Bee Line Engineering, Inc.

BEE LINE ENGINEERING, INC. 367 Bee Line Engineering, Inc. and American Federation of Grain Millers, AFL-CIO. Case 7-CA-11186 April 11, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 25, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding.' Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge as modified herein. Contrary to the Administrative Law Judge and our dissenting colleague, we find that the reprimands of May 22 and June 5, 1974,2 given employee Michael Moore were in violation of Section 8(a)(3) and (1) and consistent with Respondent's other efforts to interfere with its employees' Section 7 rights. Moore, who had attended the initial meeting of the outside Union on May 18 and thereafter began passing out union authori- zation cards to his coworkers during lunchbreaks, was found by the Administrative Law Judge to have been interrogated the next day about passing out union cards, first by Respondent's foreman, Larry Case, and twice by its president, William Goodwin, Jr. Then on May 20 or 22, Respondent stripped Moore of his title "working foreman," because two employees, Junior Rutan and Ron Mann, had allegedly complained to Goodwin concerning the fact that Moore was applying pressure to force his coworkers to sign autho- rizations.' Moore had worked for 3 years without receiving a single reprimand. On May 22, he received a written warning, signed by Shop Superintendent Dewey, for arriving at work late and returning late from lunch arid breaks.' According to Moore, Dewey gave him the i Interim Shop Committee, also known as the Bee Line Shop Committee, has an existing contract with Respondent, which extends from August 31, 1973, to February 1, 1973, and was a party in interest in this proceeding. 2 Unless otherwise indicated all dates refer to 1974 3 We note that neither Rutan nor Mann was called to corroborate this testimony given by Goodwin. Furthermore, the Administrative Law Judge, in appraising Goodwin's reliability as a witness, found him to be "less reliable" than other witnesses, including Moore, specifically found Goodwin not to be a credible witness on the issue of Lambright's supervisory status, and cast doubt upon Goodwin's credibility with respect to his attempt to belittle the Respondent's assistance to the committee which represented its employees. reprimand-and said he did not deserve it and that Vice President William Goodwin, Sr., had told him to issue it. Dewey did not testify and Goodwin, Sr., was not asked about this when he testified. The June 5 reprimand given Moore concerned an argument started by employee Mann in which there was some swearing.' Moore admitted that both he and Mann had used some cuss words and testified that Dewey, who did not witness the argument, sought only Mann's version of the incident.' Mann, who was not called as a witness, was not reprimanded. Our dissenting colleague finds no evidence that there was disparate treatment, noting that Moore was unable to cite recent instances in support of the disparate treat- ment contention. This overlooks the existence of three employee reprimands dated between June 18 and July 24 which were signed by David Lambright and a wit- ness for the bargaining committee and put in evidence by the General Counsel. They were offered to establish the supervisory capacity of Lambright, who cited the three employees involved for, respectively, "not calling in when absent," "failed to bring in a Dr's excuse or receipt," and "insubordination-not performing duties as instructed. General attitude towards working very, very poor!" The second of these was directed to Leroy Peerboom who, like Moore, favored the outside Union. The first and last were to employees not identified by their union sentiments and appear to be serious infrac- tions. None, however, was placed in the personnel file of the employee involved because, according to Presi- dent Goodwin, Superintendent Dewey had not signed them. By contrast, Moore's reprimands were signed by Dewey though he had not witnessed the incidents; one was issued at the direction of Goodwin, Sr., and both were placed in Moore's personnel file. We note that the court in Frosty Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617 (C.A. 5, 1961), cited by Mem- ber Kennedy, was impressed with the uncontradicted and unimpeached testimony of coemployees to the ef- fect that the alleged discriminatee was a poor and un- cooperative worker. Here the record lacks any tes- 4 Though Moore admitted that he arrived at work late, apparently 10 minutes late, on May 22, he denied returning from lunch and breaks late on May 21 As to the dissent's reference to Moore's history of absenteeism, the evidence indicates that this alleged record was not put into evidence and that Moore was questioned about past absences as an effort to get him to generally agree that he had been absent a great deal. Moore, however, did not agree. 5 In an apparent attempt to establish that Moore had a habit of swearing when dealing with fellow employees, the dissent refers to an argument involving Pete Town on or about May 20 The record indicates that this incident concerned the quality of Town's work, rather than an attempt to force Town to favor the outside Union We also note that Moore testified not that he was going to give Town a reprimand, but that he (Moore) asked Lambright, who was found to be a supervisor by the Administrative Law Judge, whether he should do so 6 Though President Goodwin testified that Dewey did witness the June 5 argument, the Administrative Law Judge found that this testimony "loses some persuasion" because Dewey did not testify. 217 NLRB No. 61 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timony by coemployees, including Mann and Rutan, concerning Moore or his work habits, as well as any by Superintendent Dewey who signed the reprimands. We note also that the 8(a)(1) incidents concerning Moore were an integral part of the Respondent's effort to block the organizing efforts of the outside Union to supplant the committee which, as found by the Ad- ministrative Law Judge, Respondent had been actively assisting for at least a year before the 1974 organizing efforts' in which Moore participated. In the circum- stances, we do not agree with our colleague and with the Administrative Law Judge that Moore deserved criticism for the way he went about his activities in support of the outside Union.. In our view, the record as a whole and the testimony credited by the Adminis- trative Law Judge does not support that conclusion. In the circumstances, we find that Respondent vi- olated Section 8(a)(3) and (1) of the Act by issuing pretextual reprimands to Moore which were placed in his personnel file. We shall order that these reprimands be expunged from Moore's work record. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bee Line Engineering, Inc., Jonesville, Michigan, its officers, agents,'successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the administration of Bee Line Shop Committee, permitting that committee to hold meetings on paid company time during the competitive organizational campaign of any competitive labor or- ganization, contributing financial support to that com- mittee, soliciting grievances from employees for the purpose of encouraging their adherence to that com- mittee, threatening to close the plant for the purpose of coercing its employees to adhere to the committee, threatening to stop making pay advances to its em- ployees if the Union comes in, permitting its ' supervi- sors to urge employees to reject the Union, interrogat- ing its employees to determine their union sympathies, and reprimanding its employees in order to discourage adherence to the Union. (b) Recognizing the Bee Line Shop Committee, as the representative of its employees for the purpose of deal- ing with it concerning wages, rates of pay, and hours of employment, unless and until such labor organiza- tion shall have been certified by the Board as the exclu- sive representative of such employees. (c) Giving effect to the collective-bargaining agree- ment with the Bee Line Shop Committee which extends from August 31, 1973, to February 1, 1975, or to any modification, extension, renewal, or supplement thereto; provided, however, that nothing' contained in this Decision and Order shall, require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees, which it has established in the performance of such agreement, or prejudice the assertion by the employees of any rights they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to, form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Bee Line Shop Committee, or any successor thereto, as the collective-bargaining representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employ- ment, unless and until the Board shall certify Bee Line Shop Committee as such representative. (b) Expunge employee Michael Moore's record of the reprimands given him in order to discourage his adherence to the American Federation of Grain Mill- ers, AFL-CIO, or any other labor organization. (c) Post at its plant in Jonesville, Michigan, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 7, after being duly signed by its represen- tatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER KENNEDY, dissenting in part: I disagree with my colleagues' reversal of the Ad- ministrative Law Judge's dismissal of the allegation that Respondent violated Section 8(a)(1) of the Act by issuing two reprimands to employee Michael Moore. 7 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." BEE LINE ENGINEERING, INC. 369 Employees Junior Rutan and Ron Mann had pre- viously complained to Respondent's president, Bill Goodwin, Jr., concerning Michael Moore's strong-arm tactics in soliciting authorization cards and said that they would-quit if it did not cease. At that point in time, Moore occupied the position of working foreman. President Goodwin told Moore that it was not right to apply that type of pressure, that Moore did not have any authority to do so, and that Moore would be re- lieved of his job if the complaints did not stop. On May 20, 1974, shortly after the aforementioned warning, Moore had a heated argument with Pete Town in which there was a lot of swearing. Moore testified that he was going to give Town a "written verbal" warning, but fellow Working Foreman Dave Lambright said he would not back Moore up. After this incident, Moore was relieved of his title and authority as working foreman, but he continued to work for the Respondent as an employee. During the period from May 20 to 22, Moore was late to work in the morning and late to work after lunch and break. Indeed, Moore conceded that he was late to work. Also, he was wasting time and talking to em- ployees. Moore had a history of absenteeism and poor wort: which had improved but was beginning to deteri- orate again . On May 22, Moore also had a conversation with Dave Keck concerning nonwork matters in a loca- tion which was outside of Moore's work area. On May 22, after all of the foregoing, Cosuperintendent Dewey gave Moore a written reprimand for being late to work in the morning, after lunch, and after break, and for talking to an employee outside of his work area. On June 5, Moore had an argument with Ron Mann in which there was more swearing. As noted, Mann had earlier in May complained to President Goodwin about Moore's behavior concerning the distribution of au- thorization cards. Dewey again gave Moore a verbal warning about his malicious statements to other em- ployees. The Administrative Law Judge dismissed the allega- tion that the two reprimands to Moore were violations of the Act, stating, inter alia: . . . it cannot be said that Moore surely did not deserve criticism for the way he went about his activities. On his own statement he was late to work, and he did speak offensively in the plant. The Company had a right to put a stop to the manner in which Moore chose to push the cam- paign of the outside union. and were observed by foremen but were not repri- manded and that there were occasions when supervi- sors knew that employees came back from lunch late and had not been reprimanded . However, Moore was asked to give recent examples of such events and did not give any. I cannot predicate a finding of disparate treatment of Moore by his self-serving, unsubstan- tiated, and uncorroborated testimony. There is no basis for concluding that the Respondent has treated like cases differently, a necessary sine qua non for a finding of discrimination. Frosty Morn Meats, Inc. v. N. L. R. B., 296 F.2d 617 (C.A. 5, 1961). Although Moore had engaged in protected concerted activity, he cannot use this activity as a cloak to insu- late himself from nondiscriminatory reprimands due to his own repeated misconduct. This principle has been long recognized by this Board as was succinctly stated in Klate Holt Company, 161 NLRB 1606, 1612 (1966): Moreover, even if we were prepared to find that Respondent was seeking an opportunity to termi- nate Davis because of its annoyance with the way in which he engaged in protected activity, we would not, in this case, find that Respondent dis- criminatorily discharged him. The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted ac- tivities does not, of itself, establish the unlawful- ness of a subsequent discharge ., If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason , the cir- cumstance that the employer welcomed the oppor- tunity to discharge does not make it discrimina- tory and therefore unlawful. Moore cannot avoid the consequences of his miscon- duct simply because he engaged in protected concerted activity. For the foregoing reasons, I, agree with the Adminis- trative Law Judge's dismissal of the portion of the com- plaint concerning the reprimands given to Moore. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government In my view, the Administrative Law Judge's analysis is entirely correct. I find no evidence that there was disparate treatment of Moore as found by my col- leagues. Moore testified that he observed employees who did not go to work immediately in the morning The National Labor Relations Board having found, after a hearing, that we violated the Federal law by interfering with the administration of Bee Line Shop Committee, and by coercing our employees in their freedom to organize: 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with the internal adminis- tration of the Bee Line Shop Committee. WE WILL NOT make financial contributions to that committee. WE WILL-NOT coercively interrogate our em- ployees concerning their sentiments in favor of or against any labor organization. WE WILL NOT solicit grievances from our em- ployees for the purpose of inducing them to adhere to the committee. WE WILL NOT threaten to close the plant in order to discourage adherence to the American Federa- tion of Grain Millers, AFL-CIO, or any other labor organization. WE WILL NOT reprimand our employees in order to discourage adherence to the American Federa- tion of Grain Millers , AFL-CIO, or any other labor organization. WE WILL NOT threaten to stop giving pay ad- vances in order to discourage adherence to the American Federation of Grain Millers, AFL-CIO, or any other labor organization. WE WILL NOT permit supervisors to urge em- ployees to reject the American Federation of Grain Millers, AFL-CIO, or any other labor or- ganization. WE WILL expunge employee Michael Moore's record of the reprimands given him in order to discourage his adherence to the American Federa- tion of Grain Millers, AFL-CIO, or any other labor organization. WE WILL withdraw all recognition from the Bee Line Shop Committee as the exclusive bargaining agent for any of our employees, and WE WILL NOT extend recognition to that committee as exclusive bargaining agent unless and until it is certified by the National Labor Relations Board as such exclu- sive bargaining agent. WE WILL cease giving effect to our current con- tract with the Bee Line Shop Committee. WE WILL-NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of the right to self-organization, to join or assist American Federation of Grain Millers, AFL-CIO, or any other labor organization, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. BEE LINE ENGINEERING, INC DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on September 5, 1974, at Jackson, Michigan, on complaint of the General Counsel against Bee Line Engineering, Inc., herein called the Respondent or the Company. The charge was filed by American Federation of Grain Millers, AFL-CIO, on June 3, 1974, and the complaint issued on July 19, 1974. The principal issue of the case is whether the Respondent violated Section 8(a)(2) of the Act by giving unlawful assistance to an organization of its em- ployees functioning as a labor organization. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Bee Line Engineering, Inc., operating in the City of Jones- ville, Michigan, is a company engaged in the manufacture, sale, and distribution of automobile parts, including exhaust heaters and related products. During the year ending Decem- ber 31, 1973, a representative period, it manufactured, sold, and distributed plant products valued in excess of $300,000, of which products valued in excess of $50,000 were shipped from its plant directly to out-of-state locations. I find that the Respondent is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED I find that American Federation of Grain Millers, AFL-CIO, herein called the Union, or the Grain Millers, is a labor organization within the meaning of Section 2(5) of the Act. ' III THE UNFAIR LABOR PRACTICES A. A Picture of the Case At the time of the events that gave rise to this proceeding there was in existence a collective-bargaining agreement be- tween the Respondent and all its hourly paid employees, the employees acting through a committee that in a substantial sense functioned as a labor organization for the entire com- plement. The contract, received in evidence, called the em- ployee group "Bee Line Shop Committee," by its terms ex- tended from August 31, 1973, to February 1, 1975, and was signed, on behalf of the employees , by three persons calling themselves president, vice president and secretary-treasurer. In May 1974 a group of employees started an organizational campaign aimed at establishing the American Federation of Grain Millers as bargaining agent for all production and maintenance workers. It was the position of the Company then, as repeated at the later hearing on complaint, that the employees were bound by that contract, that there could be no change of bargaining agent before the contract expired. The complaint alleges that to achieve this objective the Re- BEE LINE ENGINEERING, INC. 371 spondent gave unlawful assistance to the committee, improp- erly interfered with the rights of its employees freely to select a bargain agent of their own choice, coerced them towards retention of the committee and rejection of the outside union, all in violation of Section 8(a)(1) and (2) of the statute. The complaint is very specific, for in addition to detailing the precise conduct of the Respondent said to show the unfair labor practices committed, it also sets out exactly the remedial order requested to assure restoration of a lawful status quo. It is not alleged that the Company itself formed the committee, or dominated it; instead the complaint is con- sciously limited to the charge that the Respondent improp- erly "assisted" it, contributed "support" to the committee. And it is for this reason that the complaint then does not request an order directing the Respondent to dissolve the committee, to disband it altogether. Rather, the General Counsel asks only that the Company discontinue bargaining with the committee, withdraw recognition, and cease giving effect to the above-mentioned contract. What all this means is that if there is merit in the complaint the Respondent must cease meddling into the Union or nonunion affairs of its employees . While it may express its opinion as to which of more than one labor organization it thinks is best for its employees, or even as to whether they should choose any union at all, it must not resort to its managerial power and weight so as to influence their deci- sion. In pertinent part Section 8 (a)(2) makes it an unfair labor practice for-an employer "to . . . interfere with the . . . administration of any labor organization or contribute finan- cial or other support to it." The Respondent denies the commission of any unfair labor practices. It asserts that if any persons on its payroll assisted the committee, or took steps to prevent any move by the employees to join the Grain-Millers, these persons were nei- ther supervisors nor representatives of management . It also seemed to be contending at the hearing that the committee is not, and never was a labor organization, and that therefore in no event could it be found the Company violated Section 8(a)(2), because that section speaks literally of assistance to a "labor organization." B. Unlawful Assistance: Violations of the Statute I find that the Bee Line Shop Committee was a labor organization within the meaning of the Act.' The Respon- dent's contrary contention at the hearing rests upon the fact that the committee had no constitution , no bylaws, no dues arrangement, and indeed no formal structure of any kind. It is equally true, however, that the employees held periodic meetings while calling themselves a committee, elected offic- ers and spokesmen to deal with the Company on their behalf, and in such activities interested themselves in furthering their demands concerning conditions of employment . Most impor- tant of all, of course, and completely determinative of the question, is the reality of the current contract, literally a 1 As stated above, the contract refers to the committee as the Bee Line Shop Committee For reasons not quite clear the complaint refers to it as Interim Shop committee. The change in name may be a result of the confu- sion in the minds of the employees arising from the activities following arrival on the scene of the Gram Millers Union It will simply be called "the committee" here collective-bargaining agreement between employer and the chosen representative or representatives of its employees. 1. There is an ambiguity in the testimony as to actually how long the committee has been in existence, perhaps as far back as 1969. There is no question, however, but that its effective existence dates back to at least August 1973 when the con- tract in evidence was executed. In meeting assembled the employees selected their spokesman-called president, vice president and secretary-treasurer. The entire work comple- ment met for this purpose and to discuss matters concerning conditions of employment, every first Monday of the month, up to about June 1974. The charge in this case was filed on June 3. The meetings were always held on paid company time. The Board has held that by permitting only one group of its employees to hold meetings of this kind, on paid time, while a rival segment of the total complement is campaigning on behalf of another labor organization, an employer unlaw fully assists the first organization. Particularly does such con- duct constitute illegal assistance when the employer is ac- tively expressing its opposition to the new, or outside union. See the testimony of Respondent's president below. Drives, Inc., 192 NLRB 969 (1971). 2. The Respondent has made it a practice for at least during this same period of about a year-up to and including March and May 1974, to give a check, in the amount of about $70 on each occasion, to the committee. This money represented the Respondent's receipts from a vending machine company for license to sell products on the company premises. The Board has held that money payments to the credit of a labor organization constitute unlawful assistance to such a union in violation of Section 8(a)(2). Utrad Corp., 185 NLRB 434, 440 (1910). 3. The move towards signing Grain Millers Union cards came in the latter part of May. One employee recalled a meeting at the home of one man on May 28, where , he said, cards were distributed, but it is clear the solicitation, with or without cards, was going on in the plant as early as May 20. There was sentiment both ways; the record does show that David Lambright and Jerry Wright were among those who favored continuing the committee, and Leroy Peerboom and Michael Moore pushed the outside union. In part because there had always been a certain looseness in the operations of the committee, in part because by the time of the hearing a degree of animosity had developed in the plant, and in part because the recent development and the filing of the charge on June 3 clearly brought on an attempt by the Company to befuddle the picture of both the past and the present, there is an element of ambiguity and even inconsistency in some of the evidence and testimony. It starts with the Respondent's argument that a committee which signs a collective -bargain- ing agreement as representative of the employees is not a labor organization. It continues with the last two commission checks received by the Company from the vending machine owner and given to the committee in keeping with past practice. They were endorsed by William Goodwin, Jr., the president of the com- pany, and handed by him to Peerboom, who at the hearing said he had some months earlier been chosen "chairman" of the committee. Parradine, who had signed the contract in August 1973, as president, had left the company. Lambright, who had signed as secretary-treasurer, said at the hearing he 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had resigned his position. Peerboom testified that after he was "approved" as chairman, "without an election," he asked Lambright and Wright for the committee records and for its checkbook, but they said they had none. Lambright, testify- ing as a defense witness, said he gave the records to Wright. Wright did not testify. Peerboom continued that he simply kept custody of the two checks and then, after the charge in this proceeding was filed, gave them to a Mr. Candiello, a Labor Board investigator. Candiello returned them to him late in June, apparently after making photocopies, for it was copies of the checks that were received in evidence. When Peerboom again had the original checks, Goodwin asked for them back, and told Peerboom "I had no right to them ... he was very upset and showed it in his expressions, what right did I have to give them those checks or Mr. Candiello those checks'...." At Goodwin's direction the office girl gave Peerboom a receipt for the checks dated July 3. This was an attempted coverup, and the defense-articulated primarily by Goodwin himself and Lambright-begins to lose credibility. The picture is blurred in another important respect. The General Counsel contends Lambright is a supervisor, and always has been, A good part of the alleged illegal assistance to the committee is said to appear in the fact Lambright, although a supervisor, was an officer of the committee and signed the contract on behalf of the employees. He was also a prime force, if not the most active among the employees, in the effort to keep the Grain Millers Union out of the plant. The Respondent claims he was no more than a "working foreman," and neither a supervisor nor an agent of the em- ployer. He was a "pusher" to see that the work was ade- quately produced in the 7,000 department, where six or seven employees worked under him. He attended weekly supervi- sors' meetings, he trained employees, and employees were told to bring their problems to him. He was paid about $4.47 per hour while rank-and-file employees received about $3.20 to $3.75. There were received in evidence three form docu- ments entitled "Employee Warning Records," each signed by Lambright as the issuing person. One, dated June 18, 1974, is to Merlin Peiffer, for "not calling in when absent." Another is also dated June 18, to Peerboom: "Failed to bring in Dr's excuse or receipt." The last is dated July 24, to David Keck: "insubordination-not performing duties as instructed. Gen- eral attitude towards working, very very poor!" All of them were typed by the girl in the office; each also bears the signa- ture of K. W. Davis, in his capacity as steward for the com- mittee. President Goodwin asks now that these reprimand notices be disregarded, because he chose at the time not to place them in the personnel files of the employees involved; he said that under his system warnings of this kind are mean- ingless unless cosigned by the shop superintendent. Lamb- right first gave it as his testimony that "Any employee in the shop can do that [issue reprimand notices] . . . Can sign a write-up slip." He then reversed himself, and admitted an ordinary workman had no such authority.' 2 Lambright testified as follows- JUDGE Ricci You mean one fellow is working on this machine and one is working on the other machine, the first fellow can give a written warning to the other fellow's I I think Lambright was a supervisor during May and June; certainly the employees looked upon him as such. If his writ- ten warnings were a meaningless gesture, why have the com- mittee's steward sign as a witness? The collective-bargaining agreement provided for eventual layoff and discharge after successive warnings, or reprimands. And Peerboom, one of the men Lambright "wrote up," several years with the Com- pany, said he never heard reprimands of this kind did not go into his personnel file. On the face of their stories neither Goodwin' nor Lambright were credible witnesses. It is im- proper interference with any labor organization, loosely or- ganized committee or not, for an employer to have a member of management sit in the inner council of the employee group. 4. It seems that Moore was designated a working foreman until May 20, or 22, when, according to Goodwin, he took the title away from him because "his general attitude changed .." Moore's pay did not change, nor his duties in any respect. He was at a Grain Millers meeting on May 18, and starting the next day he passed cards around for signatures. There is some conflict in the testimony as to what then hap- pened to him. He said on the day after the 18th, at 8:30 in the morning, Case, the superintendent and an 'admitted supervisor, asked had he "been passing out union cards that morning and to keep from causing any trouble or anything ...." Moore denied all activity. At 10 o'clock that morning Goodwin talked to him in the office. ". . . he wanted me to be honest with him ... and he asked me about a union. ... He asked me about union card is what he did, If I had been passing out union cards and I told him no....." At about 1:30 p.m. Goodwin called him again to the office, and "he said I thought you know, you didn't know nothing about the union and I told him, I says no, . . . " At the hearing Moore said he had been distributing cards during the lunch hour. On May 22, Moore was given a written reprimand by Cosuperin- tendent Dewey, for, among other things, "talking to em- ployees out of his area," returning to his post late "both after lunch," and "after break," etc. Dewey was not produced as a witness, and Moore said he had never before been repri- manded for being late and had not been late that day either. In his earlier affidavit he wrote: "I was not late to work on 5-22 and if I was late for anything on 5-21, so was all of the other employees." On June 6, Moore was given another repri- mand written by Dewey, this one for "uttering malicious statements to other employees." Moore's story is that this followed an argument he had with two other employees over the relative merits of the Grain Millers as against the commit- tee. Goodwin's version of all this is that he called Moore to his office in the first instance because ."he was applying pressure to men in his area because some of them wouldn't accept the cards .. . h, was applying pressure which he had no right to do.... His own belief shouldn't enter into whatever he THE WITNESS By going through the shop superintendent he could. JUDGE RICCI I beg your pardon? THE WITNESS By going through- - JUDGE RICCI You don't mean that anybody can write a warning to anybody else lust because he feels like it9 THE WITNESS Well, that's right, you are correct. JUDGE RICCI He can't9 THE WITNESS No, he can't BEE LINE ENGINEERING, INC. 373 should be doing with his work...... Goodwin said he removed the "working foreman" title from Moore for this reason. As to the two warning notices, Goodwin said they had been given because Moore' used to leave his work area, came to work late, and argued loudly with others. But Dewey, who witnessed the June 6 incident according to Goodwin, did not testify, and therefore Goodwin's testimony loses some persuasion. In appraising Goodwin's reliability as a witness in these matters, it is fair to consider also his testimony about other conversations he had with a number of employees while all this union activity was going on. He was called as an adverse witness by the General Counsel at the start of the hearing. On questioning by Company Counsel, he then volunteered the information that he did much talking with other employees. "In specific I asked them why they felt they needed an outside labor force. . . . I said what-where is this contract or this company done something to feel that you need an outside labor force, what have we violated in the contract or what grievances do you have that no one has presented to me. I said we haven't failed to act on any matter that has been brought forward to us. I know of no existing problems. Do you have any existing problems and the answer was no . . . " Another employee-witness, Kenneth Davis, testified that on June 4 he told Goodwin he must leave unless he was given a raise. Goodwin gave him 25 cents per hour then and there, and added that if Davis' performance were perfect for a month, he would then give him another 25 cents. As they talked, according to Davis, Goodwin asked what he thought of the Union, and Davis answered he favored it because it would give the men more benefits. As he went on, Davis became vague as a witness, and then conceded it was he who first asked Goodwin what the boss thought about the Union. Finally, after being shown his earlier affidavit, the witness put it this way: "Junior Goodwin asked me why the employees wanted a union and that's when I made my statement to help the. men out and also give them better benefits and then he said well, can't we work things out, can we work thing out between the committee and the shop.... " "I said that to work things out with you would be more so everything for the shop, for the personnel of the office and for the company and not for the men. It would be like everything for them and nothing for the men." Davis also said he told Goodwin that today a Grain Millers' representative would be coming to see him in a few days but that Goodwin said he would refuse to talk to the man. I think Goodwin's version of this talk, taken together with that the rest of his testimony, makes Davis more rather than less reliable. ". . . he said there was going to be a man here to see you in a few days and I said what man and he-I believe he stated Mr. Willis would be in here to see if I would vo'untarily let the Grain Millers in and I said I wouldn't talk to him and I stated why, that they had an existing contract and I wasn't interested in any outside labor organization." And then, obviously to justify his position as well as whatever he may have told the employees, Goodwin added that to negotiate the contract with the committee "It took about five months and eight thousand dollars." His only explanation of this was that there had been a "slowdown" in 1973. It is highly likely, in the circumstances, that Goodwin would in- quire about as to who favored the Grain Millers, and even solicit their grievances of the moment in order to assure them they were well off as they were. I therefore do believe he interrogated Moore and Davis, indeed that he interrogated other employees as well .3 I credit the testimony of Davis, not really contradicted by Goodwin, that the president also attempted to draw from the employees what their complaints were that had caused them to turn to the Grain Millers, and to persuade them to deal directly with him instead . By all of this conduct he violated Section 8(a)(1) of the Statute. I also credit the testimony of Steven Fillmore, a former employee, who testified that in mid-May, when he asked William Goodwin, Sr., the com- pany vice president and Goodwin, Jr.'s father, for an advance in his weekly pay, a courtesy that had also been extended to him in the past, the vice president told him that "if the union did come in he said that he wouldn't be about to give any more advances out and he would have to close the doors of the factory if the union came in." Goodwin, Sr., denied hav- ing said this, but I credit the employee.' It is the Respondent's insistent position that Moore was never a supervisor. Moore said he never knew he held any supervisory authority. In any event, what is more important in this case is that Goodwin's zeal in checking on who was for and who was against the old committee, fits logically with other means he resorted to during this same period, to restore the committee's vitality and thereby weaken the chance of the outside union. The talking that went on, confirmed by Good- win himself, supports the major complaint allegation of un- lawful assistance by the Respondent to a labor organization. Goodwin's entire attempt to belittle the Company's assist- ance to the committee left much to be desired. In virtually the same breath he contradicted himself: "He [Lambright] was one of the principal organizers of this contract . . . and I think he believed in it and he wanted to see it through .. I do not know what his feelings were." 5. During the first week of June, with the structure of the committee in limbo, as it were, and with the Grain Millers' activities on the move (it filed this charge on June 3), Lamb- right and Wright made an attempt to gather the employees and bring about election of a new group of officers and thereby give new life to the committee . Someone posted a petition with a list of printed names on the plant bulletin 3 Both Moore and Davis also testified that at some time or other Goodwin said he would close the plant altogether before accepting an outside union, that he would fire anyone who might engage in a strike against the Com- pany. Considering the way in which this part of their story was told, a certain ambiguity in the substance, and Goodwin 's persuasive denials, I do not credit Moore or Davis in this matter. Davis' statement about a threat on June 4 consisted as much of fact appearing in the leading question as it did in his own words. He also referred to a February conversation in which Goodwin talked of strike and a 5-day notice. The contract did require 5-day notice before the committee could call a strike . This testimony could as well be read as a statement by the company officer that he would insist the 5-day notice be observed. There was no outside union activity in February, and the contract does tend to support Goodwin's version of these talks. 4 The General Counsel asks for an additional unfair labor practice finding based on the two warning slips Moore was given, one on May 22 and one on June 5. While the act of censuring him for his activities of the moment is indicative of, and consistent with the Respondent 's clear tendency to favor the committee instead, it cannot be said that Moore surely did not deserve criticism for the way he went about his activities On his own statement he was late to work, and he did speak offensively in the plant. The Company had a right to put a stop to the manner in which Moore chose to push the campaign of the outside union. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board; it invited the employees to sign if they wished - to "request meeting for election of officers." Some signed, and Wright then went about the plant during working hours solic- iting other signatures, according to the credited testimony of Peerboom. Wright and Lambright then both went to Good- win;, Lambright said he and Wright "were in communication over it [the petition]," and that it was Wright who eventually gave it to the president of the company. Two meetings of the employees were then held, ostensibly for election of officers-one on June 4 and one on June 6, each during working hours and while the employees were paid. Goodwin testified Lambright asked for permission to hold one and Wright for permission to hold the other. He also conceded he knew these men favored the committee and were opposed to the outside union. Exactly what happened at each meeting is not clear; each'lasted about 15 minutes and nothing construc- tive resulted, primarily because the employees were divided in sentiment. Both Wright and Lambright spoke, always in favor of the committee. Peerboom presided at one meeting but it ended inconclusively. There is no escaping the conclusion of this record that Goodwin knew Lambright and Wright's activities were aimed at assisting the committee, and that he intended to further this objective when he authorized the two meetings on company "time. At the hearing he explained his conduct on the ground that he feared the discord among the employees would cause a strike, that he wished to put an end to the bickering and quarreling that was going on. As to his sugges- tion that there was any slowdown in fact, there is no evidence in support . Disagreement among the employees there was, but it does not follow that because the employees cannot resolve the question concerning representation among them- selves, their employer may take it upon himself literally to assist one union, whatever its name or structure, against any other. Goodwin would hardly have given the Grain Millers equal time at company expense, if requested by any supervi- sor like Lambright, or indeed by any employee. At the hear- ing Goodwin justified his favored treatment of the committee by saying there was "a problem in the shop," "a general slow-down." He kept talking about wanting to stop "dissen- sion" in the plant, and finally explained that by dissension he meant: "There was employees that wanted the Grain Millers and then there was employees that were against it." In summary, I find that the Respondent violated Section 8(a)(1) of the Act: (1) by granting the committee's request to hold meetings, and in fact permitting it to hold meetings, on paid company time, during the period of the Grain Millers' known organizational campaign; (2) by paying financial con- tributions to the committee; (3) by coercively interrogating Moore and Davis, and other employees, as to their union desires; (4) by soliciting grievances from employees and invit- ing direct dealings with the Company for the purpose of discouraging adherence to the rival union; (5) by the activities of its Supervisor Lambright, as an officer of the committee, and as an overt activist in urging employees to reject the Grain Millers and (6) by threatening to close the plant if an outside union prevailed. In the circumstances of the case, with the events occurring while there was a division of opin- ion among the employees between those favoring the outside union and those still wishing to bargain through the commit- tee, I also find that by all the foregoing conduct the Respond- ent gave illegal assistance to the committee and thereby vi- olated Section 8(a)(2) of the Act. In resisting this finding of improper assistance to the com- mittee, the Respondent argued both at the hearing and in its brief that it had nothing to do with its original creation or with the selection of the committee officers by the employees. As to the genesis of the now assisted organization, it is also true that while Lambright, the supervisor, actually signed the contract for the employees, that particular act occurred more than 6 months before the filing of the charge; in a technical sense, therefore, it could be argued that that conduct ought not support an unfair labor practice finding now. And, of course, the Respondent keeps urging the ultimate argument that employees have a right to bargain collectively through whatever organization they choose. The finding of illegal conduct made here does not hold otherwise. And it may even be true, what with Lambright having removed himself from the committee's internal affairs in the early part of the year, that even the cash payments made by the Company, and the courtesy of permitting the committee to meet on paid com- pany time, could be viewed as innocuous in the absence of a move by the employees towards an outside labor organiza- tion. It is the assistance given the committee during the Grain Millers' campaign, in the diverse forms sent out above, that ran afoul of the statute. The employees may still, if they so choose, bargain with the Respondent through the committee. All that the finding here dictates is that the employees must absolutely make their own choice in the matter, free of any improper interference by the employer. All the Respondent is required to do now is withhold recognition from the com- mittee, cease giving effect to it and not bargain with it again until such time as the committee, if in fact it be the choice of the employees, is certified by the Board following a secret ballot election. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above, occur- ring in connection with the operations of Respondent de- scribed above, 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. CONCLUSIONS OF LAW 1. Bee Line Engineering, Inc., is an employer within the meaning of the Act. 2. American Federation of Grain Millers, AFL-CIO, is a labor organization within the meaning of the Act. 3. Bee Line Shop Committee is a labor organization within the meaning of Section 8(a)(2) of the Act. 4. By interfering with the administration of the Bee Line Shop Committee, by contributing financial support to it, by coercively interrogating employees concerning their attitude towards the committee, by soliciting grievances from em- ployees for the purpose of encouraging their adherence to that committee, and by threatening to close the plant in retaliation in the event the employees should abandon the committee, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (2) of the Act. BEE LINE ENGINEERING, INC. 375 5. The aforesaid unfair labor practices are unfair labor 2(6) and (7) of the Act. practices affecting commerce within the meaning of Section [Recommended Order omitted from publication.]