Sharples Chemicals, Inc.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations, to join or assist OIL WORKERS INTERNATIONAL UNION, CIO, or any other labor organization , to bargain collectively through representa- tives of their own choosing, and to engage in other mutual aid or protection, and to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively upon request with OIL WORKERS INTERNA TIONAL UNION , CIO, as the exclusive representative of all employees in the following bargaining unit , with respect to rates of pay, hours of employment, and other conditions of employment , and if an understanding is reached, embody such understanding in a signed agreement : All pumpers, switchers, roustabouts, truck drivers, and mechanics em- ployed at our East Texas field , excluding drillers, roughnecks, office and clerical employees , gang pushers and supervisory employees. WE wILL offer to Emmet R. Broadus and G. T. McClure immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges ; and make them and E. A. Allen, A. D. Adams, Elmer Roy Broadus, Buddy Lindsey, and Charles Hodges, whole for any loss of pay suffered as a result of the dis- crimination against them. All of our employees are free to become or remain members of the above- named union or any other labor organization . We will not discriminate in regard to the hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. W. E. STEWART AND LELA STEWART , D/B/A STEWART OIL COMPANY, Employer. Dated------------------------------ By---------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SHARPLES CHEMICALS , INC. and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO. Case No. 7-CA-509. July 8, 1950 Decision and Order Upon a charge duly filed by United Gas, Coke and Chemical Work- ers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued a complaint dated July 9, 1951, against Sharples Chemicals, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint and charge were duly served on all the parties. 100 NLRB No. 12. SHARPLES CHEMICALS, INC. 21 With respect to the unfair labor practices the complaint alleged, in substance, that since about 1941, the Respondent dominated and inter- fered with the formation and administration of a labor organization known as the Employee Representative Group, and its various com- mittees, known as the Grievance Committee, Job Evaluation Commit- tee, Clothing Committee, Employees Benefit Fund Committee, and Election Committee, and contributed financial and other support to them, in violation of Section 8 (a) (2) of the Act, and thereby inter- fered with, restrained, and coerced its employees in violation of Sec- tion 8 (a) (1) of the Act. On or about August 1, 1951, the Respondent filed an answer in which it denied the commission of any unfair labor practices, raised questions concerning the Union's compliance with Section 9 (f) of the Act,' and moved to strike all allegations of the complaint relating to events occurring more than 6 months, prior to the filing and service of the charge herein.2 Pursuant to notice a hearing was held from August 6 to 9, 1951, inclusive, before Lloyd Buchanan, the duly designated Trial Ex- aminer3 The General Counsel, the Respondent, and the Union, were 1 The Respondent contends that the complaint should be dismissed because the General Counsel failed to show compliance with the filing requirements of the Act . We find, in agreement with the Trial Examiner , that the fact of compliance by a labor organization, which Is required to comply, is a matter for administrative determination and is not liti- gable by the parties Moreover, the Board is administratively satisfied that both the charging union and its parent organization have been in compliance at all times material herein. See Sunbeam Corporation, 94 NLRB 844; Swift and Company, 94 NLRB 917; McComb Manufacturing Company, 95 NLRB 596; cf, N. L. R. B. v. Highland Park Manu- facturing Company, 71 S. Ct. 489. 1 This motion was renewed In various forms during the course of the hearing. The Trial Examiner denied this motion with the explanation that, in accordance with Section 10 (b) of the Act, no unfair labor practice findings will be made based on events antedating the 6-month statutory limitation period but that evidence of such events will be received only as background. For this reason, we find that his ruling was not prejudicial . As will appear later in the decision, we, too, treat this evidence only as background . General Shoe Corporation, 90 NLRB 1330, enfd. 192 F. 2d 504 ( C. A. 6) ; Aweison Manufacturing Company, 88 NLRB 761. 8 Before the date set for hearing, the Respondent made a motion to the Regional Director to adjourn the bearing for a date when its Executive Vice-President Clark would return from vacation . The Regional Director denied this motion. At the hearing the Respondent renewed this motion , which the Trial Examiner also denied after considering all the cir- cumstances and the convenience of all the parties . The Respondent contends that the denial of an adjournment violated Section 5 (a) of the Administrative Procedure Act and deprived it of due process because it was thereby denied Clark 's assistance in preparing for trial and the cross-examination of witnesses. It appears that the Regional Director changed the original contemplated date of the bearing to August 6, 1951, in order to accommodate the Respondent 's attorney who was going on vacation . It also appears that the complaint and notice of hearing were served on the Respondent more than a week before Clark left on vacation and that Clark 's testi- mony, which was later taken by deposition , principally concerned background events antedating the 6 -month statutory limitation period. In view of all the facts and circum- stances herein and the fact that Section 5 (a) of the Administrative Procedure Act re- quires the Board to consider the convenience and necessity of all the parties or their representatives in fixing the time and place for hearing. we find that the Trial Examiner did not abuse his discretion in denying the Respondent's application for an adjournment or otherwise violate the Respondent's statutory or constitutional rights. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by counsel and participated in the hearing. The depo- sition of Lee H. Clark, the Respondent's executive vice president, was taken on September 6, 1951, and was thereafter received in evi- dence as Trial Examiner's Exhibit 14 The hearing was closed on September 10, 1951. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the close of the General Counsel's case, the Respondent moved to dismiss the complaint on the ground that there was no substantial evidence to support the allegations of the complaint. The Trial Examiner denied this motion with leave to renew it later. Various rulings were made by the Trial Examiner during the course of the hearing on other motions and on objections to the admission of evidence. The Board' has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial error was committed. The rulings are hereby affirmed." All parties were afforded an opportunity to file briefs and proposed findings of fact and conclusions of law. The parties thereafter filed briefs with the Trial Examiner. On November 14, 1951, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, finding that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act. He accordingly recommended that the Respondent cease and desist from dominating or interfering with the administration of the Employee Representative Group, the named committees, and any other labor organization, or 4 In accordance with stipulation of the parties, which was received in evidence as Trial Examiner's Exhibit 2, the Trial Examiner ordered that the deposition be corrected. The Trial Examiner also granted the Respondent 's unopposed motion to correct the transcript of testimony taken before him, except that he changed the word "convenient" on page 21, line 16, to "convened" and the phrase "that any request of" on page 42, line 18, to "of my request that." The motion papers were received in evidence as Trial Examiner's Exhibit 3. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Styles, and Peterson]. 0 The Trial Examiner, over the Respondent's objection, properly received in evidence the minutes of the Employee Representative Group meetings which were prepared by the Respondent's personnel manager, as secretary . The Respondent asserts that these so-called minutes were Interoffice memoranda intended to remind him to take care of matters which be announced at the meeting he would attend to and to guide him in preparing the agenda for the next meeting. It is undisputed that these minutes were originally mailed to the employee representatives and more recently have been posted on company bulletin boards for the Information of employees . We find, contrary to the Respondent's contention, that the minutes were admissible as a record made in the regular course of business of the Employee Representative Group ( 28 U. S. C. A. See. 1732 ) and as admissions by the Respondent of facts therein stated. We also find , contrary to the Respondent 's contention, that the other documentary evi- dence such as the election bylaws, the grievance procedure, the constitution of the Em- ployee Benefit Fund , the constitution of the Job Evaluation Committee , the Respondent's booklet "Sharp Facts," the financial statements of the Benefit Fund, and the minutes of Clothing Committee meetings , was properly identified and received in evidence. It is Immaterial to the question of admissibility whether or not the procedures set forth in some of these documents were implicitly followed. SHARPLES CHEMICALS, INC. 23 from contributing support to them, and that it withdraw all recog- nition from and completely disestablish the named organizations as representatives of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. Thereafter, the Respondent filed exceptions, a supporting brief, and proposed findings of fact and conclusions of law. The Union also submitted a brief. The Board has considered the Intermediate Report, the excep- tions and briefs, the proposed findings of fact and conclusions of law,' and the entire record in the case 8 Although the Board is in substan- tial agreement with the Trial Examiner's principal findings, conclu- sions, and recommendations, it is not entirely satisfied with the pres- entation of the case in the Intermediate Report and therefore makes its own findings, conclusions, and order, as follows : 9 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, operates a plant, known as the Wyandotte plant, in Riverview, Michigan, where it manufac- tures various chemical products. In the course of its business in 1950 the Respondent received at this plant, from points outside the State of Michigan, raw materials valued at more than $1,000,000. During the same period, the Respondent shipped manufactured products valued at more than $1,000,000 outside this State. The Respondent admits, and we find, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Gas, Coke and Chemical Workers of America, CIO, is a labor organization which admits to membership employees of the Respondent. As will hereinafter be fully discussed and found, the Employee Representative Group, the Grievance Committee, the Job Evaluation Committee, the Clothing Committee, the Benefit Fund Committee, and the Election Committee, collectively and, with the exception of the Election Committee, individually, constitute a labor organization within the meaning of the Act. 4 We hereby adopt the Respondent 's proposed findings of fact numbered 1 through 6, in- clusive, 8 , 9, 21, 24, 28, 31 , 34, 35, 41, 43, 44, 46, 47, and 48 and reject all other proposed findings of fact and conclusions of law, because they are, in whole or in part, contrary to the facts or the law or because they are immaterial. 8 As the record , exceptions, and briefs fully present the issues involved herein and the positions of the parties, the Respondent's request for oral argument is denied. 8 The record does not support the Respondent's assertion that the Trial Examiner's conduct of the hearing deprived it of a fair trial before an unbiased tribunal. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Although there is some variance in the testimony concerning minor details, the evidence is substantially undisputed with respect to the basic facts. The controversy here turns mainly on the legal con- clusions to be drawn from the facts. It appears that no outside labor organization has ever represented the Respondent's employees, although several unsuccessful attempts to do so have been made.10 Instead, there have been in existence at the plant for a number of years several organizations-the Employee Representative Group, herein referred to as the Group, and the above- named Committees, herein collectively referred to as the Committees. The history and nature of these organizations will be separately dis- cussed below. A. Employee Representative Group With the rapid expansion of the work force at the Wyandotte plant resulting from World War II, the Respondent's executive vice presi- dent, Clark, who was then plant manager," found it increasingly diffi- cult to meet with employees individually or in small groups to dis- cuss matters affecting their working conditions, as he had customarily done when the work force was smaller. Out of this situation in late 1941 or early 1942, evolved the employee representative group plan whereby representatives selected by employees would regularly meet with management. Whether this plan was first suggested by Clark or the employees is not important. It is clear, however, that Clark and the then personnel manager, Webb, took an active part in establishing the Group and in formulating its policies and procedures. A stated object of the group meetings, according to Clark's testi- mony, was to serve as "a two-way street for communication between Management and the people in the plant." It was contemplated that through these meetings the Respondent would also receive assistance in formulating company policies concerning the employees' working conditions.12 "To keep the meetings free and open for discussion," 10 A representation petition in case No. 7-RC-1111, filed on September 8, 1950, is pending before the Board. 11 Clark left the Wyandotte plant in January 1950 to become executive vice president at the Respondent's Philadelphia, Pennsylvania, office. He was succeeded by Bjork as plant manager. At about this time Personnel Manager Webb left the Respondent's em- ploy and he was replaced by Nugent, who previously was the assistant personnel manager. 12 Clark also testified that he "hoped that the men who were sent to the meeting by a particular group would be men who could go back to the group with a fair report of what had happened in the meeting, and that they were also men of a caliber who could bring to the meeting, conditions, the observations of what people thought and what things were going on in the area of the process or the particular gang they came from." In the 1946 edition of the Respondent 's publication "Sharp Facts ," copies of which were last distributed to new employees in 1948, it is stated that "To enable our employees to work out mutual problems and to foster better employee -management relations on SHARPLES CHEMICALS, INC. 25 Clark testified, foremen and other supervisory employees would be excluded. Thus, the employee representatives would be encouraged to criticize their foremen freely, as well as to present "general gripes" of employees. The Respondent also intended and used the group meetings as a medium for transmitting information to employees regarding its general business conditions. The structure and organization of the Group is described in the election bylaws. As last revised in December 1949, they provide for the election of one representative and one alternate for every 15 employees in a designated unit, which usually comprises a process, working group, or department. There are currently 34 representa- tives in the group. They are elected by the employees in their respec- tive units for a term of 1 year, unless their term of office is broken by separation from the Company or transfer to another unit. Elections to the group are staggered so that one-fourth of their number is up for election every 3 months. All hourly rated employees are eligible for election provided they have 6 months' service with the Company. Although the terms of office of employee representatives have expired and no new elections have been conducted since about January or April 1950, the Group is still functioning in the same manner as before. It meets usually once a month at the plant. These meetings, though not as well attended as in the past, are called by the plant manager. Notice of meeting is given by a note attached to the time cards of the employee representatives. The representatives are paid for their time spent at these meetings, even when the meetings are held outside their regular working hours, and in certain instances they are paid overtime rates. There is no provision for private meetings of employee representatives or employees without the presence of man- agement officials.'3 The plant manager, and in his absence the personnel manager, presides as chairman of the group meeting. The personnel manager acts as secretary and records the minutes, copies of which are now customarily posted on bulletin boards. The business of the meeting covers the entire gamut of industrial and personnel relations at the plant. Oral reports of the named committees are received at which time the committeemen may be various subjects, provisions have been made for an Employee Representative Group. This group is composed of representatives who have been elected for 1 year by established groups within the plant . The functions of the group are to present to management their views with regard to such subjects as overtime , wage policies , vacations, means of increasing production and to present grievances that need to be corrected." According to the minutes of the group meeting held on January 31 , 1950, Bjork, as the new plant manager, "made a short speech in which he expressed confidence in the Plant Representative Group and asked for their continued help in presenting and working out problems which would be of mutual benefit to the employees and the company." 1' Carroll testified that, as employee representative , he consulted the employees in his unit concerning matters to be taken up at group meetings. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questioned about their activities. Employee representatives also'seek (though not aggressively) improvements in working conditions and may do so through requests, suggestions, complaints, or inquiries. The plant manager or the personnel manager either disposes of these matters at the meeting at which they are raised or may take them under advisement and announce his decision at a later meeting.14 The evidence discloses that a wide variety of subjects affecting the employees working conditions are discussed and considered at these meetings. Since April 20, 1950,15 these subjects included, among other things, wages, vacation pay, work schedules, job bidding, pension plan, hospitalization and surgical insurance, job evaluation, benefit, fund, vacation plans, overtime, job posting, repair of showers, promotions, parking facilities, the workweek, and raincoats for the fire crew. These matters are typical of those considered from the inception of the group meetings. The record also shows that the procedures, constitutions, and bylaws of the various Committees, which will be separately discussed below, were developed and adopted at the group meetings with the Respond- ent taking an active part in their formulation. At the time of the hearing, these committees were still functioning except that the Elec- tion Committee had not held any elections since about April 1950. B. Election Committee The election bylaws were last revised on December 21, 1949. Ac- cording to the minutes of the group meeting, the draft was prepared by the then Plant Manager Clark and was approved by the employee representatives. These bylaws, which may be amended by two-thirds of the group membership, deal with the composition and selection of the Election Committee, the rules, procedures, and eligibility for election of employee representatives of the Group and "members of standing committees and their alternates." The committees listed are the Employees Benefit Fund Committee, the Clothing Committee, the Grievance Committee, and the Plant Job Evaluation Committee.'° The constitutions and bylaws of the respective committee supplement these procedures as they specifically apply to them. The Election Committee consists of five members of the Group ap- pointed by the plant manager as group chairman, with the approval of the group representatives. The committeemen serve 1-year terms 74 Although there are instances when representatives voted upon or approved proposed solutions of problems , this practice does not appear to be the general rule. 11 This is the earliest date on which Section 10 (b) of the Act permits the finding of any unfair labor practices. 11 The 1946 edition of the Respondent 's publication, "Sharp Facts," states that "to handle adequately phases of business which interest our employees , . . . [ the Employee Repre- sentative Group] elects from its members a series of standing committees." ' SHARPLES CHEMICALS, INC. 27 and are paid for time spent in committee activities, even though out- side their regular working hours. They, like other committeemen, may be unseated by the Respondent by transfer or termination of employment. It is the practice for the Respondent's personnel office to supply the Election Committee with the necessary ballots, ballot boxes, eligibility lists of candidates, and voting lists. All elections are conducted on company premises. It is also customary for the committee to leave the ballots, ballot boxes, and eligibility lists with the supervisor in charge of the unit where the election is being held for distribution to the voters. The ballot box may be left in the department unguarded for several days after which time the committee counts the ballots and reports the results to the personnel manager who keeps a record thereof. The personnel office also posts the names of the persons elected with the expiration dates of their terms. The Election Committee has not conducted any elections since April 1950.17 Personnel Manager Nugent testified that the reason for this was the fact that the Election Committee had not requested that elec- tions be held. However, the Respondent has permitted the Group and the Committees to function without interruption. C. Grievance Committee The grievance procedure is set forth in "Sharples Standard Prac- tice Instruction." is The latest standard practice instruction, which was drafted by Personnel Manager Nugent in consultation with the Grievance Committee, was issued on May 3, 1950, after the revised grievance procedure was "adopted" at the March 28, 1950, group meet- ing.11 Supplementing the election bylaws, the • grievance proce- dure provides for three members, one representing the operations department, one the shop department, and one all other hourly rated employees. Eligibility to hold office is limited to employees with at least 3 years' service. Before September 1, 1949, the grievance proce- dure provided that the members of the committee were to be elected annually by the group representatives from among themselves. Al- though under the revised procedure of September 1, 1949, the group representatives for each department would nominate and elect the 17 The minutes of the August 22, 1950, group meeting disclose , however, that two employee representatives were elected to the Benefit Fund Committee for a 1-year term. The minutes do not show whether the Election Committee conducted this election. as This is a document by means of which the Respondent promulgates its rules and regulations in the plant. The minutes of the March 28, 1950, group meeting state that the revised procedure enables Clark, who left the plant to become the executive vice president at the Respondent's Philadelphia office "to review a grievance , If necessary," and provides for a simplified procedure. There are also in evidence two earlier "Sharpies Standard Practice Instruc- tion" dealing « ith the grievance procedure. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committeemen from all the employees in the department, it appears however that in the 1950 election the employees in the department in- volved elected their own committeeman. The grievance committee- men are paid for their time spent in handling grievances whether dur- ing or after working hours and their tenure of office depends upon their continued employment in the department they represent. Under the revised grievance procedure, the Grievance Committee takes up "complaints or disagreements affecting the relations of the Company with its employees" where the aggrieved employee is un- able to settle his grievance with his foreman. After investigating the grievance, the Grievance Committee may attempt to adjust it with the personnel manager. In the event no settlement is reached on this level, provision is made for presentation to higher levels of management. -Personnel Manager Nugent testified that since April 1950, the Griev- ance Committee reported to him its recommended disposition of three separate grievances and that he accepted and put into effect these recommendations. D. Job Evaluation Committee Upon the recommendation of an industrial engineering firm that conducted a job analysis at its plant for the Respondent, a Job Eval- uation Committee was established in 1947. Thereafter, on June 24, 1947, the then Plant Manager Clark submitted at a group meeting a proposed constitution for this Committee, advising that due to recent changes the former constitution was out of date. 'At the next meet- ing, the Group voted to adopt the proposed constitution which also provided that its future amendment was subject to the Group's ap- proval. As last revised in October 1947, the constitution authorized this Committee to evaluate new jobs and revise old evaluations that are questioned by hourly rated employees or management. The Commit- tee consists of four employees, one elected by the employees of each designated department, and four representatives of management. Al- ternates are similarly chosen. The employee-members serve 1-year terms and elections are staggered. To be eligible for election, the em- ployee must have at least 6 months' service with the Company. The committeemen are paid for the time spent in their committee work even outside their regular working hours, and their tenure of office terminates on separation from the Company or transfer to another department. The Respondent's job evaluation engineer calls and chairs the meet- ings but has no vote. He also maintains a record for all meetings and notifies those concerned of the Committee's decisions which are final. Upon request, he also furnishes the committee with factual and techni- cal information needed to arrive at its decision. SHARPLES CHEMICALS, INC. 29 In evaluating hourly rated jobs, the Committee may interview both supervisor and employee. After discussing the job among themselves, each member evaluates it by assigning point values to five specified factors. The final determination is made by averaging the recom- mendations of all the members2e E. Clothing Committee It appears that prior to July 1948, in response to requests by em- ployee representatives for protective clothing, temporary committees were appointed at different times at group meetings to consider the problem with management representatives. At the July 1948 group meeting, Nugent, who was then assistant personnel manager, report- ing for the Committee, presented the recommendation that a perma- nent Clothing Committee composed of four management representa- tives and four members elected by the employees whom they would represent. The group voted to accept the recommendation. Since that time the Clothing Committee has been functioning. Its four employee members, who are elected by their respective depart- ments, serve 1-year terms. Candidates for office must be in the Re- spondent's employ for at least 6 months. Until 1950, management also named four members but a. vacancy left by Personnel Manager Webb's departure had not been officially filled at• the time of the hear- ing.21 This Committee passes upon requests of hourly rated, as well as of salaried and supervisory, employees for protective clothing. It bases its decisions upon considerations of safety, health, hardship, and contamination. The Respondent complies with the Committee's decisions. The personnel manager is chairman of the Committee. Members are given notice of meetings through their supervisors. They are paid for time spent in committee activities both during and outside their regu- lar working hours. Their tenure of office, like members of other Com- mittees, also depends upon continued employment in the department they represent. F. Benefit Fund Committee The Benefit Fund was established in 1942 to furnish financial assist- ance to needy employees. A Committee, composed of five members nominated and elected by employee representatives for a term of 1 year, administers this fund. The minutes of the August 22, 1950, "The minutes of the September 26, 1950, group meeting shows that questions were asked about evaluations. The minutes then state that "all jobs are to be reviewed yearly as originally set up. If a request for reevaluation is asked, then it should be dealt with at once " = The minutes of the Clothing Committee 's last two meetings show that Casey, a man- agement representative, was present in addition to the three regular management repre- sentatives. At the last meeting , he is also shown as having voted. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group meeting show that two employee representatives were then elected to the Committee. Membership on this Committee is open only to employees with 6 months' service with the Respondent. Like members of other Committees, their tenure depends upon continued employment and they are paid for time devoted to committee activities even outside their regular working hours. The constitution of the Benefit Fund 22 now in effect was adopted in 1944 at a group meeting. It sets forth its policies, membership, the ad- ministration of the fund by the Committee, the benefits, and sources of income. It also provides for its amendment by two-thirds of the employee representatives of the Group. Membership in the fund is open to all employees upon application and payment of a 50-cent membership fee. The constitution makes it the duty of the personnel department to give each new employee a membership application at the time of his employment. The fund is maintained principally by the Respondent's monthly contributions of $160 and by earnings from vending machines in the plant averaging between $140 and $150 per month. Benefits are paid by check issued by the Respondent's office supervisor, Crout, upon written request of the Committee after the latter's approval of an ap- plication for benefits. The Committee is authorized to make cash grants in any amount up to $125. Anything in excess of that amount requires the permission of the Group. Monthly financial statements are prepared by an employee in the Respondent's accounting depart- ment on the basis of information supplied by the committee. Concluding Findings In determining whether the Respondent engaged in the alleged unfair labor practices, we, like the Trial Examiner, consider the events occurring more than 6 months before the filing and service of the charge herein-that is, antedating April 20, 1950-solely as back- ground evidence shedding light upon the Respondent's conduct during the statutory period 23 The Respondent contends principally that the evidence does not establish that (1) since April 20, 1950, at least, the Group and the Committees, individually or collectively, are labor organizations within the meaning of Section 2 (5) of the Act, and (2) in any event, 22 The full title of the Benefit Fund as it appears in this document is "Employee-Repre- sentative Group Sharpies Employees' Benefit Fund." sa It is settled law-and it is not now seriously argued otherwise-that, although Sec- tion 10 (b) of the Act precludes the Board from basing findings of unfair labor practices on events occurring more than 6 months before the filing and service of charges upon the Respondent, that section does not bar the use of such evidence as background . General Shoe Corporation, 90 NLRB 1330, enfd. 192 F. 2d 504 (C. A. 6) ; Adelson Manufacturing Company, 88 NLRB 761 ; Tennessee Knitting Mills, Inc., 88 NLRB 1103. SHARPLES CHEMICALS, INC. that the Respondent dominated, supported, or interfered with the administration of these organizations in violation of Section 8 (a) (2) and (1) of the Act. In agreement with the Trial Examiner, we find no merit in these contentions. Section 2 (5) defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work." It is clear from our preceding discussion that the effect of the Group and the Committees is that of a single employee representation plan whereby employees, through their representatives, are afforded a means of securing from the Respondent satisfaction of their griev- ances and improvement of their working conditions. As such, the Group and the Committees plainly are the type of labor organization contemplated by the Act.24 Moreover, as these organizations, except the Election Committee, in their individual capacities serve a similar function, they too constitute separate labor organizations within the meaning of the Act z5 We do not understand the Respondent to deny that the Group and the Committees are concerned with matters normally the subjects of collective bargaining. It argues, however, that, as it does not bargain or negotiate with them but unilaterally determines the terms and con- ditions of employment of its employees'26 these organizations fall out- side the statutory definition of labor organization. Specifically, it asserts, in substance, that group meetings are merely one of its many methods of communicating with its employees and receiving from them suggestions, comments, and inquiries, which would assist it in formulating company policies regarding their terms and conditions of employment; that these meetings also serve as a forum for the an- nouncement and explanation of its policies and decisions concerning employees' requests for improvement of their working conditions; that within the statutory period the Grievance Committee presented to the personnel manager its recommended disposition of only three 4 General Shoe Corporation, supra. The Respondent's contention that the Group and the Committees were unrelated and that therefore they should be separately considered in determining whether they are labor organizations or unlawfully dominated is without merit. The facts recited earlier in the decision clearly refute the factual basis of the Respondent's contention. Indeed, the organizations in the present case are not materially distinguishable from those in the cited case which collectively and separately were found to be labor organizations within the meaning of the Act. 25 General Shoe Corporation, supra. 20 But see, for example, Plant Manager Clark's statement in the outline of a speech he delivered to employees shortly before a Board representation election in November 1949, urging them to reject the petitioning union that "we agreed on rules for layoffs with your representatives before we made layoffs . . . We have stuck closer to our agreement than any union would require us to do." 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee grievances; 27 that the Job Evaluation Committee simply performs the technical function of evaluating jobs and advising it of the results; that the Clothing Committee was created merely to relieve the Respondent of the necessity of deciding employee requests for pro- tective clothing; and finally that the Benefit Committee only adminis- ters a welfare plan. Whatever'the Respondent's characterizations and appraisal of its relationship with the Group and the Committees may be, the evidence clearly establishes that these organizations function as a vehicle for the discussion, consideration, and adjustment of employee grievances and for the improvement of their working conditions. The fact that the Respondent does not formally engage in true collective bargaining with these organizations or that these organizations do not aggres- sively present and prosecute their demands, does not detract from their character as labor organizations "dealing with [an] employer (s) concerning grievances, . . . wages, rates of pay, hours of employ- ment, or conditions of work," 28 within the meaning of the Act,29 although it may reflect on their independence or effectiveness as a labor organization. We also find, contrary to the Respondent's contention, that the Respondent since April 20, 1950, has continued to dominate and inter- fere with the administration of the Group and the Committees and to contribute support to them, in violation of Section 8 (a) (2) and (1) of the Act.'° It is undisputed that, with the possible exception of the Election Committee, these organizations, in whose formation and administration the Respondent played a prominent role, were func- tioning at the time of the hearing substantially in the same manner as before. They have continued to exist as representatives of the employees solely by sufferance of the Respondent. Just as the em- ployees were not canvassed originally with respect to their wishes to be represented by these organizations, so have they not been consulted as to whether or not they desire to be represented any longer by n The fact that the Grievance Committee handled only 3 grievances since April 20, 1950, as compared with about 500 grievances employees brought directly to the personnel manager, can have no material bearing on the question whether the committee is a labor organization. 23 The outline of Clark's preelection speech mentioned In footnote 26, supra, also indi- cates that Clark reminded the employees that the Group which was formed 7 years before "dealt with wages, working conditions and many other matters affecting you." Clark also pointed out that the Benefit Fund, Job Evaluation , Grievance, and Clothing Committees "handle special problems." 28 General Shoe Corporation, 90 NLRB 1330, enfd. 192 F. 2d 504; Wrought Iron Range Company, 77 NLRB 487 ; James H. Matthews & Company, 63 NLRB 273, enfd . with mod. 156 F. 2d 706 (C. A. 3). Contrary to the Respondent's contention , we find, as indicated above, that the Group does not exist simply as an audience of employees to which the Respondent only makes announcements of management policies , as was the case in Republw Drill and Tool Company, 66 NLRB 955 . Cf. Raybestos-Manhattan, Inc., 80 NLRB 1208 s0 As the formation of the Group and the Committees occurred outside the 6-month statutory limitation period, we , like the Trial Examiner, do not find that the Respondent violated the Act in that respect. SHARPLES CHEMICALS, INC. 33 them.31 Indeed, the Respondent has continued to deal with these organizations, despite the fact that it has been aware that the terms of office of the 'group representatives and committee members had expired and the employees had not been given the opportunity to select their successors, as the several constitutions and bylaws vouch- safe to them.32 The Respondent is also in a position to control these organizations through its inherent power to unseat any employee representative or committee member by transferring him to another department or dis- charging him. Whether or not the Respondent actually exercised this power is beside the point.33 The significant fact is that it possesses this power. Moreover, as only employees with 6 months' service are eligible for election to the Group and the Committees other than the Grievance Committee, and as grievance committeemen must have at least 3 years' service, it is readily apparent that these organizations are effectively insulated from outside representation should the employees desire it. Furthermore, the Respondent contributes financial and other valu- able support to the Group and the Committees. It permits them to hold their meetings and conduct their business on company time and property. It pays the group representatives and committeemen for their time spent in their organization's activities during, as well as after, working hours at regular or overtime rates.- It also furnishes these organizations with stenographic, clerical, and other valuable services. Finally, it contributes virtually all the monies the Benefit Fund requires to make the necessary welfare payments to needy employees, by setting aside the earnings of vending machines to the fund's credit and by making lump sum monthly grants of $160. The lack of independence that the foregoing forms of support inevitably n According to the minutes of the August 22, 1950, group meeting and Personnel Man- ager Nugent's testimony, an employee representative raised the question at that meeting as to what "we ever get out of these meetings." In reply, the Respondent pointed out, among other things, that these meetings were designed to keep management and the employees' representatives mutually informed. Significantly, no vote was taken as to whether the meetings should be continued. 8' It appears, however, that at the August 22, 1950, group meeting, two representatives were elected to the Benefit Fund Committee. as Employee Roberts testified without contradiction that, as a result of being transferred out of the pipe shop because of curtailed operations, his membership on the Grievance Com- mittee and in the Group terminated °4 The,Respondent argues that these payments were authorized by the Fair Labor Stand- ards Act which "require[s] employees to be paid for time spent at meetings held during working hours" in conference with management concerning their working conditions. However, the Act in question does not justify payments for time spent outside the em- ployees' regular working hours, much less at overtime rates. Axelson Manufacturing Company, 88 NLRB 761; cf. Wyman-Gordon Company, 62 NLRB 561, enfd. in part, 153 F. 2d 480 (C. A. 7.). Nor can the payments in question be justified by the Respondent's uniform practice of compensating employees for their attendance at meetings of such nonlabor organizations as the recreation club and bowling and civilian defense groups or for time spent in connection with the blood bank program. Axelson Manufacturing Com- pany, supra. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD encourage is accentuated by the fact that the Group and the Com- mittees have no other source of income, except that the Benefit Fund charges an initial membership fee of 50 cents.,* In summary, we find that the Group and the Committees possess the familiar indicia of company-dominated organizations and that without the Respondent's potent support and active participation they could neither have begun nor could they continue to function.- It is apparent that these organizations are used by the Respondent as a substitute for the type of collective bargaining contemplated by the Act. Accordingly, we find that the Respondent since April 20, 1950, has dominated and interfered with the administration of the Group and the Committees, and has contributed financial and other support to them, in violation of Section 8 (a) (2) of the Act. By the foregoing conduct, we further find that the Respondent, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 thereof.37 IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent has dominated and interfered with the administration of the Group and the named Committees and ac The Benefit Fund , however, may also assess members $1 in the event the fund falls below $500 . It appears that no such assessment has ever been levied. 08 General Shoe Corporation, 90 NLRB 1330 , enfd. 192 F. 2d 504 ( C. A. 6) ; Axelson Manufacturing Company, supra; The Carpenter Steel Company, 76 NLRB 670 ; Wyman- Gordon Company, supra. As indicated above, the present case is factually distinguishable from Tennessee Knitting Mills, 88 NLRB 1103, relied upon by the Respondent, in which the Board dismissed the Section 8 (a) (2) allegations of the complaint because, but for an isolated act of permitting an election of committee members to be conducted during working hours with the use of company facilities , there was no other evidence of support or domination. 01 Contrary to the Respondent's contention , this inference inevitably follows from our findings of domination and support and is not overcome by the testimony of two witnesses that the existence of these organizations did not interfere with their decisions respecting union representation or by the fact that a number of employees participated in the charg- ing union's organizational campaign in 1950 or an AFL union 's drive in 1949. N. L. R B. v Donnelly Garment Co ., 330 U. S 219 ; ef. Sun Oil Company, 89 NLRB 833. SHARPLES CHEMICALS, INC. 35 has contributed financial and'other support to them, in violation of Section 8 (a) (2) and (1) of the Act. We shall therefore, in accord- ance with the policy announced in The Carpenter Steel case,38 order the Respondent to withdraw all recognition from.these organizations as the representatives of any of its employees for the purpose of deal- ing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and to dis- establish these organizations completely 39 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Gas, Coke and Chemical Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Employee Representative Group, the Grievance Committee, the Job Evaluation Committee, the Clothing Committee, the Benefit Fund Committee, and the Election Committee collectively and, with the exception of the Election Committee, individually, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By dominating and interfering with the administration of the Employee Representative Group, the Grievance Committee, the Job Evaluation Committee, the Clothing Committee, the Benefit Fund Committee, and the Election Committee, and by contributing financial and other support thereto, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Sharples Chemicals, Inc., Riverview, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of, or con- tributing financial or other support to, the Employee Representative 08 The Carpenter Steel Company, 76 NLRB 670. 99 Our order, however , is not intended to interfere with the functioning of any of these organizations as other than a labor organization or an integral part thereof. 227260-53-vol. 100-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Group, the Grievance Committee, the Job Evaluation Committee, the Clothing Committee, the Benefit Fund Committee, and the Election Committee, or from dominating or interfering with the formation or administration of, or contributing financial or other support to, any other labor orginization, and from otherwise interfering with the rep- resentation of its employees through a labor organization of their own choosing. (b) Recognizing or in any other manner dealing with the above- named Group and Committees, or any successors thereto, as the rep- resentatives of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (2) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from the above-named Group and Committees, as the representatives of any of its employees for the pur- pose of dealing with the Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said organizations as such representatives. (b) Post at its plant in Riverview, Michigan, copies of the notice attached hereto as an appendix4° Copies of such notice, to be furn- ished by the Regional Director for the Seventh Region, shall after being duly signed by the Respondent's representatives, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to its employees are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region in writing within ten (10) days from the date of this Order what steps the Re- spondent has taken to comply herewith. Appendix NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT dominate or interfere with the administration of, or contribute financial or other support to, the EMPLOYEE REPRE- +" In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." MODERN CLEANERS COMPANY 37 SENTATIVE GROUP, the GRIEVANCE COMMITTEE, the JOB EVALUA- TION COMMITTEE, the CLOTHING COMMITTEE, the BENEFIT FUND COMMITTEE, and the ELECTION COMMITTEE, or dominate or inter- fere with the formation or administration of, or contribute finan- cial or other support to, any other labor organization of our employees: WE WILL NOT recognize or in any other manner deal with the above-named Group or Committees, or any successor thereto, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE HEREBY disestablish the EMPLOYEE REPRESENTATIVE GROUP, the GRIEVANCE COMMITTEE, the JOB EVALUATION COMMITTEE, the CLOTHING COMMITTEE, the BENEFIT FUND COMMITTEE, and the ELECTION COMMITTEE, as the representatives of any of our em- ployees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. SHARPLES CHEMICALS, INC., Employer. Dated -------------------------- By -------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. LAURA GIALLANZA, AN INDIVIDUAL, D/B/A MODERN CLEANERS COMPANY, QUALITY CLEANERS COMPANY, AND MAY CLEANERS COMPANY and LOCAL No. 65, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L. Case No. 3-CA-298. July 8,1952 Decision and Order On December 12, 1951, Trial Examiner James A. Shaw 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 copy of the In- termediate Report attached hereto. The Trial Examiner also found 100 NLRB No. 17.