Detroit Steel Products Co.

In the Matter of DETROIT STEEL PRODUCTS COMPANY and INTERNA- TIONAL UNION, UNITED AUTOMOBILE WORKERS OF, AMERICA, LOCAL No. 351 Case No. C-1198.-Decided March 11, 1940 Iron avid Steel Products Industry-Interference, Restraint , or Coercion: sepa- rate charges of, dismissed-Company-Dominated Union: domination of and inter- ference with administration ; charges of, sustained as to Mutual Association and dismissed as to Spring Association ; Mutual Association disestablished as agency for collective bargaining-Contract: with company-dominated Mutual Association, abrogated. Mr. Earl R. Cross, for the Board. Butzel, Eaman, Long, Gust & Bills, by Mr. Rockwell T. Gust, of Detroit, Mich., for the respondent. Mr. Herbert B. Galton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and amended charge duly filed by International Union, United Automobile Workers of America, Local No. 351, herein called the U. A. W. A., the National Labor Relations Board, herein called the Board, by Frank H. Bowen, Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated July 13, 1938, against Detroit Steel Products Company, Detroit, Michigan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent, the U. A. W. A., the Detroit Steel Products Mutual Benefit Association, herein called the Mutual Association, and the Detroit Steel Products Spring Workers Association, herein called the Spring Association, and herein jointly called the Associations. The complaint alleged in substance: (1) that from on or about July 5, 1935, the respondent dominated and interfered with the formation 21 N. L. R. B., No 48. 511 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and administration of the Associations and contributed financial and other support thereto; and (2) that by expressing opposition to the U. A. W. A. and engendering fear of loss of employment because of membership and activity in the U. A. W. A., and by other acts,, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On July 16, 1938, the respondent filed with the Regional Director its alternative motion either to make the complaint more definite and cer- tain or to issue a bill of particulars, and also for an extension of 10 days' time after service of an amended complaint or bill of particulars in which to answer. The Regional Director granted the respond- ent an extension of time in which to answer but denied the motion in other respects. On August 1, 1938, the respondent filed its answer denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held on August 9, 10, 11, and 12, 1938, at Detroit, Michigan, before John T. Lindsay, the Trial Ex- aminer duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the inception of the hearing the Associations moved to intervene. The respondent also renewed its alternative motion. The Trial Ex- aminer denied these motions. At the close of the Board's case, the respondent moved for an adjournment until the following morning so that preparation might be made to present its case. The Trial Ex- aminer granted the motion. Counsel for the Board also moved to amend the complaint to conform to the proof, limiting the amendment to typographical errors and the misspelling of names and not extend- ing it to any material allegations. This motion was granted by the Trial Examiner. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On February 16, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served on the parties, and on the Associations. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease and desist from its unfair labor practices, and, affirmatively, disestab- lish the Associations, and terminate the contracts between the respond- ent and the Associations. DETROIT STEEL PRODUCTS COMPANY 513 On March 2, 1939, the respondent filed its exceptions to the Inter- mediate Report. On April 12, 1939, the respondent filed a brief. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on August 22, 1939. The respondent was represented by counsel and participated in the argument. The Board has considered the exceptions and brief and, in so far as the exceptions are inconsistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Michigan corporation having its office and two plants, herein respectively called the Sash and Spring plants, at De- troit, Michigan. It also has a plant in Oakland, California, which is not involved in the instant proceeding. The respondent manufactures steel windows, auto springs, and railroad springs. Its purchases for the first half of 1938 were valued at about $986,- 000.00. Approximately $711,388.59 in value of this material came from without the State of Michigan. In 1937 the Sash plant shipped materials valued at more than $6,000,000.00 of which 75 to 80 per cent in value were transported to States other than Michigan. The Spring plant's shipments during this period were valued at more than $3,- 000,000.00. Most of these shipments were within Michigan. The same percentages were present for the first half of 1938. Customers for the automobile springs of the Spring plant include Chrysler Corporation, General Motors Truck Corporation, Ford Motor Car Company, and Graham-Paige Company. The Sash plant has branch offices in 13 different cities throughout the United States. Both plants have salesman throughout the United States. There are normally about 550 to 600 employees in the Sash plant and about 300 to 350 employees in the Spring plant. The respondent is one of the larger companies in its particular line in the United States and utilizes railroads, steamships, and motor trucks for transporting its product. ° It sends 3 to 10 per cent of the finished product to its Oakland, California, plant for assembly. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local No. 351, is a labor organization affiliated with the Congress of In- dustrial Organizations. It admits to membership only those who work in the plants of the respondent. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Detroit Steel Products Mutual Benefit Association is an un- affiliated labor organization. It admits to membership all non-super- visory, hourly or daily paid employees of the Sash plant who are more than 18 years of age. The Detroit Steel Products Spring Workers Association is an un- affiliated labor organization . It admits to membership all employees of the Spring plant. , III. THE UNFAIR LABOR PRACTICES A. Backgrownd Early in 1934 a committee of employees from the Sash and Spring plants met with management representatives for collective bargaining purposes. Shortly thereafter this arrangement was discontinued. At about the same time employees of the respondent formed a labor or- ganization affiliated with the American Federation of Labor. B. The Mutual Association During March 1934, a few employees of the Sash plant , meeting in the plant lunchroom during working hours, formed the Mutual Asso- ciation. They selected a committee on bylaws which received the assistance of one Frazer, personnel director of the respondent . There- after the committee submitted proposed bylaws to employees at the Sash plant for their approval. The bylaws as approved provided for officers and a board of direc- tors, check-off of 50 cents monthly , grievance procedure , disability and sick benefits , annual elections in April, but contained no pro- vision for meetings . They were amended in April 1938 to provide for representatives, monthly general membership meetings, regular bimonthly meetings of the board of directors and representatives, and procedure for amendments. Pursuant to the Mutual Association 's request, the respondent, through Frazer, had membership cards printed without charge to the Mutual Association . Pursuant to a further request, Frazer attended a meeting of the Mutual Association in 1934 to provide certain infor- mation as to the proper organization of the Mutual Association. Dur- ing the same period the Mutual Association also consulted him in planning a feather party and a picnic. The Mutual Association solicited new employees, during working hours, to join the organization. At a date which does not appear in the record, the respondent instructed its foremen that there was to be no solicitation of members by any labor organization during working hours. There was, however, no rule against solicitation during lunch DETROIT STEEL PRODUCTS COMPANY 515 hours. Also at some undisclosed date, the respondent received com- plaints that the Associations and the U. A. W. A. were soliciting mem- bers. Thereafter it "checked with the foremen again on our instruc- tions." With the approval of W. C. Owen, vice president of the respondent, the board of directors of the Mutual Association held meetings two or three times each month , usually in the plant lunchroom, during work- ing hours and without loss of pay. This practice did not cease until sometime in 1937 . The board of directors held a meeting in the plant lunchroom as late as July 1938. A meeting of the employees to discuss a proposed decrease in wages was held under the auspices of the Mu- tual Association in the plant lunchroom during March or April 1938. During the spring of 1935 elections for officers of the Mutual Asso- ciation were held in the plant during working hours . Again early in 1937 nominations and elections of such officers were held in the plant during working hours. Members of the nomination and election boards were not docked for the time spent in such activity. The respondent supplied the Mutual Association with the printed ballots used in the elections. The bulletin boards of the plant were customarily available to the Mutual Association . It posted regularly notices of meetings, elections, parties, and picnics. The U. A. W. A. made a single request to post a notice in the plant. The respondent granted this request. The respondent checks off dues for the Mutual Association from the wages of employees who, in writing, so authorize the respondent. The respondent and the Mutual Association have executed several agree- ments beginning with May 1935. Since April 16, 1937, the respondent has recognized the Mutual Association formally as representative for its members. C. The Spring Association In October 1934 John Bickman, subsequently elected president of the Spring Association, and one or two other employees of the Spring plant, having learned of the Mutual Association , informed Owen that they desired to form a similar organization . Owen replied that the respondent would bargain with any of its employees and that collec- tive bargaining was "a good idea. " The Spring Association was formed at a meeting of employees held outside the plant on October 26, 1934. At this meeting a committee on bylaws was selected. The commit- tee submitted proposed bylaws to the meeting of the Spring Associa- tion held on November 15, 1934. The minutes for this meeting recite that the bylaws were adopted and were to be printed if Owen "ac- cepted" them . Thereafter the Spring Association requested Owen to 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accept or approve the bylaws. W. R. Aylward, secretary of the Spring Association, testified that pursuant to such request Owen accepted the bylaws. Owen testified, however, that he replied to the request as follows : "I have nothing to do with the approving of your by-laws. That is your baby." Thereafter Frazer had the bylaws printed at the expense of the Spring Association. These bylaws provided for officers and a board of representatives, grievance procedure, annual elections, general membership meetings "whenever it is deemed necessary by the Board of Representatives," and monthly meetings of the board of representatives. On February 27, 1935, the Spring Association bifurcated into a bargaining association and a benefit association. These subsidiary organizations remained parts of the Spring Association. The bylaws described above became the bylaws of the bargaining association. The Spring Association adopted new bylaws for the benefit association. Frazer had agreed to assist the Spring Association in the preparation of the benefit association bylaws but the record does not reveal what aid, if any, he offered in this connection. In August 1937 the Spring Association consolidated the two sets of bylaws. An employee might belong to either or both associations. Frazer had agreed to assist the benefit association "in any manner possible." What assistance he extended to the benefit association, if any, does not appear. Prior to May 1, 1937, the board of representatives of the Spring Association held its monthly meetings in the plant office. Thereafter it met outside the plant. The Spring Association has held each of its annual elections in the plant, and, except for the last two occurring prior to the hearing, dur- ing working hours. The respondent checks off dues for the benefit association of the Spring Association from the wages of the employees who, in writing, so authorize the respondent. Following the formation of the Spring Association, the respondent agreed to "acknowledge" it. The respond- ent has entered into several contracts with the Spring Association be- ginning in May 1935. Since May 17, 1937, the respondent has recog- nized the Spring Association formally as representative of its members. D. The respondent's policy toward affiliated labor organizations The American Federation of Labor at one time had, and the U. A. W. A. has, members among employees of the respondent. The respond- ent has conferred with these organizations in regard to their de- mands. It has instructed its foremen not to advocate or oppose any labor organization. The record does not establish any infractions DETROIT STEEL PRODUCTS COMPANY 517 of this rule. On June 17, 1938, after charges were filed and before the complaint issued in this case, the respondent announced to the employees a "policy" of "strict neutrality" between "different labor organizations." 1 E. Concluding findings The respondent has not been hostile toward affiliated labor organi- zations. The Mutual Association, in its formation and administration, has received aid from the respondent. Its initial and subsequent meetings, elections, and other activity occurred on company time and property. Personnel Director Frazer rendered it assistance in the formulation of bylaws, and in respect to its organization and activities. Finally, the respondent donated to the Mutual Association membership cards and printed its election ballots. The Spring Association has also used company time and property to some extent for its activities. There is no evidence, however, that the respondent supplied the Spring Association with materials such as membership cards and election ballots. Although Frazer agreed to extend aid to the Spring Association, his offer applied to the benefit association of the Spring Association; an employee could join the benefit association without affiliating with the bargaining association of the Spring Association ; and the nature of Frazer's assistance, if any, does not appear. Whether an employer's conduct is serious enough to constitute domi- nation, interference, or support within the contemplation of the Act is necessarily a question of degree upon which, in some cases, reasonable men may differ. This question, in respect to the Mutual Association and the Spring Association, is admittedly a close one. I am of the opinion that the Mutual Association has received enough tangible and material support from the respondent to make it influenced "by fear or favor, of or from the management," and hence proscribed under See- The material portions of the statement are as follows : Any employee is free, without fear of coercion , restraint or discrimination, to join or not to join any union. Employees will not be discriminated against nor favored because they belong or do not belong to any labor organization As between different labor organizations , the Company will maintain an attitude of strict neutrality. We will discuss with any minority group or individual any request , complaint employees as the exclusive bargaining agent. This bargaining will determine definitely all agreements regarding major issues, such as wages, hours , working conditions , seniority rules, and similar items We will discuss with any minority group or individual any request , complaint or grievance , in accordance with our established grievance procedure. Decisions reached in such discussions can not in any way conflict with general agreements made with representatives of the majority of employees 283032-41-vol 21-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8 (1) and (2) of the Act.2 I am of the- opinon further that al- though the existence of the Mutual Association may have suggested the formation of the Spring Association, the record does not establish sufficient acts of the respondent to enable the Board to find that the Spring Association is not a representative of the employees' own choosing free from "fear or favor" of the respondent. - Mr. Smith agrees with Inc in regard to the Mutual Association. Mr. Leiserson agrees with me in regard to the Spring Association. Mr. Smith, Mr. Leiserson, and I are agreed that the evidence does not sup- port the complaint in so far as it alleges that the respondent expressed opposition to the U. A. W. A. or engendered fear of loss of employ- ment because of membership and activity in the U. A. W. A. The Board finds that the respondent has dominated and interfered with the formation and administration of the Mutual Association, and has contributed support to it; that by its aforesaid acts, the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed employees by Section 7 of the Act. The Board finds that the respondent has not dominated or inter- fered with the formation or administration of the Spring Association, or has contributed support to it. The Board finds that the respondent did not express opposition to the U. A. W. A. or engender fear of loss of employment because of membership and activity in the U. A. W. A. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I 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. 2N. L R. B v Brown Paper Mill Company, Inc, 310 U S 651, enf'g Matter of Brown. Paper Mill Company, Inc Monroe, Louisiana and International Brother- hood of Paper Makers, affiliated with the American Federation of Labor, 12 N. L R. B 60. The Mutual Association has had a continuous existence from March 1934 to date. Consequently, although the respondent' s conduct occurring prior to July 5, 1935, the effective date of the Act, does not constitute unfair labor practices, such conduct deter- mines the significance of the respondent's acts, occurring after the effective date of the Act, and also the character of the Mutual Association. N L. R B v Pennsylvania Greyhound Lines, Inc . et al, 303 U. S 211, rev'g 91 F (2d) 178 (C C A 3), enf'g Matter of Pennsylvania Greyhound Lines, Inc , Greyhound Management Company, Cor- porations , and Local Division No. 1063 of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N L R B. 1; Jeffery-DeWitt In- sulator Co v. N. L. R B, 91 F (2d ) 134 (C C A 4), cert den 302 U S 731, enf'g Matter of Jeffery-DeWitt Insulator Company and Local No. 1155, United Brick and Clay Workers of America, 1 N. L. R B. 618. DETROIT STEEL PRODUCTS COMPANY V. THE REMEDY 519 Having found that the respondent has engaged in unfair labor prac- tices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Mutual Association and has contributed support to it. Its continued existence is a consequence of violation of the Act. In order to effectuate the policies of the Act and free the employees of the respondent from such support, inter- ference, and domination , and the effects thereof, which constitute a continuing obstacle to the exercise by employees of rights guaranteed in the Act, we will order the respondent to withdraw all recognition from and completely disestablish the Mutual Association as repre- sentative of the respondent's employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay, hours of employment , or conditions of work. Since the agree- ment of April 16, 1937, between the respondent and the Mutual Asso- ciation embodies recognition of the Mutual Association as such repre- sentative, we will order the respondent specifically to cease and desist from giving effect to this or any other agreement it may have entered into with the Mutual Association in respect to rates of pay, wages, hours of employment , or other conditions of work. 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. International Union, United Automobile Workers of America, Local No. 351 , Detroit Steel Products Mutual Benefit Association, and Detroit Steel Products Spring Workers Association are labor organi- zations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the admin- istration of, and contributing financial or other support to Detroit Steel Products Mutual Benefit Association has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (2) ,of the Act, and thereby is interfering with, restraining, and coercing -employees in the exercise of rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not dominated or interfered with the forma- tion or administration of, or contributed financial or other support to Detroit Steel Products Spring Workers Association , within the mean- ing of Section 8 (2) of the Act. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Detroit Steel Products Company, Detroit, Michigan, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of the Mutual Association, or with the formation or administra- tion of any other labor organization of its employees, and from contributing support to the Mutual Association, or any other labor organization of its employees; (b) Giving effect to the agreement of April 16, 1937, or any other agreement it may have entered into with the Mutual Association in respect to rates of pay, wages, hours of employment, or other conditions of work; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from the Mutual Association, as the representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work, and completely disestablish said Mutual Association, as such representative ; (b) Immediately post notices to its employees in conspicuous places throughout its Sash plant, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), and (c) and that it will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Seventh Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent dominated and interfered with the formation and administration of, and contributed financial and other support to Detroit Steel Products Spring Workers Association within the meaning of Section 8 (2) of the Act, or ex- DETROIT STEEL PRODUCTS COMPANY 521 pressed opposition to International Union, United Automobile Workers of America, Local No. 351, and engendered fear of loss of employment because of membership and activity in International Union, United Automobile Workers of America, Local No. 351. MR. EDWIN S . SMITH, concurring in part and dissenting in part: I concur in the finding that the respondent dominated, interfered with, and supported the Mutual Association. I believe that the Spring Association falls within the same category. The dominated Mutual Association inspired its formation. John Bickman, its president, accompanied by other employees, informed the respondent of their idea of starting an organization similar to the Mutual Association at the Spring plant, thereby, in effect, seeking the respondent's consent. The Spring Association submitted its bylaws for the respondent's approval. Whether or not the respondent gave explicit consent or approval to the project, it is clear that the Spring Association was amenable to company domination, and not "wholly uninfluenced by fear or favor, of or from the management." 8 This susceptibility must be attributed to the respondent's unfair labor prac- tices with respect to the Mutual Association. Consequently, effectua- tion of the policies of the Act requires disestablishment of the Spring Association as well as disestablishment of the Mutual Association.4 Moreover, the support which the respondent gave the Spring Asso- ciation, by permitting it the use of company time and property and by Frazer's offer to aid the Spring Association "in any manner pos- sible" is' not materially different from the assistance afforded to the Mutual Association. The surrounding circumstances may determine what assistance is substantial enough to constitute unlawful support. In view of the Spring Association's initial responsiveness to interfer- ence and domination, and in view of the extension of unlawful sup- port to the neighboring Mutual Association, I regard the respondent's support to the Spring Association as substantial and in violation of Section 8 (1) and (2) of the Act. I concur in the finding that the respondent did not express opposi- tion to the U. A. W. A. or engender fear of loss of employment because of membership and activity in the U. A. W. A. MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : I am of the opinion that the record does not support the allegations of unfair labor practices. The entire complaint should be dismissed. s See N. L. R. B. v. Brown Paper Mill Company, footnote 1, supra. ' See my opinion in Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175-A, International Brotherhood of Electrical Workers, 12 N. L R. B. 375, 400.