Vac-Art, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1959

124 N.L.R.B. 989 (N.L.R.B. 1959)

VAC-ART, INC. 989
the shift managers, and the manager of the accounting department are
all supervisors within the meaning of the Act. Accordingly, we shall
exclude them all. The credit manager is in charge of collections, and
has other duties relating to customers' credit. He is primarily a cleri-
cal employee, and therefore does not belong in the nonclerical unit
herein found appropriate. Accordingly, we shall exclude him. We
shall also exclude the Employer's president, its other officers, and all
members of its board of directors, because the interests of all these
persons are closely allied with those of management.
Upon the entire record in this case, we find that the following em-
ployees of the Employer at its undertaking establishments and garage
in the District of Columbia and at its undertaking establishment in the
State of Maryland constitute an appropriate bargaining unit within
the meaning of Section 9 (b) of the Act : All employees, including
licensed undertakers, licensed apprentice undertakers, undertakers'
helpers, cleaners, night attendants, assistant managers of undertaking
establishments, assistant shift managers, mechanics and their helpers,
the motorcycle messenger, and the organist, but excluding the buyer,
the hairdresser, the night watchman, managers of undertaking estab-
lishments, shift managers, the manager of the accounting department,
the credit manager, managerial employees, the president and other
officers of the Employer, all members of its board of directors, and all
other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Vac-Art, Inc. and International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, UAW-
AFL-CIO, and Its Local 743. Cases Nos. 7-CA-1561, 7-CA-1667,
and 7-CA-1744. September 31, 1959
DECISION AND ORDER
On November 14, 1958, Trial Examiner Charles W. Whittemore
issued his Intermediate Report in the above-entitled proceedings, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
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 [Members Rodgers, Bean, and Fanning].
124 NLRB No. 132.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in
these cases, and hereby adopts the findings,' conclusions,' and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Vac-Art, Inc.,
Bay City and Owosso, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, United Au-
tomobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, and its Local 743, or in any other labor organiza-
tion, by discharging, laying off, refusing to reinstate, or in any other
manner discriminating in regard to hire or tenure of employment or
any term or condition of employment.
(b) Instigating and sponsoring petitions designed to cause em-
ployees to withdraw from the above named or any other labor
organization.
(c) Refusing to bargain in good faith with the above-named labor
organization as the exclusive representative of all employees in the ap-
' On March 3, 1959, the Board ordered the General Counsel to make available to the
Respondent the pretrial statements of the General Counsel's witnesses. Thereafter, on
March 27, 1959, the Board reopened the record to permit the Respondent to cross-examine
such witnesses. However, after examining the statements the Respondent waived its
right to further cross-examination by a stipulation entered into on June 2, 1959.
3 The Intermediate Report incorrectly states in footnote 4 that the testimony of Waits
and the plant superintendent conflicts "as to whether or not Whitehurst was at work at
any time during the summer of 1957." The footnote should state that the conflict was "as
to whether or not Peek was at work at any time during the summer of 1956." Footnote 4
is corrected accordingly.
We agree with the Trial Examiner's finding that Hazel Harrington was a supervisor.
In addition to the evidence set forth in the Intermediate Report, the uncontradicted testi-
mony of employee Vernie White and former employee Majie Chalker lends support to this
finding. White testified that in December 1956, Plant Superintendent Owcza.rzak told her
that Harrington was the "boss" of the second shift. Chalker testified that in January
1957, Owczarzak told her that Harrington was "foreman" of the second shift.
3 The Trial Examiner inadvertently failed to find that the Respondent's sponsorship of
two decertification petitions constituted violation of Section 8(a) (1). We so find.
In agreement with the Trial Examiner we find the discriminatory discharges of Harris
and Peck, two members of the Union's bargaining committee, are evidence of the Re-
spondent's bad faith in bargaining. The purpose of these discharges immediately prior
to contract negotiations was clearly to undermine the prestige and the authority of the
Union as collective-bargaining representative. De Diego Taxi Cabs, Inc., 107 NLRB 1026.
In any event, the Respondent's delay in furnishing insurance information requested by the
Union (Stowe-Woodward, Inc., 123 NLRB 287) ; its sponsorship of decertification peti-
tions ; its unilateral granting of a wage increase during the course of collective bargaining ;
and its failure to give the Union prompt notice of its decision to close the Owosso plant,
furnish ample evidentiary support for the finding that the Respondent violated Section
8(a) (5) by failing .to bargain in good faith.
VAC-ART, INC. 991
propriate unit with respect to wages, rates of pay, hours of employ-
ment, or other conditions of employment.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Helen Peck and Rose Harris immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges, and
make them and Shirley Whitehurst whole for any loss of earnings
they may have suffered by reason of the discrimination against them,
in the manner set forth in the section of the Intermediate Report en-
titled "Tlie Remedy."
(b) Preserve and, upon request, make available to the National
Labor Relations Board, and its agents, for examination and copying,
all records necessary for the determination of the amount of back pay
due under this order.
(c) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the
appropriate unit, and embody any understanding reached in a signed
agreement.
(d) Post at its plant in Owosso and Bay City, Michigan, copies of
the notice attached to the Intermediate Report marked "Appendix." °
Copies of said notice, to be furnished by the Regional Director for the
Seventh Region shall, after being duly signed by the Respondent's
authorized representative, be posted immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted, and maintained by it for at least 60 consecu-
tive days thereafter. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
4+,Thi'si notice is amended by substituting for the words ",The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant,to a Decree of the United
States Court of Appeals, Enforcing an Order."
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. (e) Notify the Regional Director for the Seventh Region in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent 'has taken to comply 'therewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served in each of the above-entitled three eases,
an order consolidating cases, a consolidated complaint, and 'a notice' of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section
8(a)(1)', (3), and (5) of the National Labor Relations Act, as amended (61 •Stat.
136), herein called the Act, was held in Owosso and Corunna, Michigan, on"Septem-
ber 4, 5, 8, 9, 10, and 11, 1958, before the duly designated Trial Examiner.
At the hearing all parties were represented, were afforded full opportunity to be
heard; to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed, findings of
fact and conclusions of law. Argument was waived. A brief has been received
from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation having its principal office and plant in
Bay City, Michigan, and a plant in Owosso, Michigan, (the latter pliht being The
only one involved herein) where it is engaged in the business of plastic decoration
and painting of metals.
In the conduct of its business operations the Respondent annually performs
services valued at more than $100,000 to manufacturers located in the State of
Michigan, each of which, in turn, annually ships from its Michigan plants products
valued at more than $50,000 directly to points outside the State of Michigan. During
the year 1957, the Respondent performed services valued at about $332,700 for
Mitchell Plastics, Inc., a Michigan manufacturer, which during the same period
shipped more than $150,000 worth of products directly to, points located outside,
the State of Michigan. During the same period, the Respondent's sales of products
were valued at more than $500,000, of which more than $50,000 worth were shipped
directly outside the State of Michigan.
The Respondent.concedes that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, and its Local 743 are labor organizations
admitting to membership employees of the Respondent at its Owosso, Michigan;
plant.
III. THE UNFAIR LABOR PRACTICES
A. Background and major issues
The complaint alleges, the answer. admits, and the Trial Examiner finds that ore
August. 17, 1956, the Regional Director for the Seventh Region, as agent for the
Board ' and following a secret election, certified the above-named labor organization
as the exclusive representative of all employees in an appropriate unit for ,'thei
purposes of collective bargaining. The appropriate unit is:
All production and maintenance employees at the Respondent's Owosso, Michigan,
plant, excluding all office clerical employees, plant clerical employees, confidential
employees, professional employees,. plant guards, and supervisors as defined in,
the Act.
Substantial evidence establishes that during.the period of self-organization, and.
before the Board election, the Respondent displayed openly its intent to defeat the
purposes of the Act. Such revealing conduct is found, as follows-not as items of
specific unfair labor practices since they occurred earlier than 6 months before the
filing of the original charge-but as relevant background:
VAC-ART, INC. 993
(a) Early in April 1956, while employees at this plant were engaged in self-
organization, a number of girls wore union buttons at work. It is undisputed that
Chief Engineer Dalton, management representative at the plant, ordered them to
remove the buttons or suffer discharge. As a witness, Dalton testified that he gave
such orders upon instructions from President Waits, admitted that he did not tell
the girls, upon threatening them with dismissal if they did not take off the buttons,,
that the wearing of them was interfering with their work, and finally admitted that
the wearing of the buttons actually had no "adverse" effect upon such work. There
being. no "exceptional circumstances" warranting such an order, its clear design was.
to discourage union membership and deprive employees of rights guaranteed by the
Act. (See Kimble Glass Company v. N.L.R.B., 230 F. 2d 484 (C.A. 6), cert. denied
352 U.S. 836.). (b) Shortly before the above occurrence, Plant Superintendent Virgil Owczarzak
came to a number of girls at their working place in the plant and the testimony of
employee Rose Harris is undisputed that the superintendent asked them if they
"knew if there was a union the plant would be closed down."
The day after the Union made its first request for a negotiating conference on
December 13, 1956, the two employees on the Union's negotiating committee were
discharged. The dismissals of Helen Peck and Rose Harris are thus placed in issue..
Thereafter, the complaint alleges, in a long course of negotiations. the Respondent
failed and refused to bargain with the Union in good faith. Specific points relied
upon by General Counsel will be set forth in a section below.
Early in October 1957, the Respondent suspended employee Shirley Whitehurst,.
the third employee member of the Union's negotiating committee, for a period of 30
days. The complaint alleges and the answer denies that this suspension was dis-
criminatory •and in violation of the Act.
B. The discharges of Rose Harris and Helen Peck
These two dismissals , admittedly made on December 14, 1956, upon orders from
Waits, will be considered together.
According to the. testimony of Union Representative Butler, supported by that
of his brother, John Butler, early the morning of December 13 he finally succeeded
in reaching President Waits by telephone. He asked when Waits could meet with
him and a committee. Waits inquired who would be at such a meeting. Butler
replied, also according to his testimony: "Myself and the plant committee, the
employees from the plant, Rose Harris and Helen Peck." After some discussion
Waits finally agreed to meet soon after the first of the year.
. Waits, on,the other hand, while conceding the truth of Butler's account of this.
conversation as to practically every other point, flatly denied that he asked who,
would be present and that Butler told him Harris and Peck were on the committee.
It is undisputed that the next day Waits summarily ordered both employees to be'
discharged. Neither of the two had previously been warned of such dismissal.
Thus a sharp dispute exists in testimony bearing upon a most essential factor
in General Counsel's case: that of Waits' motive for the sudden discharges.
Having observed Waits during a period of many hearing sessions, not only as a
witness but while he sat at his counsel's table, the Trial Examiner failed to perceive
visible indications persuasive of an'intent on the president's part to relate the truth
of events according to his honest recollection. Particularly as a witness was Waits
evasive, self-contradictory and, as pointed out 'below, unsupported by other testi-
mony on critical points. He was overly extravagant in his claims of derelictions on
the part of both Peck and'Harris, so much so that a choice between two reasonable
conclusions must be made: either as an executive he was remiss in his responsibilities.
or his claims as to these employees are largely fictious. In short, the Trial Examiner
can place no reliance upon any part of Waits' testimony unsupported by credible
evidence. .
Particularly as to his telephonic conversation with Butler on December 13, Waits'
denial that he was told that Harris and Peck were on the committee is not accepted
as credible. Butler's testimony was straightforward, unshaken, and intrinsically
reasonable.
On the other hand, the: claims advanced by Waits as to why he ordered the dis-
charge of the two employees summarily the day after this telephone conversation
lack elements of reasonableness, even absent the facts of that telephone call. They
raise the. question as to why, if both employees were as undesirable as Waits claims
they we're,' they had not been dismissed long before December 14. As to Harris,
Waits" testimony is inconsistent , confusing, and incredible. A few examples of such
confusion are noted here. - The record is replete with others.
625543-66-vol . 121-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harris was hired by the Respondent the latter part of February 1956. Along
with many others she was laid off for economic reasons early in April, and was
recalled on December 10, 4 days before her summary dismissal. According to
Waits' early testimony, management first discussed discharging her "before her pro-
bationary period was up when she was hired in." Immediately after this statement
he said the first discussion took place "just one day after her month was up." Two
pages later in the record, he again changed his testimony, and said "Actually it was
just before" she had completed her probationary period. Asked why he did not
discharge her early during her employment, he said "we . . . had decided to get
rid of her" but "through an administrative oversight she went one day over the
probationary period." The president offered no reasonable explanation as to what
an "oversight" had to do with carrying out his decision to fire her. Nor did he
offer any reasonable explanation as to why she was called back to work in December
1956, if she had proven unsatisfactory when first hired.
There is an equal lack of consistency in his testimony as to why she was discharged
on December 14. As to this dismissal he claimed "The first decision was made a
day or two days before she was discharged, but the final decision was made the
morning that she was discharged, the final decision," by himself. As to why he made
this "final" decision on December 14, he replied in this confused fashion: "Mr.
Dalton (chief engineer) called me and told-I will take it back. It could have
been Mr. Owczarzak (plant superintendent) who called Mr. Dalton, and Mr.
Dalton talked to me." He continued with the claim that "he" told him that both
Harris and Peck "had been bothering a new employee." Although Waits did not
quote either the engineer or the superintendent as telling him so, he claimed that
Peck and Harris "were making fun" of the new employee, and this new employee
"came and said `I can't stand that kind of stuff. I am going to quit."' He insisted
that this occurred on the morning of December 14, and that upon receiving this
information he told Dalton and Owczarzak, "Okay, this is the final straw. We were
going to do it (discharge the two) next week. Do it now."
Not only is. there no support for Waits' testimony as to his reports from them
found in the testimony of the engineer or the superintendent, but there also is none
In the testimony of the "new employee," Marjorie Kilpatrick, although she was
called as a witness for the Respondent. Kilpatrick said that she did tell Owczarzak
that she was going to quit-but on cross-examination she admitted that she actually
quit because she got a better-paying job. She named neither Harris nor Peck as
having said a word to her, indeed it appears clear from her testimony that her single
complaint was that none of the older girls said anything to her and two other girls
newly hired.
Turning to additional claims made by the Respondent as to reasons for the dis-
charge of Helen Peck-admittedly an employee of long service with the Company.
When first asked why he discharged Peck, he said "It was almost identical pro-
bation." Almost immediately thereafter he changed his position by testifying, "To
begin with she was probably a fair worker of a group I would not consider very
good." Shortly. thereafter he said that he "got rid of most of" that early "mediocre
group"-but kept Peck on as an employee. Apparently recognizing the unreasonable-
ness of his first extravagant claim, he finally admitted that no decision to discharge
her was made during her probationary period-back in 1954. Then he said he
"first began to suspect" her production "probably in 1955." He discharged one
employee for poor production, Ockerman, in March 1956, but not Peck, and not
Harris. The complete lack of merit in Waits' claim that Peck's failure to produce
was the cause of her sudden discharge is made apparent in his admission that late
in March 1956, he sent a letter to all employees citing the job that Peck was working
on as the only one which was then "running well."
The following colloquy suggests the extent of Waits' inner confusion as to what
reason he should advance as a witness for dismissing Peck.
Q. Now, you said that Mrs. Peck was only a fair worker, is that right?
A. Well, that's right.
Q. And would you tell me what the reason was for her discharge?
A. The same reason.
Q. Trouble making?
A. No, not trouble making, particularly. Yes and no. A trouble maker-
annoying these other people, that's true.
Asked who these "other people" were, he said, "I don't know specifically who they
were because I was not there to have first-hand knowledge." When asked if anyone
reported such names to him, he replied vaguely, "Oh, I would say at various times
maybe their names were mentioned." Asked if he had such names on the date of
the discharge, he replied, "I don't know. I could have."
VAC-ART, INC. 995
The Trial Examiner considers it unnecessary to review all of Waits' testimony as
to his claimed reasons for the discharge of Peck and Harris. Neither in the many
mutually incompatible parts of his testimony, nor in records of production sub-
mitted in evidence by the Respondent,' nor in the testimony of his chief engineer
and plant superintendent, nor in the testimony of the new employee Kilpatrick is
there reasonable basis for crediting the claim that the two employees were fired
for poor production or for "annoying" Kilpatrick.
On the contrary, the Trial Examiner is convinced and finds that both employees
were discriminatorily discharged to discourage union membership and activity upon
Waits' being informed on December 13, of their being on the union negotiating com-
mittee, and that such action interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by the Act.
C. The refusal to bargain
The complaint alleges a number of specific acts on the part of the Respondent
as constituting its refusal to bargain with the Union in good faith.
Before appraising the merit of these specific points, it may be well to point out
that although the Union was certified in August 1956, the first negotiating meeting
looking toward a contractual agreement was not held until April 1957. As noted
above, the Union's first request to meet was not made until December 13, 1956-the
delay being occasioned, according to Union Representative Butler, by the fact that
most of the employees had been laid off for economic reasons during the summer
and fall of that year. Beginning in April 1957, and extending through until the
day before the hearing opened, some 30 or more negotiating meetings were held. No
final agreement on a contract was reached in that long period.
Delay and postponement: General Counsel cites as indicia of bad-faith bargaining
the Respondent's delay and postponement of (1) bargaining sessions , and (2)
submission of counterproposals. As to point (1) there can be no question that for
one claimed reason or another the Respondent representatives failed to show up at
scheduled meetings, or postponed such meetings after scheduling. The record also
reveals a good deal of undisputed testimony, however, that Butler also displayed
somewhat less than marked diligence in keeping appointments, or in remaining at
meetings when once convened. It would be difficult to determine, from the vast
amount of testimony on such matters, that after negotiations once got underway the
Respondent was more responsible than the Union for such delays and postpone-
ments. Were this the single factor upon which General Counsel relied to support
his allegation of bad-faith bargaining, the Trial Examiner would have to conclude
that he had not sustained with a preponderance of evidence his position. Nor does
the evidence clearly warrant, in the opinion of the Trial Examiner, a finding that
the Respondent so delayed submitting counter-proposals that a finding of bad faith
is supported.
The discharge of Harris and Peck: As found above, these two members of the
employees' negotiating committee were summarily and discriminatorily discharged
by Waits within a day after he learned, from Butler, that they were to serve on this
committee. Such summary action, in the opinion of the Trial Examiner, not only
constituted an open and flagrant refusal to bargain, but served as a patent warning
to the Union that negotiations thereafter were to be. no more than a mere pretext
of abiding by the requirements of Section 8(d) of the Act. Closely related to these
discharges is the fact that at all times thereafter President Waits failed and refused
to meet with Butler to discuss the dismissals or to submit the employees' production
records, which he had promised the union representative he would bring forward
to support his claimed reason for the action. This promise, unkept, was made by
Waits on December 14, 1956, when Butler telephoned to protest the dismissals. The
foregoing facts fully support a finding of failure and refusal to bargain in good
faith, even before meetings began.
Failure to furnish information: It is undisputed, and found, that on June 10,
1957, union representative asked company representatives for information regarding
the "break-down of the unit cost of the insurance" and the "actual cost" of "hospital,
In the opinion of the Trial Examiner, analysis of such production •records, and of. the
vast amount of contradictory testimony about them will serve no useful purpose here.
Chief Engineer Dalton, responsible for them, admitted that they were summaries, had
mistakes in them, and finally rendered them wholly immaterial to the issue of motive for
the discharges by admitting that his expressed conclusions about such records had not
been reached before December 14, 1956, the date of the discharge. In his testimony, also,
Waits, who ordered her discharge, admitted that Peck's production records were not com-
pared with those of others until after she was discharged.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surgical, and so forth" items in the program already in existence at this plant.
Butler reasonably testified that this information was necessary in order to compare
its merits with a similar plan proposed by the Union. For intelligent bargaining
it is found that such information was required. It is also undisputed that Waits,
at this meeting, promised to obtain it and bring it to the next meeting, on June 19.
Waits failed to produce the requested information at the June 19 meeting. After
repeated and futile requests for this information, it was finally forthcoming at a
meeting on March 7, 1958, 9 months after it was requested. The record contains
no reasonable explanation for this protracted delay. Even if the testimony of the
Respondent's witness, F. A. Shaw, an insurance agent, is to be credited, Waits did not
ask him for such information until November 1957, 5 months after the Union first
requested it from Waits. That Waits' delay was in bad faith is not only established
by the undisputed testimony that he promised to have it on June 19, but by Shaw's
testimony that he was delayed in getting the information because the Company
was renewing its annual contract on January 1, 1958. The Trial Examiner believes
it reasonable to conclude, particularly in view of Waits' other efforts to defeat
the purposes of good-faith bargaining, that he purposely failed and refused to obtain
the information until he had already entered into, or had committed the Respondent
to enter into, another annual contract with the insurance company, thereby further
delaying for another year any possible change which might have resulted from
negotiations with the Union.
Sponsorship of decertification petitions: There is no dispute that in June and
again in August 1957, one Hazel Harrington circulated a decertification petition
among the Respondent's employees, and that Waits was aware of her activity. The
sole major question is whether or not the Respondent may be held responsible
for her conduct.
Although Waits and other management representatives stoutly denied that Harring-
ton possessed supervisory authority, as defined in the Act, more credible testimony,
including that of Harrington herself, establishes the contrary. She had full and
complete charge of the entire night shift of employees at the plant until the fall
of 1957. She transferred employees from one job to another, exercising her inde-
pendent judgment in doing so. She made out timecards and production records for
employees under her supervision. According to the plant superintendent's own
testimony Harrington recommended discharge of at least two employees-although
it appears that he did not follow her recommendations. She was paid at a higher
rate than others on the night shift. She alone had possession of the plant keys at
night, and locked up when the shift ended. It is established, in the opinion of the
Trial Examiner, by the foregoing factors that Harrington was a supervisor within
the meaining of the Act, and that her conduct on behalf of management was
attributable to management.
On the basis of the credible and undisputed testimony of employee Majie Chalker
the Trial Examiner finds that shortly before Harrington began circulating the decerti-
fication petition she told this employee that she was going on the day shift to "carry"
a petition around for Waits. Credible testimony of employees visited at their homes
by Harrington in June establishes that the supervisor solicited signatures from them
by stated that if they did so they would get a raise of 10 cents an hour. Harrington
obtained 12 signatures besides her own to a decertification petition between June 7
and 10, and through a local attorney forwarded it to the Regional Office, where it was
received on July 1, 1957. The petition was dismissed, the attorney being informed
that it had been filed within the certification year.
Thereafter, on August 20, Harrington summoned employees one after another
into the office of the plant superintendent and from them obtained signatures of nine
employees to a similar petition, which was filed with the Regional Office on August
26, 1957. (7-RD-236, unpublished.)
Credible testimony establishes and it is found, as to the first petition, that in solic-
iting signatures Harrington not onlly promised financial benefits for signing, but
threatened economic reprisals if not signed. When employee Whitehurst refused to
sign, 'Harrington said, "There goes your job." Whitehurst also did not sign the
August petition, and the first of October was laid off for 30 days, under circumstances
reviewed below.
The promise of financial benefit was not an empty one. On July 1 the Respondent
posted a notice to all employees without previously consulting the Union, announcing
that beginning the following week their wage rates would be increased $0.07 an hour.?
2 The complaint does not allege this unilateral action on the part of the employer to. be
a separate. factor in bad-faith bargaining. Although the point was fully litigated at the
VAC-ART, INC. 997
On the basis of the foregoing findings the Trial Examiner concludes that by
sponsoring the activities of its supervisor, Harrington, in circulating the above-
described two decertification petitions, by Harrington's promises of benefit and
threats of reprisals while circulating said petitions, and by granting the unilateral
wage increase following the circulation of the first petition, all such action being
clearly designed to undermine the Union, the Respondent failed and refused to
bargain in good faith.
Unilateral notice of closing of plant: Although this issue was not set out in the
complaint, the events concerned not taking place until just before the hearing opened,
the facts and opposing positions relative to them were fully litigated and voiced at
the hearing, and the following findings and conclusions are therefore made. In the
opinion of the Trial Examiner, the facts serve as a fitting and logical climax to the
Respondent's long course of action designed to evade its obligations under the Act
to bargain with the Union.
In summary these facts are as follows. On August 29, 1958, a week before the
hearing opened, Waits had posted in the Owosso plant the following notice: 3
It is with great regret that I must inform you that our lease with Mitchell
Plastics, Inc., will expire August 31, 1958 and that we will subsequently close
our operations in Owosso. Under the terms of the lease we can be required
to operate for a period of 90 days after September 1, 1958, or until such earlier
date as it will take for Mitchell to make different arrangements.
Therefore, I wish you to be informed that we can expect to close our opera-
tions anytime after September 1, 1958. It will probably be a gradual reduction
but this will give you opportunity to find other employment.
This notice was posted at a time when, with the exception of a few minor issues-
largely as a result of the Union's retreat from its original and subsequent demands-
it appeared that the Respondent might have to concede that agreement had been
reached as to a contract with the Union. No prior notice of intent to take such
action was given to the Union by the Respondent officials or its attorney. No in-
dication throughout the long period of negotiations was ever given by the Respondent
that for reasons of lease or otherwise it planned to close the plant.
No credible reason was advanced by Waits for completely ignoring the Union
on this matter. He admitted that he began discussing with Mitchell Plastics the
possibility of his letting the lease expire as early as May 1958. His own testimony,
.also, makes it plain that his failure to renew the lease was not beyond his control.
"It was kind of a mutual agreement," he said, to let the lease expire.
Whether or not Waits designedly notified his employees that he would close the
plant to discourage union membership and activity is not before the Trial Examiner
for determination. That he failed to notify the Union of his planned action, how-
ever, while going through the motions of negotiating for a contract, is a most
,glaring example of bad-faith bargaining.
In summary the Trial Examiner concludes and finds that: (1) at all times since
August 17, 1956, the Union has been the exclusive representative of all employees
in the above-described appropriate unit for the purpose of collective bargaining, by
virtue of Section 9(a) of the Act; (2) at all times since December 14, 1956, the
Respondent has failed and refused to bargain in good faith with the Union as such
exclusive representative, by the following conduct: (a) discriminatorily discharging
employee representatives, Harris and Peck; (b) failing and refusing for nearly a
year to furnish, upon reasonable request, information required for intelligent nego-
tiations; (c) instigating and sponsoring the circulation of two decertification peti-
tions, and (d) during the course of negotiations announcing, unilaterally, its intent
hearing, and while evidence concerning it warrants a separate finding, the Trial Examiner
withholds such finding. It appears enough to consider the action as a component part of
the decertification issue which in its entirety constitutes an index of bad-faith bargaining.
8 In the following language General Counsel made it clear that while he was not urging
that the issue be treated as a possible violation of Section 8(a) (3) of the Act, he was
raising it as an 8(a) (5) issue. He stated that he believed the complaint to be "suffi-
ciently broad in its scope and in its coverage to include or embrace this matter, this act,
this conduct on the part of the Respondent, as an additional violation of Section 8(a) (5),
which we are litigating here." And the Trial Examiner on the record informed counsel
for the Respondent that in view of this oral notice he would consider the evidence as a
factor relating to 8(a) (5).
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to close the plant ; and (3 ) by such refusal to bargain the Respondent has interfered
with, restrained , and coerced employees in the exercise of rights guaranteed by the
Act.
D. The suspension of Shirley Whitehurst
Whitehurst, an employee of the Respondent since early 1955, was an active union
leader. She was an observer for the Union at the Board election in 1956. After
the discriminatory discharge of Peck and Harris she actively participated in negotia-
tions with the Respondent on the union committee.
She was summarily, without warning, and without being given an opportunity to
meet her alleged accusers, suspended for 30 days on October 2, 1957.
The testimony of Waits, who laid her off, is even more confused, contradictory,
and lacking in credible support from other witnesses with respect to Whitehurst than
in the cases of Harris and Peck.
In substance, it is his claim that on September 30, 1957, upon request of three
employees he met them at an airport in Owosso, where they told him "they had a
lot of things on their chest." He claimed that these three employees accused
Whitehurst of "threats and intimidation" about "signing union membership cards,"
although he could not recall what the threats were, and also accused her of starting
"malicious gossip," although he admitted that he did not know "what the gossip
was." When pressed to reveal something of a factual nature regarding what he
was told, he retreated into near incoherence, as the following colloquy reveals:
Q. Why don't you apply that same standard to Mrs. Whitehurst in connec-
tion with the accusations about threats and so forth?
A. There was some more background to Shirley. These reports had been
coming in all of the time, all of the time, all of the time.
Q. From whom?
A. Rumors. Who knows from whom?
Q. Do you pay attention to rumors?
A. We only pay attention to rumors when they are re-occurring, re-occurring.
Q. How often did these rumors re-occur? And when did they re-occur?
A. Oh, I couldn't tell you with any definiteness on that, but they were a
recurring thing.
Q. Then why didn't you discharge her?
A. I didn't think that was necessary. We didn't want to lose her.
Q. Didn't it occur to you, Mr. Waits, that an employee who was just out
of the hospital, and who you knew to have been in the hospital for some
period of time, was not capable of engaging in physical threats? Didn't you
surmise that?
A. I don't recall at the time. I probably didn't give any thought to the
hospital situation. I don't recall one way or the other, anything, now .. .
Waits' testimony as to what was said by the three girls about "gossip" is equally
confusing. An example:
Well, the girls related a whole series-a muddled series, really-of a lot of
things, such as gossip concerning them personally, and attempts to-well, a lot
of gossip. That was one of the basic accusations. And the fact that there
was always complete turmoil among the personnel, and there was a lot of
malicious and vulgar remarks. Those are my words, of course, in trying to
describe what I thought they were talking about.
Waits' testimony lacks the support of a single employee whom he claims came to
him on September 30, although two of them were witnesses on other matters. Nor
was Owczarzak questioned about the airport incident, although Waits testified that
he was there.
Although the record is replete with other examples of Waits' self-contradictions as
to Whitehurst, the foregoing are sufficient, in the opinion of the Trial Examiner to
warrant the conclusion that all of his testimony with respect to her is unreliable?
Contrary to the Respondent's claim, substantial evidence supports the allegations
of the complaint as to this employee. As has been found above, Whitehurst was
one of the few active union leaders in the plant. She served as the union observer
at the 1956 election, and after the discriminatory discharge of Peck and Harris
served on the employee committee during negotiations. She was among the girls
ordered by Dalton to remove her union button.
4 There is notable dispute between Waits and the plant superintendent, as to whether or
not Whitehurst was at work at any time during the summer of 1957.
VAC-ART, INC. 999
In the opinion of the Trial Examiner the real motive causing Waits to suspend
Whitehurst is clearly discerned in the fact that when in June 1957 she refused to
sign the petition brought to her by Harrington, the latter warned her , "There goes
your job." She worked only a few days after this warning before Waits suspended
her. The plant was closed the latter week of June for vacation , she returned for
at least part of a day in July, was taken sick and was away from work either under
the doctor 's care or because of an economic shutdown of the plant until September
25. She then worked only 5 days until Waits summarily suspended her.
The Trial Examiner is convinced and finds that Whitehurst was discriminatorily
laid off for a period of 30 days in order to discourage union membership and
activity , and that thereby the Respondent interfered with, restrained , and coerced
employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,.
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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily and to discourage mem-
bership in the Union discharged employees Helen Peck and Rose Harris and laid
off employee Shirley Whitehurst . It will be recommended that the Respondent offer
Peck and Harris immediate and full reinstatement to their former or substantially
equivalent positions , without loss of seniority or other rights and privileges, and'
make them , and Shirley Whitehurst , whole for any loss of pay they may have
suffered by payment to each of them of a sum of money equal to that which she
would have earned as wages from the date of the discrimination to the date of
the Respondent 's offer of reinstatement ( in the case of Peck and Harris ) or in the
case of Whitehurst to the date of her reemployment , less their net earnings during:
said periods , and in a manner consistent with Board policy set out in F. W.
Woolworth Company, 90 NLRB 289 and Crossett Lumber Company , 8 NLRB 440..
It will be further recommended that the Respondent , upon request , make available
to the Board or its agents all payroll and other records pertinent to the analysis.
of the amounts due as back pay.
It will further be recommended that, upon request, the Respondent bargain in
good faith with the Union and, if an understanding is reached , embody such,
understanding in a signed agreement.
Since the violations of the Act which the Respondent committed are related to.
other unfair labor practices proscribed by the Act , and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are,
coextensive with the threat . To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America , UAW-AFL-CIO , and its Local 743, are labor organizations.
within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Helens
Peck, Rose Harris, and Shirley Whitehurst , thereby discouraging membership in,
the above-named labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. All production and maintenance employees at the Respondent 's Owosso,
Michigan , plant, excluding all office clerical employees , plant clercial employees, con-
fidential employees , professional employees , plant guards , and supervisors as defined:
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The said labor organization was on August 17, 1956, and at all times since has
been, the exclusive representative of all employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain in good faith with the aforesaid Union, on and after
December 14, 1956, as the exclusive representative of the employees in the afore-
said appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid ufair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations 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 you that:
WE WILL bargain collectively in good faith upon request with International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, and its Local 743; as the exclusive representative
of all employees in the bargaining unit described herein, with respect to griev-
ances, labor disputes, wages, rates of pay, hours of employment, and other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Owosso, Michigan,
plant, excluding all office clerical employees, plant clerical employees,
confidential employees, professional employees, plant guards, and super-
visors as defined in the Act.
WE WILL offer Helen Peck and Rose Harris immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority and other rights and privileges, and make them and Shirley White-
hurst whole for any loss of pay they may have suffered by reason of our dis-
crimination against them.
WE WILL NOT discourage membership in the above-named or any other labor
organization by discharging, laying off, refusing to reinstate, or in any other
manner discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT instigate or sponsor petitions designed to cause our employees
to withdraw from any labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to join or assist the
above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
VAC-ART, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
;altered, defaced , or covered by any other material.