The Electric Auto-Lite Co.

National Labor Relations Board - Board Decisions

Jun 27, 1938

7 N.L.R.B. 1179 (N.L.R.B. 1938)

In the Matter of THE ELECTRIC AUTO-LITE COMPANY, BAY MANU-
FACTURING DIVISION and INTERNATIONAL UNION, UNITED AUTOMO-
BILE WORKERS OF AMERICA, LOCAL No. 526
Case No. C-389.-Decided June 27, 1938
Automobile Parts Manufactur ing Industry--Interference, Restraint, and
Coercion : expressed opposition to "outside" labor organization- company-Dom-
inated Union: domination of and interference with formation and administra-
tion ; support ; soliciting membership in, by supervisors ; disestablished , as agency
for collective bargaining-Discrimintation : discharge; complaint dismissed, as
to-Contract : executed by employer and organization found to have been com-
pany-dominated , void and of no effect.
Mr. Earl R. Cross, for the Board.
Mr. James P. Falvey, of Toledo, Ohio, for the respondent.
Mr. Otto J. Manary, of Bay City, Mich., for The Bay Federation.
Mr. Leonard B. Netzorg, of Detroit, Mich., for the United.
Miss Carol Agger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the International Union, United Au-
tomobile Workers of America, Local No. 526, herein called the
United, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Seventh Region (Detroit, Michigan)
issued a complaint, dated November 4, 1937, against The Electric
Auto-Lite Company, Bay Manufacturing Division, 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), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notice of hearing,
were duly served upon the respondent and upon the Union.
The complaint alleged in substance that the respondent, by dis-
charging Joseph Madziar, discriminated in regard to his tenure of
employment and discouraged membership in the Union ; that the
respondent dominated, interfered with, and contributed support to a
1179
1180 NATIONAL LABOR RELATIONS BOARD
labor organization of its employees, known as The Bay Federation,
herein called the Federation ; and that the respondent, by these acts
and conduct and by expressing opposition to the United and by
engendering fear of loss of employment because of membership in the
United, interfered with, restrained, and coerced its employees in the
exercise of their right to self-organization and to engage in concerted
activities for their mutual aid and protection. On November 17,
1937, the respondent filed an answer admitting certain allegations
concerning the nature of the respondent's business, denying that it
had engaged in or was engaging in the alleged unfair labor practices,
and setting forth affirmatively that Joseph Madziar was discharged
because his work was unsatisfactory.
Pursuant to an amended notice, a hearing on the complaint was
held in Bay City, Michigan, on November 18, 19, 20, and 22, 1937,
before Leo J. Kriz, the Trial Examiner duly designated by the Board.
At the beginning of the hearing, the Federation filed a petition for
leave to intervene in the proceedings which was granted by the Trial
Examiner. The ruling of the Trial Examiner is hereby affirmed.
The Board, the respondent, and the Federation were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evi-
dence bearing upon the issues was afforded all parties. At the hear-
ing, the Trial Examiner, on the respondent's motion, dismissed the
allegations of the complaint setting forth the discriminatory dis-
charge of Joseph Madziar. During the course of the hearing the
Trial Examiner made various other rulings on motions and on objec-
tions to the admission of evidence. The Board has reviewed these
rulings and finds that no prejudicial errors were committed.. The
rulings are hereby affirmed.
On February 3, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties, finding
that the respondent had committed unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (2) and Section
2 (6) and (7) of the Act, and that the respondent had not committed
-unfair labor practices within the meaning of Section 8 (3) of the
Act, and recommending that the respondent cease and desist from
interfering with its employees in the right to self-organization and
from dominating, interfering with, or supporting The Bay Feder-
ation and, affirmatively, that the respondent withdraw all recognition
from The Bay Federation and disestablish it as a representative of
the respondent's employees for purposes of collective bargaining. He
recommended further that the allegations of the complaint stating
that the respondent had committed unfair labor practices within the
meaning of Section 8 (3) of the Act be dismissed. On February 7,
DECISIONS AND OI{DEIIS 1181
1938, and on February 14, 1938, respectively, the Federation and the
respondent filed Exceptions to the Intermediate Report.
Upon notice duly served upon the respondent, the- Federation, and
the United, a hearing for the purpose of presenting oral argument on
the Exceptions to the Intermediate Report and on the record was held
before the Board at Washington, D. C., on May 26, 1938. The re-
spondent and the United were represented by counsel and partici-
pated in the oral argument. The Federation did not appear at the
oral argument.
The Board has fully considered the Exceptions to the Intermediate
Report and finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Electric Auto-Lite Company, Bay Manufactur-
ing Division, is an Ohio Corporation with its main place of business
in Bay City, Michigan. It is engaged in the production, assembly,
sale; and distribution of various automobile parts. For the year
ending October 31, 1937, the respondent's sales amounted to approxi-
mately $4,910,118.04, and its total purchases amounted to approxi-
mately $2,643,237.60. About 75 per cent of the materials purchased
by the respondent are received from States other than Michigan and
about 40 per cent of the respondent's finished products are sold to
customers outside the State of Michigan. The Bay Manufacturing
Division employs from 700 to 1,000 persons, exclusive of supervisory
and clerical employees and salesmen.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile -Workers of America,
Local No. 526, is a labor organization affiliated with the Committee
for Industrial Organization, admitting to its membership all em-
ployees in respondent's plant, except supervisory and clerical em-
ployees and employees engaged in plant protection work.
The Bay Federation, a ,corporation licensed under the laws of
Michigan, is a labor organization unaffiliated with any other labor
organization. Its membership is limited to the respondent's em-
ployees.
III. THE UNFAIR LABOR PRACTICES
A. Interference with, domination, and support of The Bay
Federation
The respondent first started its manufacturing operations in Bay
City in the early fall of 1936. There was no labor organization
1182 NATIONAL LABOR RELATIONS BOARD
among the respondent's employees until January 1937 when an em-
ployees' representation plan under the name of Bay Cooperative
Works Council, herein called the Works Council, was organized by'
a number of employees who had come to the Bay City plant from
the respondent's Toledo plant where a similar organization had been
in existence. These employees, under the leadership of Ed Kugel-
man, who subsequently became the president of the Works Council,,
formed an organizing committee and drew up a constitution. There-
after the management permitted the Works Council to hold a series
of meetings in the plant to explain the purposes of the Works
Council to the respondent's employees.
The constitution, which was drawn up by the committee and
adopted by the employees, set up a plan of employee representation
in which the employees of each department elected representatives to
the Executive Committee, which committee also included the officers
of the Works Council. There was no specific provision for instruc-
tion of the committeemen by the employees represented by them or
by the general membership. The Executive Committee was to hold
regular meetings with representatives of the management, the two
groups making up the Joint Council. The constitution provided
that the Joint Council should discuss and decide questions relating
to rates of pay, shop rules, hours of labor, working conditions, safety,
plant sanitation, and employee welfare and recreation. The deci-
sions upon questions affecting the management were to be made by a
two-thirds majority and the management representatives were to
have an aggregate vote equal to that of the Executive Committee.
The constitution itself could be amended only by a similar vote of
the Joint Council. The constitution further provided that the man-
agement should give such assistance as was requested in the election
of Executive Committee members; that the management should pro-
vide a meeting place for the Joint Council and its committees; and
that employees serving upon the Joint Council, its committees, or as
officers of the Works Council, should receive their regular average
pay for the time spent in such work. It is not denied by the respond-
ent or the Federation that the Works Council was dominated and
supported by the respondent, and we so find.
The Works Council was not particularly active until the United
began its organizational activity among the employees in the plant.
The respondent was opposed to outside unions and at one or two
of the meetings of the Joint Council, Clark Adams, the respondent's
general manager, informed the employees' representatives that he
did not want to have an outside union come into the plant. Kugel-
man, the president of the Works Council, admitted that he was aware
of the respondent's attitude toward outside unions. The Works
DLCISIONS AND ORDERS 1183
Council was also opposed to outside organizations and in the April
issue of its publication, "Progress," took occasion to point out that
the Works Council could solve the employees' problems in a more sat-
isfactory manner than a "professional" organization and without
levying the "high tribute" levied by such organizations upon their
members.
Late in April 1937, as a result of the Decisions of the United
States Supreme Court sustaining the constitutionality of the Act,
Adams notified the Works Council that he could no longer deal
with it. Thereupon the Works Council decided that a change in
the constitution of the organization was necessary. The question of
changing the constitution first came before the Executive Committee
of the Works Council early in May 1937. Kugelman consulted an
attorney concerning the necessity of specific changes, although
neither Kugelman nor the Executive Committee had obtained author-
ity from the membership to engage an attorney or to draft a new
constitution. While it was testified that the Executive Committee
had held several meetings regarding the new constitution, the testi-
mony of the members of the Executive Committee showed that they
had little understanding of the action taken. It is quite clear that
Kugelman handled the matter largely by himself.
On May 10, 1937, the Works Council called a mass meeting of all
of the employees in the plant. The meeting, which was announced
by handbills distributed at the gates of the plant, was fixed for
8 o'clock in the evening, which was during the working hours of the
second shift. On the day of the meeting, the respondent's general
manager posted notices in the plant stating that the factory would
close at 7 o'clock that evening, since a large number of employees
had requested leave to attend the meeting. The reason given for
this action was the impossibility of operating the plant in the absence
of so many employees. One Casey, who was at that time the foreman
of the sweepers and plant protection employees, acted as doorkeeper
at the meeting.
Kugelman, who presided over the meeting, informed the employees
that it was necessary to form a new organization differing only
"slightly" from the Works Council. He said that the Act made this
necessary because the management had too much control over the
Works Council. Kugelman then distributed printed copies of the
constitution for an organization called The Bay Federation. The
meeting voted to dissolve the Works Council, to form a new organ-
ization named The Bay Federation, and to adopt the proposed con-
stitution. Kugelman suggested that the Works Council officers serve
as officers for the Federation until the holding of elections of new
1184 NATIONAL LABOR RELATIONS BOARD
officers. This course was adopted by the meeting and the election
was subsequently held.
The Federation constitution, as adopted at the May 10th meeting,
was almost identical with the Works Council constitution except for
the deletion of those provisions reliting to the manner of amending
the constitution and to the assistance to be given by the respondent
in providing meeting places, and in paying committeemen and officers.
The employees' representation plan and the method of carrying on
the organization's business and settling grievances remained the same.
Some of the Works Council officers were elected as officers of the
Federation and Kugelman became a member of the important Shop
Committee. The Federation took over and continued to publish the
Works Council's publication, "Progress." The July issue of "Prog-
ress," published by the Federation, gave credit to the Federation for
obtaining two pay raises granted in February and April 1937. Since
the Federation was not organized until May 10, 1937, it is plain that
the officials of the Federation themselves did not make a distinction
between the two organizations. A prior edition of "Progress," pub-
lished by the Works Council, had also claimed credit for obtaining
one of these raises. Like the Works Council, the Federation was
opposed to an outside union and urged that it could take care of the
needs of the employees better than "selfish, untrained" leaders "with-
out the payment of high tribute." At one meeting of the Federa-
tion, attacks were made on the United and one of the United's mem-
bers was expelled from the meeting, which was open to all employees,
because he refused to answer questions about the United.
The manner in which the Federation's organization was accom-
plished; its utilization of the Works Council officers; its close simi-
larity to the Works Council in its plan of representation, in its
constitution, and in its policies; and the fact that the officers of the
Federation did not regard the two organizations as distinct entities
indicate that the Federation was not a new organization, or a real
transformation of the Works Council, but clearly a continuation of
the Works Council under a new name, and we so find.
Although by drafting a new constitution the Federation attempted
to divest itself of any formal appearance of company domination
and support, the evidence reveals that it did not in fact free itself
of such domination and support. From late in April until late in
J one 1937, a series of meetings were held in the various departments
of, the plant. The employees were paid for the time spent at the
meetings. The respondent's plant superintendent, Smith, spoke at
these meetings and after telling the employees that they were free
to join any union they desired, warned them that an outside union
DECISIONS AND ORDERS 1185
would get them into trouble and pointed out that an inside union
could negotiate grievances better than an outside union. At some
of the meetings Smith stated that when lie was unable to run the
plant "without having to have an outside organization" come in and
te!l hint how to run it lie would "probably be ready to quit." Smith
testified that lie only told the employees that they could join any
union they desired. A number of witnesses testified, however, that
Smith showed hostility to outside unions in his talks and we are
satisfied that substantially those statements were made at least at
some of the meetings.
The respondent held a number of these meetings after the forma-
tion of the Federation. There is some conflict in the testimony as to
the part played by Federation officials at these meetings. The re-
spondent denied that the Federation officials took any part in the
meetings other than as observers. However, Lee Guindon, who was
active in the Federation, testified that Smith, at the conclusion of
his talks, referred the employees to the Shop Committee of the Fed-
eration if they had any grievances. Kugelman testified that when
Smith finished his talks, the "Bay Federation did the speaking."
We feel that the evidence clearly establishes that at the conclusion
of Smith's talks, Federation officials, with the consent of the re-
spondent, took over the meetings and addressed the employees upon
the benefits of an organization such as the Federation and urged
them to refer any grievances they might have to the Federation Shop
Committee.
Membership was solicited by Federation inenibers during working
hours, in the plant, apparently without objection by the respondent,
until June when the respondent ordered that there should be no
solicitation in the plant . In addition Winn, a supervisor , told one
employee that he "had better" join the Federation and inquired of
another employee whether he did not think it was about time he
joined. The respondent contended that Winn was not a foreman
and that his actions cannot, therefore, be attributed to it. However,
it was admitted by Smith, the plant superintendent, that Winn held
a supervisory position with certain powers of direction over the em-
ployees and that the, employees regarded him as their immediate
superior. In the absence of the foreman, Winn was in charge of
the department.
On August 5, 1937, the Federation incorporated. It contends that
by reason of such incorporation it became a. new entity and that the
foregoing incidents have no relation to it. No change other than the
assumption of the corporate form appears to have taken place when
the Federation was incorporated. The officers, constitution, and
1186 NATIONAL LABOR RELATIONS BOARD
method of operation apparently remained the same. It is plain that
the mere fact of incorporation cannot wipe out the taint of the re-
spondent's domination, interference , and support.
We find that the respondent has dominated and interfered with
the formation and administration of the Federation and has con-
tributed support to it, within the meaning of Section 8 (2) of the
Act. We further find that by reason of the conduct described above,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
B. The respondent's contract with The Bay Federation
On September 20, 1937, the respondent entered into a contract
with The Bay Federation, on behalf of the Federation's membership,
governing hours and working conditions. Since we have found that
the Federation was dominated and supported by the respondent,
any such contract executed by the respondent and the Federation is
void and of no effect.
C. The alleged discrimination in regard to hire and tenure of
employment
The complaint alleged that the respondent in discharging Joseph
Madziar discriminated in regard to his tenure of employment,
thereby discouraging membership in the United. The respondent
contended that Madziar was discharged because his work was un-
satisfactory . The evidence shows that Madziar was not a member
of the United at the time of his discharge, that he did not join the
United until after lie had been discharged, and that his production
was low, causing dissatisfaction upon the part of the piece-rate em-
ployees performing operations subsequent to Madziar 's. During the
course of the hearing, the Trial Examiner granted a motion by the
respondent to dismiss the allegations of the complaint setting forth
the discriminatory discharge of Madziar. We agree with the Trial
Examiner and his ruling is hereby affirmed.
We find that the respondent, in discharging Madziar, did not
discriminate in regard to hire and tenure of employment within the
meaning of Section 8 ( 3) of the Act.
IV. TIM EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
DECISIONS AND ORDERS 1187
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon 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. 526, and The Bay Federation, a corporation, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with The Bay
Federation and contributing support to it, has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices a'-re' unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent, in discharging Joseph Madziar, has not en-
gaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
ORDER
Upon the basis of the above 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
respondent, Electric Auto-Lite Company, Bay Manufacturing Divi-
sion, Bay City, Michigan, and its officers, agents, successors and
assigns, shall:
1. Cease and desist:
(a) From in any manner dominating or interfering with the
administration of The Bay Federation; or with the formation or
achninistration of any other labor organization of its employees, and
from contributing support to The Bay Federation, or any other labor
organization of its employees;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
Act.
1188 NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from The Bay Federation, as a repre-
sentative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment, and com-
pletely disestablish The Bay Federation, as such representative;
(b) Post immediately notices to its employees in conspicuous places
throughout the Bay Manufacturing Division in Bay City, Michigan,
stating (1) that the respondent will cease and desist in the manner
provided in paragraphs 1 (a) and (b) of this order; (2) that the
respondent withdraws and will refrain from all i ecognition of The
Bay Federation, as a representative of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and that the respondent completely disestablishes it as such
representative; and (3) that the contract executed with The Bay
Federation is void and of no effect;
(c) Maintain such notices for a period of at least thirty (30) con-
secutive days from the date of the posting;
(d) 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 therewith.
It is further ordered that the allegations of the complaint concern-
ing the alleged discriminatory discharge of Joseph Madziar be, and
they hereby are, dismissed.