Tuscarora Plastics Co.

National Labor Relations Board - Board Decisions

Oct 26, 1967

167 N.L.R.B. 1059 (N.L.R.B. 1967)

TUSCARORA PLASTICS CO. 1059
Tuscarora Plastics Co . and Judith Ann Morack,
Charging Party and Employees Committee, Party
in Interest . Case 6-CA-3731
October 26, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 8, 1967, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
case, 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 attached Trial Examiner's Decision.
Thereafter, the Respondent and General Counsel
filed exceptions and cross-exceptions, respectively,
to the Trial Examiner's Decision with supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, cross-
exceptions and briefs, and the entire record in the
case,2 and hereby adopts the findings, conclusions,
and recommendations3 of the Trial Examiner.
In agreeing with the Trial Examiner's conclusion
that Respondent violated Section 8(a)(2) and (1) of
the Act by dominating and interfering with the for-
mation and administration of the Employees Com-
mittee and by rendering unlawful assistance and
support to said labor organization, we note the fol-
lowing: Respondent's president, O'Leary, in late
July and/or August 1966, held and addressed
meetings of all his employees with full awareness
that the Rubber Workers Union and Allied Indus-
trial Workers Union were attempting to organize
the plant. Although O'Leary claimed he was not op-
posed to organizing by employees, he stated that if
an outside union organized the plant it would be
moved or closed, and made it quite clear that he
"would prefer that the employees choose represent-
atives from inside the plant, rather than outside the
plant." O'Leary suggested at these meetings that
the employees pick two representatives on each
shift to form an employee committee which would
represent them in the discussion of grievances,
wages, hours, and other working conditions. Pur-
suant to O'Leary's suggestion, and without even
ascertaining whether a majority of the employees
wished this form of representation, the employees
dutifully selected eight fellow workers as represent-
atives on a shift-by-shift basis. The structure of this
organization accorded Respondent "the implicit
power to control the composition of the Committee
by exercising its managerial power to transfer,
promote, or discharge the employee representa-
tives."'
This shift representatives' group later became
more formalized and established a smaller "Work-
ing Committee." Either or both are hereinafter in-
terchangeably called the Employees Committee or
the Committee. The Employees Committee has no
constititution or bylaws and no rules or regulations
governing membership or administration of activi-
ties on behalf of employees. It has no actual mem-
bership roster, and no dues were ever paid. The
Employees Committee was regarded by O'Leary as
the representative of his employees. O'Leary al-
lowed the Employees Committee the use of com-
pany facilities for holding meetings. It appears that
the Respondent could control matters to be
discussed at these meetings as well as who at-
tended. This is evidenced by the ejection at the
direction of Respondent's plant superintendent,
May, of employee Morack from a committee meet-
ing which she was attending for the purpose of
presenting a grievance with respect to her
discharge. May utilized committee member Smith,
who was completely cognizant of the reason for
Morack's presence at the meeting, to effectuate the
ejection. All Employees Committee meetings with
management were on company time. O'Leary
would specify the date, time, and place of many of
these meetings, which frequently were held in his
own office. O'Leary offered the Employees Com-
mittee the proceeds of the vending machines, which
it could use for Committee purposes, and indicated
that this could serve as a substitute for dues.
Shortly after its formation, the Committee
prepared a list of some 18 employment matters
which it set forth in a compilation entitled "List of
Grievances." This initial list basically remained
unchanged, although the Committee presumably
gained experience during the period following its in-
' We agree with the Trial Examiner 's ruling that the signed statements
of President O'Leary and General Foreman Stuck , both supervisors and
agents of Respondent, could properly be relied upon as admissions against
Respondent ' s interest as well as for the purposes of contradiction and im-
peachment Local 18, Bricklayers , Masons and Plasters ' International
Union of America , AFL-CIO ( Union County Building Contractors As-
sociation), 159 NLRB 30l , fn 9 , Kasco Trucking Corp , 133 NLRB 627,
fn. 2
167 NLRB No. 154
2 After the conclusion of the heanng, the Respondent filed with the
Board a motion to reopen the hearing to present evidence on events sub-
sequent to the hearing, which motion was opposed by General Counsel
As the motion is lacking in merit, it is hereby denied
3 We agree with the Trial Examiner's comments in the Remedy section
of his Decision that a broad cease-and-desist order is warranted in this
case Accordingly, we shall correct the inadvertent error in the Notice
'Hydraulic Accessories Company, 165 NLRB 864
310-541 0 - 70 - 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ception enabling it to modify, enlarge, or decrease
its demand. There is no evidence that a collective-
bargaining contract was ever consummated between
the Employees Committe and Respondent.
Where, as here, the Respondent-initiated Com-
mittee had no discernible resources, collected no
dues, had no constitution or bylaws, had not con-
summated a collective-bargaining contract, and
structurally was under Respondent's implicit power
to control its composition and to some extent con-
trol the conduct of its meetings, we find the conclu-
sion inescapable that Respondent dominated the
Committee.5 Moreover, Respondent's subsidies to
the Committee under such circumstances operated
as an additional aspect of control, thus assuring
Respondent's position of domination over the Em-
ployees Committee.6 Accordingly, in agreement
with the Trial Examiner, we find, from all the cir-
cumstances herein, that Respondent dominated and
interfered with the formation and administration of
the Employees Committee and rendered unlawful
assistance and support to it in violation of 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 adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Tuscarora Plastics Co., New Brighton, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Substitute the following for paragraph 1(a) of
the Trial Examiner's Recommended Order:
"(a) Interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed to
them in Section 7 of the Act by: threatening to
close or shut down its business if its employees en-
gage in union activities; granting or promising its
employees wage increases or any economic benefits
if they refrain from becoming or remaining mem-
bers of or giving any assistance or support to any
labor organization; engaging in the surveillance of
any union meetings attended by any of its em-
ployees; engaging in surveillance of any of its em-
ployees in a manner conveying to them or which
may convey to them that their union activities are
being noted or recorded; coercively interrogating
any of its employees concerning their union mem-
bership, activities, and sympathies or the union
membership, activities, and sympathies of any of
their fellow employees; threatening any of its em-
ployees with loss of employment or any economic
benefits as a consequence for engaging in any union
activities; coercively endeavoring to persuade em-
ployees not to become or remain members of or to
support any labor organization; urging its em-
ployees to form or participate in the formation of
any group, plan, or committee formed according to
a pattern or structure devised by it in preference to
their formation or joining of a labor organization
other than such committee, group, or plan; and
granting or promising any employee a wage in-
crease or any economic benefit as an inducement to
join and support any such committee, plan, or
group."
2. Delete from paragraph 2(b) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided. . . "
3. Amend the third indented paragraph of the
Notice attached to The Trial Examiner's Decision
by substituting "grant or promise our employees
wage increases or any economic benefits" for
"promise our employees any economic benefits."
4. Amend the ninth indented paragraph of the
Notice by substituting "granting or promising wage
increases or any economic benefit . . ." for "offer-
ing any benefits. .."
5. Amend the last indented paragraph of the
Notice by substituting "in any other manner" for
"in any like or related manner. .
6. Delete the last full paragraph of the Notice
and substitute the following in lieu thereof:
"All our employees are free to become or remain
members of United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, or any
other labor organization, or to refrain from doing so,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the National Labor
Relations Act, as amended, as modified by the
Labor-Management Reporting and Disclosure Act
of 1959."
5 K & M Machine Company, Inc, 162 NLRB 83, see also Hydraulic
Accessories Company, supra.
6 Holland Manufacturing Company , 129 NLRB 776, 785, enfd 292
F 2d 840 (C A. 3)
TRIAL EXAMINER'S DECISION
HERMAN TOCKER, Trial Examiner: This proceeding
was initiated by the filing of a charge dated September 13,
1966, and amended October 7. The complaint was issued
October 31 against Tuscarora Plastics Co., the Respond-
ent. It appeared generally herein and filed its answer
November 8. The case came on to be heard before me in
Pittsburgh, Pennsylvania, on December 8 and 9. The
Employees Committee, cited in the caption as "Party In
Interest" also was represented by Counsel and par-
ticipated in the hearing.
Numerous alleged violations of Section 8(a)(1) and (2)
of the Labor Management Relations Act of 1947, as
amended, are charged.
TUSCARORA PLASTICS CO. 1061
Section 8(a)(1) makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed" to them
under the Act. Allegations under this section are that the
Respondent engaged in surveillance, interrogation,
threats, enlistment of employees to report on identity of
others acting on behalf of union, solicitations on behalf of
the Employees Committee in preference to an outside
union, granting a wage increase in November 1966 to
discourage union activities, and promising employees
economic benefits for joining and supporting the Commit-
tee as opposed to the outside union.
Section 8(a)(2) makes it an unfair labor practice for an
employer "to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it." It is alleged that Respond-
ent initiated and promoted the formation of the Commit-
tee, allowed it to use plant facilities during working time
for its meetings, offered and provided it with financial
assistance, provided facilities for conducting the election
of representatives, permitted employees to vote for such
representatives during working hours, urged employees
to negotiate and process grievances through the Commit-
tee rather than through an outside union, and dictated its
form and structure and the qualifications, duties, term of
office, and method of election of representatives.
The Respondent, in its answer, admitted the usual for-
mal allegations, thus submitting to the jurisdiction of the
National Labor Relations Board, but it denied all those
allegations on the basis of which any finding of violation
might be made.
Following the conclusion of the hearing briefs were
submitted on behalf of the General Counsel and the
Respondent. These have been read carefully and all argu-
ments have been considered.
An order providing for corrections of the stenographic
transcript was entered May 1, 1967.
The Issues
The issues fall into two main categories. The first is
whether the Respondent engaged in some or all of the
conduct heretofore cited and, if so, whether by such con-
duct it interfered with, restrained, or coerced employees
in exercise of the rights guaranteed to them to an extent
to justify the issuance of a remedial order. The second is
whether its conduct prior to, while, and after shift
representatives were selected by the employees for the
presentation of grievances, which shift representatives
later developed into a so-called "Employees Committee,"
was such as to constitute domination or interference with
the formation or administration of that "Committee" as
a labor organization or a contribution of financial or other
support to it in violation of Section 8(a)(2). There is also
a collateral issue as to whether the complaint should be
dismissed pursuant to the request or motion of the Charg-
ing Party made during the hearing.
Background and Collateral Fact Findings
Tuscarora Plastics Co., the Respondent, started its
business in 1962. Between then and March 1966 it had a
rather gradual growth from 10 to 34 employees engaged
in production work. Relations between it and its em-
ployees were informal - all personnel matters being taken
up directly by individuals with John O'Leary, its pre-
sident. In March 1966 the production force was ex-
panded considerably. By July it consisted of 92 em-
ployees. The March expansion involved principally the
hiring of female employees who, in large part, did work
previously performed by men. Moreover, in addition to
the work force expansion, Respondent's business soon
required a three-shift, round-the-clock operation and,
more recently, a 7-day workweek.
The prior practice of individual personnel contacts
between employees and President O'Leary continued for
some time after March 1966. The time soon came when
he found this impractical. It took too much of his time and
did not result in more than haphazard and individual solu-
tions to personnel problems and grievances. He therefore
suggested to employees that they designate shift
representatives to whom they would present whatever
claims, grievances, or problems they might have so that
the representatives in turn might deal directly with him or
possibly other officers to be designated by him. He was
of the opinion that this would create a more orderly rela-
tionship. Each shift selected representatives. After a
period of time, these representatives became more for-
malized in that they decided "to establish a working com-
mittee" and employees were requested to choose officers.
A president, vice president, recording secretary, and
financial secretary-treasurer were elected. An actual
membership roster of employees does not appear ever to
have been made and, other than this designation of of-
ficers, there were no formal organization, no constitution
or bylaws (despite a casual remark by Katheryn Stasik
which I regard only as an articulation of her concept of
what she thought the structure should have been rather
than what it actually was), and no rules or regulations
governing membership or administration of activities on
behalf of employees. (While, at the hearing, I had
requested the General Counsel to enlighten me as to the
nature of the "Committee" under attack following a
remonstrance from Respondent's attorney concerning a
line of questioning adopted by him, the General Counsel
never complied with this request. His failure to comply
with Rule 102.35(k) should not be condoned but, after
carefully considering all the evidence and Respondent's
admission in its answer, it has become clear to me that the
evil here, if evil there is, was the body of shift representa-
tives who, at a time following their selection, requested
that officers be elected from among them, which officers
then in turn took it upon themselves to act as an operative
group, being called, for want of a better name, "Commit-
tee" or "Employees Committee." The record in this case
convinces me that Respondent was well aware of the is-
sues in this case and that it was not prejudiced as had
been the case in N.L.R.B. v. Tennsco Corp., 339 F.2d
396 (C.A. 6, 1964).)
The charge, as initially filed herein, alleged, among
other things, that the Charging Party, Judith Ann
Morack, had been discharged because of her concerted
activities with other employees for the purpose of collec-
tive bargaining and other mutual aid and protection. This
portion of the charge is no longer an issue. Following the
demand of the Employees Committee, Respondent rein-
stated Miss Morack. Whatever controversy might have
existed in connection with her discharge has been settled.
She filed an amended charge October 7, 1966, omitting
the paragraph concerned with her termination.
Now, upon the entire record of this proceeding, my ob-
servation of the conduct and demeanor of the witnesses
on the witness stand, my weighing of all the probabilities,
and after carefully reading and considering the briefs sub-
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted on behalf of the respective parties, the following,
in addition to the batckground and collateral factfindings
heretofore set forth, are my further
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times herein involved Tuscarora Plastics Co., the
Respondent, was and still is a corporation duly organized
and existing under the laws of Pennsylvania. It is engaged
in the manufacture and sale of plastic products in New
Brighton, Pennsylvania, and ships annually goods and
materials valued in excessss of $50,000 to destinations in
States other than the State of Pennsylvania. It is now, and
at all material times herein has been, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (Ti of the Act. The National Labor Relations Board
has jurisdiction of this proceeding and of it
II. THE LABOR ORGANIZATIONS
United Rubber , Cork, Linoleum & Plastic Workers of
America, AFL-CIO , herein called the Union , is a labor
organization within the meaning of Section 2(5) of the
Act. On October 10, 1966, it filed a petition for a
representation election , which has been assigned Case
6-RC-4252, and is still pending.
There is a group consisting of shift representatives
selected by employees on particular shifts, in a manner to
be set forth more fully below. This group has identified it-
self as "a working committee." The Committee has a pre-
sident , vice president , recording secretary , and financial
secretary -treasurer . This group and "working commit-
tee" have been characterized as the "Employees Com-
mittee." Respondent has admitted that the "Employees
Committee ," is a labor organization within the meaning
of Section 2(5) of the Act. I so find.
IiI. RESPONDENT'S MANAGEMENT
Respondent's president is John O'Leary, its plant su-
perintendent is Charles May, and its general foreman is
Leroy Stuck. At all times material herein they have been
agents on its behalf and are supervisors within the mean-
ing of Section 2(11) of the Act.
IV. THE TIME ELEMENTS
All the conduct alleged to constitute violations of the
Act (as was not the case in Newman-Green, Inc., 161
NLRB 1062) transpired subsequent to March 1966 dur-
ing a period less than 6 months prior to the filing of the
charges. For that reason, but for the fact that particular
dates might have been necessary to enable Respondent
adequately to know the issues and be prepared to defend
against them, the actual or precise dates are not of any
great consequence with the sole exception, however, that
Respondent's dealings with the Committee following the
filing of the Union's petition for an election must be con-
sidered in view of the rule in Midwest Piping & Supply
Co., Inc., 63 NLRB 1060.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interferences with Protected Activities
Respondent contends that whatever might have been
said or done by its officers and agents was not of such a
nature as to meet the test required for a conclusion that
there was that degree of interference with, restraint, or
coercion of employees within the meaning of Section
8(a)(1) as to justify a remedial order. President O'Leary
and General Foreman Leroy Stuck freely and candidly
admitted that they had engaged in much of the conduct at-
tacked by the General Counsel. President O'Leary, on
the witness stand, impressed me as being at that time and
also at the time of the happening of the events involved
herein as a person who felt himself to be the victim of
harassment because of his belief that his conduct had
been correct and proper in all respects and that whatever
he did was done because he had the best interests of his
employees at heart. To the extent that in some respects
his testimony differed from that given by other witnesses
presented by the General Counsel, I am reminded of
Chief Judge Roszel C. Thomsen's comment at footnote
12 in American Football League v. National Football
League, 205 F.Supp. 60,70 (D.C. Md. 1962):
This case presents many striking examples of the fact
that most men remember very little of conversations
held two or three years ago, mainly those parts which
seemed important to them at the time, and recon-
struct the rest based on what they think they should
have said and therefore must have said.
The facts admitted by O'Leary appear in his testimony
and in a prehearing statement given by him to a Board
agent during the investigation of this case. (While I am
mindful of a view that prior contradictory written state-
ments or affidavits may be utilized only for the purpose of
discrediting a witness and not as evidence of the facts
therein set forth, I believe that view is not applicable here
because they, having been given by O'Leary and Stuck,
supervisors and agents within the meaning of the Act, are
to be regarded as admissions against interest.)
O'Leary admitted he had a general awareness that the
Union (Rubber Workers) and another union (Allied In-
dustrial Workers Union), not otherwise involved in this
case, had been trying to organize Respondent's em-
ployees. While he was unwilling to fix the time of this
awareness, it must have been either in the last week of
July or the early part of August 1966.
He instructed his general foreman, Charles May, that
employees were "not to pass the (union) cards out in the
plant." He conducted meetings of employees at which he
discussed with them the efforts to organize an "outside"
union. Four meetings were conducted before Labor Day
1966. These were convened in the Company's cafeteria.
Other meetings were held upon his direction in the Com-
pany's warehouse At the meetings he informed the em-
ployees of his awareness that outside unions were trying
to organize them. He told them that he would not be
"patsy for anybody" and that he would prefer to deal with
people who were familiar with the Company's business
thereby seeking to convey to them that he didn't want
"any outsider coming in telling [him] how to run [his]
business." Although he denied that he had asserted he
would close the plant before letting an outside union
come in, he admitted that the possibility that the plant
might be closed in that event was brought up in that he
told the employees that if the demands which he had
heard were to be imposed on the Company in the form of
wages the business might not continue because its pricing
structure would not support such wages. (This is an issue
of fact which I shall resolve against O'Leary because of
the credited testimony to the effect that he had threatened
to close the plant in the event that an outside union was
chosen and my belief that his trial testimony falls within
N
TUSCARORA PLASTICS CO. 1063
the observation of Chief Judge Thomsen quoted above.)
Feeling that it was necessary for some method to be
established for communication between employees and
management , he suggested that employees on each shift
select representatives to act for them in the presentation
of their problems to management . He expressed his
preference, when the matter of outside unions presented
itself, that the employees support "the existing commit-
tee." He testified that he did this because he wanted to be
sure that when employees came to him with complaints
or grievances they were presenting the points of view or
feelings of all employees and not merely their own per-
sonal views.
He sought to delay any organization of the employees
beyond the procedure already in effect by asking them to
give him "a year to let us try to work out our own
problems." By this he meant that the employees ought to
deal directly with him in preference to selecting either of
the Unions then seeking to organize the plant.
Following his suggestion that the employees designate
shift representatives , eight were selected . He recognized
them as a representative group. He gave them the use of
company facilities for holding their meetings and allowed
them to meet with management.
He sought support for this group, which he began to re-
gard as a "committee," by telling the employees that he
would turn over to it the commissions received by the
Company from the proceeds of the vending machines on
its premises. He pointed out that this would relieve them
from the payment of union dues. He testified that he re-
garded this money as belonging to all the employees even
though it was an expense to the Company to provide the
machines because of the space used and the electricity
consumed.
The Morack discharge was not an issue in this case. A
factor connected with it does, however , have a bearing on
the remaining issues. She was prevented from processing
her grievance through the committee of shift representa-
tives because, when she sought to do that , it was holding
a meeting at the Respondent ' s plant and she was ejected
on the ground that , not being an employee at the time, she
was a trespasser.
Following the filing by the Union of its petition for an
election (October 10 , 1966), purportedly as the result of
negotiations with the Employees Committee , Respondent
on November 8 granted its employees an immediate
wage increase of 15 cents an hour and promised them an
additional increase of 10 cents in May 1967. At the same
time it promised a further review of the wage situation in
November 1967 and provided $5,000 insurance for each
employee, effective November 7, 1966. The notice to the
employees contained the additional statement that
Respondent had been advised by its attorneys "that any
negotiations of wages with your Union may be con-
sidered by the National Labor Relations Board to be a
violation of the National Labor Relations Act." Despite
this advice it went ahead and did exactly what it had been
advised not to do. In addition , it showed its preference for
the Employees Committee as opposed to the Rubber
Workers Union or any other outside union by telling
them , "We believe that we are dealing in good faith with
your Union , and also believe that in the end our position
will be found to be correct."
Leroy Stuck, Respondent ' s general foreman, also
showed a good deal of candor in his testimony and made
numerous admissions . His testimony is, however,
likewise subject to the observation made by Chief Judge
Thomsen, quoted above. To the extent that I rely on ad-
missions made by him in a prehearing statement to a
Board agent, I do so because I consider them to be admis-
sions against interest by an officer or agent of the
Respondent.
Stuck was hired originally as a laborer at $1.50 an hour.
After 2 months he became a foreman and, by April 1966,
he was appointed general foreman . This, it should be re-
called , happened soon after the sharp increase in
Respondent ' s work force occasioned by the hiring of the
female employees in March . Stuck , no doubt, was
influenced in his relations with employees by his prior
experience at a glass company where the employees had
been represented by what he called a "company union."
He admitted he had interrogated various employees as
to whether they had signed union cards and whether they
attended union meetings . He asked one employee, Linda
O'Shea, who was responsible for passing out union cards.
When pressed , he agreed that he might have asked similar
questions of other employees . He watched an employee
for the purpose of ascertaining whether she was passing
out union cards but it is claimed that this last was done
only for the purpose of making certain that the activity
did not interfere with production. (Assuming that to have
been the reason , Respondent had not adopted any rules
against solicitation during worktime and, on the contrary,
had participated in and encouraged solicitation during
worktime on behalf of the shift representative plan.) He
asked at least one employee (but possibly more) which
employees attended outside union meetings. Some state-
ments in his affidavit were , " I have questioned various
employees at their work stations as to what happened at
union meeting [sic] and as to which employees attended
these meetings"; "I have inquired of various employees,
at their work stations , who was responsible for passing
out union cards"; (after ascertaining what employee was
passing out cards) he "did not approach her about this,
but did keep her under surveillance to see if she en-
couraged union activity on company time."
On "cross-examination" (he had been called as an ad-
verse witness and was being interrogated by Respond-
ent's counsel), it was brought out that in the summer of
1966 he was aware of the effort of an outside union other
than the Rubber Workers Union to organize the plant and
that some girls on the day shift had signed union cards for
an outside union. He sought to validate his suggestion to
an employee as to the person for whom she should vote
as shift representative by saying that she had invited this
when she remarked to him that "she had no idea" for
whom to vote.
The pattern of O'Leary's and Stuck's testimony, con-
sidered together with that given by other witnesses called
in support of the complaint and the events which con-
cededly transpired , is such that I am persuaded to credit
the testimony of those witnesses as being a more accurate
depiction of the events which are the basis for this
proceeding . This is not to say that these gentlemen will-
fully lied in their testimony. They just fell victim to that
human frailty pictured by Chief Judge Thomsen in
A merican Football League v. National Football League,
205 F Supp. 60, 70 (D.C. Md. 1962), footnote 12, above.
The foregoing is not a complete recital of Mr.
O'Leary's testimony. Additional references to it will be
made in the portion of this Decision concerned mainly
with the alleged violation of Section 8 (a)(2). With the
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing apperceptive mass, I shall now proceed to the
testimony given by employee witnesses.
Mary Katheryn Welsh was among the female em-
ployees hired in March 1966. She was a press operator on
the day shift. In July the Union started to organize
Respondent's employees. She went to it, obtained a
supply of union cards and passed them out to employees
on all three shifts. This became known to the Company
but no officer or supervisor ever told her not to pass them
out, threatened her in any manner if she did pass them
out, or promised her anything not to pass them out.
President O'Leary, on or about July 23, addressed a
meeting of all the day shift employees. This meeting was
in the cafeteria or lunchroom. After referring to the ef-
forts to organize the employees, he stated that he was op-
posed to an outside union and that, "We could form our
own, have our own representative inside of the Plant ...
they could take our grievances for us rather than talk to
each person individually as they had a grievance. This
Committee could represent the employees instead of tak-
ing grievances individually why they could go in as a
Committee." She testified also that he said that "he might
have to close the Plant down and move out" if an outside
union organized the employees.
Miss Welsh spoke up during the meeting and asked
O'Leary whether the Committee was going to be a com-
pany union . He answered that he did not like the word
"union" and that , " It was to be a Committee ." He said
that the grievances could go through it and the same
benefits as those which might be had from an outside
union could be obtained in that manner . It was during
this meeting that he told the employees that he would not
be a "patsy" for anyone and that no one from outside the
plant would be permitted to tell him how to run his
business.
Prior to this time the witness had not known of any
committee purporting to represent the employees. But,
within a week or so later, steps were taken for the selec-
tion of persons to represent her shift. The employees on
her shift had congregated in the cafeteria or lunchroom
where sheets of paper, which had been made available
there, were utilized by them for the purpose of writing
names of persons to represent the shift. Each employee
wrote on a sheet the names of whatever persons he or she
desired as representatives. The sheets then were folded
and made available for counting. When this had been
completed, it was announced that Edna Landis, Felix
Oliver, and Shirley Pearce had been selected as the
representatives for the day shift. (It was stated for the
record that Shirley Pearce left Respondent's employ Au-
gust 22, 1966. Consequently, this process of selection
must have been sometime prior to then and this is con-
sistent with Welsh's testimony. After Shirley Pearce left,
the employees on the day shift voted for a successor. Kay
Stasik was selected.) This election was entirely informal,
no supervisor was present, no one was instructed how to
vote, and the circumstances were such that anyone could
see how anyone else voted. Considering that at this time
the Union and another union had started a campaign to
organize the employees and, as a counterproposal to such
organization, O'Leary had urged the presentation of
grievances by the employees through a committee from
within the plant, it follows that, even if he did not directly
organize this process for selection of shift representa-
tives, it was the actual result of his suggestion and urging.
Welsh then told of a Rubber Workers Union meeting
held in the union hall in Beaver Falls one Monday even-
ing in July. Prior to going there, she had seen Charles
May, the plant superintendent, leaving the plant in his au-
tomobile. Following her arrival at the hall, she saw him in
his car circling the block where the hall was located and
then stopping directly across from it at a place where he
had a clear view. A number of employees were entering
the hall about that time. Everyone who attended the
meeting knew that he was out in the street watching
because, with the exception of some girls who feared that
he might see them, the persons present went to the win-
dow and looked to see him in his parked car.
Linda O'Shea confirmed that Foreman Stuck had
asked her on two different occasions, about a week apart,
whether she had signed a union card. Although she ac-
tually had signed, she told him that she had not. He asked
her also whether anyone, apart from Welsh, was passing
out union cards. He impressed her with the thoroughness
of his investigation or surveillance of the organizing ac-
tivities by naming girls who he said had signed union
cards, saying that he had been told that all but two or
three had signed, and naming girls who he said had not
signed.
She thereupon tried to convey to Stuck that she was
distressed by his conversations with her because the girls
were beginning to characterize her as a "stoolie" due to
their knowledge of his conversations with her and their
suspicion that she was providing him with information
about the Union's activities. He sought to set her at ease
by assuring her that she could report anything to him
without worry because he would not tell anybody.
Although it was brought out on cross-examination that
Stuck had assured her that she was free to make up her
own mind as to whether she wanted a union in the plant
and never had told her that she would lose her job if the
Union "got in" or that she would be benefited in any way
if she "would vote to keep the Union out," I am satisfied
that adverse consequences of union activity had been inti-
mated to her . In one or more of the four or five times that
Stuck spoke to her about the Union he asked her "if she
needed her job" and commented, if that was the fact, she
would be better off opposed to the Union. (This last is not
the subject of precise testimony but the actual testimony,
although in the alternative, is to the same effect- that
Stuck told her that if she wanted her job she "wouldn't
want a union in" or that she "wouldn't sign a card." She
was perfectly frank in pointing out that she was unable to
tell "exactly what he said.")
Judith Ann Morack also testified about a meeting held
in July shortly after the beginning of the campaigns to or-
ganize Respondent's employees. She was working on the
night shift beginning at midnight. The practice of the girls
was to assemble in the lunchroom after punching in. They
were so assembled when their foreman instructed them to
await O'Leary who wanted to talk to them. Morack's
testimony is generally to the effect that O'Leary's talk to
her shift was substantially as had been testified by Welsh
as to his talk to the day shift. He told them that he had
heard of the efforts of outside unions to organize the plant
and that this disappointed him because he had not been
given the opportunity to make improvements. He was op-
posed to an outside union coming in and telling him what
to do. If that happened "he would pack up his plant and
move out." As an alternative, he suggested that the em-
ployees select two representatives from each shift for the
purpose of forming an employees' committee. The Com-
TUSCARORA PLASTICS CO. 1065
mittee then could act on behalf of the employees and they
would not have to pay any dues.
Following the conclusion of this meeting (not a week
later as had been testified by Welsh) and before proceed-
ing to work, the employees spontaneously selected two
representatives. This selection did not become final
because some girls had protested there ought to be a
secret ballot. In the morning, apparently after the shift
had completed its work, sheets of paper were distributed
in the lunchroom and each employee wrote two names as
his or her choice for shift representatives. Again, there is
affirmative testimony that the Respondent did not in any
overt manner interfere with or participate in this ballot-
ing.
She testified also about the incident when Respondent
interfered with her effort to process her grievance before
the Employees Committee following her discharge in
September. As has been brought out, when she attempted
to do this, she was ejected from the plant and the Com-
mittee was prevented from hearing her.
Morack's testimony about the alleged assertion by
O'Leary that if an outside union came in he would pick up
the plant became conflicting during cross-examination.
She was asked about her testimony in this respect and
whether she had quoted O'Leary's exact words and she
answered, "Probably not." Respondent's attorney
promptly followed this with a repetition of her words,
"Probably not," and with the almost declaratory state-
ment, "In fact, didn't he say that if I cannot meet the
economic demands of the Union I might have to close my
plant and move?", to which she replied, "I think so," and
immediately thereafter answered, "Yes" to the further
declaratory question , "Isn't that closer to what he said?"
She was later reinterrogated by the General Counsel and
brought quickly to her testimony about what Mr. O'Leary
might have said if an outside union got into the plant. She
protested, saying, "I already said that. Do you want it
again?" She was then asked, not by a leading question, to
tell to the best of her recollection what O'Leary had said
and she answered, "All I could remember is, that he
would pick up his Plant and move out." I felt that the
record was in an unsatisfactory state by her answering
first one way, then another, and then the same as she had
answered at first. I pointed this out to her, reminding her
that she had just answered that O'Leary had said, "that
he would pick up his Plant and go elsewhere," to which
she responded, "Yes." Then I reminded her that when
Respondent's attorney had asked her some questions she
had "agreed to something else," and I said, "Do you re-
member what you agreed to?" This time she answered,
"If he couldn't meet the economic demands, something
like that." I reminded her of her oath to tell the whole
truth and not to worry about anybody who might be
present at the hearing. I again asked her what Mr.
O'Leary had said and she answered, "I guess that way
Mr. Harty [Respondent's attorney] stated it." Later, in
response to still another question from me, she assured
me that her testimony was that O'Leary "said, `If he
couldn't meet the Union's economic demands,'- I don't
know- `he would pick up his Plant and move out."'
Despite her assurances to me and her superficially self-
contradictory testimony, on the basis of my observation
of her on the witness stand during this episode, her adop-
tion of "the way Mr. Harty stated it," and also her later
testimony with respect to her desire to withdraw the
charge, I have concluded that her initial testimony, which
is consistent with other testimony, should be regarded as
true and that O'Leary had threatened that if an "outside"
union came in he would "pick up his Plant and move
out." This response initially had been given after, without
suggestion or lead, she testified that O'Leary had said,
"He didn't want an outside union coming in and telling
him what to do." Although the General Counsel's crucial
follow-up question - "Did he say what he would do if an
outside union did come in?" - came very near to being
leading, it was not put in the extremely declaratory form
in which Respondent's attorney's question, above
quoted, was put.
Dorla Krachinsky confirmed that, although Stuck as-
sured her that it was entirely up to her whether she voted
for or against a union, he did interrogate her as to whether
she had signed a union card. This happened at her work
station.
Edna Landis testified to O'Leary's remarks at a meet-
ing in July. She said that O'Leary had asserted that "he
wouldn't be a patsy for anyone" while expressing his dis-
approval of the efforts to organize an "outside union" and
that, as opposed to the organization of such a union, the
employees ought to select representatives from each shift
for the purpose of communicating with him. She was not
as explicit as Morack had been initially about O'Leary's
alleged threat to close the plant in the event of its or-
ganization by an outside union. She said he had remarked,
"If an outside organization did come in that he may be
forced, and he could not meet the demands, he may be
forced to pick up his Company and leave." In the light of
an incident involving her initial but admittedly and obvi-
ously erroneous charge that a prehearing statement given
to a Board agent had been altered and amplified by him
after her signature thereto and her general demeanor, I
am inclined to believe that she was "soft-pedaling" her
testimony about this remark by O'Leary and that she
really meant, even though she was careful not to say it,
that he had said that if an outside union came in he would
close the plant. This is my interpretation of her testimony
at the hearing. (I need not rely on nor accept as evidence
of the fact that in the prehearing statement she had said,
"He said that he wouldn't be a patsy for anyone. He said
he would close down the shop before he would let a union
come in.")
Except for the portion of the testimony concerned with
the alleged violation of Section 8(a)(2), much of which if
accepted would establish as well that there were inde-
pendent violations of Section 8(a)(1), this completes my
concentration on the 8(a)(l) portion of the complaint.
With the sole exception of the sharp issue of fact engen-
dered by Respondent's express denial of a threat that the
plant would be closed or moved away in the event of or-
ganization by an outside union, there is little or no con-
troversy about the happening of the other events just
recounted. To the extent that there is controversy, that
controversy is whether the admitted conduct should be
regarded as coercive or violative of law and, even if so
violative, whether it is of such a nature and quantity as to
justify the issuance of a remedial order.
I have concluded already that O'Leary did threaten
that if an outside union were organized the plant would be
closed or moved. (Compare with my remarks in part III,
B, Portage Plastic Company, reversed for other reasons,
163 NLRB 753.) Such a threat is a classic violation of
Section 8(a)(1). But, even if the remark was merely to the
effect that, having heard what the Union intended to de-
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mand, he would not be able to meet those demands and
would have to close his plant or move away, that remark
would have been coercive and deterringly assurant that
organization of an outside union would avail the em-
ployees nothing because he would not engage in collec-
tive bargaining with it in an effort to obtain less onerous
demands within his economic capability.
To assure employees that there is no need to form or
participate in the formation of a labor organization to
which he was opposed because they can or will get
equivalent benefits without such organization, whether
with or without a reference to a saving of dues money, is
an interference with the right vested in them by Section'
7 of the Act because it tends to dissuade them from such
conduct by holding before them the bait of equivalent
benefits if they do not exercise their statutory right and a
threat or assurance that if they do, any other organization
will not be able to get better benefits for them.
By stating its opposition to outside unions and suggest-
ing as the preferred alternative the selection of shift
representatives with whom it would negotiate, Respond-
ent interfered with its employees' rights as guaranteed
by Section 7 of the Act because it thereby held out to
them as an inducement not to exercise those rights the
suggestion that he would be more friendly disposed to de-
mands made by shift representatives than to those made
by representatives from an outside union.
Respondent's overt surveillance of the union meeting,
and its interrogation of employees as to their union activi-
ties and those of other employees, in the context of its ex-
pressed opposition to outside unions and its favoring of
in-plant organization, could do nothing less than instill
fear in those employees who otherwise might seek to ex-
ercise the rights guaranteed by Section 7 of the Act and
deter or prevent them from exercising those rights, par-
ticularly when Respondent was not faced with any neces-
sity for determining what proportion of its employees had
signed union cards or who were members of the Union.
The Respondent made clear its positive opposition to
an outside union. Although its right to take that position
(provided there is no threat of reprisal or force or promise
of benefit) is protected by Section 8(c) of the Act, the ac-
companying surveillance, interrogation, and affirmative
support of the shift representative program caused what
might otherwise be innocent or innocuous interrogation
or argument to become coercive and capable of inspiring
fear as to the consequences which might follow on sym-
pathy for or support of the organization to which
Respondent overtly was opposed.
The remark to one employee that if she needed her job
she would not join an outside union or sign a card bore the
distinct threat that if she did she would be discharged.
The wage increase in November 1966, following as it
did the organizing campaign of the Union and the filing of
its petition for an election, clearly was calculated to
discourage membership in the Union and was not, as ar-
gued in Respondent's behalf, simply the fulfillment of a
commitment previously arrived at through arms-length
negotiation with the Employees Committee.
B. The Alleged Domination, Interference with the For-
mation or Administration of the Employees Committee,
or the Contribution of Financial or Other Support to It
What I have found above to be interferences by the
Respondent with rights guaranteed to its employees
under Section 7 of the Act has a direct bearing upon and
relation to that portion of the complaint concerned with
the Employees Committee . Also, as I have said before,
certain of the Respondent 's conduct with respect to the
Committee constitutes interference , restraint , or coercion
which amounts as well to a violation of Section 8(a)(1).
I have noted in section III , above, that the rapid growth
of Respondent 's business and the excessive amount of
time demanded of Mr. O'Leary for the adjustment of
complaints or grievances of individual employees
prompted his suggestion that employees select shift
representatives who might act on their behalf for the ad-
justment of problems or grievances . This in and of itself
would not be an unfair labor practice or a violation of Sec-
tion 8 (a)(2). As a matter of fact , as so admirably set out in
the monograph entitled , "What Constitutes ` Financial Or
Other Support ' Within § 8(a)(2) [29 USC § 158 (a)(2)]
Making Such Support Of A Union An Unfair Labor
Practice ," 10 A.L.R. 3d 861 , certain individual or iso-
lated actions of an employer tending to support or favor
a particular group or labor organization , when taken
alone, do not constitute violative conduct . On the other
hand , particular conduct , although in and of itself not
violative, when committed together with other conduct
even though when considered separately also not viola-
tive, may in the aggregate result in a violation of Section
8(a)(2). "The question is not whether each individual fact
is a violation , but whether the facts taken together" justi-
fy a conclusion that there has been a violation . N.L.R.B.
v. Thompson Ramo Wooldridge , Inc., 305 F.2d 807
(C.A. 7).
Respondent impliedly recognizes that some of its con-
duct with respect to the Employees Committee may be
regarded as violative of Section 8(a)(1) when it says that
the General Counsel , " traditionally alleges a violation of
only Section 8(a)(1)" "where the employer suggests that
employees organize their own labor organization." Re-
gardless of whether there is such a tradition (which, even
if it did exist , I would not regard as placing the General
Counsel in a straight jacket to continue) if all the acts and
conduct of an employer are such as to justify the conclu-
sion that there was domination or support , etc., the
General Counsel would not be precluded from contend-
ing and the Board would not be precluded from finding
that there was in fact violation of Section 8(a)(2) as well.
(As to flexibility generally, see Board 's footnote 1, HLH
Products , Division of Hunt Oil Co., 164 NLRB 325
(May 4 , 1967).)
To ascertain whether Respondent 's conduct in its en-
tirety constituted a violation of Section 8(a)(2), the par-
ticular facts of this case must be considered with due re-
gard to the problems with which it was confronted, but
those problems cannot be the basis for, or a defense
against , an actual violation.
President O'Leary, according to his testimony, as-
sumed , at the time that he admittedly addressed meetings
of his employees in late July or August , that some sort of
employees ' committee already was in existence. In
response to a question whether he had told the employees
to select representatives from each shift, he answered, "I
believe this has [had ?] already occurred much prior to
these meetings . But I could not be sure of that again on
the dates . This Committee was in existence and I asked
them to support the Committee as opposed to anything
else that might be in the offing . I asked for a year to let us
try to work out our own problems ." While he claimed he
TUSCARORA PLASTICS CO. 1067
was not opposed to organizing by employees , he made
clear that he "would prefer that the employees choose
representatives from inside the plant , rather than outside
the plant ." He "suggested an employee committee which
would represent the employees in regard to discussion of
grievances , wages, hours and other working conditions."
Following this suggestion' the employees , on a shift-by-
shift basis , selected eight fellow workers as representa-
tives. He regarded them as a representative committee,
gave them the use of company facilities for holding their
meetings and any meetings by them with management
were on company time. He offered them the proceeds or
commissions received by the Company from the vending
machines . The Committee might use the money for any
purpose but it could use it "in lieu of dues from the em-
ployees."
It is admitted that Morack had been ejected from a
committee meeting held on company property on a Sun-
day afternoon . In addition to any other matters which that
Committee might have been discussing and assuming that
it considered itself a labor organization to protect and ad-
vance the rights of fellow employees , it would have been
confronted with the need for hearing her version of the
facts underlying the grievance arising from her discharge.
It was prevented at that time from doing so because it was
meeting on Respondent ' s premises and Respondent
barred her from the meeting. A labor organization which
is powerless to conduct a meeting to consider grievances
because of conduct of an employer (which included not
only Morack 's ejection but also utilization of the aid of a
committee member to effectuate the ejection ) is certainly
under the domination of that employer . This incident was
not neutralized by the Committee 's subsequent success
in having Morack reinstated with backpay.
If, as Mr . O'Leary asserted, the proceeds or commis-
sions from vending machines were the property of the
employees , his offer to donate them to the Committee
constituted an offer to divert to it property belonging to
those employees who might be opposed to it and in favor
of some other or no labor organization . This is not only
financial aid but also a discriminatory diversion of other
people's money which would tend to cause such persons
to give their support or transfer their support from
another labor organization to the favored one and compel
such support from those uncommitted.
Although Respondent had the right to assert its
preference for the Employees Committee as opposed to
the Rubber Workers Union (provided there was "no
threat of reprisal or force or promise of benefit ") during
the time that the latter was attempting to organize its em-
ployees, its continued recognition of, dealings with, and
agreements with the Committee following the filing of the
Union 's petition for a representation election were con-
trary to the doctrine of Midwest Piping & Supply Co.,
Inc., 63 NLRB 1060.
On November 8, 1966, O'Leary informed the em-
ployees of his negotiations with the Committee, called
them "your union officers," and set forth numerous
benefits proposed to them . He wrote, "Our attorneys for
the company have told us that any negotiations of wages
with your Union may be considered by the National
Labor Relations Board to be a violation of the National
Labor Relations Act. However we believe that we are
dealing in good faith with your Union , and also believe
that in the end our position will be found to be correct "
Disregard of advice from one's lawyer may be unwise but
is not unlawful and to do so is to take a calculated nsk.
Respondent took the risk and arrogated to itself the right
to decide an issue which at the time was pending before
the Board. This was a violation within the meaning of the
Midwest doctrine. The violation was compounded by the
granting of the wage increase mentioned in the letter and
the promise of future benefits.
Although, when interrogated by the General Counsel
as an adverse witness, Mr. O'Leary testified that he did
not know when the present representatives of the Com-
mittee had been elected or when or how anyone first had
told him of their selection or election, it was brought out
in his direct testimony on defense that Committee Pres-
ident Ron Bolland had given him a copy of a notice pur-
porting to show the results of an election just held. This
showed that on October 7, Bolland had been elected pre-
sident, Oliver vice president, Gordon recording secreta-
ry, and Schreckengost financial secretary. He referred to
this group as "the Employees Committee." Meetings
with them were held in his office on company time. He
permitted them to use the Company's bulletin board for
its notices
The shift representatives had been selected informally
upon the suggestion of President O'Leary in meetings
called by him just as union organization activity was
getting under way. This system gave Respondent dual
control. It had the power to deprive a shift of a represent-
ative either by transfer to another shift or discharge.
Shift representatives had been selected early in August
1966. In the first week of October a total of nine persons
were acting as such. They decided that they would
become more formalized. On October 7, without prior
discussion or opportunity to present nominations, the fol-
lowing notice was posted:
THE FOLLOWING ARE YOUR SHOP REPRESENTATIVES.
IN ORDER TO ESTABLISH A WORKING COMMITTEE, WE
ARE ASKING YOU TO CHOOSE YOUR OFFICERS. PLEASE
WRITE IN ONE NAME OF YOUR CHOICE FOR EACH OF-
FICE.
THANK YOU.
FELIX OLIVER PEGGY GORDON
KATHERYN STASIK DOT SMITH
EDNA LANDIS MARGARET MURPHY
JUDY MAY EDNA SCKRECKENGOST
RONALD BOLLAND
I.
2.
3•
4•
OFFICES TO BE FILLED
PRESIDENT
VICE-PRESIDENT
RECORDING SECRETARY
FINANCIAL SECRETARY-TREASURER
Whether or not the Respondent participated in the idea
for, or the drafting of, this notice is not decisive. It is im-
portant, however, that the nine persons who had been
selected informally, in conformance with a pattern in-
duced by the Respondent, not as representatives of the
entire unit but rather as "senatorial" representatives of
particular shifts, were presented in the broadside commu-
nication to all employees in the words, "The following are
your shop representatives." They were not Respondent's
employees' shop representatives. At best, they were
representatives on a shift-by-shift basis only of those em-
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees who had availed themselves of Respondent's sug-
gestion that such representatives be appointed.
Next in this notice the need for establishing "a working
committee" was suggested. The employees were told,
"We are asking you to choose your officers. Please write
in one name of your choice for each office." They were
given no opportunity to participate in the selection of can-
didates for the offices. The structure and content of the
notice were so designed that the only candidates were the
nine persons listed as "shop representatives." Thus,
while the employees were being told that they were vot-
ing for their "officers" they actually were voting only for
officers among or constituting the nine shift representa-
tives.
The paper entitled, "Notice," delivered to President
O'Leary by Ron Bolland, purported to show the results
of the election and had been typed by one of Respond-
ent's office employees. Although it then had at least and
probably more than 92 production employees only 53 bal-
lots had been cast. No person "elected" received a
majority of the votes. Bolland was elected president with
16 votes and his runners up were Edna Landis and Felix
Oliver each with 14 votes. Felix Oliver was elected vice
president with 13 votes and his runners up were Ron Bol-
land with 8 and Kay Stasik and Edna Schrenkengost each
with 7. Peggy Gordon was elected recording secretary
with 13 votes and her runner up was Dorothy Smith with
12. Edna Schrenkengost was elected financial secretary
with 10 votes and her runners up were Dorothy Smith
and Judy May, each with 7.
The restrictive nature of the election notice, apart from
the implication from its contents, was effective to assure
no change in the makeup of the "Committee." This is
borne out by the fact that only one person not named,
Harry Argeris, received votes for any office. He was able
to muster a mere two votes for the office of vice president
and how this came about is not disclosed in the record.
Having developed in the manner in which it did
develop, regardless of its legal status as a labor organiza-
tion under Section 2(5) of the Act, this "Employees Com-
mittee," or these officers as a group, or these shift
representatives as a group, cannot be regarded as a
representative for collective bargaining on behalf of
Respondent's employees within the meaning of Section
9(a) of the Act. Certainly it cannot be said that it
represented a majority of the employees in the bargaining
unit or that such a majority ever selected it. Yet Respond-
ent took upon itself to deal with it and recognize it as the
collective-bargaining representative of all its employees.
It was the direct outgrowth of O'Leary's importuning that
the employees select representatives from inside the plant
and his advice to them that such representatives could
communicate with him as a committee. In that sense it
was his creation.
Mary Katheryn Welsh testified that Committee Pre-
sident Bolland, referring to the proceeds or commissions
received by Respondent from vending machines, had in-
formed the employees that it was the Committee's inten-
tion to "hire a lawyer with the money." Bolland, although
called by the Respondent, and represented at the hearing
by separate counsel, was called only for the purpose of
establishing that he had delivered the notice of election to
Respondent. He did not deny that he expected to receive
the vending machine proceeds and that the Committee in-
tended to use that money for the purpose of retaining an
attorney. (All that was developed from his testimony was
that he had engineered the arrangements for the election
of the officers, that the notice was posted at the Com-
pany's timeclock, and that the election was conceived on
a Tuesday, held on the Friday immediately following
because it was payday and "most everybody would be
present," and, following the posting of the notice, the
election was held and consummated without more.)
Apart from the casual mention of bylaws to which I
have referred elsewhere, there was affirmative testimony
that there were no bylaws, that no dues were paid, and
that the "Committee" or body of shift representatives has
no constitution. Such meetings as it conducts are held in
a glass-enclosed room in Respondent's plant and are sub-
ject to observation by anyone, including supervisors, who
might care to look through the glass. This testimony was
not denied. Respondent seeks to minimize its substantive
value by saying that it was given by persons who are not
members of the Committee and "only as to their own
knowledge." If by this it seeks to imply that there may be
bylaws and a constitution its effort is ill-advised because,
if the employees who are supposed to be represented are
not informed, who should be?
Respondent's relations with the Committee (as a group
having officers) or with the shift representatives (to the
extent that it constitutes the larger group which operates
through the Committee) are wholly indefinite. In fact,
President O'Leary testified that no group of employees
ever told him that it represented any of Respondent's em-
ployees "for the purposes of wages, hours, and other con-
ditions of employment."
It does not appear that any written contract ever has
been executed between the Committee and Respondent.
At the the time of the hearing there was under discussion
or negotiation between the Respondent and the Commit-
tee an aggregate of some 18 matters set forth in a compila-
tion called "List of Grievances." These items were com-
piled following a Sunday afternoon group meeting of em-
ployees held some months earlier. That meeting seemed
to have had no leadership until an employee, Larry Snair,
took it upon himself to take charge. While all employees
could have attended, only 50 from all three shifts were
present. It was held on the company premises following
permission granted to Snair by Respondent's plant su-
perintendent, Charles May. During his testimony,
O'Leary disclosed that although some of the items had
been granted and others rejected, many still were the sub-
ject of negotiation between him and the Committee. A
notable factor about this compilation is that it represented
grievances or demands which had been crystallized for
months and, for all that the record discloses, no new
grievances or demands had come up in the time interven-
ing and the items, as initially presented, did not appear
ever to have been modified, enlarged, or decreased as the
result of experience gained during the time following their
initial formulation.
After taking into consideration all the factors cited in
this section of the decision and also those which I have
noted as supporting the charge in violation of Section
8(a)(1) of the Act, I am of the opinion that Respondent
has dominated and interfered with the formation of the
Employees Committee, has contributed substantial sup-
port to it, and has made known its willingness to con-
tribute financial support to it. While direct financial sup-
port involving the actual transfer or payment of the
proceeds from the vending machines has not yet been ac-
complished, Respondent's announced intention or
TUSCARORA PLASTICS CO. 1069
willingness to turn over these proceeds to the Committee
is, for all practical purposes, financial support in that the
Committee has proceeded upon the assumption and has
relied on the expectation that if it continues in existence,
in due course it will receive these proceeds.
VI. THE MOTION TO DISMISS THE COMPLAINT BY REASON
OF THE CHARGING PARTY'S STATEMENT DURING THE
HEARING OF HER DESIRE TO WITHDRAW THE CHARGES
The motion to dismiss the complaint was developed by
the testimony of Judith Ann Morack in response to inter-
rogation by Respondent's attorney. She testified, "I do
want to withdraw the charges." She answered. "Yes sir,"
in response to an inquiry whether she wished, "to present
to the Trial Examiner a motion to withdraw" her charges.
Section 102.9 of the Board's Rules and Regulations
governing the filing, withdrawal, and dismissal of charges
is:
Sec. 102.9 Who may file; withdrawal and
dismissal. -A charge that any person has engaged in
or is engaging in any unfair labor practice affecting
commerce may be made by any person. Any such
charge may be withdrawn, prior to the hearing, only
with the consent of the regional director with whom
such charge was filed; at the hearing and until the
case has been transferred to the Board pursuant to
section 102 .45, upon motion , with the consent of the
trial examiner designated to conduct the hearing; and
after the case has been transferred to the Board pur-
suant to section 102.45, upon motion, with the con-
sent of the Board. Upon withdrawal of any charge,
any complaint based thereon shall be dismissed by
the regional director issuing the complaint , the trial
examiner designated to conduct the hearing, or the
Board.
It is quite clear that a charge may be withdrawn by a
charging party subject to the conditions set forth in the
rule. The motion or request to withdraw was made during
the hearing and prior to the transfer of this case to the
Board . Consequently, it "may be withdrawn" only "with
the consent of the trial examiner designated to conduct
the hearing." This means that the withdrawal is not sub-
ject solely to the whim or desire of the charging party and
the mere expression of the request does not bring into
operation the last sentence of the rule requiring that the
"complaint based thereon shall be dismissed...... The
wording of the rule requires that the Trial Examiner exer-
cise a sound discretion as to whether the charging party
should be allowed to withdraw the charge.
By Section 10(b) of the Act neither the Board nor any
agent or agency designated by it has "power to issue and
cause to be served" a complaint unless a charge has been
filed. This does not, however, inhibit the Board or any
agent or agency designated by it from issuing the com-
plaint and maintaining the prosecution once the charge
has been filed. Moreover, the scope of the complaint,
once the charge has been filed, is not circumscribed by its
contents . N.L R.B. v. Fant Milling Company, 360 U.S.
301; National Licorice Company v. N.L R.B., 309 U.S.
350.
Once the charge has been filed the proceeding moves
from the area of private rights to that of public interest.
This being the case it is necessary to consider whether the
facts disclosed by the record are such that the public in-
terest overrides that of the charging party who invoked
the Board's process. The facts I have set forth in the
preceding portions of this decision, in my opinion, dis-
close numerous instances whereby rights guaranteed to
Respondent's employees under Section 7 of the Act have
been affected adversely. Those rights were the rights not
alone of the Charging Party but of all Respondent's then,
present, and future employees. The public interest
requires that effective remedial action be taken for the
protection of those rights and the redress of the wrongs
committed. Consequently, both in the exercise of my dis-
cretion and upon the law, I deny the motion to dismiss the
complaint and deny the application by the Charging Party
to withdraw her charge.
The following are my
CONCLUSIONS OF LAW
1. Tuscarora Plastics Co. is an employer within the
meaning of Section 2(6) and (7) of the Act. It is engaged
in interstate commerce , is subject to the jurisdiction of the
National Labor Relations Board , and the National Labor
Relations Board has jurisdiction over it and of this
proceeding.
2. United Rubber , Cork, Linoleum & Plastic Workers
of America , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Employees Committee , or the officers of the
Employees Committee as a group , or the shift representa-
tives as a group , all considered to be and recognized by
the Respondent and its employees by the name "Em-
ployees Committee ," is a labor organization within the
meaning of Section 2(5) of the Act.
4. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed to them in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1).
5. By dominating and interfering with the formation
and administration of the Employees Committee and by
rendering unlawful assistance and support to said labor
organization , Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed to them in Section 7 of the Act, and has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8 (a)(1) and (2) of the Act.
6. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and 2(7) of the Act . May Department Stores dlb/a
Famous-Barr Company v. N.L.R.B., 326 U.S. 376;
Bethlehem Steel Company v. N.L.R.B., 120 F . 2d 641.
They have a close , intimate, and substantial relation 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.
THE REMEDY
The Respondent should be required to cease and desist
from engaging in the practices which I have found are un-
fair labor practices and violations of the Act. Because of
the widespread nature of those violations, a broad cease-
and-desist order should be entered. Because some of
Respondent's conduct has resulted in benefits to its em-
ployees, express provision should be made to the effect
that the Board's remedial order does not require that any
such benefits be varied or abandoned and does not pro-
vide that any employee is precluded from or prejudiced in
the assertion by him or her of any rights he or she now
may have.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Where violations of Section 8(a)(2) have been found
the question sometimes arises whether a particular union
or labor organization (here the Employees Committee)
should be disestablished. The applicable law has been set
forth by the Supreme Court in N.L R.B. v. District 50,
UMW, 355 U.S. 453,458-459:
In formulating remedies for unfair labor practices
involving interference by employers with their em-
ployees' freedom of choice of a representative, the
Board has always distinguished the remedy ap-
propriate in the case of a union dominated by an em-
ployer from the remedy appropriate in the case of a
union assisted but undommated by an employer. In
the case of a dominated union the Board usually or-
ders the complete disestablishment of the union so
that it can never be certified by the Board: This
Court has sustained such orders. N.L.R.B. v.
Pennsylvania Greyhound Lines, Inc., 303 U.S. 261;
N.L.R.B. v. Newport News Shipbuilding & Dry
Dock Co., 308 U S. 241. On the other hand, in the
case of the assisted but undominated union, the
Board has consistently directed the employer to
withold recognition from the assisted union until the
union receives a Board certification. The basis for
the distinction is that, in the Board's judgment, the
free choice by employees of an agent capable of act-
ing as their true representative, in the case of a
dominated union, is improbable under any circum-
stances, while the free choice of an assisted but un-
dominated union, capable of acting as their true
representative, is a reasonable possibility after the ef-
fects of the employer's unfair labor practices have
been dissipated. See N.L.R.B. v. Wemyss, 212 F.2d
465 , 471, 472.
The facts of this case require that the usual dis-
establishment order be entered. The entry of such an
order should not be construed, however, as forbidding or
precluding the employees themselves from forming, join-
ing, or assisting any labor organization, including any new
employee representation committee or plan, as guaran-
teed to them by Section 7 of the Act.
The General Counsel requests that the notice be
couched in "clear and simple language typified in Bilyeu
Motor Corp., 161 NLRB 982 ." In view of the
Respondent's statement to its employees that it was ad-
vised by its attorneys that certain of its conduct might be
considered a violation of law and its assertion that it be-
lieved the contrary, it seems to me that some deviation
from the usual form of notice is desirable along the lines
indicated in Bilyeu. I shall draft the notice accordingly.
Now on the basis of the foregoing findings of fact and
conclusions, the following is my recommended
ORDER
Respondent, Tuscarora Plastics Co._, it officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed to them in
Section 7 of the Act by: threatening to close or shut down
its business if its employees engage in union activities;
promising its employees any economic benefits if they
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
refrain from becoming or remaining members of or giving
any assistance or support to any labor organization; en-
gaging in the surveillance of any union meetings attended
by any of its employees; engaging in surveillance of any
of its employees in a manner conveying to them or which
may convey to them that their union activities are being
noted or recorded; coercively interrogating any of its em-
ployees concerning their union membership, activities,
and sympathies or the union membership, activities, and
sympathies of any of their fellow employees; threatening
any of its employees with loss of employment or any
economic benefits as a consequence for engaging in any
union activities; coercively endeavoring to persuade em-
ployees not to become or remain members of or to sup-
port any labor organization; urging its employees to form
or participate in the formation of any group, plan, or com-
mittee formed according to a pattern or structure devised
by it in preference to their formation or joining of a labor
organization other than such committee, group, or plan;
and promising any employee any economic benefits as an
inducement to join and support any such committee, plan,
or group.
(b) Dominating, assisting, and contributing to the sup-
port of, or interfering with the administration of, the Em-
ployees Committee, or any other labor organization of its
employees, provided, however, that nothing in this Deci-
sion and Order shall require Respondent to vary or aban-
don any wage, hour, seniority, or other substantive fea-
ture which it has established for its employees in agree-
ment with the Committee or to prejudice the assertion by
its employees of any rights they may have derived as a
result of the existence of the Committee; and provided
further that nothing herein shall be construed as prohibit-
ing its employees themselves from forming, joining, or
assisting any labor organization, including an employee
representation committee or plan, as guaranteed to them
by Section 7 of the Act.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist any labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, and 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 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 will ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from, and
completely disestablish, the Employees Committee as
representative of any of its employees for the purpose of
dealing with it in respect to grievances, labor disputes,
wages, rates of pay, hours of employment, or other condi-
tions of employment.
(b) Post at its New Brighton, Pennsylvania, plant co-
pies of the attached notice marked "Appendix."' Copies
of said notice, to be furnished by the Regional Director
for Region 6, after being signed by Respondent's pre-
sident, shall be posted by it and maintained by it for 60
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
TUSCARORA PLASTICS CO. 1071
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to assure that said notices are not altered,
defaced, or covered by other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion and Recommended Order, what steps the Respond-
ent has taken to comply herewith.2
1 in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-v
ployees that:
After a trial in which all parties had the opportunity to
present arguments and evidence, it has been decided that
we violated the law and we have been ordered to put up
this notice and to make and keep the promises set forth
below:
WE WILL NOT interfere with, restrain, or coerce
our employees when they engage or refuse to engage
in any union activities.
WE WILL NOT threaten to close or shut down our
business if our employees engage in union activities
or select a union to represent them.
WE WILL NOT promise our employees any
economic benefits if they do not become or if they
remain members of or give or refuse to give any
assistance or support to any labor organization.
WE WILL NOT watch over any union meetings at-
tended by any of our employees.
WE WILL NOT watch our employees in a way
which may indicate that a record is being made of
their union activities.
WE WILL NOT scare or embarrass any of our em-
ployees by questioning them about their own or other
employees' union activities.
WE WILL NOT threaten any of our employees with
any possible losses for engaging in union activities.
WE WILL NOT pressure any of our employees to
form or participate in the formation of any group,
plan, or committee created according to a form
preferred by us as opposed to one preferred by them.
WE WILL NOT do this by offering any benefits to
them if they form or participate in the formation of
such a group.
WE WILL NOT dominate, assist, or contribute to
the support of, or interfere with the administration of,
the Employees Committee, or any other labor or-
ganization of our employees.
WE HEREBY WITHDRAW all recognition from and
completely disestablish the Employees Committee,
as representative of any of our employees for the
purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and we will
not recognize it.
WE ARE NOT required to change or abandon any
wage, hour, seniority, or other substantive benefit
now enjoyed by our employees, or prejudice the as-
sertion by our employees of any rights they now may
have.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed to them in the Labor Rela-
tions Law.
All our employees are free to form, join, or assist any
labor organization, including an employee representation
committee or plan of their choosing, or to refrain from
doing so, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
by Section 8(a)(3) of the National Labor Relations Act,
as amended.
Dated By
TUSCARORA PLASTICS CO.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 644-2977.