Modern Plastics Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1126 (N.L.R.B. 1965)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
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 protection, or to refrain from any or all such activities, except to the extent that.
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the-
Act:
(a) Forthwith sign the said agreement.
(b) Post at its place of business in Sioux Falls, South Dakota, copies of the attached.
notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional
Director for Region 18, shall, after being duly signed by Respondent, be posted by
Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered with any material.
(c) Notify the Regional Director for Region 18, in writing, within 10 days from the-
receipt of this Order, of the steps taken to comply herewith.2
'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 enforced'
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."
2 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, 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 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 forthwith sign the agreement dated October 8, 1964, negotiated by
our representative in collective bargaining, the Sioux Falls Association of Plumb-
ing Contractors with the Plumbers and Steamfitters Local Union No. 587, affili-
ated with United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO.
SHAMROCK SYSTEMS, 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 pro-
visions, they may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis , Minnesota , Telephone No. 334-2611.
Modern Plastics Corporation and District 39 of the International'
Association of Machinists, AFL-CIO and Employees ' Commit-
tee of Modern Plastics Corporation , Party in Interest. Case
No. 7-CA-4789, November 23,196'5
DECISION AND ORDER
On June 15, 1965, Trial. Examiner Thomas F. Maher issued his.
Decision in the above-entitled proceeding, finding that the Respondent.
155 NLRB No. 112.
-I4IODF.RN PLASTICS=-CORPORATION 1127
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 Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices :alleged in the com-'
plaint, and recolrmmended that these allegations be dismissed. There-
-after, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief ; the General Counsel filed a
cross-exception, and the Respondent filed a brief in answer. to the
General Counsel's cross exception.-
Pursuant to the provisions of Section 3 (b) of. the National Labor
Relations Act, as amended, the.National Labor Relations Board has
,delegatedits-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 Decision,
the exceptions, the cross-exceptions, briefs, and - the entire" record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.2
We agree with the Trial Examiner that the Respondent aided and
supported the Employees' Committee and interfered with and dom-
inated the Committee in violation of Section 8(a) (2) and (1) of the
Act. Like the Trial Examiner, we particularly rely on-that record
evidence showing that Respondent- supplied the Committee with all
types of clerical and secretarial services, provided a plant conference
room for meetings, paid the committee members their regular wages
while attending committee_meetings, and paid for dinner and drinks
to the committee representatives prior to the evening meetings. In
addition, members of management were present and participated in
all committee meetings except those few during which bargaining
proposals were consolidated; Personnel Manager Fletcher suggested
procedures for committee operation during the -transfer of authority
from one committee chairman to .another, urged on one occasion the
holding of a special election by the Committee, and, during the com-
mittee election of February 1964, selected-employee Abel to act as
election chairman and instructed her on her-duties; and Fletcher also
1 The Respondent 's motion to strike the General _ cross-exception as being un-
timely filed is denied . Contrary to Respondent 'contention, the provisions of Section
I02.114(a) of the Board 's Rules and Regulations , Series 8, as amended, are clearly
applicable to Section 102.46(e) .
2In the absence of exceptions , we adopt pro forma the Trial Examiner's dismissal or
that part of the complaint alleging that the execution and negotiation of the June 1964
contract with the Employees ' Committee constituted a separate violation of Section
8(a) (2) of the Act. Similarly , we adopt, pro form-n, the Trial Examiner 's findings and
conclusion that Respondent 's granting a wage increase in June 1964 did not constitute a
violation of Section 8 (a) (1) of the Act.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused the request. of Committee Chairman Byrd for a meeting of all
Respondent's employees. We further note that the committee elec-
tion procedures, voting eligibility of employees, and the form of'
employee, representation 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 ter
Respondent .3 Finally, unlike the Trial Examiner, we also rely on
that evidence showing that the Respondent can effectively control both
the election and retention of committee representatives, by its author-
ity to promote, discharge, transfer. and lay off committee members.'
On the basis of the foregoing, and for those additional reasons
set forth by the Trial Examiner, we find that the Respondent has
provided assistance and support to the Employees' Committee, and
has interfered with and dominated the administration of the Employ-
ees' Committee in violation of Section 8(a) (2) and (1) of the Act.
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 , as modified
herein, and orders that the Respondent , Modern Plastics Corporation,
Benton Harbor, -Michigan , its officers , agents, successors , and assigns,
shall take the action set. forth in the Trial Examiner's Recommended
Order, as so modified.
The third indented paragraph of the Appendix is stricken and the
following sentence is added to the second indented paragraph of the
Appendix :
We are not required to vary or abandon any wage, hour , seniority,
or other substantive benefit now accorded our employees , or prej-
udice the assertion by our employees of any rights they may now
have.
3The contract provisions constitute but one factor of the relationship between the
Respondent and the Committee which has lead us to conclude that Respondent was in
violation of Section 8(a) (2) and (1) of the Act. We find it unnecessary to decide that
these provisions in the collective-bargaining agreement constituted a separate and inde-
pendent violation of the Act.
s In the context of this case, where we have found numerous other elements of inter-
ference and domination, the authority enabling the Respondent to control effectively the
composition of the employees' representation comprises another element establishing Re-
spondent's domination over the Employees' Committee. The Caipentc-r Sieel Company, 76
NLRB 670, 677, 680; 1ladix asphalt Roofing Corp., 85 NLRB 26, 32; Sharples Cheynicals,
Inc., 100 NLRB 20, 23, affd. 209 F. 2d 645 (C.A. 6) ; Harry IF. Koehler. et ai ., d/b/a Koeh-
ler's Wholesale Restaurant Supply, 139 E"LRB 945, 953, enfd. in pertinent part 328 F. 2d
777 (C.A. 7) Ferguson-Lander Box Co., 151 NLRB 1615. In these circumstances, we do
not find it necessary to determine whether, in this case. Respondent's ability to control
effectively the composition of the Committee constitutes a separate and independent
violation of Section 8(a)(2) and (1) as contended by the General Counsel.
MODERN PLASTICS CORPORATION 1129
TRIAL EXAMINER'S DECISION
- , STATEMENT OF THE CASE I
.' Upon a charge filed on July 17, 1964, by District 39 of the International Associa-
tion of Machinists, AFL-CIO, Charging Party herein, the Regional Director for
Region 7 of the National Labor Relations Board, herein called the Board, issued a
complaint on behalf of the General Counsel of the Board on October 2, 1964,
against Modern Plastics Corporation, Respondent- herein; alleging violations of Sec-
tion 8(a) (1) and (2) 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 Respondent, while
admitting certain allegations of the complaint, denied the commission of any unfair
labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas IF. Maher
on November 23, 1964, at St. Joseph, -Michigan, where all parties were represented
by counsel, and afforded full opportunity to be heard, to present oral argument, and
to file briefs with me. Briefs were filed on January 18, 1965.1
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each witness appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF TIIE RESPONDENT
Modem Plastics Corporation, Respondent herein, is a Michigan corporation with,
its principal office at Benton Harbor, Michigan, where it maintains a-plant wherein
it is engaged in the manufacture, sale, and distribution of industrial and commercial
plastic products, and related products. In the course and conduct of its operations
Respondent annually manufactures, sells, and distributes at- its Benton Harbor plant
products valued in excess of $50,000, which are shipped from said plant directly to
points outside the State of Michigan. During the same annual period Respondent
receives at this plant directly from points outside the State of Michigan chemicals,.
raw materials, and other goods valued in excess of $50,000., Upoir-;the foregoing
stipulated facts I conclude and find Respondent to be an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
U. THE LABOR ORGANIZATIONS INVOLVED
It is stipulated among the parties and :I accordingly conclude and find that Dis-
trict 39 of the International Association of Machinists, AFL-CIO, and Employees'
Committee of Modern Plastics Corporation are labor organizations within the mean-
ing of Section 2(5)of the Act.
M. THE ISSUES
1. The nature of the Employees' Committee.
2. Whether Respondent's relationship with the Employees' Committee constituted
interference, support, and/or domination.
3. The inadmissibility of evidence relating to the historical aspects of the Employ-
ees' Committee and to the labor relations of other employers in the area.
IV. MEUNFAIR LABORPRACTICES
A. The Employees' Committee
The Employees' Committee of Modem Plastics Corporation has been in existence
since before 1949 as the representative of Respondent's approximately 380 employees,.
has engaged in negotiations with Respondent in their behalf during this period, and
on May 1, 1958, executed its most recent agreement with Respondent which con-
tinues in -force and effect to the present time, forming much of the evidentiary basis.
for findings relating to the nature of the Committee and its dealings with RespondentAE
1Pursuant to rulings made by me in the course of hearing whereby certain evidence was
excluded, I permitted counsel to submit written offers of proof with respect thereto and
such counteroffers as were deemed necessary in the premises. For reasons which will be
evidence hereafter (infra pp. 1134-1136) these offers of proof are hereby rejected and the-
counteroffers in response thereto are accordingly disregarded.
2 For reasons which will be discussed in fuller detail hereafter (infra, p. 1134) the find-
ings herein are -based substantially upon evidence of incidents occurring and facts in exist-
ence during the period beginning Sanuary 17, 1964; being the period of 6 months--
immediately preceding July 17, 1964, the date upon which the charge in its proceeding was-
filed. See Section 10(b) of the Act.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Officers of the Committee , including its--- -chairman , are selected by vote of the
,employees in a manner prescribed by the "contract-"Elections will be conducted
according to written procedures on file with- the Committee Chairman ." The "writ-
ten. procedures '.' _ referred to were prepared in January . 1956, a copy provided" the
'.Company for its files by Committee Chairman Adams , and having been produced
Tupon subpena was introduced into evidence by Respondent . It stated as follows:
ELECTIONS
I. -All employees with at least 90 days' service with Modern Plastics are eli-
gible to vote in the Employees' Committee elections.
II♦ Electionof the Chairman and Committee members will be held annually
in -February . Elections will be held at the plant during the hours and at-the
places shown on posted notices on the bulletin board.
III. In the 1956 election employees will have a chance to vote on the follow-
ing proposal : that Committee members shall serve two years as members.
PROCEDURE
The current Employees ' Committee will appoint a committee to -handle: the
'elections . Employees from each department will be represented on=this
committee.
-CHAIRMAN:
1. Primary election will be held for nomination of Employees ' Committee
,Chairman.
A. Each employee will vote for one person to serve as Chairman:., -
B. The two people receiving the most votes will be the nominees for
Committee Chairman.
IL These two names- will then be put on a ballot, and- each employee will be
-asked to vote for one of the two.
A. The one receiving the most; votes will be Chairman.
,DEPARTMENT MEMBERS:
The shop will be divided into-four groups as follows:
1. Employees of the Injection Department
2. Employees of the Compression Department
3. Employees of the Finishing Department
4. Employees of the Service Departments
'(This-group included members of the Shipping Room, Maintenance Depart-
-ment, 'Inspection Department, Tool Room, and any "other employees not
included in the above listing.)---
1. Each department will hold a primary election for a Committee member
,on the Employees' Committee.
A. Each employee will vote for one , employee from:his own group to
serve as Committee member.
B. The two people receiving the most votes will be"the nominees -for
Committee members.
II. These two names will then be put on a ballot,^and each employee will be
'asked to vote for one of the two. -
A. The employee receiving the most votes will be the Committeemem-
ber from that group.
Although not prescribed by the procedures petitions for employees running for
'.office. were circulated for signature, among the employees... A. notice outlining the
react preelection procedure was posted on the plant bulletin boards. The most recent
of such election notices was signed and posted by Committee Chairman Adams after
having been prepared by Miss Joyce Danneffel, of the Company's personnel depart-
'11, provided, among other ;t ings, that "Nominating petition forms are avail-
able at the personnel office"; and "should be returned to the personnel office or
to a committeeman who is not up for election."
In its brief Respondent designates her as the elerk-stenographer in the personnelde-
partment. Miss Danneffel -credibly testified that she is the only regular, employee in the
-department other than Personnel Manager Fletcher himself, that she handles all of his
-correspondence and that, in effect , she ,ishis personal secretary.
MODERN PLASTICS .CORPORATION 1131
Employees were selected by the election chairman to conduct the election; ballot
boxes, . actually shipping cartons, were obtained out of Respondent's supply stock;-
and the ballot forms, like other notices and forms, used by the Committee, were
prepared by Miss Danneffel of the personnel department 4 The employees cast their
votes in their respective departments during working hours.
The election officials involved in the election held in February 1964 included
employee Roy Feltner-, who was appointed election chairman by Committee Chair-
man Adams and thereafter, and immediately prier to the election, relinquished his-
assignment upon his pro:-notion to a supervisory position. Employee Geraldine Abel
was thereafter selected by Personnel Manager Wayne Fletcher o to complete the
the election proceedings, being instructed by Feltner to carry out the assignment in
the manner in which he had performed it in the past. Upon the close of the election
Abel supervised the tallying of the ballots and when *u is was completed the ballots.
were returned to the respective boxes and delivered, together with the tally, to the
personnel department, Abel testifying that she delivered the tally to Fletcher; and
Fletcher's secretary, Danneffel, testifying that she accepted the ballots for storing.
A notice of the results of this election, prepared, as were all other notices , by Miss
Danneffel, was signed and posted by the committee chairman.
Committee meetings are invariably conducted with representatives of management
present; the only exception to this procedure being five meetings held in the plant
lunchroom during June 1964 when wage demands were being formulated andcom-
pany proposals being considered. Personnel Manager Wayne Fletcher regularly
attended these meetings. In addition, other management representatives, including
Works Manager VanDe'vVarker, Engineer Snycer and a Mr. Ruth of the payroll
department, have been identified as. being in attendance. Employees not members.
of the Committee were also in frequent attendance upon invitation.
These meetings, not to be confused with the five held at the plant in June 1964
during the wage negotiations, supra, were held at a neighborhood establishment
known as Holly's Grill where dinner, supplied by Respondent, preceded the business-
session.6
In Mid-September the site of the meetings was changed at Personnel Manager-
Fletcher's suggestion but with the Committee's approval to the plant conference
room, and the meeting time reset to 3 p.m. Employees were paid their regular wages-
while attending these meetings.
- The meetings appear to have been conducted in usual form and included the read-
ing and correcting of minutes of previous -meetings, and the discussion of "com-
plaints" having to do with the job, rates and working conditions. Minutes were
taken by Fletcher, prepared by him in mimeog-. aph form, distributed to committee
members, and posted on the bulletin boardQ.7
At several committee meetings held in June 1964 to consider company wage pro--
posa'_s no management representatives were present, the committee members having.
met for the purpose of discussing among themselves the wage proposals offered the
Committee by-management. But except for these instances , management at all
times participated in the Committee's affairs.
Nor has it been shown that the Committee ever meets with the employees. On.
the contrary former Chairman Erwin testified that to his knowledge they never met
with them; former Chairman Byrd testified that on the one occasion when he sought
4It is not disputed in the record that Miss Danneffel's ofacial duties did not interfere
with occasional clerical favors to the employees in the nature of assisting them in the
preparation of personal letters, applications and forms of an official nature. It is Miss-
Danneffel 's testimony and Respondent's position that the typing, filing, and storage
services provided by her to the Committee and its members was in the same category.
5 ,Employee Feltner testified that he told Miss Abel to take over the jcb. 'Miss Abel, on
the other hand, testified that to the best of her knowledge it was Fletcher who instructed
her to do so . Fletcher provided a third explanation. Being unwilling to contradict Miss
Abel he stated, "I may have passed a message on 'nom Roy Feltner, but I have no recol-
lection of this being the case." Out of these equivocations I accept Abel's account as the
more credible. With respect to a later election, in May 1964, Abel testified without con-
tradiction that she was assigned to her election duties by the incumbent election chairman,-
employee Kramer.
6 Liquid refreshments were also available under the same auspices prior to dinner but at-
the nearby Vincent Hotel.
T The foregoing account of the meetings is the credited testimony of former Committee
Chairmen Gerald Erwin and Welton Byrd and former Committeeman V. Clark Hill. Noth-
ing in Fletcher 's testimony suggests facts to the contrary.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have such ,a meeting, shortly after his election in February 1964, Personnel Man-
ager Fletcher rejected the idea, stating that such a meeting "wouldn't get any satis-
-faction because it had been tried by management before," and that it interfered with
the employees' work; 8 and committee member Alfred Milnickel could recall no
committee meeting with the employees as a group, even on the question of accepting
the wage proposals. It does appear, however, that- committeemen did, on occasion,
-discuss with the employees of the department which they represented such matters
'pending before the Committee as were vital and of particular interest to them.9
Frequent reference was made throughout the hearing to the processing of employee
grievances. The procedure adopted for this purpose was outlined in the 1956 agree-
ment between Respondent and the Committee and provided for initiation of discus-
sions at the foremen level as the first step. From that point, upon the filing of a
written complaint by the Committee, grievances would become the subject of fur-
ther discussion and settlement by Respondent and the Committee. Grievance forms
for this purpose were prepared by Respondent-and were available both in the per-
'sonnel department and at the foremen's desk. - -
Grievances filed through the Committee were resolved satisfactorily, but Byrd
testified that during his 2-month term of office the only grievance finally processed
resulted in notification directly to the employee involved without- reference to the
Committee. In all, four written grievances were filed during that period.'0 Byrd
credibly testified that several of the committeemen were reluctant to accept written
grievances from employees in their respective departments; referring to two com-
nitteemen, Roush and Williams. When Chairman Byrd attempted to bypass each
of these reluctant committeemen by going directly to the complaining employees he
was prevented from doing so by the foreman who said that he could not talk to the
men during working hours. When Byrd appealed the foreman's action to Personnel
'Manager Fletcher, explaining that such a restriction would require him to wait until
the close of the night shift, Fletcher sustained the foreman and refused to permit
Bv_ rd to consult with the grieving employee.
Facilities, properties, and resources of the Committee, other than those provided
-it by Respondent, are virtually nonexistent. Thus it has no office space, filing facili-
ties, clerical assistance (other than Miss Danneffel), or meeting place, nordo the
employees pay dues. Indeed, Committee Chairman Ervin credibly testi±ed that the
Committee had no income whatever, owns nothing, and that he occasionally paid
minor expenses out of his own personal funds.11 Upon his assumption of office he
received no records, such current records as were maintained by Erwin and his
predecessors having been kept in drawers or filing cases in their own homes. -
Such, therefore, was the nature of the organization with which Respondent nego-
tiated and executed an agreement which is alleged to be a further violation of the Act.
B. The negotiations and contract
On May 5, 1964, at a regular meeting attended by committeemen and management
'representatives the Committee indicated to the Company that they "would like to
-start negotiations for '%A;ages." In this regard Chairman Erwin testified that upon
assuming office he expressed to Personnel Director Fletcher his desire to change the
then existing contract. After first protesting that the reopening date had passed
Fletcher agreed to contract discussions.12 In support of the Committee's request
it presented proposals on May 20 in a written document prepared for -them by
Fletcher's secretary. It stated as follows:
The Employees' Committee would like to begin talks on general wage
increases. -
"Fletcher himself testified that he refused Byrd's request. but did not state his reasons
therefor.
0 The testimony of _Milnickel.
10 Committeeman Hill testified that a number of oral grievances were brought up during
the month of February, but that there were no written ones either then or thereafter.
When asked if they "just kind of got settled between meetings" he replied, "Evidently.
We never heard any more about them." -
11 Committeeman Hill similarly testified as to the lack of income.
'-' A synthesis of the testimony of Erwin and Fletcher. Fletcher further testified that
an increase was refused in the spring of 1963 and that the last previous one had been
granted in 1961.
MODERN PLASTICS CORPORATION 1133
We propose the following:
1. 250 per hour general shop increase.
2. Raise vacation pay benefit from 2% per week to 4% per week.
3. Increase the basic insurance coverage.
EMPLOYEES' COMMITTEE
Gerald Erwin
Chairman
Following the submission of these proposals five meetings were held at which
contract terms were discussed by management and the Committee together, as well
as by the Committee alone. These meetings were held on May 26 and June 2, 16,
.23, and 25.
It appears from the testimony of both Erwin and Fletcher that the wage proposals
on each side were not mutually acceptable at the outset and that throughout the
course of bargaining counterproposals were made and on several occasions a num-
ber of the committeemen sought to obtain the views of employees in their respective
.departments. Finally at the last meeting when agreement was reached with a
majority of the committee members its terms were incorporated into a written notice,
signed by General Manager Owen Skelton for Respondent and by Erwin for the
Committee and was posted on the plant bulletin boards for the benefits of the
.employees. The notice read as follows:
NOTICE
After several weeks of negotiations with the Employees' Committee, it has
been mutually agreed upon to make the following improvements in our Wage
and Benefit schedules:
I. Hourly rates for all hourly factory people in this plant will be increased
by 12e per hour. 76 per hour to be effective June 29, 1964, and 5Y per
hour effective January 4, 1965. For production workers, this amount will
be added to both piece-work and day-work earnings.
II. The Company-paid Insurance Plan will carry additional benefits up
to $20 per day Room and Board for Employees and up to $15 per day for
Dependents. Other benefit increases in keeping with our traditionally fine
Group Insurance coverage will be announced when the details can be
worked out with the Insurance Company.
III. In addition, during the weeks immediately following vacation, the
Company and Committee will review all hourly classification wage brack-
ets. A program of individual Performance Reviews in the departments
affected will be carried out.
IV. The people in Blow Molding at the Ninth Street plant be given
selective merit increases. This will allow special attention to problems
caused by rapid growth of temporary employment.
The Management and the Employees' Committee feel this is a successful
conclusion to the wage negotiations at this time.
It is hoped that all employees will cooperate by putting forth their best pro-
ductive effort, as well as help in the reduction of scrap and waste of materials.
It is only through an increase in our efficiency that we can hope to cover this
:sizable wage cost increase. Any increase in our selling prices to cover the cost
would only make our competitive position more unfavorable.
(S) Owen E. Skelton
OWEN E. SKELTON,
General Manager.
(S) Gerald Erwin
GERALD ERWIN,
Chairman Employees ' Committee.
pg
6-26-64
Because it is significant to General Counsel's allegation that the resulting wage
agreement occurred in an atmosphere of union organization on the part of Charging
Party it is significant to note at this juncture that its petition for a representation
election in Case No. 7-RC-6342 had been filed with the Regional Director on
June 16, 1964, and during the same period the Union's representatives had been
handing out pamphlets at the plant gate.
1134 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
Although the bargaining conduct of the parties to the agreement has been
described by all witnesses as that of determined partisans, General Counsel elicited
credible testimony from Personnel Manager Fletcher to the effect that the Respond-
ent actually determined as early as October or November 1963 that upon the next
committee request for a wage increase "wages would be adjusted upward to some
degree." That this is thus urged brings into question the Respondent's resistance
to the requests. made at the bargaining table and gives to them the appearance of
expediency at a time when the Charging Party was seeking to organize the employees.
C. General Counsel's contentions and offers of proof
Apart from the alleged stereotype indicia of unlawful domination, aid, and assist-
ance, General Counsel urges that insofar as the existing contract between the Com-
mittee and the Respondent embodies substantive operating procedures of the Com-
mittee itself and can only be changed by mutual consent this in itself constitutes
evidence of domination and interference in the administration of the Committee.
General Counsel further urges that by the simple expedient of transfer or promotion
of employees the Respondent, by application of the terms of the contract, can thereby
affect a change in committee membership and thus control it. In addition he argues
that payment of wages to employee committee members while attending meetings
constitutes further evidence of assistance and control. In this respect General Coun-
sel would include with the payment of committeemen's wages such other evidence
of aid and assistance as free meals and drinks, and secretarial services.
Finally it is General Counsel's position that the Respondent's negotiation and
granting of a wage increase occurred during a period in which the I.A.M., the
Charging Party, had commenced its organizing campaign among the employees.
By thus intruding into what appears to have been a representation question General
Counsel urges that Respondent has violated the neutrality required of an employer
by the Board under such circumstances,13. and that under any circumstances the
wages negotiated and granted were not the product of good faith because the
Respondent's decision as to them had been formulated several months previously.
Counsel for the General Counsel sought to introduce evidence which I ruled not
to be relevant to. issues present in the case. Thus he sought to establish by events
occurring prior to January 17, 1964, that Respondent, by its relationships with the
Committee, and with several of its officers and other employees, had so conducted
itself as to manifest further instances or indicia of a violation of Section 8(a) (2).
Because I considered such proffered evidence to constitute evidence of up-fair labor
practices which occurred more than 6 months prior to the filing of the charge herein
I rejected it as contravening the terms of Section 10(b) of the Act. Whereupon
General Counsel was permitted to make a written offer of proof of the evidence
refused. For the reasons which follow I reaffirm my ruling and reject Respondent's
offer.
In its decision in Local Lodge No. 1424, International Association of Machinists,
AFL-CIO v. N.L.R.B.,14 commonly referred to as the Bryan Manufacturing Co.
case, the Supreme Court classified evidence of events occurring prior to the 6-month
period preceding the filing of a charge into two categories: (1) where the occur-
rences in and of themselves constitute, as a substantive matter, unfair labor practices,
is Quite apart from General Counsel's reliance upon the Board's so-called Midwest Piping
doctrine (Midwest Piping and Supply Co., Inc., 63 NLRB 1060) in this matter of em-
ployer neutrality, it appears that in the representation proceeding initiated by the I.A.31.,
Charging Party herein, in Case No 7-RC-6342, the Acting Regional Director initially
determined to dismiss the I. A.br.'s election petition because an election was deemed by
him to be barred by the Committee's contract with the Respondent. Thereafter, upon
filing of unfair labor practice charges in the instant proceeding, the same official, pursuant
to routine policy of the Board not to .proceed in any representation case where charges of
unfair labor practices are concurrently pending under circumstances present here, resolved
to withhold his dismissal of the petition until this instant case had been fully investigated.
While the Acting Regional Director's initial position with respect to the status of the
Committee's contract has not been officially disturbed and although it is not a proper
subject of determination by, me as a representation matter, it is significant to observe that
his first impressions of the contract are not entirely consistent with his allegations in the
complaint issued by him in behalf of the General Counsel and wherein action pursuant to
the contract is now alleged to be unlawful.
14 362 U.S. 411.
MODERN PLASTICS . CORPORATION 1135
then "earlier events may be utilized to shed light on the true character of matters
occurring within the limitations." And (2) where the finding of a violation is ines-
capably grounded upon events predating the limitation period.
I have reviewed General Counsel's offer of proof, even as I considered his prof..
fered evidence at the hearing, and again I find it to constitute not so much an expla-
nation.of, or "shedding of light" upon what later occurred, but rather a description
of the same type of occurrence later to be repeated within the limitation period and
found to be unlawful, infra. Indeed, as I conclude hereafter, what did occur at the
later time is clear, andfor the most part undisputed, and it therefore needs no clari-
fication. Under such circumstances the offered evidence becomes not clarification,
but actually evidence of further unfair labor practices. By reference to the Supreme
Court's second category; i.e. that such would be violations grounded upon prelimita-
tions period conduct, I am precluded from accepting it. I accordingly reject General
Counsel's offer of proof and therefore find it unnecessary to consider Respondent's
counteroffer directed thereto.la
D. Respondent's contentions and offers of proof
Quite apart from its insistence that the evidence adduced fails to establish in the
specifics alleged that it neither dominates, assists, nor interferes with the Committee
Respondent specifically urges that the effect of its negotiating and granting a wage
increase to the employees did not constitute interference.
As further the support for its position that it did not violate the Act Respondent
sought to introduce evidence of commonly accepted industrial practices and policies
followed by other employers in their relation with unions affiliated with national
labor organizations, including the Charging Party herein. To this end, by way of
offer, it submitted publications of the U.S. Department of Labor in which numerous
collective-bargaining agreement clauses were set forth and analyzed with a view to
establishing that it was common practice to provide for full or partial pay for time
spent by employees engaged in representation functions.: In addition it submitted
copies of collective agreements between employers and affiliated labor organizations,
including the Charging Party, in the adjacent geographical area, for the purpose of
establishing that such employers "commonly accord to representatives of affiliated
labor organizations the privilege of engaging in a wide variety of union activities on
company time and. property, particularly with respect to the investigation, presenta-
tion and settlement of employee problems and in discussions regarding and negotia-
tions of bargaining agreements." In short, it urges that such contracts "contain
numerous provisions which are indicative of cooperation between employers and
affiliated local
Basic to Respondent's contentions in support of the relevance of the evidence
offered is the proposition that liability under the Act may somehow be determined
by a consensus. Thus if it can be established that if other parties in other places
have, under similar circumstances, consistently engaged in practices alleged herein
to be unlawful then it should follow that the allegations herein are void.
In support of its argument Respondent refers me to two cases previously decided
by the Board, neither of which I find relevant to the issue at hand. Thus in Hearst
Publishing Co., Inc. (Los Angeles Division), 113 NLRB 384, 403, the Board approved
a Trial Examiner's holding with respect to an alleged violation of Section 8(a) (2)
that was based, among other things, upon testimony that similar allegedly violative
courtesies were extended by the employer to other affiliated and nonaffiliated unions.
As the basis for Respondent's proffer herein was to show what some other employer
did, this cited case, applying as it-doesonly to the employer involved, has no applica-
tion herein.
I am also referred to HannJaford-- Bros. Co. (T. R. Savage Division)-, 119.NLRB
1100, wherein the Board, in exonerating an employer of violations of Section 8 (a)
(2), relied upon evidence that the employer had extended privileges similar to those
with which he was charged, to the charging union itself at another of the employer's
plants. In rejecting this case as support for the proposition relied .upon I am con-
strained to repeat that what was sought to be shown in the instant case was the
privileges granted to other local unions by otheremployers.
35 At the hearing Respondent moved to revoke the subpoena dices 'tecurn served upon
its Personnel Director Fletcher to produce-documents relating to events occurring prior
to January 17, 1964. I granted this motion as -1 deemed the materials sought not relevant
for reasons stated above. I reaffirm my ruling at this time.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally I have been referred to -N.L.R:B. v. Valentine Sugars-Inc., and Valite
Corp, 211 F. 2d 317_ (C.A. 5), wherein the court relied upon evidence of area
practice which had been rejected by the Trial Examiner upon the General Counsel's
objection. This rejection was not specifically overruled by the Board in its- decision
(102 NLRB 313 ), and the Trial Examiner was accordingly affirmed. As I am thus
presented with a holding by the- court not in conformity with the Board's holding in
the matter, and as I am not aware that the Board has either in that case or sub-
sequently reversed itself or has been reversed by the United States Supreme Court I
must, with all proper deference and respect for the Court of Appeals for the Fifth
Circuit and its opinlon,zc rely upon what I deem to be the Board's continuing position
and reject as a defense of an alleged violation of Section 8(a)(2) the evidence of
related practices in the area or community.17
E. Analysis and conclusions
"The employer is under a duty to refrain from any action which will place him
on. both sides of thebargaining table." 18 Such is the criterion by which the facts
set forth above must be assessed to determine if Respondent has unlawfully domi-
nated, assisted, and interfered with the administration of the Employees' Committee.
It may readily be granted that not every incident, considered in isolation, would
constitute a remediable violation ofSection 8(a) (2). Thus, for example, as Respond-
ent points out in its brief, the inspiration-and assistance in the taking of an employee:
poll, as a separate violation, has been rejected.19 So also has evidence of question-
able financial support and use of plant facilities been deemed insufficient to establish
a violation.20 Similarly, the Board has dismissed violations based solely upon an
employer's providing of supplies and t= e use o office equipment and the giving of
assistance in setting up procedures,21 upon the furnishing of a meeting place on one-
occasion and the use of company transportation to union meetings on several other
occasions,22 and upon the supplying of employee name lists and the use of office-
equipment.23 But none of this is to say that the several minute or isolated occur-
rences, if taken in total, would merit the same offhanded disposal. On the contrary,.
a reading of cases too numerous to cite would amply demonstrate that it is precisely
the sum of such individual incidents which establish the pattern of conduct illustra-
tive of an employer's unwarranted intrusions into the affairs of his employees 24
- Viewed against the foregoing criterion Respondent's activities herein take on more-
than isolated proportions and disclose something more than its passing interest in.
the Committee's operations. Thus there is the practice whereby various forms are
prepared and made available by the secretary to the personnel manager, that petitions.
signed and circulated by employees may thereafter be returned to her, that she pre-
pared and posted notices for the Committee, that she maintained a file for current.
committee business, and accepted the.election ballots for safekeeping after the voting
had been completed. Respondent readily admits this generosity but contends that
it is but part of a policy of assistance to employees generally. Without belaboring:
this point I would conclude that assistance or gratuities to individual employees in
the form of typing assistance, etc., is not to be compared to similar conduct in behalf-
of a labor organization. By its language Section 8(a) (2) makes this very distinction-
What Respondent, or its officials, or their assistants do for individual employees,,
therefore, cannot be used as justification for aid and assistance to a labor organiza--
161ova Beef Packers, Inc., 144 NLRB 615. Nor have I been referred to cases to the
contrary, and my own research discloses none.
V, Counsel for the General Counsel moved at the hearing for the revocation of H. sub-
poena duces tecum• served upon the business representative of the Charging Party for the
production of-collective agreements between it and employers in the adjacent geographical
area. Because I -deemed the subject matter of these documents to be irrelevant for the-
reasons discussed above I granted General Counsel's motion to revoke. I reaffirm my-
ruling at this time.
isN.L.R.B. v. Mt. Clemens Metal Products Company, 287 F. 2d 790 (C.A. 6).
19 N.L.R.B. v. Magic Slacks, Inc., 314F. 2d 844 (C.A. 7), setting aside 136 NLRB 607..
25iN.L.R.B. v. The Post Publishing Co., 311- F. 2d 565 (C.A. 7), setting aside 136
NLRB 272.
2 Manuela Manufacturing Co., 143 NLRB 379.
22Matthews Drivurself geraice,Inc., 133 NLRB 1513.
2a Crompton-Slaeisandoah Compang, Inc., 135 NLRB 6.94.
24 Twenty-sixth Annual Report of the, National Labor Relations. Board (19,61), . p. 86&-
MODERN PLASTICS CORPORATION 1137
tion such as the Committee. And coupled with this is Respondent's equally generous;
provision of a meeting place, the plant conference room; and its provision of dinner
and drinks for the committee members at evening meetings.
The foregoing is a composite of many forms of aid and assistance commonly found
by the Board and the courts to constitute a violation of the Act . Here I find it to
be but a segment of a larger pattern, for in addition to its generosity Respondent is.
equally solicitous of the Committee to the point of exercising effective control over
its operations. Thus at every one of its meetings, excepting only five meetings when.
the committee members caucused to consolidate their contract bargaining position,
at least one member of management, usually Personnel Manager Fletcher, was pres-
ent and actively participated. During periods of the transfer of authority from one
committee chairman to his successor it was Fletcher who suggested the procedures,
who suggested the holding of a special election, and who instructed the newly
appointed election chairman in her duties (supra, footnote 5). In at least one
instance involving a committee member's processing of a grievance it was Fletcher
who refused permission to consult with the grieving employee on company time,,
thus, in ultimate effect, giving substance to the reluctance of other committeemen to
process grievances (supra, p. 1132). And finally, it was Fletcher who refused Com-
mittee Chairman Byrd's request that a meeting of all the employees be held, all.
committeemen who testified being unanimous on the point that a general meeting:
of this sort had never been held.
If, as has been stated by the courts, "actual domination must be shown before a
violation is established," 25 nothing can more clearly illustrate that very point than
Fletcher's effective refusal to permit employee meetings . This is truly domination.
in action.
Analysis of precedent cited to me by way of distinction or authority for the basic
issue of domination, support, and assistance is not necessary in an evaluation of the
foregoing relationship which existed between the Respondent and Committee..
Fletcher's presence and participation at Committee's meeting made of them joint con-
ferences, not meetings of employee representatives. And to the extent that they were
intended to be the latter, his active participation can be viewed as nothing short of
intrusion, and, as a consequence, a variety of domination proscribed by the Act,26 in.
Section 8 (a) (2) and (1) and I so conclude and find.
Quite apart from the evidence of aid and support, and of Fletcher's control which
I have summarized above, Respondent's contractual relationship, itself, with the
Committee provides further evidence of unlawful intrusion into the Committee's
affairs. In this respect it appears from the contract presently in force that such items
as the eligibility of employees to vote for committeemen, the procedure to be followed
in such elections , and the form that employee representation is to take, are all internal
labor organization matters that exist only by virtue of the Respondent's agreement
thereto with the Committee in the contract document. If, then, the Committee can
exist as an organization only as a result of negotiation with and agreement by the
Company then it is far removed from the freedom of action guaranteed by the Act.
I would accordingly conclude that by the existing contract itself Respondent unlaw-
fully intrudes itself into the internal affairs of the Committee, further violating Section
8(a)(2) and (1).
It is General Counsel's contention that by the terms of the contract, whereby each
department is represented by a committeeman Respondent has maintained control
over this election and retention of representatives by virtue of its authority to transfer,
lay off, discharge, or promote committee members. The vice inherent in General
Counsel's contention is not , it seems to me, Respondent's inherent authority, but
rather its part in the setting up of the system of departmental representation in the first
place by mutual agreement . This I have considered above and have concluded to be
unlawful interference. I reject, however, the notion that Respondent's authority to
effect personnel changes as to employee-committeemen is a form of domination or
control. In the first place all employers have this authority by virtue of their being
employers of employees, so that labor organizations are frequently depleted of their
leadership by routine promotion and transfer. But more directly to the point, were
Respondent to divest itself of its authority to thus effect personnel changes as to
employee representatives it is quite arguable that such employees would thereby
25 Chicago Rawhide Manufacturing Co. v. N.L.R.B., 221 F. 2d 165, 168 (C.A. 7).
sa N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203; N.L.R.B. v.
The Chardon Telephone Company, 323 F. 2d 563 (C.A. 6) ; N.L.R.B. v. Western Reserve
Telephone Co., 323 F. 2d 564 (C.A. 6) ; Grand Foundries, Inc., 151 NLRB 1170.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become the victims of unlawful discrimination in violation of Section 8(a)(3). I
would not be disposed to recommend that- representatives be so constricted in their
opportunities for advancement.
The contract and negotiations of May and June 1964, and the resulting agreement
were also specially singled out as objects of unlawful domination, aid, and assistance.
Regardless of what may be said of the controlled manner in which the Committee
-operates or of the aid and assistance it continually receives, the negotiations for the
June 1964 contract, as described by all the credible evidence, had every appearance
of the give-and-take required of parties to a collective agreement.2i It is General
Counsel's contention, however, that in two respects the contract negotiations and
execution were unlawful. Namely that because (1) it occurred while the International
Association of Machinists was organizing its employees Respondent violated that
neutrality required by it during such a period, thus further violating Section 8(a) (2);
and (2) because Respondent had previously resolved to grant the wage increase that
was ultimately negotiated it did so to defeat the Machinist's campaign and therefore
unlawfully interfered with, restrained, and coerced the employees in violation of See-
tion.8 (a) (1) of the Act.
The Board's rule with respect to the neutrality required of an employer in matters
pertaining to his employees' selection of their bargaining representative was first
expressed in Midwest Piping and Supply Co.,28 and thereafter reiterated in Shea
Chemical Corporation 29 Thus it is stated that when a rival claim has been presented
to an employer which raises a real question concerning the representation of his
employees the employer may not thereafter bargain with an incumbent labor organi-
zation until that question has been settled. Respondent's alleged breach of neutrality
here, therefore, hinges upon the existence of a real question concerning representation.
Such a question is raised, of course, by the filing with the Board of a petition for an
election by the rival claimant in a unit of employees appropriate for the purposes of
collective bargaining 30 Under normal circumstances, it might be concluded that here
a real question was raised by the Machinist's petition. But the Acting Regional
Director has himself created serious doubts in this respect for he initially dismissed the
election petition, stating that the election would be barred by the outstanding contract
between Respondent and the Committee (supra, footnote 13). Although he there-
after rescinded his action for an unrelated reason, the filing of charges in tais case, his
judgment as to the character of the contract appears to have changed only when he
framed the allegations of the complaint herein, claiming the contract to be the vehicle
of unneutral conduct. Because an official of the Board has thus displayed reasonable
confusion as to the circumstances surrounding the negotiations and execution of this
contract I would hesitate to impugn the motives of the Respondent simply for being
a. party of that contract. I would accordingly dismiss so much of the complaint as
alleges the execution and negotiation of the June 1964 contract as a separate violation
of Section 8(a) (2) of the Act.
General Counsel further contends that Respondent's negotiation and execution of a
wage increase as part of this contract, at a time when it had already decided to do so
some months previously, was actually an effort on its part _to-co.interact the organiza-
tional efforts of the Machinists and was accordingly unlawful interference, restraint,
and coercion of its employees in their self-organizational rights. I do not agree.
While it was quite evident to Respondent that the Machinists had sought to enlist
the membership of its employees it was under no obligation, other than the restricted
obligations of neutrality described above, to cease its dealings with the Committee.
Were this otherwise the bargaining relationship at any given plant in the country
could readily be destroyed by a so-called outside union merely appearing at the plant
gate and passing literature. Something more, therefore, than a continuation of bar-
gaining as here, would appear to be required before interference with employee rights
in violation of Section 8 (a) (1) could be spelled out. This added ingredient, General
Counsel contends, was Respondent's admitted -intention, expressed among manage-
ment representatives in November 1963, that when the Committee next requested an
increase "wages would be adjusted upwards to some degree." Committee Chairman
Erwin, testifying in behalf of the General Counsel, stated that the Committee made
this request on May 5, 1964.
General Counsel's reliance upon the foregoing facts as evidence of misconduct
places Respondent in a dilemma. Certainly had it refused to accede to the Com-
mittee's demand it might well have been vulnerable to attack-for refusing to bargain,
27 Cf. N.L.1f B. v. American A'ational Insurance Co., 343 U.S. 395.
- 63 NTLRB 1060.
'121NLRB 1027.
80 Wibliam Penn Broadcasting Company, 93 NLRB 1104.
dODEP. PLASTICS CORPORATION 1139
be it for an outright refusal or for taking an uncompromising position. Having
acceded to the demand, bargained and granted the wage increase it is now charged
with doing so to defeat a union seeking to organize its employees.
-In essence the criticism directed at Respondent hereis that between November 1963
when management made its initial decision and May 1964 when the wage increase was
made, Respondent failed to divulge either its bargaining technique or its operating
plans. It is quite understandable that management officials might, as Fletcher testified,
anticipate among themselves a future request for wages and the position that they
would take respecting it. This is one of the functions of management. And it is
equally understandable that management might not grant a wage increase until it was
asked for one. in such a posture I fail to see how, in and of itself, the me- T5
of the Machinists organizing the Respondent's employees can discolor what appears
to represent a typical picture of labor-management operations. I would accordingly
recommend that so much of the complaint as alleges Respondent's conduct in this
respect to be a violation be dismissed.
And finally it is specifically alleged in the complaint as a violation of Section
8(a) (2) that Respondent dominated and interfered with the formation of the Emplo:--
ees' Committee.. This conduct, if it did occur, occurred prior to September 1949.31
As Section 10(b) was enacted to eliminate the processing of just such outdated
matters 32 I are precluded from finding any violation based upon the allegation 33
I accordingly recommend that so much of the complaint as alleges the formation of
the Employees' Committee to be a violation of the Act be dismissed.
In summary I would conclude and find that Respondent has by the conduct, action,
and incidents described and analyzed above dominated, aided, and supported the
Employees' Committeeand interfered with its administration in violation of Section
8(a) (2) and (1) of the Act. In so concluding and finding I am aware of Respond-
er_t's vigorous contention, supported by brief and offers of proof, that what it is
accused of it is, in fact; a pattern of industrial relations in the area, even insofar as
the International Association of Machinists is concerned. As I am required only to
assess the conduct of Respondent in its relationship with the Committee I feel no
responsibility for nor perceive no relevance to the continuing conduct of other
employers of other employees. In sum, it is the substance of my conclusions herein
that Respondent's conduct need conform only to the law, and not to the practices and
customs of the area s4
V. THE EFFECT OF THE UNFAIR LAEOR PRACTICES UPON COMMERCE
The activities of the Respondent found to constitute unfair labor practices set forth
in section IV, above, occurring in connection with its operations described in section
I, above, has 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
I have found and concluded that Respondent Modern Plastics Corp., has unlawfully
dominated the' Employees' Committee, rendered unlawful aid and support to it, and
otherwise interfered with its administration, thereby interfering with, coercing, and
restraining its employees in the exercise of their statutory rights. I shall accordingly
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Affirmatively I shall recommend that
the Board issue . its conventional order of disestablishment of the Employees'
Committee.
31 The credible testimony of Erwin. -- -
22 Cathey Lumber Company, 86 NLRB 157. - - -
13 Mt. Clemens Metal- Products Company, 126 NLRB 1297, enfd. in the respects applicable
herein 287 F. 2d 790 (C-1. 6), supra, footnote 18.
"In the course of- Its argument to me Respondent cites numerous decisions of United
States Courts of Appeals for the Fifth and -Seventh Circuits wherein results and. con-
clusions have been reached contrary to holdings of the Board and which the Board has
not accepted. With all due deference to the views of the court whose decision is cited
to me I must of necessity rely-upon the decisions of the Board until such time as it has
altered its position. on the matter or has been overruled by the United States Supreme
Court. Iowa Beef Packers, Inc., 144 NLRB 615.
212-809-66-vol. 155-73
11M DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am persuaded by the credible evidence of witnesses called by both parties to
this proceeding that despite the unlawful character of the Committee and despite
Respondent's unlawful intrusions into its affairs, nevertheless the employees whom
the Committee represents have derived considerable benefit from its representation
and none have been shown to have been dissatisfied either with the Committee itself
or with the particular type of representation that it provided them. In view of the
foregoing I shall recommend that the Board's order and such notices as are required
to be posted pursuant to it provide that nothing in either shall be construed as requir-
ing or permitting the varying or abandoning of wages, hours, seniority, or other sub-
stant'ial benefit contained in any outstanding agreement between Respondent and the
Committee 35 and I shall further recommend that the notice and order provide that
nothing contained therein is to be construed as preventing the employees themselves
from forming, joining, or assisting any labor organization, including any employee
representation committee or plan, as guaranteed them by Sections 7 and 2(5) of
the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend 36 that Respondent, Modern Plastics
Corp., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with-the administration of the Employees' Commit-
tee, or any other labor organization of its employees, or contrib-.ting financial or
other aid or support thereto, provided, however, that nothing in this Decision and
Order shall require Respondent to vary or abandon any wage, hour, seniority, or
other substantive feature on behalf of its employees, which the Respondent has
established while bargaining with the Committee, or to prejudice the assertion by
its employees of any rights they may have derived as a result of the existence of the
-Committee, and provided further that nothing herein shall be construed as prohibiting
the employees themselves from forming, joining, or assisting any labor organization,
including an employee representation committee or plan, as guaranteed them by
Section 7 and 2(5) of the Act.
- (b) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from, and completely disestablish
°' the Employees' -Committee as representative of any of its employees for the purpose
of dealing in respect to grievances; labor disputes , wages, rates of pay, -hours of
employment , or conditions- or work.
1, 1 (b) -Post at its Benton Harbor, Michigan, plant copies of the attached notice
marked "Appendix." 37 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 7, shall, after being signed by Respondent's representative, be posted
by Respondent immediately upon- receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by other material.
(c) Notify the Regional Director- for Region 7, in writing, within 20 days from
the date of the receipt- of this Trial Examiner's -Decision and Recommended Order,
what steps the Respondent has taken to comply herewith.38
85Th Bessick Comliany, Spring Valley Division, 127 NLRB 1552. -
w In the event that this Recommended Order be adopted by the Board , the word "Rec-
ommended" shall be deleted from its caption and wherever else it thereafter appears ; and
for the words "I recommend" there shall be substituted "the National Labor Relations
Board hereby orders."
In the event that this Recommended Order shall be adopted -by the Board, the words
"Decision and Order" shall be substituted for the words "`the Recommended Order of a
Trial Fixaminer" in the notice. In the further event that the Board 's Order Is enforced
tit a decree of a United States Court of Appeals, the words "a Decree of the Unfted States
Court of 'Appeals, Enforcing an -Order" shall be substituted for the -words "a Decision1.
and Order.'',
38In the event that this Recommended Order is - adopted by the Board , this provision
shall be modified to read: "Notify'said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply ' herewith."
LINCOLN BEARING COMPANY
IT IS FURT -ERED RECOMMENDED that so much of the complaint in this proceeding
as alleges that Respondent, by negotiating and executing a contract with the Employ-
ees' Committee in May-June 1964, thereby independently interfered with, restrained,
and coerced its employees in violation of Section 8 (a) (1) of the Act, be dismissed.
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 dominate or interfere with the administration of the Employees`
Committee, or any other labor organization, or contribute financial or other aid
or support thereto.
We hereby withdraw all recognition from and completely disestablish the
Employees' Committee as representative of any of our employees for the purpose
of dealing concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and will not recognize it.
WE WILL NOT vary or abandon any wage, hour, seniority, or other substantive
feature established in behalf of our employees while bargaining with the Employ-
ees' Committee, nor will we deny our employees any right derived as a result
of the existence of the Committee.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed them in Section 7 of the Act.
All our employees are free to form. join, or assist any labor organi zation, including
an employee representation committee or plan of their choosing , or to refrain from
doing so, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a cordition of employment as authorized
by Section 8(a) (3) of the National Relations Act, as amended.
- - - - - - - MOD RN PLASTICS CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must -remainposted for 60 consecutive days from the date of posting,
and most 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, 500
Book Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No.
936-9330.
Lincoln Bearing Company and Inter national Union, Allied Indus-
trial Workers of America , Amalgamated Local 312, AFL-CIO.
Cage No. 8=G''A 3870. November- 03, 1965
DECISION AND ORDER
On August: 19, 1965, Trial Examiner Lio3-d Buchanan 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 Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
155 NLRB No. 110.