship which in the past have been heavily
relied upon by the Board in arriving at the type of finding sought herein. On the
other hand, recent court decisions, and to some extent those of the Board, involved
cases where the facts were comparable to those in the present case, if not stronger,
but nevertheless findings of company domination and assistance were not made or
upheld.
In a recent expression on the subject, the Board pointed out that it has found
domination in cases where the emnloyer "not only furnished the original impetus
for the organization" but, in addition, there were present such other factors as
(1) the employer prescribed the nature, structure, and function of the organization;
(2) the oreanization never developed any real form such as a constitution, bylaws,
dues, or treasury, never held any meetings, and had no assets other than a contract;
or (3) representatives of management actually took part in meetings and activities
of the labor oreanization or attempted to influence its policies. Adhesive Products
Corporation, 117 NLRB 265.
In that case, a unanimous Board found that a company union was reactivated as
a direct result of the employer's unlawful interference, but refused to find that it was
employer-dominated. Certain minor types of assistance were found to constitute
unlawful assistance, although an exrress finding was made that employer presenta-
tion of management views at union meetings on business orders, plant rules, and
improvement in work did not constitute improper participation in the organization's
internal affairs.
McCULLOCH MOTORS CORPORATION 1725
By contrast, in the instant case, there is absolutely no link connecting Respondent
with the formation of the Committee. So far as the evidence discloses, the concept
of the Committee originated with the employees themselves. True, the organization
came into existence but days after an outside labor organization was defeated in an
election, but this is hardly evidence of employer instigation. The formation of the
Committee is equally compatible with a concept of employee origin and indeed this
record impels such a finding. Consequently, the basic requirement to a finding of
domination, namely, that the employer "furnished the original impetus," as stated
in the Adhesive Products decision, supra, is lacking. Finally, light clerical assist-
ance and minor aid, as set forth above, is hardly employer sponsorship or instigation.
Cf. The Summers Fertilizer Company, Inc., 117 NLRB 243.
The remainder of the case boils down to alleged assistance in two general areas,
(1) assistance in the use of office facilities and payment for time at bargaining
meetings; and (2) alleged attempts to control the operation of the Committee. Re-
liance is also placed upon the power of Respondent to eliminate union officials of
whom it disapproved by transferring them to other departments or shifts in the
plant or by discharging them, in which instances their representative status was lost-
As for the various meetings during the relevant 1955 and 1956 period set forth
above, they disclose discussions concerning the usual matters taken up by a bargain-
ing representative. They also disclose some insecurity on the part of the committee
representatives in that they presented for discussion matters not customarily raised
by a bargaining representative with an employer. Thus, at one meeting in September
1955, the committee representatives asked the employer for its views concerning the
addition of another member to the Committee; an opinion was duly submitted and
the Committee found merit in the suggestion. At a later meeting on January 2, 1956,
management proposed that service on the Employee Relations Committee be recog-
nized by awarding the same pin as that awarded for service on the recreation and
safety committees, in contrast with the existing practice of awarding different pins,
all presumably donated by Respondent. While the record disclo-es nothing con-
cerning these other organizations and they would appear to be unrelated to the
Employee Relations Committee, the fact still remains that it was merely a manage-
ment proposal on a trivial matter which the Committee accepted.
As for Respondent's alleged assertion of control over the bylaws of the Committee,
namely the incident of December 1956, it has been found that Respondent printed
the ballots or samples thereof pursuant to the request of the Committee; that Chair-
man Walker of the Committee sought out Executive Vice President Egbert and
claimed that Industrial Relations Director Kaiser was stalling on the election,
although the record indicates the contrary; and that only then did Egbert present his
view that the ballot was confusing because the employees had only 2 choices in-
stead of the 3 he suggested. And in any event, as found, the two Committee repre-
sentatives adopted Egbert's suggestion. While it is true that by this device the exist-
ing plan was not voted out, although it was actually a minority choice, the f'ct is that
there was and is nothing to prevent this organization from revising its bylaws if it
chooses to do so. The simple fact is that the committee representatives sought out
Respondent with respect to the election and that they then ac^epted Egbert's
suggestion concerning the ballot. This is not a case of their taking a definitive
stand and having Respondent's views imposed upon them which might cast this in
a different light.
With respect to the alleged power to eliminate union representatives by trans-
ferring them within the plant or discharging them, the record shows only that it was
exercised twice and there is nothing to disclose whether the idea originated with
Respondent or with the employee; a third incident was a voluntary relinquishment
of duties on the part of the representative. In other words, there is no evidence that
Respondent utilized this power so as to dominate the Committee and its
representatives.
A recent decision by the First Circuit Court of Appeals reflects considerable
thought both in the decision and in the concurrence (Magruder, C. J.) on this issue
in a case where the facts presented by the General Counsel against that employer
were even stronger than in the present case. Coppus Engineering Corporation V.
N. L. R. B., 240 F. 2d 564 (C. A. 1). In that case, the Board had ordered the
disestablishment of an independent labor organization known as The Shop Com-
mittee. There, as here, employees were paid for time spent on meetings during
working hours and beyond; ballots and office help were provided by the employer;
the rules of the organization did not provide for general employee meetings; there
were no dues or requirements for membership ; and the organization had only a set
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of rules comparable to the bylaws in the present case. Significantly, in that case
and unlike the present case, the record demonstrates that soon after an affiliated
labor organization lost an election the president of the employer suggested to a meet-
ing of employees that they form a permanent grievance committee. He left the
meeting and The Shop Committee was immediately organized.
The court noted that the printing and distribution of material by an employer
fora labor organization was not in and of itself a violation of the Act. In further
noting that the rules of the organization did not protect representatives serving
thereon from the employer's power to discharge them, the court agreed that without
such a provision the Committee "lacks the organizational strength and degree of
independence which might be desirable. Nevertheless the record shows that these
rules were drawn up solely by the employees." Such was also the case in the instant
proceeding. The court concluded that the record disclosed no more than "coopera-
tion by petitioner (the employer) and a possibility of company control" and that
this was insufficient to support the Board findings of domination and support and
the order of disestablishment.
The concurrence analyzed the problem as follows with considerable logic:
No doubt strong argument could be made that the resulting Shop Committee
was an inherently weak bargaining representative, and a feeble instrument for
conducting bitter economic warfare, as contrasted with a union affiliated with
a strong national labor organization. But it may be that the employees at this
particular plant did not feel the need of any different type of bargaining repre-
sentative. The choice was theirs, and the Act guarantees to them freedom to
exercise that choice, unimpeded by employer interference or coercion. If the
employees should freely choose a different bargaining representative, there is
no basis in the record for an inference that the company would drag its feet in
resistance to recognition of such a new bargaining representative, as the law
requires. . . In view of the inherent weakness of this Shop Committee as
a bargaining representative of the men, perhaps it can truly be said that the
management representatives hold the trump cards in any collective bargaining
negotiations.
The concurrence then characterized the instances of support, substantially the
same as those present herein and involving payments for meetings extending beyond
working hours,5 clerical help, and printing of ballots and minutes, as bordering on
the trivial and concluded that they did not warrant a cease and desist order in the
absence of a finding of domination and a resulting disestablishment order.
A similar result was arrived at by the Court of Appeals for the Seventh Circuit
in Chicago Rawhide Manufacturing Company v. N. L. R. B., 221 F. 2d 165 (C. A. 7).
The Board found that the employer had not dominated the independent, but that
there had been support, assistance, and interference. The court, in setting aside the
Board order, pointed out that mere cooperation by an employer with an independent
labor organization, its preference for such an organization, and the possibility of
employer-control over the labor organization was not enough. The court noted
that the possibility of such control was always present to some degree in an em-
ployer-employee relationship, but stated that "without evidence of the realization of
the potential, they do not furnish a substantial factual basis for an unfair labor
practice finding."
In N. L. R. B. v. Wemyss, 212 F. 2d 465 (C. A. 9), the court approved a Board
finding of assistance to an independent labor organization but rejected the finding of
domination. The enforced portion of the Board order was predicated upon the
employer's lack of neutrality in lending employer facilities and assistance to the
independent, and conferring an unequal advantage on that organization by execut-
ing a technically unlawful union-security contract with it, while, at the same time,
denying similar privileges to an affiliated labor organization; such disparity of treat-
ment is neither alleged nor established herein. The court stressed the formation of
the independent by the employees of their own volition, noted that the issue was the
state of mind of the employees and whether they had freely chosen the independent,
and stated:
In a case such as this where admittedly the employer furnished no financial sup-
port to the employees' organization and did not formally participate in its
5 This, of course, is restricted to payments for portions of meetings extending beyond
working hours, in accordance with the proviso to Section 8 (a) (2) of the Act.
McCULLOCH MOTORS CORPORATION 1727
administration, the question whether the organization is employer-dominated
depends upon the state of mind of the employees, . the question is whether
the organization exists as the result of a choice freely made by the employees,
in their own interests, and without regard to the desires of their employer, or
whether the employees formed and supported the organization, rather than
some other, because they knew their employer desired it, and feared the
consequences if they did not.
The court also drew attention to its earlier decision in Wayside Press, Inc. v.
N. L. R. B., 206 F. 2d 862 (C. A. 9), denying enforcement of a Board order where
it held that an employer's furnishing of facilities and assistance for the organization
of an inside union did not establish employer domination of that union, unless it
occurred in a setting of such manifest employer preference for the proposed in-
dependent union or hostility toward an outside union that it intruded upon the
freedom of choice which the Act was designed to secure to employees. It may be
noted that minor supervisors who were working foremen eligible for membership
in the union had participated in the organization of the independent and had assisted
in the preparation of ballots.
In an earlier case, N. L. R. B. v. Jay Company, Inc., 227 F. 2d 416 (C. A. 9),
the court approved a Board finding of domination, but drew attention to the issue
being the state of mind of the employees in the formation of the organization, that
is, had they formed it because their employer desired it and because they feared
the consequences of contrary action; both factors are missing in the present case.
In Detroit Plastic Products Company, 114 NLRB 1014, as in the instant case, an
independent union was formed after an affiliated labor organization lost an election.
The Board, citing the Chicago Rawhide decision, supra, found no domination or
interference with the formation or administration of the independent despite the
fact that the employer had rendered financial support, characterized as trivial, by
distributing ballots and pencils to the employees at a meeting during the time of
their organization.
By contrast, in N. L. R. B. v. Stow Manufacturing Co., 217 F. 2d 900 (C. A. 2),
cert. denied 348 U. S. 964, a much-cited decision where a Board order disestablish-
ing a dominated union was enforced, the Court noted that respondent had initiated
and sponsored an independent by organizing a series of monthly meetings, by
designating and controlling the times and places of meetings, and by fixing the
scope of the subject matter to be discussed, as well as by contributing financial support.
In sum, the evidence discloses that the formation of the Committee was devoid
of employer influence and that the employees apparently favor their present form
of representation because they have twice, in 1946 and 1955, rejected outside union
representation despite the obvious fact that their organization is an inherently weak
and feeble bargaining representative. Turning to the alleged items of assistance
and support, realistically viewed, they are no different than the minor services and
benefits so frequently made available to affiliated labor organizations either under
contract or custom. See N. L. R. B. v. Valentine Sugars, Inc., 211 F. 2d 317
(C. A. 5).
In view of the foregoing considerations, including the reasons expressed in the
Coppus Engineering decision, supra, I find that the alleged instances of support
"border on the trivial" and do not warrant "any order against respondent." Accord-
ingly, although the case is not free from doubt on the assistance and support allega-
tions, it is recommended that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent affect commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Employee Relations Committee and International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, UAW (AFL-CIO), are
labor organizations within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) and (2) of the Act.
[Recommendations omitted from publication.?