Rupp Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1975

217 N.L.R.B. 385 (N.L.R.B. 1975)

RUPP INDUSTRIES, INC. 385
Rupp Industries , Inc. andInternational Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America, UAW. -Cases 8-CA--8082,
8-CA-8170, and 8-RC-9239
April 11,, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On September 13, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in this
proceeding.' Thereafter, Respondent filed exceptions
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 con-
clusions of the Administrative Law Judge and to adopt
his recommended Order.
Our colleague disagrees with our affirmance of the
Administrative Law Judge's findings that Respondent
(1) violated Section 8(a)(1) by granting wage increases
to three female welders, (2) violated Section 8(a)(2) by
its conduct in the establishment and operation of the
Rupp Employees' Committee, and (3) violated Section
8(a)(1) by requesting an employee to poll other em-
ployees as to their willingness to meet with manage-
ment to discuss grievances, and by requesting two other
employees to discuss employment problems with man-
agement.
1. We believe the Administrative Law Judge's con-
clusion that Respondent intended to influence their
attitude toward the Union by granting the three female
welders pay raises and backpay is well supported by the
authorities upon which he relies and the evidence
which underlies his findings. These findings effectively
refute the rationale of the dissent that the increases
were given by a new management in response to re-
peated protests to correct an inequitable prior policy of
paying lower wages to women welders than to men and
that no reference was made to the union campaign in
granting the increases.
i The Rupp Employees' Committee was permitted to intervene as a party
of interest.
2 ,Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
No significance, of course, can be attached to the
Employer's failure expressly to relate the wage in-
creases to the organizational campaign. As the Su-
preme Court observed in N.L.R.B. v. Exchange Parts
Company, 375 U.S. 405, 410 (1964), "the absence of
conditions or threats pertaining to the particular bene-
fits conferred" is not "of controlling significance." The
mere grant of benefits during the pendency of an elec-
tion petition raises a presumption of impropriety unless
satisfactorily explained by the employer. No such ex-
planation can be found in the present record. The pay
raises were granted not to correct inadvertent depar-
tures from an existing company practice, as was the
case of three other employees with respect to whom the
Administrative Law Judge declined to find violations.
On the contrary, they resulted in the abandonment of
an established policy of a lower pay scale for female
welders. Moreover, the timing of the change supports
the conclusion that it was designed to influence the
election. The danger of improper employer influence
"inherent in well-timed increases in benefits" was also
noted by the Supreme Court in N.L.R.B. v. Exchange
Parts Company, supra at 409. The new management
assumed control in April 1973. The women welders
were rehired in June 1973. Following their reinstate-
ment, they protested the pay differential which had
been a cause of complaint since 1970. No action was
taken on their grievance, however, until after the Union
filed a petition for election in October 1973. In mid-
October they were advised that the-pay discrimination
would be corrected and on October 29 they received the
rate increases and backpay. The Company inactive on
their complaints for 4 months, combined with the
quick response following shortly upon the filing of the
election petition, clearly supports the Administrative
Law Judge's conclusion that the benefits were con-
ferred to influence the election results.'
2. The Administrative Law Judge's finding of a vio-
lation of Section 8(a)(2) in the establishment of the
Rupp Employees' Committee is also supported by the
record. In mid-October Respondent's owner and prin-
cipal stockholder (Hrudka) and its president (Focht-
man) called and presided at a series of meetings of the
various departments of employees in the plant confer-
ence room. At each of these meetings, after some dis-
cussion of employee problems and grievances, the com-
pany officials suggested that the employees select two
representatives from each department to form the com-
mittee to meet with management for the purpose of
working out grievances and problems. Immediately fol-
lowing these meetings the committee of about 12 em-
3 Nothing in the record supports the suggestion of the dissent that the
action was taken to comply with Government policy or explains why the
suggested policy was not implemented when the employees were rehired in
June rather than after the filing of an election petition in October.
217 NLRB No. 65
386 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were selected and met the following day with
the company officials. At this meeting, working condi-
tions were discussed, some complaints were immedi-
ately resolved, and others were postponed for future
consideration. Respondent's active role in the establish-
ment of the committee, together with its support,
recognition, and grant of benefits, clearly, constitutes a
violation of Section 8(a)(2). Compare N.L.R.B. v.
Grand Foundries, Inc., 362 F.2d 702 (C.A. 8, 1966).
3. Against this background of attempting to under-
mine the union organization campaign by fostering es-
tablishment of a company-dominated negotiation com-
mittee, granting unlawful pay raises to some
employees, the coercive interrogation of others, the im-
plied threat of reprisal against an employee for passing
out union cards, and the express threat to close the
plant before letting the Union in, Respondent's (1) sol-
- iciting an employee to poll his fellow employees to
ascertain their willingness to meet directly with top
management to discuss their grievances, and (2) re-
questing two other employees to discuss employee
problems directly with Respondent's owner and princi-
pal stockholder constituted further efforts to bypass the
Union and discourage organization in violation of Sec-
tion 8(a)(1) as found by the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Rupp Industries, Inc., Mansfield, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in 'the said recommended Order.
MEMBER KENNEDY, dissenting:
It seems anachronistic that under present conditions
this Board would penalize an employer for attempting
to place women on an equal economic footing with
their male counterparts, an act apparently taken by the
Employer in compliance with a Government policy.
Accordingly, I would not adopt the Administrative
Law Judge's finding that this Employer violated Sec-
tion 8(a)(1) by this conduct.
Employees Virgie Lewis, Sandra Lawrence, and
Louise Ball were reinstated about June 1973 as welders
following a period of unemployment. Their wages at
the time of their reinstatement were below those of men
doing comparable work. On October 29, after repeated
complaints to supervisors that their rate of pay was
below that to which they were entitled, they received
wage increases from the new management which
brought their pay rates to the level received by men
performing similar work, together with backpay to the
date of their reinstatement.
The Administrative Law Judge found that by in-
creasing the hourly wage of the three female workers
the Respondent had deviated from its past policy of
paying female workers on a lower wage scale than their
male counterparts. He also found the timeliness of the
raises, i.e.,, after the filing of the petition and com-
mencement of the election campaign, was designed to
induce them to vote against the Union.
I would find, contrary to my colleagues, no violation
of Section 8(a)(1) of the Act in the granting of these
wage increases. The increases to these women em-
ployees were made only after repeated protests by the
women. No reference to the Union or the organiza-
tional campaign was made in granting the increases.
New management had recently taken over operation of
Respondent and was attempting to correct inequities.
The payment of lower wages to women for work identi-
cal with that performed by men was not only inequita-
ble, it was also probably unlawful.' The court of ap-
peals in Wilkinson Mfg. Co. v. N.L.R.B., 456 F.2d 298,
303 (C.A. 8, 1972), stated that "an employer may in-
crease wages or other benefits during an organizational
campaign if its action is without any purpose of imping-
ing upon the employees' freedom of choice in selecting
or rejecting the Union." In my view, the record lacks
substantial evidence to support the contention that the
Respondent had an unlawful purpose in granting these
increases and I would, therefore, dismiss that 8(a)(1)
allegation. '
Furthermore, the evidence does not establish, in my
judgment, a violation of Section 8(a)(2) of the Act. In
mid-October 1973 owner Hrudka and President Focht-
man called and presided at departmental meetings of
employees. The stated purpose of these meetings was to
enable employees to air their complaints. During the
course of these meetings the subject of an employee
grievance committee arose; one had been in existence
under former management. The record is unclear as to
who initiated the discussion of the committee. How-
ever, Hrudka or Fochtman, after brief preliminary dis-
cussion, suggested that each department select repre-
sentatives to form a committee. Thereafter, certain
employees volunteered or were elected in the various
departments to form the committee. Respondent did
not participate in the selection of committee members.
The next day a committee consisting of 12 representa-
tives met with Hrudka and Fochtman. The topics dis-
cussed included aisle safety, additional coffee, and
wages. In response to the salary inquiry the Respond-
ent stated that it was powerless to act because of the
Union's petition. The following week the Respondent's
attorney met with the committee and informed the
members that .due to established guidelines of the Na-
^ The Equal Pay Act of 1963, 29 U S C. § 206(d)(1).
RUPP INDUSTRIES, INC. 387
tional Labor Relations Board future meetings would
have to be ruled out.
Contrary to my colleagues, I do not agree that Re-
spondent either dominated or unlawfully assisted the
committee. The selection of the committeemen was en-
tirely in the hands of the employees. No member of
management was either present or participated in the
voting for committee members. No supervisor was a
member of the committee. Nor did Respondent render
any tangible assistance to the committee. As to the
Administrative Law Judge's reliance on Respondent's
potential control of the committee because of the Re-
spondent's power to transfer employees, the Board
stated in Duquesne University of the Holy Ghost, 198
NLRB 891 (1972):
[W]here, as here, the structure of the Committee
and the method of selecting representatives rests
solely with the employees, and there is nothing in
the record to indicate any means by which the
selection is subject to employer approval or con-
trol, we find no basis for concluding that Respond-
ent violated the Act merely because it retains the
power, which every employer has, to transfer em-
ployees from one area of its operations to another.
Accordingly, I would dismiss the 8(a)(2) allegation.
As I would dismiss the foregoing complaint allega-
tions, I would also overrule the objections to the elec-
tion based on the same conduct.
DECISION
STATEMENT OF THE CASE
the purpose of a hearing before an Administrative Law Judge.
Certain of the election objections in issue are coextensive with
allegations in the consolidated complaint. -
On July 16, and 17, 1974, a hearing in this consolidated
proceeding was held before me in Mansfield, Ohio, in which
all parties participated and were afforded full opportunity to
present relevant evidence. A brief filed by Respondent and a
"letter-brief' by the Union have been duly considered.'
Upon the entire record in the case,' and from my obser-
vation of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, at its principal place of business in Mansfield,
Ohio, is engaged in the manufacture and sale of mmibikes and
snowmobiles. Annually, it ships products valued in excess of
$50,000 directly to points outside the State of Ohio. Respond-
ent admits, and I find, that it is engaged in commerce within
the meaning of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I fmd, that International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, herein called the Union or
UAW, is a labor organization within the meaning of the Act.
Notwithstanding Respondent 's denial, I fmd that The Rupp
Employees Committee, herein called the Committee, is also
a labor organization within the definition of Section 2(5).
Upon the facts more fully described infra, it is sufficiently
shown that this body is an "organization" or "agency" or
"employee representation committee . . . in which em-
ployees participate and which exists for the purpose, in whole
or in part, of dealing with [Respondent] concerning
grievances."4
BENJAMIN B. LIPTON, Administrative Law Judge: Cases
8-CA-8082 and 8170 involve a consolidated complaint by
the General Counsel' alleging that Respondent engaged in
certain independent acts of coercion, and that it dominated,
assisted, supported, and interfered with the administration of
The Rupp Employees Committee, in violation of Section
8(a)(1) and (2) of the Act. In Case 8-RC-9239, pursuant to
a Decision and Direction of Election by the Regional Direc-
tor, an election was conducted on December 14, 1973, in an
appropriate unit consisting of production and maintenance
employees of Respondent's Mansfield, Ohio, plant. At the
election, of 220 eligible voters, 165 cast ballots, of which 45
were for the Union, 49 were against the Union, and 71 were
challenged. Timely objections were filed by the Union. On
March 7, 1974, the Regional Director issued his formal re-
port on the objections and challenges. All the challenges were
sustained except one, not affecting the election results. All the
objections were overruled, except Objections 2, 11, 12, and a
portion of 6. As to the latter objections, the Regional Director
found substantial and material issues of fact and ordered
consolidation of the complaint and representation cases for
i The Union 's charges in 8-CA-8082 and 8170 were filed , respectively,
on December 21, 1973, and February 11, 1974.
III THE UNFAIR LABOR PRACTICES
A. Introduction; Advent of Union
In April 1973,5 Respondent was taken over by Joseph
Hrudka, as the new owner and principal stockholder. New
top officers were installed, including Edmond Fochtman, as
president, and James Radovic, as vice president of adminis-
tration. In mid-August, an organizing campaign by the
Union was commenced at the plant. On October 1, the Union
2 Absence of a brief from General Counsel is particularly noted:
3 During the hearing, an informal agreement was reached resolving the
issues in Case 8-CA-8259, which involved alleged violations of Sec. 8(a)(3)
and (1) relating to conduct, including the discharges of Anna Imhoff, Billy
Fields, and Edward Baker, which postdated the Board election. On August
22, 1974, upon notice of compliance with the settlement terms, I issued an
order granting motions to dismiss that complaint and severing Case
8-CA-8259 from this proceeding
4 Respondent's arguments, for example, that the Committee has no con-
stitution or bylaws, is without officers or "formalities of any kind," and was
not engaged in, or established for the purpose of, collective
bargaining-have essentially been answered and rejected in cases, e.g.,
NL.R.B. v. Cabot Carbon Company, etc 360 U.S 203, 213 (1959), Walter
Process Equipment, Inc, 163 NLRB 6I5, 616 (1967).
5 All dates hereafter are in 1973, unless otherwise specified.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed a certification petition and,- as earlier described, the
election was held on December 14. -
B. Evidence and Findings
1. Since the end of August, Richard Jeffrey had been active
within the plant in distributing and collecting authorization
cards. He testified that, early in September, he was ap-
proached in the plant by his supervisor, James B. Williams.
Williams said that someone had reported him "up front" for
passing out union cards, and told him "to take it easy." In
the conversation, he indicated to Williams that he thought it
was Supervisor Ralph Watson who turned him in. Williams
denied that such a conversation occurred. He further testified
that he and other foremen were cautioned by Vice President
Radovic early in October "not to even talk about" or "get
involved" in the union activity, and that he followed this
"caution."6 I credit Jeffrey.
General Counsel contends that, in effect, Williams warned
Jeffrey of reprisal because of his card-passing activity. View-
ing the entire context of the conversation, it appears and I
infer that Williams made it a special point to seek out Jeffrey
and remonstrate with him that he was reported to manage-
ment as having engaged in passing union cards, and then
admonished him "to take it easy." In these circumstances,
Williams' remark "to take it easy" cannot be construed as
ambiguous or without significant effect. Rather, I find suffi-
cient support to sustain the allegation that it was coercive,
violating Section 8(a)(1).
2. In mid-September, about 10-14 days after the incident
in the above paragraph, Jeffrey was approached by Focht-
man, president, and Fred Wagenhal, vice president of pro-
duction. Jeffrey testified, in substance, that they asked him if
he would go around the plant and ascertain from the em-
ployees whether they would be willing to meet in the confer-
ence room with top management, without their supervisors
present, to discuss their grievances, gripes, and complaints.
After making certain inquiries, Jeffrey informed Fochtman
and Wagenhal that the employees' reaction to the proposal
was negative. In his testimony, Fochtman verified that he and
Wagenhal' did speak at such time with Jeffrey, who `seemed
to be kind of a spokesman." Explaining the background,
Fochtman volunteered that Hrudka "felt" that the employees
did not know the new management or its "plans." And that
there were many "rumors" that the Company was going to
stop making snowmobiles and sell the plant. Thus, he and
Wagenhal "offered" to Jeffrey that if the employees had any
questions concerning the plans of management, of if they had
any problem, "all they had to do was ask." It was Jeffrey who
brought up the subject of employee problems; he (Fochtman)
did not request that Jeffrey speak to other employees; and he
"never heard" of a union until Respondent received notice of
the petition in October. I am disposed not to credit Focht-
man's account, which was equivocal and self-contradictory,
to the extent that it conflicts with that of Jeffrey. My finding
6 Radovic testified that the Union first came to his attention when he
received a copy of the election petition in the mail on October 4 However,
he indicated that, "a couple of days" before receiving such notice, he in-
structed the foremen not to engage in conversations with employees or
union officials regarding the Union.
' Wagenhal did not testify.
is that, in fact, Respondent was then aware of the union
campaign , which had been under way for at least one month,
and specifically, Supervisor Williams knew in early Septem-
ber that Jeffrey was soliciting authorization cards. Upon such
evidence, and from the entire record, it is a compelling infer-
ence that Respondent's purpose at this time in approaching
Jeffrey, whom it considered a "spokesman," was an attempt
to dissuade employees from seeking union representation by
inviting them to deal directly with Respondent regarding
their problems and grievances. It was also a manifestation of
Respondent's general design, in fact of the union drive, to
form a bargaining relationship with a committee or spokes-
man for the employees, as described infra. As I find, Respon-
dent's conduct carried the clear implication that benefits
would ensure from such dealing and that the effect of in-
fluencing employees to reject the Union, thereby violating
Section 8(a)(l) as alleged.'
3. Anna Imhoff was a leading activist in the union cam-
paign . She had spoken to practically all employees in the
plant concerning the Union, as well as to Supervisors Dennis
Geary and Charles Barker.9 On the day following Respon-
dent's general meetings with the employees in mid-October,
discussed below, Imhoff was approached by her foreman,
Geary, and asked if she "would go in and talk to Joe"
(Hrudka). She replied that she did not know Hrudka and he
did not know her-why should she go in and what would
they talk about? Geary replied that "they" ( i.e., management)
figured she was "the only one that would have the guts" to
tell Hrudka what the employees wanted. And he suggested
that she tell Hrudka what was on her mind, what her prob-
lems were, and what she wanted; he was quite sure -Hrudka
would see that she got anything she wanted. Imhoff declined
the request as a waste of time.
Similarly, on an unspecified date in mid-October, Billy
Fields, was requested by Geary, his foreman, to go in and talk
to Hrudka, to tell Hrudka the employees' problems and see
if he could get them settled. Fields refused, stating that he was
"with the company" in the last union drive but "was with the
union in this one all the way."
I find that the foregoing largely uncontroverted evidence
further demonstrates Respondent's purpose of thwarting the
Union in its campaign by seeking, with clearly implied prom-
ises of benefit, to bargain directly with the employees. The
alleged violation of Section 8(a)(1) is amply supported.10
4. During one day in mid-October, Respondent called the
employees by groups of various departments to meetings in
the plant conference room with Hrudka and Fochtman. Six
witnesses for the General Counsel gave testimony as to the
discussions at the meeting each attended." Of those who at-
tended the meetings, only Fochtman testified for Respondent
8 See, e.g, Reliance Electric Company, etc., 191 NLRB 44, 46 (1971),
enfd. 457 F 2d 503 (C.A 6, 1972), Eugene Yokell and Bernard Yokell,
Copartners, d/b/a Crescent Art Linen Co., and Betsy Ross Needlework, Inc,
158 NLRB 447, 448 (1966), enfd 387 F 2d 751 (C.A. 2, 1967), and cf.
F.C.E Papers, Inc, A Division of the Mead Corporation, 211 NLRB 657
(1974)
9 Though involved in several issues, Geary and Barker did not testify.
10 Supra, fn. 8.
11 The number of such meetings held is unclear As estimated by each
witness, the size of the groups ranged from 30 to 60 people (of some 220
employees in the plant), and the meeting each described took place at
different times during the shift from 7 to 3:30 p.m.
RUPP INDUSTRIES, INC. 389
on the subject, in a cursory fashion, stating general conclu-
sions, without effective refutation of General Counsel's evi-
dence. Pertaining to the issues raised, I accept the mutually
corroborative testimony of General Counsel's witnesses, in
essence as follows:
Hrudka stated that when he took over the Company, it was
bankrupt and the door was padlocked; and he did the em-
ployees a favor by saving their jobs. He did not have to keep
those jobs for the employees if they did not want them. He
did not need outsiders to run the business. The employees had
no right to bring in a union without giving the new manage-
ment sufficient time to show what it could do. Before he
would let the Union in he would close the doors.12 He asked
the employees what their complaints were that they wanted
a union; he should be able to resolve their problems instead
of having a union do it for them. At one meeting, Fochtman
asked the foremen to leave so that they would not influence
the employees in expressing their problems. One employee
complained of foremen "grabbing and pushing people
around," and Hrudka replied that "foremen could be re-
placed." Another employee indicated he had not received
overtime pay when she worked on a Saturday after returning
from vacation the same week. Then and there, Hrudka ap-
proved the overtime payment. Answering a question, Hrudka
indicated there would be no layoffs in the foreseeable future.
A few other complaints were voiced, and replies were given
by Hrudka of Fochtman, e.g., that management would check
into the particular matter. One request was that Respondent
provide safety gloves to protect the hands of employees en-
gaged in machining work. Such gloves were supplied in
November.
Toward the end of each meeting, the subject was raised
concerning the existence of an employee "gripe committee"
under the prior ownership of the plant.13 Certain of the wit-
nesses testified that Hrudka or Fochtman asked the em-
ployees to explain how such a committee had operated. The
employees described that the previous committee, consisting
of "somebody from each department," met with the person- -
nel manager and thereafter the plant manager would attempt
to work out the problems, and that-"They don't have them
any more, and the personnel manager didn't have time to take
care of it.1114 Then it was specifically "suggested" by
Hrudka or Fochtman that the employees pick two represen-
tatives from each department for the purpose of establishing
an employee committee to meet with management in order
to work out grievances and problems. Immediately following
12 Fochtman denied that Hrudka made any mention of closing down the
plant
13 The committee then was informally called the "Communications
Panel."
14 It must be assumed that information as to the operation of the prior
employee committee was peculiarly known or available to Respondent,
certainly through its foremen and its files, without having to question the
employees Vice President Radovic testified that Hrudka's visit to the plant
at this time "was extremely rare for him " On arrival, Hrudka first spoke
with a group from management. Radovic "may even have brought up that
people" had come to him asking, in effect, why management no longer met
with an employee committee as it previously did, and Radovic "felt" it was
his obligation "to get them going." Later that day, the general meetings with
employees were convened, without the presence of Radovic. Respondent's
argument in its brief that the principal purpose of the meetings was to
introduce Hrudka to the employees is patently at variance with the evi-
dence
these meetings, certain employees volunteered or were chosen
or elected in the various departments to form the committee.
On the next day, the committee, comprising about 12 em-
ployees, met with Hrudka and Fochtman. The latter's secre-
tary was present to take notes. Hrudka asked what their
problems were. A complaint was presented that employees
working on the same job were receiving different and unequal
rates of pay. The response then given was that the Company
could not do anything about it at this time because of the
Union's petition. However, as treated in subsection 7, below,
Respondent awarded increased rate adjustments and retroac-
tive raises to six employees in late October and early Novem-
ber, prior to the scheduled election. As a safety factor, the
employees requested, and Fochtman promised, that the aisles
would be "straightened up." Also, for example, it was com-
plained that the coffee machine was inadequate to accommo-
date the employees during their breaktime. On the following
day, Respondent instituted the service of dispensing coffee on
the cafeteria line in addition to the coffee machine. As to
other matters raised, Fochtman said he would get back to the
committee with answers. About one week later, Attorney
Chattman alone met with the same committee representa-
tives. He stated that Respondent could no longer have meet-
ings with the committee, or make promises or grant any
benefits, "because this was forbidden by the labor relations
board." Thereafter, no further meetings with the committee
were held.
"The Rupp Employees Committee" is named in this pro-
ceeding as "Party of Interest," and service of the complaint
was made by registered mail upon certain members of the
committee under such name. While it is indicated that the
committee had not taken for itself any name, it suffices for
the legal purposes herein to identify it, in a manner which is
fairly descriptive, as "The Rupp Employees Committee." It
was testified that this committee had no constitution, bylaws,
officers, or designated spokesmen. Nevertheless, it had form
and structure as a body with putative authority to speak for
the general plant employees.
Under the complaint allegations, it is immaterial that a
similar employee "gripe" committee existed under the prior
management. The legality of that earlier committee is not in
issue; indeed it had been completely inoperative long before
the new management assumed control of the plant in April
1973. As already shown, it was only when Respondent
became aware in early September of the Union's, organizing
campaign that it commenced overtures to employees in an
effort to mollify their supposed problems and remove their
desire for unionization. In mid-October, after the Union's
petition was filed and a question of representation was pend-
ing, Respondent intensified this strategy by calling the em-
ployees into general meetings, as above described. In these
circumstances, regardless of the experience of the previous
management, it was plainly improper for Respondent to
cause the formation of, support and recognize an employee
grievance committee, to promise and grant benefits, and gen-
erally to deal with it, as it did. Attorney Chattman realized
the seriousness of Respondent's conduct when he subse-
quently told the committee, in effect, that the existing ar-
rangement for such meetings with management was imper-
missible under the law. Thereafter, all further meetings and
committee activity abruptly came to a halt. The evidence
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, in the context of coercively antiunion statements to
assembled employees, Respondent "suggested" that they es-
tablish the committee, or resurrect such a prior committee
long since abandoned,15 for the purpose of dealing with Re-
spondent concerning matters affecting their wages and work-
ing conditions; that thereupon such a committee was
promptly formed; that at least one meeting was held with
Respondent during which certain requests on behalf of the
employees were then or later granted, and others were taken
under advisement; and that, upon a simple instruction from
Respondent's attorney, the committee ceased to
function-amply attest that the committee had no viable in-
dependence. Rather, it existed at the whim and was a creature
of Respondent to serve its purposes of undermining the cur-
rent driver for union representation. Furthermore, it is im-
plicit that Respondent could control the composition of the
committee by exercising its power to transfer, promote, or lay
off the representatives chosen by the employees. All the ele-
ments are present for a full finding of Respondent's domina-
tion and control of the committee, nothwithstanding the
brevity of its active existence and the limited nature of its
dealings (e.g., grievances) with Respondent. Even though it
appears that Respondent had no further meetings with the
committee since late October, the alleged violation is not
thereby rendered moot or "neutralized," as Respondent con-
tends. In furtherance of the Act's policies, and effectively to
disabuse the employees, the specific remedy of disestablish-
ment is necessary to prevent Respondent's reactivation of the
same committee, or an alter ego, under similar
circumstances. 16 Accordingly, it is found that Respondent
has dominated, assisted, supported and otherwise interfered
with the operation and administration of the committee, in
violation of Section 8(a)(2).17
5. As above shown, during the general meetings in mid-
October, Hrudka told the employees he would close the doors
before he would let the Union in. This threat, clearly convey-
ing Respondent's union animus, constituted a violation of
Section 8(a)(1).
6. Clayton Lawhorn testified that, around the beginning of
October, he was questioned by his foreman, Gene Sweval, as
to how he felt about the Union, and he answered that he
"could work with it or without it." Examined by Respondent
as to whether he remembered this specific conversation oc-
curring on October 3 (the date alleged in the complaint),
Sweval stated he did not." Lawhorn is credited.
15 Even if the idea had initially been broached by one or more (unnamed)
employees, as Fochtman testified, the result herein would be unchanged, as
the committee was formed under the aegis of Respondent. See, e g ,
N.LR.B. v Grand Foundries, Inc., 362 F.2d 702 (C A 8, 1966), enfg in part
151 NLRB 1170 (1965); Whirlpool Corporation, etc., 126 NLRB 1117
(1960).
16 As the Committee has already been rendered dormant, the disestabhsh-
ment remedy will not entail any serious disruption. Indeed, on a lesser
8(a)(2) finding short of domination, the unusual order limited to cessation
of recognition and interference would appear plainly inappropriate to the
circumstances.
17 E.g, Fire Alert Co., 182 NLRB 910 (1970), Pines ofAmenca, Inc., 178
NLRB 378 (1969), Huberta Coa4 Inc, 168 NLRB 122 (1967); Hydraulic
Accessories Company, 165 NLRB 864 (1967). And cf Irving Air Chute Co ,
Inc., etc., 149 NLRB 627, 628, 641 (1964), where the committee never
actually functioned and recognition was never granted
18 Sweval also testified he had no knowledge of instructions from higher
management prior to the election with respect to his responsibility regarding
union activity.
Edward Baker testified to three instances in which he was
questioned regarding the Union by Darrell Baker, Respon-
dent's purchasing manager and an admitted supervisor. On
December 7, the conversation took place in the purchasing
office, with Keith Mowery present. Darrell Baker asked him
how the Union seemed to be doing. He replied that it- seemed
to be going fairly well and had no doubts it would be voted
in. In the discussion which ensued, both men strongly as-
serted opposing views and then entered into a wager of $200
on the outcome of the election. The use of the wager is raised
only in the Union's objection to the election, which is sepa-
rately considered infra. On December 14, while Edward
Baker was on his way to the polling place to vote in the
election, he was called aside to speak to Darrell Baker in the
area of the "raw material receiving dock."19 He testified:
Darrell said, "Ed what has the union promised you?"
I said, "They haven't promised anything."
He said, "Any more money or work conditions or
anything like that?"
I said, "No, they can't do this. It's up to the people
in the bargaining element to do it."
He said, "Well, you seem kind of intelligent about
.what you just said.... Why do you need a union_here?
... This place doesn't need a union, it could kill it."
I said, "The people around here aren 't stupid, they
know the financial circumstances around the company,
what they can or can't ask for."
He said, "Why you want a union?"
I said, "Darrell, I already made up my mind, . . . I
know what I want and you are not going to change my
mind."
At this time, he called me, "Stupid" ... .
About the end of December, Darrell Baker spoke to him
again near the inspection cage of the machine shop. Mowery
was not present. He was asked "how the union was going."
I said, "As far as I know it was still up in the air
He said, "Well, what are you going to do if the union
doesn't get in?"
I said , "Well, I really don't know. Under the working
conditions and circumstances, I would probably look for
a job elsewhere."
At this time, he told me, "Well, why don't you go
some place where they have a union already."
I told him that I was going to stay and find out if they
might have one here... .
Darrell Baker gave his version of the wager incident on
December 7, indicating that he intervened in a discussion
between Edward Baker and Mowery concerning the-union
election and that he made the initial offer of the bet which was
accepted by Edward Baker. Other than the wager, he re-
sponded with denials that he had conversations on the spe-
cific occasions described above, or any conversation, with
Edward Baker regarding the latter's "union activity or union
posture." However, he stated on cross-examination initially
that, prior to December 7, Edward Baker told him or gave
19 On cross-examination, he was asked-"Was anyone else around when
you had this conversation" He answered , "Yes, sir, Mr Mowery."
RUPP INDUSTRIES, INC.
him some indication that he favored the Union, and then,
equivocally, he explained that his information was based on
the "known fact" of Edward Baker's prounlon stance. Mow-
ery is a purchasing agent under Darrell Baker's supervision.
Conflicting with Darrell Baker, he testified that it was Ed-
ward Baker who first offered to make the best of the election
outcome. Other than the conversation on December 7, he
could not remember being a witness to any discussion in the
month of December during which Darrell Baker questioned
Edward Baker about his union activity. Viewing the sum of
the testimony, I find more persuasive and creditable the de-
tailed conversations related by Edward Baker.
Accordingly, I conclude as to the above-described conver-
sation between Lawhorn and Sweval and the three separate
conversations between Edward and Darrell Baker '211 that
each of these interrogations had a clear tendency of coercion
in violation of Section 8(a)(1), particularly as they occurred
in the context of other unfair labor practices, without any
showing of legitimate purpose or assurances given the em-
ployees against reprisal.21
7. The complaint alleges that, while the Union's election
petition was pending, Respondent granted several employees
retroactive wage increases to discourage their union activi-
ties. In support, detailed testimony was adduced by General
Counsel concerning raises given to six specific employees. It
is recalled that the new management assumed control in
April 1973.
About June 1973, Virgie Lewis, Sandra Lawrence, and
Louise Ball were reinstated in the welding department, each
having worked in this department during previous periods.
Upon their return, they received the hourly rate of $3.82. On
October 29, after repeated complaints to supervisors that
their rate was below that to which they were entitled, they
received certain rate increases and various amounts of back-
pay to the date of their reinstatement. All three received
retroactive pay at the rate of $4.08, and at the same time
Lewis was raised to $4.22, which was the top rate for welders.
These rates conformed with Respondent's normal practice of
granting the welders "automatic" increases of 10 cents at
60-day intervals until the top of the scale was reached. Ball
testified that, ever since they went into the welding depart-
ment in 1970, these female employees frequently complained
to management, e.g., Supervisor Geary, that their hourly rate
was not the same as that being paid to the men. Following
their reinstatement about June 1973, they again made com-
plaints to Geary that their pay rate was below the appropriate
scale as paid to the rest of the welders. Geary said he would
"check into it." In mid-October, after speaking to Geary,
they were called into the office of Supervisor Baker. Baker
told them, "we have been treating you girls sort of nasty in
welding," and "are going to give you backpay and your
raise."22 On October 29, about a week later, they received
20 Although the complaint alleges the interrogations which took place
prior to the election on December 14, the incident involving the Bakers at
the end of December is properly included in these findings as having been
fully litigated on the same subject matters.
21 E.g., BlueFlash Express, Inc., 109 NLRB 501 (1954); Johnnie'sPoultry
Co., 146 NLRB 770 (1964).
22 Vice President Radovic testified that, in late October, Lewis, Ball, and
Lawrence came to him and reported that Baker had made a mistake in their
rate of pay. Radovic investigated and found the previous mistake, and also
that their "normal- progression increase at the 60-day interval" had been
391
the backpay and rate increases, as earlier indicated.
David Berger was transferred to the fabrication depart-
ment sometime prior to October 1973. When transferred, he
was entitled to an increase of 10 cents for an "automatic"
raise, and to 8 cents by reason of a classification change, all
of which he failed to receive. Three months after his transfer,
he complained to Supervisor Sweval. One or two weeks later,
about mid-November, he received only the 10-cent raise.
After an additional period, he complained to Baker. Two or
three weeks later, before the election of December 14, he
received the 8-cent raise with retroactive pay to the date of
his transfer.
Edna Stevens was employed in the assembly department.
She was entitled to an "automatic" increase of 10 cents in
October which was not reflected, when due, in her paycheck
on October 21. She spoke to Supervisors Watson and Baker
and the following week she received the raise with appropri-
ate backpay.
Clarence Smith was reinstated from layoff to the "Go-Joe
line" as repairman in June 1973. He failed to receive an
additional 10 cents per hour to which he was entitled in such
classification. He spoke to his group leader about the matter
but no action was taken. One month later, he was transferred
to the "snow sport line" also as repairman. On several occa-
sions, he approached his foreman, Watson concerning the
deficiency in his rate, and was told he "would get it." About
November 15, he was transferred "back to the Welding de-
partment." He then raised the same question with Supervisor
Geary, Geary asked him to bring in his payroll data and he
would take it up with "Personnel." Shortly thereafter, Smith
was called in to "Personnel," and computations were made
by a clerical employee. the following week, about December
1, he received the 10-cent increase retroactively.23
The validity of wage increases or other benefits during the
pendency of a representation petition turns upon whether
they are granted "for the purpose of inducing employees to
vote against the union."24 Under "settled Board policy, a
grant or promise of benefits during the -critical preelection
period will be considered unlawful unless the employer comes
forward with an explanation, other than the pending election,
for the timing" of such action .21
Here, there are present the elements that Respondent was
generally soliciting employee grievances and complaints in an
effort to undercut the union campaign; that in the mid-Octo-
ber meetings it received the specific complaint that employees
performing the same work were being paid unequal wage
rates; that at one of these meetings, the deficiency in Boggs'
overtime pay was immediately remedied upon the complaint;
and that in the cases of all six employees described above,
their rate increases and pay adjustments were effected during
"neglected" for these employees He then authorized the necessary correc-
tions The consistent testimony of the three employees involved was that
they ultimately spoke only to Baker, not Redovic.
23 On his return to the welding department, Smith was accorded the top
scale of $4.22, which appears to encompass a total raise of 30 cents from
his previous rate. It was not shown or argued by General Counsel that, by
giving Smith the top welding rate, Respondent varied from its standard
practices.
24 Tonkawa Refining Co, 175 NLRB 619 (1969), citing N.L.R.B v
Exchange Parts Co., 375 U.S. 405, and Russell-Newman, Mfg, Co., Inc. v.
N.L.R.B., 370 F.2d 980 (C A. 5, 1966).
25 The Singer Company, 199 NLRB 1195 (1972).
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the preelection period in late October and mid-November. As
to-Burger and Stephens, with some doubt I am inclined to
find as sufficiently valid Respondent's explanation that the
small discrepencies in their pay rates were due to inadvert-
ence or clerical oversight and were corrected with reasonable
promptness following notice by the employee. I consider that
these were routine payroll adjustments, involving no question
of entitlement, which are normally expected by employees to
be made in due course, as they were here, and which had no
significant bearing on the election.26 In Smith's case, the
same considerations obtain, with a serious reservation as to
whether, after the earlier delays in June and July, the immedi-
ate action taken by Supervisor Geary,27 when he was ap-
proached by Smith in November 15, was motivated by the
imminence of the scheduled election. Again with doubt, I
resolve this reservation in favor of Respondent,28 particu-
larly in view of the frequency of Smith's transfers and Super-
visor Watson's assurance to him in July that he "would get"
the rate adjustment. However, regarding Lewis, Lawrence,
and Ball, I find the violation. It is 'apparent from the tes-
timony, and unmet in the defense, that in retroactively raising
their hourly rates, on October 29, Respondent affected a
change from its preexisting practice of paying female welders
on a lower scale than their male counterparts in the depart-
ment. Furthermore, in light of their long and repeated com-
plaints concerning the inequity in their pay rates, the em-
ployees were reasonably led to believe that the eventual action
taken by Respondent was designed (like other conduct al-
ready shown) to induce them to vote against the Union.29
IV THE REPRESENTATION PROCEEDING
Insofar as the violative findings above related to Respon-
dent's conduct occurring after the filing of the Union's peti-
tion on October 1, the evidence is amply sufficient to warrant
that the election be set aside on the basis of the Union's
objections.30 In any case, I find without merit the future ob-
jections 11 and 12, which are not embraced in the complaint.
Objection 11 concerns the wager between Darrell and Ed-
ward Baker in their conversation of December 7, as pre-
viously described. In its "letter-brief," the Union contends
only that Darrell Baker's conduct amounted to coercive in-
terrogation, which indeed was found in the entire context. In
the particular circumstances, the wager incident per se war-
rants no independent violation." Regarding objection 12, I
consider as entirely too vague the testimony of Robert
Dougherty that, while in the plant to collect his final pay-
check on the election date, he was purportedly stopped from
proceeding to the polling place to vote by an unidentified
"voice" which stated, "You are no longer employed here."
Moreover, there were 70 terminated employees, in the same
category as Dougherty, who were not prevented from voting
and the challenges to their ballots were sustained.
26 See Price Candy Company, 172 NLRB 2229 (1968)
27 As contrasted with the long periods of this inaction in the cases of
Lewis, Lawrence, and Ball. -
28 In any case, the result herein would be the same
29 NL R.B. v Exchange Parts Co., 375 U S. 405 (1964).
30 Le , Objection 2 and the third portion of 6, as reflected in the Regional
Director's report of March 7, 1974.
31 See Personal Products Corporation, 116 NLRB 393, 398 (1956).
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE -
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
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.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. As discussed in section III,
subsection 4, it is recommended , upon the finding of 8(a)(2)
domination , that Respondent be ordered to disestablish "The
Rupp Employees Committee."
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union and The Rupp Employees Committee are
each labor organizations within the meaning of Section 2(5)
of the Act.
3. By dominating, assisting, supporting, and interfering
with the operation and administration of The Rupp Em-
ployees Committee, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(2) of the Act.
4. By-the foregoing, and by other independent acts and
conduct interfering with, restraining and coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. By engaging in certain of the aforesaid unfair labor
practices, Respondent has interfered with the representation
election held on December 14, 1973.
Upon the above findings of fact, conclusions of law, and the
entire record in the cases, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER32
Respondent, Rupp Industries, Inc., Mansfield, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and sentiments; threatening employees with
reprisal for engaging in union activities; or threatening plant
closure in the event that a union is selected as bargaining
representative.
32 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
RUPP INDUSTRIES, INC. 393
(b) Soliciting grievances from employees with the express
or implied promise to remedy such grievances.
(c) Promising or granting wage increases, or other benefits,
or remedying any grievances, as an inducement to employees
to reject the UAW,'or any other labor organization, in a
representation election or in a union campaign.
(d) Dominating, supporting, assisting, or interfering with
the operation and administration of The Rupp Employees
Committee, or any plant committee or labor organization of
its employees.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2, Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Withdraw and withhold recognition from, and com-
pletely disestablish The Rupp Employees Committee, or any
alter ego thereof, as the representative of any of its employees
for the purpose of collective bargaining with Respondent
concerning wages, hours, or other conditions of employment,
provided that each action shall not be construed to require
that Respondent vary any wages, seniority, or other rights or
substantive terms of existing working conditions.
(b) Post at its plant and facility in Mansfield, Ohio, copies
of the attached notice marked "Appendix."33 Copies of said
notice on forms to be provided by the Regional Director for
Region 8, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, including all places where notices to employees are
customarily posted, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, -what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election conducted on
December 14, 1973, be set aside; and the Case 8-RC-9239 be
severed from this proceeding and remanded to the Regional
Director for appropriate disposition.
33 In the event that the Board's Order is enforced by a Judgment of a
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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to post
this notice; and we intend to carry out the order of the Board
and abide by the following:
WE WILL NOT dominate , support , assist, or otherwise
interfere with the operation and adminsitration of The
Rupp Employees Committee , or any other plant com-
mittee or labor organization of our employees.
WE WILL NOT question you concerning your union ac-
tivities or sentiments in a manner which would coerce
you regarding your rights under the Act.
WE WILL NOT threaten you with punishment or -re-
prisal for engaging in union or other activities protected
under the Act.
WE WILL NOT threaten to close down the plant in the
event that our employees select a union as their lawful
bargaining representative.
WE WILL NOT solicit you to tell us your grievances and
directly or indirectly promise to remedy such grievances,
and WE WILL NOT promise or grant wage raises, or other
benefits, or remedy and grievances, in order to induce
you to reject the UAW, or any other union , in a repre-
sentation election or in a union campaign.
WE WILL NOT in any similar manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed employees in the National Labor Relations Act
which are as follows:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL withdraw all recognition from and com-
pletely disestablish The Rupp Employees Committee, or
any substitute plant committee of employees , as the rep-
resentative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes,
wages, hours, or other conditions of employment. How-
ever, we will not interpret this action as requiring us to
vary our wages , seniority , or other rights , benefits, or
other substantive terms of your existing working condi-
tions.
Rupp INDUSTRIES, INC