Jansen Electronics Manufacturing, Inc.

National Labor Relations Board - Board DecisionsJul 23, 1965

153 N.L.R.B. 1555 (N.L.R.B. 1965)

JANSEN ELECTRONICS MANUFACTURING, INC. 1555 WE WILL NOT interfere with efforts of Brotherhood of Railroad Trainmen, AFL-CIO, to negotiate for or represent as exclusive bargaining agent employees in the bargaining unit described above. JORDAN Bus COMPANY, Employer. DENCO Bus LINES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Mea- cham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. Jansen Electronics Manufacturing , Inc. and Oil , Chemical and Atomic Workers International Union, AFL-CIO and The Em- ployee Council, Party in Interest. Case No. 18-CA-1976. July 23,1965 DECISION AND ORDER On May 18, 1965, Trial Examiner Eugene E. Dixon issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respond- ent and the Party in Interest jointly filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief of the Respondent and the Party in Interest, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 'In the brief filed by the Respondent and the Employee Council jointly , a number of cases are cited in which courts found no unlawful domination , interference with, or support of employee organizations by the employer involved . All of these cases are distinguishable from the instant case, however , in that they did not involve employee organizations in which, as in the instant case, supervisors as members of the Council and a management official as its chairman participated in negotiations with management on behalf of the employees so that management was sitting on both sides of the con- ference table. 153 NLRB No. 143. 1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Jansen Electronics Manufacturing, Inc., St. Paul, Min- nesota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam- iner Eugene E. Dixon at Minneapolis, Minnesota, on April 12, 1965, pursuant to due notice with all parties represented by counsel. The complaint, issued by the Regional Director for Region 18 (Minneapolis, Minnesota), on behalf of the Gen- eral Counsel for the National Labor Relations Board (herein called the General Counsel and the Board) on February 17, 1965, and based upon charges filed and served December 30, 1964, and February 17, 1965, alleged that Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a) (1) and (2) of the Act by threatening economic reprisal because of activity on behalf of the Union and by initiating, forming, sponsoring, and promoting The Employee Council. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS At all times material Respondent has been a corporation maintaining its principal office and place of business at St. Paul, Minnesota, where it is engaged in the manu- facture of teaching devices and subcontract assembly. During the year preceding January 5, 1965, Respondent in the course and conduct of its business operations caused to be manufactured, sold, and distributed to customers situated outside the State of Minnesota products valued in excess of $50,000. At all times material herein Respondent has been engaged in commerce within the meaning of Section 2(6) of the Act. H. THE LABOR ORGANIZATIONS Oil, Chemical and Atomic Workers International Union, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. The General Counsel alleges and contends that The Employee Council is also a labor organization within the meaning of the Act. Respondent and the Council deny this.' According to Respondent the Council's "purpose is to provide a line for com- munications and exchange of ideas between labor and management . [and] to establish a closer relationship between the employees and management." Prior to the fall of 1963, Respondent's president, Paul Jansen, discussed with other members of management the idea of establishing an employee council. Appar- ently after some discussion of the idea with some of the rank-and-file employees, Jansen presented the idea to the employees as a whole. Although the employees were not given an opportunity to vote on whether or not the Council should be created, the decision to form one was made and management and the employees i Section 2(5) of the Act defines the term "labor organization " as "any organization of any kind, or any agency or employee representation committee or plan , in which employees participate and which exists for the purpose , In whole or in part, of dealing with employers concerning grievances, labor disputes , wages, rates of pay, hours of em- ployment, or conditions of work " JANSEN ELECTRONICS MANUFACTURING, INC. 1557 "worked together" on the initial election of employee representatives to the Council as they have on all subsequent elections. While there is no constitution or bylaws (as such) for the Council, Respondent has put out a pamphlet entitled: YOUR EMPLOYEE COUNCIL WHO WE ARE WHAT WE DO 2 In this pamphlet the Council 's purpose ,3 organization ,4 election ,5 and meetings 6 are explained. The pamphlet also states that "the Employee Council is your Council, and, therefore, must have your interest and participation to be successful and effective." Meetings of the Council have been held periodically. President Jansen originally acted as chairman but later on the chaumanship was rotated among the management officials. An offer to the nonsupervisory members of the Council to act as chairman was rejected by them. The Council has no treasury, no dues, nor any independent means of obtaining revenue. What expenses are incurred are borne by the Respondent.7 Council elec- tions and meetings are conducted on company time and premises and discussion between its members and employees is permitted on company time. The minutes of the Council meetings show that, among other things, the following subjects have been brought up and discussed: 1. Christmas bonuses 2. Switching work days before or after holidays 3. Holiday time off 4. Assignment of parking facilities 5. Plant lighting and condition 6. Rest or break periods 7. Unexcused absences or tardiness 8. Overtime and incentive program 9. Incentive and sick pay program 10. Condition of restrooms 11. Lunch room conditions 12. Lunch periods 13. Vending machines 14. Credit union 15. Pension plan 16. Vacation policy If any further evidence is needed to show that the Council existed "for the pur- pose, in whole or in part, of dealing with [Respondent] concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work" it certainly is supplied by the following letter with its enclosures written by Respondent to the employees on September 25, 1964: As you know, there has been a great deal of conversation among you con- cerning wages and other benefits. Your Employee Council representatives have done an outstanding job of reporting your requests to our management. 2 That this pamphlet was considered by Respondent to take the place of formal bylaws is apparent from the statement made by Dan Culhane (a supervisory member of the Council) in its October 6 meeting that he had asked that the "personnel department pre- pare a sheet to supplement The Employee Council By- laws" to show the new members "what they will be required to do." 8 Among other things it points out that the Council "was organized to provide everyone with an opportunity for full expression of ideas , suggestions , and problems " This shows that the Council is made up of elected nonsupervisory representatives, elected supervisory representatives , and appointed management representatives. 5 Here among other things yearly secret-ballot elections are provided for. 6 Regular monthly meetings and special meetings are provided for with minutes of the meetings to be circulated among the members of the Council and posted on the bulletin board 7 These have included the cost of producing the Council handbook or pamphlet, the typing of minutes, and the mailing of minutes on one occasion together with incentive program material. 1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I urge you and your families to read the rather lengthy attached set of ques- tions and answers. Both your thoughts as well as managements thoughts are spelled out clearly. Our delivery and quality records bear out my personal opinion of the excel- lent job you are doing. Very truly yours, Paul W. Jansen President Accompanying the above letter was, as Mr. Jansen explained in his letter. a "rather lengthy ... set of questions and answers" reflecting the work of the Council together with a table of contents describing the enclosed material as follows: TABLE OF CONTENTS I. Direct Compensation II. Indirect Compensation a. Overtime b. Pensions, Incentives, and Fringe Benefits c. Credit Union d. Sports and Social Events III. Reviews IV. Working Conditions and Work Rules V. General a. Unions b. Vending c. Employee Council d. President's Letter to Employees Another interesting reflection on Respondent's contention that The Employee Coun- cil is not a labor organization within the meaning of the Act is contained in the comments on page 10 under V of the attached material referred to in Jansen's letter: John O'Phelan 8 stated that The Employee Council serves the purpose of a union in that we sit down together and discuss and solve problems of employees. He pointed out that our Company was bearing the cost of the Council, but employees would have to pay a union for its services. The foregoing clearly shows that The Employee Council was a labor organization within the meaning of Section 2(5) of the Act and I so find. N.L.R.B. v. Cabot Car- bon Company, et al., 360 U.S 203 Here, as in Cabot Carbon case, even though the Council's "dealing with" Respondent shows no attempt to negotiate a formal contract and does not involve "the usual concept of collective bargaining," the subject matter of its proposals and requests (many of which were fulfilled or granted) covered "nearly the whole scope of the employment relationship ... commonly considered and dealt with in collective bargaining" and established that this was "dealing with" Respondent within the meaning of Section 2(5) of the Act. Even though it might be said (as contended by Respondent) that wages were a subject not considered within the purview of the Council, it is clear that it did exist for the purpose at least in part "of dealing with" Respondent concerning grievances: and this alone. as the Court points out in Cabot Carbon, would bring the Council "squarely within the statutory definition of `labor organizations.' " TH. THE UNFAIR LABOR PRACTICES Section 8(a)(1) Barbara Trudeau, a witness called by the General Counsel, testified about a meeting of her production line called by their supervisor, Charles Miller, Jr., as follows: Yes, we had had a meeting, it hadn't started out as a meeting for the Union, but we came to asking some questions. and he answered our questions that we asked. And he told us something, we asked about if a Union came in would our-could we get a wage increase, and he said that the Company was a young Company, and had been working in the red and was just coming out, and Mr. Jansen couldn't afford to give us maybe more than a 2-cent raise at the most at that time. And that wouldn't cover the dues which could go up to $10. And we asked if at the time would it have to be, if our quotas would have to be 8 A supervisory member of the Council. JANSEN ELECTRONICS MANUFACTURING, INC. 1559 increased, and he said to cover the wages it probably would. And the girls that wouldn't be able to keep up we wouldn't be able to keep. They would have to fire those. Jean Lindgren, another employee called by the General Counsel testified as to this same matter as follows: He answered some of the questions that the girls asked, and he said there would be nothing gained if they had a Union. That Mr. Jansen couldn't afford to make any more than a penny or two in their wages, because the Company was just coming out of the red. That the dues would be, could go as high as $10. That the work standards and quotas would be raised terrifically, and any of the girls that couldn't meet those would be fired. In his testimony Miller admitted talking to the girls on this occasion explaining that the meeting had been called to discuss problems connected with the work. He went on to testify that: Several questions were asked, and we took time to discuss them at that point ... we had had considerable information or the employees had received consider- able information from the Union indicating that the Union's viewpoint, the employees would be making more money. I pointed out that these comparisons were not valid, not accurate, and the Union had not bothered to mention the Company had operated in the red until the previous year in the Union's request for sharing of the wealth of Jansen with the employees . I did discuss several aspects of the relationship of the Union to the Company. As in all meetings we had , beginning discussion with the Union , I mentioned to them that, how I had to act under the terms of the National Labor Relations Act, and so I answered questions as they addressed them to me. Miller categorically denied making the statement that if the Union won the election work standards would be increased and that those who were unable to meet the standards would be discharged. About this matter Miller testified further that: The only possible thing I can think this may have been interpreted from is that the girls asked, for instance, that might have any relation between the Union and the Company, we discussed the Company. One of the causes for having this meeting would have been extending its work when it would have been more economical to keep our production up and stop working for several days. This is not in terms with Mr. Jansen's personal philosophy in keeping the paychecks intact and coming every week as much as possible. I did come out with the fact that across-the-board labor increases have to come from some place and that part of running the business efficiently is making costs equivalent to labor so that you can make a profit. Margaret Zinda, a witness called by Respondent, testified regarding the same matter as follows: We could have put out our normal workload by Wednesday night. The Com- pany had chosen to let us string it out on work until Friday so we got our full paychecks. I asked the question, and did not include Union in the question, I ask a question now if we had an overall increase in pay, would this mean that with the increase in pay that we would probably have to have a layoff if we could get our normal work order out a certain day. And he said this probably would be, but that also was up to management to decide. In her testimony Zinda also categorically denied that Miller made the coercive state- ment attributed to him. Rosemary Jastrow, another witness called by Respondent, was also definite in corroborating the denial Zinda had made. Considering the cir- cumstances of this meeting and that the putative statement is the kind that could have been misunderstood I am inclined to and do credit Respondent's denial here. Section 8(a)(2) Little if any evidence need be added to that of section II, above, to show that the Council was indeed the creature of Respondent and dominated by it as alleged by the General Counsel. The significant role played by Respondent in the establishment of the Council and in its day-to -day operations through the membership of its super- visory employees on the Council as revealed by the minutes of its meetings is ample ground upon which to hold, as I do, that Respondent dominated the Council in violation of Section 8(a)(2) of the Act. Seneca Plastics, Incorporated, 149 NLRB 320; Kugler 's Restau,ant, Inc., 151 NLRB 1566. While admittedly the assistance 1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given the Council by Respondent may not have been large in a monetary sense, this does not necessarily absolve Respondent from Section 8(a)(2) liability . See New Orleans Launderies , Inc, 114 NLRB 1077. In any event Respondent apparently did not think its contribution to the Council was entirely minimal as appears in the question and answer material regarding the activities of the Council which was sub- mitted by the employees with Jansen 's letter of September 25. There it was stated that: John O'Phelan stated that The Employee Council serves the purpose of a union in that we sit down together and discuss and solve problems of employ- ees. He pointed out that our Company was bearing the cost of the Council, but employees would have to pay a union for its services. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth above, occurring in connection with the operations of the Respondent described in section I, have a close , intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and ( 2) of the Act , I will recommend that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent interfered with the administration of, assisted, con- tributed support to, and dominated The Employee Council , I shall recommend that Respondent be required to cease and desist from such conduct or any like or related conduct and to withhold recognition from and to disestablish said Council. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Jansen Electronics Manufacturing , Inc., is an employer within the meaning of Section 2 ( 2) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO and The Employee Council at all times material have been labor organizations within the meaning of Section 2(5) of the Act. 3. By assisting , dominating , contributing support to, and interfering with the administration of The Employee Council , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and ( 2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I recommend that the Respondent , Jansen Elec- tronics Manufacturing , Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Assisting , dominating , contributing support to, and interfering with the admin- istration of The Employee Council or any other labor organization of its employees. (b) In any like or related manner interfering with, restraining , or coercing employ- ees in the exercise of their right to self-organization , to form labor organizations, to join or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. 2 Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Withdraw and withhold all recognition from The Employee Council as the exclusive representative of its employees for the purpose of dealing with the Respondent concerning grievances , wages , hours, or other conditions of work, and completely disestablish said organization of its employees. UNITED STEELWORKERS OF AMERICA, LOCAL 2118 1561 (b) Post at its plant in St. Paul, Minnesota, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 18, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps Respondent has taken to comply herewith.lo 0If this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order". 10 If this Recommended Order Is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 18, in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL permanently withdraw and withhold all recognition from The Employee Council, or any successor thereto, and completely disestablish it as the bargaining representative of our employees. WE WILL NOT interfere with the administration of or dominate any labor organization of our employees nor will we illegally assist or contribute support to one. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. JANSEN ELECTRONICS MANUFACTURING, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611. United Steelworkers of America , AFL-CIO, and Its Local 2118 and Worcester Stamped Metal Company. Case No. 1-CB-949. July 23, 1965 DECISION AND ORDER On May 14, 1965, Trial Examiner Sydney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respond- 153 NLRB No. 142.