The Powers Regulator Co.

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1185 (N.L.R.B. 1964)

THE POWERS REGULATOR COMPANY 1185
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO-CLC
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our members that:
WE WILL NOT threaten employees of Conroe Creosoting Company with dis-
charge or layoff from their jobs with said Employer if they fail to sign union
cards or join our Union.
WE WILL NOT in any like or related manner restrain or coerce employees of
said Conroe Creosoting Company in the exercise of any of the rights guaranteed
to them by Section 7 of the Act.
INTERNATIONAL WOODWORKERS OF AMERICA , AFL-CIO-CLC,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue , Houston, Texas , Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provisions
The Powers Regulator Company and United Steelworkers of
America, AFL-CIO, and Industrial Union Department, AFL-
CIO and Powers Employees Shop Union, Party to the Con-
tract. Case No. 13-CA-5859. November 30, 1964
DECISION AND ORDER
On June 16, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. He also
found that Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of these allega-
tions. General Counsel filed exceptions to the Decision and a sup-
porting brief. Respondent filed cross-exceptions, a brief in support
thereof, and an answer to the brief of General Counsel.
Pursuant to the provisions of Section 3(b) of'the Act, the Board,
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
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
entire record in the case, including the Decision, the exceptions, the
149 NLRB No. 119.
770-076-65-vol. 149-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-exceptions, and the briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing additions and modifications :
1. The Trial Examiner found, and we agree, that by coercively
interrogating employees in regard to union activities and sympathies,
by threatening to close the plant if the Union should be selected as
bargaining representative, and by creating an impression of surveil-
lance of its employees' union activities, Respondent violated Section
8(a) (1) of the Act.'
2. The General Counsel excepted to the Trial Examiner's failure
to find that the foregoing unlawful conduct also constituted unlawful
assistance to the incumbent Powers Employees Shop Union, herein
called the Independent, in violation of Section 8(a) (2). The above
conduct took place at a time when the Union was conducting an
organizing campaign among the employees, holding meetings, and
distributing membership cards and union literature, in an effort
to displace the incumbent Independent as representative of the
employees. Respondent's unlawful conduct was directed at employees
engaged in activities on behalf of the Union. Its inevitable effect was
therefore to lend assistance and support to the Independent in retain-
ing its position as bargaining representative. Accordingly, we find
that by the conduct found above to have violated Section 8(a) (1),
Respondent also violated Section 8(a) (2) 2
3. The Trial Examiner found that Chester Bogucki and Anthony
Liga were not supervisors. We disagree.
Respondent is a manufacturer of temperature controls. During
1963, the relevant period, it had approximately 250 production and
maintenance employees. Admitted executive and supervisory per-
sonnel included the president, a vice president who was also the
factory manager, a production superintendent, and seven foremen,
each of whom was responsible for one or more departments. Under
the foremen were a group of men with the job title of "supervisor."
Among these were Bogucki and Liga.
Casimir Lange was the foreman in charge of three departments,
E-2, E-3, and E-4, consisting of 40 to 45 employees. Bogucki was
the supervisor in charge of department E-2 which had about 20
employees . He spent all his time in that department; Lange was in
'The Trial Examiner found that on the morning of August 26, Foreman Crom told sev-
eral employees in one department that if he caught any of them attending a union meet-
ing he would fire him. However , on the afternoon of the same day, on instructions from
Production Superintendent Wozniak, Crom individually told each of the employees in his
departments that it was perfectly all right for employees to attend the union meeting and
that it was "none of our business ." In view of this retraction of the earlier threat by'
Crom, we do not rest our finding of an 8(a ) -(1) violation on it.
2 Filtron Company, Inc., 134 NLRB 1691 , 1693, enfd . 309 F. 2d 184 (C.A. 2).
THE POWERS REGULATOR COMPANY 1187
the department on and off for a total period of only about 2 hours a
day. Bogucki spent approximately 3 hours each day in setup work
on machines and the remainder in nonmanual duties.
Foreman James Crom was in charge of departments B, F, and L,
which together had about 27 employees. Liga was the supervisor in
charge of department F which had seven employees in addition to
Liga. Crom spent 1 to 1^ hours each day in department F; Liga
spent all his time there. Liga spend 21/z to 3 hours each day doing
assembly work, picking up stock from the stockroom if there were
parts shortages, and helping assemblers move stock; he spent the
remainder of his working day in nonmanual duties.
Although some of their duties were routine, the weight of the evi-
dence indicates that Liga and Bogucki responsibly directed the work
of employees in their departments. Both men were responsible for
meeting department production schedules set by the front office.
They assigned and reassigned department employees to particular
machines, filled out requisitions for parts as needed, discussed pro-
duction problems and rates with subordinates, helped the latter solve
production difficulties, and checked the quality of work performed by
production personnel. At the end of each day Liga and Bogucki
checked the employees' job timecards for the accuracy of information
entered thereon. If the entries on the timecards were not made out
accurately or if the employee failed to meet the prescribed produc-
tion rate, the "supervisor" asked for an explanation. After checking
the cards each day, Liga and Bogucki initialed them in the square
provided for "Foreman's Initials." Both men participated, either
alone or with their respective foremen, in periodically rating their
subordinates. These ratings determined employee receipt of wage
increases and promotions.
Bogucki had the authority to grant time off to department
employees without consulting higher authority; Liga cleared such
requests with Foreman Crom.
Each man was introduced to new departmental employees as the
"supervisor" or "boss." When President Mueller called a meeting of
management and supervisory personnel in order to explain Respond-
ent's position in relation to the Union's organizing campaign, super-
visors attended. :Bogucki and Liga had been members of the
company-sponsored Powers' Foremen's Club whose membership was
limited to managerial personnel, foremen, and supervisors.
On the basis of the foregoing, particularly the evidence that
Bogucki and Liga responsibly directed the work of other employees
in their departments, and participated in the rating of subordinates
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an effective manner, we find, contrary to the Trial Examiner, that
these two individuals were supervisors within the meaning of the
Act.3
4. Although supervisors, Bogucki and Liga were included in the
bargaining unit. Accordingly, Respondent may not be held respon-
sible for their statements and activities in intraunion affairs unless it
can be shown that Respondent encouraged, authorized, or ratified
their activities or acted in such manner as to lead employees reason-
ably to believe that they were acting for and on behalf of manage-
ment.4 There is no evidence that Respondent encouraged, authorized,
or ratified any of the antiunion conduct of Bogucki and Liga, except
Liga's report to the men of what President Mueller had said at the
September 11 meeting with management and supervisory personnel.
The Trial Examiner found that Respondent was responsible for
Liga's repetition of what President Mueller had said on the theory
that Liga was a conduit for Respondent. We adopt this finding.
5. The Trial Examiner found that, as Bogucki was not a super-
visor, Respondent did not violate 8(a) (2) by bargaining with the
Independent's negotiating committee which included Bogucki. How-
ever, we have found that Bogucki was a supervisor. The Board has
held that when an employer, without protest, deals with a union
negotiating committee which includes a supervisor in its membership,
the employer thereby interferes with the administration of the union
in violation of Section 8(a) (2) and (1) of the Act.5 We so find in
this case.
6. Inasmuch as we have found that the coercive conduct directed at
employees engaged in activities in behalf of the Union assisted the
incumbent Independent in maintaining its status as bargaining
representative, thereby interfering with the employees' right freely to
select a representative of their own choice, we find that it will not
effectuate the policies of the Act to permit the assisted Independent
co retain its status of bargaining representative. Accordingly, we
shall direct Respondent to withdraw recognition from the Inde-
pendent unless and until it is certified by the Board as bargaining
representative.'-
We shall also order Respondent to cease dealing with a union
negotiating committee which includes in its membership Chester
Bogucki or any other supervisor.
' Ertel Manufacturing Corp, 147 NLRB 312; Mt Clcmens Metal Products Company,
126 NLRP. 1297, 1304-1306, enfd 287 F. 2d 790 (C.A. 6) ; Wayside Press, Incorporated,
103 NLRB 111, 117-118.
Nassau and Suffolk Contractors' Association , Inc, and its members , 118 NLRB 174,
181 , Montgomery TVard d• Company, Incorporated , 115 NLRB 645, 657, enfd 242 F 2d
497 (CA 2).
5Nassan and Suffolk Contractors ' Association, Inc, and its members , supra, at 187.
6Filtron Company, Inc, supra.
THE POWERS REGULATOR COMPANY
ADDITIONAL CONCLUSIONS OF LAW7
1189
3. By contributing assistance and support to the Independent
through the aforesaid coercive conduct directed at defeating the
efforts of the Union to organize Respondent's employees and sup-
plant the Independent as the employees' bargaining representative,
Respondent engaged in an unfair labor practice in violation of
Section 8(a) (2) of the Act.
4. By dealing with a negotiating committee of the Independent
which included Supervisor Chester Bogucki in its membership, and
thereby interfering with the administration of the Independent,
Respondent violated Section 8(a) (2) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
Respondent, The Powers Regulator Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating employees concerning union membership and
activities, and creating an impression of surveillance in a manner
constituting interference, restraint, or coercion in violation of Sec-
tion 8(a) (1) of the Act. .
(b) Threatening employees with a plant shutdown in the event
that United Steelworkers of America, AFL-CIO, should be selected
as bargaining representative.
(c) Interfering with the administration of the Powers Employees
Shop Union by conducting collective-bargaining negotiations with
any committee representing the Powers Employees Shop Union,
which includes in its membership Chester Bogucki or any other
supervisor within the meaning of Section 2(11) of the Act.
(d) Recognizing Powers Employees Shop Union as the exclusive
representative of any of its employees for the purposes of collective
bargaining, unless and until the said labor organization has been duly
certified by the National Labor Relations Board as the exclusive
representative of such employees.
(e) Maintaining or giving effect to any agreement with Powers
Employees Shop Union, or to any modification, extension, supple-
ment, or renewal thereof, or to any other contract, agreement, or
understanding entered into with said labor organization or any suc-
cessor thereto, unless and until said labor organization shall have been
certified by the National Labor Relations Board, provided, however,
that nothing herein shall be construed to require Respondent to vary
7 Delete Trial Examiner's conclusion of law No 4, change his conclusion of law No 3
to 5, and his conclusion of law No 5 to 6
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or abandon any wage, hour, seniority, or other substantive feature
of its relations with its employees which Respondent has established
in the performance of this agreement, to prejudice the accretion by
the employees of any rights acquired thereunder.
(f) In any other manner 8 interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Steelworkers of
America, AFL-CIO, and Industrial Union Department, AFL-CIO,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, and to refrain from any and all such activi-
ties, 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.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Powers Employ-
ees Shop Union as the exclusive representative of its employees for
the purpose of collective bargaining unless and until said labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(b) Post at its Skokie, Illinois, plant, copies of the attached notice
marked "Appendix." 9 Copies of said notice, to be furnished by the
Regional Director for Region 13, shall, after being duly signed by
the Respondent's representative, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 13, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
(d) IT IS FURTHER ORDERED that the complaint be,_and it hereby is,
dismissed insofar as it alleges that Respondent violated Section
8(a)(3) of the Act.
8 Because of the nature of Respondent ' s unfair labor practices , we shall issue a broad
order. The 73assick Company, Spring Valley Division, a division of Stewart - Warner
Corporation, 127 MARS 1552, 1553.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enfoicing an Order"
THE POWERS REGULATOR COMPANY
APPENDIX
1191
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
membership and activities or create an impression of surveillance
in a manner constituting interference, restraint, or coercion-in
violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with a plant shutdown in
the event that United Steelworkers of America, AFL-CIO,
should be selected as bargaining representative.
WE WILL NOT bargain collectively with any negotiating com-
mittee representing Powers Employees Shop Union which
includes in its membership Supervisor Chester Bogucki, or any
other supervisor within the meaning of Section 2 (11) of the Act.
WE WILL cease recognizing Powers Employees Shop Union as
the exclusive representative of any of our employees for the
purposes of collective bargaining, unless and until the said labor
organization has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of such employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist United
Steelworkers of America, AFL-CIO, or any other labor organi-
zation, 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 protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All our employees are free to become and remain, or to refrain
from becoming or remaining, members of any labor organization,
except to the extent that such right may be affected by an agreement
authorized by Section 8(a) (3) of the Act-as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
THE POWERS REGULATOR COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 881 U . S. Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago , Illinois, Telephone No. 828-7572 , if they
have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
The complaint herein, as amended ( issued October 18, 1963, and January 14, 1964;
charge filed September 6, 1963 ), alleges that the Company has violated Section
8(a)(1), (2), and ( 3) of the National Labor Relations Act, as amended , 73 Stat.
519, by permitting a supervisor to participate in negotiations with and in meetings and
disciplinary proceedings conducted by the Independent, by permitting the Independent
to conduct such proceedings on company premises and during working hours, by
providing the Independent with space and equipment for various activities, and by
supervisors ' threats, unlawful interrogation , promises of benefit, and impression of
surveillance . The answers deny agency supervisory status of certain individuals;
allege that there have been many bargaining agreements and a great deal of negotia-
tion between the Company and the Independent since 1949 ; further allege that inclu-
sion of company employees classified as supervisors in a Board certification in 1949 1
is res judicata and that the Board is estopped from claiming otherwise ; and deny the
allegations of violation
A hearing was held before Trial Examiner Lloyd Buchanan at Chicago , Illinois,
from January 21 through 30, 1964, inclusive . Pursuant to leave granted to all parties,
briefs have been filed by the General Counsel and the Company , the time to do so
having been extended . Both the General Counsel and counsel for the Company are
to be commended on the comprehensive and fair presentation of facts in their briefs,
and the able arguments for findings and conclusions to be made
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company, an Illinois corporation with principal
office and plant in Skokie , Illinois, is engaged in the manufacture of mechanical
equipment , including temperature controls and related products; that during the last
preceding calendar or fiscal year , it manufactured , sold, and distributed at said plant
such mechanical equipment valued at more than $100 ,000, of which more than
$50,000 was shipped from said plant directly to places in States other than the State of
Illinois; and that the Company is engaged in commerce within the meaning of the Act.
It was admitted and I find that the Steelworkers and the Independent are severally
labor organizations within the meaning of the Act.
II THE UNFAIR LABOR PRACTICES
A. Agents and supervisors
To establish liability, the General Counsel alleges that Bogucki , classified as "Super-
visor in [not "of"] the machine shop," and Liga, classified as "Supervisor in the
Assembly Department ," have been and are agents of the Company and supervisors
within the meaning of the Act; and that Artis, a rank-and-file employee now in his
second term as president of the Independent , has been and is an agent of the Com-
pany. Neither Bogucki nor Liga testified . Evidence concerning their duties was in
the first place elicited from rank-and-file employees by the General Counsel and, by
the Company , primarily and respectively from Lange and Crom, their foremen and
immediate superiors.
In our concern with supervisory status we must consider , in addition to any "hold-
ing out" by the Company or apparent authority , actual authority within the meaning
of the Act . The title "supervisor " does not itself prove supervisory status.2 Indeed
I The Powers Regulator Company , Case No . 13-RC-570.
2 ,Southern Bleechery and Print Works, Inc, 118 NLRB 299, 304, 307-308, enfd. 257
F. 2d 235, 239 (CA. 4 ), cert. denied 359 U S. 911.
THE POWERS REGULATOR COMPANY 1193
if we, not being the employer or the employees in 1949 or earlier when that title was
adopted by this Company, can put aside the statutory definition of the term , we might
conclude that the title itself has virtually no bearing on the status to be determined.
The title or classification does not determine the issue either in fact or, in the absence
of evidence that the employees knew or were impressed by the terms of the Act, in
the employees ' minds.
In any event , there is no evidence that all so-called supervisors occupied the same
status, and we are in each instance required to make a determination based on the
evidence . There are certainly elements of difference as between Bogucki and Liga,
and the findings with respect to one cannot automatically be applied to the other. In
each case we must determine the issue of supervisory status or actual authority or
of agency.
Generally and quite definitely , there is a marked distinction between those whom
the Company has classified as supervisors , and salaried employees at the foreman and
higher levels . The differences in treatment , whether in attendance at meetings or
with respect to payment and fringe benefits, need not here be detailed; their existence
must be recognized . But the question remains whether there is less frequent and
lesser exercise of supervisory functions sufficient to warrant a finding that "super-
visors" are supervisors within the meaning of the Act.
That question is readily answered , or is avoided , if the defenses of estoppel and
res judicata be sufficient . We are informed that the status of supervisors was not in
fact litigated in the 1949 proceedings , and that the Board made no finding in that
connection ; a stipulation was at that time entered into between the parties, and
supervisors thus classified have since that time been included in the various contracts.
In Harvey Russell,s the Board has recently cited Lake Huron Broadcasting Corpora-
tion,4 where it was held that an agreement concerning eligibility in a consent election
is binding on the parties unless the Act or Board policy has been contravened, and
that a party in a consent -election proceeding may test the propriety of inclusion of
a supervisor . The reason for a different rule with respect to a stipulation entered into
at a hearing is fully explained in Cruis Along Boats, Inc 5 But even there the majority
decision was based on policy, not on any estoppel . The policy considerations which
apply to an attempt to repudiate a stipulation "on the day of the election" are quite
different from those which would permit the Steelworkers , not a party to the stipula-
tion, to question its accuracy 15 years later.
With respect to the defense of res judicata , we have the additional element of duties
and responsibilities as indicated by events since 1949 which would affect a decision
or agreement made at that earlier date . Overruling these defenses , we need not
compare duties in 1949 ( the old record is apparently not now available ) with those
now performed , but can proceed with greater dispatch to consideration of Liga's and
Bogucki's duties and status during the period here under consideration . It may at
this time be noted further with respect to both of them that, while employees' impres-
sions do not prove supervisory status, the contrary is suggested by the absence, in all
of this testimony , of evidence that employees habitually requested Bogcuki or Liga
for a favorable rating despite their connection with ratings as testified, or for
effective assistance toward a higher rate of pay.
1. Liga
On behalf of the Company it was testified that there are seven employees besides
Liga on the day shift in department F; F cards ( factory production orders ), which
are attached to subassembly jobs, are mainly used in department F; some FSO cards
(factory shop orders ), which are attached to "final end products ," are also used in
this department . All of these cards are prepared in the production control depart-
ment and are issued well in advance of the time when the work is to be done. The
time and order in which jobs are to be handled are thus determined and noted on the
cards before they reach the department . Liga maintains a job sheet , which is a list of
the various jobs which he keeps on a blank sheet for review of the jobs in the depart-
ment. As an employee finishes one job, Liga assigns the job which is next in order
according to a schedule also previously prepared by the production control depart-
ment , and according to the employee 's classification and rated competence The
name of a recently introduced "immediate attention order sheet " indicates its limited
purpose. (If not altogether complete, this is an adequate summary for present
purposes of a mass of testimony received piecemeal , repeated , and with many inci-
dental references )
3145 NLRB 1486.
4130 NLRB 908.
5 128 NLRB 1019, 1020-1021, distinguished in the Lake Hui on case, supra.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If any discretionary element attaches to Liga's handling of the job assignments as
he makes them within the directions laid down, it is slight. He takes orders directly
from Crom, his foreman, whose jurisdiction covers this department and two others;
and Liga himself does rank-and-file work for 21/2 to 3 hours each day. Liga also
performs a preliminary inspection of work done (sometimes with the assistance of
the inspector, who occupies a higher status and checks the work at a later stage), fills
out requisitions for parts as needed and requested by the men, and returns excess
parts to the stockroom. In none of this does he appear to function as more than an
experienced leadman
An element of discretion does enter into his issuing a rework card when difficulty
develops on a job. Here is a limited measure of control to the extent that the card
constitutes justification for additional time spent by an employee; but the discretion
and control are limited, as when it can be seen that a valve leaks and needs rework-
ing Furthermore, Crom testified that he issues and signs rework cards; Liga merely
hands them to the employees. There is nowhere a suggestion that Liga has repri-
manded an employee and effectively recommended discipline or discharge in this
connection. Thus as employee Dickinson testified when he returned to work on
March 1 after being away in February, Liga told him that he was missing too much
work, but added, as would one who merely relays messages, that Crom was con-
cerned. According to Crom, Liga does assembly work as a rank-and-file employee
for 3 to 4 hours a day, and punches work cards in and out as do the other rank-and-
file employees ; and he perfoims wholly ministerial or administrative functions in
connection with the work of other employees in department F.
It was further brought out that Liga has in several instances filled out, helped fill
out, signed , or been consulted with respect to rating of some employees In these
cases, Liga in the first instance has assigned or helped assign to employees ratings
which are used as a basis for wage increases. This is frequently a function of super-
visors within the meaning of the Act . But those ratings are tentative Crom testified
further that, because the forms come in late, Liga in some cases did the marking and
rating; in some cases , he himself did it; in some , both did; and that this was done to
save time . Also, if a new employee was being considered for an increase , Crom and
Liga rated him "together." Whatever impression of Liga's status might thus be
created is nullified by evidence that his high ratings have been followed by increases
to the employee in one to three instances , not in three to five instances as testified to
by Dickinson (misspelled "Dickerson" in the transcript), an important witness for
the General Counsel. There is thus no such correlation between Liga's ratings and
the end results as would indicate that he makes effective recommendations. In all of
this we must distinguish between consultation , information , even advice , and effective
recommendations.
Having observed Crom, I can understand that he sought assistance whether with
respect to job duties or personal matters. While this enhanced Liga's status, it does
not appear that in any of these instances Crom surrendered actual authority to Liga
or that the latter made effective recommendations . With respect to the rating func-
tion, in which Liga most nearly appeared to assume supervisory duties, I credit the
explanation that when Liga formerly 6 alone or with Crom signed some employee
review sheets (all are thereafter reviewed at higher levels of management, and we
have seen that there is no proof of effective recommendation by Liga), he did it when
the forms came in late. Liga's various functions do not indicate supervisory status.
Such few instances as may suggest a measure of supervision or control by him are
minimal in the overall picture.
On the other hand, it is clear that Liga was a conduit between management and
employees; and his work with review sheets would, in the eyes of other employees,
confirm his status as agent of the Company. One who even tentatively rates
employees and their work, even if he does not make effective recommendations, may
be found to be an agent or conduit of the employer. Employees will understandably
attribute to him authority or influence with the employer, and will regard his actions
and words as those of the employer.
With respect to job timecards , from which the time spent on each job is computed,
Liga checks these to see that they were properly filled out, sometimes asks a man
why an operation took so long, and before passing the cards on to Crom, initials them
in the corner box marked "Foreman's initials." So far from proving that Liga is a
O If it be argued that the change made in October 1963, when Wozniak , the production
superintendent , told Crom to fill out and sign the reviews himself, constitutes an admission
of Liga's prior supervisory status , it can as well be urged that the Company sought to re-
move the appearance of such status . We can better rely on the considerable testimony
received concerning actual duties and performance.
THE POWERS REGULATOR COMPANY 1195
supervisor within the meaning of the Act , it being admitted that he is not a foreman,
this indicates that the practice followed in the department is indeed loose, and it
may explain an apparent assumption of duties by Liga I find that in all this he was
assisting his foreman , filling a role beyond that of other rank -and-file employees,
withal without actual authority . While thus finding that Liga was not a supervisor
within the meaning of the Act, I find also that his duties and performance clearly
constitute him a company agent, that he is so regarded by the employees , and that the
Company is responsible for his acts and statements.
Evidence of recognition of the element of conduit may be seen in Dickinson's
request early in December that Liga tell Crom that he wanted to talk with him.
Further reinforcement is found in the testimony by Mueller, president of the Com-
pany, that he called a meeting on September 11 at which he told supervisors , foremen,
and other management personnel to make certain facts clear to the employees. If
Mueller did not mean what he said (we shall see that Liga did pass the word on), he
was certainly on this occasion grouping supervisors with managerial employees,
admittedly supervisors within the meaning of the Act. He had told Lewis, the factory
manager, "to get people together ." Lewis apparently regarded supervisors as con-
duits, there being no other explanation for calling supervisors but not other rank-and-
file employees to this meeting even though they do not appear to have generally
attended meetings of supervisory employees ; in Mueller's words, he quite laudably
"wanted them to be in a position to refute the false statements which had been made."
In addition to this, personal assistance (which we need not now detail ) rendered
to Crom by Liga would not establish supervisory status, but it might well enhance his
status as apparent agent. In making findings in this connection , I have not over-
looked but am not persuaded by the difference of 78 cents between Liga's $3.39 rate
and the next highest rate in department F, $2.61 . Such difference and the difference
of 22 cents between Bogucki's rate and the next highest on the day shift in his depart-
ment E-2 are not so impressive when it is recognized that greater differences exist
among the admittedly rank-and-file employees , the lowest rate in department E-2 on
the day shift being $2.03 , and in department F $2 20.
Also suggesting a more important status in Liga is employee Gadison's testimony
that in October Crom told him in Liga's presence that they had been unable to estab-
lish an increase for him retroactive to September 21; increases are "left up to your
foreman and your supervisor ...." But immediately afterward , following a series of
references to Liga and Crom jointly , the latter explained that he was at fault in having
forgotten to turn in Gadison's review sheet on time. If Liga's authority was here
being exaggerated , his apparent status and influence were thus further impressed on
an employee . According to Gadison , when he was transferred to department F in
March 1963, Crom introduced Liga to him as follows- "He is your new boss, the
supervisor Anthony Liga." Such alleged formality is completely at variance with
the language of the various witnesses and the entire picture presented at the hearing.
In any event , we must look elsewhere for the suggested importance to be attached to
the word "boss ." This could be found in additional testimony of events which would
show Liga's supervisory status; but it was not shown. Quite significant as Gadison's
testimony was adduced to establish greater authority in Liga, is the former 's descrip-
tion of the procedure when he was directed to change to a rush job . Such a job
"comes down from Production ," and the rush order is given to Liga, who would bring
it over to Gadison and direct him to start working on it, setting aside the job on which
he had been working-"if [Gadison ] was the one that was supposed to work on the
order." No more than with respect to regular assignment of jobs as they come from
production control is there any showing of any decision or discretion on Liga's part
with respect to who was "supposed to" work on a given job.
Presumably not to be ignored is Gadison 's further testimony that one day in
December , when an employee in another department came up to him at work, Liga
asked whether the man was looking for something and, informed him that he wanted
to speak with Gadison , told him not to spend the day in there. The very fact that
Gadison testified to this single incident in connection with another employee suggests
that Liga may have been throwing his weight around as an apparent supervisor but
without actual authority. I would not minimize such an incident as evidence of
authority , but it does not appear that this was part of a general pattern or that Liga
actually had authority in this respect . Nor would a direction that Gadison , relatively
new in the department , stay out of a drawer in which valuable instruments were kept
necessarily indicate more than concern by a higher paid employee with respect to
another who had no knowledge of the gauges which were in the drawer or their value.
Dickinson 's testimony concerning another incident bears more on his own credi-
bility than on Liga 's authority . He appeared to be quite positive and definite in his
recollection of various events and dates up to his testimony that he heard Liga tell
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Schwartz one afternoon in May to come in to work on Saturday. But
Dickinson had previously testified that he had merely seen Liga speaking with
Schwartz; he had not heard what was said, and he was permitted to testify to what
Schwartz told him about that conversation. Later Dickinson declared that if a job is
not completed on Friday it is common procedure for the man working on it to come
in for overtime work on Saturday; Liga's authority would hardly be established even
if he had spoken to Schwartz about Saturday work, the assignment being routine and
made pursuant to Crom's direction. Quite understandable is the General Counsel's
prior comment that Dickinson's testimony was confusing, this after he had testified
that Liga granted overtime and then variously that he must first talk to Crom about
who is to work and on which jobs, that Crom must get permission from Wozniak,
the production superintendent, but finally that Liga selects the man who is to work
overtime.
As for Liga threatening to discipline employee Danielson by issuing an incident
report against him, it is clear that Liga neither signs nor issues incident reports.
Although Crom told Liga, "We have to take a means of breaking through to this
man," and Crom thereafter issued an incident report to Danielson, we have here no
proof of supervisory authority in Liga; this is another instance of Liga's serving as
Crom's confidant.
Finally (without here referring to every item mentioned in lengthy questioning
although all have been considered) if Liga reported to three of the other employees
that Mueller had told supervisors and other management representatives to speak to
the men, infra, this would again indicate that Liga is a conduit or agent of the Com-
pany, not necessarily a supervisor. Gadison clearly maintained the distinction
between the two classifications.
2. Bogucki
While it is not claimed that Bogucki committed independent violation of Section
8(a)(1) of the Act, allegations of violation of Section 8(a)(2) are based on his
status as an alleged agent and supervisor within the meaning of the Act. (Each of
the various violations by Bogucki, if found, would constitute interference with and
support to the Independent.) The proof of his agency or supervisory status parallels
to a great extent but appears to be less than that with respect to Liga. It should suffice
to cite the items most favorable to the General Counsel in view of the decisions, noted
infra, concerning unlawful support of labor organization by a supervisor's participa-
tion in its activities.
No more helpful, on the question of actual supervisory status as distinguished from
employee's impression and apparent agency, than the admitted use of the term "super-
visor" is former employee Sanger's testimony that, when he originally came into
department E-2, Foieman Lange's introduction to Bogucki was, "This is Chester
Bogucki. He is going to be your supervisor while you are here."
On the day shift there have been approximately 20 men in Bogucki's department
E-2; almost 20 in department E-3; and some 5 in department E-4, for a total of
approximately 40 under Lange, who is foreman of all 3 departments We have such
testimony as that employees in E-2 in most cases talk to Bogucki rather than Lange
concerning their problems. Bogucki's immediate supervision is, with some exceptions, .
ministerial; he reports to Lange, who is in this department only part of the time. The
difference between Bogucki's status and Lange's is typified by the fact that the latter
wears a shop coat with his name embroidered on it and his title of foreman marked
on the back, while Bogucki wears ordinary street or work clothes. Lange has a desk
with his nameplate on it; Bogucki does not. (Exaggerating, Sanger referred to
Bogucki's "desk," which is a bench and is apparently used by rank-and-file employees;
and to a telephone as being on Bogucki's desk when in fact it has been on a pillar.)
According to Lange, Bogucki neither hires, fires, nor allows time off. Employee
Matthews testified that once in September and again in December he asked and
received permission from Bogucki to take the afternoon off. Matthews did not clear
this with anyone else, nor does it appear that Bogucki did (This may be considered
with the testimony, infra, concerning permission to make a telephone call.) While
Bogucki makes recommendations for promotions and thus assists Lange, the latter
himself checks on the employees' work performance, attendance, and demerit count,
and then takes it up with Wozniak and makes a recommendation. It is Lange who
informs employees of promotion. With respect to rating of employees, Bogucki's
function is no greater than Liga's As for incident reports, which are disciplinary,
these are issued by Lange, not Bogucki, nor does the latter make recommendations
with respect to them. None of this is contradicted by Sanger's testimony that, early
in May, Bogucki asked him about a large quantity of scrap, which Sanger denied
making; the next day Lange spoke to him concerning it, after Sanger apparently did
not deny that he had made it, told Sanger that he would "get a letter on it."
THE POWERS REGULATOR COMPANY 1197
Bogucki's daily duties begin with checking the job tickets or job timecards of the
day before to see whether the men were working throughout the day; 7 he initials the
cards and passes them on to Lange, who looks them over again, sees that they are "in
line," and sends them to the accounting department. Bogucki then checks the
machines to see that there is enough work to be performed on each and, using the
production or F cards, which come from production control, places them at the
machines designated thereon. He then sends necessary slips to the stockroom and
the toolroom.
The impression left by Sanger's testimony concerning Bogucki's duties is not sub-
stantially different: He sees that everyone has work, assigning and expediting work
on the orders, and "decides" which machine each man is to operate. He keeps a
record of finished jobs, which shows when they were completed and where they were
to go next. Bogucki himself spends about 3 hours a day setting up machines. When
Sanger runs out of work or when trouble develops on a machine, Bogucki assigns
him to another machine. Any impression of discretionary authority in Bogucki as
Sanger repeated that he assigns work to machines and individuals was soon dispelled
as he testified that FCO cards 8 as they came from the office listed the part number,
the job number, the department, the machine, and the rate of production.
Bogucki sometimes assigned Sanger to a machine different from that listed on the
card; if a similar machine were empty, he might be put to work on that. Assignment
of an employee to a different machine for a given job does not appear to be significant;
there is no suggestion that this affected production, earnings, or performance. When
Bogucki did it, it would seem in the light of all of his other nondiscretionary duties in
transmitting directions and keeping records, that he was again performing a ministerial
act. Sanger did not know whether when, as he testified, Bogucki sometimes assigned
him to another machine before a job was finished, or when he saw Bogucki change the
number of the machine listed on the card, the decision was Bogucki's or whether the
latter had been instructed so to do.
Sanger further testified that, in addition to setup work on which Bogucki spends
about 3 hours a day, he also helps other employees. This is typical leadman work.
The other higher grade employees frequently fix things themselves. According to
Lange, Bogucki operates a machine about 2 hours a day and does setup work for 3
or 4 hours, manual work thus occuping most of his day. As Bogucki tries to keep
the work flowing, his duties are scarcely supervisory within the meaning of the Act.
Lange correctly described the situation when he testified that, in seeing that the work
gets out, Bogucki issues the work cards according to the schedule given him.
It would be inaccurate to say that there are no occasional suggestions of authority.
But these are minimal. Thus, pressed further concerning Bogucki's recommendations,
Lange testified that Bogucki has said that he would like to have a certain man stay
in the department; Lange would thereupon check on him. Nor did Lange indicate
marked discretionary authority in Bogucki when the latter, in case of a breakdown,
moves a man to an available machine and to work which he can perform, each man
having a classification and grade. Certainly, as noted, the order of jobs is determined
by customer needs and is controlled elsewhere; no one in department E-2 may depart
from the schedule assigned.
I have not overlooked Sanger's testimony that about once a week Bogucki (Lange
less frequently) asked why he was below his assigned production rate or why he was
turning out so much scrap. It does not appear that Bogucki ever disciplined Sanger
or effectively recommended discipline.
Apparently suggesting an element of discretionary authority is Sanger's testimony
that one day in September he asked Bogucki whether he might make a telephone call
and was told that he had made a call the day before (whether Bogucki's permission
had been sought and obtained on that earlier occasion does not appear) and that he
should punch out or see Lange for permission. This testimony indicates neither
authority in Bogucki nor his exercise of authority. It may be considered as evidence
of Sanger's impression and to support a finding of conduit or limited agency status.
While Saturday overtime work was usually divided among the men who worked
on the automatic screw machines, it was pointed out to Bogucki in February or
March that one of them had worked on two consecutive Saturdays. Bogucki replied
that that man was going out of town, and Sanger could work on the latter's scheduled
Saturday. Also, when there was Saturday work, Bogucki came around with a little
7 What has been said, supra, concerning job timecards in connection with Liga applies
here also.
8 From Lange's testimony, it appears that, contrary to Sanger's testimony the cards
attached to the various jobs in the department are not FSO cards.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notebook , asked the men whether they could work on Saturday , and listed the names
of those who said that they could . Such evidence is as compatible with a finding
of message-carrying as of authority to determine and assign overtime.
Bogucki, who was rated every 6 months as are all rank-and -file employees , assisted
in rating others to a limited extent. Progress appraisal forms for Matthews and
Sanger indicate rating by both Bogucki and Lange , and approval by the latter and
Wozniak. Matthews was discussed with him by Lange . As for the other, Sanger
testified that he saw the form on Lange's desk after Bogucki mentioned it to him, and
Lange told him that he would receive an increase in pay. According to Lange, he
makes out the appraisal forms, then checks with Bogucki , who "usually agrees" and
signs after Lange. ( It was later brought out that, if Bogucki disagreed , he would have
to justify his position ; but this is quite hypothetical because Lange recalled no instance
of disagreement.) Lange alone shows the appraisal form to the employee directly
concerned . In Bogucki 's case, as in Liga's, the evidence which suggests supervisory
status is insufficient in the light of all of the evidence received.
We have already noted exaggeration and error in Sanger 's testimony, and an
erroneous impression given by his earlier description of Bogucki 's authority to assign
machines . Because the General Counsel relies to such an extent on Sanger 's testimony
to establish Bogucki's status as a supervisor , additional analysis is in order. It is
true, as Sanger testified , that Bogucki requisitions stock and tools. But this is deter-
mined by the job cards Similarly , it is the production control department, and
higher authority than Bogucki, which determines the order of running jobs on
machines , not "primarily Bogucki," as Sanger testified . ( Sanger and another witness,
Verville, were among the five employees against whom the Independent brought
charges for supporting the Steelworkers.)
For its bearing on the status of supervisors , we must also consider the existence of
Powers' Foremen 's Club. The stated object of the club was "to promote the adop-
tion and application of higher social and business standards " Those eligible for
membership were "shop Foremen and Supervisors " and others listed by titles which
indicate their supervisory status. The Supervisors grouped with shop foremen were
evidently those, like Bogucki and Liga, who were classified as supervisors by the
Company and with whom we are concerned . As evidence of company recognition of
PFC, it was stipulated that the Company in 1963 contributed $512 to make up the
difference between the club's operating expenses and its available assets. Here
appears to be separation of supervisors so-called from rank-and-file employees
generally. On the other hand, the eligibility provision may reflect the intent to include
those who speak for the Company even to a limited extent, as conduits.
Counsel for the Company claims that PFC is a social club and is "outside of the
company ... [and] outside of working hours ...." It should be noted that eligibility
for membership is only that : sponsorship and acceptance by vote of the members are
necessary . Also, the expenses listed were for cost of meetings and refreshments, bowl-
ing, Christmas party, flowers, and favors ( to members ). It is not clear that in 1963
(the club was disbanded in October ) any supervisors so-called other than Bogucki,
who had been president in 1962, were members of the club. (If any others listed on
the club's attendance and dues record have in the transcript been noted as supervisors,
the reference escapes me.)
It was stipulated that Liga had been a member of PFC from January 1950 to
November 1951 . We have not been privileged to learn the reason for the termination
of his membership or its nonrenewal through the years , or whether these are related
to the question of status . Despite his foreman's recognition of his writing talents, Liga
is apparently doomed to blush unseen : He has not been a member of PFC for many
years, nor does it appear that, like Bogucki , he has been president of PFC or a member
of the Independent 's executive board. Having given full consideration to the testi-
mony concerning the Powers ' Foremen 's Club, I do not consider , it tantamount to an
admission or proof that Bogucki and Liga are supervisors within the meaning of the
Act in the face of the evidence received with respect to actual exercise of authority.
3. Artis
With so many . and more serious violations alleged, one can but wonder about a
policy which calls for last-minute amendment of the complaint to add an allegation
of additional agency and consequent interference ; this followed at the hearing by
promise of proof of such agency and offers of proof to support the alleged further
interference . The agency of this rank -and-file employee , Artis, is presumably to be
inferred from his presidency , of the Independent and the hoped for finding that not'
only was this labor organization unlawfully , supported-,by the Company , but-that the
relationship between them overripened into an agency . With full awareness of Sec-
THE POWERS REGULATOR COMPANY 1199
tion 2(13) of the Act, I found at the hearing that the allegation that Artis is an agent
of the Company had not been sustained; the allegation was dismissed at the close of
the General Counsel's case, and no claim of error has been made in the briefs.
B. The alleged violative acts
1. The alleged direct assistance and support of the Independent
Artis, Steckel, the Company's local personnel manager, and Employee Relations
Manager Zamrazil testified concerning arrangements made early in the morning of
September 5 for the Independent's use of a company conference room for a meeting
later that moining (The room had previously and was thereafter used for bargain-
ing meetings between the Company and the Independent, and a bargaining session
was scheduled and held at 1 p.m. that day.) According to Artis, he asked Zamrazil
for permission to use the room, the latter called Steckel into his office, and both told
Artis that the Independent could hold its meeting at 11 a in. Artis maintained that he
said only that it was to be a meeting of the Independent's executive board; he did not
explain that certain employees were to be tried there on charges of dual unionism.
(Five had been so charged.)
Steckel's version is that Artis came to his desk and asked for use of the conference
room, saying at that time no more than that it was to be for union business on a
matter to be taken up with its members; that he checked, found the room was avail-
able, and so told Artis, that the latter then told Steckel that the meeting was to
"straighten out" an issue of duel unionism; that within 15 minutes Steckel told
Zamrazil of the proposed meeting and its purpose; and that he was not present when
Artis and Zamrazil discussed proposed use of the conference room.
Zamrazil testified that with Steckel present in his office, Artis early on September 5
requested use of the conference room for a meeting of the executive board; that he
gave his permission, that Steckel did not tell him that he had talked with Artis earlier
that morning, and that he did not know about it; and that Artis did not state the
purpose of the executive board meeting, and he did not ask Artis
Artis and Zamrazil, unlike Steckel, agree that all three were together at some time
that morning and that the former did not state the purpose of the proposed meeting
Considering the position of each of the three as adverse to the General Counsel, the
question is whether one admission outweighs two denials that the purpose was stated.
Weighing credibility, and aside from what was said about the meeting, I do not credit
Steckel's testimony that Artis spoke with him alone and that he in turn spoke with
Zamrazil alone concerning use of the room. Under the circumstances, I find that the
General Counsel has not sustained the burden of proving by credible testimony that
Artis did state the reason for the executive board meeting or that the Company,
permitting the meeting to be held, assisted or supported the Independent against the
Steelworkers We thus do not reach the question whether the burden should be
imposed on the Company to consider the legality of permission to use the room if it
had knowledge of the purpose of that meeting. It might be observed that after the
Company learned the purpose of the meeting, permission having been previously
given,9 an attempt to limit or supervise the Independent's use of facilities otherwise
available to it could itself be claimed to be unlawful interference. (The Company
makes a similar argument with respect to Bogucki's membership on the negotiating
committee.)
What occurred at the executive board meeting and company knowledge thereof
per Bogucki are covered by another allegation, and will be considered infra. It was
arranged in advance that the Independent would pay for employees' time spent at the
executive board meeting, and such payment was thereafter made as reimbursement
to the Company. It was no violation of the Act thus to permit the proceeding "during
working hours."
With the assumption, inference, or deduction that a vote taken among the employees
on the afternoon of September I1 on approval of a proposed agreement between the
Company and the Independent prevented effective discussion of the agreement at a
membership meeting of the Independent that evening, the General Counsel points to
the Company's permission to conduct the balloting as knowingly and effectively cut-
ting off employee discussion at the meeting. In this connection we must consider
both the permission to conduct the ballot on company premises and the claim that,
even if there be nothing inherently lawful in the sequence itself, the Company unlaw-
fully assisted the Independent.
9 We recall that Steckel, the only one who testified that he was told the purpose of the
meeting, declared that he was so told after he had given permission for use of the con-
terence room
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the mere permission for the Independent to conduct its vote in the
corridor just inside the door of the plant, it is clear that the employees did not vote
during their working hours and were not paid for the time spent in voting There was
here no more than a convenient and limited use of company premises as had appar-
ently been permitted in the past.10 No other violation is claimed in connection with
this balloting, which Verville, a member of the Independent's executive board and
apparently a supporter of the Steelworkers, helped conduct
As for company violation in effectively and knowingly cutting off employee discus-
sion , Verville testified that after the Company's representatives left, Cusack, the
Independent's attorney, instructed the members of the Independent's bargaining com-
mittee not to discuss the proposed agreement with members of the Independent
"because it would only excite and stir up the people, probably get a lot of questions
thrown at us." This tactical approach by the union cannot be termed a violation by
the Independent or the Company. Cusack had earlier suggested that copies of the
proposed agreement be distributed to the Independent's members so that each "could
read for himself or herself what these proposals were." He had allegedly remarked
to company representatives that "he wanted no trouble with that bunch of hooligans,"
and when he added, "You know what I mean," Seyfarth, the Company's attorney,
"nodded his head" in the affirmative. If the Independent's tactics in getting an early
vote were lawful, we are presumably asked to find that Seyfarth's nod and the permis-
sion to conduct the balloting indicated a conspiracy or at least unlawful assistance by
the Company. Under the circumstances here, with the longstanding relationship
between the Company and the Independent, I find no violation in this connection. We
may well consider that, when the Independent decided to poll its employees before the
membership meeting of September 11, interference with its administration might be
charged and found had the Company sought to persuade it to conduct the vote at or
after the meeting. (The conduct of the Independent's meeting will be considered
infra, in connection with Bogucki's activities )
While single events or acts may not be violations of the Act, a multiplicity thereof
might constitute unlawful support as here alleged. I find that the events herein
described (and the printing, infra), severally or jointly, do not constitute violations.
I would also find that the testimony pro and con concerning the circumstances and
the time when the Company approved the proposal or agreement which the Inde-
pendent submitted to the September 11 vote by its members does not show anything
less than arm's-length dealing. But this, apparently submitted as part, even if an
unnecessary part, of the "entire picture" under the pleadings, need not be detailed
here since neither in the original nor the amended complaint is there an allegation of
violation in this respect, the claim as hereinbefore analyzed referring only to the
voting permitted on September 11 and the consequent ("thereby") cutting off of
discussion "during the P.E.S.U. membership meeting" later that day. (Testifying
concerning early discussion of the proposal on September 9, Verville indicated on
cross-examination an inability to recall which was in marked contrast to what had
earlier appeared to be his excellent recollection.)
The remaining violation alleged in this connection is that company premises and
equipment were used on September 10 to print the Independent's recommendation
that the employees, at the balloting on September 11, approve the proposed contract
with the Company. It is clear that a precondition to such services by the Company
was the Independent's agreement to reimburse it, as was thereafter done, for the
paper, stenciling and related services, and other labor, the total being $11.75. I find
no violation here.
At no time has the General Counsel claimed unlawful animus or motivation, or
interference with or support of the Independent, beyond that inherent in the allega-
tions of violation in 1963. It has therefore been unnecessary to consider the Com-
pany's profert of contracts in effect in 1949 and subsequent years, especially since
general statements in the record concerning the arm's-length relations between the
Company and the Independent through the years and prior to the period cited in the
complaint have not been questioned by the General Counsel.11 In view of those
statements and the limited pleadings, the various agreements between the Company
and the Independent, if not wholly irrelevant, would certainly be redundant and
cumulative. Such indicated background, like flies in amber, is neither artistic nor
weighty where the issue is not the Company's motive nor the general relationship
between it and the Independent as distinguished from the immediate violation alleged.
io Signal Oil and Gas Company, 131 NLRB 1427, 1431.
13 Cr. N.L R B. v. Reed & Prance Manufacturing Company, 205 F. 2d 131, 139-140
(C.A. 1).
THE POWERS REGULATOR COMPANY 1201
N L.R.B. v. The Post Publishing Co ,12 and Hotpoint Co, a division of General
Electric Company, a New York corporation v N L.R.B ,13 cited by counsel for the
Company and counsel for the Independent, are not authority for contrary procedure.
It does not appear that details of prior agreements were there deemed necessary but
for the challenge to the terms of such agreements, and the court in Post Publishing
merely referred to the existence of such agreements. In Hotpoint the court "learned
in oral argument" that there had been no industrial unrest for more than 30 years,
and union bylaws were respected where, unlike the instant case, these had been found
to be violative. Whether counsel accept Lincoln' admonition , "In law it is good policy
never to plead what you need not, lest you prove what you cannot," 14 is for them to
decide. But the duty nevertheless remains to limit the hearing to what has been
pleaded and the issues before us.
2. The alleged violations by Bogucki
If the proof of Bogucki 's authority is thin, even less evident is any company direc-
tion or supervision over his activities as a member or officer of the Independent.
Bogucki serves as a member of the Independent 's negotiating committee and execu-
tive board , having been elected by members of the Independent in a closed ballot
vote, and he serves ex officio as a member of its grievance committee ( An exhibit
in evidence indicates that he was president of the Independent in 1948 ) It may also
fairly be concluded that the Company knew of such activities and that Bogucki would
therefore probably participate in the executive board meeting in the conference room
on the morning of September 5 although , as noted supra, it does not appear that the
Company knew in advance the purpose of that meeting
It is not disputed that at the Independent 's membership meeting on the evening of
September 11, after a vote to accept President Artis' report of the vote tally that
afternoon , Sanger started to read a motion that the body affiliate with the Steel-
workers ; when the purpose of the motion was realized , Artis ruled Sanger out of
order, and there ensued a commotion with argument and shouting back and forth by
various members , Bogucki spoke many times ( he apparently did not inhibit the
opposition ), saying among other things that Sanger was out of order and "that this
was ridiculous That [the Independent] could not affiliate with any other union It
is right within [its] constitution ...."
Our present concern is with the Company 's responsibility for Bogucki 's member-
ship in and acts as a member of the negotiating committee and executive board and
at the membership meeting of September I I The law, notably as stated in National
Gypsum Company 15 and Banner Yard Dyeing Corporation,'° appears to be that even
a supervisor 's participation ( Bogucki has been found to be a leadman , not a super-
visor within the meaning of the Act) as an officer and active member of a union does
not violate Section 8 ( a)(2) unless such participation has been instigated by the em-
ployer or is otherwise attributable to it. Nor are we here dealing with a managerial
supervisor in a "brand new" union . Neither does it affirmatively appear whether
and to what extent Bogucki actually participated in bargaining with the Company 17
It should be noted that Bogucki is the only one of some 17 18 members of the
Independent 's executive board , which includes 5 of its officers , who is alleged not to
be a rank-and -file employee Beyond the claim that he is a supervisor , there is no
suggestion of company control over Bogucki 's service or activities on the Inde-
pendent's negotiating committee or executive board , or of his activity at the mem-
bership meeting on September 11; or that his union activities tended to interfere
unlawfully with employees ' organization activities. From the testimony that the
members of the negotiating committee had little to say in discussions with manage-
ment, leaving most of it to their attorney, and that Bogucki 's participation was average
in the discussions among the committeemen , there is no proof but that Bogucki "was
acting on behalf of the employees and against the interests of the Respondent " Iii
As for the Independent 's internal activities , it is not suggested that Bogucki himself
dominated these or acted contrary to the majority of its members or representatives.
19311 F. 2d 565 (CA. 7).
13289E 2d 683 (C A 7).
14 Hill, "Lincoln the Lawyer" 155 (1912).
15 139 NLRB 916
16 139 NLRB 1018.
17 See also Jos Schlitz Brewing Company, 139 NLRB 1466.
1s Reimbursement to the Company was for the time of 19 employees, 2 of whom were not
members of the executive board , the other 3 charged were members of the board.
19 Geaiich Tanning Company, 122 NLRB 1119, 1133.
770-076-65-vol. 149-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it would appear that the burden of showing instigation by the Company is on
the General Counsel and that evidence of participation in certain activities would not
per se be held to be violative, opposing counsel were permitted in the absence of
specific evidence of instigation which might be encountered, to elicit denials of more
than slight participation by Bogucki, of any apparent instigation by the Company, and
of participation by him as a representative of or on behalf of the employer during
negotiations. Further consideration might be given to the extent to which Bogucki's
situation might be covered by the Nassau and Suffolk 20 rule concerning supervisors
who are in the bargaining unit. I find no violation in Bogucki's membership or other
union activities.
3. The alleged independent violation of Section 8(a) (1)
According to Gadison, Liga on September 11 said that Mueller had told him, the
other supervisors, and the foremen to talk to the men; and Liga thereupon reported
that Mueller was upset over charges filed by the Steelworkers and, had said, among
other things, that he would close the factory before he allowed the Steelworkers to
come in Although Dickinson's version of a similar report by Liga omitted the
reference to a direct threat as it merely coupled Mueller's concern over the cost of
production with trouble with the Steelworkers, these were separate reports even
though they related to the same matters, and there is no explanation for the failure to
call Liga as a witness I credit the details as offered by Gadison. What Mueller
actually said is not in issue; this report by Liga was violative.21
Liga then called Crom over to answer a question put by one of the men. I find no
violation in Crom's statement that excessive demands by the Steelworkers had once
forced a partial shutdown, and that this might be repeated here if they got in, the
untoward result being clearly dependent on excessive demands if made by the Union.
I have not overlooked Crom's remark to the effect that there was a problem concern-
ing women employees and that, when asked what would happen to them if an outside
union came in he stated that if the existing contract were no longer in effect, he did
not know what would happen to the women and their personnel bumping privileges.
According to Crom, an employee asked him on the morning of August 26 (he was
uncertain in several respects and quite apparently mistaken when he placed this inci-
dent on October 26) about a rumor that all would be fired if they attended a CIO
meeting; he told her that it was not true and that she might go if she wanted to; he
then reported to Wozniak that "the people" were afraid to go lest they be fired;
Wozniak told him not to do anything about it, but later returned and told him to tell
the people that it was "perfectly all right, that they should go because it is their right,"
and that the Company had "nothing to say about it." Allegedly that afternoon Crom
individually told each of the employees in his three departments that "it was perfectly
all right for them to go to this CIO meeting." We can quite agree with Crom's
further remark, "And it was none of our business," although he did add that "they
should go just to see what they should see about it " While I would not construe this
last phrase hypertechnically as an attempt to limit the purpose of employees' attend-
ance and their concerted activities, I credit employee Potts' testimony over Crom's
denial that the latter told several employees in department L that morning that, if he
caught any of them going to the CIO meeting, he would fire them. This was an
unlawful threat. Any interference in the later encouragement is not alleged. While
it was litigated in the sense that both sides agreed on it, the Company might have
permitted and presented such testimony to minimize the threat, without concern over
a possible finding of encouragement since encouragement was not alleged. I would
not find, therefore, that the nonalleged question of encouragement was litigated. Nor
would a finding concerning this be of moment; I make none.
Following a mysterious conversation which, as Potts related it to Crom, frightened
him, and employee Smelko's identification of Dickinson as pressing him concerning
a CIO card and button, Crom about December 10 questioned Potts concerning pres-
sure by Dickinson. I find no violation here nor in Crom's statement about Decem-
Dick-ber 2, in response to Dickinson's questions, that Smelko and Potts told him that
Nassau and Suffolk Contractors ' Association, Inc. and its members, 118 NLRB 174, 183.
The express authorization declared in Geilich Tanning, supra, as a prerequisite for
finding violation by a supervisor in the bargaining unit, quoted by counsel for the Com-
pany, is in connection with Section 8(a) (2) and company support of a union (This
comports with the finding made concerning liability for Bogucki's participation.) Liability
for interference within the meaning of Section 8(a) (1) by a conduit and without express
authorization or ratification is well established.
THE POWERS REGULATOR COMPANY 1203
inson had been pressuring them. If Crom's deduction was erroneous, he was not guilty
of interference in continuing to the limited extent that he did the discussion initiated
by these employees.
But I do find violative interrogation in Crom's question to Dickinson on September 6
concerning a Steelworkers meeting the night before: Whether he had attended, and
who else and how many were there. (Dickinson here injected an element of impres-
sion of surveillance, which I do not credit. The finding of violation is made despite
Dickinson's manifest bias here and elsewhere, and limitations on his credibility.)
Crom said only that he recalled no such conversation with Dickinson
Although as noted supra, Dickinson did not pinpoint Liga's threat on September 6
as the latter reported what Mueller had said, Dickinson did testify that on two other
occasions during that month Liga told him that Mueller had said that "he would close
down the factory doors before he would let the Steelworkers in." These were threats
communicated in violation of the Act
Gadison testified that on October 16 Cram, speaking in a "kind of loud" voice "as
if he wanted [the men] to hear," discussed with Van Skike, an inspector, the presence
of four or five men from that section at the union meeting the night before Gadison's
impression of Crom's intent is supported by Crom himself who, rather vague on
details, and placing the conversation in December, significantly recalled that Gadison
had been about 12 feet away. This supports the allegation of violation by creating
the impression of surveillance, which I find
This latter allegation is apparently further based on Crom's alleged September and
October references to Potts as a "CIO boy" and his explanation on being asked how
he knew: "Nobody has to tell me who the CIO people are here, I can pick them out
one by one " Any impression here of clairvoyance rather than of surveillance, which
Crom denied and is not otherwise supported, does not establish the allegation of inter-
ference A boast of keen observation is to be distinguished from a claim of knowledge
furtively or secretly obtained.
Nor do I find violation in Crom's statement (and his subsequent explanation) on
December 2 during a conversation based on Dickinson's indicated concern (first
voiced to Liga, who thereupon questioned him; under the circumstances, I find no
violation here) over Crom's impressions, that "everybody had a right to decide for
themselves how they felt about the union and so forth It didn't matter to him one
way or the other ... You could almost tell who the people were that were interested
in the outside union . . . just by watching them," and he mentioned several names.
Again, surveillance is not indicated in this refeience to watching employees 22
Liga's statement to Gadison on December 3 or 4 that the latter had been accused
of filing charges that the Company had threatened to fire him, the question whether
he had done so, and the further statement that they wanted to know elicited denials
by Gadison As alleged, this was unlawful interrogation concerning contacts with
the Board
On December 4 Liga told Dickinson that the attorney had asked him to speak to
Dickinson to see how he felt about the Steelworkers. The context indicates and I find
that Dickinson was correct in his impression that Liga was referring to the Company's
attorney In any event the impression reasonably given to Dickinson, even if mis-
taken, would constitute interference. (We have noted that interference by Liga would
be no less such were it not directly prompted or authorized by the Company.) Liga
stated the Company's "information" that Dickinson was a Steelworkers sympathizer,
and elicited an equivocal reply; asked indirectly whether Dickinson was willing to
testify for the Company before the Board, the reply being in the negative; and also
asked who had complained to the Board, Dickinson in response naming another
employee. Here were unlawful interrogation and impression of surveillance In an
apparently forgetful moment, counsel for the Company invests Liga with greater
agency status, arguing that it is not "improper or illegal for an employer to ask an
employee whether he would be willing to testify ...." [Emphasis supplied.] I would
not identify Liga's acts with proper preparation for trial.
While Liga was a conduit, I find no threat connected with employees' protected
activities in his conversation with Dickinson in December 20 concerning lack of work
and the possibility of a cut in wages. If the Company was waiting until after the
Board hearing before taking action, this does not show organizational cause and
discriminatory effect; even at some expense, it may have preferred not to disturb the
existing situation. There had been at least one previous temporary cut. Liga's men-
"' I find less than overwhelming a sense of heroism in thus abnegating the "sterling
opportunity to create some new law," which this incident affords me as indicated by
counsel for the Company.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to Dickinson of his alleged reference, in a conversation with Wozniak, to the
Steelworkers taking- action on this if they got in provides no element of unlawful
interference
The complaints allege dates and instances of interrogation, appearance of surveil-
lance, and threat by Crom and Liga in addition to those pinpointed by the General
Counsel. There does not appear to be proof of some of those allegations, and we
need not, with respect to each, find violation or dismiss. To paraphrase Milton, the
law delights not to make a drudge of virtue.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring with the
operations described in section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by threats, creating the impression of surveil-
lance, and interrogation, interfered -with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act. I shall therefore recommend that the Com-
pany cease and desist therefrom and from any like or related conduct.
With respect to Section 8(a) (2), the General Counsel seeks an order directing the
Company to cease and desist from recognizing the Independent, with which the Com-
pany has bargained for some 15 years without any claim made, as has been indicated,
that the longstanding relationship was unlawful. The very seriousness of the remedy
sought (presumably including abandonment of the existing contract) and which
would follow a finding of violation of Section 8(a)(2) calls for clear and definite
proof of unlawful assistance or support of a kind which has not been produced. The
fallout from the interference found registers but feebly on the 8(a) (2) Geiger counter.
While an employer may be liable for acts of its agents or conduit, Liga's inter-
ference, imputable to the Company, is not of such a nature or degree as to constitute
interference by the Company with the administration of the Independent or unlawful
support of it. Interference with employees' activities vis-a-vis the Steelworkers may
in a sense be said to be per se (which means regardless of other circumstances)
assistance to the rival labor organization, the Independent. But the assistance and
support of a labor organization, with which Section 8(a) (2) is concerned are not to
be found derivatively merely (again, per se) because there has been interference with
a rival labor organization The interference with on may be without such direct
support (alleged but not found) of the other as would warrant an order to withhold
recognition from a fairly and long-established collective-bargaining representative.
An order to cease and desist from interference with employees' concerted activities
does not warrant further remedy in the present circumstances (no longer per se), such
as withholding of recognition where the Independent's status as majority representative
does not stem from or depend upon such interference
As for violation of Section 8(a) (3), the General Counsel properly concedes that
we have no proof of discrimination beyond the acts found violative of Section
8(a) (1). While violation of Section 8(a) (3) constitutes interference with employees'
rights and so-called derivative violation of Section 8(a)(1), it does not conversely
follow that violation of Section 8(a)(1) ipso facto constitutes discrimination and
violation of Section 8(a)(3). The additional remedy which the General Counsel
requests, that the Company be directed not to discriminate, is not warranted. We are
not to anticipate later violation of Section 8(a)(3) and at this time lay the predicate
for a contempt proceeding in the event of such violation.
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. United Steelworkers of America, AFL-CIO, and Powers Employees Shop Union
are severally labor organizations within the meaning of Section 2(5) of the Act.
2. By threats, creating the impression of surveillance, and interrogation, thereby
interfering with, restraining, and coercing employees in the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
AMERICAN INTERNATIONAL ALUMINUM CORP. 1205
3. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning of
Section 8(a) (2) of the Act.
5. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
[Recommended Order omitted from publication.]
American International Aluminum Corp. and United Steelwork-
ers of America , Local Union 5900 , AFL-CIO. Case No. 12-CA-
2731. November 30, 1964
DECISION AND ORDER
On June 25, 1964, Trial Examiner Stanley Gilbert issued his Deci-
sion 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the Charging Party, and
the Respondent filed exceptions to the Trial Examiner's Decision,
and the General Counsel and the Respondent filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions,2 and recommendations .3
I The Respondent ' s request for oral argument before the Board is hereby denied as, in
our opinion , the record, the exceptions , and the briefs adequately present the issues and
positions of the parties.
2 For the reasons set forth in the Trial Examiner ' s Decision, rules Nos. 7 and 24 are vio-
lative of Section 8(a) (1) of the Act. Under no circumstances could the Union's consent
to such rules , even if it went to the content thereof , validate them. As found by the
Trial Examiner , rule No. 30 also violates Section 8 ( a) (1) of the Act in prohibiting activi-
ties without permission of the Respondent in other than working time and working areas,
since the Union did not agree to the terms of the rule but only to the Respondent ' s right
to post it . Even If the Union consented to the content of the rule , it would be unlawful
to the extent it prohibits activities on behalf of labor organizations other than the Union.
General Motors Corporation ( Buick - Oldsmobile-Pontiac Assembly Division ), 147 NLRB
509. A majority of the Board has respectfully disagreed with the opinion of the court in
denying enforcement of Gale Products, Division of Outboard Marine Corp ., 142 NLRB
1246, enforcement denied 337 F . 2d 390 ( C.A. 7), and adheres to the Board ' s holding
therein.
Member Leedom , who dissented in the above-cited cases, agrees that on the facts herein
the Respondent violated Section 8(a)(1) of the Act by the posting of these various rules,
149 NLRB No. 115.