Miller Industries, Inc.

National Labor Relations Board - Board Decisions

May 25, 1965

152 N.L.R.B. 810 (N.L.R.B. 1965)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"he was talking to one of his men and therefore his man was not working." This
is some indication that work interference was a matter of concern to D & F at
that time. The admitted conduct of Poist and Powers took place shortly after this,
involved the same job, and was of a similar although even more extreme nature. It
is therefore not unreasonable to assume that D & F might have reacted to it in a
similar manner, and that this reaction rather than retaliation for the inquiry as such
could have been the motivating factor in the removal of Poist and Powers. While
the matter is not altogether free from doubt, considering the entire background and
the relationship of the parties, I am of the opinion that the considerations are too
evenly balanced to warrant a finding that Respondent was unlawfully motivated in
the terminations of Poist and Powers. I find, therefore, that the General Counsel
has not sustained the burden of establishing such unlawful motivation by a prepond-
erance of the evidence. Since D & F was the moving party with respect to the
terminations of Poist and Powers, and since I have found that it was not unlawfully
motivated, it follows that none of the Respondents has engaged in a violation of
Section 8 (a) (1) and (3) of the Act with regard to these employees.
Having found that the record does not establish that any of the employees named
in the complaint were terminated for engaging in protected concerted activities or for
other discriminatory reasons, I shall hereinafter recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sandpiper Builders, Trenton Dunphy and John Fincher, d/b/a Dunphy &
Fincher, and Ernest C. Silkwood, d/b/a Cathedral City Electric, are each employers
in the building and construction industry engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local No. 440, International Brotherhood of Electrical Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act
3. Respondents Sandpiper, D & F, and Cathedral have not engaged in unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is hereby recommended that the complaint be dis-
missed in its entirety.
Miller Industries, Incorporated and District 50, United Mine
Workers of America. Case No. 7-CA-4688. May 25, 1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. The Trial
Examiner further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mended that the complaint be dismissed with respect to the latter alle-
gations . The Respondent filed exceptions to the Trial Examiner's
Decision insofar as Respondent was found to have violated the Na-
tional Labor Relations Act, as amended, and filed a brief in support
thereof. No exceptions were filed by the General Counsel.
152 NLRB No. 94.
MILLER INDUSTRIES, INCORPORATED 811
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, and the brief,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
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 the Respondent, Miller Industries, Incorporated, Reed City,
Michigan, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.3
I The Respondent ' s request for oral argument Is hereby denied because the record, the
exceptions , and the brief adequately present the issues and the positions of the parties
In the absence of exceptions , we adopt pi o forma the Trial Examiner 's dismissal of
certain allegations of the complaint
s The telephone number for Region 7, as given below the signature line at the bottom of
the Appendix , is amended to read. Telephone No. 226-3244.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 24, 1964, by District 50, United Mine Workers of
America, herein referred to as the Union , the Regional Director for Region 7 of the
National Labor Relations Board, herein called the Board , issued a complaint on
June 24, 1964 , on behalf of the General Counsel of the Board against Miller Indus-
tries, Incorporated , herein referred to as the Respondent or the Company , alleging
violations of Section 8(a)(1) of the National Labor Relations Act, as amended
(29 U.S .C. sec. 151 et seq.), herein called the Act . In its duly filed answer to the
aforesaid complaint, Respondent , while admitting certain of the allegations thereof,
denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Morton D. Friedman
in Reed City , Michigan , on August 18, 1964. All parties were represented and
afforded full opportunity to be heard, to introduce relevant evidence , to present oral
argument , and to file briefs . Oral argument was waived . Briefs were filed by
counsel for the General Counsel and by the Respondent.
Upon consideration of the entire record in this case , including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testifying
before me , I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
Miller Industries , Incorporated , a Michigan corporation , is engaged at Reed City,
Michigan , in the manufacture , sale, and distribution of aluminum doors and related
products . During the year ending December 31, 1963, a representative period,
Miller Industries purchased and caused to be delivered directly to its plant at Reed
City, Michigan , from suppliers located outside the State, aluminum and other goods
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a value in excess of $ 50,000. During the same period , Miller Industries manu-
factured and directly shipped to points outside the State aluminum doors and finished
products of a value in excess of $ 50,000.
Miller Industries employs approximately 200 employees . Its president and active
manager is James T. Miller, who is also a member of the board of directors and the
corporation 's majority stockholder . The secretary of Miller Industries is Miller's
wife, Gertrude , and their two sons are the other officers.
Germay, Inc., herein called Germay , also operates a plant in Reed City , Michigan,
where it is engaged in the manufacture of hydraulic door closers , its sole product
and source of income . All of this product is sold to Miller Industries which thus
represents Germay's sole source of revenue. The Germay plant , which has approx-
imately 14 employees , is located approximately 11/2 miles from the plant of Miller
Industries . There is no interchange of employees between the two plants.
However, the Germay plant was purchased in 1962 by J. T . Miller Corporation,
a real estate company, of which James T. Miller is also the majority stockholder.
Thereafter , Germay was incorporated and all its stock was, and still is, held by the
J. T. Miller Corporation . Miller is the president and manager of Germay as well
as Miller Industries . In addition , his wife is secretary of Germay and signs all checks
of both Miller Industries and Germay at her home , including the payroll checks for
each corporation.
In his testimony , Miller admitted that he controls and is responsible for the labor
relations policy of both corporations as well as generally managing and running the
affairs of both. He visits Germay each day in addition to his duties at Miller Indus-
tries. Although , as heretofore related, there is no interchange of employees, Jack
Sims, a former employee of Germay , testified without contradiction that, although
he made out his application for employment at Miller Industries , he was assigned
to work and always worked at the Germay plant. In addition to all of the fore-
going, when employees are hired at either Germay or Miller Industries , they are
each given a booklet entitled "Your Job and Miller Industries " Perusal of this
booklet reveals that employees of both Miller Industries and Germay are governed
by identical terms and conditions of employment.
From all of the foregoing , I conclude that Miller Industries and Germany are closely
held, interrelated corporations , actively controlled and owned by James T. Miller and
his family . Moreover , I conclude that the same labor relations policies, working
conditions , and terms and conditions of employment prevail in each plant Although
hiring is generally done by the plant superintendents of each plant for his plant, it
is clear that , at least upon occasion , an employee hired at one plant may work at
the other . These factors , together with the fact that Germany 's total production is
used in the manufacture and fabrication of Miller Industries products , although
Miller Industries is billed by Germay and pays for the same, leads me to conclude
that there is sufficient relationship between the two corporations to find that they
constitute a single employer under Board precedent.)
Accordingly , I find that Miller and Germay constitute a single employer for pur-
poses of the Act, and that together they constitute an employer engaged in com-
merce. I further find that it will effectuate the purposes of the Act to assert jurisdic-
tion herein?
II. THE LABOR ORGANIZATION INVOLVED
I find and conclude that District 50, United Mine Workers of America , herein
called the Union , is and has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
Whether the Respondent, through its president , James T. Miller
a. Coercively interrogated employees concerning their union membership , activ-
ities, and desires.
P.B. d S . Chemical Company, Hat-Re Chemical Company, and Preston Chemical
Company, 14S NLRB '152 Clodomiro Icolino doing baseness nndei the Made name aiad
style of Ravena Sportsitcar, 142 NLRB 1299, Esgro Inc. and Esgro Valley, Inc, 1.85
NLRB 285.
2 Although no charge was filed against Germay , Section 10 (a) of the Act does not
preclude a determination that the allegations of the complaint are applicable to both
Miller Industries, against which a timely charge was filed , and Miller Industries acting
through Germay , inasmuch as they are a single employer within the meaning of the
Act See Esgro Inc ., supra, at 286.
MILLER INDUSTRIES, INCORPORATED 813
b. Made implied promises of benefits to employees if they would refrain from
activities on behalf of the Union.
c. Threatened its employees with more onerous working conditions if they
assisted or became members of the Union.
A subordinate issue is whether Lambert Sims, a hand buffer, was a foreman and
supervisor within the meaning of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The events
Around the first part of April 1964 the Union began an organizing campaign of
the employees of Miller Industries and Germay. The organizational activity began
with handbilling outside the Germay plant. Thereafter, after organization had been
completed to some extent, letters were sent to the employees of both Miller Indus-
tries and Germay. These letters contained the names of the organizing committee
of employees. On that committee, among others, were Jack Sims, Lambert Sims,
who is Jack Sims' father, John Pacolla, and John Kingsbury.
In the latter part of April or the beginning of May, at the request of certain
employees of Germay, James T. Miller held a meeting with the employees in the
office of Robert Lackney, office manager of Germay. According to Miller, this
meeting was actually a question and answer session. Jack Sims, as noted above a
member of the union organizing committee, who is no longer working for any
Miller enterprise, testified that during that meeting Miller told him that Miller knew
where the union meetings were being held and who attended them. According to
Sims, Miller also told Sims that the latter was ungrateful and was stabbing him in
the back by trying to get the Union into the shop. Also, according to both Jack
Sims and John Kingsbury, another employee member of the organizing committee,
Miller told the assembled employees that if the men wanted a union shop he would
run the plant like a union shop. However, both Sims and Kingsbury admitted on
cross-examination that Miller never actually questioned them about the union meet-
ings nor, aside from a remark about running the plant like the union shop, did he
make any threat or promise of benefit at that meeting.3
Both Sims and Kingsbury admitted, moreover, that Miller told the employees that
they were perfectly free to make their choice, that he did not in any manner try
to persuade the employees one way or the other
Miller did not specifically deny that he said he would run the plant like a union
shop but he did deny that he interrogated, threatened, or coerced the men at this
meeting He admitted that he might have told the assembled employees that he
knew that meetings were being held at Jack Sims' home. But he emphatically denied
that he had any personal conversation with Jack Sims, as related by the latter, with
regard to Sims being ungrateful
I was very much impressed by the directness of Miller and his ready admission that
he might have told employees that he knew of meetings at Jack Sims' home On the
other hand, I do not, from my observation of him, find that Jack Sims was a com-
pletely reliable witness I have heretofore stated my assessment of Kingsbury as a
witness. Accordingly, I credit Sims' testimony and Kingsbury's testimony with re-
gard to the events above related only where they corroborated one another or where
the testimony was admitted or undenied by Miller. I conclude, therefore, that Miller
did tell the employees that he knew where the meetings were being held and that if
they wanted the Union in the plant he would run the plant like a union shop How-
ever, I do not credit or accept Sims unsupported and denied testimony that Miller
told him that he, Sims, was ungrateful and was stabbing him in the back.
About the middle of April 1964 Miller had a conversation with Kingsbury at the
loading dock of the Germay plant. According to Kingsbury, Miller told him that
he had heard that Kingsbury was "a member of the organizing committee or the head
of the union agitators or leaders."
Kingsbury also testified that when Miller told the men at that meeting that he would
run the shop like a union shop he also said "You will not go from one machine to another,
when you're done with a specific job, then that's the end of your job " Piom niy observa-
tion of him and for the following reason I do not credit Kingsbury in this respect and
consider this testimony mere embellishment Kingsbury was suspended a short time
.after the events herein related for removing a notice placed on the plant bulletin board
'by the Respondent . Kingsbury did not go back to work for Germay when the sus-
-pension period ended but took employment elsewhere . I find that he was disgruntled
.and that his feeling about the suspension affected his testimony.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kingsbury , according to the latter, admitted to Miller that he was such leader.
Then Miller , according to Kingsbury , told the latter that he liked him because he said
what was on his mind. Miller told Kingsbury that he was going to call a meeting and
to find out if the rumors he heard were true to the effect that the men were trying to
get the Union in because of the shop superintendent , Benny Boonsma.4 According
to Kingsbury , several days later, also at the loading dock of Germay, Miller told
Kingsbury that he heard about the meeting the employees had at Jack Sims ' home on
the past Monday. Kingsbury answered that this was "fine."
Miller did not deny that he had had a conversation with Kingsbury . He recalled
only one conversation with Kingsbury , however, and that was after Benny Boonsma
had left Germay's employ . He stated that he asked Kingsbury how things were
going, to which Kingsbury answered "fine." Then Miller told Kingsbury that the
latter was quite a pusher for the Union to which Kingsbury answered to the effect
that he would not lie and that he had been such a pusher but now that Boonsma was
gone there would be no more of it.
Because I have heretofore found that Miller told the employees at the meeting in
Lackney's office that he had heard that the employees had meetings at Jack Sims'
home, I find that he told Kingsbury that he heard about the meeting the employees
had at Jack Sims ' home on the Monday night that preceded their conversation.
Because of Miller's admission that he had told Kingsbury that the latter was quite a
pusher for the Union , I find that he also told Kingsbury that he had heard that the
latter was a member of the organizing committee . However , because Kingsbury him-
self could not state exactly what it was that Miller had told him, I do not find that
Miller told Kingsbury that the latter was the head of the union agitators or leaders. I
also find that Miller did tell Kingsbury that he was going to find out about the truth
of the rumors that the men were trying to get the Union into the plant because of the
actions of Benny Boonsma.
John Pacolla testified that he was also a member of the organizing committee and
that he had worked in the shipping department of Miller Industries for 11 years prior
to the hearing. He further testified that, in the latter part of May 1964 , he protested
the placement of a clerk in the shipping department who did not have seniority of
others who were eligible , including Pacolla himself . According to Pacolla, at that
time Miller told Pacolla that he, Miller, would run the factory the way he saw fit and
that he knew Pacolla was stabbing him in the back. Pacolla admitted on cross-
examination that Miller did not mention the Union in his discussion with him nor
did Miller in any way question him about the Union or his union activities.
Miller denied that there was any other conversation between Pacolla and himself
regarding the protest of the assignment of the clerk to the shipping department , except
that Pacolla was merely told to behave himself.
As heretofore set forth , I was very impressed with the forthrightness of Miller
and his ability to recollect the events that occurred . Again, as in the case of Kings-
bury, from my observation of him I think that Pacolla exaggerated the situation and
embellished his testimony with the statement to the effect that Miller said that he,
Pacolla, was stabbing Miller in the back. Accordingly , I accept Miller 's version of
this conversation and find that he merely told Pacolla to behave himself when Pacolla
made the protest . Moreover , Miller's testimony is supported by the testimony of
Superintendent Sweet who was present at the conversation with Pacolla. Sweet
denied that Miller said anything to Pacolla about the Union . According to Sweet,
Pacolla was merely told to behave himself. I find upon observation of his demeanor
that Sweet was a reliable witness.
Lambert Sims, the father of Jack Sims , has been employed as a buffer at the Miller
Industries plant hand buffing department for about 16 years. There are two other
employees in the department each of whom have been employed as hand buffers for
a period of about 5 years. Sims receives $2.70 per hour , whereas the other two
employees receive $2 . 55 per hour. According to Sims, he was a foreman of the hand
buffing department until about 7 or 8 years before the time of the events herein at
which time Jack Johnson was made general foreman of the stockroom and buffing
departments . Approximately 25 people are employed in both departments. Sims
testified that work is normally brought into the hand buffing department and the
individuals in the department polish the metal parts without specific directions.
According to Sims, he does not in any way direct the work of the other two employ-
ees in the department . When there is a special job or rush work to be done , Johnson
brings it to Sims who does it after receiving instructions from Johnson regarding the
time in which the work is to be performed . Sims stated that he did - not know if
4 Although there was no testimony to the effect , it is evident that the men in the shop
were not getting along very well with Boonsma
MILLER INDUSTRIES, INCORPORATED 815
special work was also given to the other two hand buffers. Sims punches the time-
clock as do all employees. However, Sims' impression was that Johnson, his immedi-
ate superior, is salaried unlike Sims, who is hourly paid.
Sims further testified that at a meeting held in Superintendent Sweet's office in the
first part of May 1964, either Sweet or Block, the assistant superintendent, asked Sims
whether he would accept the foremanship of the hand buffing department. Accord-
ing to Sims, he answered that he had been removed as foreman some 7 or 8 years
before. Sweet stated that he would have to reduce Sims' wages if he would not be
the foreman because Sweet had to have a foreman in the hand buffing department.
Sims told Sweet that the latter could not reduce his wages, thereupon Sims went out
to obtain a witness, bringing back employee Luther Lumberg, a member of the orga-
nizing committee. When Sims returned with Lumberg, Sweet brought Miller into the
office, Miller told Sims he could cut Sims' wages or could do anything else to him
that he wanted to. According to Sims, Miller said that Sims was the foreman of the
buffing department. Then, Sims testified, he asked Miller whether Luther Lumberg
was a foreman and Miller answered that Lumberg had been a foreman for about 5
years. Lumberg stated that this was the first time he had heard about it, that he had
not received any money for it.
On or about May 13, 1964, Sims was called to Miller's office and Miller's attorney
told Sims that the latter was going to be suspended for 2 weeks for not acting like a
foreman. According to Sims, he asked how he could act like a foreman when he was
not a foreman and Miller answered that Sims had always been a foreman. According
to Sims, he tried to explain to Miller that Miller told him that when Johnson took
over the department the only right Sims would have would be that Johnson would
not tell him how to buff. Sims thereafter was suspended for a period of 2 weeks and
while he was on suspension he wrote a letter to the Company to the effect that he was
a foreman.
Sims returned from suspension on June 2, and was interviewed by Miller in Sweet's
office, Present also were Block, Sweet, and Miller's attorney. Sims testified that
Miller told him that he, Miller, had a notion to fire Sims but felt sorry for him. A
discussion followed in which Sweet stated that they wanted to know if Sims were
going to accept the foremanship of the hand buffers. Miller stated that Sims knew
that he had always been the foreman of the hand buffing department.
In his testimony, Miller insisted that Lambert Sims was foreman of the buffing
department and had been such since coming to work at Miller Industries. He further-
more denied that at the meeting which Sweet and Block attended he did anything
but reprimand Sims for not acting as a foreman should.
Sweet testified that Sims had been foreman over the hand buffers for the 11 years
that Sweet had been there. Although Sweet testified that Sims had made both
personnel and material recommendations, he could not upon cross-examination state
specifically what recommendations Sims had made other than to say that some years
before Sims had insisted that another employee was bothering Sims and that Sims did
not like him and that ultimately Sweet discharged the other employee. For the same
reason a second employee was moved out of the buffing department sometime later.
The incidents regarding these two men occurred perhaps 3 or 4 years before the
hearing.
The record is singularly devoid of any testimony that Sims responsibly directs any
of the individuals in the buffing department. Nor is there any testimony to the effect
that he can effectively recommend hiring, discharge, or reprimand, or any other
personnel action. While there was some uncontroverted testimony by Sweet to the
effect that Sims could recommend certain equipment, this would probably be true
of any old employee who was experienced in the job. Nor is the fact that Sims is paid
15 cents more per hour than other hand buffers determinative. This is so because
Sims is an employee of 16 years' seniority and is without doubt the most experienced
hand in the department. Additionally, Sims had at one time been the foreman of the
department. Moreover, even though Sims may have some years before insisted upon
the removal of certain employees whom he did not like, Sweet's testimony indicated
that the removal of these men was accomplished to placate Sims, a valued employee,
rather than as the result of a recommendation of an individual acting in a supervisory
capacity.
Thus, although it may be that the Respondent insisted that Sims was the foreman of
a department, in fact, Sims possessed none of the indicia of authority which is
generally considered to be indicative of supervisory status. I therefore find that
Lambert Sims is not a supervisor and is an employee within the meaning of the Act.
Lambert Sims testified that he participated in the union organization drive and,
as noted above, he was a member of the organizing committee. He had meetings of
the organizing committee held at his home where he lived with his son, Jack Sims. In
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter part of April, Miller came to Sims' department and asked how the latter was
feeling. (Sims had been out ill for a period of approximately 3 weeks.) After Sims
told him that he was feeling well Miller said, according to Sims, "Your henchman was
back again."
According to Sims, the latter thought that Miller meant the union organizer. How-
ever, Sims did not answer and Miller stated that they did not need a union, that the
employees could always come to him and talk over whatever situation was troubling
them.
Sims further testified that in June, at the time he returned from suspension, Miller
asked him if he had "signed the cards up." Sims answered that he never signed a card
on Miller's property. Then Miller again said that Sims had "signed cards up," to
which Sims gave him no answer.
Miller testified that at the meetings where Sweet and Block were in attendance, he
did not ask Sims anything about the Union but merely reprimanded Sims for not
acting as a foreman should. Sweet also denied that Miller said anything to Lambert
Sims on the latter's return from suspension about Sims signing up union members
I have heretofore found that Miller was a reliable witness. Although Sims testified
in a very direct manner in other respects, it required a leading question from counsel
for the General Counsel to prod him into testifying that Miller had asked him whether
he had distributed union cards. For this reason, and from my observation of Sims, I
do not credit him in this respect.5 Moreover, I note that Sweet's testimony supported
Miller
Accordingly, I do not find that Miller asked Sims if the latter had participated in
obtaining signatures on union cards. However, because Miller did not deny the
incident directly and because it was consistent with Miller's other actions, I find that
Miller did tell Sims "your henchman was back again" and that Miller did tell Lambert
Sims that they did not need a union and that the employees could always come to him
and talk over their difficulties.
B. Findings and Conclusions
I have heretofore found that at the question-and-answer session at Lackney's office
at the Germay plant in late April or early May 1964, Miller told the assembled
employees that he knew about their meetings and where they were held. His refer-
ence to the Union indicated that he referred to the union organizing meetings. I find
that by this statement Miller conveyed the impression of surveillance of his employees'
union activities and that this conduct, therefore, constitutes interference, coercion,
and restraint within the meaning of Section 8(a)(1) of the Act.6 For like reason I
find that Miller's statement to Kingsbury that Kingsbury was a member of the
organizing committee, and Miller's statement to Kingsbury that he heard about the
meeting at Jack Sims' house constituted violations of Section 8(a)(1) of the Act
I also conclude for similar reason that Miller's statement to Lambert Sims that
"your henchman was back again" coming as it did in connection with Miller's state-
ment that they did not need the Union, created the impression of surveillance and
as such had a coercive thrust which rendered it violative of Section 8(a)(1) of the
Act.
However, I do not find violative Miller's statement to the employees that if the men
wanted a union it was all right with him but he would run the plant like a union shop.
A finding that such statement was a threat would imply that conditions generally in
a unionized plant would be inferior to conditions in a nonunionized plant. I cannot,
and I am certain that the Board is not prepared to, make such a finding. Moreover, a
careful search of the record fails to reveal any other conversations, speeches, or state-
ments made by Miller other than the foregoing which could be advanced as a basis
for a finding that threats of more onerous working conditions were made.?
Nor is there any credited testimony to support a finding of coercive interrogation
or promise of benefit. Accordingly, I shall recommend dismissal of the paragraphs
of the complaint alleging such violations.
i After Sims testified that after April he was never again asked about the Union, he
was asked whether anyone ever said anything to him about distributing union cards.
Thereupon Sims changed his testimony and stated that in June , when Sims returned
from layoff status, Miller asked him if he had "signed the cards up " Such incon-
sistencies in testimony lend doubt as to the reliability of the witness.
8 U S Rubber Company, 147 NLRB 619.
c The General Counsel's brief was confined to the "single employer" issue heretofore
discussed, and, therefore , I have no indication as to what his contentions are regarding
possible unfair labor practices beside the very generally drawn complaint . Counsel for
the General Counsel also waived oral argument.
MILLER INDUSTRIES , INCORPORATED
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
817
The activities of the Respondent set forth in section IV, occurring in connection
with the operation of 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.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it is
recommended that it cease and desist therefrom and take certain affirmative action as
provided in the Recommended Order set forth below which is found necessary to
remedy the unfair labor practices and to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1) of the Act by creating the
impression of surveillance of its employees ' union activities , it is recommended that
the Respondent shall cease and desist therefrom . It is further recommended that the
Respondent shall post a notice to its employees stating that it will cease and desist
therefrom.
Upon the foregoing findings and conclusions and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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. Respondent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affecting commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
5. The Respondent did not engage in coercively interrogating its employees con-
cerning union membership , activities , and desires ; making implied promises of
benefit if the employees cease their activities on behalf of the Union ; or threatening
its employees with more onerous working conditions if they insisted on becoming,
or became , members of the Union or engaged in protected or concerted activities on
behalf of it.
RECOMMENDED ORDER
Upon the basis of the entire findings and conclusions and upon the entire record
in this case , pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Respondent , Miller Industries , Inc., its officers,
agents, successors , and assigns shall:
1. Cease and desist from:
(a) Conveying the impression of surveillance of union activities by statements to
employees in a manner constituting interference , coercion , and restraint in violation
of Section 8 (a) (1) of the Act.
(b) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of the
Act.
(a) Post at its plant in Reed City , Michigan , copies of the attached notice marked
"Appendix ." 8 Copies of said notice , to be furnished by the Regional Director for
Region 7, shall , after being signed by a managing representative of Respondent, be
posted by the Respondent and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered , defaced , or covered by any other material.
'In the event that this Recommended Order be 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 . In the further event that the Board ' s Order be en-
forced by a decree of a United States Court of Appeals , the words , "a Decree of the
United States Court of Appeals , Enforcing an Order " shall be substituted for the words
"a Decision and Order."
7S9-730----6G-vol. 15 2-5 3
818 DECISIONS OF NATIONAL LABOR RELATIONS $OARD
(b) Notify the Regional Director for Region 7, in writing , within 20 days from
the receipt of this Recommended Order , what steps the Respondent has taken to
comply herewith .9
It is further ordered that subparagraphs 9 (a) (1) and ( 3) of the complaint herein
be, and they hereby are , dismissed.
11 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 7, in writing, within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT convey the impression of surveillance of union activities by
statements to employees.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
any of our employees in the exercise of their rights to self-organization , to form,
join , or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any and all such activity.
All our employees are free to become, remain , or refrain from becoming or remain-
ing, members of District 50, United Mine Workers of America or any other labor
organization.
MILLER INDUSTRIES , INCORPORATED,
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.
Employees may communicate directly with the Board 's Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No. 226-3210,
if they have any question concerning this notice or compliance with its provisions.
Joseph Antell , Inc. and Retail Shoe Council of New England,
New England Joint Board , Retail Wholesale Department
Store Union , AFL-CIO. Case No. 1-CA-4685. May 25, 1965
DECISION AND ORDER
On March '23,1965, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof. The General Counsel filed
a brief in support of the Trial Examiner's Decision.
152 NLRB No. 95.