Whirlpool Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1960

126 N.L.R.B. 1117 (N.L.R.B. 1960)

WHIRLPOOL CORPORATION , MARION DIVISION 1117
The Act does not specify that a strike against some of the members of a multi-
employer bargaining unit is an exception to Section 13. Consequently this pro-
vision compels a finding that the type of strikes presented by, this record are sanc-
tioned by the Act.
The analogy that suggests itself with respect to this case is a situation where a
union is unsuccessful in securing economic benefits from an employer , which the
employer lawfully resists . Simply because such action would have the natural
tendency to cause the union to be weakened in its majority status, it cannot be
assumed that the action of the employer was per se unlawful and actually aimed at
destroying the majority status of the union.6
CONCLUSIONS OF LAW
1. The Associations are engaged in commerce within the meaning of the Act.
2. The Respondents are labor organizations within the meaning of the Act.
3. The Respondents have not violated Sections 8(b) (1) (B ) or 8(b ) ( 3) of the Act.
[Recommendations omitted from publication.]
6 Because no violations of the Act have been demonstrated , it is unnecessary to make a
finding with respect to an appropriate bargaining unit
Whirlpool Corporation , Marion Division and International
Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO. Case No. 8-CA-1516.
March 15, 1960
DECISION AND ORDER
On July 16, 1959, Trial Examiner A. Bruce Hunt issued his
Intermediate 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
Intermediate Report attached hereto. Thereafter, the General Coun-
sel, the Charging Union, and the Respondent filed exceptions to the
Intermediate Report and supporting briefs and memoranda.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in* connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
` The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, briefs, and memoranda, and the
entire record in the case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications : '
1. We agree with the Trial Examiner's finding that the Respondent
violated Section 8(a) (2) of the Act by dominating and interfering
'The Respondent ' s request for oral argument is hereby denied as the exceptions, the
briefs , and the memoranda adequately present the , issues and the positions of the parties.
126 NLRB No. 136.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the formation and administration of The Employees Council,
and contributing,support thereto.'
2. We do not agree that the Respondent violated Section 8 (a) (3)
and (1) of the Act by discharging employee Adkins.
The General Counsel alleged in substance that employee Adkins
became active for the Charging Union in September 1957; that this
activity came to the notice of the Respondent; that thereafter, late
in January 1958, Respondent's supervisor, Besinger, induced Adkins
to apply for a job as forklift operator which he was expected not to
be able to fill satisfactorily because of prior injuries received, and that
the Respondent in June 1958 discharged Adkins for his union activi-
ties using as a pretext a number of accidents Adkins had caused in
the operation of his forklift.
The Trial Examiner carefully considered but rejected the allega-
tion that Adkins was induced by the Respondent to apply for the
forklift operator job. He found that Adkins had caused a number
of accidents endangering persons and property; that, contrary to
company rules, he failed to report an accident on June 3, 1958, and
that he was for that reason properly suspended on June 4, 1958. The
Trial Examiner discredited the testimony of Adkins in most respects,
not only because Adkins was a mistaken witness but also because "he
willingly falsified and, with respect to his job preference application,
he concealed his refreshed recollection until all possibility of gain
from his erroneous testimony had vanished." He credited, however,
the testimony of Adkins, as uncontradicted, with respect to a con-
versation he had on June 5 with Jasper Burt, the general manager
of the Respondent's plant. On that occasion, Burt told Adkins not
to worry too much nor to build up his hopes because of his suspen-
sion; that a number of employees had been reinstated after sus-
pensions; and that the Respondent "would analyze everything."
Burt, according to Adkins, also said that some people believe in
churches, some believe in unions, and that Adkins was "a very strong
union man," and did not rely on the Company to represent him in
his pending compensation claim, but "had to go out and get a damn
union man to represent him." On June 6, a committee of three super-
visors of the Respondent went over Adkins' personnel file and work
record and decided to discharge him. Although the three supervisors
testified that Adkins' union activities were not considered at their
meeting, and although Supervisor Williams testified that in a pre-
ceding telephone conversation with Burt the latter had not mentioned
Adkins' union sympathies, the Trial Examiner drew the inference
that the committee's recommendation for Adkins' discharge must have
been motivated by Adkins' union activities.
2 See N L.R B. v. Cabot Carbon Company, et at, 360 U S. 203.
WHIRLPOOL CORPORATION , MARION DIVISION 1119
We cannot agree with this inference, which is in clear conflict with
the testimony of three unimpeached witnesses. In the context of
Burt's and Adkins' conversation, we believe that Burt meant only
that Adkins' work record and qualifications were to be analyzed. To
interpret the words "analyze everything," as including Adkins' union
sympathies, is in our opinion unwarranted speculation. Adkins' un-
ion activities took place in September 1957. The time for a discrim-
inatory discharge would have been then. Since January 1958 Adkins
had proved to be an inefficient employee. It appears to us wholly
unlikely that the Respondent would have waited more than 4 months
to retaliate against Adkins if it really so desired when the latter gave
ample reason to discharge him for inefficiency as early as February
1958. On the record as a whole, we are not persuaded that the evi-
dence is sufficient to sustain the complaint with respect to Adkins'
discharge. Accordingly, we shall dismiss the allegation pertaining
thereto.
ORDER
Upon the entire record in the 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, Whirlpool Cor-
poration, Marion Division, Marion, Ohio, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of The
Employee Council, or with the formation or administration of any
other labor organization of its employees, and contributing support
to The Employee Council, or to any other labor organization of its
employees.
(b) Recognizing or in any manner dealing with The Employee
Council, or any reorganization or successor thereof, as a representa-
tive 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 work.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from The Employee Council as a
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 work, and completely
disestablish The Employee Council as such representative.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Marion, Ohio, copies of the notice attached
hereto marked "Appendix." 3 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representative, be posted by it imme-
diately upon receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been,
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as its alleges that the Respondent violated Section
8 (a) (3) and (1) by discharging employee Adkins, and Section
8(a) (1) by interrogating employees concerning union membership
and sympathies, threatening employees with reprisals because of union
activities, and promising employees benefits if they cease union
activities.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
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 order that :
WE WILL NOT dominate or interfere with-the administration of
The Employee Council, or with the formation or administration
of any other labor organization of our employees, and contribute
support to The Employee Council, or to any other labor organiza-
tion of our employees.
WE WILL NOT recognize or in any manner deal with The Em-
ployee Council, or any reorganization or successor thereof, as a
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 work.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
WE WILL withdraw all recognition from The Employee Coun-
cil as a representative of our employees for the purpose of deal-
ing with us concerning grievances, labor disputes, wages, rates of
WHIRLPOOL CORPORATION , MARION DIVISION 1121
pay, hours of employment , or other conditions of work,.and we
will completely disestablish The Employee Council as such.,
representative.
WHIRLPOOL CORPORATION , MARION DrvisloN,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , based upon the complaint of the General Counsel and the
answer of the Respondent , Whirlpool Corporation , involves alleged violations of
Section 8(a) (1), (2 ), and (3 ) of the National Labor Relations Act, 61 Stat. 136,
as amended . A hearing was conducted by the duly designated Trial Examiner at
Marion , Ohio , on various days between February 24 and March 19, 1959 , at which
all parties other than The Employee Council were represented.
Upon the entire record in the case , sand from my observation of the -witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Delaware corporation, has its principal office in St . Joseph,
Michigan. Its Marion Division , which is involved herein , is a plant in Marion, Ohio,
at which household dryers are manufactured . The Respondent annually ships prod-
ucts valued in excess of $100,000 from that plant to points outside the State of Ohio.
There is no dispute, and I find , that the Respondent is engaged in commerce within
the meaning of the Act.
H. THE UNION ; THE EMPLOYEE COUNCIL
International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, herein called the Union , is a labor organization
admitting to membership employees of the Respondent.
The Employee Council , herein called the Council , was formed at the Respondent's
Marion plant during the summer of 1958 . To be decided below are the questions
whether the Council is a labor organization and whether the Respondent has domi-
nated it or interfered with its formation or administration.
III. THE UNFAIR LABOR PRACTICES
A. Background
The General Counsel asks that the Board and the Trial Examiner take official
notice of Case No. 8-CA-1201 which involved the Respondent and the Union and
in which the Board, on the basis of a stipulation , issued an unpublished decision on
May 16 , 1956 . The decision was followed by a consent decree in a court of appeals
which required the Respondent to pay about $ 3,000 to two employees whom the
Respondent had discharged and to cease and desist from infer alia unlawful dis-
crimination against employees , encouraging surveillance of employees ' union activi-
ties, falsely complaining about employees and otherwise harassing them because of
their union sympathy or membership , and organizing any employee committee for
the purpose of interfering with the employees' right to self-organization. To the
extent indicated below, I take official notice of that case.
B. The issues '
There are two principal issues here, namely, whether the discharge of Carl Adkins
in June 1958 was in violation of Section S(a)i(3) of the Act and whether the forma-'
554461-60-vol. 126-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of The Employee Council during August 1958, and its existence thereafter, has
been in violation of Section 8(a) (2).
C. The discharge of Adkins
Adkins worked for the Respondent from February 1956 to June 1958 . In order
to resolve the basic issue concerning him, it will be necessary to recite events during
that entire period.
1. Events during 1956 and 1957
Adkins began work as a laborer, grade 1 , at $1.55 per hour . Within 2 weeks he
became a finish system cleaner , grade 2 , at $1.60 per hour , and within a few more
weeks he received wage increases to $1.77 . On April 9 , 1956, he became a main-
tenance helper , grade 2, and sometime during that month he signed a card authoriz-
ing the Union to represent him. On August 13, 1956 , he was promoted to mainte-
nance man, grade 4, at $1 .90, and by September 1957 he was earning $2 . 10, the top
pay in the grade . Adkins' advancement from laborer , grade 1 , to maintenance man,
grade 4 , was based upon merit.
During May 1957, while operating a powersaw , Adkins suffered an injury to the
left hand . He was hospitalized . The thumb was amputated at the first joint.
The Hexer tendons of the index and middle fingers were severed with the result that
those fingers are stiff and of little or no use in gripping . As will appear , Adkins'
inability to grip with all fingers of the left hand is a factor in this case. Following
his hospitalization , Adkins worked for about 2 weeks as a guard and then returned
to maintenance work.
About September 1957 , Adkins became active in the Union's efforts to organize
the plant .' He testified that he obtained about 75 signatures of employees to union
authorization cards, and his foreman at that time, Albert Threlfall , testified for the
Respondent that numerous employees said to Threlfall that Adkins was "signing
people up in the plant." I find that during 1957 the Respondent was aware that
Adkins was active in the Union?
2. Adkins' transfer to the job of forklift operator
During late 1957 and early 1958 , business conditions caused a number of layoffs
and transfers of employees at the plant . Adkins faced the loss of his job as mainte-
nance man, grade 4. On January 16, he applied for a transfer to a job as operator
of a forklift truck, so called because it has forks upon the front on which material
is loaded and transported . Adkins and 10 other applicants of sufficient seniority
were approved, and on January 28 he received the classification of material handler,
grade 2. Although his new hourly rate of $1.89 was 21 cents less than he had been
earning, forklift operators also received "incentive pay." The result was a substantial
increase in pay for Adkins , as we shall see.
Within 6 months , Adkins was discharged allegedly for violation of rules governing
forklift operators . The General Counsel contends that the condition of Adkins'
1 The transcript at page 30 , line 22, fixes the date as December 1957. At pages
194-195, 'however , it is apparent from comments of counsel , the Trial Examiner, and
Adkins that September was the month and that the transcript at page 30 is in error.
Accordingly , the date "December 1957" as it appears there is changed to "September
1957."
9 Throughout the presentation of the General Counsel's and the Union 's cases, the
Respondent denied having had such knowledge during 1957 . As a consequence of that
denial, coupled with the contention of the General Counsel, recited below, that during
or before January 1958 the Respondent devised a plan to discharge Adkins, I received
testimony from the Union that as early as 1956, before the settlement agreement in
Case No. 8-CA-1201 , the Respondent had utilized certain means by which it acquired
information that Adkins and other employees were sympathetic to the Union . It is un-
necessary , however, that I evaluate the Union's testimony . This is so because, during
the presentation of the Respondent 's defense , supervisory employees acknowledged that
by early 1958 they knew that Adkins was active in the Union . For Instance , Threlfall
testified as above recited . Everett Albin , Threlfall 's superior, testified that upon a few
occasions during and after April 1957, when he had occasion to talk with Adkins , Adkins
brought up the subject whether the Union was needed in the plant . Albin testified also
that his responses were in the negative and that Adkins sometimes agreed and at other
times disagreed . Albin testified further that in early January 1958 he saw Adkins solicit-
ing signatures to authorization cards and that he directed Adkins to cease doing so during
working hours.
WHIRLPOOL CORPORATION, MARION DIVISION 1123
left hand was a substantial barrier to safe operation of a forklift. He contends also
that the Respondent, motivated by antiunion considerations and seeking an excuse
to discharge Adkins, transferred Adkins, against his wishes and seniority rights, to
the forklift job where he was likely to injure employees and to damage goods because
of his unsafe operation of the vehicle. According to the General Counsel's evidence,
the principal participant in the Respondent's scheme to get nd of Adkins was John
Beringer, foreman of the forklift operators. We turn to the questions involving
Besinger.
The first question is whether, before Adkins became a forklift operator, Besieger
threatened to "get Adkins one way or another" and to "watch [Adkins] until he
caught him doing something, and then fire him." The evidence that Besinger made
the quoted threat was given by Clifford Hecker, an employee, who testified that he
knew Besinger's voice andthat one day in the plant he heard the voice come from
the other side of a stack of cartons and make the threat to an unidentified listener.
Hecker was "pretty positive" that the voice was Besmger's, but he did not move
around the cartons to make sure or to learn the identity of the listener. Hecker
was on the witness stand during the General Counsel's case-in-chief and during
rebuttal. He first testified that he overheard the threat between Christmas 1957 and
New Year's 1958, that Besieger was then his foreman, and that he knew Besinger's
voice because he had spoken to Besinger several times a day for a month to a month
and a half. In defense, the Respondent established that Hecker did not work from
December 15 until January 6, that he worked from January 6 to 24 when he was laid
off, and that its records did not list Besinger as having been Hecker's foreman. The
Respondent also offered Besinger's denial that he had made the threat or that he
even knew Adkins until Adkins applied for the job of forklift operator. In rebuttal,
Hecker testified that he overheard the threat shortly after he returned to work on
January 6, and that he had been sent by his regular foremen to work for Besinger a
number of times. I cannot credit the crucial portions of Hecker's testimony although
I do believe that upon occasion he worked in Besinger's department. Without imply-
ing that I regard Besinger as a truthful witness throughout his testimony, it suffices
to say that Hecker's testimony during the General Counsel's case-in-chief contains
manifest weaknesses and that the defense testimony shattered whatever strength it
possessed. Hecker's rebuttal testimony does not rebuild it. Since Hecker's testimony
is discredited for those reasons, I do not reach the questions whether Besinger's
alleged threat was motivated by Adkins' union activities and why Besinger would
have made the alleged threat when Adkins did not work under his supervision.3
The next question involving Besinger is the part he played in the transfer of
Adkins to a job as forklift operator under his supervision and whether he insisted,
while Adkins unsuccessfully objected, that Adkins apply for the transfer. Adkins
changed a portion of his testimony on this subject and the circumstances reflect ad-
versely upon his credibility. The evidence must be recited in some detail. Adkins
testified at first that when he was notified by his supervisor, Albin, that he would be
removed from his job as maintenance man, Albin also told him that some jobs were
available under Besinger, and gave to him a job preference application. This is a
form on which an employee indicates his wish to transfer to a vacant job. Adkins
testified further that he took the form to Besinger and asked for a job, that Besinger
answered that vacancies existed for forklift operators, that Adkins said he wanted
other work under Besinger because the condition of his left hand would preclude
proper operation of a forklift, but that Besinger was insistent and that Adkins re-
luctantly agreed to sign the application after Besinger had filled it out . The applica-
tion contains as the reason for the transfer: "Better Myself Due To Change of
Status Due To Cutback," and Adkins testified that those words were not on the
application when he signed it. We turn now to the defense and thereafter to Adkins'
testimony in rebuttal. Certain dates should be borne in mind . The above testimony
by Adkins was given on the first day of the hearing, February 24, 1959, and he was
permitted to be present at all future sessions . On March 11, there were several
developments. That morning Albin testified that he had taken Adkins to an office
to get the application form and that Foreman Threlfall was there. About noon,
Threlfall testified that he had offered to help Adkins fill out the form because he had
noticed that Adkins was having trouble, that Adkins accepted the offer, that Threl-
fall made pertinent entries including the quoted reason for the proposed transfer, and
$Hecker's ultimate testimony is that he overheard the threat "shortly after" he re-
turned to work on January 0. But Adkins did not apply for the job of forklift operator
until January 16, and, as found below, Adkins was not interviewed by Besinger about
the transfer until January 20. On January 24, Hecker was laid off. On January 28,
Adkins became a forklift operator.
,j.124 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
that Adkins approved that reason and signed the application . On cross-examination,
a sample of Threlfall's hand printing was taken and I suggested that a document
expert be called as a witness . That afternoon, the Respondent offered to bear the
expense of obtaining an expert and I suggested that counsel for the General Counsel
confer privately with Adkins to learn whether he had had a faulty recollection be-
cause, if he had, there would be no need that a document expert testify. Later that
afternoon, Besinger testified that he had not filled out the application form, and a
sample of his handprinting was taken. On March 13, during the afternoon, Charles
A. Appel of Washington, D.C., was called as a witness by the Respondent and was
qualified as a document examiner . He was shown the job preference application
and the samples of Threlfall's and Besinger 's handprinting, and he testified that he
had not seen any of the papers previously. After a period of study, Appel returned'
to the stand the same day and testified that, beyond any doubt whatsoever, Threlfall
had filled out the application. Appel left the witness stand about 4:20 p.m. after
vigorous cross-examination by counsel for the General Counsel and the Union, and'
I infer that at that time they had not been told by Adkins that Threlfall had indeed
filled out the application. On March 18, in rebuttal, Adkins returned to the stand.
He testified on direct examination that Threlfall had filled out a portion of the ap-
plication, but he did not change that part of his testimony in which he had said
that the above-quoted reason for transfer of jobs was not on the form when he signed
it. He testified further that, upon hearing Threlfall testify, he had realized that his
memory had been incorrect, and he was asked, "Did it [the realization] come to
your mind right away?," to which he answered: "Yes, it did." On cross-examination,
however, Adkins testified that he had not really remembered Threlfall's participation
in filling out the application until after he had gone home and "studied it over."
Adkins testified also that it was "a couple days" after Threlfall testified, "something
like that," before he told anyone that his memory had been refreshed and that he had
not said anything earlier about his refreshed recollection because he "wasn't asked to
say anything." Upon these facts, I conclude that when Adkins testified the first
time be may have been the victim of a faulty memory instead of having falsified
deliberately. I conclude also that Adkins did not disclose to anyone that he had
testified in'error until Appel's testimony had made it clear that no trier of fact would
find that Besinger, who allegedly had threatened to "get Adkins one way or an-
other," had filled out the application form while insisting that Adkins transfer to a
job which he did not want. Under these circumstances, I cannot conclude that
Adkins was merely mistaken in a part of his testimony. I must conclude that Adkins
was unwilling to admit the mistake 'until events at the hearing forced him to do so.
For that reason, among others to the related, I find that Adkins was not a reliable
witness in instances where his testimony was contradicted.
The General Counsel contends that at the time of Adkins' transfer to the job of
forklift operator he was denied a right under the job preference program to transfer
to other available jobs and that maintenance employees of less seniority than Adkins
were given such jobs. The Respondent vigorously asserts the contrary. There is
evidence concerning other jobs and other employees but it is unnecessary to recite
the evidence and to resolve the conflicts. This is so because I believe that Adkins
wanted the job of forklift operator above all others. In the first place, Adkins
could have avoided taking the job of forklift operator simply by disclosing to the
Respondent that he did not have an Ohio license to drive an autombile.4 Second, the
forklift. operator's job offered Adkins an opportunity to earn more money than he
4 Although the Respondent 's forklifts are not driven on the public highways, a pre-
requisite for the job of operator is a license by the State of Ohio to drive an automobile.
During the course of Adkins' original cross-examination, he was asked whether, at the
time 'he became a forklift operator,'the Respondent's safety director, David Hughes, had
asked ' him "any questions concerning [ his] operator ' s license as an automobile operator
in the State of Ohio?" Adkins answered that Hughes had asked the group of newly
selected forklift operators "if we had operator's license," and that Adkins had answered
in the affirmative because he "sure did" have one but that be was not asked to show it
Adkins ' then was asked , whether his license had been "in effect" and "good," and he
answered in the affirmative, saying also that he "would be kind of silly to drive an
automobile in the State of Ohio without license to run it with." During Adkins' re-
buttal Testimony, however, it developed that he had not obtained an Ohio license until
some months after he was discharged He testified that, at the time he became a fork-
lift operator, he was licensed by the State of West Virginia to drive an automobile
although he had not resided in West Virginia for about 8 years.
WHIRLPOOL CORPORATION, MARION DIVISION 1125
ever had earned at the plant .5 Third, after Adkins became a forklift operator he
could have transferred to a job paying less money, but he did not try to do so.6
As appears below, Adkins had accidents as a forklift operator. The General
Counsel asserts that Adkins was unqualified for the work because of the condition
of his left hand and that the Respondent was aware of the fact. I believe that
Adkins was not a good forklift operator but I do not agree that the condition of
the hand was a major reason. I believe that he is not sufficiently alert and careful
to operate the vehicle. But before we reach the subject of Adkins' accidents, the
question exists as to why the Respondent permitted an unqualified man to become a
forklift operator and thereby to be a potential danger to persons and property.
Although certain evidence may tend to support the General Counsel's contention
that the Respondent was seeking an excuse to discharge Adkins, as set out in the
footnote,7 the facts remain that Adkins had the necessary seniority to obtain the
job, that he did not reveal that he lacked an Ohio driver's license, and that the con-
dition of his left hand did not necessarily disable him as an operator of the vehicle.
Therefore, I reject the General Counsel's contention.
3. Events after Adkins became a forklift operator
On February 20 an election was held in which the Union and another organization
competed for the votes of the employees. The other organization was eliminated
and, on March 6, an election was conducted in which employees voted for or
against representation by the Union. The Union lost. It filed objections which
were not disposed of for several months. Although Adkins was not a representative
of the Union at either election, by March 6 he was known to both management
Until he became a forklift operator, Adkins' highest rate had been $2 10 per hour.
Although the base rate for forklift operators was $1.89, those operators also earned
"incentive pay" which was computed on a group basis After becoming a forklift operator,
Adkins generally earned from $2 28 to $2 33 per hour, an increase of about 8.5 to 11 per-
cent. Nevertheless, Adkins testified that upon taking the job of forklift operator lie had
sustained a cut in wages from $210 to $1.89 an hour, "which is about 20 [sic] cents
cut, something like that," and that the incentive pay was "sometimes" insufficient to
average $2 10 and "sometimes . . . equal." Adkins also testified that he "probably earned
a little more" as a forklift operator but that he "never figured it up" because he "never
paid much attention to [his] pay check " I do not believe that Adkins was unmindful of
a wage increase of about 81/2 to 11 percent.
6 There is testimony by Adkins, sharply contradicted by the Respondent's evidence,
that he sought unsuccessfully to induce supervisors to remove him from the forklift and
to transfer him to another job. I reject that testimony. There was no job opening for
which Adkins was qualified that would not have resulted in a decrease in his earnings.
On February 10, the Respondent posted on bulletin boards notices of a job vacancy for
maintenance helper, grade 2, at the rate of $1.05. Since an employee, in transferring
from one job to another, can go into the new job at the maximum Ingrade rate if he has
been earning as much or more, in the maintenance helper job Adkins could have earned
$1 89, the same hourly rate as for forklift operators On February 25, the Respondent
posted notices of vacancies 'for laborers, grade 1, at $1 60. Adkins could have earned
$1.83 as a laborer There was no incentive pay in either job, -however Adkins, who was
familiar with the job preference procedure, having used it to obtain the forklift operator's
job, could have used it to apply for either of the posted jobs and, as later developments
showed, he would have been the only applicant. But he did not apply. He testified that
after becoming a forklift operator he never saw any postings of job openings and that he
was always in such a rush that he did not have time to stop the vehicle. I find that
Adkins was not interested in relinquishing the job of forklift operator.
'Adkins' foreman in maintenance, Threlfall, approved Adkins' transfer by so indicat-
ing on the job preference application upon the day that he aided, Adkins in filling it out.
Besinger, the foreman of the forklift operators, approved a few days later after being
advised by Safety Director Hughes that, in Hughes' opinion, the condition of Adkins' left
hand would not be a barrier to safe operation of the vehicle. But Threlfall's superior,
Albin, testified for the Respondent that he believed that Adkins was too careless to be
entrusted with a forklift and that he expressed his opinion to Threlfall after Threlfall
bad approved the transfer. Threlfall did not withdraw his approval, however. Albin
testified further that he also expressed his opinion to Besinger's superior, Raymond Cox,
but Cox testified that he could not recall discucing the matter with Albin According
to Cox, he asked Besinger if the condition of Adkins' -hand should prevent the transfer
and Besinger replied that Hughes had approved. On the other hand, Besinger testified
that he did not discuss the prospective transfer with anyone after talking with Hughes.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel and employees as a supporter of the Union . About 3 months after the
second election , and after a number of accidents involving Adkins as an operator of
a forklift , Adkins was suspended . Several days later he was discharged . The issue
is whether the Respondent , in discharging Adkins instead of transferring him to,
another job , was motivated by Adkins' union activities.
There is much testimony concerning the accidents in which Adkins was involved,
but it need not be recited fully . In some instances Adkins was not at fault, in
others he was at fault. On February 27, Supervisors Cox and Besinger , along with
Safety Director Hughes, talked with Adkins concerning a memorandum prepared
by management which recited that employees were afraid to have Adkins drive a
forklift near them , that upon occasions Adkins had operated the vehicle in a faulty
manner, and that Adkins would agree to try to do better and to avoid situations
which would be cause for his removal from the forklift job. Adkins , Besinger, and
Cox signed the memorandum after Cox , so he testified , explained to Adkins that if
Adkins were removed from the job "we would try to find some other type of work"
for him.
On March 18 , Foreman Bruce Kramp , of the pressroom , wrote a memorandum
to Besinger saying that Kramp's subordinates were concerned about Adkins ' opera-
tion of a forklift , that Adkins was nervous and lacked the "know-how " to handle
the vehicle , and asking that Adkins not be sent into the pressroom again . (Kramp'
was a witness and testified concerning his reasons for writing the memorandum.)
On the following day, Besieger showed the memorandum to Adkins and discussed
the matter.8
Thurman Goddard, the shipping checker, requested that Adkins be kept out of the
miscellaneous shipping department . At one time the material on a forklift operated
by Adkins had brushed against Goddard, who jumped away upon the warning cry
of another employee and was not injured . Sometime later, and apparently for addi-
tional reasons , Goddard went to the dispatcher , whose duty it was to tell forklift
operators where they were needed , and asked that Adkins not be sent upon occasions
when Goddard requested the services of a forklift .9
On June 3 , Adkins had an accident which was followed by his suspension and,
discharge The Respondent has a rule that a forklift operator must report, orally
or in writing , any accident in which he is engaged . Adkins had an accident on that
day which he did not report. He was operating a forklift , picking up a box of scrap,
material alongside an aisle. Suddenly the forklift left the aisle and went forward
into an adjoining area where it struck an employee , John Boblenz. Adkins, as he
testified, mistakenly thought that he had the vehicle in reverse gear so as to back
into the aisle Boblenz saw the forklift a moment before it was upon him and he
jumped upwards, grabbing the front of the vehicle in order that it would carry him
along and not run over his feet Adkins stopped the vehicle and Boblenz criticized
him. Adkins offered to shake hands, but Boblenz refused. Adkins left the area.111
The accident was witnessed by employees who talked about it. Soon Foreman
Fred Wyman came over. Boblenz refused to tell Wyman who had run into him,
and I infer that Wyman learned from other employees . Wyman insisted that
Boblenz go to the plant 's medical office for treatment by a nurse , and Boblenz
finally agreed, but he also refused to tell the nurse who had run into him. Insofar
as the record discloses, the nurse saw no need to do more than examine Boblenz'
left leg immediately above the knee. Boblenz was not bleeding, and no bandage,
liniment, or ice pack was applied 11 The next day Boblenz asked Adkins whether
Adkins' superiors, Besinger or Cox. had talked with Adkins about the accident.
Adkins answered in the negative. Adkins also answered, according to his testimony,
that he was not aware that he had run into Boblenz. Immediately, Adkins went to
Besinger and Cox to fulfill his duty to report the accident, so he testified, but he
learned that his superiors already were aware of it Thus, Adkins' explanation for
his delay in making the report is that he was unaware that he had run into Boblenz
9 Besinger so testified and I credit the testimony On the other hand, Adkins testified
that he was not aware of any request that he be kept out of any department
U These findings are based upon the testimony of Goddard On the other hand, Adkins
testified that he did not remember any accident involving Goddard
10 The findings covering Boblenz' effort to escape injury and his reaction to the in-
cident are based upon his testimony On the other hand, Adkins testified that "Boblenz
kind of grabbed his knee like that, and jumped, and said something to" Adkins who went
on about his work.
u After the accident, according to Boblenz , his knee was swollen and "turned black
and blue" but lie was uncertain whether this condition was apparent the next day or later
WHIRLPOOL CORPORATION , MARION DIVISION 1127
until Boblenz told him so. It is obvious, however , that Adkins knew all along that
he had run into Boblenz and that he delayed in making a report until he learned
that his superiors were aware of what had happened . I infer that he did not make
a prompt report because he hoped that the accident would not become known to
management . Later on June 4, after management had interviewed employees about
the accident , Adkins was suspended for 3 days.
The factual disputes recited above have been resolved in the Respondent 's favor
largely because of Adkins ' lack of credibility . We now come to a point where
Adkins is to be believed because his testimony is uncontradicted and, to some extent,
supported by the Respondent 's evidence . The reader will remember that about a
year earlier, Adkins had suffered an injury to his left hand. As a result , Adkins
had a claim before the State's Bureau of Workmen 's Compensation . It was not
settled immediately and Adkins received more than one award . In processing his
claim , Adkins had the assistance of a member of the Union who renders such aid
to injured employees . Safety Director Hughes, who was helpful to Adkins in the
compensation matter , testified for the Respondent that he had heard that someone
connected with the Union had assisted Adkins in processing his claim. With the
compensation case in mind , we turn to events on June 5, the day after Adkins was
suspended . On that day, Jasper Burt, general manager of the plant , telephoned
Stanley W. Williams, the personnel manager , said that Adkins was seeking an
appointment with Burt, and asked if Williams knew what Adkins had in mind.
Williams, who had participated in the suspension of Adkins , told Burt of it. Burt
said that he would talk with Adkins and would telephone Williams later.12 When
Burt talked with Adkins , the former said that Adkins should neither worry too much
nor build up his hopes , that a number of employees had been reinstated after sus-
pensions , and that the Respondent would "analyze everything ." Burt said also that
some people believe in churches , some believe in unions, and that Adkins was "a
very strong union man." "Not only that," said Burt, Adkins also did not put con-
fidence in Burt or someone else in management to represent Adkins in the com-
pensation case but "had to go out and get a damn union man to represent" him.
Adkins replied that he favored union representation . Burt said that better wages
were paid in the Respondent's plant than were paid in union plants , and Adkins
said that a union afforded protection to employees. Burt told Adkins to return on
the next Monday , June 9.13
With respect to the conversation between Burt and Adkins , the Respondent's
position appears to be that, whatever Burt said to Adkins , Burt did not tell any
representative of management that he had spoken to Adkins about Adkins' interest
in the Union and Burt's disapproval thereof. Thus, Williams testified that, following
Burt's conversation with Adkins, Burt telephoned Williams again and said that
Adkins had denied knowing that he had run into Boblenz, but that, if Adkins had
run into Boblenz , Burt would "go along with any decision" to be made by Adkins'
superiors . Williams testified also that neither he nor Burt mentioned Adkins' union
activities . In addition, Besinger testified that he did not talk with Burt about the
latter's conversation with Adkins.
On June 6, according to the Respondent , Williams, Cox, and Besinger went over
Adkins' complete personnel file and work record, and decided to discharge him
because of accidents , carelessness , and failure to report accidents . 14 Besinger and
12 The fact that Burt and Williams talked is based upon the testimony of Williams, a
witness for the Respondent.
1" The findings concerning the conversation between Burt and Adkins are based upon
the latter's uncontradicted testimony. Although I have discredited Adkins in other in-
stances, I cannot do so now. The Board has held that the uncontradicted testimony of
an unreliable witness may be believed, Orenduff & Kappel, Inc, 118 NLRB 859, and
I understand that I am free to follow my best judgment in believing or disbelieving the
uncontradicted testimony of unreliable witnesses, N L R B v. Howell Chevrolet Company,
204 F. 2d 79 (CA. 9). The circumstances in the instant case impel the conclusion that
Adkins told the truth concerning his conversation on June 5 with Burt Burt was a
witness, but he was called by the Respondent only to contradict Adkins on another point,
namely, the relatively minor question whether Adkins had told Burt in early 1958 that
Adkins wished to be removed from the job of forklift operator It is inconceivable to
me that Burt's failure to testify concerning the conversation of June 5 (which did take
place according to the Respondent's own evidence) was an oversight See footnote 15.
14 There is evidence by the Respondent that Adkins failed to report accidents which
occurred before June 3.
1128 DECISIONS OF- 1VATIONAL' LABOR 'RELATIONS BOARD
•Cox testified explicitly, and Williams testified at least by implication, that in deciding
to discharge Adkinss they did not discuss the Union or Adkins' union activities. On
June 9, when Adkins returned to the plant as Burt had directed on June 5, Adkins
was discharged.
4. Conclusions
The question is whether the Respondent, motivated by Adkins' union activities,
discharged him instead of transferring him to another job for which he was qualified
in ability and seniority. Adkins' work record before he became a forklift operator
was good and, as Cox testified, Cox had explained to Adkins on February 27 that
if Adkins were removed from the forklift job' "we would try to find some other type
,of work" for him. After Adkins became a forklift operator, his work was not good
and he should have been removed from the job. The crucial evidence here is Burt's
remarks to Adkins that Adkins was a "very strong union man," that Adkins had
gotten "a damn union man" to represent him in the compensation case, and that
the Respondent would "analyze everything" in deciding what disciplinary action to
take. In evaluating the defense that Burt did not tell his subordinates, Williams,
Cox, and Besinger, of his remarks to Adkins and that those subordinates, in deciding
to discharge Adkins, did not mention the Union to one another, I am mindful that
the representation case mentioned above was still active. I also take official notice
of the consent decree and related matters in 1956 which are discussed above, and
from them I conclude that in that year the Respondent's hostility toward the Union
was such that the Respondent was willing to go to great lengths to defeat the
organizational efforts of employees. I must conclude that Adkins' union activities
were considered and were a substantial factor in the decision to discharge him
instead of transferring him to another job. In the first place, Burt, the head of the
plant, told Adkins that Adkins' union activities would be considered.15 When that
fact is weighed with the additional facts that Adkins was known as a union adherent,
that a representation case was still pending, and that the Respondent had committed
various unfair labor practices as recently as 1956, it is inconceivable that the Re-
spondent's representatives who discharged Adkins did not even mention his union
activities during their discussions. I find that the Respondent, by discharging Adkins,
instead of transferring him to a job like one which he had had before and in which
he had performed well, or to another job for which he was qualified, violated Section
8(a)(3) and (1) of the Act.15 Nevertheless, I shall not recommend that the
Respondent reinstate Adkins in any job or give him backpay. My reasons appear
below in "The Remedy."
D. The Employee Council
1. Its formation
On July 31, 1958, the Regional Director certified the results of the election of
March 6 in which the Union had been defeated. About 2 weeks earlier, the
Respondent called 6 employees to a meeting and suggested the formation of an
employee council which would (1) be a means of communication between manage-
ment and the approximately 390 hourly paid employees and (2) serve other pur-
poses, as set out below. Each of the six employees worked in a different section of
the plant, and each was assigned the task of ascertaining the reaction of his fellow
workers to formation of the Council. One of the employees, Donald Williamson,
testified credibly for the General Counsel, and I find, that he informed 2 foremen
that he "was to talk to the employees," that the foremen agreed, and that he talked
with about 50 employees. Subsequently, the six employees met with management
once or twice. They reported the views of employees to whom they had talked
and, as was to be expected, the views were divergent. It was decided that the six
le If Burt had denied making the remarks to Adkins, the General Counsel's case likely
would have failed for lack of proof because Adkins' credibility is too weak, when his
testimony is controverted, to warrant resolutions in the General Counsel's favor. But
the Respondent's witness, Williams, testified that a conversation between Burt and Adkins
took place on June 5. Burt, by not testifying concerning the conversation, in effect
admitted the correctness of Adkins' version. Cf. N.L.R.B. v Ohio Calcium Co., 133 F. 2d
721 (CA 6). I conclude that Burt did not contradict Adkins because he could not, in
honor, do so.
16 In view of this determination, it is unnecessary to recite the testimony and to re-
solve the conflicts in the evidence relating to the General Counsel's contention that other
`forklift operators who had accidents were treated differently than was Adkins.
WHIRLPOOL CORPORATION, MARION DIVISION 1129'
employees would become an interim committee for the election of employee-members
to the Council and that each member of the interim committee would be in charge
of a meeting at which the hourly paid employees in his section would nominate
and elect a representative to the Council. The coming elections were publicized on
bulletin boards and in the plant's newspaper, "The Drum." The issue of that news-
paper for August 9 recites, in part:
On many occasions in the three years since this division was established,
ideas and opinions expressed by employees have resulted in changes in Company
policy and in the improvement of our employee relations program . .. .
The functions of the representatives of [sic] the Employee Council will be to
express the suggestions and problems from the employees in the departments
that they represent. In addition, the representatives will discuss with the super-
visor, as quickly as possible, any matters that come up concerning the area or
the employees he represents.
s s * * * * *
It is urged that every hourly employee participate in the election so that the
results of the election can be as accurate and representative as possible.
On August 12, 13, and 14, six election meetings were held in the plant to select
as many employee-representatives on the Council. All six meetings appear to have
been held after normal working hours and no employee was required to attend.
This is not to say, however, that the employees who attended were not paid for
the time so spent. The record establishes that in at least two instances the election
meetings followed regular departmental meetings and that employees were paid
time-and-a-half for the time spent at both meetings. No foreman was present at
an election meeting, having left the meeting before the floor was open for nomina-
tions, but in one election it was necessary that Personnel Manager Williams appear
and speak to the employees. Stanley Rush, a member of the interim committee,
testified credibly for the General Counsel, and I find, that, after a foreman turned
the meeting over to Rush and departed, Rush was unable to get the employees to
nominate anyone or to do anything, so Rush left the meeting and went for Williams,
who came and spoke to the employees. After Williams left the meeting, nomina-
tions were made and an election was held.
The record does not disclose the number of employees represented by each of the
6 councilmen, but there is evidence that I councilman represents about 75 per-
sons. Since the total number of hourly paid employees was about 390, the average
representation was less.
On August 19, the newly elected councilmen met with members of the interim
committee and with representatives of management. Theodore Hufert, the plant's
director of industrial relations, presided. Explanations of the work of the interim
committee were made and that committee was disbanded. Hufert said that the
Council would serve to improve relations and the flow of information between
management and the hourly paid employees. Someone inquired concerning the
procedure for handling individual problems or grievances, as distinguished from
matters involving groups of employees, and Hufert, so he testified, "suggested" that
the councilman in whose area the problem arose should assist the employee in
adjusting the matter with his foreman. Hufert testified also that he "stressed" that
problems of an individual nature should be taken up first with a foreman before
being brought to a council meeting, in order that those meetings not become "bogged
down with individual gripes or complaints." In the issue of "The Drum" for August
23, it is said inter alia that the Council would meet once a fortnight and that "if a
problem or suggestion arises in an area, the Employee Council member will bring
it to the supervisor's attention as quickly as possible."
The Council has no officers or bylaws. Some of its meetings have occurred during
normal working hours but, regardless of the hour, the councilmen are paid for the
time spent in meetings. No meetings are held in the absence of management repre-
sentatives. The councilmen have no spokesman and have not made a joint request
of the Respondent. There has been no contract or other written understanding
between the councilmen and management. Decisions on working conditions are
made by management, often after the close of meetings of the Council. According
to the Respondent, the Council is basically a means of communication between
employees and management, there have been no meetings of employees with their
representatives, there has been no collective bargaining, and all decisions have been
made unilaterally by management. We will turn in a moment to specific subjects
which were discussed at meetings of the Council and to specific activities of council-
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men at other times, but first it should be said that at the time of the hearing there
had been no determination in N.L.R.B. v. Cabot Carbon Company, et al., 360 U.S.
203, in which the Supreme Court reversed a court of appeals, and that the Re-
spondent here relies heavily on the opinion of the lower court.
2. Some events at meetings of the Council
During meetings of the Council, representatives of management distributed copies
of personnel policies, including such subjects as seniority, education, military re-
servists, employee purchase plan, job preference, personnel, and payroll. Detailed
discussions followed, in part to enable councilmen to become sufficiently familiar
with the subjects to answer inquiries by employees whom they represented. On
January 6, 1959, in a discussion of proposed changes in the job preference policy,
the councilmen were about evenly divided in their opinions on whether applications
for job openings should be restricted at first to employees in the departments where
the openings exist or, as was the practice, to permit plantwide competition. Some
councilmen desired more opportunity to discuss the subject with employees whom
they represented, and the subject was set over until the next meeting. On January
13, the discussion of the job preference policy was concluded, and management
announced that it would withhold its determinations on a revised policy until there
had been a complete review of the separate policy on seniority.
Other subjects which were discussed at council meetings, and their disposition,
include:
(1) Improvements to the parking lot.
(2) A question whether increases in production should be met by installing a
second production line, so that there would be one shift with two lines, or by a
second shift on the existing single line. Henry Boles, a councilman, said that em-
ployees had complained that the production demands of a single line were too great
for them to handle and that they believed there should be a second line. Hufert,
for the Respondent, said that its industrial engineering section would look into the
matter. Later, a second production line was established.
(3) A question whether all employees who became repairmen on the second pro-
duction line would receive the same wage rate. An answer was given by management.
(4) A question by Boles whether, in view of congestion in the cafeteria which
followed establishment of the second production line, there could be staggered break
periods for employees on the lines. The matter was referred to a representative
of management who soon arranged for staggered break periods.
(5) The installation of a ventilator to remove paint fumes, which was requested
by a councilman. The ventilator was installed.
(6) A question by a councilman, prompted by complaints to him by fellow em-
ployees, whether a particular employee had been accorded what may be called
exceptional employment rights. The subject was dropped when management gave
all the facts and the councilman was satisfied.
(7) A question whether an employee named Shirk had properly been displaced
in his job by an employee named Thomas. This question was referred to Personnel
Manager Williams for investigation.
(8) A general wage increase. On September 2, Councilman Boles asked when
a wage increase would be granted and said that an increased workload warranted
increased earnings . Representatives of management replied inter alia that no general
increase was then contemplated, that the Respondent was completing its annual
wage and benefit survey for the area, that the Respondent's hourly rates were high,
that a review of rates in the area would be made later with councilmen, and that the
Respondent had studied various cost-of-living plans without finding an acceptable
one. The conversation on this subject ended with Boles' remark: "Well, you can't
hate a guy for trying [to get a wage increase]." On November 6, management
initiated a discussion of the Respondent's financial standing. Boles participated
by pointing to "the notable improvement in the position of Whirlpool stock in
recent months." Later that month the hourly employees received a general increase
of 6 cents and other benefits.
(9) A question whether, when a holiday falls on a Saturday, which is not a normal
workday at the plant, it would be observed on the preceding day. The employees
are given seven specified holidays each year and the practice, as recited in an
"Employee Handbook," was to observe on a Monday any holiday which fell on
Sunday. There had been no occasion during the life of the plant when one of the
seven specified holidays fell on a Saturday, and nothing is said in the handbook about
a holiday on such a day. A rumor circulated among the hourly employees that
there would be no pay for the two holidays falling on Saturdays during 1959, so a
WHIRLPOOL CORPORATION, MARION DIVISION 1131
councilman raised the subject at a council meeting. Hufert replied that a policy
would be formulated on the point. Subsequently, the Respondent announced that
a holiday falling on Saturday would be observed on the preceding Friday.
(10) A question why certain diesetters did not receive incentive pay when an
employee in another department, allegedly performing similar work, received such
pay. On September 2, Councilman Bender raised the question. 'Sometime later,
incentive pay to the employee in the other department was terminated. Bender
continued his efforts for higher pay. On September 29, he said that most employees
whom he represented felt that pay rates were unfair and that the production engineer-
ing department was not giving them a "fair shake." On October 7, Bender said
that employees felt that pay rates were not reviewed sufficiently often.
(11) A question whether the forklift operators should be elevated from grade 2
to grade 3. On September 2, Councilman Parish said that he represented them
and that they should be upgraded. Hufert replied that he would discuss the matter
with the production engineering department and provide an answer to Parish before
the next meeting. As a witness, Hufert testified that, as he recalled, the production
engineers met with the forklift operators, reviewed the matter, and later resolved
that the rate of pay should remain unchanged.
(12) A question whether employees who did not work on holidays because they
had had industrial accidents should be given holiday pay. On September 16, Council-
man Boles made the proposal. Hufert explained the policy in such matters and
management's reasons for being unwilling to made a change.
(13) An inquiry, made by Boles on September 16, about an employee who, in the
assignment of overtime work, had been overlooked to the extent of $12.60.
Hufert replied that the employee should be given the first opportunity for overtime
work.
(14) A proposal by Councilman Parish on September 16 that certain jobs be
studied with a view to possible reclassification in pay. The subject was referred to
the production enginering department. On October 21, Parish requested a like study
for a second category of employees, and a like referral was made. On November
6, Parish said that in his opinion the second category of employees was entitled to
reclassification and he also raised the subject of incentive pay for still a third
category of employees, saying that an answer from the production engineering depart-
ment was about 2 weeks overdue.
(15) A question concerning overtime pay for men who were scheduled to begin
work at 5 a.m. and who expected to earn overtime pay by working until the normal
quitting time in the afternoon, but who were "sent home early" because of shortages
in parts or for other reasons. On February 5, 1959, Councilman Johnston raised the
question. Hufert replied that management paid overtime in accordance with the
Wage and Hour Law with payment for work in excess of 8 hours during a day.
3. Activities of councilmen outside council meetings
Although the Respondent insists that it never "required" councilmen to devote
time outside of council meetings to the settlement of problems which involved
employees in their respective areas, it is clear that the Respondent at least "suggest-
ed" that councilmen handle individual grievances, that councilmen followed the
"suggestion," and that foremen excused councilmen from the performance of their
normal tasks in order that they might do so. In the following matters, among
others, councilmen were active:
(1) Councilman Boles received a complaint from employee Bob Young that a
foreman had reported to higher management that Young had been absent from work
and had not telephoned the plant. Boles went to the foreman, who did not have
Young's records, and Boles then went to Hufert, the director of industrial relations.
Boles examined the records and thereafter talked with Young, who became satisfied
that the reports were justified.
(2) Boles received a complaint from employee Tex Edwards that Foreman Stan
Nelson had denied Edwards an opportunity to go to the personnel department during
working hours to discuss an insurance matter. Boles asked Nelson why Edwards
had been treated differently than other employees in such matters. A discussion
followed. Boles and Nelson reached agreement.
(3) About October, Boles' aid was requested by an unidentified employee who
complained that he should have received incentive pay when performing a particular
job. After a conversation or conversations, participated in by Boles, the employee,
the employee's foreman, and an industrial engineer, the engineer acknowledged that
there had been an error in fixing the rate for the job. The error was corrected.
(4) Councilman Bender was contacted by employees named, Wolfinger and Hoppe
who complained that they were receiving insufficient incentive pay. Bender talked
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Foreman Kramp who said that he had known of the matter but did not know
how to settle it. At the next meeting of the Council, on September 2, the matter
was raised by Councilman John Blue. Hufert said that he would refer it to the
production engineering department. On the next day, Joe Towman, the head of that
department, contacted Bender and asked the nature of the grievance. Bender
explained. Towman said that he would work on it. Three days later he informed
Bender that a change had been made which would result in higher incentive pay
for Wolfinger and Hoppe
(5) Bender received a complaint from employee Fred Darling that the rate of pay
on Darling's job had been computed too low. Bender discussed the matter with
Foreman Duane Grappy, who referred it to the production engineering department.
That department reevaluated the job and changed the rate.
(6) Bender received a complaint from an employee named Murphy that Murphy
was being "bumped out" of the department in which he worked. Bender went to
Murphy's foreman, unidentified, and received an explanation. Bender conveyed the
explanation to Murphy who wrs dissatisfied with it. Then Bender went to his own
foreman, Grappy, and requested that Grappy arrange a conference for Bender with
Hufert and Williams, the director of industrial relations and personnel manager,
respectively. Grappy did so At the conference Hufert explained that a returning
serviceman was entitled to a job in Murphy's department and that Murphy was
low man in seniority. The ultimate solution, however, was that the serviceman was
offered and accepted different work and Murphy remained in his job.
' 4. Conclusions
Section 2(5) of the Act defines a labor organization as
any organization of any kind, or any agency or employee representation com-
mittee or plan, in which employees participate and which exists for the purpose,
in whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of work.
[Emphasis supplied.]
Section 8(a)(2) provides that it shall be an unfair labor practice for an employer
to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it ... .
In defense, the Respondent asserts, first, that the Council is not a labor organiza-
tion and, second, that the Council is not dominated or interfered with by the Respond-
ent With respect to the first defense, the Respondent contends that "the Council
came into existence as a means of improving [the Respondent's] communications
program with hourly employees"; that there ",is no formal organization of the
Employee Council, separate and apart from the management members"; that the
councilmen do not hold separate meetings; that the latter have never made a
collective request of management; that the councilmen have never sought to
negotiate a contract, and that no wage increase or change of working conditions has
ever come about in meetings of the Council or by negotiation at such meetings. With
respect to the activity of councilmen in the field of grievances (which the Respondent
refers to as "individual problems"), the Respondent asserts that the practice at the
plant always has been that such "problems" be handled by foremen and that a
councilman merely assists the individual employee if the employee so desires. in
heavy reliance upon the lower court's opinion in the Cabot Carbon case, supra, the
Respondent asserts that the Council "avoids the usual concept of collective bargain-
ing and properly provides a forum for discussion of mutual problems and an ex-
change of information."
The Respondent's first defense need not be discussed in more detail. It suffices
to say that the law of Cabot Carbon as set out in the Supreme Court's opinion
leaves no doubt that the Council is a labor organization. The Councilmen are
not mere messengers for the transmission of information. They also are repre-
sentatives of employees in efforts to settle grievances at the foreman level and in
dealing with management on a variety of subjects within the employment relationship.
We turn to the Respondent's second defense, i.e , that it has not dominated or
interfered with the Council. The Respondent asserts that the idea for the Council
came from employees, who suggested it to management; that a majority of the
members of the interim committee reported that a majority of the employees with
whom they had talked favored the formation of the Council; that the councilmen
were selected by employees whom they represent, not by management; that the
Respondent has made it known to councilmen that it is ever willing to disband the
Council if the councilmen so desire; and that the fact that the councilmen conduct
WHIRLPOOL CORPORATION , MARION DIVISION 1133
their business during working hours is of no material significance because employees
always have been permitted by management to confer with it during working hours
and, indeed , Section 8(a)(2) of the Act so authorizes . The short answer to these
contentions is that the Respondent caused the formation of the Council, the
Respondent fixed the areas in which it operates , and the Respondent pays the ex-
penses of the Council , which collects no dues and has no funds, by having the
councilmen perform their functions during working hours. Even if we assume
that a majority of the employees favor continued existence of the Council, the
fact remains that there is no case which supports the proposition that an employer
acquires a valid defense to his establishment of a labor organization and to his
payment of its operating expenses simply because later there develops employee
support for the organization or because the employer is willing to discontinue the
organization in the absence of such support . 1 find that the Respondent, in its
relations with the Council , has violated Section 8 ( a) (2) and ( 1) of the Act.
E. Interference , restraint, and coercion
The complaint alleges that Safety Director Hughes and Supervisors Cox, Albin,
and Besinger interrogated employees concerning union membership and sympa-
thies, threatened employees with reprisals because of union activities , and promised
employees benefits if they ceased such activities . I already have considered, and
rejected, the testimony of Hecker that Besinger threatened to discharge Adkins. The
remaining testimony in support of this allegation was given by Adkins, an unreli-
able witness, and was contradicted by testimony for the Respondent. The principal
incident involves an alleged promise by Hughes to Adkins that the latter would
have a lifetime job at the plant if he would withdraw from the Union. There is
credible, corroborating evidence that Hughes spoke to Adkins of such tenure, but
Hughes' motive, according to that evidence , was to allay Adkins' fear that the dis-
ability resulting from the injury to his hand might lessen the need for - his services
and cause his discharge . The only evidence that Hughes voiced another motive,
namely, inducing Adkins to withdraw from the Union is Adkins' testimony. In
view of Hughes ' denial, Adkins cannot be credited . I shall recommend that this
allegation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. Since the Respondent has
dominated and interfered with the formation and administration of The Employee
Council and has contributed support thereto, I shall recommend that the Respondent
cease and desist from such conduct and that it withdraw recognition from and
completely disestablish The Employee Council as the representative of any of the
Respondent's employees for the purpose of dealing with the Respondent concerning
grievances , labor disputes , wages, rates of pay , hours of employment , or conditions
of work. I shall also recommend , in order to make effective the interdependent
guarantees of Section 7 of the Act, that the Respondent cease and desist from, in
any manner , infringing upon the rights guaranteed in said section . N.L.R.B. v.
Express Publishing Company, 312 U.S. 426 ; N.L.R.B . v. Entwistle Mfg. Co., 120
F. 2d 532 (C.A. 4).
I have found that the Respondent discriminated against Adkins in violation of
Section 8 ( a) (3). 1 shall not recommend that Adkins be reinstated or given backpay,
however , because it would not effectuate the policies of the Act to do so. Adkins
was not a truthful witness . This is not to say that he was merely a mistaken witness
who tried to tell the truth . On the contrary , at times he was deliberate, even
casual , in giving testimony which he must have known was false . His disregard
for his oath to tell the truth is demonstrated in various findings above . It is to be
contrasted with General Manager Burt 's regard for the oath. As I said in footnote
15, Burt is an honorable man who would not contradict damaging testimony against
his employer because, to do so, would have required that he lie . Indeed , it is Burt's
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect for the oath which impelled me to decide the issue of discrimination in
Adkins'-favor.
It long has been established that the Act is to be administered in the public
interest,` not to redress private wrongs. It is in the public interest to insist , insofar
as practicable, that witnesses in Board proceedings tell the truth. Awards of
reinstatement and backpay to witnesses such as Adkins would not discourage false
testimony and might encourage it. Therefore, I hold that it would be contrary to
the public interest and -that it would not effectuate the policies of the Act to make
such awards to Adkins. Cf. T. A: - O'Donnell d/b/a O'Donnell's Sea Grill, 55
NLRB 828.
I emphasize that my unwillingness to recommend reinstatement and backpay to
Adkins is°based upon his lack of veracity and not upon instances in which he may
have given erroneous testimony in good faith . The General Counsel, in oral argu-
ment, defended Adkins' veracity. According to the General Counsel, Adkins is
"largely uneducated," is not greatly " endowed with mental capabilities ," was dis-
traught by unemployment since his discharge and, having been "anxious and
overwrought" during the hearing, "stumbled into clumsy errors" in testimony at
the hands of a "clever" cross-examiner. It is correct that Adkins has only a grammar
school education and little intellect . I would add that I incline to the view that
Adkins 19 the sort of person who as he mentally reviews events, reshapes the details
according to his wishes and emotional needs and that he comes to believe that the
reshaped Version of an event is accurate. ` Therefore, in some instances of erroneous
testimony by Adkins, I would say that he was not consciously falsifying. But,
whatever may be said in his behalf, the fact remains that sometimes he was not merely
a mistaken witness . Sometimes., instead, he willingly falsified and , with respect to
his job preference application, he concealed his refreshed recollection until all
possibility of gain from his erroneous testimony had vanished . Such conduct cannot
be condoned.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following: -
CONCLUSIONS OF LAW
1. The Union and The Employee Council are labor organizations within the
meaning of ,Section 2 (5) of the Act.
2. By `discriminating in regard to the hire and tenure of employment of Carl
Adkins, thereby, discouraging membership in a labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act. - -
3 . By dominating and -interfering with the formation and administration of The
Employee Council,. and contributing support thereto, the 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 its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has en?aged 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 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.] '
Vent' _Control; Inc. of Ohio, Subsidiary of ' Air Control Products,
Inc. andUnited Glass and .Ceramic Workers of North America,
AFL-CIO, CLC,1 Petitioner. Case. No. 9-RC-3911. Marola 15,
1960
DECISION 'AND DIRECTION OF' ELECTION -
Upon an amended petition duly filed, under. Section 9 (c). of .the
National Labot RelationsAct, ;a hearing was held before Theodore
1 The name of the Petitioner' a . : appeare as amended at 'the'hea!lhg.
126 NLRB No. 137.