Versatube Corp.

National Labor Relations Board - Board Decisions

May 3, 1973

203 N.L.R.B. 456 (N.L.R.B. 1973)

456
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Versatube Corporation and International Union, Unit-
ed Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW). Case 7-CA-9512
May 3, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On November 27, 1972, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as 1 mended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings 2 and
conclusions, as modified herein, of the Administrative
Law Judge and to adopt his recommended Order.
1. The complaint alleged, and the Administrative
Law Judge found, that Respondent had dominated
and interfered with the administration of the Versa-
tube Employees Association 3 by, inter alia, including
in its collective-bargaining contract with that labor
organization a union-security clause which failed to
accord its employees the 30-day grace period required
by Section 8(a)(3) of the Act. Inasmuch as other evi-
dence fully supports the finding of domination, and
the remedy for such violation requires Respondent to
cease giving effect to the contract with the VEA,
including the union-security clause, we find it unnec-
essary also to decide whether the clause, on its face,
fails to meet the requirements of the proviso of Sec-
tion 8(a)(3).
2. In its exceptions, Respondent asserts that the
provisions of the Administrative Law Judge's recom-
mended Remedy and Order which require it to reim-
burse employees for all dues checked off from their
wages since November 6, 1972, are punitive and un-
necessary because of, inter alia, allegations and testi-
mony in the record that Respondent previously paid
these employees an amount equal to their dues during
the contract period. The record, however, reveals only
that some payment in reimbursement of dues was
made to employees during the month of December
1971 and that there was an agreement that this prac-
tice would continue in future years. It further appears
that the bulk of the December 1971 payment may
have represented reimbursement of dues checked off
from employees' wages prior to November 6, 1971,
and, therefore, outside the period covered in the Rem-
edy and Order, and that there may have been no
payments at all made to individuals who had dues
checked off, but were no longer in Respondent's em-
ploy in December 1971. Therefore, we leave for the
compliance procedure to determine the extent, if any,
to which Respondent's dues reimbursement obliga-
tion shall be diminished by the amounts previously
paid to employees in reimbursement of dues checked
off from their wages subsequent to November 6, 1971.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge , and hereby
orders that Respondent , Versatube Corporation,
Troy, Michigan , its officers , agents , successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
i Respondent has requested oral argument . This request is hereby denied
as the record , the exceptions, and the brief adequately present the issues and
positions of the parties
2 Respondent has excepted to the Administrative Law Judge' s finding that
a statement made to employees by Foreman William D. Bates violated Sec.
8(axl) of the Act on the ground that Bates was not a supervisor within the
meaning of the Act and was not found to be so by the Administrative Law
Judge In its answer to the complaint , Respondent neither denied nor af-
firmed the complaint's allegation that Bates was a supervisor and Respon-
dent offered no evidence on this issue at the hearing.
The Administrative Law Judge, in sec. III, B, of his Decision , set forth
certain facts and findings pertaining to the status of six foremen , including
Bates He concluded , inter aha, that Clarence Allgood was a supervisor when
he served as foreman of the Large Press Room department. But, inadver-
tently, he failed to make a specific finding on the status of Bates who succeed-
ed Allgood as foreman of the same department in mid-April 1972 . We note,
however, that when finding Bates' statement to have been violative of the
Act-in sec III, E, of the Decision-the Administrative Law Judge set forth
that the offending statement was made by"Foreman Bates, in April and after
he became a supervisor. " (Emphasis supplied .) We conclude that this clearly
shows the Administrative Law Judge, in fact, found that Bates was a supervi-
sor within the meaning of the Act during his tenure as foreman. We hereby
affirm that finding.
a A party in interest which is hereinafter referred to as the VEA
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on September 19 and 20, 1972, at Detroit, Michi-
gan, pursuant to a charge duly filed and served,' and a
complaint issued on June 27, 1972. The complaint presents
questions as to whether the Respondent violated Section
8(a)(1) and (2) of the National Labor Relations Act, as
amended. In its answer, duly filed, the Respondent conced-
ed certain facts with respect to its business operations, but
it denied all allegations that it had committed any unfair
i The charge was filed on May 5, 1972.
203 NLRB No. 87
VERSATUBE CORPORATION 457
labor practices.
At the trial, the General Counsel and the Respondent
were represented by counsel? All parties were given full
opportunity to examine and cross-examine witnesses and to
file briefs. The parties waived oral argument and on No-
vember 1, 1972, the Respondent, but not the General Coun-
sel, submitted a brief. A motion to strike certain allegations
in the complaint and a motion to dismiss , made by the
Respondent at the close of the trial, were taken under ad-
visement. They are disposed of as appears hereinafter in this
Decision.'
Upon the entire record in the case, including the briefs of
counsel , and from my observation of the witnesses, I make
the following:
The principal witness for the General Counsel was Patri-
cia Spencer, a former employee of the Respondent and the
first and only chairman of the VEA from the time it was
organized until she voluntarily terminated her employment
with the Respondent on or about May 1, 1972. At the close
of the General Counsel's case, the Respondent rested with-
out calling any witnesses. As a result, Mrs. Spencer's testi-
mony was undenied and uncontradicted. After the General
Counsel's examination of this witness on direct, she was
subjected to an extensive cross-examination by able counsel
for the Respondent. Throughout her entire interrogation,
she appeared as an honest and trustworthy witness. Conse-
quently, I find that her testimony was completely credible.
Except where otherwise noted, the findings set forth below
are based on the testimony of the witness, Spencer.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent , a Michigan corporation , has its office
and place of business in Troy, Michigan , where it is engaged
in the manufacture , sale, and distribution of flexible tubing,
clamps , hangers , and stampings of automobile body sec-
tions . During the year 1971, a representative period, the
Respondent shipped products from the Troy plant valued
in excess of $1.5 million, of which amount over $50,000
worth were shipped directly to points located outside the
State of Michigan . During the same period, the Respondent
had goods and materials valued in excess of $500 ,000 deliv-
ered to the Troy plant, of which amount materials valued
in excess of $50,000 were sent directly to the factory from
outside the State of Michigan . Upon the foregoing facts, the
Respondent concedes , and I find , that Versatube Corpora-
tion is engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (herein
UAW), and Versatube Employees Association (herein
VEA) are labor organizations within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The VEA was organized in May 1971 and a union-shop
contract with the Respondent was executed that same
month. In March 1972, the UAW initiated an organiza-
tional campaign at the plant and filed a representation peti-
tion . After a hearing , held on April 11, 1972, the UAW
withdrew its petition and shortly thereafter filed the unfair
labor practice charge out of which this proceeding arose.
2 The party in interest, the Versatube Employees Association , did not
appear . The issues raised in this connection are discussed, infra
A joint stipulation to correct various stenographic errors in the record,
submitted by the General Counsel and Respondent on November 10, 1972,
is hereby received as Joint Exh . 2 and the record is corrected in accordance
therewith.
B. The Supervisory Hierarchy
William Goodman, the president and principal stock-
holder of the Respondent, is engaged in active day-to-day
management of the business. Eugene S. Malis is the general
manager of the plant and Nathan Goldstone is the comp-
troller. The Respondent conceded in its answer that all of
the foregoing are supervisors within the meaning of the Act.
The General Counsel also alleged that Roscoe W. Rupe,
Clarence Allgood, William H. Bolton, Philip L. Rivard, and
William D. Bates 4 were foremen at all times material. The
Respondent denied that any of the foregoing named were
supervisors and declined to stipulate whether they, or any-
one else, held such status.
At the time in question, the Respondent's factory had
from 70 to 75 employees, a plant complement that obviously
needed, and had, a supervisory hierarchy below the level of
plant manager. Spencer testified that Rupe, Rivard, Bolton,
Allgood, and Bates were foremen in the plant. According to
her, Rupe was in charge of the stamping and packing de-
partment, Rivard, of shipping, Bolton, of tubing, and All-
good, of the large press room (sometimes referred to as big
stamping).'
Spencer worked in the stamping and packing department
along with 12 to 18 other employees under Rupe. She testi-
fied that, during the course of her employment in that unit,
Rupe had the power to discharge and had dismissed at least
two employees .6 She further testified that it was Rupe who
gave employees orders as to production, assigned employees
to specific machines, handled transfers, corrected timecards
when the clock made a mistake, assigned overtime, and
administered discipline by giving, or withholding, overtime.
According to Spencer, Rupe, along with the other foremen
whom she named, wore a uniform which the Company
supplied. The employees, on the other hand, wore no uni-
forms.
Spencer testified that Allgood had approximately eight
employees working under him in the large press room and
The allegation as to Bates is that he was a foreman from about April 1,
1972.
5 Spencer also testified that about mid-April 1972, William Bates was
promoted to foreman in the large press room. Her testimony in this connec-
tion was corroborated by David C Harbury, who, at the time in question,
was an employee in that department.
6 Viz, Sally Crockett, who testified later in the trial, and Twilla Norman.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, in about mid-April 1972, Bates was promoted to the
post of foreman and thereafter worked in that capacity in
the same section.
At one point during the period from October 1970 to
January 1971, Spencer herself was designated as a forelady
of the packing lines under Rupe. She testifed that during
that period she attended the regular noonday luncheon
meetings for all the foremen and supervisors which were
held by President Goodman in the plant conference room
and that when she did so Rupe, Rivard, Bolton, and All-
good were in attendance.
On the basis of this testimony, which was credible and
uncontradicted, I find that Rupe, Rivard, Bolton , and All-
good were supervisors within the meaning of the Act.
C. Formation of the VEA: Background'
Spencer was employed in November 1970. At that time,
the employees of Versatube were unorganized. The follow-
ing spring, her foreman, a Mr. Schuster, told her that he
wanted her to be on a committee to establish a private union
for the shop. Spencer assented and, a short while later, Plant
Manager Malis asked her if she would represent the stamp-
ing department, where she worked, on the new committee.
Thereafter, an employee committee with Spencer as chair-
man, William D. Bates as vice chairman, and employees
Millie Bell, Pauline La Liberte , Susan Krueger, and Robert
Northrop as members, met with Malis and other company
representatives to develop a collective-bargaining agree-
ment for the Versatube employees.
The meetings continued over a period of approximately
2 months. They were held at the plant after hours, but the
employee members were paid for the time spent on the
negotiations and, if the individual employee had already
worked 40 hours, he was paid overtime. The employees
themselves did not present a proposed contract at any time
during the course of the discussions. Instead, the
Respondent's representatives presented the management
proposals, section by section, as the weeks went by and the
employee committee expressed its agreement or dissent. At
the end of 2 months, when the employee committee agreed
with Malis and the management representatives upon the
final form of the new contract, all parties, including Spencer
and her five coworkers signed the agreement. Prior to this
point, Malis had suggested that the name of their new orga-
nization be the "Versatube Employees Association" or
"VEA," and the employee committee adopted his sugges-
tion. At the end of the negotiations, Malis told the employee
committee that the new organization should have officers.
Thereupon, Spencer volunteered to be the chairman and she
asked Bates to be the vice chairman and Krueger to be the
secretary-treasurer. The latter two assented and Bell, La
Liberte, and Northrop remained on the committee as repre-
sentatives. Malis suggested that the VEA should have dues
7 The charge herein having been filed on May 5, 1972, all events prior to
November 6, 1971, occurred beyond the 10(b) period and may not serve as
the basis for an unfair labor practice finding . However, this testimony is
relevant background evidence that "may be utilized to shed light on the true
character of matters occurring within the limitations period :. Local
Lodge No 1424, International Association of Machinists, AFL-CIO [Bryan
Manufacturing Company] v. N.L R B, 362 U.S 411, 416
and the committee agreed with him that the employees
would be charged $2 a month, on a checkoff arrangement.
They further agreed that at the end of the year, each individ-
ual, still in the Respondent's employ, would be refunded so
much of his dues money as had not been spent and that the
Company would, in turn, match the amount of such rebate
with a check of its own to the employee.
On May 26, 1971, a collective-bargaining agreement was
signed by President Goodman and the six employees named
above. It was to be effective on June 1, 1971, and to run for
a period of 3 years thereafter. After the contract had-been
executed, Plant Manager Malis had the foremen bring em-
ployees to the conference room, one department at a time.
There, Malis verbally explained to them the terms of the
contract and told them that Spencer and the others on the
committee would represent them. Malis asked the assem-
bled employees if they were satisfied and, when no one
objected, he announced that the contract had been ratified.
The contract had a union-security provision which read
as follows:
It shall be a condition of employment that all employ-
ees of the Company covered by this Agreement who
are members of the Association in good standing on the
execution date of this Agreement shall, on and after the
thirty-first day following the execution date of this
Agreement, become and remain members in good
standing of the Association. It [sic] shall on and after
the thirty-first day following the beginning of such em-
ployment become and remain in good standing in the
Association.
At the time when the collective-bargaining agreement
was signed and the employees ratified it, none of them had
signed any document to establish their membership in the
VEA or to authorize the VEA to represent them. Sally
Crockett, an employee at the time, testified that, as the
employees were called to the office to hear Malis explain the
terms of the contract, President Goodman handed each of
them a checkoff authorization and asked that each execute
one. According to Crockett, all the employees present
adopted his suggestion and signed these authorizations at
that time. The VEA never developed any application forms
for membership. Nor was any constitution or bylaws ever
prepared. Spencer testified that after the first meeting at
which Malis explained the new contract and new organiza-
tion to the employees, department by department, the VEA
held no further meetings with the employees.
David C. Harbury was hired on about February 1, 1972.
He testified, credibly and without contradiction, that at the
time he was hired Malis provided him with a number of
forms which he was asked to complete. According to Har-
bury, among these papers, which included a withholding
form and an application for Blue Cross insurance, was,a
checkoff card which Malis asked that he execute immedi-
ately. Harbury complied with this request.
Shortly after the contract was signed, Malis told the com-
mittee that the VEA should be registered with the State of
Michigan as an unincorporated association. Thereafter he
brought the committee members the necessary application
forms and, after they signed them, Malis filed the docu-
ments with the appropriate state agency. Malls similarly
assisted the committee members in opening a checking ac-
VERSATUBE CORPORATION
count for the VEA at a local bank . Sometime later, Susan
Krueger who had been designated as the secretary -treasur-
er, left the Respondent's employ.When this occurred,
Spencer assumed Krueger 's duties along with those of chair-
man. Spencer testified that she kept all the records which
the VEA possessed in the bottom drawer of her desk at the
plant and that that drawer constituted the VEA's office. At
the same time the plant office personnel provided substan-
tial assistance to the VEA in keeping records of the checkoff
authorizations , and maintained a list of such authorizations,
so that it was unnecessary that the VEA itself maintain a
separate list. At the end of each month , Malis customarily
wrote a check to the VEA for the total amount deducted
from the employee payroll for union dues , handed the check
to Spencer for her endorsement , and then deposited it to the
VEA account. Thereafter he gave Spencer the deposit slip
which he had received from the bank . In December 1971,
the employees received a refund of all VEA dues which had
not been used for expenses during the year. The computa-
tion of the amount to be refunded and the actual writing of
the checks was handled by the clericals in the plant office.
Spencer testified that all she did was to turn the VEA check-
book over to one of the office clericals named "Sandy" who
computed the amount to be paid each employee , and there-
after prepared the checks for Spencer 's signature.8
Only five copies of the collective -bargaining agreement
between the Company and the VEA were prepared and they
were not given distribution to the employees in the plant.
President Goodman received one of the copies, Comptroller
Goldstone received another, and so did Spencer, as the
chairman of the VEA. Spencer did not know what disposi-
tion was ever made of the other two copies . In any event,
as the sole employee in possession of a copy of the agree-
ment, Spencer was the one to whom her coworkers came
when they had any questions as to their rights under the
contract.
During the period from the establishment of the VEA in
May 1971 and until May 1, 1972, when Spencer left her job
with the Respondent, the VEA received a number of oral
grievances from the employees , but only one written griev-
ance . The latter involved employee Douglas Dip. Sometime
in April 1972, Dip was discharged. The latter orally protest-
ed to Spencer , as chairman of the VEA, and Spencer re-
ferred Dip to employee Robert Rudolph, Dip's
departmental representative for the VEA. In a letter, dated
April 20, Dip protested to Spencer that the conference
which Representative Rudolph had had with Plant Manag-
er Malis had been fruitless , and that at that point he was
filing a formal written grievance which he requested her to
process to arbitration , if necessary. Spencer testified that on
receiving Dip's letter she gave it to Malis and asked him
what she should do. Malis promised to take care of the
matter . Shortly thereafter, Malis handed Spencer a letter for
her signature which was a typewritten response to Dip in
which Dip was told that since he was a probationary em-
ployee at the time of his discharge the VEA contract accord-
ed him no right to file any grievance as to such action.
Spencer signed the letter and gave it back to Malis who
t At the same time the VEA issued these dues rebates , the Company paid
each employee an amount equal to the VEA check.
promised to mail it for her.
459
D. The Organizational Attempt of the UAW
and the Response Thereto
Leonard Montford, vice president of Local 417, UAW,
testified that on about March 7, 1972,9 employee Douglas
Dip came to the union office to ask help in organizing the
Respondent's plant, and that he gave the employee some
authorization cards. Montford testified that on about
March 13 Dip returned to the union headquarters and
turned over approximately 30 signed authorization cards.
At this time Dip secured more cards for distribution among
his coworkers.
On about March 15, Montford prepared a handbill which
invited the Respondent's employees to attend a UAW orga-
nizational meeting on the night of March 20 and 21. Dip
and others distributed this leaflet at the plant. The meeting
for the day shift on the evening of March 20 was attended
by about 35 of the Respondent's employees. Another meet-
ing, held at 4:30 AM the next morning for the night shift,
attracted only two employees.
In a letter dated March 15, Montford wrote to President
William Goodman to tell him that a majority of the employ-
ees had designated the UAW to represent them. Montford
concluded his letter with a request that Goodman recognize
the UAW as the majority representative of the employees
in a production and maintenance unit.
In mid-March, and at about the time that Montford sub-
mitted the UAW demand for recognition, Plant Manager
Malis called Spencer to the Respondent's office where, in
the presence of Malis, President Goodman, and her fore-
man, Roscoe Rupe, Malis explained that a number of the
employees had signed cards in the UAW. The management
officials present told Spencer that they wanted her to meet
with the employees and find out the cause of their dissatis-
faction. Pursuant to these orders, Spencer spent the rest of
the workday on this mission. In each department, at her
request, the foreman assembled all of the employees and
thereafter, while the foreman remained in the room, Spenc-
er questioned them as to their reasons for supporting the
UAW.
At the end of the day, Spencer reported back to Good-
man and Malis that she had been unable to learn very much
from the employees except that they were dissatisfied about
not having had a raise. The company officials considered
these results inadequate. As a result, Goodman asked that
on the following day Spencer resume her interrogation of
the employees, but that this time she do it on an individual
basis.
In accordance with Goodman's request, the following
morning Spencer began questioning the employees individ-
ually. In each instance, on going to a department she spoke
to the foreman first and then, in his office, she questioned
each employee as the foreman sent them to her one at a
time . Pursuant to her orders, Spencer made similar arrange-
ments with Foremen Rupe, Allgood, Rivard, and Bolton,
the supervisors in small stamping, the press room, shipping,
9 All dates hereinafter are for the year 1972, unless specifically noted
otherwise
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tubing departments, respectively. When questioning
each employee, Spencer wrote out the name, department,
pay rate, length of employment, and the complaint of the
individual. During her questioning of employee Douglas
Dip, Plant Manager Malis came into the room and joined
in the conversation. In doing so, Malis referred to other
shops where, after a union organized the employees, the
plant closed down. After Malis left the room, Spencer told
Dip that she believed that if the UAW organized the Versa-
tube employees President Goodman would close the shop.
On completing this assignment, during the course of
which Spencer talked with almost all of the 70 to 75 employ-
ees at the plant, she reported to President Goodman and
turned her handwritten notes over to him. In summarizing
the results for Goodman, Spencer told him that the employ-
ees were dissatisfied with not only their rates of pay, but also
hazardous working conditions resulting from scrap metal
piles that were left about the shop, the lack of an adequate
number of stock boys, the need for more heat in the winter,
the need for more ventilation in the summer, the leaky roof
in one of the buildings which allowed rain to fall in the work
areas during inclement weather, and the filthy conditions of
the restrooms. Goodman listened to the recitation and
promised that immediate steps would be taken to answer at
least some of the complaints , including the hiring of a full-
time janitor to clean the restrooms and to pick up the scrap
metal.
Two employees testified as to Spencer's meetings with
their departments during this period. Sally Crockett, who
worked in the packing room, testified that Foreman Rupe
called all the employees on duty to the shop office where
they met with Spencer. According to Crockett's credible,
undenied, testimony, Rupe started the meeting with the
statement that the UAW was trying to organize the plant
and that he wanted to know what the employees thought
about the UAW. Crockett testified that she asked Rupe if
the presence of the UAW would improve pay and working
conditions and that his response was that there would be no
improvement in working conditions, that any higher wages
would be eaten up by high union dues and that "as a result
of making Versatube pay the higher wages the plant would
probably close down." °
Employee David C. Harbury, an employee in the large
press room, testified that during this same period in March
his foreman, who was then Clarence Allgood, held a meet-
ing with the employees at which he told them the UAW
would be bad for them because the Company could not
afford the wages the UAW would require it to pay. Accord-
ing to Harbury, the foreman also told them that if the UAW
organized the plant the employees might have to wear safety
helmets and shoes that "would cost us a lot of money in the
long run, and Versatube might not be able to stay in busi-
ness because of this." Harbury further testified that the
foreman told them that in the meantime he would try to get
them a raise.
Harbury testified that, during the month of April and
after Bates became his foreman , Bates also held meetings
with the employees and during one of these meetings Bates
told them "that the Small Press Room would probably have
to be laid off if the UAW came in because they [the Compa-
ny] could not afford it."
Harbury attended the UAW meeting held on about
March 20. He testified that, in addition to the Respondent's
employees who were at the meeting, Foreman Rupe and his
wife and Foreman Allgood were in attendance.
The hearing on the representation petition was originally
set for March 30. Later, however, it was rescheduled for
April 11. Prior to the latter date, Malis suggested to Spencer
that the VEA should be represented by counsel at the hear-
ing. Up to that point, none of the VEA officials had made
any attempt to secure a lawyer. Malis suggested that the
VEA could call upon a Mr. Lieberman, a local attorney, to
act as its counsel. At first, Spencer demurred to the proposal
on the ground that the VEA might not have enough funds
to pay such legal expenses. Malis reassured her, however,
with the statement that "if the [VEA] fund didn't have
enough in it, don't worry, it would be taken care of later." t t
Thereafter, Spencer used the telephone in Malis' office to
arrange an appointment with Attorney Lieberman. Spencer
had two meetings with the last-named counsel in prepara-
tion for the Labor Board hearing. In the first instance, Plant
Manager Malis gave her a ride to the attorney's office and
on the second occasion he arranged for one of the other
employees to take Spencer to the conference with Lieber-
man. The appointments were held during the workday and
Spencer was paid for the time the same as if she had been
on duty at the plant. Sometime later Attorney Lieberman
submitted a bill for his fee that was in excess of the entire
amount in the VEA treasury. Spencer asked Malis for his
advice as to what should be done and the plant manager
suggested that she pay only half of the bill at that time and
later, when more dues had been collected, an additional
payment could be made. Spencer did not know what was
ultimately done with the bill, for she quit her job with the
Respondent before anything more was done towards paying
the VEA legal fees.
Prior to the Labor Board hearing on April 11, Goodman
met with Malis and Spencer in the plant office to discuss the
UAW leaflets that were being distributed among the em-
ployees. The plant officials felt that the VEA should engage
in a counterattack and distribute similar campaign material.
Malis told Spencer that he would prepare a pamphlet for the
VEA and have it reproduced. Shortly thereafter Malis
brought to Spencer a large supply of one-page pamphlets
entitled "VEA Fact Sheet." This handbill described the
VEA as the bargaining agent of all Versatube production
employees and drivers and listed the officers as Spencer,
Bates, and Bell. It then set forth, as employee benefits se-
cured by the VEA, contract provisions on grievances, union
security, leaves of absence, holidays, vacations, and hospi-
tal, medical , and life insurance. Shortly before the election
hearing on April 11, and on the day that she received the
pamphlets from Malis, Spencer distributed them to the em-
ployees in the shop. At the trial of the instant case , Spencer
credibly testified that neither she nor the VEA had had
anything to do with the preparation of the "VEA Fact
Sheet" and that the VEA was not charged for the cost of
10 The quotation is from Crockett 's testimony 11 The quotation is from Spencer 's testimony
VERSATUBE CORPORATION 461
preparing and printing them.
On or about April 13, Malis suggested to Spencer that the
VEA was short of officers because several original officers
were no longer working for the Respondent but had never
been replaced . 12 Malis suggested that Spencer secure two
replacements from departments that were not then repre-
sented . Spencer thereupon proposed that Carol Openhoff,
an employee in the tubing department , and Douglas Dip, an
employee in the large press room , be the new representa-
tives . Malis agreed to Openhoff , but objected to Dip. In-
stead of the latter , he proposed that Robert Rudolph be
selected . Spencer acquiesced and thereafter induced Open-
hoff and Rudolph to act as representatives on the VEA
board of officers.
E. Findings and Conclusions With Respect
to the Alleged Violations of
Section 8(a)(1) and (2)
On May 26, 1971, the Respondent and the VEA executed
an agreement, effective on June 1, 1971, which established
as a condition of employment that all employees covered by
the agreement who were members of the VEA on the execu-
tion date of the agreement would be required to become and
remain members of the VEA . Since this provision failed to
accord the 30-day grace period, or "escape clause" as re-
quired for a valid union-security provision by Section
8(a)(3) of the Act, it is illegal, and its continued enforcement
by the Respondent constitutes an unfair labor practice with-
in the meaning of Section 8 (a)(1) of the Act, as well as illegal
assistance to the VEA within the meaning of Section 8(a)(2).
I further find that the Respondent provided illegal inter-
ference and assistance to the VEA, thereby violating Section
8(a)(2) and (1) of the Act, by the following acts and con-
duct:
(1) By paying to each employee, just before Christmas in
1971, an amount equal to that which each employee had
paid to the VEA as dues, thus encouraging employees to pay
their dues by assuring them of a Company-paid bonus at the
end of the year.
(2) The action of the Respondent's president, Goodman,
and plant manager, Malis, during the latter part of March
in inducing VEA Chairman Spencer to use Respondent's
office facilities and working time, with the collaboration of
the Respondent's foremen , for the purpose of soliciting em-
ployee grievances for resolution by the Respondent and for
the purpose of organizing opposition to the UAW's cam-
paign.
(3) The action of Plant Manager Malis in urging VEA
Chairman Spencer that the VEA should have legal counsel
at the Labor Board representation hearing , Malis' selecting
an attorney to act as such counsel, his assurance to Spencer
that if the VEA treasury was inadequate to pay legal fees,
"don't worry [the legal fees] would be taken care of later,"
thereby implying that the Respondent would pay such fees,
and Malis' action in thereafter providing Spencer with
transportation to and from the law office of the Company-
selected attorney, all during working time and at full pay.
12 These were Krueger, the secretary-treasurer , and La Liberte and Nor-
throp, both representatives.
(4) The action of Plant Manager Malis, on or about April
13, in dictating the addition of two replacements to the list
of VEA officers and his veto of one employee for such a post
when the name of that individual was suggested by VEA
Chairman Spencer.
(5) The action of Plant Manager Malis, late in April, in
preparing a response for the VEA to an employee's griev-
ance and thereafter directing VEA Chairman Spencer to
mail to the grievant the response which he had prepared to
the grievant.
(6) The action of Plant Manager Malis, early in the
month of April, in preparing VEA campaign literature at
the Respondent's expense and thereafter providing it to the
VEA for distribution to the employees in an anti-UAW
campaign.
(7) The action of Plant Manager Malis, on or about Feb-
ruary 1, in soliciting newly hired employee David C. Har-
bury to execute a VEA checkoff authorization on the day
he was hired and without allowing him the statutorily pre-
scribed 30-day grace period.
Section 8(a)(2) of the Act, in pertinent part , makes it an
unfair labor practice for an employer "to dominate or inter-
fere with the administration of any labor organization or
contribute financial or other support to it." The Versatube
Employees Association is a creature of, and totally depen-
dent on, the Respondent. During the 6 months prior to the
filing of the charge that initiated the instant case, the Re-
spondent illegally assisted the VEA by: adhering to the
illegal union-security clause in the collective-bargaining
agreement, requiring newly hired employees to sign check-
off authorizations on the day of their employment and with-
out allowing them a 30-day grace period, paying each
employee a Christmas bonus that equalled the amount of
the dues paid to the VEA which the VEA had not expended,
supplying clerical assistance to the VEA in computing dues
rebates to the employees and in the maintenance of the
monthly checkoff records, securing counsel to represent the
VEA at the Board representation hearing and assuring VEA
President Spencer that any expenses in this connection
"would be taken care of later," preparing campaign litera-
ture such as the "VEA Fact Sheet," and lending all possible
support to the VEA in its drive to defeat the UAW when
that rival appeared at the plant. That the Respondent ille-
gally dominated the VEA is evident from the manner in
which the Respondent's officials (1) managed the campaign
against the UAW by dictating to Spencer, the nominal head
of the VEA, that she should engage in extensive interroga-
tion of the employees and make reports of her findings to
President Goodman and Plant Manager Malis, (2) prepared
the VEA's campaign literature, (3) selected a lawyer to rep-
resent the VEA at the Board representation hearing, (4)
proposed to Spencer that additional representatives be add-
ed to the VEA's board of officers and then vetoed the desig-
nation of Douglas Dip, an employee who had been
instrumental in starting the UAW organizational campaign,
for such an office, and (5) prepared a response to the only
written grievance which the VEA ever received and directed
that Spencer send it to the grievant. The scale of the
Respondent's assistance to the VEA and its interference
with the internal affairs of that organization during the
10(b) period, when viewed in the light of the events which
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
led to the formation of the VEA, present a picture of a
nominal Union which was organized at the behest of the
plant management and completely dominated by the
Respondent's officials at all times thereafter . In the spring
of 1971, the management selected certain employees to act
as a committee which met with the Respondent 's officials.
Thereafter, when the said committee signed a collective-
bargaining contract, President Goodman and Plant Manag-
er Malis summoned the employees to the plant conference
room and secured their oral concurrence in what had been
done . No elections were ever held for an office in the VEA,
and, according to VEA Chairman Spencer, subsequent to
May 1971 , when the Company-sponsored meetings oc-
curred, no further meetings of the VEA took place until the
UAW began its organizational campaign . In the light of the
foregoing facts, it is my conclusion that during the course
of the Section 10(b) period the Respondent illegally dom-
inated and interfered with the administration of the Versa-
tube Employees Association and thereby violated Section
8(a)(2) of the Act. N.LR.B. v. Sharpies Chemicals, Inc., 209
F.2d 645, 652 (C.A. 6); N.LR.B. v. American Rolling Mill
Company, 126 F.2d 38, 42 (C.A. 6).
I conclude and find that the Respondent further violated
Section 8(axl) of the Act by the following acts and conduct:
(1) On or about March 20, Foremen Roscoe Rupe and
Clarence Allgood attended and observed a meeting of the
employees called by the UAW.
(2) In the latter part of March, Plant Manager Malis
arranged for VEA Chairman Spencer to act as an agent for
the Respondent and solicit employee grievances in order to
dissuade them from adherence to and activities on behalf of
the UAW.
(3) During that same period referred to in the paragraph
above Spencer, in carrying out the mandate from Goodman
and Malis to question the entire work force and ascertain
their complaints , told employee Dip that she felt that if the
UAW organized the employees President Goodman would
close the shop.
(4) In mid-March and thereafter President Goodman
and Plant Manager Malis questioned employee Spencer
about the UAW activity in the shop and induced her to
work with them in securing more information from the
employees as to the activities of the UAW.
(5) In the latter part of March , and at the employee meet-
ing Spencer had with the employees in the small stamping
department , Foreman Rupe told the employees that he
wanted to know what they thought about the UAW, and
told employee Crockett, as well as the others present, that
the arrival of the UAW at the plant would bring no im-
provements at Versatube , and that "as a result of [the
UAW] making [the Company] pay . . . higher wages the
plant would probably close down."
(6) In the statement made by Foreman Allgood, at a
meeting with his employees in late March , he promised
them that he would try to get them a raise and that, in the
meantime , he wanted them to know that the high wages,
safety helmets, safety shoes, and other expenses that the
UAW would insist upon would cost so much that "Versa-
tube might not be able to stay in business ..."
(7) Foreman Bates , in April and after he became a super-
visor, made the statement to David Harbury and other em-
ployees "that the Small Press Room would probably have
to be laid off if the UAW came in because [the Company]
couldn't afford it."
F. The Issue as to Service of Process and
the Party in Interest: Findings and
Conclusions With Respect Thereto
As noted earlier, no representative of the VEA appeared
at the hearing in the instant case . In its brief, as it did at the
hearing, the Respondent argues that there was no adequate
service of process on the VEA and that the latter was a
necessary party. The Respondent, citing Consolidated Edi-
son Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197, con-
tends that since the VEA was not present at the hearing the
Board is without authority to enter any form of remedy that
would involve withdrawal of recognition from , and the dis-
establishment of, that organization . To this issue we will
now turn.
The original complaint, issued on June 27, 1972, did not
name the VEA as a party. On September 12, 1972, the
General Counsel sent, by registered mail, a copy of the
original charge, and notice of hearing, to the following ad-
dress:
Versatube Employees Association
c/o Versatube Corporation
4755 Rochester Rd.
Troy, MI 48084
Attn: Robert Rudolph, Pres.
The return receipt for the above was signed "S. Mealy" and
dated September 13, 1972. In a letter to "Robert Rudolph,
President," dated September 15, 1972, and addressed in the
same manner as the earlier matter that was sent on Septem-
ber 12, the General Counsel notified the addressee of the
General Counsel 's intention to move to amend the com-
plaint at the hearing and to add the VEA as a party in
interest. The registered mail return receipt for this corre-
spondence again was signed by "S. Mealy" at the Versatube
Corporation and was dated September 16, 1972.
At the hearing, the General Counsel's motion to amend
the complaint to add the name of the VEA as a party in
interest was granted. At that time, counsel for the Respon-
dent also identified the "S. Mealy," whose signature appears
on the two registered mail receipts mentioned above, as a
secretary in the Respondent's corporate office. At the same
time, counsel for the Respondent contended that there was
no "Robert Rudolph" in the Respondent's employ. At the
hearing, Mrs. Spencer testified that in April Robert Ru-
dolph was appointed a representative of the VEA. She fur-
ther testified that when she left the Respondent's
employment about May 1, "I gave all of the VEA material
to Bob Rudolph ." 13 In its brief , Respondent again asserts
that there is now no Robert Rudolph in its employment. It
13 On November 10, 1972, the Respondent moved to correct the record by
changing the name "Rudolph ," as it appears in Spencer's testimony on pages
106, 109 , and I I I of the transcript , to "Rudorf " The General Counsel did
not join in this motion . The Administrative Law Judge has referred to the
notes which he took during the trial and finds that these notes indicate that,
phonetically at least, when testifying Spencer referred to a "Rudolph ." Conse-
quently, in view of this fact, and the nonconcurrence of all parties in the
Respondent's proposed change, the aforesaid motion is denied.
VERSATUBE CORPORATION 463
acknowledges that there is a "Mr. Rudorf" at the plant who
is a member of the VEA , but states that the aforesaid Ru-
dorf is not an officer of the VEA and, therefore, not author-
ized to accept service of process.
The Respondent 's argument that the VEA is a necessary
party is based on the ground that the latter is a signatory to
the collective-bargaining contract that would be set aside if
the General Counsel 's complaint is sustained . This conten-
tion of the Respondent would have merit if the VEA was an
independent organization . Consolidated Edison Co. v. N.L.
R.B., supra, on which the Respondent so heavily relies, in-
volved an admittedly independent union which the Board
had found was illegally assisted by the respondent. The
Supreme Court held, inter alia, that the Act gave the Board
no authority to invalidate a contract with an independent
labor organization unless the latter had been joined as a
party . Consolidated Edison, supra at pp . 232-235. In a subse-
quent decision , the Court considered the question as to
whether the Board had authority to order an employer not
to enforce contracts with its employees, found to have been
procured in violation of the Act, in the absence of the em-
ployees themselves as parties . National Licorice Co. v. N.L.
R.B., 309 U .S. 350 . In answering that question in the affir-
mative the Court distinguished Consolidated Edison and
held that the Board "asserts a public right vested in it as a
public body" (National Licorice at p. 364) and that, in so
doing , it is bound by considerations different from those
which apply in the private litigation of rights arising out of
a contract . The Court affirmed the power of the Board to
order the employer there involved to refrain from enforcing
the provisions of the unlawful contracts with its employees,
even though the latter were not made parties to the original
action . National Licorice supra at pp. 366-367.
As found earlier in this Decision , the VEA is not an
independent labor organization such as was involved in
Consolidated Edison . Instead, as has been found above, it is
an organization which the Respondent has illegally domi-
nated and assisted and it is entirely a creature of the Re-
spondent . In the light of the foregoing , I conclude that the
VEA is not, and was never , a necessary party to this pro-
ceeding.14
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
UAW and the VEA are labor organizations, all within the
meaning of the Act.
2. By dominating and interfering with the administration
of the VEA and contributing financial and other support to
it, the Respondent has engaged , and is engaging , in unfair
labor practices within the meaning of Section 8 (a)(2) and (1)
of the Act.
3. By interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged, and engaging, in
14 See N L R.B. v Pennsylvania Greyhound Lines, 303 U.S. 261, 271. As the
order did not run against the Association it is not entitled to notice and
hearing . Its presence was not necessary in order to enable the Board to
determine whether Respondents had violated the statute or to make an
appropriate order against them
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The General Counsel did not prove by a preponder-
ance of the evidence that the Respondent violated Section
8(a)(1) by any conduct other than as specifically found
herein.15
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the
Act.
Having found that the Respondent has violated Section
8(a)(1) and (2) by, contributing financial and other support
to the VEA, has interfered with the administration of the
affairs of the VEA, and has dominated the VEA thus ren-
dering the VEA incapable of truly representing the employ-
ees as a bona fide collective-bargaining representative of
any of the Respondent's employees, it will be recommended
that it be ordered to cease and desist from so assisting and
interfering, that it withdraw and withhold recognition from
the VEA as representative of any of its employees, that it
completely disestablish the VEA as the collective-bargain-
ing representative of any of its employees, that it cease
giving effect to any agreements with the VEA,16 and that it
reimburse all employees covered by the contract with the
VEA for all dues checked off from their wages and trans-
mitted to the VEA for the period 6 months prior to the filing
of the charge. N.L.R.B. v. Newport News Shipbuilding & Dry
Dock Co., 308 U.S. 241, 250; N.L.R.B. v. Southern Bell
Telephone and Telegraph Company, 319 U.S. 50, 60; Virginia
Electric and Power Company v. N.L.R.B., 319 U.S. 533, 542-
544; N.L.R.B. v. Tappan Stove Company, 174 F.2d 1007,
1013-14 (C.A. 6).
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
it be ordered to cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
St. Joseph Lead Company. 171 NLRB 541, fn. 1.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
15 E.g., The General Counsel offered no evidence to substantiate allega-
tions in the complaint ( 1) that Foreman Bolton threatened employees with
more onerous work tasks , plant shutdown, and termination if the UAW
became their collective-bargaining agent; (2) that Foremen Allgood and
Bates threatened employees that the Respondent would withhold wage in-
creases if the UAW organized the employees; (3) that on about April 11,
1972, Plant Manager Mahs promised employees that the Respondent would
evaluate jobs , grant raises, and improve the agreement between the VEA and
the Respondent in order to dissuade employees from adherence to the UAW;
and (4) that on about March 6, 1972, Foremen Rupe and Allgood threatened
employees with loss of wages increases in the event the UAW became their
majority representative.
r6 Nothing in this recommendation shall be construed to require Respon-
dent to vary wages, hours, seniority, or other substantive features of its
employees' working conditions which may have been established pursuant
to any prior agreements or understandings.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, I hereby issue the following recommended:
ORDER 17
The Respondent , Versatube Corporation, its officers,
agents, successors , and assigns shall
1. Cease and desist from:
(a) Dominating or interfering with the administration of,
or contributing financial or other support ot, the VEA or
any successor thereto.
(b) Recognizing the VEA, or any successor thereto, as
the representative of any of its employees for the purpose
of bargaining collectively concerning wages , hours, and
working conditions.
(c) Giving effect to the current collective -bargaining con-
tract between the Respondent acid the VEA, or any other
agreement or arrangement in effect between it and the VEA
with respect to conditions of employment ; provided, that
nothing herein shall be construed as requiring the Respon-
dent to vary wages, hours, seniority , or other substantive
features of its employees ' working conditions which may
have been established.
(d) 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 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 and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from, and com-
pletely disestablish , the VEA as the 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 conditions of employment.
(b) Reimburse all employees covered by the contract be-
tween the Respondent and the VEA for all dues checked off
from their wages and transmitted to the VEA since Novem-
ber 6, 1971.
(c) Post at its plant in Troy, Michigan , copies of the
attached notice marked "Appendix." Is Copies of the notice
on forms provided by the Regional Director for Region 7,
after being duly signed by an authorized representative of
the Respondent , shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced , or covered
by any other material . Dated By
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL withdraw and withhold recognition from the
Versatube Employees Association, or any successor
thereto, as the representative of our employees.
WE WILL completely disestablish the Versatube Em-
ployees Association as the representative of any of our
employees for the purpose, in whole or in part, of deal-
ing with us in respect to grievances, labor disputes,
wages , rates of pay, hours of employment, or other
conditions of work.
WE WILL reimburse all employees covered by the con-
tract with the Versatube Employees Association for all
dues checked off from their wages and transmitted to
the aforesaid Union since November 6, 1971.
WE WILL NOT aid, assist, or contribute financial or
other support to the Versatube Employees Association
or any successor thereto.
WE WILL NOT recognize the Versatube Employees As-
sociation, or any successor, as the representative of our
employees.
WE WILL NOT give effect to the current collective-bar-
gaining contract with the Versatube Employees Associ-
ation, or any other agreement or arrangement with the
aforesaid Union with respect to conditions of employ-
ment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
right to self-organization, to form, ,loin, or assist any
labor organization, to bargain collectively through rep-
resentatives 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 and all such activities.
VERSATUBE CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.
it in the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
i! In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "