Wall Tube & Metal Products Co.

National Labor Relations Board - Board Decisions

Nov 7, 1958

122 N.L.R.B. 13 (N.L.R.B. 1958)

WALL TUBE & METAL PRODUCTS CO. 13
As to ( a), it is established Board policy that a Union's disregard
of its commitment under the "No-Raid Pact" is not a reason for
dismissal of its petition for representation ? The case of United
Textile Workers of America, AFL-CIO v. Textile Workers Union
of America ( Personal Products Corp.) 258 F . 2d 743 (C.A. 7), cited
by the Intervenor neither holds nor implies that the Board erred in
refusing to dismiss a petition which the impartial umpire under the
"No-Raid Pact" had already ruled was in violation of the petitioning
Union's obligation under the Pact.
As to ( b) the Board has recently held that contracts of more than
2 years' duration are not a bar after the first 2 years despite the
fact that a substantial part of the industry is covered by longer term
contracts . However, to be timely in relations to such a contract, a
petition must be filed from 150 to 60 days before the end of the first
2 years of the contract term or after the expiration of this 2-year
period.' As the petition in this case was filed during the 60-day
period preceding the expiration of the first 2 years , we find that it
was untimely and must be dismissed.4
[The Board dismissed the petition.]
2 North American Aviation , Inc., 115 NLRB 1090, footnote 3.
3 Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990.
* We find no merit In the contention raised by the Intervenor in its supplemental brief
that a petition filed during the last year of a 3 -year contract is also untimely because the
third year is somehow comparable to a 1 -year renewal period following upon a 2-year
contract term. Nothing in the DeLuxe Metal Furniture Company case , 121 NLRB 995,
supports the Intervenor 's argument.
Wall Tube & Metal Products Co. and Sheet Metal ' Workers
International Association, AFL-CIO. Case No...10-CA-29492.
November 7, 1958
DECISION AND ORDER
On April 4, 1958, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled. proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist 'therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate 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-mem-
ber panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed'. The
122 NLRB No. 3.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
The Trial Examiner found, and we agree, that the Respondent
dominated and interfered with the formation and administration of
the Understanding Committee, herein called the UC, in violation of
Section'8(a) (2) and (1) of the Act.
As set forth in detail in the Intermediate Report, the Respondent,,
during the same period that the Union was engaged in an organiza-
tional campaign among the plant's employees, organized and deter-
mined the nature, structure, and function of the UC. The Respondent
chose the name for this organization, determined how many employees
should comprise the UC, and then selected the original 5 employees to
act as the representatives of the UC. Respondent urged all em-
ployees to use the UC for the solution of their problems. In addition,,
the Respondent has made available to the UC proceeds from a vending
machine. This money has been used by the UC for a specific proj-
ect-if money was required-after the project was discussed at a UC
meeting and approved by management. The record also shows that
the UC has no constitution- or bylaws, no officers, no membership re-
quirements other than employment in the plant, no treasury, and no.
dues requirement.
The Board has found unlawful domination in cases where the em-
ployer not only furnished the original impetus for the organization,,
but where there were present such factors as the nature, structure, and.
functions of the organization which were prescribed by the employer ;
the organization never developed any real form at all, such as a con-
stitution or bylaws; and the organization charged no dues or had a.
treasury.' These additional factors are present in this case. Indeed,
under all the circumstances, the Respondent's conduct was such as to.-
identify and make the UC the Respondent's own organization .2 Ac-
cordingly, we shall order that the Respondent. disestablish the UC.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent, Wall Tube &.
Metal Products Co., Newport, Tennessee, its officers, agents, successors,
and assigns, shall:
1 Adhesive Products Corporation, 117 NLRB 265, 267, and cases cited therein , remanded
on other grounds , 258 F. 2d 403 (C.A. 2).
See 0. E. Szekely and Associates , Inc., 118 NLRB 1125, 1136, enfd . 259 F. 2d 652.
(CA. 5).
WALL TUBE & METAL PRODUCTS CO. 15
1. Cease and desist from :
(a) Dominating or interfering with the formation and administra-
tion of, or contributing financial or other support to, the Under-
standing Committee or any other labor organization of its employees.
(b) Recognizing the Understanding Committee, or any successor
thereto, as the representative of any of its employees for the purpose
of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Sheet Metal Workers Inter-
national Association, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,,
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3),
of the Act.
2. Take the following affirmative action which the Board finds will,
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the Understand-
ing Committee as the representative of any of its employees for the
purpose of dealing with it concerning grievances, labor disputes,,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, and completely disestablish said Understanding Committee.
as such representative.
(b) Post at its plant in Newport, Tennessee, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be.
furnished by the Regional Director for the Board's Tenth Region,.
shall, after being signed by the Respondent's representative, be posted
by the Respondent and maintained by it for sixty (60) consecutive.
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted at the Newport, Tennes-
see, plant. Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Tenth Region in writing-
within ten (10) days from the date of this Order as to what steps.
the Respondent has taken to comply herewith.
8Ia 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.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT dominate or interfere with the formation or
administration of, or contribute financial or other support to, the
Understanding Committee, or any other labor organization of
our employees.
WE WILL NOT recognize the Understanding Committee, or any
successor thereto, as the representative of any of our employees
for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Sheet
Metal Workers International Association, AFL-CIO, or any
other labor organization , to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act.
WE hereby disestablish the Understanding Committee as the
representative of any of our employees for the purpose of deal-
ing with us concerning grievances, labor disputes, wages, rates
of pay, hours of employment or other conditions of employment,
and we will not recognize it or any successor thereto for any of
the foregoing purposes.
WALL TUBE & METAL PRODUCTS CO.,
Employer.
Dated----------------- By------------------------------ ------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Rela-
tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Newport,
Tennessee, on December 11, 1957. As amended the complaint, issued on Sep-
WALL TUBE & METAL PRODUCTS CO. 17
tember 19, 1957, by the General Counsel of the National Labor Relations Board 1
and based on a charge duly filed and served, alleged that the Respondent, Wall
Tube & Metal Products Co.,2 had engaged in unfair labor practices proscribed by
Section 8(a)(1) and (2) of the Act. The complaint alleged that on or about
February 1, 1957, Respondent initiated , sponsored, formed , assisted , and domi-
nated the Understanding Committee at the Newport plant, and contributed finan-
cial support to it . In its answer Respondent admitted the commerce allegations
in the complaint and admitted that the Union is a labor organization. In its
answer Respondent admitted that it participated in the organization of the Under-
standing Committee but denied that it initiated , sponsored , formed or dominated
the Understanding Committee, or that the Understanding Committee is a labor
organization within the meaning of the Act.
The Respondent, the Union and the General Counsel were all represented at
the hearing and were afforded opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, to argue orally and to file briefs.
Briefs, which have been carefully considered, were received from the General
Counsel and Respondent.
Upon the entire record in the case I make the following:
FINDINGS OF FACTS
1. THE BUSINESS OF THE RESPONDENT
Respondent, Wall Tube & Metal Products Co., is a New Jersey corporation quali-
fied to do business in the State of Tennessee, with its principal office and place
of business in Newport, Tennessee, where it is engaged in the manufacture and sale
of condensers and automotive parts and stainless steel tubing. During the 12
months prior to the issuance of the complaint, which period is representative
of all times material herein, Respondent sold and shipped finished products valued
at more than $50,000 directly to customers located outside the State of Tennessee.
Respondent admitted, and I find, that at all times material herein Respondent has
been engaged in commerce within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers International Association , AFL-CIO, referred to herein
as the Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In a case involving Bullard Industries, Inc., and Helical Tube Corporation 3 2 of
Respondent's 3 predecessor corporations, in its Decision and Order issued January
13, 1958 (of which I take official or judicial notice), the Board found and held the
following: In early January 1957, Melford M. Bullard, who was then president
of Bullard Industries (and is now a director of Respondent) threatened to dis-
charge one employee for getting union cards signed (for the Machinists); the
first meeting to attempt to organize the employees in the Union was held at 1 a.m.
on January 24, 1957; on January 25, Bullard told an employee that he had seen
that employee's car parked at the union meeting the other evening; on January
26, Bullard discriminatorily discharged four of his employees because of their
union activities for the Union and told them that they knew why they were dis-
charged, that they had been fighting him behind his back, that before he would
let them come to work or have a union in his plant he would close the doors;
on January 31, 1957, Bullard discharged a fifth employee for discriminatory reasons;
and that by these acts Respondent violated Section 8(a)(3) and (1) of the Act.
I The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel.
2 The complaint was issued against Bullard Industries, Inc., and Helical Tube Corpora-
tion. The answer of these corporations stated that they merged with another corpo-
ration and have been since July 1, 1957, Wall Tube & Metal Products Co. Upon motion
of the General Counsel at the hearing, and without objection, all the formal papers were
amended to substitute thereon the name of the merged corporation, Wall Tube & Metal
Products Co., wherever the names of the two predecessor corporations appeared.
3119 NLRB 1290.
505395-59-vol. 122-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of these unfair labor practices occurred within the 6-month period prior to
the filing and service of the charge herein, which took place on June 7, 1957.
B. The Understanding Committee
Involved in this case are only two questions, whether the Understanding Com-
mittee is a labor organization within the meaning of the Act, and whether, if so,
Respondent-which term, as used herein, includes the two predecessor corpora-
tions, Bullard Industries, Inc., and Helical Tube Corporation-dominated or inter-
fered with its formation or administration or contributed financial or other sup-
port to it.
1. The Understanding Committee came into being in late January or early Feb-
ruary 1957, at about the same time as the unfair labor practices found by the
Board in Cases 10-CA-2827 and 10-CA-2871 (119 NLRB 1290) were occurring,
and shortly after the occurrence of the first meeting designed to organize the em-
ployees in the Union. Prior to this meeting there had been, as the Board found in
the previous case, a short effort by two employees to sign up the employees in the
International Association of Machinists, herein called the Machinists. As has
been seen above, Melford (misnamed Milford in 119 NLRB 1290) Bullard, presi-
dent of Bullard Industries, Inc., in referring to a union meeting and in threatening
to close his doors before allowing a union in his plant, displayed a knowledge, as
of January 25 and 26, of efforts to organize the employees into an outside union.
Further, copies of the charges against the two predecessor corporations (in 119
NLRB 1290), filed and signed by the Union, were received by those corporations
on January 29, 1957. Under these circumstances there can be no doubt, and I
find, contrary to some of the oral testimony before me, particularly that of President
Bullard whose remembrance was somewhat faulty, that the Understanding Com-
mittee came into existence after Respondent had been apprised that the Union
was beginning to knock at its door.
The Understanding Committee, referred to hereinafter as the UC, was named
by President Bullard, and was formed by Respondent, whose plant manager, Joseph
R. Neal, went into the factory and invited some five employees from different
departments to come to a meeting in Respondent's office. Neal testified that in
making his selection, he tried to get an employee "from as many departments,
different departments as I could." He told them that the Company wanted to
form a little group for the furtherance of a better understanding between the
Company and the employees and so that the group could bring in the employees'
problems to management and management could take its problems to the group.
He also suggested that the group and management meet about once a week or
every 2 weeks. In fact, ever since that time meetings have been held weekly,
at specific times.
2. Representing management at the first meeting with the five employees were
President Bullard, Executive Vice-president and General Manager Maxwell M.
Wachowiak, Plant Manager Neal. and James Lyke, who worked in the office. Ac-
cording to Neal, at this first meeting, Wachowiak "explained to the group what we
were attemntin.g": he told them "about the same thing I told them when I asked them
in"; "We told them the purpose of this committee was to have a better understanding
with them, for them to bring what problems they would have, and we, in turn, would
give them what problems we have, plus to get acquainted." Wachowiak testified that
they told the five employees
to go on back and see if the people that you are associated with and the group
that you are with, if they like the way you part your hair. Maybe they don't like
you and they would want to select somebody else. And, as I recall, right
at the second meeting we had a change of faces.
Employee Clyde McAmis testified that at this first meeting Wachowiak told the five
employees present that a function of the committee was to act as a "go-between" be-
tween the management and "certain" employees. Melford Bullard testified that it
was his intention that the UC serve as a "go-between" between management and
employees.
Management officials testified that an additional purpose for creating the UC was
to enable the employees, most of whom were Southern small farmers and mountain-
men, and the Northern "Yankee" officials, to get better acquainted with one another
and to understand each other better.
Bullard attributed the idea for the UC to employee Charles Ford, who suggested
such an idea to Bullard one day in the plant. Neal testified, in substance, that the
idea was discussed among management for 2 or 3 weeks before it was put into execu-
tion. Bullard testified that he discussed the idea with several employees in the plant
WALL TUBE & METAL PRODUCTS CO. 19
before deciding to go ahead with it. In 119 NLRB 1290, the Board found that the
solicitation of the employees to sign cards for the Machinists took place in Decem-
ber and that the same two employees who had promoted that effort changed their
minds in about the middle of January and started in promoting for the Union. On
these facts it becomes evident, and I find, that Ford's suggestion to Bullard was made
during the solicitation for the Machinists by the two employees. Knowing of the
efforts to organize into the Machinists, Ford, a member of a Machinists' local in an-
other town, did not assist those efforts, but instead, according to Ford,
asked Colonel Bullard . I'll say maybe a month before it started if we
could have some kind of a meeting, if it were permissible, where management
and a part of the-labor could get together once a week, once a month, or
whatnot, and see if we couldn't kind of get acquainted with the problems and so
forth of the employees as well as the company.
Charles Ford did not attend the first meeting, but has attended all of the weekly
meetings since then. The weekly meetings were still being held at the time of the
hearing herein. Ford was from the toolroom on the Bullard Industries side. Also,
from the Bullard side at the first meeting was John L. Smith, who continued going to
the meetings for many months. At the first meeting from the Helical side was Clyde
McAmis, a shipping clerk, and Charles Ottinger. McAmis has attended all of the
meetings since, and Ottinger attended them until he quit Respondent's employ on a
date not revealed in the record. Henry Shropshire, from the automatic welders or
condensers, attended the first meeting and was a regular attendant for 3 or 4 months
thereafter; he was replaced by Jack Keener, who was regular up until 2 or 3 weeks
before the hearing. In addition to the above, other employees have attended the
meetings from time to time. McAmis estimated that on the average "anywhere from
3 to maybe 10" employees have attended the meetings. Wachowiak remembered
an occasion when there were about 12 employees present.
Representing management at the meetings were one or more of the management
representatives who had attended the original meeting.
All of the meetings were held in one or other of the officials' offices, which would
not accommodate many more than customarily attended. There were no mass meet-
ings and, insofar as the record shows, no room for any mass meetings.
From late January or early February 1957, when the meetings began, until about
October 1957, all the meetings were held during working hours and the employees in
attendance were paid their regular wages while attending. The meetings were
usually held on Friday mornings beginning at 10:30 o'clock and ending anytime up
to 11:30 o'clock, which was lunch time. In about October, after the issuance of the
complaint herein on September 19, 1957, the time of the meetings was changed to the
lunch half-hour between 12 noon and 12:30 p. m. and the employees were not paid
for the time. Wachowiak testified that the decision to make this change followed
communications between the plant and the "Labor Relations Board" (meaning the
Regional Office) concerning an inference the Act was being violated.
3. The Understanding Committee had no constitution or bylaws or other formal
structure except that it met at regular intervals and times. It had no officers, no
dues, no initiation fees, no treasury. It had no membership requirements and no
membership as such, although the regular attendants at the meetings considered all
employees as members, and at times it considered questions-such as a change in
shift hours-affecting all employees in the plant. They considered all as members
regardless of any expression-by secret ballot or otherwise-of all the employees
that they wished to be so considered. Any employee was welcome to attend the
meetings-at least up to the capacity of the office room in which the meetings were
held. Although President Bullard orally and in writing (see his May 9, 1957, letter
below) encouraged employees generally to attend the meetings, and on occasion sent
employee representatives out to bring other employees into meetings, the most who
ever attended were about 12 of the approximately 200 employees in the plant. Final
decisions on the subjects discussed at the meetings of the UC were customarily not
made by management at the meetings, but were made in consultation by members of
management, on the basis, in part at least, of the discussions at the meetings. The
final decisions were made by the same top officials-Bullard, Wachowiak, Neal-one
or more of whom regularly attended the meetings.
4. At the meetings of the UC, most of the subjects discussed related to the
working conditions of all of the employees, and many of the discussions resulted,
in due course, in the changes requested by the employees.
(a) Most of the employees were farmers or mountainmen who, during the
summer months, wanted to work in their gardens during the evening hours. Many
of the employees on the Helical side asked McAmis to bring up the question, at a
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting with management, as to whether the day shift could be advanced an hour
so that the employees would get home an hour earlier in the evening. McAmis
testified:
The employees, the majority of them wanted us to bring it up at a meeting to see
if during the summer months we could not go to work an hour earlier and
get off an hour early. So we presented it to the management and they agreed
to let us do that through the summer months.
[The employees] would discuss it amongst themselves . I believe they
went around and got each man's idea of . . . how he would vote for the thing,
Yes or No.
McAmis testified that he and Ottinger "represented our side"-meaning the
Helical side, and that "Bullard Industries side, they have their own representatives
over there on this. . . ." McAmis testified that "Personally, I was against it. The
majority ruled, so we went along with it." McAmis' best recollection was that prior
to their presenting this idea to management, McAmis discussed the question with
Ottinger, Smith, Ford, and Shropshire. In these discussions they "just found that
the majority was ruling and wanted to go to work an hour earlier . . . So we
decided we would ask for it." As McAmis testified, management granted the
request.
(b) Certain machines-about 24 in number-had to be kept running 24 hours a
day, but the work of the employees who were responsible for them consisted mostly
of just watching them. It was suggested by the employees at one of the meetings
of the UC that the employees responsible for these machines be permitted to eat
their lunch while they were on the job, while the machines were running. Permitting
this was a change from what prevailed before, and management granted the request
and made the change. The record does not definitely reveal what the custom or
rule was before, or why the employees wished the change.
(c) McAmis testified that once the UC held a special meeting, occasioned by the
discharge of one Hartsell. In the language of Clyde McAmis,
the boys that worked with him didn't think that he had been treated
justly. And they-and the Understanding Committee and the boy that was
fired held a meeting, and weighed the evidence and decided the company had
not done the right thing and recommended that he be reinstated.
The Company reinstated him. On that occasion, employees contacted the regular
attendants of the UC meetings, in their several departments, told them of the
discharge and that there was to be a meeting. Asked who participated in the deci-
sion to retain Hartsell, whether it was representatives of management and repre-
sentatives of the employees, or was it solely the representatives of the employees,
Clyde McAmis replied, "It was solely the representatives of the employees. We
recommended to the management that he be reinstated." Charles Ford testified that
he was called into this discussion as a regular attendant of the UC. Representing the
employees at this incident, which occurred during the summer, a number of months
after the formation of the UC early in the year, were the five regular attendants of
the UC meetings-McAmis, Ford, Shropshire, Ottinger, and Smith, plus Hartsell
himself, and a group of employees who worked near Hartsell. Representing man-
agement were Plant Manager Neal, James Lyke, and Hartsell's foreman.
(d) In addition to the above subjects discussed at the meetings of the employee
representatives with management, which were developed in the evidence in some
detail, the record establishes that the following subjects were brought up and dis-
cussed, among others, most of the subjects being raised by employees. No minutes
of the meetings were kept (although management representatives sometimes made
notes for their own use) and no witness claimed to remember all the subjects dis-
cussed and acted upon. Many of the discussions resulted in action favorable to the
employees.
Wages were discussed somewhat, but the record does not reveal exactly to what
extent. Bullard admitted that wages were discussed, but said that in his presence
the discussions were limited. He said,
Of course, the men at times come in and they want to know when they were
going to get a raise . . . one of the men would say, "Well, we-look like times
a little harder," or "We ought to be making a little more money." But it never
was gone into in any full detail.
Asked if wage rates were ever discussed at the meetings, Plant Manager Neal testi-
fied, "We have told the committee when we gave an increase that we were giving
an increase, yes, sir." In a previously executed affidavit, Wachowiak had said,
WALL TUBE & METAL PRODUCTS CO. 21
"These were some of the things that were taken up at these meetings . The rest
made a discussion of the company 's wage patterns ." Here, Wachowiak testified
that they did not discuss wage patterns, that he did not know for sure what he had
reference to in the affidavit , and that he may have been referring to the change
in shift hours or the permission for some employees to work while having lunch-
discussed above.
On this evidence I conclude that the subject of wages was not barred from the
discussions , that employees used the UC meetings to request a raise, and that man-
agement used the UC meetings to inform employees that management was about
to give a raise. Informing employees of an impending raise through the UC tended
to strengthen the UC in the eyes of the employees, and to cause them to reject
the outside unions. Bullard's letter to the employees of May 9, 1957, quoted below,
recited that Respondent had given raises as follows: 5 cents per hour on December
25, 1957 (1957 was obviously intended to be 1956) ; 5 cents per hour on February 4,
1957; 5 cents per hour to the night shift on February 18, 1957; a paid insurance
policy to employees on April 15, 1957.
The temperature in the factory was discussed, the problems of fans in the summer
and heat in the winter . Some fans and heaters were installed. They discussed "the
condition of the sanitary facilities , the condition of the urinals , the toilets, the location
of them ." Management put up a sign in the toilet rooms that employees should
keep them cleaner. They discussed substituting a cement floor for the asphalt floor in
the factory, putting in more windows, and the location of drinking fountains. The
employees raised the question as to whether they could have a credit union. They
discussed having a picnic, a fish fry, and recreational facilities. They discussed "a
hospitalization plan." They discussed business conditions , pending orders, and
cutbacks in orders. Management "brought us some discussion of bad quality work
and steps to be taken to try to improve the quality of the work . . . of employees
generally."
In addition to all of the above , management and employee representatives had
much discussion concerning safety factors , and as a result , management remedied
the "biggest portion" of the complaints raised . Employee Charles Ford testified,
.. . One thing I know, a chain hoist in our machine shop we considered was
not too safe, and clusters on the floor, tubings in the aisle, and things like that.
it is a pretty congested area to some extent at time. It depends on what
kind of tubing they are running . If it is long lengths, why , naturally it is going
to stick out. And we've got a walkway to work our way through it . . . They
put up barrels to throw our rubbage and scrap in, things like that, instead of
clustering the floor . . . about the tube sticking out in the aisles , due to the
length, they lay them on barrels, so we can walk down-so we can walk through
the aisles. And our housekeeping, as a whole, has been a whole lot better.
In other words, they have-clean up practically every weekend. Some of the
boys work weekends cleaning the whole building up, especially the tubing side,
things like that. I know we discussed the safety end of it to some extent, the
ventilation. A fan we got. Two put in, one of them would not work, out of
balance . . . overhead . I know that was taken care of . . . .
In addition to all of the above , McAmis testified that they discussed parking areas,
and that,
on one particular occasion we had an employee who was a member of the
Active Reserve, Army Reserve, and he wanted to know if he would be paid
differential pay between what he would have made on the job and what he
would make for two weeks that he was on active duty.
(e) On May 9, 1957, after the UC had been in existence for at least 3 months,
President Bullard caused a letter from himself on the letter-head of Bullard Indus-
tries, Inc., to be distributed to each of the employees . In pertinent part this letter
said,
In building the foundation for Bullard Industries so that it may succeed and
grow into a great plant, the first thought we have is the welfare of our em-
ployees. It is my duty to keep you informed, through the Understanding Com-
mittee, which is made up of employers and employees, on all matters which
we have, and through the series of letters which I have been writing to you.
There is absolutely nothing this Committee cannot solve. You must, at all times,
discuss your problems with them by appearing at their regular weekly meetings.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times this company is planning for your betterment , and I believe that
you will agree we have done everything possible so far, as this is a new plant
and is just started.
We must work together as a unit. If we work together and trust each other
we will succeed . If we listen to outsiders who are trying to divide us we are
bound to fail.
If you have any problems bring them to me and you can always be sure that
I am telling you the truth , and I hope you will trust me as I trust you.
(f) Respondent has a number of vending machines in the plant . At one of the
regular meetings of the UC, Plant Manager Neal told the employees "that the profit
from those machines would be put into what was called an employee's fund to be
used as the employees decided to use it for ." The fund is held by management, and
is disbursed by Respondent 's comptroller upon the suggestion of the employees
made at the meetings , for such things as flowers for the family of a deceased em-
ployee, a picnic , and a fish fry . In the case of the picnic , the question was discussed
at one of the regular meetings between employees and management and the decision
made to hold the picnic . A committee was appointed to make arrangements, con-
sisting of Clyde McAmis and one Dawson ( who was not a regular attendant ) repre-
senting the employees , and one Wylie, an office clerk. This committee made plans,
including the expected cost, and then reported back at one of the regular meetings.
The picnic was held, and management defrayed at least some-probably all-of the
expense out of the vending machine fund . In the case of the fish fry the matter
was handled in the same way.
C. Conclusions
1. Section 2(5) of the Act defines labor organization as
any organization of any kind , or any . . . employee representation committee
or plan , in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances , labor dis-
putes, wages, rates of pay, hours of employment , or conditions of work.
(a) The evidence herein establishes that the UC was an organization of some
kind, for it met weekly from at least February to December 1957, and had a nucleus
of regular attendants from among the employees , as well as from management.
Furthermore , it had a function and it functioned.
(b) The record establishes that , in essence , the UC is an employee representation
committee or plan , in the functioning of which the regular employee attendants, or
committeemen , represented and/or spoke for the employees and on occasion all of
the employees , and the representatives of management spoke for Respondent. Thus,
when Neal went into the factory and selected 5 employees as the first representatives,
he told them, in part , that the Company wanted to form a little group so that the
group could bring in the employees ' problems to management ; and at the first meeting
Wachowiak told these 5 men "about the same thing" that Neal had told them and
invited them to bring in problems.
The record establishes that these five employee representatives , and their suc-
cessors when some of them ceased being active in the UC, accepted Respondent's
invitation , participated in the UC, and brought into the meetings the problems-or
some of them-of the employees.
(c) There can be no doubt on this record that the UC existed for the purpose, in
part, of enabling employees to deal with Respondent concerning wages , hours of em-
ployment, conditions of work , etc. The intransitive verb "to deal " has a number of
meanings . Those meanings closest to what Congress was clearly referring to in
its definition of a labor organization are: "To have to do ; variously , to be occupied
or concerned , or to have intercourse or business relations"; "To contend ; to struggle
in order to check, correct, etc." 4 This record establishes that the UC was more
than a discussion or debating society, that it existed for the purpose of solving
problems between management and employees and was so understood by both
Respondent and the employee representatives . Bullard's letter of May 9, 1957,
pointed out to all of the employees that "There is absolutely nothing this Com-
mittee cannot solve .... If you have any problems bring them to me .... " In
presenting the employees ' problems , and in the discussions of them-such as when
they knew most of the employees wanted to advance the shift so they could have an
extra hour for their gardens in the evening-the employee representatives must
have supported and argued for the changes being requested by the employees. It
is highly unlikely that the regular employee representatives would have lasted very
4 Webster's Collegiate Dictionary , fifth ed ., 1948 , p. 258.
WALL TUBE & METAL PRODUCTS CO. 23
long in their representative capacity if they had merely presented the employees'
requests and then taken a neutral position in the discussion. On the entire record,
including the probabilities in the situation, I find that at the meetings the employee
representatives supported the employees' requests and that the discussions amounted
to "dealing" within the meaning of Section 2(5) of the Act.
(d) The record establishes, further, that the UC exists and functions for the
purpose, at least in part, of dealing with Respondent concerning wages, rates of
pay, hours of employment, or conditions of work, and was so understood by the
employees. Thus, when many of the employees-a majority, according to Mc-
Amis-wished to come to work an hour earlier so that they could get home an
hour earlier and work in their gardens, which certainly related to "hours of em-
ployment, or conditions of work," they discussed it among themselves, then took
it to their representatives on the UC, who, having first discussed it among them-
selves, presented the request to management at a UC meeting. The record is clear
that on this occasion the five employee representatives, who were not originally
unanimous in their own personal opinions, presented the request and urged the
employees' point of view to management on behalf of all the employees-and it
must have been so understood by management.
(e) As seen above in this report, other requests brought to the meetings by the
employee representatives or other employees, which concerned present and future
working conditions in the plant and were therefore of interest or importance to
many if not all the employees in the plant, related to cool air in the factory in the
summer and heat in the winter, the location and cleanliness of the sanitation facil-
ities, the kind of a surface the floor of the factory should have, putting in more
windows, the location of drinking fountains, having a credit union, a hospitaliza-
tion plan, safety factors such as an unsafe chain hoist, trash on the floor, long
tubing piled dangerously, and parking areas. As seen above, after discussion
at the UC meetings, and after management then separately considered the em-
ployees' requests, management granted many of the requests of the employees.
(f) Although the Hartsell case involved the discharge and reinstatement of one
man, the employees around him were so exercised by the injustice they felt in
the situation that the employee representatives of the UC were called in to help.
In reality, therefore, the Hartsell matter involved far more than a possible injus-
tice to one man. It involved, in addition, the feelings, and possibly the fears, of
other men in that section of the plant-as management must have realized-and
therefore related to the efficiency of at least a part of the operation of the plant.
(g) Concerning wages, as has been seen above, the UC meetings were used by
employees to request wage increases, and by management to announce the grant-
ing of wage increases. Whether the increases and the paid insurance policy an-
nounced by Bullard's letter were granted because of effective bargaining by the
employees' representatives, or to persuade the employees to adhere to the UC
and reject any outside union, the conclusion is inescapable that one of the purposes
of the UC was to deal with Respondent concerning wages.
(h) In substance Respondent contends that this case is governed by N.L.R.B. v.
Associated Machines, Inc., 219 F. 2d 433 (C.A. 6). There the court found that
"grievance" as defined in Section 2(5) of the Act referred to major disputes in the
labor field and to collective rather than individual or group complaints, and related
to charting the future of the employer-employee relationship rather than to correct-
ing the past or existing status of that relationship. In that case the court held that
such "discussion as was had relating to working conditions involved individual
rather than collective complaints ...." The court's conclusion was that the com-
mittee there involved was not a labor organization within the meaning of the Act.
There the court noted that no other unfair labor practices were involved.
Here the Understanding Committee was discussed by management officials and
was organized and promoted by Respondent during the same several weeks in
January-or early February-1957, that Respondent was committing the unfair
labor practices found by the Board in 119 NLRB 1290, and was clearly designed
to forestall the organization of the employees by an outside union. Here, as seen
above, many, perhaps most, of the employee requests related to wages and working
conditions affecting all employees in the plant rather than only a few of them or
a small group. Here the UC was designed by management, in part, to help foster
a better understanding between the management officials, all of whom but Bullard
were from the "Yankee North," and the employees who were Southern small farmers
and mountainmen-and to that extent, at least, the UC was promoted and handled
by management to help chart the future of the employer-employee relationship
rather than to correct the past or existing status of that relationship. So it is seen
that this case is clearly distinguishable from Associated Machines.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) Upon the above considerations, in the light of the Board's findings in. 119
NLRB 1290, and upon the entire record considered as a whole, I hold that the UC
is a labor organization within the meaning of the Act. There remains the question
of the extent of Respondent's domination of it.
2(a) Although the witnesses-all of whom were top management officials or
regular employee representatives at the UC meetings and all of whom were called
and questioned by the General Counsel under Rule 43(b) of the Federal Rules of
Civil Procedure or called by Respondent-attributed the idea for forming the UC
to employee Charles Ford, the timing of its formation, in the context of other
unfair labor practices, and Respondent's wholehearted promotion of it, leaves
no room for doubt that Respondent adopted the idea as its own and formed the
UC as a device to forestall success by any outside organization, particularly the
Union, into which some employees were then attempting to organize. As has been
seen , in his letter of May 9, Bullard referred to "outsiders."
-(b) Respondent discussed and planned the UC for several weeks (during which
it was committing other unfair labor practices), decided to put it into effect after
discussing it with a few but by no means all or even a majority of the employees,
and then imposed it upon the employees. It determined the nature, structure, and
function of the UC, and how often it should meet. It determined how many to
select and from what departments, and then selected the original five employee repre-
sentatives, one of whom has continued as a representative ever since. Charles Ford,
who suggested the idea to Bullard, was not invited to the first meeting by Plant
Manager Neal, but he has attended every meeting since the first. The other original
representatives served for long periods before dropping out for one reason or another
and were replaced by other steadies. Respondent urged all employees to use the
UC for the solution of their problems. All meetings were held in company offices,
and employee representatives were paid their regular wages during time spent at
the meetings for about the first 8 months of the organization's life, which condi-
tion was changed as an effort to negative the inference that by paying the employees
for such time Respondent was dominating the organization. All meetings were
attended by one or more management representatives. Regular meetings were
held at regular intervals. The organization has no internal structure, no consti-
tution or bylaws, no membership requirements other than employment in the plant,
no treasury, and no dues. For resources to carry out any ideas that require the
expenditure of money, the UC relies solely upon the proceeds of the Respondent's
vending machines, which Respondent voluntarily made generally available for
its use, and which Respondent makes available for a specific project after the
project is discussed at a UC meeting and approved by management. Upon these
circumstances, in the light of the Board's findings in 119 NLRB 1290, and upon
the entire record considered as a whole, I hold that Respondent created and con-
tinued the UC to forestall the organizing success of any outside labor organization,
particularly the Union, and that Respondent has dominated and interfered with
the formation of the UC, now dominates and interferes with the administration
of the UC, and has contributed and now contributes financial support to the UC,
thereby violating Section 8(a)(2) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above , occurring in connection
with Respondent's operations 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 Respondent has engaged in the unfair labor practices set
forth above, I recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Respondent having dominated and interfered with the formation and administra-
tion of the Understanding Committee, and contributed financial support to it, I
recommend that Respondent withdraw all recognition from the Understanding
Committee as the representative of any of its employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, and completely disestablish the
Understanding Committee as such representative.
The violations of the Act found herein to have been committed by Respondent
are persuasively related to the other unfair labor practices concurrently committed,
as found by the Board in 119 NLRB 1290. The danger of Respondent's commis-
GENERAL TEAMSTERS LOCAL NO. 324 25
sion of unfair labor practices in the future is to be anticipated from its conduct in
the past. The preventive purposes of the Act will be thwarted unless the order is
coextensive with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs commerce,
and thus effectuate the policies of the Act, I shall recommend that the Respondent
.be ordered to cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Wall Tube & Metal Products Co. is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers International Association , AFL-CIO, is a labor organi-
zation within the meaning of the Act.
3. By dominating and interfering with the formation and administration of
the Understanding Committee and by contributing financial and other support
to it , Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
5. The aforesaid unfair 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.]
General Teamsters Local No. 324, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America and Truck Operators League of Oregon . Case No.
36-CC-51. November 7, 1958
DECISION AND ORDER
On February 8, 1958, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent has not violated the Act and recommending that the
complaint be dismissed, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel, the
Charging Party, and the Respondent, filed exceptions to the Interme-
diate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.
i The Respondent's request for oral argument is denied as the record , exceptions, and
briefs adequately present the issues and the positions of the parties.
122 NLRB No. 7.