Wheeler, Randall E., Kevin E. Wheeler, and Edmund J. Wheeler, a General Partnership d/b/a Wheelco Co.

National Labor Relations Board - Board Decisions

Mar 12, 1982

260 N.L.R.B. 867 (N.L.R.B. 1982)

WHEELCO CO).
Randall E. Wheeler, Kevin E. Wheeler, and Edmund
J. Wheeler, a General Partnership d/b/a
Wheelco Co. and International Molders' and
Allied Workers' Union, AFL-CIO-CLC. Case
25-CA-9603
March 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 29, 1981, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
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
conclusions of the Administrative Law Judge to
the extent consistent herewith.
The Administrative Law Judge found, inter alia,
that prior to the election Respondent violated
Section 8(a)(l) of the Act by suggesting and other-
wise encouraging its employees to abandon the
Union and form their own committee for the pur-
pose of bargaining with Respondent. We agree
with this finding. However, the Administrative
Law Judge further found that Respondent had
nothing to do with the actual formation and admin-
istration of the committee after the election and,
therefore, did not engage in further unlawful con-
duct in violation of Section 8(a)(2) and (1). For the
reasons set forth below, we disagree with this find-
ing.
According to the credited testimony of employee
Gayle Cunningham, at a meeting approximately I
week before the election held on January 13, 1978,2
one of Respondent's general partners, Randy
Wheeler, told the assembled employees that instead
of filing a petition with the Board they could have
"brought a petition to him and then we could have
drawn up a contract between us and him without
involving a union." Cunningham further testified
that, approximately I week after the election,
Wheeler approached him and several other em-
The General Counsel has excepted to certain credihiliti findings
made by the Administratlse l.asw Judge It is the Board's established
policy not to ouserrilt an adminisirati. lass Judgte's resolutions kkilh rti
pec't to credihililt unltrss the letor preponderanc e i all of the rol le ilit
evidence con inces us thit the resolutions are incorrelct Slandard D)r,
Wall Prnduiuc. Int., 91 NLRB 544 11 '50). teltd 8IXX F2d E32 (3d COr
1951) W'e have carefull) examinelli d Ihe recorrd ld I find rio ha;ls for re-
versing his finding,
'All date, herrelifter refer to I9 Sg
ployees and asked "if we had come up with . . .
some kind of a contract or committee to draw up a
contract for the company." The employees re-
sponded that they had not decided yet but that
they would get together and vote on it. Wheeler
stated that the employees should "go ahead and do
it." Thereafter, some employees met and selected a
committee of four. Cunningham then informed
Wheeler, who told Cunningham "to go ahead and
draw up a contract, it was fine with him the
committee we had." This committee subsequently
met with Respondent and negotiated concerning
certain terms of employment, including holidays,
sick and funeral leave, an absentee policy, and in-
surance benefits, and agreement was subsequently
reached as to several of these items.
From the foregoing it is clear that Respondent
was the "moving force" behind the formation of
the employees' committee. 3 After the election,
Wheeler, pursuant to an earlier suggestion which
had not been acted on by the employees, encour-
aged if not instructed the employees to follow
through on his earlier suggestion. Thereafter, he in-
dicated approval of their selection of a committee,
instructed them to "draw up" a contract proposal,
and bargained with the committee concerning
terms and conditions of employment. 4 Although
there is little evidence that Respondent exercised
any control over the selection and activities of the
committee once formed so as to constitute unlawful
domination, its conduct in suggesting and encour-
aging on several occasions that such a committee
be formed and that Respondent would be willing
to bargain with it, Respondent's tacit approval of
the committee's selection, and its subsequent in-
struction to "draw up" a contract and present it
constituted unlawful interference in the formation
and administration of a labor organization. 5 Ac-
cordingly, we find that by so doing Respondent
violated Section 8(a)(2) and (1) of the Act.6
Spiegel IrucAing Comnpany. 225 NLRB 178, 179 (1976).
W4 e note that the evidence fully supports a finding that this
coimniittee is a "labor organization" within the meaning of Sec 2(5) of
the Act See. c g . Eduard 4 Ittlaur Fiundatirn. Inc d/b/a Edward .4
1 tlaru .Memneria/l IHlspirta and Fair Oaks .\ursing iilnme, 249 NLRB I153
1981()
See, e.g, Irtor M Spri. d/b/a uastern Industrier, 217 NLRB 712
1975); ler,ro Spec iraltes, Inc. 177 NLRB 306 (19691. See also Edward .4
I1rIur i outdalion, Inc dbIau aEdward 4. Uli/aur .demorial Hospital and
-lair (OakA .iursing orIerne, suprua. Spiegel trucking Company, supra.
' As lnled hb the Admllnistratise I as Judge, the conmplaint does not
specificall. allege that this conduct violated Sec 8(a)(2). alleging only a
nilolaioun of Sec 8(a)tl) Howsever, the Board has held that. so long as
the crmipalnl clearls describes the conduct alleged to iinstitiute an unfair
lahiir practice the CiGeneral C ountsel s failure It, allege which subsection of
tIre Act has bheell solaltd or the Gtencral Counsel' allegaittlon of sniolatlillo
of the the isritong subhsec ton does not preclude the Board from rn rsider-
trig and decidinIg t he issue pr ,lided. of ciiurr-e. Ihat the charged parts
sas i ot isist~l'd .aitil the Iissue fsuis f Jils tigialed I n iear n (B l/ Sale,
Contmint. ed
260 NLRB No. 109
867
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
AMENDED RFMEDY
Having found that Respondent, in addition to the
violations found by the Administrative Law Judge,
has violated Section 8(a)(2) and (1) of the Act by
interfering with the formation of a labor organiza-
tion, we shall order Respondent to cease and desist
therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. In this
regard, we shall order that Respondent withdraw
and withhold all recognition from the employees'
committee unless and until said committee has been
duly certified by the Board.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Randall E. Wheeler, Kevin E. Wheeler, and
Edmund J. Wheeler, a General Partnership d/b/a
Wheelco Co., Kingsbury, Indiana, its agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees regarding their
union sentiments and support.
(b) Threatening reprisals if employees engage in
protected concerted activities.
(c) Giving employees the impression that their
union activities are under surveillance.
(d) Improperly interrogating employees concern-
ing the allegations and issues raised in any com-
plaint issued against it by the Board's General
Counsel.
(e) Encouraging or suggesting to employees that
they abandon their union activity and form their
own committee to bargain with Respondent.
(f) Interfering with the formation of, assisting, or
otherwise interfering with the operation and ad-
Inc. 234 NL RB 125. 1272 (1978) The complaint specifically alleges as
unlawful the conduct found hereti to by violatise of Sec 8 a)(2), arid
merely fails to allege a violation of this particular subsectionil of the Act
TIhe circumstances surrounding the formlationl of the enmplovyee ,
committee were fulls litigated in colnectiotn with the 8(a)(1) allegation
See, e g., Aarl Mart, 246 NL RB 1151 (1979) K.'iione Pritzel Buak v.
Inc., 242 NLRB 492 (1979) Accordingly. Respondent is not preludiced
by our finding herein
7 In his exceptuoils the General Counsel notlified the Board that, prior
toi tlhe date exceptlins were filed, Respondenlt notified tihe Regional Di-
rector fotr Region 25 that it is no loniger operating at its KingshurN fa.cili-
ty T'he Gicneral Counsel therefore requests that. in lieu of the customary
posting at that facilitn. Respondent be required tI post a nlotice at its
present places of husiness as well as to mail copies of the notice to the
employees cniplosed at the Kingsbury facility at the time the unfair lhaor
practices were committed and those employed ait the time Respotndent
ceased operatiuons at this facilit) Since Respondelt's other facilities were
not involled in this proceeditg. a posting requirement as to t hemn is 1l-
warranted anld unnecessary See. eg. C'erro ('AIV Dcvi(i. /nc., 237
NLRB 1153 (1978) Hoiever. in light of the circumstances we shall rc-
quire that, in lieu of posting, copies of the notice he mailed t