Inland Motor Corp. of Virginia

National Labor Relations Board - Board Decisions

Sep 10, 1962

138 N.L.R.B. 516 (N.L.R.B. 1962)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from our basic disagreement with our colleagues' abandon-
ment of the principle first announced in the Quaker City case, we do
not believe that the unit sought by the Union here is appropriate. The
unit sought, and the one which our colleagues are finding appropriate,
consists of the debit agents employed in nine different district offices
located in the Greater or Metropolitan Cleveland, Ohio, area. It seems
clear that the only justification for this finding is the geographic loca-
tion of the offices. We believe this to be no reason for granting this
unit. As the majority notes, each of these different district offices
operates independently of another, the debit agents in each have sep-
arate, immediate supervision, there is no contact among the debit
agents of the different offices either on a business or social level. In
our view, the debit agents in these different offices do not have a com-
munity of interest with respect to the unit sought. Thus the unit
which the majority finds appropriate appears to be based upon the
Union's extent of organization of these debit agents.
For the foregoing reasons, we would dismiss the instant petition.
Inland Motor Corporation of Virginia and District 50, United
Mine Workers of America. Case No. 5-CA-1735. September 10,
1962
DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued by the
Board on December 31, 1959 (Case No. 5-RC-2952, not published in
NLRB volumes), an election was conducted on January 27, 1960,
among the Employer's Radford, Virginia, employees. Of the 53
eligible voters, 50 cast valid ballots, of which 25 were for and 22 were
against the Union. There were also three ballots challenged by the
Union on the ground that the challenged voters were supervisors.
As the challenges were sufficient in number to affect the results of
the election, the Regional Director investigated them. On February
29, 1960, he issued his report on challenges in which he recommended
that the challenges to Wagner's and McCoy's ballots be overruled
upon the ground that they were not supervisors, and that the chal-
lenge to Schwichtenberg's ballot be sustained as he was a supervisor.
He recommended further that the ballots of Wagner and McCoy not
be opened and counted as their votes could not affect the outcome of
the election and that the Union be certified as collective-bargaining
representative. The Employer filed timely exceptions to the Regional
Director's recommendation that the challenge to Schwichtenberg's
ballot be sustained and the Union certified, and requested a hearing.
On May 3, 1960, the Board issued a Supplemental Decision and
Certification of Representatives (not published in NLRB volumes)
138 NLRB No. 66.
INLAND MOTOR CORPORATION OF VIRGINIA 517
adopting the Regional Director's findings and recommendations. On
June 9, 1960, the Board denied the Employer's petition for
reconsideration.
Following the Union's request for bargaining, and the Employer's
refusal to comply therewith, the Union filed refusal-to-bargain charges
upon which a complaint was issued. The Respondent asserted, as a
defense, that Schwichtenberg was not a supervisor, and since his
ballot and the other challenged ballots were not counted, it was under
no duty to bargain; and that, by failure to grant a hearing on the
status of Schwichtenberg, it had been denied due process.
At a hearing on the complaint in this case, on August 15, 1960,
before Trial Examiner Louis Plost, the Respondent sought to intro-
duce evidence relating to its affirmative defense, but the Trial Exam-
iner ruled that it was not admissible. Thereupon the Respondent
presented exhibits which outlined what three of its witnesses would
testify in respect to Schwichtenberg's status.
On September 15, 1960, the Trial Examiner issued his Intermediate
Report, attached hereto, finding that the Respondent by refusing to
bargain with the Union, had violated Section 8(a) (5) and (1) of
the Act. The Respondent filed timely exceptions to the Intermediate
Report, again requesting a hearing as to Schwichtenberg's status.
On May 23, 1961, the Board (Chairman McCulloch and Member
Brown not participating) ordered a hearing for the purpose of taking
testimony with respect to the status of Schwichtenberg.
On July 12, 1961, a hearing was held before Trial Examiner
Thomas S. Wilson. The only issue was whether Schwichtenberg was
a supervisor at the time of the election. In a Supplemental Inter-
mediate Report, attached hereto, issued August 22, 1961, the Trial
Examiner found that Schwichtenberg was a supervisor and recom-
mended that the challenge to his ballot be sustained. The Respondent
has filed timely exceptions to the Trial Examiner's Supplemental
Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiners
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiners with the following additions.
The evidence as to Schwichtenberg's status is as follows :
The Respondent was founded by President Hugo Unruh in Sep-
tember 1958. It is engaged in the business of designing and manu-
facturing electrodynamic components. It began operations at Rad-
ford, Virginia, with three skilled workers. By January 27, 1960,
the date of the election, there were 78 employees working in 6 depart-
ments as follows :
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The armature and bonding department with 22 employees under
Foreman Tom Bain and Assistant Foreman Sam McCoy.'
2. The assembly department with six employees under Foreman
Volker Wesche.
3. The shipping department with two employees under Foreman
Volker Wesche.
4. The inspection department with three employees under Foreman
Joe Britt.
5. The machine shop with 18 employees under Foreman Neil
O'Brien, successor to General Manager Frank Syzbiak who had also,
been acting as foreman of the department 2 when he left the Respond-
ent's employ on Labor Day 1959.
6. The punch press department with four punch press operators
plus Milton Schwichtenberg, a tool-and-die maker. Frank Syzbiak
had been in charge of this department as well as the. machine shop
prior to his departure.
Milton Schwichtenberg was hired by the Respondent in October
1958, as a tool-and-die maker at $2.30 an hour. In January 1960, he
was receiving $2.50 an hour. The next highest wage rate in the punch
press department was $1.60 an hour.
Our dissenting colleagues state that Fred Wagner "occupies the same
position as Schwichtenberg, but on the night shift," was being paid
a higher rate, and was found not to be a supervisor by the Regional
Director who overruled the challenge to his ballot. As there was no
exception to this ruling by the Regional Director, the Board has not
passed upon it nor evaluated the evidence upon which the Regional
Director based his conclusion. However, there is nothing in the record
to indicate that Wagner did occupy the same position on the night
shift as Schwichtenberg did during the day. In fact, Wagner's state-
ment as quoted in the Regional Director's report on challenges, dated
February 29,1960, indicates that Wagner worked in the machine shop
under O'Brien, the machine shop foreman.
Schwichtenberg, referred to by U nruh as the "foreman" in the punch
press department, obtained production orders from the office for work
to be done on the punch presses, set up the press, started the job him-
self, and then selected the man who was to operate the press for the
production run. Schwichtenberg was expected to report to the pro-
duction manager if he believed that he could or could not meet pro-
duction schedules, and all problems and difficulties in the department
were referred to Schwichtenberg. He could not authorize overtime,,
but he did make recommendations and, if overtime was authorized,,
decided which men were to work. Schwichtenberg attended foreman's
1 McCoy's ballot was challenged by the Union, but the Regional Director overruled the
challenge thereto on the ground that McCoy was not a supervisor.
2A few days after Syzbiak left Respondent 's employ, Respondent hired James Brooks
as a production manager or assistant production manager, his exact title not being clear.
INLAND MOTOR CORPORATION OF VIRGINIA 519
meetings when matters involving the punch press department were
being discussed . Although Schwichtenberg did not have express au-
thority to hire or fire, he was consulted as to the work of the employees
in the department , and his recommendations were sought whenever
wage rates were reviewed.
That the Employer acknowledged Schwichtenberg, in fact, to be
a supervisor at the time of the election is shown not only by Unruh's
reference to Schwichtenberg as the "foreman " in the punch press
department but also by the Employer 's belated official designation of
him as "supervisor" in July 1960-a recognition that Schwichtenberg
had at all times material been one of its supervisors.
In view of the foregoing and particularly as Schwichtenberg as-
signed work to the employees , directed them in work performance,
and was responsible for the efficient operation of the department, we
find, as did the Trial Examiner, that Schwichtenberg was a supervisor
within the meaning of Section 2(11) of the Act on the day of the
election.' We further find that District 50, United Mine Workers of
America, was on January 27, 1960, and at all times thereafter has
been, the exclusive representative of all employees in the unit found
appropriate in Case No. 5-RC-2952, and that the Respondent, by
refusing to bargain with the Union on and after June 24 , 1960, has
engaged in unfair labor practices within the meaning of Section
8 (a) (5) and (1) of the Act.
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 , Inland Motor
Corporation of Virginia , Radford, Virginia , its officers , agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Failing and refusing to bargain collectively with District 50,
United Mine Workers of America, as exclusive representative of all
its employees within the appropriate unit.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the said Union as ex-
elusive representative of all the employees in the appropriate unit
with respect to wages, rates of pay, hours of employment , and other
conditions of employment , and, if an understanding is reached, em-
body such understanding in a signed agreement.
s Harvill Corporation , 116 NLRB 1549, 1550-1551.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Radford, Virginia, copies of the attached
notice marked "Appendix A."' Copies of said notice, to be furnished
by the Regional Director for the Fifth Region, shall, after being duly
signed by Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Respondent shall take reasonable
steps to insure that such notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Fifth Region, in writing,,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
MEMBERS RODGERS and LEEDOM, dissenting :
We dissent from the majority's finding that on the day of the elec-
tion Milton Schwichtenberg was a supervisor and therefore was in-
eligible to vote.
Schwichtenberg was hired by the Respondent in October 1958 as a
tool-and-die maker at $2.30 an hour. In January 1960, he was re-
ceiving $2.50 an hour. The Respondent's other tool-and-die maker,.
Fred Wagner, who occupies the same position as Schwichtenberg
but on the night shift, was then making $2.85 an hour.-' Schwichten-
berg spends all his time in the punch press department where his,
workbench is located.
Schwichtenberg spent about 6 hours per day making, repairing, and
rebuilding dies and patterns. In addition, he set up the presses in
the punch press department, distributed work to the punch press oper-
ator, inspected samples of the work produced, and, like Wagner on
the night shift, spent time helping the punch press operators with
their work problems. Once the samples were inspected, the operators
ran the presses.
Schwichtenberg did not schedule any of the work in the department
and could not authorize overtime or requisition materials. All
acknowledged supervisors had such authority. His assigning or di-
recting of work was at most routine and stemmed mainly from his
knowledge as diemaker and setter, i.e., knowledge of which machine
was set up for the next scheduled job.
Schwichtenberg was paid an hourly rate; supervisors were paid a
salary. He was not paid when sick; supervisors were so paid. He
* 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."
6 Wagner's ballot was challenged by the Union , but the Regional Director overruled the
challenge thereto on the ground that Wagner was not a supervisor.
INLAND MOTOR CORPORATION OF VIRGINIA 521
was not paid when off the job; supervisors were paid. He had one-
half hour for lunch; supervisors had a full hour. He could not take
time off without permission; supervisors could. He was paid for over-
time at 11/2 times his hourly rate ; supervisors were not paid for over-
time work. He was entitled to 1 week of vacation after 1 year of em-
ployment, and 1 additional day for each added year of employment;
supervisors were entitled to 1 week of vacation after 1 year of em-
ployment, and 2 weeks after 2 years of employment. It is undisputed
on the record that Schwichtenberg's benefits and privileges were iden-
tical with those of rank-and-file production employees.
The record showed that there was a wage progression program
under which an employee started at a minimum rate and received
automatic increases at regular intervals thereafter. All increases
were granted by President Unruh. Between September 1959 when
Syzbiak, who, as part of his duties, supervised the punch press depart-
ment, left and January 27, 1960, there were six wage increases granted
to employees in the punch press department, five of which (includ-
ing Criner's) 8 were either automatic increases or the result of a reg-
ular quarterly review by Unruh.
The sixth increase was given to employee Taylor. The Trial'
Examiner states that Taylor asked Brooks for a raise, that this was
the subject of a conference among Unruh, Brooks, and Schwichten-
berg, that Brooks recommended a 10-cent per hour increase , and that
Schwichtenberg said he "felt that Taylor should get 15 cents per
hour."' The Trial Examiner concluded that since Unruh decided to
grant the 15-cent increase this showed how effective Schwichtenberg's•
suggestions were.
At the hearing, Brooks testified that Taylor came to him asking-
for a wage increase . Unruh and Brooks looked at Taylor's record
and found that Taylor was performing work equal to that of Criner,.
yet received 15 cents less per hour . Brooks suggested a 10-cent raise,
but Unruh, wanting to put Taylor on an equal basis with Criner,
granted him a 15-cent increase . Neither testified that Schwichtenberg-
was responsible for Taylor 's wage increase . Brooks further stated
that he and Unruh checked with Schwichtenberg as to the progress,
of an individual in the punch press department when considering-
* The Trial Examiner states that employee Criner asked Schwichtenberg for a raise,
the date of which is indefinite, having perhaps occurred prior to Syzbiak 's departure The
raise was reflected in Criner's next paycheck . The record reflects that Criner received'
one wage increase between Labor Day 1959 and the date of the election , January 27, 1960,
which was the result of a regular quarterly review. The record also reflects that from
July 21 to October 20, 1959 , Criner worked on the night shift while Schwichtenberg-
worked only on the day shift . We therefore attach little significance to Criner ' s statement
that his pay raise followed closely after his request to Schwichtenberg
7 The above statement was made in Schwichtenberg 's pretrial affidavit because in his-
testimony at the hearing he could not recall the incident.
,522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases for such employees because Schwichtenberg, working
with the individuals everyday, was most likely to know about their
progress.
We do not consider the above incident as indicating that Schwich-
tenberg had supervisory authority. Unruh's and Brook's testimony
is that the former made the decision to grant a 15-cent an hour increase
to Taylor because his work was identical with that of another
employee, Criner, who was receiving that amount more than Taylor.
There is no indication in either of the witnesses' testimony that the
wage increase was granted because of Schwichtenberg's expressed
opinion. The inference that the Trial Examiner drew from this one
incident, that Schwichtenberg had the authority effectively to recom-
mend wage increases, is therefore not warranted.
The Trial Examiner found that when Foreman Britt needed another
man in the inspection department, he had asked Schwichtenberg to
recommend an employee, that Schwichtenberg recommended Akers,
and that this recommendation was approved immediately and Akers
was transferred. The record shows that Britt told Schwichtenberg
that he needed someone who could read micrometers and Schwichten-
berg said Akers was probably the best man. Britt said that he would
see if he (Britt) could get Akers transferred. Britt went to the
office and came back and said Unruh had approved the transfer. We
,do not find that this incident establishes that Schwichtenberg had
authority to transfer or effectively to recommend transfer of em-
ployees. It appears that the transfer was accomplished without con-
sulting Schwichtenberg even though it resulted in the punch press
department losing an employee.
Schwichtenberg had not been informed prior to January 27, 1960,
that he was a foreman or supervisor, or that he had authority to hire,
fire, discipline, or promote. There is no evidence in the record to show
that he had effectively initiated any recommendations in this area, or
that his duties and responsibilities were increased by the departure of
Syzbiak, the acknowledged supervisor in the punch press department
prior to September 1959. It is undisputed that his privileges and
benefits were identical with those of rank-and-file employees.'
On the basis of the record, we would find that Schwichtenberg was
not a supervisor within the meaning of Section 2(11) of the Act on
the day of the election and was therefore eligible to vote.' Accord-
ingly, as it has not been established that the Union represented a
majority of employees in the appropriate unit, we would dismiss the
'complaint.
s As stated , in July 1960 Schwichtenberg was promoted to supervisor with all the
authority , responsibility , privileges, and benefits incident to that position
O Precision Fabricators , Inc., 101 NLRB 1537 , 1542-1545 ; Lancaster Welded Products,
Inc., 130 NLRB 1478, 1480.
INLAND MOTOR CORPORATION OF VIRGINIA 523
APPENDIX A
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, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with District 50,
United Mine Workers of America, as the exclusive representative
of employees in the following appropriate unit :
All production and maintenance employees employed at
our Radford, Virginia, plant, excluding all office clerical
employees, professional employees, guards, and supervisors as
defined in the Act.
WE WILL, upon request, bargain collectively with the aforesaid
labor organization as the exclusive representative of the employees
in the appropriate unit, and, if an understanding is reached,,
embody such understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with, re-
train, or coerce employees in the exercise of rights guaranteed by
Section 7 of the Act.
INLAND MOTOR CORPORATION OF VIRGINIA,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must be posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert Street, Baltimore 2, Maryland, Telephone
Number, Plaza 2-8460, Extension 2104, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On a charge filed June 27, 1960, by District 50, United Mine Workers of America,
herein called the Union, that Inland Motor Corporation of Virginia, herein called
the Respondent, has been engaging in and is engaging in unfair labor practices
affecting commerce, as set forth and defined in the National Labor Relations Act,
as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, the General Counsel
of the National Labor Relations Board, herein called the Board, by the Regional
Director for the Fifth Region (Baltimore, Maryland), issued a complaint and notice
of hearing on July 8, 1960, pursuant to Section 10(b) of the Act and Section 102.15
of the Board's Rules and Regulations, Series 8, as amended,' alleging that the
Respondent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
1 A copy of the charge filed in this matter was served on the Respondent on or about
June 28, 1960.
.524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 18, 1960, the Respondent filed an answer denying in effect that it had
-engaged in any of the unfair labor practices alleged and setting forth its defense.
Pursuant to notice, a hearing was held before Trial Examiner Louis Plost on
August 15, 1960, at Washington, D.C.
At the hearing all the parties were represented and were afforded full opportunity
-to be heard on the issues, to argue orally on the record, and to file briefs and/or
:proposed findings and conclusions. The parties did not argue orally. A date was
fixed for the filing of briefs and/or proposed findings and conclusions, with the
Trial Examiner. No briefs have been received.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The Respondent is, and has been at all times material herein, a corporation
aorganized under and existing by virtue of the laws of the Commonwealth of Virginia,
with its principal office and place of business in Radford, Virginia, where it is engaged
in the manufacture of electric dynamic components.
During the year 1960 the Respondent will, in the course and conduct of its
business operations as described above (a representative period), ship products
valued in excess of $50,000 from its place of business directly to points located
,outside the Commonwealth of Virginia.
II. THE LABOR ORGANIZATION
District 50, United Mine Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
As found in Case No. 5-RC-2952, in order that the employees of Respondent
may have the full benefit of their rights to self-organization and bargaining, and
otherwise to effectuate the policies of the Act, all production and maintenance em-
ployees employed at Respondent's Radford, Virginia, plant, excluding all office clerical
employees, professional employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
B. The refusal to bargain
On January 27, 1960, a majority of the employees of the Respondent in the unit
'described above , in a secret ballot Board-ordered election conducted in the matter
of Inland Motor Corporation of Virginia, Case No. 5-RC-2952, designated the
Union as their representative for the purposes of collective bargaining with the
:Respondent. The Board, on May 3, 1960, formally certified the Union as the
representative of the employees in said unit.
On or about May 10 and 25 and June 14, 1960, the Union requested the Respond-
ent to bargain collectively with respect to rates of pay, wages, hours of employment,
and other conditions of employment as the exclusive representative of said certified
-unit.
On or about June 24, 1960, and at all times thereafter, the Respondent did refuse
-and continues to refuse to bargain collectively with the Union.
The General Counsel contends that by virtue of Section 9(a) of the Act, at all
'times since January 27, 1960, the Union has been and is now the exclusive repre-
sentative of all the employees of the Respondent in said appropriate unit for the
purposes of collective bargaining, and that by its refusal to bargain, which is
admitted, the Respondent did engage in and is thereby engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act, and by said acts and
,conduct did interfere with, restrain, and coerce its employees, and is interfering
with, restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and did thereby engage in and is thereby engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
2 The Board has taken jurisdiction of the Respondent in Case No 5-RC-2952.
INLAND MOTOR CORPORATION OF VIRGINIA 525
The Respondent's Contention
At the Board-ordered election in Case No. 5-RC-2952, conducted January 27,
1960, the ballots of three employees were challenged on the ground that these
,employees were supervisors. The Regional Director thereafter conducted an investi-
gation into the status of the challenged voters and thereafter on February 29, 1960,
issued his report on challenges. In that report the Regional Director found that
two employees (Samuel McCoy and Fred Wagner) were not supervisors as defined
in Section 2(11) of the Act and recommended that the challenges to their ballots
be overruled. The Regional Director found that the third employee (Milton
Schwichtenberg) was a supervisor as defined in Section 2(11) of the Act and
recommended that the challenge to his ballot be sustained.
The Respondent filed exceptions as to Milton Schwichtenberg and requested a
hearing before the Board. On May 3, 1960, the Board sustained the Regional
Director and denied the Respondent's request for a hearing. The Respondent then
filed a petition for reconsideration, which the Board denied on June 9, 1960.
The Respondent admits that it has failed and refused to bargain with the Union
.and now contends:
It has not yet been lawfully determined that District 50, United Mine Workers
of America, received a majority of the votes cast in the January 27, 1960,
election in the RC case, and, therefore, the respondent has not been and is not
now under any statutory obligation to bargain with District 50, United Mine
Workers of America within the meaning of Section 8(a)(5) of the Act.
In a statement on the record the attorney for the Respondent indicated that he
Telied on Celanese Corporation of America v. N.L.R.B., [279 F. 2d 204] (C.A.
7-No. 12857 June 16, 1960); however, the Trial Examiner does not find the case
applicable inasmuch as the court's decision therein is based on a finding of fraud
which invalidated the election. The Respondent herein does not claim improper
,conduct by the Union, nor is it contended that newly discovered evidence 3 supports
the Respondent's position.
The General Counsel apparently rests on well-established Board practice. The
.Board's latest decision in a similar matter being issued the day following this
hearing .4
Conclusion
The Trial Examiner finds, on the entire record, that by refusing to bargain with
the Union on and after June 24, 1960, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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
It having been found that the Respondent has engaged in unfair labor practices
in violation of Section 8(a)(5) and (1) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent refused to bargain in violation of the Act, it
will be recommended that, upon request, the Respondent bargain collectively with
the Union and, if an understanding is reached, that such understanding be embodied
in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
8 See Phalo PlaBtios Corporation, 123 NLRB 503 ; Port Houston Iron Works, Inc., 103
NLRB 1489 ; Hagen Manufacturing Company , Inc., 100 NLRB 1321.
Washington Aluminum Company, Inc., 128 NLRB 643 Citing The Cross Company,
127 NLRB 691 ; Old King Cole, Inc., 119 NLRB 837, enfd . 260 F. 2d 530 (C.A 6).
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Inland Motor Corporation of Virginia, is and has been at
all times material herein engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District 50, United Mine Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the Respondent's Radford, Vir-
ginia, plant, excluding all office clerical employees, professional employees, guards,
and supervisors as defined in the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4: The Union, District 50, United Mine Workers of America, was on January
27, 1960, and at all times since has been the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on and after January 27, 1960, to bargain collectively with the
aforesaid Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a) (5) of the Act.
6. By the aforesaid unfair labor practice the Respondent is interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
7. 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.]
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
Pursuant to an order of the Board dated May 23, 1961, which reads in pertinent
part, as follows:
The Board (Chairman McCulloch and Member Brown not participating) has
duly considered the pleadings, the Respondent's motion to dismiss, the excep-
tions and the entire record in the case, and finds that a substantial and material
factual issue may be presented which should be resolved after further hearing
before a Trial Examiner.
Accordingly, IT IS HEREBY ORDERED that the record in this proceeding
be, and it hereby is, reopened, and that a further hearing be held before a duly
designated Trial Examiner for the purpose of taking testimony with respect to
the issue presented by the Respondent's exception to the report on challenges
which were overruled in the representation proceeding [Case No. 5-RC-2952],
with the result that two challenged ballots, which were overruled and one chal-
lenged ballot, which was sustained, were not counted and the Union was cer-
tified as the exclusive bargaining representative in the unit found appropriate
by the Board; and ...
a hearing was held on July 12, 1961, in Radford, Virginia, before Trial Examiner
Thomas S Wilson. All parties appeared at the hearing, were represented by counsel
or representative, and were afforded full opportunity to be heard, to produce, ex-
amine, and cross-examine witnesses, to introduce evidence and material pertinent to
the issues, and were advised of their right to argue orally upon the record and to
file briefs and proposed findings and conclusions or both. Oral argument was waived
at the end of the hearing. Briefs have been received from General Counsel and
Respondent on July 26, 1961.
It was agreed at the hearing by all parties hereto that the sole question presented
for decision by the above order of the Board was the question of whether on Jan-
uary 27, 1960, the date on which the Board conducted a representation election in
an appropriate unit of Respondent's employees. Milton Schwichtenberg was or was
not a supervisor within the meaning of Section 2(11) of the Act and, in accordance
with that decision, either ineligible or eligible to vote in said election. In other
words the question is whether the Union's challenge to the ballot cast by Milton
Schwichtenberg in the election of January 27, 1960, should be sustained or over-
ruled
Unon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
INLAND MOTOR CORPORATION OF VIRGINIA 527
FINDINGS OF FACT AND CONCLUSIONS
Respondent was founded by Hugo Unruh in September 1958 to engage in the
business of designing and manufacturing electrodynamic components. It began
operations at Radford, Virginia, with just three skilled persons. By January 27,
1960, Respondent was employing some 78 production employees in a number of
departments. But, as Unruh himself testified:
... you must realize this, and I would like to point this out to you that this
was a company in its infancy, in its early beginning. It was in its early begin-
ning when borders of responsibility could not be as clearly defined.
I would like to point out to all those present [in the courtroom] that we are
trying to nail down by cross-examination rigidly defined positions which you
might expect in an organization which has existed from some time but not in an
organization where you have just come down here, and where there must be a
certain amount overlapping and disorganization.
As of January 27, 1960, the date of the RC election at which Schwichtenberg's
ballot was challenged, Respondent's departmental organizational setup, as explained
by Unruh, was as follows:
1. The armature and bonding department with 22 employees under Foreman Tom
Bain and Assistant Foreman Sam McCoy.'
2. The assembly department with six employees under Foreman Volker Wesche.
3. Shipping department with two employees under Foreman Volker Wesche.
4. Machine shop with 18 employees under Foreman Neil O'Brien who succeeded
to the foremanship of that department when General Manager Frank Syzbiak, who
had been also acting as foreman of the mechanical departments including the ma-
chine shop, left Respondent's employ on Labor Day 1959.
5. Inspection department with three employees under Foreman Joe Britt.
6. The punch press department with four punch press operators plus Milton
Schwichtenberg, a tool-and-die maker. Until his departure on Labor Day 1959,
Frank Syzbiak had been in charge of this department as well as the machine shop.
The question at issue herein is who, if anyone, became the supervisor of the press
department thereafter: James Brooks or Milton Schwichtenberg?
Approximately 10 days after General Manager Syzbiak's departure on Labor Day
1959, Respondent hired James Brooks, as described by Unruh, as "my assistant pro-
duction manager." 2 Unruh testified that Brooks was also the supervisor in charge
of the punch press department even though he also testified that he "could not trust
the supervision of the punch press department" to O'Brien because he was not a
tool-and-die maker-but neither was Brooks. Brooks, however, testified that, as
production manager, his main responsibility was the "coordination of production"
throughout the plant and, in answer to a direct question as to whether he was also
supervisor of the punch press department, he answered: "I would say I was because
of the fact that the punch press department did have to answer to the production
manager." Identical reasoning would make Brooks the supervisor of all of Re-
spondent's other departments in the plant as well.
The strongest evidence for Unruh's contention that Brooks was the supervisor of
the punch press department was Unruh's own estimate that Brooks spent 30 percent
of his time in supervising that department and 70 percent as production manager.
Brooks refused to make such an estimate. The evidence further showed that, on
the occasions when Schwichtenberg was absent from the punch press department,
Schwichtenberg left Brooks a written list of instructions for handling the department.
Thus Unruh, after admitting that he would not trust the supervision of the punch
press department to O'Brien, when he succeeded Syzbiak as supervisor of the machine
shop because he was no tool-and-die maker, would have it believed that Brooks,
whom Unruh admitted also was not a tool-an-die maker, actually did supervise the
punch press department.
On the other hand Schwichtenberg was in the punch press department all the
time, his workbench was there, and admittedly he assigned the work to the punch
press operators. Brooks would give Schwichtenberg the production schedule for the
department just as he gave that schedule for other departments to the foremen of
those departments. It then became Schwichtenberg's duty to have the patterns and
dies ready for production, to set up the machines for the operators, to inspect the
'Bain was acknowledged by Respondent to be a supervisor. McCoy's ballot In the
election was challenged by the Union but the Regional Director overruled the challenge
thereto on the ground that McCoy was not a supervisor.
2 Brooks testified that he was hired as "production manager."
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first production therefrom, and to assign operators to those presses in, as his own
testimony proved, accordance with his judgment as to the operators' respective ca-
pabilities. All problems and difficulties in the department were referred by the
operators to Schwichtenberg. Schwichtenberg was consulted by top management on
any problem in the punch press department.
Schwichtenberg was paid at an hourly rate of $2.50 per hour whereas the punch
press operators in the department were paid up to $1.60 per hour. Schwichtenberg
also punched a timeclock and otherwise in routine plant matters was treated as an
ordinary rank-and-file employee in questions of vacations, sickness, permission to be
absent from work, etc.
Respondent had never informed Schwichtenberg that he had the authority to hire,
fire, discipline, or promote employees. But the facts show that, despite the above
absence of notification, Schwichtenberg was in attendance at foremen's meetings when
matters concerning the press department were on the agenda, Schwichtenberg was
supposed to report on production matters of the press department to higher manage-
ment, Schwichtenberg's recommendation was sought on the determinations as to
whether an employee should be retained at the end of his 30-day trial period, and
Schwichtenberg's recommendation was sought upon wage increases to operators in the
punch press department as well as on questions of production in that department.
Both Unruh and Brooks attempted in their testimony to downrate Schwichtenberg's
position in the department but had to admit that on all matters in that department
Schwichtenberg would be consulted because he alone was in the department all the
time and, consequently, knew more about that department than anyone else. Unruh,
for instance; testified that, "if [Schwichtenberg] reported on the production for the
punch press department to me, Brooks transmitted it." On the other hand, when
Brooks was asked if Schwichtenberg had authority to "effectively recommend" action,
he answered: "He [Schwichtenberg] could suggest but I would not say recommend
because he was working closely with those people." Brooks here has given us the
the exact reason why Schwichtenberg's "suggestions" were effective recommenda-
tions. Schwichtenberg did know the department and its employees because he was,
there all the time-nobody else was, so they did not and could not know and,
therefore, had to rely on Schwichtenberg.
Press Operator Criner asked Schwichtenberg for a raise .3 The raise was granted
and reflected in Criner's next paycheck.
In January 1960, Press Operator Taylor requested a raise from Brooks. This
matter was the subject of a conference between Unruh, Brooks, and Schwichtenberg.
Brooks recommended a 10-cent per hour increase. Schwichtenberg said be "felt that
Taylor should get 15 cents per hour." 4 Unruh decided to grant the 15-cent increase-
thus proving just how effective Schwichtenberg's suggestions were.
Also Foreman Britt needed another man in his inspection department. He ap-
proached Schwichtenberg for recommendations for such an employee. Schwichten-
berg recommended Press Operator Akers. This recommendation was approved im-
mediately and Akers transferred to the inspection department.
Even if Respondent had never specifically informed Schwichtenberg of his fore-
manship and authority prior to January 27, 1960, the facts here prove, and therefore,
the Trial Examiner finds, that on and prior to that date Schwichtenberg was the•
de facto supervisor of the punch press department with authority to effectively rec-
ommend action to Unruh who made all the final decisions.
The above finding is buttressed by the prehearing affidavit of Hugo Unruh executed
on February 3, 1960, wherein, among other facts which justify the conclusions stated,
Unruh stated baldly: "The foreman in the punch press department is Schwichtenberg.
On the facts here the Trial Examiner can do nothing else but agree with Unruh's
own conclusion as stated in his affidavit and, therefore, recommends that the challenge
to the ballot cast by Schwichtenberg in the January 27, 1960, election be sustained
on the ground that Schwichtenberg was a supervisor within the meaning of Section,
2 (11) of the Act.
s The date of this request was indefinite and, perhaps , had occurred prior to the de-
parture of Syzbiak.
4 The above finding is made from Schwichtenberg's pretrial affidavit because in his
testimony at the hearing Schwichtenberg was far from definite as to what position he had
taken at the conference. Somebody had recommended a 15-cent increase; Brooks admitted
at the hearing that he had opposed 15 cents, so obviously Schwichtenberg's prehearing
affidavit was correct