Mt. Clemens Metal Products Co.

National Labor Relations Board - Board Decisions

Mar 25, 1960

126 N.L.R.B. 1297 (N.L.R.B. 1960)

MT. CLEMENS METAL PRODUCTS COMPANY 1297
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, the Respondent has com-
mitted unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mt. Clemens Metal Products Company and International Union,
United Automobile , Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO. Case No. 7-CA-1814.
March 25, 1960
DECISION AND ORDER
On March 26, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, conclu-
sions , and recommendations, insofar as they are consistent with this
Decision and Order.
1. The Trial Examiner found that the Respondent dominated and
interfered with the formation and administration of, and assisted
and contributed financial and other support to, the Shop Committee,
in violation of Section 8(a) (2) of the Act. We agree with the Trial
Examiner to the extent of his finding that Respondent interfered with
the administration of the Shop Committee in violation of Section
8(a) (2) . 1
The Trial Examiner found, and we agree, that the 10(b) date gov-
erning this aspect of the case is January 16, 1958. However, while
recognizing that evidence of conduct which occurred prior to the
statutory 6-month period may be utilized solely as background to
1 The Respondent has requested oral argument As the record and briefs adequately
present the issues and the positions of the parties , the request for oral argument is
hereby denied
2 Respondent ' s brief to the Board concedes that the Shop Committee is a labor organiza-
tion within the meaning of the Board's Decision in Cabot Carbon Company and Cabot
Shops, Inc, 117 NLRB 1633, set aside 256 F 2d 281 (CA 5), reversed and iemanded
N L R B v Cabot Carbon Company and Cabot Shops , Inc., 360 U.S 203.
126 NLRB No. 154.
554461-60-vol 126 83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluate Respondent's conduct within the 6-month period, the Trial
Examiner, in arriving at his unfair labor practice findings noted above,
in fact gave independent and controlling weight to the role attributed
to the Respondent in the formation and administration of the Shop
Committee prior to January 16, 1958. Our basic disagreement with
the Trial Examiner stems from this improper reliance upon events
antedating the 10(b) date.'
When we look to the crucial events occurring after January 16,
1958, we find Jobsetter Long,4 by virtue of his election as one of five
representatives on the Shop Committee, participating in the adminis-
tration of the Shop Committee and serving on its negotiating commit-
tee with which Respondent continued to meet. This evidence, we
believe, even when evaluated against Respondent's conduct preceding
the 10 (b) date, falls short of supporting the Trial Examiner's ultimate
conclusions in toto. However, it warrants a finding under Board
precedent that Respondent interfered with the administration of the
Shop Committee in violation of Section 8(a) (2) and (1) of the Act.'
We so find."
2. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (1) of the Act by Jobsetter LaKies' threat that the plant
would be closed if the United Automobile Workers came in and by
Jobsetter Collins' threat that certain employees would be discharged
if the United Automobile Workers was unsuccessful in organizing
the plant?
ORDER
Upon the entire record in this 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, Mt. Clemens
Metal Products Company, Mancelona, Michigan, its officers, agents,
successors, and assigns, shall :
8 See Universal Oil Products Company, 108 NLRB 68; Arnica Drainage d Metal Prod-
ucts, Inc, et al, 106 NLRB 725 Tennessee Knitting Mills, Inc, 88 NLRB 1103
4 Without adopting the Trial Examiner', finding that Respondent conceded that em-
ployees "might possibly view the job setter as a representative of management," we
agree with his conclusion that Respondent's lobsetters are supervisors under the Act It
appears that jobsetters use their own initiative in assigning employees to machines,
they substitute for admitted upervisors, they are the "boss" and "in charge" of specific
groupings of 20-30 employees , they ieprii,:nd emulovices , and if they were not super-
visors, the ratio of supervisors to rank-and-file employees us ould be about 1 to 120
"Anchorage Businessmen 's Association . et at, 124 NLRB 662, Nassau and Suffolk
Contractors' Association, Inc, et al, 118 NLRB 174
0 As we do not find that the Shop Committee ssas dominated by Respondent, we shall
not adopt the Trial Examiner's recommendation that the Shop Committee be completely
disestablished
a Like the Trial Examiner we find that the general allegation in the original charge of
Jan•iarv 6, 19-)S, that Respondent violated Section 8(a) (1) of the Act, was sufficient to
support the complaint's allegations and our finding, that these threats uttered in July
and August 1957 were violative of Section 8(a) (1) See Crosby Chemicals , Inc, 121
NLRB 412, denied enforcement on oti;er grounds 274 F 2d 72 (CA 5)
MT. CLEMENS METAL PRODUCTS COMPANY 1299
1. Cease and desist from :
(a) Threatening to close its plant if International Union, United
Automobile , Aircraft and Agricultural Implement Workers of
America (UAW) AFL-CIO, is successful in organizing its plant or
otherwise threatening its employees with loss of employment if the
aforementioned labor organization is successful in organizing the
plant.
(b) Interfering with the administration of and assisting the Shop
Committee or interfering with or assisting any other labor organiza-
tion of its employees.
(c) Recognizing the Shop Committee, or any successor thereto,
as the representative of any of its employees for the purposes of col-
lective bargaining with respect to grievances , labor disputes , wages,
rates of pay , hours of employment , or other conditions of employ-
ment, unless and until the said labor organization has been duly
certified by the National Labor Relations Board as the exclusive
representative of such employees.
( d) In any like or related 8 manner interfering with, restraining,
or coercing employees in the exercise of the right of self-organization,
to form, join , or assist International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (UAW)
AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
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 Shop Com-
mittee as representative 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 employ-
ment, unless and until the said labor organization has been duly
certified by the National Labor Relations Board as the exclusive
representative of such employees.
(b) Post at its establishment at Mancelona , Michigan , copies of
the notice attached hereto marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director for the Seventh
8 No exceptions were filed to this narrow 8(a)(1) order recommended by the Trial
Examiner
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "I'uisuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region, shall, after being duly signed by Respondent's authorized
representatives, be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices not found to have
been committed herein.
CHAIRMAN LEEDOM 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, we hereby notify our employees that:
WE WILL NOT threaten our employees that we will close the
plant if the International Union, United Automobile , Aircraft
and Agricultural Implement Workers of America (UAW) AFL-
CIO, is successful in organizing it or otherwise threaten em-
ployees with loss of employment if the aforementioned labor
organization is unsuccessful in organizing the plant.
WE WILL NOT interfere with the administration of or assist the
Shop Committee , nor will we interfere with or assist any other
labor organization of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the right to
self-organization , to form labor organizations , to join or assist
International Union , United Automobile , Aircraft and Agricul-
tural Implement Workers of America (UAW) AFL-CIO, or any
other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act, as
modified by the Labor -Management Reporting and Disclosure
Act of 1959.
MT. CLEMENS METAL PRODUCTS COMPANY 1301
WE wiLL withdraw and withhold all recognition from the Shop
Committee as the representative of our employees for the purpose
of collective bargaining unless and until said Shop Committee
has been duly certified by the National Labor Relations Board as
the exclusive representative of our employees.
MT. CLEMENS METAL PRODUCTS COMPANY,
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
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard at Traverse City, Michigan, on Decem-
ber 9-12, 1958, inclusive, with all parties (except the Shop Committee) being rep-
resented by counsel. The complaint, issued on October 31, 1958, by the General
Counsel of the National Labor Relations Board and based on charges duly filed and
served, alleged in substance that Respondent had engaged in unfair labor practices
proscribed by Section 8(a)(1) and (2) of the Act by dominating, assisting, and con-
tributing to the support of the Shop Committee since on or about September 1, 1957,
and by engaging in various specified acts of interference, restraint, and coercion in
July and August 1957.
By its answer filed on November 7, 1958, Respondent denied the unfair labor
practices as alleged, denied that the Shop Committee was a labor organization
within the meaning of Section 2(5) of the Act, and denied that certain persons, by
whom it allegedly engaged in certain conduct, were supervisors within the meaning
of Section 2(11) of the Act.
The major issue as litigated was whether the Shop Committee was a dominated
and/or assisted labor organization, and the bulk of the evidence concerned the
formation and election of the Committee, Respondent's subsequent dealings with it,
and the status as supervisors vel non of certain individuals who played the leading
role in sponsoring, organizing, and serving as members of the Committee. Ruling
was reserved on objections to some of the testimony concerning the supervisory
status of the individuals in question. Those objections are now overruled, and the
testimony is received.
In its brief, Respondent raised for the first time a limitations question, under
Section 10(b), which will be disposed of before turning to the evidence.
The Section 10(b) Question
The original charge, filed on January 3, 1958, related solely to Respondent's
alleged discriminatory failure to recall three employees to work on and after Octo-
ber 15, 1957, though it contained the usual general allegation that, "By the above
and other acts," Respondent had violated Section 8(a)(1) and (3) of the Act and
had interfered with and coerced its employees in their exercise of the rights guar-
anteed by Section 7. An amended charge, filed on July 16, 1958, contained in
addition a claim that since on or about October 15, 1957, Respondent had domi-
nated and interfered with the formation and administration of, and furnished support
to, the "employee committee" in violation of Section 8(a) (2) of the Act.
The complaint abandoned completely the 8(a)(3) portion of the original charge,
though it alleged a course of interference, restraint, and coercion under Section
8(a)( I) beginning in July 1957, which was within the 6-month period preceding the
filing of the original charge.
Respondent contends in its brief that as the amended charge presented an en-
tirely new and independent cause of action, only that evidence concerning acts or
omissions which occurred within 6 months prior to the filing of the amended charge
can be considered or made the basis for finding an unfair labor practice. The
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends in reply (1) that Section 10(b) is a statute of limitations
which can be waived and that Respondent waived the defense by not pleading it or
by not raising it by motion or objection at the trial; (2) that the original charge, by
the general allegation of interference under Section 8(a) (1), encompassed assistance
and domination as alleged in the complaint; and (3) that in any case the record
contained independent evidence of assistance and domination within 6 months,
thereby making the unfair labor practices a continuing one.
(1) To support his first contention the General Counsel cites the Federal Rules
of Civil Procedure and the case of N L.R B v. A E. Nettleton Co., et al, 241 F. 2d
130 (C.A. 2). However, the provisions of the Federal Rules are made applicable
by the statute only as concerns the rules of evidence, so far as practicable (see
Section 10(b) ). Though the Federal Rules specifically require that the affirmative
defense of the statute of limitations be pleaded and provide that such defense is
waived if not raised by answer or motion, the Board's Rules and Regulations
(Series 7, Section 102.20) require a respondent only to admit, deny, or explain each
of the factual allegations of the complaint, and the only sanction provided is that
otherwise such allegations shall be deemed to be admitted to be true and may be
so found by the Board. The Board's Regulations governing the practice and pro-
cedures before it are plainly controlling; they are unaffected by any showing that
the rules and practice in the district courts are different.
Finally, Section 10(e) in foreclosing before the courts of appeal any objection
which was not urged before the Board, "its member, agent, or agency," will sup-
port no claim of a waiver since the defense is being raised at the Trial Examiner
level (contrary to the situation in the Nettleton case, supra), before any initial
decision and obviously in time for consideration both by the Trial Examiner and
the Board.
(2) The Trial Examiner rejects the contention that the general allegation of an
8(a)(1) violation encompassed such conduct as assistance to and domination of a
labor organization under Section 8(a) (2). The most that can be claimed for it
in the present situation is that it supported the allegations of the specific acts of
interference which were ultimately included in the complaint. But here, even more
clearly than in Knickerbocker Manufacturing Company, Inc., 109 NLRB 1195,
1197, the amended charge raised a new and separate cause of action which must
independently satisfy the limitations of Section 10(b).1 In Knickerbocker, the
Board, reversing Cathey Lumber Company, 86 NLRB 157, and subsequent cases,
acknowledged that its former broad interpretation had not been followed and was
contrary to the weight of judicial precedent, which it there reviewed.
The cases relied upon by the General Counsel (Triboro Carting Corporation,
117 NLRB 775; Talladega Cotton Factory, Inc., 106 NLRB 295; Raymond Pearson,
Inc., 115 NLRB 190) are inapposite. They all involved situations where the allega-
tions defined more precisely the conduct which the charges alleged in general terms
to violate certain sections of the Act or where the conduct was a mere continuation
of earlier conduct within the statutory period See, e.g., the Triboro case, supra,
at page 780. Indeed, in Triboro the Board, pointing to the consistent holdings of the
courts that the Board may not initiate complaints on its own motion, acknowledged
that some relationship is required between the charge and the allegations of the
complaint. If the present complaint be read only in the light of the original charge,
it is plain that the inclusion of assistance and domination of the Shop Committee as
a violation of Section 8(a) (2) would amount to the introduction of a new and
independent cause of action, on which it could be said that the Board was proceed-
ing on its own motion
(3) On ground (3) however, the General Counsel is on better footing, for the
record shows (as will appear from the findings, infra, at section III, D) that Re-
spondent's conduct concerning the Shop Committee continued down to the filing
of the amended charge and even to the issuance of the complaint. In order to
determine the status of the Committee both as a labor organization and as a domi-
nated labor organization, it is obviously necessary to consider all relevant evidence
concerning its formation and concerning Respondent's dealing with it. Section 10(b)
does not preclude this, for "testimony of prior or subsequent transactions which for
some reason are barred from forming the basis of a suit, may nevertheless be intro-
duced if it tends reasonably to show the purpose and character of the particular
1 Cf. National Licorice Company v N L R B , 309 U S. 350, where the court held that
the Board's complaint might cover unfair labor practices which were related to or grew
out of those alleged in the charge, or were of the same class , or were continuations of,
the violations set up in the charge.
MT. CLEMENS METAL PRODUCTS COMPANY 1303
transactions under scrutiny." Federal Trade Commission v. Cement Institute, et al.,
333 U.S. 683, 705.
Though no findings under Section 8(a)(2) can be based on any unfair labor
practices occurring more than 6 months prior to the filing of the amended charge,
the evidence of the prior events is admissible as relevant background for the evalua-
tion of events within the period. N.L.R.B. v. Sharpies Chemicals, Inc, 209 F. 2d
645, 653 (C.A. 6); N.L.R.B. v. General Shoe Corporation, 192 F. 2d 504, 507
(C.A. 6), cert. denied 343 U.S. 904; N.L.R.B. v. National Shoes, Inc., et al, 208
F. 2d 688, 692 (C.A. 2); Local Lodge No. 1424, International Association of Ma-
chinists, AFL-CIO, et al. (Bryan Manufacturing Company) v. N.L.R.B., 264 F. 2d
575 (C.A., D.C.). As the court said in Sharpies Chemicals, Inc, supra:
The original inception of the different organizations, together with the testi-
mony that they were still functioning, without much attempt on the part of
Respondent to show any basic change, had a material bearing upon the question
of how they were functioning after [the 10(b) date]. .. .
So it is here.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
I find on facts alleged in the complaint and admitted in the answer ( i.e., annual
extrastate sales and shipments exceeding $1,000,000) that Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits , and I find that the Charging Party
(herein called Union and UAW) is a labor organization within the meaning of
the Act.
I also find on the basis of the facts summarized under section III, D , infra, that the
Shop Committee as a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; the UAW drive; the 8(a) (1) incidents
Respondent's conduct which forms the subject matter of this case began shortly
after the start by UAW in July 1957, of an abortive campaign to organize Respond-
ent's Mancelona plant, at which some 290 employees were employed. Earlier at-
tempts by UAW and by other unions in years past had also been unsuccessful.
For some 6 or 7 years prior to the 1957 campaign, some form of employee com-
mittee had existed and had conferred at irregular times with management about
grievances and about various aspects of working conditions, but its real status had
been doubtful and questionable for some 2 or 3 years and it had lost any effectiveness
it might have possessed as a representative of the employees. Although originally
some 15 or 16 representatives were chosen informally by the employees from their
respective departments, the committee dwindled soon, through inaction of its mem-
bers, to a point where there were only 2 or 3 active members, including to the end
Ed Holland and Nancy Gaylord. The record showed that by the summer of 1957
there was considerable dissatisfaction among the employees with the committee, and
that the committee was dissatisfied in turn because it felt that the Company was not
actually bargaining with it.
It was in that setting that UAW opened its campaign. William Treadgold, an
International representative, came to Mancelona early in July and left authorization
cards with certain employees. A meeting was later held at the home of Nancy
Gaylord, who, along with Holland, was made a member of UAW's organizing
committee; and thereafter Treadgold returned in early August to continue his organ-
izational efforts. He and other nonemployees distributed handbills outside the
plant on August 6, and on August 14 meetings of employees were held, on separate
shifts, at the public library.
The campaign proved unsuccessful. Treadgold testified that the drive slowed
down considerably the latter part of August because of layoffs at the plant; he
admitted that he did not procure signed authorizations from a majority of the
employees and that he made no request for recognition and filed no representation
petition.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent became aware of the organizational activities not only through the
distribution of the handbills but through the wearing by employees within the plant
of various types of UAW insignia . Furthermore , the activities became the subject
of certain discussions within the plant.
Yvonne Peck testified that in July there was a discussion among some of the
employees in Jobsetter Fred LaKies' presence as to whether the Union would be
successful in getting into the plant and that LaKies stated that the Company would
close the shop before it would let the Union come in. Genevieve McGuire testified
that on or about August 28 , 1957, following a conference in the foreman 's office
concerning the layoff of employees out of seniority , Jobsetter Ruford Collins told
her that if the Union was unsuccessful in getting into the plant, Nancy Gaylord
and others would be discharged . Neither Collins or LaKies was called to controvert
the above testimony , which plainly established a violation of Section 8 (a) (1), if the
conduct is chargeable to Respondent.
There was also testimony by Teresa Winston and Assistant Manager Keller con-
cerning a conversation between them around August 10 or 11, which, though not
relied on as Section 8(a)( I) violation , was relevant to show the contrasting treat-
ment accorded UAW and the organizers of the Shop Committee . Winston, who
was on the UAW organizing committee and who was known to Keller to be active
in the campaign , had some argument with two fellow employees concerning UAW
which had reached Keller's attention . Although Keller admitted that the other
employees informed him that they had settled their differences with Winston,
Keller also talked with her, inquiring whether she was doing any organizing on
company time and reminding her of the company rule which forbade it . Winston
testified that Keller also stated that the employees had as much right not to
belong to a union as to belong to one and that he inquired what it was the
employees were dissatisfied about, why they wanted to organize , and why they did not
have a new committee . Keller could not recall making the suggestion about
electing a new committee , but his testimony otherwise confirmed the bulk of
Winston 's, which is fully credited.
Concurrently with the failing efforts of UAW, a movement arose within the plant
to form an employee committee to deal with management , and a petition was
circulated and elections were held to that end . As the ultimate findings, particularly
on domination , will turn mainly on the status as supervisors of jobsetters ( also called
setup men) and inspectors , some of whom initiated and circulated the petition,
conducted the elections , and ultimately served as employee representatives on the
Shop Committee , the question whether they were supervisors or representatives of
management will be first disposed of.
B. Jobsetters and inspectors as supervisors
The duties and status of the jobsetters and the inspectors were litigated at great
length. The following facts are relevant to determination of the status of both.
Respondent 's top management official at Mancelona was Gerald Richardson, plant
manager. His assistant manager, Boyd Keller, and plant superintendent, Edsel
Bandlow, shared an office in a part of the production area
At the time of the elections there were a total of approximately 290 employees,
269 of whom were employed on hourly rates ( 95 female, 174 male), and at that
time the plant was operating on three shifts , morning, afternoon , and "midnight."
The first two shifts were operated on a "swing " basis, changing every 4 weeks, with
the foremen , the jobsetters , the inspectors , and the employees usually "swinging"
together.
The bulk of the employees were employed as machine operators ,2 with some 85
to 90 on each of the day shifts and some 25 to 35 on the midnight shift. The
operators worked in the production area, which was approximately 100 feet by 20t1
feet , on lines of machines which were about 54 inches wide and which varied in
height from 5 feet to 12 or 14 feet.
There was a single foreman over the machine operators on each of the two swing
shifts ( Milford Frederickson and William Buckwheat) and four jobsetters for each
shift. A "senior" jobsetter , Robert Ellsworth was in charge of the machine operators
on the midnight shift, and while so serving Ellsworth was paid an increased hourly
rate and was called an "acting foreman ." The jobsetters worked under and were
directly responsible to their foremen ; they were assigned to a definite area of opera-
tions and to definite groupings of employees , from 20 to 30 in number.
2 There were a number of miscellaneous classifications such as toolmakers , crib girls,
millwrights and machine repairmen , electricians and carpenters , receiving and shipping,
and plating which accounted in the aggregate for some 60 -odd employees
MT. CLEMENS METAL PRODUCTS COMPANY 1305
There were also two inspectors on each of the day shifts, one called a plant
inspector and the other a dock inspector (at the shipping stage ), and there was
also at times an inspector on the midnight shift. The inspectors worked directly
under the supervision of Superintendent Bandlow; they were not answerable to
the foremen.
1. The jobsetters
Aside from functions relating to the employees themselves, the jobsetters's job was
concerned with keeping the machines running, changing or replacing the dies in the
presses, and making such minor repairs as did not require work by repairmen in the
toolroom. In cases of breakdowns or machine stoppages for any reason (e.g.,
depletion of stock, completion of orders) the jobsetters transferred the operators
to other machines or to other work. Thus the evidence showed that the jobsetters
frequently assigned the operators to particular machines, transferred them from one
machine to another, sent them to the inspection area in case of breakdowns or other
stoppages, ordered their return from inspection when the work was ready, and
assigned relief operators during relief or rest periods or emergency periods when
an operator might leave his machine for a few minutes.
Respondent's witnesses attempted to minimize the frequency and the importance
of the above, contending that the foreman was usually available, that he made the
decision, and that the jobsetter was merely acting as a conduit or messenger. They
also contended that the foreman made in all cases the assignments to new or first
jobs, and that though jobsetters some times later reassigned the operators when break-
downs or stoppages occurred, it was only in cases where they were fully acquainted
with the capabilities of the operator and that otherwise they checked first with the
foreman . That testimony was wholly unpersuasive in the light of the entire evidence,
including testimony by certain employee witnesses as to their experiences. Yvonne
Peck testified, for example, that in the 10 months of her employment there were only
two occasions when Frederickson, her foreman , assigned her to the job she was to
work on and that it was the jobsetters, Fred LaKies and Howard Long, who gave
her her assignments, including the initial assignment after she was hired. Arleen
Lynn testified that she took her orders and directions from LaKies, whom she con-
sidered to be a foreman or "the boss" on the job.
There was also slight dispute under the evidence that the jobsetters acted in the
place of the foremen whenever the foremen were absent for any reason, e.g., illness,
vacation, or during lunch periods ( as on the afternoon shift). No foreman was
present on the midnight shift; it was supervised solely by a senior jobsetter, i.e., Ells-
worth. Respondent itself formally notified the employees of the supervisory status
of jobsetters in the absence of the foremen. Thus on March 29, 1957, Keller issued
and posted the following "General Notice."
Senior jobsetters Howard Long, Francis Welliver, and Gordon Soulliere will
be held responsible for proper operation of all production departments on their
respective shifts in the absence of the foreman 3
Further recognition that the jobsetters acted for management vis-a-vis employee
problems was contained in the following minutes of the meeting of November 26,
1957, between management representatives and the Shop Committee:
It was stated that when jobsetters are unable to give answers to certain problems,
such problems were to be brought to the foreman's attention for clarification.
[Emphasis supplied.]
The evidence showed further that on one occasion Jobsetter Ruford Collins was
an active participant on management's side in a meeting in the foremen's office
during which Nancy Gaylord presented, as a member of the old committee, a
grievance concerning the making of layoffs out of seniority. Ellsworth was also
present during that meeting.
Thus the entire evidence showed not only that the jobsetters in fact had and that
they exercised supervisory authority, but that Respondent held them out as repre-
sentatives of management. Indeed Respondent's counsel conceded in argument at
the close of the hearing that the employees "might possibly view the jobsetter as
a representative [of management]." And though the argument is made in Respond-
ent's brief that "the evidence shows that the employees did not consider that the job-
setters had any substantial authority" [emphasis supplied], no direct contention was
made that they were without supervisory authority or status, but it was contended
8 Bandlow was unable to explain the distinction between the so-called "senior" jobsetters
and the others, and testified that he just called them all jobsetters.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Section 8(a)(1) statements which were attributed to the jobsetters were
"isolated statements" made "by minor supervisory employees."
It is therefore concluded and found that the jobsetters were supervisors within
the meaning of the Act, that Respondent had in any case clothed them with apparent
authority to act as representatives of management, and that the employees had just
cause to believe that they were acting for and on behalf of management Harrison
Sheet Steel Co, 94 NLRB 81, 82, enfd. 194 F. 2d 407 (C.A. 7); Birmingham Post
Company v. N.L.R.B., 140 F. 2d 638, 639-640, and cases there cited; and see
Stedfast Rubber Company, 91 NLRB 300, 306-307.
2. The inspectors
The inspectors's job was concerned primarily with the quality of the output of
the machines and secondarily with the salvaging of faulty parts. In performing
their primary function the inspectors were constantly engaged in checking the parts
produced by the machines for the purposes of detecting and rejecting faulty parts,
particularly those whose defects were not visible to the naked eye. With one minor
exception noted below, they had no supervision over the operators or over employees,
though they reported to the foremen if a particular operator was producing excessive
scrap or bad parts, which action might lead to the issuance of a warning notice.
There were also isolated instances where an inspector made recommendations that
operators be transferred to other work, in one case because of defective eyesight, but
the record did not establish that such recommendations were a part of the inspectors'
functions or that they were regarded by the foremen as being effectively made.
Faulty parts were removed to an inspection area where they were sorted by visible
inspection, the good from the bad, with the bad being scrapped and the good being
later put through certain salvage operations. The actual sorting, a routine operation,
was done by women operators whose machines were temporarily shut down. Though
while they were so engaged, the women employees were under the inspector's instruc-
tion, the evidence established that his authority was routinely exercised, and there was
no evidence, as in the case of the jobsetters, that the employees themselves regarded
the inspectors as "foremen" or as "bosses" or otherwise looked upon them as repre-
sentatives of management. The real direction and control of the women remained in
the foremen and the jobsetters, who sent them to the inspection area, who ordered
them back when needed, and who assigned them to the actual salvaging operations
on faulty parts which were susceptible of salvage.
Notices issued by Respondent concerning the duties of the inspectors did not, as
in the case of the jobsetters, indicate that they were acting in a supervisory or man-
agerial capacity, but only that their job was primarily concerned with catching
and stopping the production of faulty parts. Though that involved supervision in
a sense, i e., of the output of the machines, it was not the kind of supervision en-
visioned by the statute, i.e., of the employees who operated the machines and who
were subject, instead, to the authority and control of the foremen and the jobsetters.
It is therefore concluded and found that the inspectors were not supervisors
within the meaning of the Act, and that the evidence otherwise failed to establish
that they acted or were held out as, or that they were regarded by the employees as,
representatives of management.
C. The petition; the elections
During the last week of August, the following petition was circulated throughout
the plant on all shifts during the worktime both of the solicitors and the employees:
WE THE UNDERSIGNED WISH TO VOTE FOR A COMMITTEE OF
SIX (6) EMPLOYEES TO REPRESENT US AT MANAGEMENT-LABOR-
RELATIONS.
1. Toolroom 4. Women's Department
2. Maintenance 5. Plater Department & Dock
3. Operators 6. Job Setters & Inspectors
The evidence established that Francis Lane and Kenneth Quance, inspectors, and
Fred LaKies and Mike (Al) St. John, jobsetters, were among a group of some eight
persons who conferred and decided upon the plan and who collaborated in wording
the petition, that Lane thenceforth took the lead in writing it up and having it typed
by one of the crib girls, that Lane and Quance participated in and directed its circu-
lation among the employees, and that another inspector, Arthur Alexander, also
participated in the solicitation of signatures. Lane and Quance were themselves the
first 2 signatories, and Howard Long, jobsetter, was among the first 10. Other sig-
MT. CLEMENS METAL PRODUCTS COMPANY 1307
natones included Jobsetters Francis Welliver, LaKies, and St. John. A total of 163
signatures were obtained, representing roughly 60 percent of Respondent's work force.
Though Respondent's published rules forbade "collections, solicitations, petitions,
or sales of any sort, or for any purpose" on company premises without the prior
approval of the plant manager or superintendent, no such approval was sought or
obtained. Indeed, Keller, Bandlow, Frederickson, and Buckwheat denied having
seen the petition or having been aware of its circulation That testimony, however,
contrasted sharply with their other testimony concerning the alleged presence and
availability of the foremen for consultation with and direction of the job setters on
all, or practically all, decisions involving the assignment and transfer of the machine
operators, including even the assignment of relief operators during brief absences
of the regular operators in the restrooms. In view of the open circulation of the
petition during worktime throughout all departments and on all shifts, it is incredible
that Respondent's foremen and superintendents could have remained unaware of it,
despite their professed ignorance. Aside from the foregoing, of course, Respondent
was charged both with knowledge and responsibility for the petition and its circula-
tion because of the part which LaKies and St. John had played in initiating the peti-
tion and because of its open endorsement by them and by Long and Welliver.
The evidence is undisputed that to the extent that the actual preparation and
circulation of the petition occurred during worktime (and most of it did) Respondent
paid for such time at the regular rate (including the overtime rate where involved)
and that the stationery and other materials used were Respondent's.
On September 3, Lane and Quance (and possibly another employee) presented
the petition to Keller and requested permission to hold an election in the plant in
order to reach a larger percentage of voters. Keller stated that he would check
into the matter and notify them if permission was granted. Keller in fact checked
with Respondent's Detroit office, and informed Lane and Quance a day or so later
that their request was granted. Upon their request, Keller also posted a notice,
dated September 5, granting permission to proceed with the election.
Thereupon Lane and his associates drafted and posted a notice to the employees
which solicited nominations and which contained lines for the insertion of the
names of candidates. For some 3 days the employees entered nominations thereon
as they came and went in the shop, and ultimately some 90 entries were made.
There was evidence that a spirited election campaign ensued within the plant, with
the posting of stickers, notices, and other material. Though Holland and Gaylord
were candidates, they did not run or campaign as UAW candidates, and there was
no evidence that UAW took any part in the campaign on behalf of any candidate.
Indeed, in a flier dated September 30, UAW warned the employees about the futility
of electing an employee committee to deal with management.
On October 1, Lane drafted and posted the following notice on the time clock:
FELLOW EMPLOYEES
PENDING YOUR GENERAL APPROVAL IT SEEMS THAT IT WOULD
BE BEST TORUN OFF A PRIMARY BALLOT TO NARROW DOWN THE
NUMBER OF NOMINEES FOR REPRESENTATIVE FROM EACH
DEPARTMENT.
WITH THE PRIOR APPROVAL OF THE COMPANY THE PRIMARY
WILL BE HELD FRIDAY OCTOBER 4TH, 1957, FROM 2:30 P M. UNTIL
4:30 P.M. THIS WILL GIVE EVERYONE A CHANCE TO VOTE.
EACH EMPLOYEE WILL RECEIVE ONE BALLOT WHICH WILL
CONTAIN THE NAMES OF ALL NOMINEES LISTED UNDER THE
DEPARTMENT IN WHICH THEY WORK
YOU WILL THEN MARK YOUR BALLOT FOR THE ONE PERSON
FROM YOUR DEPARTMENT THAT YOU WISH TO ACT AS YOUR
REPRESENTATIVE.
THE NAMES OF THE TWO PERSONS RECEIVING THE MOST VOTES
FROM EACH DEPARTMENT WILL BE PLACED ON THE FINAL ELEC-
TION BALLOT.
DO NOT VOTE FOR MORE THAN ONE.
BE SURE TO VOTE FOR NOMINEE IN YOUR DEPARTMENT.
In preparation for the primary, Lane requested permission from Keller to have
the ballots printed on Respondent 's mimeograph machine, and Keller in fact had
them run off on the machine by someone in the office . Though the record does not
establish the number , presumably about 300 ballots were run off, since there were
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 269 prospective voters. Though the original petition had specified
the toolroom as one of the six departments from which a representative would be
chosen and though nominations were made for that department , it was omitted from
the ballot because some dissatisfaction had arisen there as to the contemplated form
of representation.
The election was held at the time specified in the notice, in the hall room or
entrance to the shop . The equipment used ( ballot box, screen , etc.), were company
property. Lane and Quance conducted the election on the first shift, and stayed on
until 3:30 before punching out. The second shift voting was conducted by George
Griffore and Arthur Alexander , inspectors ; and one of the women machine operators
assisted , apparently on both shifts, by checking off the names of the voters from the
Company's seniority list and by handing out the ballots . All the time spent as above
in conducting the election was recorded and paid for as worktime.
As voting began at 2:30 , those of the first shift workers who voted before 3 p in.
voted during worktime , as did those on the second shift who voted after 3 p.m.
Furthermore , the evidence showed not only that the foremen were aware that the
employees were voting on worktime , but at their direction the voting was staggered
among some of the machine operators so that adequate relief was available.
Following the election , and again on worktime , the ballots were counted by Lane,
Quance, and three other employees , who certified the results and listed the names
of the two candidates receiving the largest number of votes in each department.
Lane handed a copy of the certification to Keller to have it typed and posted.
The runoff election was held a week later on October 11, under circumstances
substantially identical with the first one except that different persons participated
in conducting the election and certifying the results . A mimeographed ballot was
again run off by the Company . On -Monday or Tuesday following the runoff, the
results, posted on the time clock , showed that the following representatives had been
elected : Operators -male, Don Jones ; plating and dock , Grandville Medley; operators-
female , Erna Moore; inspection and jobset , Howard Long ; and maintenance, Rex
Southwell . Check lists of the voters showed that several of the jobsetters (Ellsworth,
Long, Gordon Soulliere , Welliver , St. John , LaKies, and Collins ) participated in one
or both of the elections.
D. The Shop Committee ; its dealings with management
The Committee held no organization meeting, elected no officers or chairman,
and held no meetings with the employees . It kept no minutes , charged no dues, had
no records , no constitution or bylaws, and no treasury or assets . It did , however,
hold regular monthly meetings with Respondent 's representatives , Keller, and Henry
LaCroix, Jr., office manager, at which it negotiated concerning a wide variety of
matters concerning wages, hours, and conditions of employment . Respondent con-
cedes in its brief that the time spent by the committee members in the meetings
was treated as worktime and paid for as such.
LaCroix took full notes of all matters covered during the discussions , and Keller
himself later expanded them into full formal minutes of the meetings , copies of
which were distributed to all members of the Committee , who were asked to suggest
corrections and who sometimes did so. The minutes for the first two meetings
were signed by the representatives on both sides to reflect their approval, but the
practice of signing the minutes was then abandoned . The employees were notified
of the results of the meetings by the posting of a copy of the minutes , but otherwise
the Committee made no reports to the employees except to the individuals who
had raised questions or who had filed grievances . The minutes themselves consti-
tuted the only written evidence of the agreements which were reached.
The breadth of the matters which were brought into the negotiations is reflected
by the minutes for the first meeting , held on October 17, which showed that the
following subjects were discussed , and that agreement was reached on a number of
them: The holding of regular monthly meetings ; the holding of additional meetings
where requested on at least 1 day's notice; the keeping of notes at the meeting; a
wage increase ; a pension plan; a change in the payweek; overtime pay for Saturdays
before and after vacations ; provisions for lessening chemical fumes around the
plating tanks; and ( apparently one complaint from the company side) matters con-
cerning the proper use of towels and gloves by employees and the excessive use of
the restrooms by women employees.
Though subsequent meetings usually did not involve as many subjects, the
minutes showed that they were concerned with subjects of the same kind and that
there was discussion and negotiation . The minutes for October 30, for example,
MT. CLEMENS METAL PRODUCTS COMPANY 1309
showed that agreement was reached on the change in the workweek as proposed in
the preceding meeting and contained ( in part ) the following:
At our first meeting the committee presented a wage proposal which was
discussed at some length and then held over for further thought and discussion
at our second meeting on October 30th, 1957. Further discussions at this
second meeting resulted in the granting of wage adjustments ranging from
seven (7) to ten (10) cents per hour to be effective Monday November 4th,
1957.
It was clarified that there was a clause in the proposed pension plan, which
was turned down by the employees, that any premiums accrued by a partici-
pating employee were protected and did not revert back to the company in case
of termination.
It was agreed that a payroll savings plan could be arranged and was pres-
ently being worked upon. [Emphasis supplied.]
As time went on other matters concerning employee rights and working conditions
were raised, discussed, and considered in the meetings. Indeed, the minutes showed
no change after January 16 (the Section 10(b) date) either in the makeup of the
Committee or in the type of matters brought under consideration. A proposed
payroll savings plan, for example, which had been discussed as early as October 30,
was brought up by employee representatives in the January 8 meeting , and the
minutes for the next meeting on January 29, showed the following disposition of it:
A company payroll savings plan was outlined, with the plant representatives
approval, and put into effect immediately. [Emphasis supplied.]
A question concerning overtime pay for Saturday work was also disposed of in
the same meeting.
In the February 12 meeting the Company stated that it had corrected a matter
(apparently raised at an earlier meeting ) of rehiring a person who had overstayed a
leave of absence. Other matters which were brought into the discussions in meet-
ings after January 16 included seniority and employee rights on layoff and recall,
downgrading, a cost-of-living proposal, maternity leave, group insurance , disability
insurance , a Christmas bonus, and a wage raise.
Though Respondent points to Keller's testimony in which he sought to minimize
the extent of actual negotiation in the meetings and in which he emphasized that
Respondent decided and acted unilaterally on all matters in the same manner as it
had with the old committee, that testimony was refuted by the formal record of
the meetings which Keller himself prepared. Furthermore, were Respondent's
version of its dealings with the Shop Committee accepted literally, there could be
no question but that the organization was a dominated one.
E. Concluding findings
The contention that the Shop Committee is not a labor organization may be
summarily disposed of. The Board has recently rejected a similar contention in
The Multi-Color Company, 122 NLRB 429, concerning a "grievance committee"
whose functions were more limited and whose dealings with management were on a
less formal basis than those of the Shop Committee here. See the Trial Examiner's
Intermediate Report (adopted by the Board) and the cases there cited. The Tnal
Examiner there considered and declined to follow Cabot Carbon Company, et al. v.
N.L.R.B., 256 F. 2d 281 (C.A. 5), on which Respondent relies so heavily here.
See also Pacemaker Corporation, an Indiana Corporation v. N.L.R.B., 260 F. 2d
880, 883 (C.A. 7), where the Seventh Circuit similarly rejected the Cabot Cal-ban
case, with the observation that it is contrary to many decisions of its own and of
other circuits.4 Whatever status the old committee may have possessed is, of course,
beside the point, for whether it was or was not a labor organization, the evidence
showed that the Shop Committee itself plainly qualified as such.
The findings previously made that the jobsetters were supervisors and representa-
tives of management are dispositive of the issues concerning Respondent's commis-
sion of unfair labor practices. Respondent was thus responsible for the threats made
by Jobsetters LaKies and Collins, respectively, to employees Peck and McGuire
(see section A, supra), that the plant would be closed if the Union came in, and
that Gaylord and other employees would be discharged if the Union were unsuc-
cessful in coming in. By such threats Respondent interfered with, restrained, and
4 See, e.g ., N.L R.B v. General Shoe Corporation, supra, and N.L R.B. v. Sharpies
Chemscals , lac, 209 F 2d 645, 653 (C A 6)
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced employees in the exercise of the rights guaranteed in Section 7 and thereby
engaged in unfair labor practices proscribed by Section 8(a)(1).
Similarly the evidence summarized under sections C and D , supra, established,
and it is hereby found, that Respondent dominated , interfered with the formation
and administration of, and contributed support to the Shop Committee . Through
the active participation of the jobsetters in the group whose conferences culminated
in the planning of the committee form of representation and in the drafting of the
petition , and through the personal endorsement of the petition and participation in
the election by the jobsetters , Respondent itself had an active hand in sponsoring
and forming the Committee . Furthermore , by permitting the jobsetters to elect
one of their number to membership on the Committee , Respondent placed a repre-
sentative of its own on the employee side of the table.
Such conduct has long been held to constitute domination within the meaning of
the Act. Indeed, it was that very conduct at which Congress aimed Section 8(2)
of the original Act for the purpose of compelling employers to disestablish company
unions as representatives of their employees See N.L .R.B. v. Pennsylvania Grey-
hound Lines , Inc, 303 U.S . 261, 267. As Congress pointed out and as the court
agreed , collective bargaining is "a sham when the employer sits on both sides of
the table Eby supporting a particular organization with which he deals ." Id., p. 268.
Such an organization is incapable of functioning as a bargaining representative of
the employees ; it cannot possibly 'become the means of true collective bargaining,
since management 's own representative purports to act for the employees.
Aside from the foregoing , the evidence here plainly showed assistance and sup-
port by Respondent to the Committee through aiding and permitting the circulation
of the petition in the plant and on worktime , through permitting all subsequent or-
ganizational steps, including the campaigning and the elections , to take place on
company time and property ,5 through payment both to the organizers and the em-
ployees for such time , and through the donation of company facilities, supplies, and
services ( i.e., the mimeographing of the ballots by an office employee) at the
various stages of organization.
There was no showing that the vices which were inherent in the original inception
of the organization have been in any wise abated. To the contrary Respondent has
continued to deal with the Committee , to a time subsequent to the filing of the com-
plaint, on the same basis which it had from the beginning , and Respondent made no
showing either of any basic change in the Committee or of the manner of its func-
tioning. N .L.R.B. v. Sharples Chemicals , Inc., supra . Indeed, to the extent that
the evidence indicates that, as time went on , Respondent resorted more frequently
to unilateral action in disposing of matters which were brought nip in the meetings
with the Committee , it is only confirmatory of the finding that the Committee was
under Respondent 's domination.
Though the earlier evidence has been fully considered because of its material
bearing on the question of how the Committee continued to exist and to function, the
findings of unfair labor practices under Section 8(a) (2) will be limited, of course,
to those which occurred within 6 months prior to the filing of the amended charge.
It is, therefore , concluded and found that Respondent has, since January 16, 1958,
dominated and interfered with the formation and administration of, and assisted
and contributed financial and other support to, the Shop Committee, 6 and thereby
engaged in unfair labor practices proscribed by Section 8(a)(2) and (1).
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act.
Since I have found that the Shop Committee is incapable of functioning as a
bargaining representative of the employees , I shall recommend in part that Respond-
ent completely disestablish it.
Inasmuch as the record herein does not establish such a propensity on Respond-
ent's part for the commission of unfair labor practices as would warrant a board
5 Compare Keller ' s reprimand of Winston for mere proumon talk on behalf of UAW
U In view of the proviso to Section 8(a) (2), the foregoing finding is not based on any
payment to members of the Shop Committee for time spent during regular working hours
in meetings with management Aaelson Manufacturing Company, 88 NLRB 761, 778;
Coppus Engineering Corporation , 115 NLRB 1387, 1392.
CONVAIR-POMONA-A DIVISION OF CONVAIR 1311
cease and desist order, the recommendation herein will be limited to any like or
related conduct. Cf. The Multi-Color Company, 122 NLRB 429.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO, and the Shop Committee are labor or-
ganizations within the meaning of the Act.
2. By threatening to close the plant if the Union should come in and by threaten-
ing to discharge certain employees if the Union was not successful in coming into
the plant, Respondent interefered with, restrained, and coerced employees in the
exercise of the rights guaranteed by Section 7 of the Act and thereby engaged in un-
fair labor practices proscribed by Section 8(a) (1).
3. Respondent has, since January 16, 1958, dominated and interfered with the
formation and administration of the Shop Committee and has assisted and con-
tributed financial and other support to said Committee, thereby engaging in unfair
labor practices proscribed by Section 8(a)(2) and (1).
4. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent's !business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
Convair-Pomona-A Division of Convair , a Division of General
Dynamics and Associated Tool and Die Makers of America.
Case No. 21-CA-3586. March 25, 1960
DECISION AND ORDER
Upon a charge duly filed on June 1, 1959, by Associated Tool and
Die Makers of America, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional Director for
the Twenty-first Region, issued a complaint and notice of hearing
dated June 17, 1959, against Convair-Pomona-A Division of Con-
vair, a Division of General Dynamics, herein called the Respondent,
alleging that the Respondent had engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (5) and (1)
of the National Labor Relations Act, as amended (61 Stat. 136, 29
U.S.C., Sec. 151, et seq.), herein called the Act. On June 19, 1959, the
Respondent filed an answer to the complaint in which it admitted cer-
tain allegations thereof, denied others, and moved that the complaint
be dismissed. Copies of the charge, the complaint, notice of hearing,
and the answer were duly served on all the parties.
With respect to the unfair labor practices, the complaint alleges, in
substance, that on or about May 19, 1959, and at all times thereafter,
the Respondent did refuse and is refusing to bargain collectively with
the Union although the Union was certified by the Board as the ex-
clusive representative of the employees in a unit found appropriate
126 NLRB No. 156.