Janesville Products Division

National Labor Relations Board - Board Decisions

Feb 21, 1979

240 N.L.R.B. 854 (N.L.R.B. 1979)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Janesville Products Division, Amtel, Inc. and Interna-
tional Union, United Automobile, Aerospace & Ag-
ricultural Implement Workers of America, UAW
and The Production Unit of Janesville Products,
Party in Interest. Case 30- CA4398
February 21, 1979
DECISION AND ORDER
BY MLMBERS JENKINS. MURPHY AND TRI ESDALEI
On October 13, 1978, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Lawv Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Janesville Products Divi-
sion, Amtel, Inc., Janesville, Wisconsin, its officers,
agents, successors, and assigns. shall take the action
set forth in the said recommended Order.
DECISION
BERNARD RIES. Administrative Law Judge: This matter
was heard in Janesville, Wisconsin, on June 2, 1978. The
complaint, denied by Respondent in all material respects,
alleges that Respondent has violated Section 8(a)(2) by as-
sisting, supporting, and interfering with a labor organiza-
tion known as "The Production Unit."
Briefs have been received from the General Counsel and
Respondent.' On the basis of the entire record, 2 my impres-
sions of the witnesses as they testified, and the briefs, I
make the following findings of fact and conclusions of law.
I No appearance was entered at the hearing ,n behalf of .and no, brief as
received from, the Production Unit. Paned in the complaint as a part\ in
interest
2Certain errors in the trlanscript have been notled add arc herebh cwrrect-
ed
240 NLRB No. 109
I JURISDICFON
Respondent, an Ohio corporation, engages in the manu-
facture of automobile body insulation in Janesville, Wis-
consin. During the calendar year preceding issuance of the
complaint, a representative period, Respondent sold and
shipped goods valued in excess of $50,000 directly to points
located outside the State of Wisconsin. The answer admits,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE STATUS OF THE PRODUCTION UNIT
The complaint alleges, the answer concedes, and I con-
clude, that The Production Unit (herein the Unit) is a labor
organization as defined in Section 2(5) of the Act.
II THE ISSUES PRESENTED
The complaint is substantively concise. Paragraph 7
states:
Since at least April 21. 1977, 3 the Respondent has
assisted, contributed to the support of, and interfered
with the administration of the Production Unit by, but
not necessarily limited to:
(a) Ordering an election of the Production Unit's
employee representatives and permitting said election
to take place on Respondent's time and premises.
(b) Exercising arbitrary control over the scheduling
of Respondent's meetings with employer representa-
tives of the Production Unit.
(c) Controlling the subject matter at Respondent's
meetings with employer representatives of the Produc-
tion Unit.
(d) Dictating the resolution of grievances at Re-
spondent's meetings with employee representatives of
the Production Unit.
As to the matters itemized in the complaint, there is,
with the exception of the second clause of subparagraph
(a), a failure of proof of the substance of the allegations
made. Although the complaint states that Respondent sup-
ported and interfered with the Unit by conduct "not neces-
sarily limited to" that specified, General Counsel did not
amend the complaint during the hearing to identify addi-
tional indicia of unlawful conduct, despite the fact that
other possible areas of support or interference were alluded
to. In her brief, however, counsel for General Counsel
treats the whole body of proof adduced, including circum-
stances admittedly preceding the 10(b) date, as a con-
tinuum which, considered in total perspective, conduces to
the conclusion that Respondent has unlawfully supported
and interfered with the Unit, and consequently that it
should be required to withdraw recognition from the Unit
at the present time.
Passing for now the issue of the propriety of the suggest-
ed approach, I shall summarize the facts adduced at the
hearing.
ilh date coinclides with the 6-molnth limitations period prescribed by
Sec l(ttb. which was riggered by filing of the underlying charge on Octo-
ber 21. 1977
JANESVILLE PRODUCTS DIVISION. AMTEL 855
IV FINDINGS OF FAC1
A. Events Occurring During the Pre-lO(b) Period
Around the mid-1950s, Respondent, according to the
complaint and the answer, "recognized the Production
Unit as the collective-bargaining representative for Re-
spondent's employees in a unit described at article 11, sec-
tion , of the collective-bargaining agreement between the
Respondent and the Production Unit which is in effect
from October 24, 1976. to October 27. 1979." 4 In fact, all
the record shows of the beginning of the Unit appears in an
employee manual of the period, which states:
In order to assure each of you an opportunity of ob-
taining a fair hearing of any problems, suggestions, or
complaints, an Employee's Council of five members
annually elected by you was set up to meet at intervals
with representatives of your company's management.
The detailed organization, duties, and procedures are
posted on our bulletin boards.
For years, despite the reference above to five members,
the council evidently consisted of three members repre-
senting three specified segments of the work complement.
According to John Whitefield, Respondent's industrial re-
lations manager, whose home office is in Ohio, Respondent
met with the council periodically over the years to discuss
wages and fringe benefits.
Whitefield testified, and a document received in evi-
dence confirmed, that in the late summer of 1975. "the
Council came forth with written demands and expressed a
strong interest in having more say-so in negotiating their
wages, fringes, working conditions." A list of the council's
multiple areas of interest was presented to Whitefield by
the council in September 1975. In December 1975, White-
field presented a counterproposal which increased benefits,
established a credit union, etc. According to Whitefield,
the council "accepted" this package, although the minutes
of the meeting suggest that there was little choice.
A synthesis of the exhibits and the testimonies of Coun-
cil member Rodney Kersten (General Counsel's only wit-
ness) and Whitefield reveal this probable sequence of
events in the following year. 5 In early September 1976, the
newly elected Council met with management. According to
Whitefield, the Council again expressed a strong interest in
negotiating their wages, fringe benefits, and working condi-
tions. Until this point, the parties had never executed a
written agreement: Whitefield testified that he replied to
this expression of "strong interest" by asking if the Council
was "interested in a signed contract," specifying that Re-
spondent would want a 3-year agreement. Kersten testified
that Whitefield said the Council should "go back and ask
the employees about a 3-year contract and what they want-
'I [he provsi'on referred to is all full-time and regular partl-time produc-
tion and maintenance emplocs ..s xcluding superisors. watchmen. of-
fice clerical emploees. temporary and seasonal emploees " It appears hiat
the work force consists of perhaps 100 emplosees
The accounts of hoth witnesses are contradictor'. and I behee both
were confused about the course f events. in the light of the exhibits
ed . . for their pay raises, benefits. wants and stuff in that
area.
Respondent posted notices announcing meetings of em-
ployees with their committee representatives on September
29 (G.C. Exh. 3), and, on September 30, the Council met
with management and presented a long list of "requests"
(Resp. Exh. 4). At an October 6 meeting, Respondent re-
plied to the "requests." accepting some and rejecting
others. Respondent's minutes show that, at the end of the
meeting, Whitefield told the council. "[Y]our next move
will be to take the proposal as it now stands at the close of
the meeting to your production unit for ratification" (Resp.
Exh. 5).
A ratification vote was held on October 7: the employees
rejected Respondent's proposal. At the request of the coun-
cil, management then met, on October 13, with the unit
employees to discuss their desires. On October 14, Respon-
dent presented a new package to the Council. The Council
asked to hold a production unit meeting to inform the em-
ployees of the latest proposal and then have a ratification
vote. The Company was "not opposed." It also offered to
"see that you have a seniority list, paper, pencils and a
ballot box" (Resp. Exh. 7).
On October 14 Respondent posted a notice announcing
that the informational meeting would be held the following
day. and a ratification vote on October 18 (the notice
spelled out the voting procedures as agreed to by Company
and Council). The unit employees voted to accept the re-
vised proposal; at a meeting thereafter between Respon-
dent and the council members, the final contract was pre-
pared for printing. The 3-year agreement was executed in
late October 1976.6
The record shows that minutes of the negotiations were
taken by Whitefield and typed by a company' secretarn'.
The evidence further discloses that, after the execution of
the agreement and prior to the onset of the 10(b) period,
Respondent. at the request of the council, furnished griev-
ance forms to the council for the use of the employees.
B. The Complaint Al legations
I turn now to the claimed misconduct specifically ad-
dressed in the complaint.
1. "Ordering an election of the Production Unit's em-
ployee representatives and permitting said election to take
place on Respondent's time and premises."
The Unit has no constitution or bylaws. However, there
were incorporated in the 1976-79 bargaining agreement.
under the article entitled "Recognition," some rather un-
The charge here was filed on October 21, 1977. b the LUnited Automo-
bhile Aerospace & Agricultural Inlplementl W,rkers of America. UAW. The
record shows that on October 6. I977. VAW filed a petition to represent the
unit eplo!ees. to which the Respondent replied hb asserting the existence
of a ahid contract as a bar to an electlon. The possibility that Respondent
became desirous of securing its first written contract onl' because L:A'
had displased an interest in this unit. a theor; which General Counsel does
not ad.lnce. seems most unlikel, in iew of the dates given aboe he
contract was first discussed in the summer of 1976. and UAW did not file its
petition until over a ,ear later. It is highl unlikels that UAW had begun its
orgazitg camnlpaign in I976. and there i n eidence to that effect. Docu-
entrls in eidence hho. Whilefield explaining he request for a 3-sear con-
Irclt as stemming from an interest in fixing costs. and Kersten's iestimon
confirnm, that 'hlitefield proffered that reason In 1976.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usual provisions relating to the composition and election of
the employee Council. The relevant portions read:
Section 2. Employvee Council The "Production Unit"
is represented by a three person "Employee Council."
Each member of the Council is elected by employees
from within the group they represent, as shown below,
and will serve one year terms and are subject to re-
election; nominations to be made one week before
election.
Group I-Day Shift-Maintenance, shipping, qual-
ity control, chemical blender, Maratex line and jani-
tor. (Council member elected Ist week of September
beginning 1977).
Group II-Day Shift-Oven line, die cut and as-
sembly. (Council member elected 1st week of January
beginning 1978).
Group Ill-All afternoon shift employees. (Council
member elected Ist week of May beginning 1979).
In addition to the above each group shall elect an al-
ternate Council Member who will serve in the absence
of the respective Council Member.
The purpose of the three-member "Employee Coun-
cil" is to represent employees requiring representation
when registering a complaint, receive disciplinary ac-
tion, meeting with the Company to negotiate the La-
bor Agreement and other work related matters relative
the [sic] the Labor Agreement.
In about March 1977, Respondent had opened a proxi-
mate second plant; and, in Kersten's words, around July
Whitefield "suggested" to the Council that "for better rep-
resentation we should add two more Council members."
The Council agreed with the suggestion. Whitefield credi-
bly testified that his suggestion was made after Kersten
"presented a problem where he is not able to get any feed-
back from the people in the new plant." The contract was
amended, on September 7, 1977, to add two Council mem-
bers and some minor provisions relating to the mechanics
of representation.
In September 1977, an election was held to fill positions
of three Council members and five alternates. Kersten tes-
tified that the incumbent Council members discussed the
arrangements for the election with Respondent; the Re-
spondent "suggested" the date of September 9 for nomina-
tions "and the Council had no objections to that, so that's
the date we chose;" the locations of the balloting were to
be in "the places where the elections have always been
held;" and the precise times for balloting, while apparently
not discussed, were left "for such times as was most con-
venient for purposes of work scheduling." The day before
the nominations, Respondent, having informed the Unit
representatives that it would do so, posted on its bulletin
boards notices it had prepared announcing the times,
places, and eligible voters for each of the five voting
groups. The employees were paid for the time expended in
the 30-minute nomination meetings and in voting during
the 30-minute voting periods. The Respondent prepared
the ballots gratis.
There is no evidence to support the claim that Respon-
dent, as alleged, "ordered" the election, in the ordinary
sense of that word. The election was held as elections had
been conducted in the past and in accordance with the
provisions set out in the bargaining agreement (as consen-
sually amended by the parties to provide for two new
council members). However, as set out above, the election
was held, as the complaint states, on company "time and
premises." As further shown, Respondent also paid for em-
ployee time consumed in the nomination and voting pro-
cess, Respondent prepared and posted the election notices,
and Respondent furnished the ballots.
2. "Exercising arbitrary control over the scheduling of
Respondent's meetings with employee representatives of
the Production Unit."
Council member Kersten testified that Respondent met
with the council once a month "at first." He continued:
Then for a while there was a gap, that we didn't
meet every month. It was hard for John Whitefield to
make connections. I guess they didn't want to send
him down there all the time.
Then we requested it and then about four or five
months lapsed through there and we had one meeting.
We suggested to the Company, I think it was in No-
vember or December or somewhere in there-I think
it was maybe January of '77, that we would like to
meet every month; and then the Company went along
with that at that time, that they go back to meeting
once a month. We have since then.
Kersten further testified that the monthly meetings are now
scheduled for the second Tuesday of every month. Perhaps
twice in the year preceding the hearing, one of the manage-
ment representatives had a conflict with that schedule; on
such occasions, the plant manager "would come to me,
being Chairman, and he will ask us if the meeting can be
changed. He will give us another date and ask us if it's
okay and that's how its done."
From the foregoing testimony, it is impossible to con-
clude that within the 10(b) period, beginning April 21,
1977, Respondent exercised "arbitrary control" over the
scheduling of the meetings.
3. "Controlling the subject matter at Respondent's
meetings with employee representatives of the Production
Unit."
I note, as background, that the council members attend
the monthly meetings on working time and incur no loss of
pay therefrom. Prior to "March or April of '77," according
to Kersten, Whitefield took notes of the meetings and had
them typed. Somewhere in the time period mentioned,
however, Whitefield "suggested . . . that we should start
taking our own minutes, and we should have a chairman.
So, at our following meeting we elected a secretary and a
chairman." The council also adopted the suggestion about
taking its own minutes. Thereafter, Whitefield stopped
making the official notes, and one of the Council members
began to do so. The council produced notes are typed,
without charge, by a company secretary.7
G.C. Exh. 5 indicates some error in Kersten's account. The exhibit con-
sists of notes taken by Whitefield at a meeting of February 10. 1977. Ker-
sten testified that this was the meeting at which Whitefield made his sugges-
lions about revising the minute taking procedure. The minutes show.
JANESVILLE PRODUCTS DIVISION, AMTEL 857
The sole testimony given by Kersten bearing on the alle-
gation of Respondent's "controlling the subject matter" at
the monthly meetings follows:
Q. (By Judge Ries) At these meetings, more or less,
that meet regularly once a month with the Company,
what kinds of things are discussed?
A. Just about everything and anything. If some-
body has a problem, if they are getting a raw end of a
deal or if they think one guy is getting something more
than they are or just about everything, just about any-
thing that somebody wants to bring up.
Kersten further testified that "most" of the items discussed
at the meetings are suggested to council members by unit
employees.
It thus appears that Respondent makes no attempt to
"control" the nature of the topics discussed at the monthly
meetings. Although Kersten also said that at some unspeci-
fied point, Respondent told the council that "grievances
should be held off and submitted in the right steps and not
talked about at the Council meetings," such a course is
simply consistent with the agreement and does not detract
from the thrust of Kersten's otherwise clear testimony that
the discussion at these meetings is unfettered. Similarly,
Whitefield's testimony that Respondent refused to renego-
tiate wages during the contract term, plainly its perogative,
can scarcely be considered an effort to somehow unlawful-
ly "control" the agendas of the monthly meetings.
4. "Dictating the resolution of grievances at Respon-
dent's meetings with employee representatives of the Pro-
duction Unit."
There is no evidence to support this allegation. It would,
in fact, appear from Kersten's testimony that certain griev-
ances were successfully resolved in favor of the employees
at the periodic meetings.
C. Additional Evidence Within the 10(b) Period
Other testimony was given by Kersten relating to the
status of the Unit and to events within the 10(b) period.
The Unit has no constitution, bylaws, office, expenses, or
income. There seems to be an understanding that all repre-
sented employees are "members" of the Unit, since all (ex-
cept for probationary employees) are allowed to vote.
When a new employee has completed his probationary pe-
riod, the plant manager will inform him about the Unit.
give him a copy of the bargaining agreement, identify his
council representative, and send the employee to the ap-
propriate representative, presumably for some sort of or-
ientation. The council has not met with the unit employees
in groups or as a body except during the 1976 negotiations
and at the nomination meetings held in 1977.
however, that the Council had already selected a secretary Whitefield is
quoted as saying. "The Company has been writing the minutes of these
meetings for some time and now feel [sic 1 that in as much as the employee
Council now has a secretary. that future meeting minutes should be written
and posted by the Council secretary." Whitefield is further quoted: "The
office will volunteer to type your minutes if you are in need of this assis-
tance . The Company feels though it is Important that the Council does
their own reporting back to the bargaining unit which the, are representing
The evidence further shows that the bargaining agree-
ment executed in 1976 established a grievance procedure
which culminates in arbitration. The agreement identifies
the arbitrator as "the Manager of Industrial Relations" for
Respondent, i.e., Whitefield. Kersten testified that this un-
usual situation came about when the council realized, dur-
ing bargaining, that "there was no dues or anything to pay
for an arbitrator." Whitefield thereupon "volunteered" to
perform the function, so "we agreed to that because other-
wise it would come out of everybody's pocket."
The provision was later amended. Whitefield testified
that he was uneasy about the arrangement, since it preclud-
ed his involvement in grievances at earlier stages. and he
had discovered by accident in early 1978 that the Wiscon-
sin Employment Relations Commission would provide an
arbitrator free of charge. He informed the council of this
possibility, and the parties amended their agreement in
March 1978 to write Whitefield out and the state arbitrator
in.8
V ANALYSIS AND CONCLUDING FINDINGS
Before reaching the primary legal issues presented, con-
sideration of an important procedural question is required.
As stated earlier, the complaint specifies only four in-
stances of substantive conduct, adding rather vaguely that
the allegation of 8(aX2) assistance and interference is "not
necessarily limited to" the designated acts. In its brief, Re-
spondent "most strongly urges that the Administrative Law
Judge only consider General Counsel's evidence as to the
allegations contained in paragraph 7(a) to (d) of the com-
plaint, being as no motion was made at the hearing to con-
form the pleadings to the proof."
It is obvious that the complaint might have been drafted
more comprehensively, and that General Counsel sought
to establish matters not supported by the known evidence
and failed to expressly allege relevant factors which Gener-
al Counsel anticipated reliance thereon. I conclude, how-
ever, that this pleading worked no prejudice here.
As more fully discussed below, this sort of 8(a)(2) "assis-
tance" case has been, for more than 40 years, decided by
the Board on the basis of the "totality" of the circumstanc-
es, e.g., Federal Mogul Corporation, Coldwater Distribution
Center Division, 163 NLRB 927, 928, footnote 4 (1967). The
complaint is "not necessarily limited to" language indicates
such an all-encompassing approach. General Counsel's
opening statement did the same, referring to many unal-
leged matters, such as the election notices posted by Re-
spondent, the Unit's lack of income, and the provision of
secretarial and printing services by Respondent. That
counsel for Respondent fully understood the scope of the
complaint is shown by his statements at the hearing 9 by his
failure to object to introduction of evidence extraneous to
No arbitrations have been held under the contract.
' For instance. counsel attempted to cross-examine Kersten about an em-
plosees benefit associatlln nominall) administered by the Unit. In argu-
ment n the point. he said:
I get the thrust of the General Counsel's case where the union reall is
a shell here and doesn't have any impact on the emplo)ees or minimal
impact. This is one of the areas in our view that they do have an impact
on the employees because the' hase set this up and it flows from the
('onrinued
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the literal language of the complaint, his cross-examination
about such matters, and his own introduction in evidence
of subjects (e.g., the contract amendment by the parties in
1978 creating a safety committee) which could only have
been intended to suggest the existence of a viable, benefi-
cial working relationship.
It thus appears to me that Respondent was fairly advised
and aware of the parameters of the complaint allegations,
and that I may properly take into account certain hardly
disputable facts operative within the 10(b) period which
came into evidence.
Section 8(a)(2) provides that it "shall be an unfair labor
practice for an employer-(2) to dominate or interfere with
the formation or administration of any labor organization
or contribute financial or other support to it: Provided,
That subject to rules and regulations made and published
by the Board pursuant to Section 6, an employer shall not
be prohibited from permitting employees to confer with
him during working hours without loss of time or pay."
The complaint reflects and General Counsel's brief ex-
pressly declares that the Government is not here seeking a
finding of "domination" of the Unit by Respondent and a
consequent order that the Unit be disestablished. The Gov-
ernment seeks findings of interference and support, result-
ing in an order requiring Respondent to withdraw recogni-
tion from the Unit unless and until it can establish its
majority status in an election.
A review of some of the many precedents in this area
discloses that as a general rule, the Board determines the
existence of unlawful assistance and interference by ap-
praising the aggregation of facts presented to it. "Rather,
each case must be decided on the totality of its facts."
Coamo Knitting Mills, Inc., 150 NLRB 579, 582 (1964). Al-
though no clear standard emerges, it is evident that the
cumulative effect of the congeries of circumstances con-
trols. The same facts and events which, in some settings,
may be deemed innocuous will in other situations be found
to be part of an amalgam amounting to unlawful assis-
tance. Compare, e.g., Wean Manufacturing Compan, 147
NLRB 112 (1964), with Sunnen Products, Inc., 189 NLRB
826 (1971). The question is, how much assistance and inter-
ference is to much?
In assaying the weight of the various "factors" and "ele-
ments" and "aspects of control" which it considers rele-
vant, the Board appears to have made certain distinctions
between the provision of support and assistance by an em-
ployer and his intrusion into or involvement with the inter-
nal operation of the labor organization. Insofar as support
is concerned, the Board held early on, relying on the provi-
so to Section 8(a)(2), that payment to union representatives
of their wages for time spent in conferring with manage-
ment is not unlawful assistance. Remington Arms Company,
Inc., 62 NLRB 611, 614 (1945); followed in principle, Wean
Manufacturing Company, supra. Apparently influenced by
contract that was mutually bargained and agreed to by the pa;rties.
Similarly. in his opening statement, counsel for Respiondent reached far
beyond the specifics of the complaint: "Finall. we will prose that the union
at Janesville Products is an extension of the will of its emplo,:ees aind that
said union does satisfy the legitimate concerns of its employees."
court decisions in Chicago Rawhide Manufacturing Compa-
ny v. N.L.R.B., 221 F.2d 165 (7th Cir. 1955), setting aside
105 NLRB 727 (1953), Coppus Engineering Corporation v.
N.L.R.B., 240 F.2d 564 (Ist Cir. 1957), setting aside 115
NLRB 1387 (1956), and N. L. R. B. v. Magic Slacks. Inc., 314
F.2d 844 (7th Cir. 1963), denying enforcement of 136
NLRB 607 (1962), the Board has more broadly held that
"[t]he use of company time and property does not per se
support a finding of support and assistance." Manuela
Manufacturing Co.. Inc., 143 NLRB 379, 385 (1963);
Coamo Knitting Mills, Inc., supra at 182.
Thus, in Hesston Corporation, Inc., 175 NLRB 96 (1969),
the Board found no violation where the employer permit-
ted the employee committee to hold biweekly meetings, on
paid time and company premises, to prepare for meetings
with management; permitted the committee to conduct
steward classes on company property, with partial pay for
most of the employees involved; and permitted employees
to elect stewards on paid time. Similarly, in Ladish Compa-
ny, Texas Division, 180 NLRB 582 (1970), the complaint
was dismissed where the committee was permitted to hold
contract ratification meetings on company time and prop-
erty, the committee representatives were paid for time
spent on committee business, and the company shouldered
the cost of printing the bargaining agreement.
0 With these
cases, however, compare Wean Manufacturing Compan',
supra, finding a violation on not dissimilar facts, and New-
nman-Green, Inc., 161 NLRB 1062, 1067 (1966), which also
appears to be somewhat inconsistent.
More recently, in Duquesne University of the Hol Ghost,
198 NLRB 891 (1972), the evidence disclosed that the com-
mittee had no income; it met on employer premises; com-
mittee members received pay for time spent at meetings;
the employer printed ballots for committee elections and
distributed them through the employer's mail distribution
system; committee elections were held on paid time; and
the employer paid for and distributed the committee's
weekly newsletter. The Board stated that this sort of assis-
tance was innocuous: "As the Board and courts repeatedly
have held, the types of benefits conferred by Respondent
on the Committee do not constitute per se violations of
Section 8(a)(2)," citing, inter alia. Hesston Corporation, Inc.,
supra, and Ladish Company. supra, 198 NLRB at 891.
t The
Board went on, however, to discuss other "instances of less
than arm's length dealing, demonstrating a continuing kind
of assistance which, when combined with the tangible as-
sistance referred to above, sufficiently establishes a viola-
tion of Section 8(a)(2)." The four "instances" referred to
were the provision of "advice and counsel" to the commit-
tee by the director of personnel services: a staff relations
committee functioning in part as an "advisory body" to the
" 'he evidence also showed that the compan? posted notices informing
emplo?,ecs of committee business; group leaders would notify employees
about their desired attendance at committee meetings except during negoti-
ations. there were tino meetings between management and the full commit-
tee: and the committee had no chairman, no officers. no assets. and no
income
While the Board just previously refers to the "special circumstances of
this case; i.e. where an employer. here a universi\. so freely makes avail-
able its facilities. time, and services to any desirous organization, including,
to somenic extent. other labor organizations." the quoted summar of
law
appealrs to stand on its osw n footing.
JANESVILLE PRODUCTS DIVISION. AMTEL 859
committee; evidence showing that the employer's vice pres-
ident attempted to act as an advisor to the committee: and
the personnel director's assistance to the committee in
helping it select an attorney to represent it in an election
proceeding.
It would appear that less intrusive interference provided
the foundation for the violation found in Kaiser Foundation
Hospitals. Inc., 223 NLRB 322 (1976). There, the elements
of support were the holding of committee meetings on em-
ployer time and property: use by the committee of type-
writers, copying machines, bulletin boards, and paper: and
the use of a loudspeaker to announce committee meetings.
While these factors standing alone would not seem to suff-
ice under the cited cases, there was also evidence that sup-
ervisors were present at a meeting of employees conducted
by the committee in order to encourage participation and
interest in the committee; and that at a meeting between
the committee and management at which coffee and dou
the results of a questionnaire distributed by the committee
(using employer facilities) to determine the economic goals
of the unit employees. The Board held that the totality of
these "acts of assistance rendered to the Committee by Re-
spondent exceeded the bounds of permissible cooperation
and constituted unlawful aid and assistance."
The evidence in this record shows that the Unit has no
charter,' no bylaws, no assets, and no income." The coun-
cil members regularly meet among themselves for 30 min-
utes and then with management, on company time and
premises, but have met in groups with the employees they
represent only during contract negotiations and election
periods. Minutes taken by the council secretary during
these meetings are typed at Respondent's expense. Respon-
dent supplied and posted notices, furnished ballots,and al-
lowed employees free time and company facilities to nomi-
nate candidates for, and to vote in, an internal union
election in September 1977.
Under what seem to be the more authoritative recent
precedents cited above, these items of financial and logisti-
cal support might not cumulatively constitute a violation.
There is, however, other evidence of Respondent's involve-
ment in the affairs of the Unit during the 10(b) period.
As set out above, the bargaining agreement contains a
provision delineating the composition of the employee
council, the number of alternate members, the groups rep-
resented by each council member. the timing of their nomi-
nation and election, the length of their tenure in office, and
1 The genesis of he nit is murks. here It no clear eidence that the
unit employees ever elected the t nit to represent them as a harginitle
agent. and there is no firm evidence to the contrar-. I'he ,ording In the
employee's manual, published in the 1950s. tlrongl suggests that there itas
no such selection process: "In order t assure each oif uou an topportunit iof
obhtaining a fair hearing on ans probhlens. suggetluns. or complkaints, an
Fmplovee's (ouncil oIf fe members annuall elected hb su itIs :i 1iq to
meet at intervals ith represent.tlses of iir ctmpans's nrnaaigenlt (e1ll-
phasis supplied) While, in l)uquelen I niirwt tht Itii Ghst. stiqtr, tlhe
Board noted that it :3as precluded h: Sec 10(h from finding unfair labor
practices hased on conducl occurring hefiore the 6-month period. it felt that
it could not "ignore" evidence relaltin g to the circumsta;nces tinder hich tilhe
committee hecame the h;arga;iing representatise. 198 NRB at 892. fn
These factors have often been alluded It as rele\anl "aspects of con-
trol." (lapper'i Manufacturing, In . 186 Nt RB 324. 334 (1970): rt niii
(Green. In,. 161 NI RB t IO67
the scope of authority of the council. Kersten testified that
the incorporation of this provision into the agreement re-
sulted from a "suggestion" by Whitefield. Presumably on
the basis of this contractual commitment, Respondent has
not been loath to interject itself into the substance and
mechanics of the Unit's selection of representatives.
Thus, around July 1977, when Kersten mentioned a
problem of communicating with the personnel in the new
plant. Whitefield suggested that two more members be
added to the council, a suggestion adopted by the Unit.
Prior to the September 1977 election, according to Kersten,
the council expressed an interest in employing a different
election procedure. hut Whitefield pointed out that the
contract would not permit it:
Q. When, if ever, have the Council requested a
week for a campaign period?
A. Well, we made a suggestion of doing it all in one
week, but then John Whitefield found a thing in the
contract saying we couldn't do it that way so we had
to go back the other way and do it the one week and
then the elections the following week.
In May 1978, Respondent again demonatrated its inter-
est in policing this section of the agreement. Plant Manager
Herzig sent a memorandum to Kersten reminding him "in
accordance with Article II. Section 2 as amended of the
agreement between the Production Unit and the Company,
the employees are due to hold an election of a council
member and alternate for Group II11 (Plant 1) night shift.
This election should be held the first week of May. If we
can be of any assistance in setting up times for election let
Bill Bartels know."
In finding "domination" of an employee committee in
Modern Plastics Corporation, 155 NLRB 1126 (1965)., en-
forcement denied 379 F.2d 201 (6th Cir. 1967). the Board
relied, inter a/lia on the facts that the employer's personnel
manager on one occasion "suggested" committee opera-
tional procedures and on another "urged" the holding of a
special election, circumstances not unlike Whitefield's sug-
gestion that the council be expanded and Herzig's remind-
er that an election "should be held." In addition, the Board
"note[d]" that "the Committee election procedures. voting
eligibility of employees, and the form of employees repre-
sentation by the Committee are matters incorporated in the
collective-bargaining agreement between the Respondent
and the Committee and are thus subject to change only if
agreeable to Respondent." 4 Again, in Federal Mogul (or-
poration, 163 NLRB at 928. the Board, in concluding that
there had been unlawful domination, relied in part upon
"the fact that the only body of rules governing the opera-
tion of the Committee is contained in the bargaining agree-
ment between the Respondent and the Committee."
Given the evident direction of the Duquesne Universit'
Kaiser Foundation cases, it would appear that these in-
14 15 NI.RB at 1128. In .a footnot e. the Board staled
"Ihe contrlact protlson, are but tine factor f the relationship he-
i een the Respondent and the ( inmriillee hich has led us to conclide
that Respiondent A il n ti lon of Section 8a)H2) aind (I) of the Act
\ve find it unnecessiars it decide that these protsilnns, in the collectise-
hargatnilnng agreement cnstittied a separate and independenl i ation
of the 4ict" lif NI RB . 1128. fin I
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, taken in total context, are a sufficient basis for
concluding that Respondent has played an unlawfully in-
trusive role in the affairs of the Production Unit. The weak
and dependent character of this labor organization, relying
for its "sole financial breath" (Wean Manufacturing Com-
pany, 147 NLRB at 118) upon Respondent's largesse,
makes it exceedingly vulnerable to suggestion and influ-
ence. Respondent has successfully attempted to gain, and
has exercised, authority over an important facet of union
independence-the manner in which the union chooses its
spokespersons and formulates its representative structure.
There was considerable "advice" on how the Union should
operate qua union, of the kind found improper in Duquesne
University and Modern Plastics. It appears to me that, in
light of the gossamer nature of the organization known as
"the Unit," the evidence of the sustenance given to it by
Respondent and the proof of continuing intrusion into its
internal processes combine to constitute unlawful support
and interference within the ambit of Board decisions con-
struing Section 8(a)(2).
Respondent argues on brief that there is no proof of
"improper intent" to influence the employees' choice of
bargaining representative, a factor stressed in some of the
court cases cited above. The absence of such a showing is,
in the Board's view and therefore ex necessitate mine, irrel-
evant. Northeastern Engineering, Inc., 112 NLRB 743, 744,
750 (1955); Kaiser Foundation Hospitals, Inc., 223 NLRB at
322.
Moreover, while the record may not establish an "im-
proper" intent, it does impart a picture of an unhealthy
paternalisitc relationship throughout, with both sides clear-
ly understanding who runs the show. The contract reads
much like an employee handbook. Clearly, the impetus for
action time and again has originated with Respondent.
There has been demonstrable special concern by Respon-
dent about doing what seemed necessary to keep the Unit
functioning as a labor organization, such as keeping its
own minutes. At the same time, these cosmetic touches do
not conceal the plainly subservient attitude of the council,
even as to internal union affairs, evidence of which
abounds in the record, and of which the following excerpt
from the minutes of a February 1977 meeting is only one
example:
Council: Please review the procedure for filling va-
cancies on the Employee Council.
Company: In the event of a vacancy, the alternate
moves up to fill the void. The group then elects a new
alternate from within their group.
Council: What procedure does a particular group
follow if the group feels the Employee Council mem-
ber is not representing them?
Company: He may be impeached by a majority
vote of the group he represents. In the event this hap-
pens, the alternate representative moves up to fill the
void and a new alternate is elected.
On the whole of the evidence, I conclude that General
Counsel has satisfactorily established unlawful support and
interference.
CONCLUSIONS OF LAW
1. Janesville Products Division, Amtel, Inc., is an em-
ployer engaged in commerce within the meaning of the
Act.
2. The Production Unit of Janesville Products is a labor
organization within the meaning of the Act.
3. By assisting, contributing to the support of, and inter-
fering with the administration of The Production Unit,
since at least April 21, 1977, Respondent has engaged in
unfair labor practices within the meaning of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
THE REMEDY
It might be that a simple order requiring Respondent to
desist from interfering with and rendering unlawful assis-
tance to the Unit would appropriately vitiate the violation
found. It would appear, however, that in remedying an as-
sistance violation, the custom of the Board is to order the
employer to withdraw recognition from the assisted union
until it has proved its majority status in a Board election.' 5
The practical considerations on either side make a close
balances. Here, the original recognition must be deemed
legitimate, and the existing contract was executed, without
legally cognizable assistance or interference, prior to the
10(b) period. If withdrawal of recognition is required, and
the contract set aside, the employees lose the benefits of
both contract and representation while awaiting the out-
come of the election which, the record here shows, is pend-
ing.
On the other hand, if the Unit is allowed to retain its
right to recognition, it may be said, by virtue of its past
relationship with Respondent, to be available for special
treatment and subtle propaganda uses which will disserve
the interests of the Charging Party or any other labor orga-
nization which may have a representational interest. In all,
I conclude that the purposes of the Act may best be served
by neutralizing the status of the Unit and requiring it to
stand as a contender on a more equal footing in the elec-
tion arena.' 6
I shall also recommend that Respondent be required to
post the customary notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby enter the following recom-
mended:
ORDER 17
The Respondent, Janesville Products Division, Amtel,
Inc., Janesville, Wisconsin, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
| Of course, when the Board concludes that the labor organization is
dominated, it requires it dismantlement.
1b Under established principles, the Charging Party would be, in any
event, entitled to demand an election at the expiration of the present bar-
gaining agreement. Deluxe Metal Furniture ('mpanv. 121 NLRB 995 (1958).
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L.abor Relations Board, the findings,
JANESVILLE PRODUCTS DIVISION, AMTEL 861
(a) Recognizing The Production Unit as the representa-
tive of its employees unless and until such time as The
Production Unit has been duly certified by the Board as
the exclusive collective-bargaining representative of em-
ployees in an appropriate unit or units.
(b) Unlawfully contributing any financial or other sup-
port or assistance to, or interfering with the administration
of, The Production Unit or any other labor organization.
(c) Maintaining or giving effect to the 1976-79 bargain-
ing agreement with The Production Unit, provided, that
nothing herein shall be construed to require Respondent to
vary any substantive provisions of the contract or to preju-
dice the assertion by the employees of any rights they may
have thereunder.
(d) In any other like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization, to bargian collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activity.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from The Pro-
duction Unit as the representative of its employees for the
purpose of dealing with it in respect to grievances, labor
disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until The Pro-
duction Unit has been duly certified by the Board as the
exclusive collective-bargaining representative of employees
in an appropriate unit or units.
(b) Post at its place of business in Janesville, Wisconsin,
copies of the attached notice marked "Appendix." B1 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 30, after being duly signed by Respon-
dent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
conclusions. and recommended Order herein shall, as provided In Sec
102.48 of the Rules and Regulations, he adopted h) the Board and become
its findings, conclusions, and Order, and all objections thereto hall he
deemed waived for all purposes.
t8 In the event that this Order is enforced b a judgment of the L:niled
States Court of Appeals. the words in the notice reading "Postled hb Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTI(CE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had a chance to present
evidence and cross-examine witnesses, the National Labor
Relations Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us to
post this notice. We intend to abide by the following:
WE WILL NOT recognize the Production Unit as the
representative of any of our employees for the purpose
of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until the
Production Unit has been duly certified by the Na-
tional Labor Relations Board as the exclusive bargain-
ing representative of our employees, in an appropriate
unit or units.
WE WILL NOT unlawfully furnish financial or other
support or interfere with the administration of the
Production Unit or any other labor organization.
WE WILl NOT maintain or give effect to the 1976-79
bargaining agreement between our company and the
Production Unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or as-
sist any labor organization, to bargain collectively
through representatives of their own choosing. and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
WE W. withdraw and withhold all recognition
from the Production Unit as the representative of an)y
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 em-
ployment, unless and until the Production Unit has
been duly certified by the National Labor Relations
Board as the exclusive bargaining representative of
our employees, in an appropriate unit or units.
JANESVILLE PRODUc(TS DIVISION. AM IIL IN(