United States Molded Shapes

National Labor Relations Board - Board Decisions

Mar 12, 1963

141 N.L.R.B. 357 (N.L.R.B. 1963)

UNITED STATES MOLDED SHAPES 357
fined in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b) of
the Act.
FLORIDA AGRICULTURAL SUPPLY COMPANY,
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, Ross Building, 112 East Cass Street, Tampa 2, Florida, Tele-
phone No. 223-4623, if they have any question concerning this notice
or compliance with its provisions.
Kenneth A. Zick, d/b/a United States Molded Shapes and Lodge
980 of the International Association of Machinists, AFL-CIO.
Case No. 7-CA-3610. March 12, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel filed excep-
tions and a brief in support of these exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner to the extent consistent with our decision herein.
1. The complaint alleged, and the Respondent's answer admitted,
that the Respondent failed and refused to bargain with the Union
in an appropriate unit.'
The Trial Examiner found, however, that Respondent did not there-
by violate Section 8 (a) (5) and (1) of the Act. We agree with his
1 The appropriateness of the unit is not disputed.
141 NLRB No. 26.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ultimate disposition of this phase of the case for reasons indicated
below.
The operation with which we are concerned is known as U.S. Molded
Shapes. In 1955, at a time when this operation and Cadillac Marine
and Boat Company were operated as wholly owned subsidiary com-
panies of W Thgeuiaker Company, the Union won a Board election in
a connprehensii e unit of all nonclerical employees of Cadillac Marine
and obtained a Board certification. It then entered into union-
security contracts with Cadillac Marine. Cadillac Marine was then
located at Cadillac, Michigan. while U.S. Molded Shapes conducted
its business at Grand Rapids, Michigan.
About February 1960, Schott Enterprises purchased Wagemaker
and operated Cadillac Marme and U.S. Molded as subsidiary
companies of a parent corporation known as Waggemaker-Schott
Enterprises.
About April 1960, fire destroyed the facilities of U.S. Molded in
Grand Rapids. That operation ^^ as then moved to Cadillac, _lii^ hngan,
where it was housed in the same building as Cadillac Marine.
«ragemaker-Schott then consolidated the operations, snaking both
divisions of the parent corporation. The employee complement of the
U.S. Molded division remained a separately supervised group. A sub-
stantial portion of this complement was comprised of employees who
had previously worked for U.S. Molded at Grand Rapids. A small
percentage represented employees of Cadillac Marine who were trans-
ferred into the U.S. Molded division.
In December 1960, the Union and AVagemaker-Schott agreed to
apply the union-shop contract then in effect for Cadillac Marine em-
ployees to the U.S. Molded employees. They executed a supplement
to their 1959 contract setting forth the wage rates for U S. Molded
employees and also their agreement to apply "all other provisions of
the contract" to them. The record does not show how many, if any,
U.S. Molded employees 1w ere then members of the Union or had other-
wise manifested a desire for representation by the Union.
In June 1961, AVagemaker-Schott's operations were acquired by
Ash-Craft Co. (formerly a minority stockholder in AVageniaker-
Schott). Ash-Craft assumed the bargaining contract and continued
to operate with substantially the same employees until about August 1,
when it shut down the U.S. Molded division and terminated the em-
ployment of all the employees there engaged.
On October 10, Zale purchased U.S. Molded's machinery at public
auction. Shortly thereafter, lie hired a complement of workers, the
majority of whom had been among- those formerly employed by Ash-
Craft. The record does not identify the employees as union members
or as desiring representation by the Union at the time. Indeed, many
of the employees, upon hiring, asked whether they "had to be a part
UNITED STATES MOLDED SHAPES 359
or become part of the union." Their subsequent acts to "decertify"
the Union are fully detailed in the Intermediate Report.
After Zale commenced operations, the Union requested that he rec-
ognize it as bargaining representative of the U.S. Molded employees.
Zale refused and the Union filed 8 (a) (5) charges in December. upon
which the General Counsel later issued a complaint and notice of
hearing. Zale closed down U.S. Molded during the latter part of
January 1962, while he was negotiating for the sale of the business with
Respondent. In order to facilitate the sale of the business to Respond-
ent, Zale signed an informal settlement of the charges on February 1,
1962, which the Regional Director approved on February S.
Respondent became the owner of U.S. Molded on or about Feb-
ruary S. Thereafter, lie gradually rehired the employees who had
worked for Zale. On February 13, the employees resumed their
efforts to "decertify" the Union.
According to the complaint and answer, on March 13, 1962, the
Union requested Respondent to recognize it as the representative of
the employees and Respondent refused.
A prerequisite to finding that the Respondent violated Section
8(a) (5) of the Act, is proof that the Union in fact represented a
majority of the Respondent's employees at the time it requested
bargaining. The burden of so proving rests, of course, upon the Gen-
eral Counsel. In this case, the General Counsel claims that lie has
met this burden by proving facts which give rise to a presumption of
continuing majority status in favor of the Union among the employees
in question and the establishment of an obligation upon Respondent
to bargain with the Union. In this connection, reliance is placed upon
the 1955 certification of Cadillac Marine employees; the "accretion"
of U.S. Molded employees to the certified unit in 1960; the extension
to said employees of the existing union-security contract covering
Cadillac Marine employees ; the "successor"' status of the successive
employer of these employees; and Zale's settlement agreement.
Even accepting the General Counsel's accretion theory and his
contention that, in view of the 1955 certification, there arose a presump-
tion of the Union's majority status among U.S. Molded employees,
which was "enhanced"' by the application of the union-security con-
tract to those employees, it does not follow, nor can we find, that the
presumption of majority status continued to the critical period in
this case. In August 1961, these employees were terminated by Ash-
Craft. They then ceased being part of the certified and contractual
unit to which they had been asserteclly accreted; the combined Cadillac
Marine-U.S. Molded unit ceased to exist, and all who remained em-
ployed, represented by the Union, were those in the originally certified
Cadillac Marine unit. Thereafter, for at least 21/o months, these
employees remained unemployed, free of any obligation to maintain
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any membership in the Union. When they were hired by Zale, these
employees, who are not shown to have desired union representation
when they were placed under the aforementioned contract, freely ex-
pressed their opposition to representation by the Union,' which then
sought to represent them as a separate unit-first as employees of
Zale and then as employees of Respondent. Considering all these
circumstances, we do not think that any presumption of majority
status, which the Union could claim among these employees as part
of the no longer existing combined unit, continued to exist, when,
in October 1961, the Union sought to represent them as a separate unit
of Zale employees. And, in the peculiar circumstances of this case,
and particularly as there is no showing that the Union at any time
represented a majority in a separate unit of U.S. Molded employees,
we do not believe that it would effectuate the policies of the Act to hold
that the informal settlement agreement executed by Zale, in the fact
context described above, should be held to have imposed an obligation
upon Respondent, when he reopened the business following another
shutdown, to extend recognition to the Union. In view thereof, and
as no other basis appears for holding that Respondent was obligated
to recognize the Union as the bargaining representative of a unit of
its employees, we shall dismiss the 8(a) (5) allegations of the com-
plaint, as recommended by the Trial Examiner.
2. We disagree with the Trial Examiner's disposition of the inde-
pendent 8(a) (1) allegations of the complaint. The facts set out by
the Trial Examiner establish that the Respondent gave active support
to the efforts of its employees to obtain the Union's decertification and
otherwise interfered with their free exercise of their statutory rights.
Thus, following the Board's dismissal of a decertification petition filed
by the employees on February 13, 1962, Zick responded to requests
made of him by the employees as to how to proceed in the matter by
suggesting that the employees form a committee to meet with his
attorney, Charles Miltner. When such a committee was then formed,
Zick acquiesced in the request of one of its members that Miltner
address the employees during their lunch period on the following
day regarding the decertification petition. Miltner met with the com-
mittee that evening and provided it with counsel as to how to proceed.
The next day, Miltner appeared at the plant and questioned employees
concerning their loyalty to the decertification movement. He prepared
a petition, directed to the Board, requesting it to reconsider its earlier
dismissal of the "decertification petition" filed on February 13, 1962.
He then circulated this document among the employees for their signa-
ture. The document was signed by all Respondent's employees and
2Although we are finding, infra, that Respondent violated section 8(a)(1) In connec-
tion with the employees' efforts to "decertify" the Union, this unlawful conduct occurred
only after the employees themselves had expressed opposition to union representation
UNITED STATES MOLDED SHAPES 361
submitted to the Board 3 On these facts, a conclusion that Respondent
violated Section 8 (a) (1) of the Act is clearly warranted,4 and we so
find.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with its operations described in the Intermediate Report, 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. The unfair
labor practices found are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
As we have found that the Respondent has engaged in certain unfair
labor practices, we shall order that it shall cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Kenneth A.
Zick, d/b/a United States Molded Shapes, Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7 of the Act by sponsoring,
preparing, and causing to be circulated among its employees petitions
designed to obstruct the efforts of Lodge 980 of the International
Association of Machinists, AFL-CIO, or any other labor organiza-
tion, in seeking to represent such employees.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Cadillac, Michigan, or at such other loca-
tion to which it may have moved its operations,' copies of the attached
a The Board , after the close of hearing herein, denied the petition.
Cf Ridge Citrus Concentrate, Inc, etc, 133 NLRB 1178 ; Poultry Enterprises, Inc,
102 NLRB 211, 224; Gulfcoast Transit Company , 135 NLRB 185
5 Evidence in the record indicated that the Respondent 's lease of the property housing
the operation may have expired.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice marked "Appendix." 6 Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by the Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive clays thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges violations of the Act other than as found herein.
Gin the event that this Order is enfoi cod by a decree of a United State Court of
Appeals there shall be substituted for the words I'ur.naut to it Ueeisum and Oidei" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed in Section 7 of the Act by
sponsoring, preparing, and causing to be circulated among our
employees petitions designed to obstruct the efforts of Lodge 980
of the International Association of llachunists, AFL-CIO, or
any other labor organization, in seeking to represent such
employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the National Labor Relations Act.
KENNETH A. ZICK , D/B/A
UNITED STATES MOLDED SHAPES,
Employer.
Dated---------------- Br-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive clays 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 26,
Michigan, Telephone No. 963-9330, if they have any question con-
cerning this notice or compliance with its provisions.
UNITED STATES MOLDED SHAPES 363
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on March 19, 1962, by Lodge 980 of the International Asso-
ciation of Machinists, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, herein called the Board, issued a complaint on
May 3, 1962, which in substance alleged that Kenneth A. Zick, d/b/a United States
Molded Shapes, herein referred to at times as Zick, Molded Shapes, and the Respond-
ent,' had engaged in conduct violative of Section 8(a)(1) and (5) of the National
Labor Relations Act, herein called the Act. In due course the Respondent filed its
answer in which it admitted certain jurisdictional allegations in the complaint, and
that it had refused to bargain with the Union, but that it had not engaged in any of
the alleged unfair labor practices including certain conduct that was allegedly inde-
pendently violative of Section 8 (a) (1) of the Act
Pursuant to notice, a hearing was held in Cadillac, Michigan, on June 13 and 14,
1962, before Trial Examiner James A. Shaw. All parties were represented by coun-
sel and were afforded full opportunity to adduce evidence, to examine and cross-
examine witnesses, to file briefs, and to present oral arguments as regards their
respective positions prior to the close of the hearing. Counsel for the General
Counsel and the Respondent filed briefs with the Trial Examiner on or about July 19,
1962, which he has carefully considered in the light of the record as a whole
Prior to the close of the hearing the General Counsel moved to conform the plead-
ings to the proof as regards minor matters such as names, dates, and the like. The
motion was granted by the Trial Examiner.
Counsel for the Respondent moved to dismiss the complaint at the conclusion of
the taking of the testimony at the hearing herein. Ruling was reserved by the Trial
Examiner. It will be disposed of herein below.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the Respondent admits in its answer,2 that "Respond-
ent is, now and has been at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act."
As the Trial Examiner sees it, the "commerce facts" are so closely intertwined with
the issues as regards the predecessors in title to the business of the Respondent that
the only feasible and/or practical way that he can intelligently present them to all
concerned herein is to insert below the following excerpt from the complaint, which
he, for reasons which will be fully discussed and disposed of below, finds upon the
entire record herein considered as a whole to be a true picture of the "The Business of
the Respondent."
2. Respondent is, and has been at all times material herein, an individual pro-
prietor doing business under the trade name and style of United States Molded Shapes.
3. Respondent is presently in the process of incorporating the business under the
laws of the State of Michigan. This new Michigan corporation is to be known as
U S. Molded Shapes, Inc. Said corporation will take over and operate the identical
business presently being operated by Respondent and more fully described herein.
Any remedy the Board directs to rectify the unfair labor practices alleged herein
should run against said corporation as well as Respondent and the continuation by
said corporation of any unfair labor practice alleged herein will constitute a violation
by said corporation.
4. At all times material herein, Respondent has maintained his principal plant and
office at 201 Haynes Street, city of Cadillac, State of Michigan, where he is, and has
been, engaged in the manufacture, sale, and distribution of molded boat hulls
5. United States Molded Shapes, Inc, herein called Molded, was until Septem-
ber 25, 1961, a corporation duly organized under, and existing by virtue of, the laws
of the State of Michigan. It was a wholly owned subsidiary of Ash-Craft Co., a
Michigan corporation.
'Due to the complicated background Involving the Issues as they concern the named
Respondent herein, the Trial Examiner of necessity feels compelled to use at time, mate-
rial different names to clarify the role of Zick as an individual and that of the name of
Molded Shapes as an entity.
See paragraph 16 of the Respondent's answer General Counsel's Exhibit No 1-E
364 DECISION S OF NATIONAL LABOR RELATIONS BOARD
6. Until September 25, 1961, Molded maintained its principal plant and office
at 201 Haynes Street, city of Cadillac, State of Michigan, where it was engaged in
the manufacture, sale, and distribution of molded boat hulls. During the last 12
months of its business operations, Molded sold and distributed products valued in
excess of $100,000 from its Cadillac, Michigan, place of business directly to points
outside the State of Michigan.
7. On or about September 29, 1961, Molded sold, assigned, transferred, set over,
and conveyed unto its parent Ash-Craft Co its real personal, tangible, and intangible
property, its assets, including the physical and capital assets, and all its liabilities
and other obligations.
8. On or about October 11, 1961, Frank J. Zale, an individual, purchased from
Ash-Craft Co. the physical and capital assets, good will, name, customer list, and
other trade assets of Molded, including all raw material, inventory items, patents,
trademarks, and copyrights. On or about October 1961, Ash-Craft Co. leased the
plant and other premises formerly occupied by Molded to Frank J. Zale. Since on
or about September 25, 1961, Molded has ceased to operate the plant located at 201
Haynes Street, city of Cadillac, State of Michigan.
9. For the period of on or about October 11, 1961, until February 20, 1962,
Frank J. Zale operated at the locations formerly occupied by Molded and engaged
in substantially the same business operations formerly engaged in by Molded de-
scribed above in paragraph 6, and employed substantially the same employees and
supervisors as had been employed by Molded.
10. Frank J. Zale commenced business operations on or about October 11, 1961.
During the 4 months of its operations, Zale, in the course and conduct of his business
operations, sold and distributed from his Cadillac, Michigan, plant directly to
customers located outside the State of Michigan products valued in excess of $18,000.
11. On or about February 20, 1962, pursuant to an offer tendered January 20,
1962, Respondent purchased from Frank J. Zale, the physical assets, good will, name,
customer lists, and other trade assets of Molded, including all raw materials and
inventory items which were subject to a purchase money chattel mortgage held by
Ash-Craft Co. On or about February 20, 1962, Frank J Zale assigned his interest
in the lease of the plant owned by Ash-Craft Co. to Respondent. On or about
February 12, 1962, Respondent entered into an agreement with the Ash-Craft Co.
whereby Ash-Craft assigned its interest in the aforesaid purchase money chattel
mortgage to Respondent and also agreed to extend the lease to October 1962. On
or about February 5, 1962, Respondent entered into an agreement with Raymond
Wagemaker, actual owner of the Molded patents and trademarks which were assumed
to have been owned by Ash-Craft Co and Frank J Zale, whereby Respondent ob-
tained the exclusive use of the patents and trademarks in respect to products formerly
manufactured by Molded and Frank J. Zale and which were to be manufactured by
Respondent.
12. Since on or about February 20, 1962, Frank .i. Zale has ceased to operate the
plant located at 201 Haynes Street, city of Cadillac, State of Michigan, and on or
about February 20, 1962, and at all times subsequent thereto, Respondent has
operated at said locations, and has been engaged in essentially the same business
operations formerly engaged in by Molded and Frank J. Zale described above in
paragraphs 6 and 8, and has employed substantially the same employees and super-
visors as had been employed by Molded and by Frank J. Zale.
13. The principal managerial employee of Respondent, Andrew Kolarik, held
this identical position with Molded and Frank J. Zale.
14. On or about February 20, 1962, Respondent commenced business operations.
During the first 6 weeks of its operation, which period is representative of what
Respondent's sales will be throughout 1962, Respondent, in the course and conduct
of its business operations, manufactured, sold, and distributed from its Cadillac,
Michigan, plant, directly to customers located outside the State of Michigan, prod-
ucts valued in excess of $7,500
15. During the calendar year 1962, Respondent, in the course and conduct of its
business operations, will manufacture, sell, distribute, and ship products, valued in
excess of $50.000. from its Cadillac, Michigan, plant directly to points outside the
State of Michigan.
16. Respondent is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
In the Trial Examiner's opinion, the nature of the Respondent's business at the
time of the hearing herein is best summed up in the following excerpt from the
testimony of Kenneth A. Zick at the hearing herein:
T J I T ED STATES MOLDED SHAPES 365
Q (By. Mr. WILKS.) Mr. Zick, are you the sole proprietor of the business
located at 201 Haynes Street, Cadillac, Michigan, at the present time and
known as United States Molded Shapes?
A. U.S. Molded Shapes, yes.
Q. What is the nature of that business?
A. We manufacture and supply molded boat hulls to boat builders through-
out the United States and we've built up a line of kit boats and we also have
developed a line of industrial business involving molded plywood.
Q. How long have you been engaged in this business?
A. I believe the date was February 7th when we started production.
In the circumstances, the Trial Examiner finds that the Respondent herein, Ken-
neth A. Zick, d/b/a United States Molded Shapes, is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 980 of the International Association of Machinists , AFL-CIO, is a labor
,organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
FOREWORD
As the Trial Examiner sees it no proper understanding of the issues herein could
be had without a resume of the events that led up to the acquisition of the title to
the "entity" referred to in the pleadings and the caption herein as "U.S. Molded
Shapes," by "Kenneth A. Zick." In October 1949 U.S. Plywood Corporation,
through, one of its subsidiaries, The Algoma Plywood Company of Algoma, Wis-
consin, sold its patents to a molded boat hull operation which it had initiated and
developed over the years before 1949, to the Wagemaker Company, of Grand
Rapids, Michigan. One of the most important incidents that flowed from the sales
agreement between the parties was Wagemaker's employment of Andrew Kolarik,
who had been employed by U.S. Plywood since 1937. The record shows that he
not only was one of the originators of the product we are concerned with herein, but
a designer and authority on the construction of boats of all kinds as well. The
history of U.S. Molded Shapes from the time that Wagemaker acquired it to all
times material herein is in effect the "Story of Kolarik."
That chain of title is of importance herein is evidenced by the fact that 21 of the
35 numbered paragraphs of the complaint herein refer to prior owners of "Molded
Shapes." For this reason the Trial Examiner feels that a "rough draft" of the
chain of title of the "entity" would be helpful to all concerned . Consequently it
follows below.
(1) U.S. Plywood Corporation
(2) Algoma Plywood Company [Molded Shapes Dept.]
Sold October-1949 TO:
(3) Wagemaker Company-Grand Rapids, Michigan
Sold February-1960 TO
(4) Wagemaker-Schott Enterprises-who "set up"-
(5) U S. Molded Shapes Inc. at Grand Rapids, Michigan, destroyed by fire-
April, 1960
Operation moved to Cadillac, Michigan, where it was set up in the same
building with Cadillac Marine & Boat Company a subsidiary of Wagemaker-
Schott Enterprises-
(6)U S. Molded Shapes-Division-Now at Cadillac, Michigan.
Wagemaker-Schott Enterprises.
(7) Ash-Craft-purchased Wagemaker-Schott Enterprises in June, 1961. Then
sold To-
(8) Frank Zale-[Ash-Craft closed U.S. Molded Shapes, Inc. in August, 1961,
and sold it and equipment, at PUBLIC AUCTION on October 10, 1961-
to Frank Zale] to-
(9) Kenneth A. Zick d/b/a-U.S. Molded Shapes Present Owner and Respond-
ent herein. [Zale went "broke" and sold to Zick in February, 1962.1
A more detailed history of U.S. Molded Shapes, Inc., and its relations with the
Charging Union will follow below.
The phrase "Molded Shapes" as used herein refers to the finished product of the
Respondent , which is a boat hull constructed of plywood. As the Trial Examiner
interprets the record the idea of constructing boat hulls out of plywood originated
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the Algoma Plywood Company, in Algoma, Wisconsin, which is a subsidiary of the
U.S. Plywood Corporation. At the time Andrew Kolarik was employed by Algoma
Plywood and was one of the originators of the idea Sometime in October 1949,
U.S. Plywood sold its right, title, and interest in "Molded Shapes" to the Wagemaker
Corporation in Grand Rapids, Michigan. At the time the sale was consummated
U.S Plywood "loaned" Kolarik to Wagemaker to set up the "Molded Shapes" division
in its Grand Rapids plant. About 3 months later Kolarik accepted a full-time position
with Wagemaker, as plant superintendent, boat designer, and "trouble shooter," as
he described it in his testimony at the hearing herein. About this same time Wage-
maker incorporated the molded plywood boat hulls division it had purchased from
U.S. Plywood, under the laws of the State of Michigan. as U.S. Molded Shapes, Inc.
Kolarik has remained with the "entity" over the years since its incorporation and
through its many changes in ownership. At all times he has been in charge of the
actual operation of the business insofar as the production of its finished products
are concerned.
At the time Wagemaker purchased the business it also operated two other com-
panies that were engaged in the manufacture of boats- (1) The Cadillac Marine &
Boat Company, Inc., at Cadillac, Michigan; and (2) the Empire Boat Company, Inc.,
at Frankfort, New York.
At this point the Trial Examiner feels that he should point out to all concerned
herein that Wagemaker owned the patent rights to "Molded Shapes" at all times
material herein until it sold them to Zick in February 1962. The importance of this
observation will be apparent below.
As indicated above one of Wagemaker's subsidiaries, Cadillac Marine and Boat
Company, herein referred to as Marine, was located in Cadillac. Michigan Since
the incidents we are concerned with herein occur not only in Cadillac, but in the
very same building that housed Marine, the Trial Examiner feels that he should,
at this stage of the report, set forth a brief history of Marine and its relations with
the Charging Union herein That Marine is of primary importance to the disposal
of the issues herein will be apparent below in that section of this report dealing with
the Respondent's defenses and the appropriate unit.
Sometime in the latter part of 1953, Wagemaker set up the Marine operation in a
"pre-existing" structure in Cadillac, Michigan 3 Shortly after the plant started up
the Union started its organization among Marine's employees The upshot of its
activities led to the certification of the Union on April 27. 1955. as the collective-
bargaining representative of Marine's employees in the appropriate unit consisting
of "all employees of the Company, but excluding office and clerical employees,
supervisors and guards as defined in the Act " 4 Further comment as regards the
appropriate unit will follow below in another section of this report.
On or about September 1, 1959, the Charging Union entered into an agreement
with Cadillac Marine and Boat Company, which was to be effective until July 31,
1962.5 included within the agreement was a provision for "Union Security," which
provided inter alia , that " .. all employees covered by this Agreement shall, thirty-
one (31) days after the date of execution of this Agreement or in the case of new
employees thirty-one (31) days after the date of hiring, become members of the
Union and remain members in good standing in the Union during the terms of this
Agreement " The importance of the foregoing excerpt from the agreement in question
will be apparent below in that section of this report devoted to the "accretion" of
"Molded Shapes" to the unit found appropriate at Cadillac Marine and Boat Company
and the "Union Security" clause as it "presumably" effected the employees involved
herein At the time the agreement was entered into Cadillac Marine & Boat Company
was a wholly owned subsidiary of Waeemaker.5
Sometime in either January or February 1960, Andrew Kolarik was assigned
to Cadillac Marine and Boat Company, in Cadillac, Michigan. to "iron out" certain
engineering problems that had arisen in that plant At the time Kolarik was still
in charge of the U.S. Molded Shapes operations in Grand Rapids, Michigan. At this
3 See Cadillac Marine & Boat Coinpanv . 115 NLRB 107 , for a more detailed description
of Wagemaker ' s operations in Cadillac , Michigan.
' See Case No . 7-RC-2730, not published in NLRB volumes . and article I of General
Counsel's Exhibit No . 3, the "Agreement" between Cadillac 'Marine and Boat Company
and the Union dated September 1, 1959.
s See General Counsel's Exhibit No 3
e Schott Enterprises purchased Wagemaker ' s interest in February 1950 and thereafter
the ownership of the entities involved herein are referred to as Wagemaker- Schott Enter-
prises. See infra.
UNITED STATES MOLDED SHAPES 367
point the Trial Examiner feels that he should insert herein the following excerpt
from Kolarik's testimony which gives us a picture, so to speak, of his role in the
incidents we are concerned with herein.
Q. (By Mr. WILKs.) You were hired by Wagemaker as superintendent and
boat designer?
A. Yes, sir. I was superintendent-hired as superintendent and boat designer
and convention trouble shooter for all plants and subsidiaries owned by the
Wagemaker Company.
Q. Then Wagemaker incorporated the Molded Boat Division as a subsidiary,
is that not correct?
A. Yes.
Q. And that became known as United States Molded Shapes, Inc., is that
correct?
A. Yes.
Q. And this was the plant that was located in Grand Rapids?
A. Yes, sir.
Q. Now could you explain how the plant came to be transferred to Cadillac
from Grand Rapids?
A. That plant, as I said, prior to the movement of the plant I had been trouble
shooter and also designer and consultant by all subsidiaries of Wagermaker
Company and it was my duty during all these times to come to Cadillac and
to Empire Boats and also to evaluate the parent company which was a company
located in another building, so in February of 19-as a matter of fact in the
first part of February 1960 1 was sent to Cadillac Marine and Boat Company to
iron out some problems.
TRIAL EXAMINER' Cadillac what?
The WITNESS: Cadillac Marine and Boat Company to iron out some prob-
lems.
Q. (By Mr. WILKS.) Cadillac was acquired in 1960, is that right?
A. Approximately, I think so, I don't know exactly when it was acquired.
Q. Before we go on, was that plant located in Cadillac?
A. Cadillac, Yes, Cadillac Marine and Boat Company was located on
Seventh Street in Cadillac, Michigan.
Q. Now what did Cadillac Marine and Boat Company produce?
A. Cadillac Marine and Boat Company produced essentially or started to
produce aluminum boats and subsequently went into the fiberglass boats also.
Q. And you're saying then in February 1960 or January 1960 you were sent to
Cadillac Marine and Boat Company in Cadillac, is that right?
A. Right, yes, sir.
As will be apparent below Kolarik's role in the life of U.S. Molded Shapes, Inc.,
remained of singular importance from the time of its creation as an entity to all
times material herein, despite its many changes of ownership. As the Trial Examiner
sees it Plywood Molded Shapes was far more than a source of Kolarik's livelihood it
was in fact his hobby. This is understandable when one takes into consideration
the fact that he helped to develop them as a useful product when he was employed
by U.S. Plywood more than a quarter of a century ago.
As the Trial Examiner interprets the record one of the problems that confronted
Kolarik in Cadillac was the installation of machinery at 201 Haynes Street, since
it was at this time that Cadillac Marine and Boat Company moved from its Seventh
Street plant to the old B. F. Goodrich Rubber Company plant on Haynes Street,
where it was at all times material herein insofar as Molded Shapes is concerned.?
We now come to another change in the ownership of Molded Shapes. Sometime
in February 1960 Schott Enterprises obtained financial control of Wagemaker and
its subsidiaries, which as indicated above, insofar as the record herein is concerned,
consisted of United States Molded Shapes, Inc., then located in Grand Rapids, Michi-
gan, Cadillac Marine and Boat Company, Cadillac, Michigan, and Empire Boat
Company, Frankfort, New York.
In April 1960, the United States Molded Shapes plant in Grand Rapids, Michigan,
was destroyed by fire. Though a considerable portion of its physical assets were
destroyed or damaged in the fire, it was able to salvage the auto claves, which are
the most important equipment used in the construction of Plywood Molded Shapes.
In passing it might be well to insert herein a description of this piece of equipment.
Zick in the course of his testimony, described the "auto clave" as ". . . a flat, steel
7 The Importance of this observation will be apparent below in the testimony of Marjorie
E. Smith, one of the Respondent 's witnesses.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chamber, forty feet in length and eight feet in diameter, the inside dimension, with
a huge, heaving door which is closed. They are operated by injecting live steam
and pressure, sixty-five pounds per square inch at about three hundred degrees pres-
sure which activates the glue and bonds and welds the molded plywood into one
seamless piece."
After Schott Enterprises took over Wagemaker and its subsidiaries, it moved the
United States Molded Shapes plant from Grand Rapids to Cadillac, Michigan, and
housed it with Cadillac Marine and Boat Company in the old Goodrich Rubber Com-
pany plant, 201 Haynes Street, where both companies were located at all times
material herein.
As the Trial Examiner interprets the record Molded Shapes as a separate entity
ceased to exist after its operations were moved to Cadillac. Consequently through-
out the period that its operations were under control of Schott Enterprises it was
considered a division or department. At the time it was set up Kolarik was designated
as the "superintendent of the molded division." With the establishment of the
"molded division," Wagemaker-Schott Enterprises now had the following entities
of the old Wagemaker Company in its property at 201 Haynes Street: Cadillac Marine
and Boat Company, which manufactured aluminum and fiberglass boat hulls, and
Molded Shapes, which manufactured plywood hulls. In addition to its boat hull
operations Cadillac Marine had a woodworking department which manufactured
boat seats and other wooden products for boat interiors. After Wagemaker-Schott 8
effected its reorganization of the "old Wagemaker" company, Kolarik was given the
following titles, "assistant plant superintendent," "superintendent of the Molded
division," and "engineer and designer of all engineering."
We now come to what the Trial Examiner considers one of the most exasperating
and difficult issues involved in this proceeding. He has reference to the source of
its labor, when it set up the molded division in Cadillac. Without burdening this
report with the conflicting views of counsel as to its source, the Trial Examiner is
convinced that the foregoing sums up this pestiferous issue. As he interprets the
record here is what happened. For the most part the employees that were hired
to work in the molded division were either former employees of Cadillac Marine
who were on a "lay-off" status, such as those who had developed an "occupational
dermitatus" from working on "fibre-glass" hulls, or former employees who had either
been laid off for other reasons, and certain local people who were qualified for
working with plywood. As to transferees from the "Cadillac" division directly to
the "molded" division, the Trial Examiner accepts Kolarik's testimony that they
constituted "only about 10% of the total." In addition two or three were former
employees of Molded Shapes in Grand Rapids, Michigan As to the number of em-
ployees in the division, the record is none too clear. However, it does show that
at the peak of employment, which would be during the months prior to the "Boat
Shows" over the country, there were about 18 or 20 employees, and thereafter around
12 or 15.9 At all times material herein at least 80 percent of the employees of
"Molded Shapes" were females.
The record is none too clear as to just when the "Molded Shapes" division started
production in Cadillac. However it does show that it took considerable time to
move the "Auto Claves" from Grand Rapids, and install them in Cadillac. In addi-
tion there were other engineering problems involved such as setting up the other
machinery and auxiliary equipment. The importance of this observation will be
apparent below.
On or about July 8, 1960, the Charging Party, Lodge 980, of the I AM., and
Cadillac Marine and Boat Company, made and entered into an "Amendment To
Agreement Between Cadillac Marine and Boat Company of Cadillac, Michigan, and
Lodge #980." The "Agreement" referred to is the "1959 Agreement" between the
parties that has been referred to above. The importance of the "Amendment" is
threefold: ( 1) no mention is made of the "Molded Shapes" division; (2) the dura-
tion of the "1959 Agreement" was not changed; and (3) the minimum wage of
employees was not changed.10
8 As indicated in the chart set forth above in the record and in the briefs of the parties.
the ownership we are now concerned with is referred to at most times as "Wagemaker-
Schott Enterprises "
9 According to the Trial Examiner the "boat-shows" are held during March and April
at various points over the country.
10 Importance of this observation will be apparent infra. Suffice it to say at this point
that reference is made to the "recognition amendment" by Cadillac "Marine and Boat Com-
pany of Lodge No 980 as the bargaining representative for the Molded Shapes division
dated December 28, 1960, General Counsel's Exhibit No 5
UNITED STATES MOLDED SHAPES 359
On December 28, 1960, Wagemaker-Schott executed a second supplement to the
"1959 Agreement" which set forth inter alia the following wage rates for "Molded
Shapes" employees:
Classification
Periodic
Minimum increases 1 aximu ni
Girls and finishing helpers__ $1.37 5¢ bi-monthly---------------- $1.47
Men's Rates______________ 1.52 50 bi-monthly---------------- 1.62
The following rate was agreed to for tooling helpers:
Periodic
Classification Minimum increases Maximum
Tooling helping Rates ----- $1.52 5¢ bi-monthly---------------- $1.62
(After the tooling helpers have achieved the maximum rates set forth
above, namely, $1.62, they will receive a 5¢ per hour increase each 90
days following the last increase until they reach the maximum pay of
tooling which is currently $1.92 per hour.)
All other provisions of the contract will prevail for these workers including the
5¢ per hour raise which will be effective August 1, 1961.
----------------------------------------
------ ---------------------------------
(Signators unintelligible on photostat of
original exhibit)
At this point the Trial Examiner desires to point out that at the time the above
agreement was under discussion and signed by the parties that insofar as this record
is concerned there were no employees of the "Molded Shapes" division present. Nor
is there any evidence in this record that they were either advised of the discussions
between Local 980 and Cadillac Marine officials as to their inclusion in the unit or
even consulted as to their wishes and desires in this regard.
A most disturbing factor as regards the signing of the above "Agreement" is that
the officials of Cadillac Marine and Boat Company who signed the above agreement,
namely Harry Barch, secretary of Wagemaker-Schott, and William Bogart, plant
superintendent of Cadillac, neither consulted with Kolarik as regards the Union's
request for inclusion of Molded Shapes employees in the appropriate unit nor even
advised him that they had agreed to do so until several days after they had signed
the agreement in question.
Wagemaker-Schott continued its operation of Cadillac Marine and Molded Shapes
as separate entities under the "same roof," so to speak, until June 1961, when it sold
its holdings to the Ash-Craft Corporation.
According to the Trial Examiner Ash was a minority stockholder in the Wagemaker-
Schott Enterprises Corporation Except for the change in name the operations of
Cadillac Marine and Molded Shapes continued as before the sale.
We now come to what the Trial Examiner considers one of the most important
factors herein, insofar as Molded Shapes is concerned. At this point it might be
well to again briefly sum up its "history" from the time U.S. Plywood sold its patents
for "Molded Shapes" to Wagemaker. As indicated above Wagemaker operated the
division from 1949 to February 1960 in Grand Rapids, Michigan. In February 1960,
Wagemaker sold his financial interests in the Wagemaker Company (but not his
patents for the Molded Shapes operation) to Schott Enterprises, who sold it to
Ash-Craft in June 1961. It is the history of the division or operation after Ash-Craft
acquired it that has caused the Trial Examiner grave concern in his ultimate disposal
of the issues herein.
According to the record, Ash-Craft continued the Molded Shapes operation until
around August 1, 1961, at which time it was shut down and offered for sale under
the following circumstances.
According to the credible testimony of Andrew Kolarik, who. as indicated above,
had been in charge of the operation of the Molded Shapes division at all times mate-
rial herein, he had been informed by Ash in June 1961, that he intended to move all
of his "enterprises" to West Virginia and to close the department down In the Trial
Examiner's opinion, Kolarik's testimony in this regard best tells the story. Conse-
quently the following pertinent excerpt therefrom follows below:
The WITNESS: No, I don't think so. It always stayed as a department until
it was sold or until he informed us to cease operations. At this time in January
or in June Mr. Schott, I'm sorry, Mr. Ash informed me that as long as we were
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not, or I was not interested in moving with their enterprises to West Virginia,
then I shouldn't accept any more orders. We would honor the orders we had
until we ran out and then it would cease to be even a department.
Q. (By Mr. WILKS.) Well didn't Mr. Frank Stalling-
A. Stalling?
Q. Yes, who is he?
A. He was a liquidator for Ash-Craft.
Q. Well did he indicate to you in August of 1961 that at that time he was
planning to dissolve the corporation U.S. Molded Shapes
A. U.S. Molded Shapes Department and operations.
Q. But not dissolve the corporation, just the operation?
A. Yes.
Q. And that was in August of 1961?
A. Yes, and I was informed not to accept any orders then because this divi-
sion, they were not interested in keeping it up, they were just interested in keep-
ing it going after they got to West Virginia.
At the time Ash informed Kolarik of his intention to close down the Molded
Shapes department, he offered him a job with the Company at its new West Virginia
location. Kolarik rejected his offer for personal reasons, primarily because of his
interest in the Molded Shapes operation and the plywood industry in general. Ash
then suggested that he try and locate a buyer for the machinery which he had al-
ready advertised in several trade publications would be sold at public auction on
October 10, 1961. Since here again Kolarik's testimony in this regard best tells the
story, the following excerpt therefrom is likewise inserted below:
Q. Can you tell us anything more about the auction sale, when it was
conducted?
A. Ash-Craft-in my discussion with Mr. Ash and Mr. Stalling of the Ash-
Craft Company they told me that they were going to hold an auction sale of all
the machinery pertinent to the wood department and the Molded Shapes De-
partment and Mr. Ash told me that as long as I had no desire to move to West
Virginia, it would be more than likely in my interest to take some of the equip-
ment that was going to be on auction and was going to be, I knew, left over
because it was only pertinent to the Molded operation, if we took this
equipment and found someone with money and gathered this up it would be to
my best interests to get into this business and I thought this was right because
having had a good twenty-five years of experience in this I wasn't desirous of
finding another job, so therefore it was offered at auction and found Mr. Zale
and had him up there just two days before the auction began and they discussed
some of the machinery and some of the prices, however Mr. Stalling said that
nothing could be settled finally until the public auction had been held because
of the fact that all this equipment that was advertised was advertised in the
brochures that the auctioneer circulated and it had to be offered at public auc-
tion. However some of the equipment that we had talked about could be
offered as "friendly," that's known in auction terms or in other words there had
been a previous bid, but this however was not done on the autoclaves, the molds
and all the machinery that are now held by us, except for the new additions,
were offered at public auction.
Q. They were offered?
A. Yes, sir. There were no bids accepted, so then the "friendly" bid was the
next one accepted by Mr. Zale and this is the way the machinery and so on was
bought.
As indicated above Kolarik located a buyer, Frank Zale, who purchased Ash-
Craft's interest in the Molded Shapes operation and its equipment, at public auction
in the city of Cadillac, Michigan, on October 10, 1961, and took over the business.
The record is none too clear as to just when the division, i.e., Molded Shapes, got back
into production, but it does indicate it was sometime between October 11 and 16,
1961.
Kolarik continued on with Zale, and was not only the general manager of the
business, but was in fact the "business" insofar as the employees and the general
public were concerned. This is evidenced by the fact that from the time Zale pur-
chased Ash-Craft's interests in Molded Shapes at public auction on October 10, 1961,
until he sold it to Zick in early 1962, he visited the plant on only two occasions.il
At this point the Trial Examiner desires to point out to all concerned that the
employees who worked in Molded Shapes were permanently laid off by Ash-Craft
"From Andrew Kolarik's credible testimony.
UNITED STATES MOLDED SHAPES 371
on or about August 1, 1961 After Zale purchased it Kolarik called them back to
work sometime after October 10, 1961. Consequently as far as the Trial Examiner
is concerned they became new employees of Zale. He makes this observation at this
time because it goes to explain his appraisal of their overall attitude towards job
security which will become evident to all concerned herein by the independent action
they took in January 1962 when they filed their decertification petition with the
Board's Regional Office in Detroit, Michigan. The purpose of this observation will
be apparent below in that section of this report that deals with the events that tran-
spired during January 1962 and the sale of Molded Shapes to Zick by Zale.
Another factor that the Trial Examiner deems of considerable importance at this
stage of the report is the lease arrangement between Zale and Ash-Craft. An
examination of the "Lease Agreement" between the parties shows that it is for a
6-month period, with the following provision as regards renewals.
This lease shall be renewable for additional three (3) month periods at the
option of the party of the first part [Ash-Craft]. After the expiration of the
1st six month period, the option to renew provision shall be cancellable upon
either party giving the other 30 days written notice of its intention to cancel.
The importance of the lease agreement and its effect upon both Zale and Zick will
be apparent below.12
What transpired at Molded Shapes after Zale took it over follows below.
As indicated above Zale became the legal owner of U.S. Molded Shapes on or
about October 10, 1961, and shortly thereafter commenced operations under that
name Kolarik was retained as general manager and "partner" in the business. When
Zale started up production Kolarik hired 15 employees, a majority of whom were
former employees of Ash-Craft, and who had been permanently laid off by it when
it discontinued its Molded Shapes division or department on or about August 1, 1962.
At this time the Trial Examiner points out that after Zale purchased the Ash-Craft
interests in Molded Shapes, there were now two separate "entities" lodged in the old
B. F. Goodrich Rubber Company building at 201 Haynes Street, Cadillac, Michigan,
namely Cadillac Marine and Boat Company and Frank Zale, d/b/a U.S. Molded
Shapes.13
Sometime in the latter part of October or early in November 1961, a representative
of the Union called Kolarik and requested that he recognize it as the majority rep-
resentative of Molded Shapes' employees as their bargaining representative for the
purposes of collective bargaining. Kolarik refused to do so. His testimony in
this regard follows below:
TRIAL EXAMINER: And you say they asked for recognition?
The WITNESS: Yes, Sir.
TRIAL EXAMINER. And when was that?
The WITNESS: About the latter part of November-October 1st to November.
TRIAL EXAMINER: The Union asked you?
The WITNESS: The Union representative, Mr. Jackson, called me on the
phone and set up our first meeting.
TRIAL EXAMINER: They-did they make or did they contend then that it
was a new unit, a new group of employees?
The WITNESS: No, they contended it was still the same unit and the same
employees and so on.
TRIAL EXAMINER: In other words they asked you to continue recognizing them
as the certified agent for the original unit which was at Cadillac Marine?
The WITNESS: That's right.
TRIAL EXAMINER: And you refused to do that, is that right?
The WITNESS: That's right.
Q. (By Mr. WILKS.) Did you refuse to do it because it was a new business?
A. No, because of the long complicated history I didn't think it was essential,
number one, and number two, as I'd hired these employees I had been asked
whether they had to be a part or become part of the Union and I said, to my
knowledge, no. [Emphasis supplied.]
Q. And so you refused recognition?
A. Yes, sir, I did.
12 Though Zick's lease agreement with Ash-Craft was In some respects different as to
its "term," nevertheless it was still for a short period of time and caused him grave
concern See anon for further discussion in this regard
13 See the General Counsel 's Exhibit No. 8.
708-006-64-vol. 141-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL ExAMINER: And you considered this an entirely new and separate
business?
The WITNESS: Yes, sir, I did.
The upshot of Kolarik's refusal to recognize the Union as the bargaining agent of
Zale's employees was the filing of a charge by the Union on December 12, 1961,
Case No. 7-CA-3484, of which more anon.14
As the Trial Examiner sees it all of the foregoing constitutes "background" for
an understanding of the issues we are confronted with herein. His reasoning in this
regard will be apparent in the next section of this report which will be disposed of
below:
A. The alleged independent violations of Section 8(a) (1) of the Act
As indicated above the source of the alleged violations of Section 8(a) (1) and (5)
of the Act, from a factual standpoint, actually commenced and in fact several of
the incidents occurred when the "Molded Shapes" entity was owned and operated
by Zale, of which more anon below.
Let us first take a look at the situation the employees involved herein were faced
with when Zale took over the business from Ash-Craft. The reason for the Trial
Examiner's approach to the disposition of the issues herein in this manner is because
he is convinced that "employees" themselves as human beings and citizens have rights
under the Act the same as "entities" such as labor organizations and "employers."
According to Kolarik's uncontradicted and undenied testimony, which is fully
credited by the Trial Examiner, the employees themselves asked him when he
hired them for Zale, d/b/a U.S. Molded Shapes, ". . . whether they had to be a
part or become a part of the Union and I said, to my knowledge, no." 15 Whether or
not his interpretation of the law was correct is not an issue, but is set forth herein
solely for the purpose of assaying the mental attitude of the employees involved in
this proceeding, not only at the time they went to work for Zale but while they
were employed by Zick, the Respondent herein. To the Trial Examiner at least,
this is an important factor, and goes to explain why certain incidents, that are
pertinent to the issues herein, occurred later on and led to the issuance of the com-
plaint in this proceeding.
Another important factor is this, that some employees in the period from June
1960 to February 8, 1962, or approximately 18 months, had worked for four
employers, Wagemaker-Schott Enterprises, Ash-Craft, Zale, d/b/a United States
Molded Shapes, and finally Kenneth Zick, d/b/a U.S. Molded Shapes. In addition,
they had been permanently laid off by Ash-Craft for at least 2 months, and by Zale
for at least 2 or 3 weeks,16 before Zick took over the business.
A third factor is that the employees of Molded Shapes never as individuals had a
voice in the selection of the Union as their bargaining agent.17 That is clearly
evidenced by the fact that they were included in the unit with the employees of
Cadillac Marine and Boat Company, by the agreement between Wagemaker-Schott
Enterprises and the Union on December 28, 1960, without their knowledge or
consent.18
In the Trial Examiner's opinion, no trier of the facts can conscientiously ignore
this background in disposing of the issues herein, particularly in view of the plain
language of the Act which repeatedly uses the phrase "employees."
As pointed out above Kolarik, speaking for Zale, d/b/a U.S. Molded Shapes,
refused to recognize the Union as the collective-bargaining representative of its
employees sometime in the latter part of October 1961. On December 12, 1961,
the Union filed a charge against the Respondent with the Regional Director of the
Seventh Region alleging a refusal to bargain. Thereafter the Regional Office in-
vestigated the charges. What transpired during the course of the investigation is,
in the Trial Examiner's opinion, of the utmost importance for the following reasons.
First let us look at the documentary evidence in the record. The Trial Examiner
has particular reference to General Counsel's Exhibit No. 2, which is a "Settlement
Agreement" signed by "Andrew Kolarik, General Manager" for Frank Zale, d/b/a
U.S. Molded Shapes, dated February 1, 1962, and approved by the Regional Director
14 See infra in re settlement agreement between Frank Zale, d/b/a United States Molded
Shapes and Lodge 980, of the International Association of Machinists, AFL-CIO, dated
February 1, 1962. General Counsel's Exhibit No. 2.
18 See excerpt from Kolarik's testimony supra.
16 See infra.
17 See infra in re discussion as.
28 See supra.
UNITED STATES MOLDED SHAPES 373
of the Seventh Region , Thomas Roumell , on February 8, 1962. The importance of
this "Agreement" and the dates thereon will be apparent below.
The record clearly shows that sometime early in January 1962 , Zale was in bad
straits financially and had so advised Kolarik. Shortly thereafter Kolarik , who had
a vital interest in the Molded Shapes operation , called on Hal Bell, secretary of the
Cadillac, Michigan, Chamber of Commerce, and told of Zale's predicament and
that the business was not only "defunct ," but that "it was a dead duck," and re-
quested that he find someone to take it over.19 Bell agreed to do so, and as will be
shown below was successful in locating a purchaser for the Zale interests.
By sheer coincidence, shortly after Bell had talked to Kolarik about finding a
purchaser for the Zale interests in Molded Shapes , he met a local real estate man,
Darrell McCarthy, who knew of a prospective purchaser. The upshot of their con-
versation and joint efforts thereafter was that Kenneth Zick was contacted and visited
the plant on January 10, 1962. A resume of what transpired thereafter will be set
forth below.
As the Trial Examiner interprets the record Zick's inspection of the Molded
Shapes operations on January 10, 1962, had a serious effect upon the employees,
who by this time presumably were well aware that something was afoot , so to speak,
as regards their "employer" which might seriously affect their source of livelihood,
that is, their jobs. When this factor is considered in the light of their past ex-
periences with the Molded Shapes operation as an "entity," then one is able to
comprehend their feelings as regards job security after Zick 's inspection of the plant
on the above date. Moreover, to the Trial Examiner at least, it explains their con-
certed activities thereafter which led to the charge and the complaint herein.
It was in this background that the charge in Case No. 7-CA-3484, Frank Zale,
d/b/a U.S. Molded Shapes, was being investigated by an attorney field examiner
from the Board's Regional Office in Detroit, Michigan. The importance of this
observation will be found below in that section of this report dealing with the first
decertification petition filed by the employees of Molded Shapes.
At long last we come to the role of the employees of Molded Shapes in the inci-
dents that constitute the alleged unfair labor practices we are concerned with herein.
To some perhaps, the incident that the Trial Examiner is about to discuss at this point
in the report may seem a bit out of place , but not to him for reasons that will be
apparent below.
Sometime in the latter part of January 1962, the employees of Molded Shapes were
discussing their predicament among themselves during the lunch period . As indi-
cated above they were again faced with a change of "employers," and naturally were
worried and concerned about their future. This is understandable when one con-
siders it in the light of what they had gone through with since Molded Shapes "set-up"
in Cadillac . One of the most important problems that concerned them was their
relations with the Union , which as indicated above was then "bargaining agent"
under the terms of the December 28, 1960, agreement between Wagemaker -Schott
Enterprises and the Charging Union herein, by virtue of the "Accretion" doctrine,
and not by choice. What transpired during their luncheon meeting is best told in
the testimony of one of the employees who was present at the time their decision
to file a petition decertification was discussed . Consequently the following excerpt
from the testimony of Mrs. Dorothy Mullins, is set forth below:
Q. (By Mr. MILTNER.) Now I show you, Dorothy, a document that is
marked Respondent's Exhibit 1 and I ask you if you have seen it before?
A. Yes, I have.
Q. What is it?
A. It is a petition from the employees there for decertification.
TRIAL EXAMINER: By there, what do you mean?
Q. The WITNESS: United States Molded Shapes.
Q. (By Mr . MILTNER .) This is the petition , you meant , by employees of
United States Molded Shapes, employed by Mr. - no, for decertification?
A. Yes, it is.
Q. And that means to get out of the Union.
A. Yes.
Q. How did that come into being?
A. Well we talked among ourselves , we employees, and we didn 't know how
to go about it for decertification, so we asked Mr. Kolarik if he knew how to
go about it and he said , no, he did not, but he would seek advice and tell us.
He consulted someone, I don 't know his name, who he consulted , and he sug-
gested that if we wished decertification that we send this petition into the
19 Quotes from Bell's credited testimony.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board and so I asked Miss Harvey, that was our office
girl, if she would type that out for us during her lunchhour which she did and
gave it to me and I circulated it at the lunch table where we all sit together,
and I circulated it then and it was signed and when it came around to me, I
signed on the bottom , because the one I handed it to first, the girl sitting next
to me, she signed first and then it just went around the table and then to me.
According to the Trial Examiner , Mrs. Mullins mailed the petition for decertifica-
tion to the Board 's office in Detroit , Michigan , on or about January 22, 1962. On
January 25 , 1962, the Regional Director of the Board 's Regional Office in Detroit,
Michigan , sent a letter to one of the employees who had signed the petition, Sue
Kolarik, in which he in effect denied their request for an election for reasons that
are none too clear in the record2° However , according to the testimony of Mrs.
Mullins and Marjorie Smith , employees who participated in the drafting of the peti-
tion, the petition was returned to the employees because it was not properly drafted,
of which more anon.21
The record shows that Zale closed the plant down sometime during the latter
part of January 1962 , and it did not resume production until sometime around the
middle of February 1962 , under the ownership of Zick, of which more anon.
Though the record is none too clear as to just when Zale shut down the operations,
it does show that he and Kolarik were around the plant on or about February 1,
1962, because it was on that date that Kolarik signed a settlement agreement for
Zale in Case No. 7-CA-3484. What transpired prior thereto and related incidents
that occurred before Zale ordered him to sign the agreement will be discussed below.
According to Kolarik , he was interviewed by an attorney field examiner for the
Board sometime in January 1962 , as regards the charges against Frank Zale,
d/b/a U.S . Molded Shapes . The Trial Examiner has pointed out above that Kolarik
told Mrs. Mullins and other employees when they asked him how to go about filing
a "decertification" petition , that though he was not familiar with Board procedure
that he would ask a Board agent , with whom he had an appointment , how to do so,
and would relay the information to them , which the record shows he did shortly
thereafter 22 So from this and other testimony in the record the Trial Examiner
is convinced and finds that Kolarik was in fact the principal representative of Zale
who was interviewed by Board agents in their investigation of Case No. 7-CA-3484.
As indicated above the principal issue in that case was a refusal to bargain with the
Union , Section 8 ( a)(5) and ( 1) of the Act, which was predicated upon Kolarik's
refusal to recognize the Union as the bargaining representative of Zales' employees,
under the circumstances that have been set forth and discussed hereinabove.
According to Kolarik , he met with Zale at the plant on or about February 1,
1962. At that time, it must be remembered Zale was winding up his affairs pending
the transfer of title of U.S . Molded Shapes and sale of the equipment and other
assets to Zick. Moreover , at this particular time the parties had run into some
difficulties as regards the sale, particularly as regards the patent rights, the lease,
and moneys due Kolarik and Matthews , a foreman , from Zale for services rendered
during his ownership . According to Kolarik 's testimony Zale was very anxious to
perfect the sale, and did not want anything to interfere with it , particularly such
problems that might arise from a proceeding before the Board . It was in the light
of this background that Zale ordered Kolarik to sign the settlement agreement referred
to above, and the "Notice to All Employees ," which set forth inter alia, that Zale,
d/b/a U.S. Molded Shapes , ". . . will recognize and bargain" with the Union as
the exclusive bargaining representative of its employees in the appropriate unit.
As the Trial Examiner sees it the foregoing "Settlement Agreement" constitutes
the basis of the General Counsel 's contention that the Respondent herein was under
an obligation to bargain collectively with the Charging Union herein.
20 The record shows that Sue Kolarik was the first employee to sign the petition
According to the credible testimony of Mrs. Dorothy Mullins , she passed the petition
around the table for the employees to sign and Miss Kolarik , who was seated next to her,
was the first to sign it.
21 The original petition and the letter returning it to the employees who signed it were
identified and offered in evidence by the Respondent 's Counsel . They were admitted by
the Trial Examiner without objections from any of the parties herein However they were
not placed in the exhibit file for reasons unknown to the Trial Examiner . He has re-
quested counsel for the Respondent to furnish them or copies thereof so that they may
be placed in the formal exhibit file of the record herein.
22 See infra for further discussion in this regard.
UNITED STATES MOLDED SHAPES 375
On or about February 7, 1962, Zick moved into the plant and resumed the Molded
Shapes operations, even though Zale was still the "legal" owner of the property.
The employees who have formerly worked for Zale were gradually rehired and eventu-
ally the plant got into production sometime around February 20, 1962. As indicated
above the employees had been out of work for 2 or 3 weeks before they were rehired
by Zick.
It was in the light of this background that the employees involved herein found
themselves when Zick resumed full production sometime between February 8 and 20,
1962. That they were concerned and worried is admitted by the General Counsel
in his brief where we find the following excerpt: 23
The employees had returned to work from a brief lay-off. There had been
labor difficulties with an absentee owner who sold out after a short tenure.
There had been auction sales. Ash-Craft planned to move South. Employees
in this situation are necessarily more sensitive to the desires of another new
out-of-town owner. They would try to do as much as they could to make him
satisfied with the area. With its employees in such a vulnerable position. Re-
spondent's General Manager took the first steps.
As the Trial Examiner sees it the General Counsel takes the position that Kolarik
very subtly suggested to the Molded Shapes employees sometime during the investi-
gation of the charge in Case No. 7-CA-3484, that they could get out of the Union
by using the facilities of the Board. His contention is rejected in this regard for the
simple reason that the record does not contain a scintilla of reliable and probative
evidence to substantiate such a finding. The only evidence in the record upon which
such an inference could be drawn is that found in the testimony of Mrs. Mullins,24
Marjorie Smith, and Kolarik whose account of the incident is set forth below in the
following excerpt from his testimony:
Q. (By Mr. WILKS.) Didn't you offer any actual assistance to the original
decertification petition?
A. As a person, yes, but the way this came about Mr. Morad who took my
deposition-
Mr. GOTTFRIED: That's an attorney for the Board.
TRIAL EXAMINER: Just so you have him identified on the record.
Mr. WILKS: He's a board agent.
TRIAL EXAMINER: Spell it please.
Mr. WILKS: M-o-r-a-d.
The WITNESS: After taking my deposition I asked him a specific question,
if-that the employees had come to me and indicated that they didn't want to
be a part of this Union, but they had not been consulted and there was a long his-
tory and I said for the sake of the employees, what could they do and he said,
there is only one thing they can do and that is petition the Board for decertifica-
tion. However he said, you could only tell them their rights, but not order
them, and consequently when the question came up and they all gathered to-
gether and I told them what Mr. Morad had said and I told them at least half
a dozen times during the conversation that I was not suggesting that they go
out for decertification, however if this is-this is what the advice was and conse-
quently they followed through but without my knowledge or without my telling
them additional.
Q. (By Mr. WILKS.) Did you tell them how to go about doing it? Did you
tell them to draw up a petition?
A. Yes, because this is what I had been told.
Q. Did you tell them where to send the petition?
A. I don't think I told them where to send the petition. I believe they called
Mr. "Timholten" and he told them where to send it.
Q. Did you offer them the use of the office secretary for the typing of the
petition?
A. Not during working hours. This was strictly-she was told at that time
that if she did this it was strictly on her own.
As the Trial Examiner sees it here is what happened regarding the filing of the
original petition for decertification. The employees were worried for obvious rea-
sons; in fact they were almost to the point of despair which is understandable when
one takes into consideration the area in which they lived and the scarcity of jobs for
23 Though not used herein by the Trial Examiner for the same purposes as the General
Counsel in his brief, it does nevertheless sum up the "mental atmosphere" at Molded
Shapes when Zick took over the place.
u See supra in this regard.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which they had been trained in the construction of Molded Shapes. It was while
they were under this strain that they decided to find a way to get out of the Union.
Whether their judgment was good or bad is not for the Trial Examiner to determine.
This was their problem. As individuals and "citizens" they had a right to exercise
their own judgment in this regard. It was in this background that Mrs. Mullins
and the other employees went to Kolarik and asked him what they could do to sever
their connections with the Union. He told them in substance that he was not familiar
with the law in this regard, but that he was to meet with a Board agent who was in-
vestigating Case No. 7-CA-3484, the charge against Zale, and that he would ask
him what they could do about it.25 Shortly thereafter he did meet with a Board agent
and discussed the situation with him, and as pointed out above relayed the advice
and information that the Board agent gave him to the employees. The foregoing
raises this question, is it an unfair labor practice for an employer, at the request of a
majority of his employees, to talk to an agent for the Board about the rights of his
employees under the Act, and the procedure that they should follow to secure an
election so that they could have a voice in the selection or rejection of a "certified"
collective-bargaining agent; and (2) to relay this information to the employees who
requested it? In the Trial Examiner's opinion, it is not. For obvious reasons he
deems further comment in this regard frivolous and unnecessary. Though the Trial
Examiner queried the General Counsel's representative at the hearing herein in this
regard, and was advised by him that he did not contend that Kolarik's role in the
foregoing incident was violative of the Act, nevertheless we find the foregoing in
his brief:
The charge, 7-CA-3484, against Zale was filed on December 6, 1961. Dur-
ing the course of the investigation Kolarik submitted an affidavit to a Board
agent and inquired at that time as to a decertification petition. (T. 122.) Kolarik
then proceeded to talk to the employees gathered in the plant and advised them
as how to proceed in decertifying the Union. Kolarik protests that he told
them at least "a half dozen times" that be was not suggesting decertification.
(T. 122.) Although it is no violation merely to recite the law on request, it is
submitted that Kolarik planted the germ of the idea of a decertification petition
and by repeated protests of not suggesting decertification he dropped a heavy
hint of what the employees should do. [Emphasis supplied.]
Though the General Counsel does not contend that Kolarik's role in the above
incident was violative of the Act, he does contend that he planted a "germ" in the
minds of the employees that led them to believe that they had certain rights under the
Act, and the effrontery to attempt to exercise those rights after Zick took over from
Zale. Consequently, when Zick finally took over the Molded Shapes operation he
was faced with a complement of employees who had been exposed to the above-
described "germ." It must be borne in mind that the "germ" was planted in the
minds of the employees involved herein during Zales' ownership of Molded Shapes.
How Zick can be held responsible for Kolarik's pollution of the minds of the em-
ployees while they were working for Zale is beyond the comprehension of the Trial
Examiner, consequently he deems further comment in this regard unnecessary. Suf-
fice it to say at this point, that if the "germ" sowed by Kolarik continues to spread
amongst "employees" across this land of ours and causes them to attempt to exercise
the rights spelled out for them in the Act, then perhaps it might be well to turn the
matter over to the department best equipped to handle such a situation, Health,
Education, and Welfare, commonly referred to as HEW, before the "germ" pollutes
our entire economy.
A further reason for the rejection of the General Counsel's contention that Kolarik
planted the "germ" involved herein, is that the uncontradicted, undenied, and credible
testimony in the record clearly shows that it was the employees themselves who went
to Kolarik and broached the subject, and not as contended by the General Counsel,
that it was the "other way 'round," so to speak. Who sowed the "germ" in the first
place in the minds of the employees that persuaded them to go to Kolarik with their
troubles is not shown in the record. It well may be that some unidentified person
secretly gave them a copy of the Act which they read and literally construed to mean
that they as "employees" had the right to have a voice in the selection or rejection of
an agent for the purposes of collective bargaining with their employer. Whether they
used good or bad iudgment in their interpretation of the Act is no concern of the
Trial Examiner. The important question at issue herein is their rights under the
Act.
25 See supra in re excerpt from Kolarik's testimony in this regard.
UNITED STATES MOLDED SHAPES 377
Insofar as the Trial Examiner is concerned all that Kolarik had to do with the
"germ" was to go to a Board agent and ask him about the procedure the employees
should follow in order to exercise their rights as set forth in the Act.
As indicated above, Zick physically, so to speak, took over the Molded Shapes
operation on or about February 8, 1962.26 What happened thereafter insofar as the
issues herein are concerned will follow chronologically below.27
Before we get into the incidents that occurred after Zick took over physical control
of Molded Shapes, the Trial Examiner desires to point out that on February 8, 1962,
the "Bill of Sale" between Ash-Craft and Kenneth A. Zick was executed. In the
Trial Examiner's opinion, one of the most important provisions therein is found
in the assignment of the lease to the space occuped by Molded Shapes in the old
B. F. Goodrich Rubber Company Building, at 201 Haynes Street, Cadillac, Michigan.
The provision in question follows below:
Ash-Craft Co. does further acknowledge that the consideration for this as-
signment is the payment in cash made to it this day by certified check from
Kenneth A. Zick in the sum of $24,500.00 and the agreement by Kenneth A. Zick
that whenever the autoclaves and other machinery covered by said chattel mort-
gage are removed by him or his assigns or agents from the leased premises, that
he will repair the building to any extent damaged by him or his assigns or
agents in the removal of said machinery, and particularly by rebuilding the wall
and floor to its former condition immediately after said machines are removed;
and that he has agreed to remove same prior to October 30, 1962 and to sur-
render possession of said premises to Ash-Craft or its assigns as soon as prac-
ticable and in any event by October 30, 1962. [Emphasis supplied.]
As emphasized in the foregoing excerpt the lease expires October 30, 1962. At the
hearing herein Kenneth A. Zick testified that he had attempted to get an extension
of the lease from "Ash-Craft" but had been refused, and that consequently he would
be forced to move the entire business to a new location before October 31, 1962.
When Zick moves, then one of the arguments of the General Counsel as to the
"accretion" of Molded Shapes to the Cadillac Marine and Boat Company unit will
have vanished. As the Trial Examiner sees it, here lies another issue, and goes to
explain the predicament the employees were faced with at the time they filed their
second petition for decertification on February 13, 1962, and what transpired
thereafter.
As indicated above, the employees involved herein filed another petition for de-
certification with the Board's Regional Office in Detroit, Michigan, on February 13,
1962.
We now come to what the Trial Examiner considers the most controversial issue
herein. He has reference to the role of Zick, Kolarik, and Attorney Miltner in the
concerted action of practically 100 percent of the Respondent's employees to get
relief of some kind from the Board as regards the Union. Simply stated, all they
wanted was the right to have a voice in the selection or rejection of an agent for the
purposes of collective bargaining. To understand their feelings in this regard, we
must remember that the employees of Molded Shapes never had had a voice in the
choice of a bargaining agent. Local 980, was foisted upon them by certain officials
of Wagemaker-Schott Enterprises under the "accretion" doctrine for the sole reason
that Molded Shapes was set up in the same building with Cadillac Marine and Boat
Company sometime in June 1960. The action of the Wagemaker-Schott Enterprises
in signing the contract with Local 980, on December 28, 1960, which placed Molded
Shapes employees in the unit with Cadillac Marine and Boat Company employees,
was technically approved by the Board in the settlement agreement in the Zale case,
i.e., Case No. 7-CA-3484.
Though the Trial Examiner has discussed much of the foregoing above, neverthe-
less be feels compelled from time to time to reiterate certain matters involved herein,
for the simple reason that the record herein is so confused that it is nigh on to
impossible to set forth the events we are concerned with in a chronological and
intelligent manner without some reiterations. What follows below, well illustrates
what the Trial Examiner is faced with herein.
What transpired either before the employees filed their second petition on Febru-
ary 13, 1962, or after it was denied by the Regional Director for the Seventh Region
-As the Trial Examiner sees it Zick acquired full title to Zale's interests in Molded
Shapes on February 20, 1962. See paragraph 11 of the complaint
Due to the fact that the record shows that several incidents occurred shortly after
February 8, 1962, that are pertinent to the issues herein, the Trial Examiner feels com-
pelled to set them forth herein in this manner.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February 26, 1962, is unquestionably the major issue herein. It is as regards
this issue that the record is most confusing . The General Counsel and the Respond-
ent's attorney in their briefs place the incidents that will be discussed below after the
second petition was denied by the Regional Director . On the other hand, the Trial
Examiner , at first blush , was under the impression that they occurred before the
second petition was filed. His reasoning was based on his interpretation of Mrs.
Mullins' testimony . Be that as it may the Trial Examiner accepts the dates of counsel
for the parties, primarily because by the very nature of things they are far more
familiar with the dates that we are concerned with than the Trial Examiner, whose
only knowledge is from the confused and at times unintelligible record that is in
front of him.
After the Regional Director denied their second petition for reasons set forth
below, the employees made another attempt to get their problems before the Board.
What they did will be discussed below.
In the Trial Examiner's opinion , the best evidence of what transpired at the time
the employees agreed among themselves to make another attempt to exercise their
rights under the Act, as they understood it, is found in the testimony of the employees
themselves . Though their testimony is not in current legalistic jargon, it is neverthe-
less understandable to the Trial Examiner who heard it at the hearing herein and
observed not only the demeanor of the witnesses that testified before him, but other
employees who were present in the hearing room.28
As indicated above the original decertification petition that was filed with the
Board's Regional Office in Detroit , Michigan , on or about January 22, 1962, was
returned to the employees on January 25, 1962. Accompanying it was a letter from
the Regional Director, which as the Trial Examiner interprets the record was to the
effect that it was not drafted correctly, and attached thereto was a regular Board
(Form NLRB-502) petition for their convenience . Sue Kolarik who received the
letter under the circumstances described above, turned it over to Marjorie Smith, of
whom more anon.
As the Trial Examiner interprets the record the employees were considerably upset,
throughout this entire period , not only because the Regional Director had returned
their original petition but by his denial of their second petition that they filed on
February 13, 1962. That they were in a quandary is best told in the language of
Dorothy Mullins, who testified that ". . . we weren't getting anywhere , our petition
wasn 't right evidently that we sent in , the Labor Relations Board didn't seem to
think it was filed properly or something , I don 't remember just how it came about,
so we asked Mr. Zick and that was after Mr. Zick had bought the Company...."
As the Trial Examiner sees it they asked Zick what they could do to accomplish
their desire to have a voice in their own affairs, such as the selection or rejection
of an agent for the purposes of collective bargaining . The gist of their conversation
with Zick is found in another excerpt from Mrs. Mullins ' testimony:
The WITNESS : Well this was some time after he bought it but I don't re-
member the exact date and we just asked him what we could do and he said
that if we wished, that we could consult you if we wanted to send a committee
of three down to talk to you we could consult you if we wanted to for our legal
rights, but it was up to us, and then after he left we discussed it and we decided
to send a committee of three down to talk to you after work which I believe
they did. And then they suggested that you come up and talk to the whole
group during our lunch-hour and I believe it was the next day or the following
day, it was just within a couple of days, that you came down during our lunch-
hour and we talked to you.
Mullins' testimony as regards the above incident was fully corroborated by the
credible testimony of Marjorie Smith, of whom more anon. Suffice it to say at this
point that she was one of the three employees selected by the employees to serve
on the committee that was to meet with Charles H. Miltner, Esq., the Respondent's
attorney , as regards their problems. Others on the committee were, "Fay Thompson,
which was a man , and Martha Bates." 29
Shortly after the "Committee" was selected by the employees they went down
to Attorney Miltner's office and discussed their problems with him. What transpired
at the time and thereafter is again best told in the language of a committee member,
Marjorie Smith:
Q. And then you came and talked to me, did you?
28 Counsel for the Respondent identified them during the course of the hearing.
9 Quotes from the credited testimony of Marjorie Smith.
UNITED STATES MOLDED SHAPES 379
A. We came after work that night and talked to you and we felt that you
could explain it to the group better than we could so we asked if you would
meet us at our working place, at U.S. Molded Shapes during our lunch period
the following day and I'm quite sure it was the following day that you came
there due to our request.
Q. Was there anything in my conversation with you people that was anti-union
in any way?
A. Definitely not. If there was I certainly can't recall it but I mean, I would
say definitely not.
Q. Had there been any exercise by Mr. Kolarik or Mr. Zick of influence against
your people taking part in this decertification, either for or against it, one way
or the other?
Mr. WILKS: I object to that.
TRIAL EXAMINER: Well-
Mr. WILKS: It's pretty general.
TRIAL EXAMINER: Technically you are correct, that is a conclusion that is
to be drawn but I am going to overrule it because of the peculiar facts in this
case. I have to look at the record as a whole.
Would you answer the question now please, I've overruled the objection.
The WITNESS: Gee, I can't state it one way or the other.
Mr. MILTNER: It was a very poor question.
The WITNESS: I'll try to answer it. Mr. Kolarik or Mr. Zick, no part of
management at any time to my knowledge influenced any of us in going ahead
with any petitions or anything else as far as anti-union.
That Marjorie Smith was an independent sort of a person who had a mind of
her own is found in the following excerpt from her testimony, which the Trial
Examiner considers pertinent to the issues herein for reasons that will be apparent
below:
TRIAL EXAMINER' You did this on your own free will?
The WITNESS: Yes, sir, could I just say something else please?
TRIAL EXAMINER: Go ahead.
The WITNESS: As far as these union representatives I would like to say
this. I was an official chairman and I'm not anti-union because I was official
chairman representing the women at Goodrich Rubber for ten or twelve years
and I believe as far as the majority of people they are not anti-union.
Mr. WILKS • I'm going to object to this.
The WITNESS: I just thought I ought to say it and if you don't like it I'm sorry.
TRIAL EXAMINER: All right. Do you have any more questions or not? Whose
witness is this?
Mr. WILKS: It's Mr. Miltner's.
The WITNESS: Let's not argue over me.
Q. (By Mr. MILTNER.) Did you people at Molded Shapes at any time select
Lodge 980 as your bargaining representative?
A. Not to my knowledge.
The primary purpose for the insertion of the above excerpt from Marjorie Smith's
testimony is to portray to all concerned herein the impression that the employees who
testified at the hearing herein made upon the Trial Examiner as regards their feelings
about the issues herein, and in particular the independent manner in which they
asserted themselves, in language that belies the contention of the General Counsel
as set forth in the above excerpt in his brief as regards their succumbing to the "germ"
planted in their minds by Kolarik. As far as the Trial Examiner is concerned, he
is convinced from his observation of the employees who testified at the hearing
herein that they were neither cowered, "coached," nor under restraint of any kind
at any time material herein. To him their mental attitude towards this whole affair
was nothing more than a concerted plea to the "Powers that be" to let us think for
ourselves, and exercise our rights under the Act without interference from any source.
Zick and Kolarik who were called as witnesses for the General Counsel, under
Rule 43(b) of the Federal Rules of Procedure, in the main corroborated the testi-
mony of Mrs. Dorothy Mullins, Marjorie Smith, and Cecil H. Moler, all employees
of the Respondent as regards all of the incidents referred to above. The gist of their
testimony was to the effect that the employees came to them and asked for informa-
ion as to how they should proceed in filing their petitions for decertification.
As indicated above the second petition for decertification that was filed on or about
February 13, 1962, was dismissed by the Regional Director on or about February 26,
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, on the grounds that "no question of representation exists." What happened
thereafter will be discussed below.30
In the interim Zick received copies of the settlement agreement in case No.
7-CA-3484, Frank Zale, d/b/a U.S. Molded Shapes, which as indicated above had
been signed by Kolarik at the direction of Zale on February 1, 1962. Attached
thereto was a notice to employees which Zick posted in accordance with the instruc-
tions in the notice. Though the General Counsel makes quite an issue of this incident
insofar as it concerns knowledge of Zick as to the unfair labor practice charges against
Zale, particularly as regards Kolarik's role in the settlement agreement, the Trial
Examiner is convinced that Zick was not familiar with Board procedure and did
not realize the significance of the notice to employees. He is also convinced that
Zick honestly believed that he was not liable for Zale's alleged misconduct,31 even in
the face of the plain language of the settlement agreement and the notice to employees,
primarily because he was not familiar with either the Act or its interpretation thereof
by the Board and the courts as ably summed up by the General Counsel in his brief
to the Trial Examiner.
As the Trial Examiner sees it, the upshot of the meetings between the employees
and Attorney Miltner was the signing of a "Petition for Review" of the action of
the Regional Director in denying the above-mentioned "Petitions for Decertification"
(Case No. 7-RD-447).32 The "Petition for Review" was signed on March 2, 1962,
by 18 of the Respondent's employees, which in the Trial Examiner's opinion was
not only a majority of those employed in the so-called "accretion unit," but 100
percent thereof. Since the petition sums up the attitude of the employees involved
herein, the Trial Examiner feels compelled to insert the following excerpt therefrom
below. Primarily because he finds that the statements therein are, for the most part,
substantiated by the testimony, oral and documentary, that was adduced at the hearing
herein. Moreover it is in effect a summation of the difficulties the employees herein
have been faced with at all times material herein.
The undersigned are all now employed by Kenneth A. Zick, doing business
as U.S. Molded Shapes, Inc., at 201 Haynes Street, Cadillac, Michigan. 14 of
the undersigned were formerly employed by Frank J. Zale, doing business as
U.S. Molded Shapes, at 201 Haynes Street, Cadillac, Michigan; and 12 of the
undersigned were formerly employed by U.S. Molded Shapes, Inc., in 1960,
then a subsidiary of Ash-Craft Company.
None of the undersigned ever voted upon, or knowingly had any opportunity
to vote upon the designation of Lodge 980 of the International Association of
Machinists, AFL-CIO, to be the representative of the undersigned for the
purpose of collective bargaining with any of the above named employers.
Only 12 of the undersigned were in the employ of the Ash-Craft Company
or of U.S. Molded Shapes, Inc., on or about December 28, 1960, when, it has
been alleged, a majority of the employees of U.S. Molded Shapes, Inc., allegedly
designated and selected said Lodge 980 to be their representative.
That the undersigned all feel that it is unfair to them, as well as to their
new employer, Kenneth A. Zick, to be obligated by negotiations or arrangements
allegedly entered into by others.
That 6 of the undersigned temporarily joined the Union Lodge 980 of the
International Association of Machinists, AFL-CIO, because they were told by
union representatives during the regime of U.S. Molded Shapes, Inc., that they
had to do so in order to obtain employment in said plant.
That 3 of the undersigned who were employees of the original U.S. Molded
Shapes, Inc, found their wages were reduced immediately after the alleged
designation of said Lodge 980 of the International Association of Machinists,
AFL-CIO as their representative, without any approval by them, and apparently
with the connivance, or at least knowledge and consent, of representatives of
said Lodge 980 of the International Association of Machinists, AFL-CIO.
The undersigned all concur and request review by the National Labor Rela-
tions Board of the dismissal by Jerome H. Brooks, Acting Regional Director
of the Seventh Region of National Labor Relations Board, by his letter dated
February 26, 1962, addressed to Marjorie Smith, R#3 Cadillac, Michigan, with
respect to the petition for decertification previously filed by some of the under-
90 See infra in re appeal to the Board in Case No 7-RD-447, General Counsel's Exhibit
No 17.
n The Trial Examiner is convinced that if all the facts had been before the Regional
Director in the Zale case he would never have issued a complaint therein, for reasons
which will be discussed below
82 See General Counsel's Exhibit No. 17, infi a.
UNITED STATES MOLDED SHAPES 381
signed; and all of the undersigned prefer that the National Labor Relations
Board enter an order that the Lodge 980 of the National Association of Ma-
chinists AFL-CIO shall have no power of representation over the undersigned
until and unless they freely elect to designate said Lodge 980 as their repre-
sentative in a free election , duly called and noted among them, at which time
they may vote by secret ballot.
The undersigned further note for the information of the National Labor
Relations Board, that this statement of their position has been drafted by
Attorney, Charles H. Miltner, by the direction of the undersigned and during
the absence of employer Kenneth A. Zick, although with his knowledge and con-
sent, as a means of fairly presenting the facts relating to this matter before the
National Labor Relations Board review.
Dated at Cadillac, Michigan, this 2nd day of March, A.D., 1962.
Though the Trial Examiner was advised by the General Counsel in his brief
that the Board denied the above petition sometime after the hearing herein closed,
nevertheless he strongly feels that the language in the above excerpt from the "Peti-
tion" should be considered in the light of the record herein, for the reason that he
is convinced that the Board did not have all of the facts involved herein before it at
the time it considered and denied the petition in Case No. 7-RD-447.
At this point the Trial Examiner comes to a facet of the case that is not only con-
fusing but baffling. He has reference to the allegation in the original charge filed
by Local 980, and its embodiment in the complaint as regards the Respondent's refusal
to bargain with the Union. The charges states inter alia:
Since on or about March 8, 1962, and at all times since, it by its officers,
agents and representatives, has refused and does now refuse to bargain in good
faith with the authorized agents of Lodge 980. .. .
The complaint alleges:
28. On or about March 13, 1962, and continuing to date, the Union requested
and continues to request the Respondent to bargain collectively with it. .
29. On or about March 13, 1962, and continuing to date, Respondent did
refuse and continues to refuse to recognize and/or bargain collectively with the
Union. .. .
The Trial Examiner has read and reread the record herein, both oral and docu-
mentary, and has been unable to find even a scintilla of evidence to substantiate
the foregoing allegations in the complaint which are the predicate for the General
Counsel's contention that the Respondent, Kenneth A. Zick. d/b/a U.S. Molded
Shapes, by the alleged conduct violated Section 8(a) (5) and (1) of the Act. While
it is true that the Respondent admitted the foregoing allegations in its answer and
its brief nevertheless it raises a question that the Trial Examiner cannot ignore.
The major difficulty is that though there was testimony as regards Kolarik's refusal
to bargain with the Union while he was with Zale, there is not an iota thereof as
regards requests or even consultations with union officials after Zick took over
the business. The record is in the same state as regards Zick. Nor can it be said that
the issue was "fully litigated" at the hearing herein. It was not. As the Trial
Examiner interprets the record it is barren of any testimony that either Zick or
Kolarik even talked to a union representative at any time material herein. Nor is
there any documentary evidence to substantiate this issue. So there we are. While
it is no doubt true that the record clearly indicates that the Respondent by either
Zick or Kolarik would have refused to recognize the Union as the bargaining agent for
its employees, nevertheless such a state of the record requires more cogent thought
than a mere lifting of the eyebrows, so to speak, for its ultimate disposal. Nor
does the Trial Examiner feel that the application of the ancient equitable maximum
that "Equity will not require the doing of a vain and useless thing" is the answer
to the question. The only answer, as the undersigned sees it, will be found below.
There yet remains another facet to the case at hand that has likewise plagued the
Trial Examiner no end. He has reference to the fact that the General Counsel did
not call a single employee of the Respondent as a witness to testify in support
of his "case-in-chief." The only witnesses he called were Zick and Kolarik, under
Rule 43(b), and a witness by the name of James B. Schurman, who not only had
been retired for a year before the hearing herein, but never had even worked for
the Respondent herein. Even the General Counsel conceded at the hearing herein
that he knew little if anything about the issues herein . As the Trial Examiner sees it
the only probative testimony offered by Schurman was in support of the "accretion"
theory of the General Counsel as justification for including the employees of Molded
Shapes in the unit with those of Cadillac Marine and Boat Company back in 1960.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION
At long last we come to the disposal of the issues herein as to Molded Shapes.
To put it mildly the preparation of this report has been quite a task. As indicated
time and time again hereinabove the record has been most difficult to analyze. For
instance the chain of title from U.S. Plywood over the years to Zick has been hard to
fathom. When this factor is considered in the light of the inclusion "of the Molded
Shapes" employees with those of Cadillac Marine and Boat Company, in the appro-
priate unit, under the "accretion" doctrine, then we have a situation that would
baffle even the legendary Philadelphia lawyer of yesteryear. Even so, the issues
must be disposed of. That the Trial Examiner shall do, and let the chips fall where
they may.
As the Trial Examiner sees it , here are the issues that we are primarily concerned
with herein: (1) was Kenneth A. Zick, d/b/a U.S. Molded Shapes under a duty
to recognize the Charging Union herein as the collective -bargaining representative
for its employees in the unit found appropriate by the Board in the Cadillac Marine
and Boat Company, Case No. 7-RC-2730, sometime prior to April 27, 1955, on
which date the Charging Union herein was certified by the Board, on the theory that
a "Settlement Agreement" in Case No. 7-CA-3484 signed by its predecessor in title,
Frank Zale, d/b/a U.S. Molded Shapes on or about February 1, 1962, is binding
upon said Zick, because,33 "(a) certification and recognition runs with the `employing
industry,' and (b) a settlement agreement is akin to a certification in that it raises
a presumption of majority status which must be honored for a reasonable time";
and (2 ) did the Respondent engage in conduct violative of the Act by discussing
with its employees the procedure to follow in processing a petition for decertification
with the Board, and by permitting its attorney to talk to its employees during their
lunch period in this regard, and the preparation and drafting of a petition for a review
of the dismissal of the decertification petitions by the Board?
To begin with the Trial Examiner feels compelled to say at this point that the
position of the General Counsel is technically correct , when the issues herein are
considered in the light of rigid adherence to the stare decisis doctrine and total dis-
regard of the rights of "employees " as human beings and as they are referred to in
the Act itself.
In the Trial Examiner 's opinion , the answer to the questions we are faced with
herein is found in an excerpt from a recent decision of the United States Court of
Appeals, for the Eighth Circuit, Case no. 16, 712, N.L.R.B. v. Mack R. Clegg and
Mary M. Clegg, d/b/a Clegg Machine Works, June 20, 1962 (304 F. 2d 168). In
that case, though the factual situation was somewhat different than we are faced
with herein, nevertheless the reasoning of the court in the excerpt below is not only
applicable, but clearly shows that the courts in this day and age are not mummified
by stare decisis and that equitable principles still prevail and are applicable to the
solution of our problems even in this day and age:
We presume to observe that the difficulty in this case apparently rests on the
small and familial character of the enterprise . We appreciate that it is in pre-
cisely such a circumstance that domination and interference can take root and
flourish. We know, too, that a court cannot require the Board to relieve a
small employer of a duty that may be exacted from a large one. Brooks V.
NLRB, supra, p. 104 of 348 U.S. But we conclude that the Board has attempted
to reach too far in the case of this small concern.
We feel that the only reasonable solution is to afford the employees the
opportunity of a supervised election. The passage of time makes this particu-
larly feasible34 Meanwhile the rights gained by the employees under the new
contract are not to be prejudiced. International Union of United Brewery,
etc. v. NLRB, D.C. Cir., 1961, 298 F. 2d 297, 300, footnote 8. [Emphasis
supplied.]
Here, we have a situation where the employees, for reasons which have been set
forth and discussed above, on their own initiative , tried unsuccessfully to utilize the
facilities of the Board to have a voice in the selection or rejection of the Charging
Union as their bargaining representative. In the final analysis all that they asked
for was a voice in their own affairs, by means of a Board supervised election, which
was denied them for reasons set forth at some length above. As the Trial Examiner
sa Quotes from the General Counsel's brief
14 That "Passage of time" is important herein is evidenced by the fact that lick's lease
expires October 31, 1962 , and he will be forced to find a new location to house Molded
Shapes.
UNITED STATES MOLDED SHAPES 383
sees it, the reasoning of the United States Court of Appeals for the Seventh Circuit
in Perry Coal Company and Peabody Coal Company, et a!. v. N.L.R.B., 291 F. 2d
126 (C.A. 7), is most applicable to the facts herein. In that case the court said,
inter alia, in a most cogent paragraph:
To insist that Peabody now bargain with Progressive would be like jousting at
windmills. Any realistic appraisal of the situation in this case indicates that
such a course would be entirely futile, and would, in all likelihood, have no
result other than to arouse bitterness and antagonisms.
So is it here. Since when did the stated purpose of the Act become obsolete, and
the goal of industrial peace but a mere play upon words? It is hoped that we have
not moved into "the land of let's pretend," as a solution for our problems, both
great and small.
When the reasoning of the courts referred to above is considered in the light of a
recent Decision and Order of the Board, Rocky Mountain Phosphates, Inc., Case
No. 19-CA-2192, and the facts herein as set forth above, then the Trial Examiner
is convinced and finds that the Respondent herein was under no duty to recognize
and bargain with the Charging Union herem.35 In that case the Board held, inter
alia, in substance that employees, regardless of the 1-year certification rule, had the
right to change their bargaining representative and that to deny them that right ".. .
is to penalize employees for exercising rights under Section 7 and to blunt the thrust
of the Act which is to foster collective bargaining and industrial peace." In the instant
case practically 100 percent of the employees informed the Respondent under the
circumstances set forth above that they, in effect, wanted no part of the Union as
their bargaining representative, and sought to demonstrate their feelings in this regard
by a Board election. In such circumstances the Trial Examiner concludes and finds
that the Respondent herein was under no obligation to bargain with the Charging
Union even if it had requested it to do so, which the record herein, other than the
pleadings, clearly shows that it did not either orally or by written request.
In view of all of the foregoing, the Trial Examiner is convinced and finds that the
Respondent herein was under no obligation to bargain with the Union for the simple
reason that it did not represent a majority of the employees in the appropriate unit, at
any time material herein. Nor was it liable for Zale's "so-called" misconduct, even
though he did, by Kolarik, sign the aforementioned settlement agreement, for the
reason that there is no evidence in this record that there is or ever was at anytime
material herein, any connection between the Zick and Zale "entities" secret or other-
wise. The record clearly shows that the employees who are involved herein did not
want the Union to represent them either during Zale's ownership of Molded Shapes
or at anytime after Zick took over the business. So regardless of the "accretion"
doctrine, stare decisis, and the contention that a settlement agreement is akin to
certification, the respondent herein was justified in refusing to bargain with the Union
for the reason that an employer is only required by the Act to recognize and bargain
with an agent for the purposes of collective bargaining that has been selected by a
majority of its employees. So is it here. To again foist the Charging Union upon
the employees involved herein without even permitting them to have a voice in the
matter would indeed be at odds with the stated purposes of the Act. For this and
related reasons set forth below the Trial Examiner will recommend the dismissal of
the complaint herein.
In view of all of the foregoing the Trial Examiner is convinced and finds that the
Respondent, Kenneth A. Zick, d/b/a United States Molded Shapes, did not engage
in conduct violative of Section 8(a) (5) of the Act.
Now as to the alleged independent violations of Section 8(a)(1) of the Act. As
indicated and discussed at great length above, all that happened herein that might
conceivably be found independently violative of Section 8 (a) (1) of the Act was
predicated upon the acts of the employees themselves not the Respondent, or any of
its agents. Even though the Trial Examiner has discussed this issue at great length
above, from the "germ" that was planted in the minds of the employees to their
meetings with the Respondent's atterney, nevertheless he feels that he should again
sum up his findings and conclusions in this regard.
After long and careful consideration the Trial Examiner concludes and finds that
the employees herein on their own initiative went to Zick and Kolarik and asked them
for information and advice as regards their efforts to secure an election under Board
auspices so that they as individuals and employees might have a voice in the selection
or rejection of an agent for collective bargaining within the meaning of the Act.
All that the Respondent did was acquiesce to their requests. The only incident that
$ 138 NLRB 292, issued August 30, 1962.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might possibly be violative of Section 8 (a) (1) of the Act was when Zick told them
he did not know the answers to their questions and suggested that they talk the matter
over with Attorney Miltner. Insofar as this incident is concerned the testimony of
both Zick and Kolarik in this regard is clear and to the point , their story of what
happened is fully corroborated by the testimony of the employees themselves. There
is nothing in this record to indicate that the Respondent subtly and cleverly mesmer-
ized and maneuvered the employees into filing the decertification petitions , as sug-
gested by the General Counsel in his brief . The Trial Examiner rejects the General
Counsel's "suggestive" argument in this regard for the same reasons he has rejected
his theory that Kolarik was the "carrier" of the "germ" that contaminated the minds
of the employees back in the days that Zale was the owner of Molded Shapes. To
the Trial Examiner , the facts herein hazy as they are, particularly as regards the
8(a) (5) issue , create only a suspicion that the Respondent engaged in conduct viola-
tive of Section 8(a) (1). Since suspicion is not evidence he will recommend that this
allegation be likewise dismissed.
After deep reflection and with due consideration of the position of all the parties
involved herein , the Trial Examiner feels compelled to make this comment. Would
it not have served all involved herein , the better, if this entire proceeding had been
left to the employees themselves for decision by way of an election , under Board
auspices?
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law , the Trial
Examiner recommends that the complaint herein be dismissed in its entirety.
Overnite Transportation Company and Lodge 1.725, International
Association of Machinists, AFL-CIO. Case No. 11-CA-2010.
March 13, 1963
DECISION AND ORDER
On December 14, 1962, Trial Examiner Wellington A. Gillis issued
his. Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Inter-
mediate Report. Thereafter, the Respondent and the Intervenors'
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 Inter-
mediate Report, the exceptions thereto, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner z
'The Trial Examiner permitted 26 of the Respondent 's employees , who had been ex-
cluded from the unit involved in this proceeding, to intervene through counsel for the
purpose of stating their position.
2 we do not adopt footnote 6 of the Intermediate Report. The Board has held ( see, for
example, Sav-On Drugs, Inc., 138 NLRB 1032 ) with court approval ( see, for example,
Temas Pipe Line Company v. N.L.R .B., 296 F. 2d 208, 212-216 (C.A. 5)) that although
under Section 9(c) (5) extent of organization is not to be "controlling " in making an
141 NLRB No. 33.