Edmont, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1962

139 N.L.R.B. 1528 (N.L.R.B. 1962)

1528 DECISIONS OF NATIONr.L LABOR RELATIONS BOARD
3. The record does not establish that the Respondents have engaged in the unfair
labor practices imputed to them in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record in this proceeding , it is recommended that the Board enter an order
dismissing the complaint.
Edmont, Inc . and Amalgamated Clothing Workers of America,
AFL-CIO, Charging Party
Edmont , Inc. and Amalgamated Clothing Workers of America,
AFL-CIO, Petitioner . Cases Nos. 8-CA-2652 and 8-RC-.$425.'
December 6, 1962
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 26, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondent had not en-
gaged in certain other unfair labor practices and recommended that the
complaint be dismissed with respect thereto. The Trial Examiner also
considered the alleged unfair labor practices as objections to conduct
affecting the results of the November 9, 1961, election in the representa-
tion case and found that this conduct was not grounds for setting aside
that election. Thereafter, the Respondent and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made at the hearing herein and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner to the extent consistent with its decision herein.
We are in agreement with the Trial Examiner for the reasons enun-
ciated by him that the Respondent, by maintaining and enforcing a
rule against distribution of literature in nonworking areas during non-
working time, violated Section 8(a) (1) of the Act, and by giving sup-
port and assistance to the Edmont Employees' Committee, violated
'On February 19, 1962 , the Board issued an order in Case No 8-RC-4423 directing
that a hearing be held to resolve issues raised by unfair labor practice charges and directed
that such hearing be consolidated with the complaint case At that time , the Board stated
it would hold in abeyance any determination on earlier objections to the November 9, 1961,
election In view of our findings herein , we find it unnecessary to consider such earlier
objections.
139 NLRB No. 132.
EDMONT, INC. 1529
Section 8(a) (1) and (2) of the Act. We do not agree, however, with
the Trial Examiner's conclusion that the unfair labor practices did not
affect the representation election.
The Trial Examiner concluded that the existence of an illegal no-
distribution rule did not preclude the holding of a fair election espe-
cially since there was no evidence that the Union had any difficulty
in communicating its propaganda to the employees and the sole in-
stance of enforcement occurred after the election. However, it is not
necessary to prove affirmatively that the Union had difficulty in com-
municating with employees in order to find that the results of an elec-
tion were affected by the rule since its very existence hampered legiti-
mate organizational activity of its employees and seriously infringed
on the laboratory conditions we seek to establish. This is especially
true where, as here, Respondent admitted that employees were aware
of the rule's existence.
The Trial Examiner also concluded that the mere existence of the
Edmont Employees' Committee was not sufficient to affect the election
because the Union was aware of its existence prior to the time it entered
into a consent election and because the Committee merely held its
regular meetings with management in the period prior to the election.
However, we note that the Respondent was instrumental in activating
the Committee and that it represented an outlet for employee griev-
ances. The Committee was recognized, given unlawful support and as-
sistance, and was thereby accorded a certain status by the Respondent.
We find that this assistance to the Committee given just prior to the
election, wherein the employees were called upon to express their de-
sires with respect to representation by another union, tended to inter-
fere with the employees' free choice of a bargaining representative.
Accordingly, we conclude that the Respondent engaged in conduct
violative of Section 8(a) (1) and (2) which calls for setting aside the
election? Therefore, we shall direct the election of November 9, 1961,
be set aside and a new election ordered.
THE REMEDY
The Trial Examiner, while finding that the Respondent illegally
assisted and supported the Edmont Employees' Committee, recom-
mended that the Committee be completely disestablished, which is the
remedy the Board has found appropriate where an employer has been
held to have dominated a labor organization. The Trial Examiner
concluded that although Section 10(b) precluded him from making a
finding of unlawful domination, it did not preclude him from con-
sidering evidence outside the 10(b) limitations period in recommend-
ing an appropriate remedy.
2 See Dal-Tex Optical Company, Inc ., 137 NLRB 274
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because we find it unnecessary to enter an order of disestablishment
in this case, we need not consider, and do not pass upon, the extent to
which conduct occurring outside the Section 10(b) period is relevant
in determining the appropirate remedy. However, we shall require the
Respondent to cease and desist from unlawfully assisting and support-
ing the Committee, and to withdraw and withhold recognition of the
Committee.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Edmont, Inc.,
Coshocton, Ohio, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining or enforcing a rule prohibiting employees, when
they are on nonworking time, from circulating handbills or circulars
on behalf of any labor organization in nonworking areas of its plant.
(b) Contributing support to Edmont Employees' Committee or any
successor thereto or any other labor organization of its employees.
(c) Recognizing the Edmont Employees' Committee as the rep-
resentative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms or conditions of
employment.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Amalga-
mated Clothing Workers of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from the Edmont Em-
ployees' Committee as the collective-bargaining representative of any
of its employees for the purpose of dealing with the Respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other terms or conditions of employment.
EDMONT, INC. 1531
(b) Post at its place of business in Coshocton, Ohio, copies of the
attached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, shall, after
being signed by a duly authorized representative of Respondent, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that except as found herein, all other allega-
tions of the complaint including the allegation that Charles Miller
was discriminatorily discharged, be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held November 9, 1961,
among the employees of Edmont, Inc., in the unit heretofore found
appropriate, be, and it hereby is, set aside.
[Text of Direction of Second Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT give support or assistance to the Edmont Em-
ployees' Committee or any successor thereto or any other labor
organization of our employees.
WE WILL NOT recognize the Edmont Employees' Committee as
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms or conditions of
employment.
WE WILL NOT maintain or enforce any rule prohibiting our em-
ployees, during nonworking time, from distributing literature in
nonworking areas in support of Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
EDMONT, INC.
Ernployer%
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 720 Buckley Building, 1501 Euclid Avenue, Cleveland 15, Ohio,
Telephone Number, Main 1-4465, if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In Case No. 8-RC-4425, following the filing of a petition for certification, the
parties (Amalgamated Clothing Workers of America, AFL-CIO, herein called the
Union, and Edmont, Inc., herein called the Company), on September 25, 1961, en-
tered into a stipulation for certification upon consent election, which stipulation was
approved by the Regional Director for the Eighth Region on September 27, and led
to an election on November 9, 1961, which the Union lost, 192 to 100, with 5 votes
challenged. On November 17, the Union filed objections to conduct affecting the
results of the election, and on December 22, 1961, the Regional Director issued a
report on objections, recommending that the objections (four in number) be over-
ruled. The Union filed exceptions to this report on January 31, 1962.
Meanwhile, on December 12, 1961, the Union filed unfair labor practice charges
against the Company, thus originating Case No. 8-CA-2652. In a supplemental re-
port on objections, issued January 19, 1962, the Regional Director advised the Board
that the Union desired the violations alleged in those charges to be considered as
additional objections to the election. The Regional Director further advised that he
was prepared to issue a complaint (which in fact did issue on January 26, 1962), and
recommended that a hearing be held on the new objections, said hearing to be con-
solidated with the hearing on the complaint.
On February 19, 1962, the Board entered an order in Case No. 8-RC-4425, di-
recting that a hearing be held to resolve the issues raised by the unfair labor practice
charges, that the hearing might be consolidated with that in the complaint case. and
that no determination be made on the earlier objections pending disposition of the
entire proceeding. The cases were thereafter consolidated by order of the Acting
Regional Director issued February 23, 1962.
The proceeding was heard by Trial Examiner Albert P. Wheatley at Coshocton,
Ohio, March 5 through 8, 1962. At the conclusion of the hearing, General Counsel
and the Union argued orally, and a time was set for filing briefs. Prior to their receipt,
Trial Examiner Wheatley died, the case was transferred to Trial Examiner Frederick
U. Reel, pursuant to Section 102.36 of the Board's Rules and Regulations, Series 8,
and, the parties having waived their right to request a bearing de novo, a date was set
for the filing of briefs. Briefs dealing with the issues were received on the due date
(extended at the request of counsel) from the Company and the Union. Two days
later a brief dealing solely with a demand for interest on any backpay was filed by
General Counsel?
I General Counsel's failure to file a brief dealing with at least some of the issues is
the more incomprehensible because both Trial Examiner Wheatley and I expressly re-
quested that he file a brief dealing with certain specified matters In this connection
I associate myself fully with the following remarks which Trial Examiner Wheatley
addressed specifically to counsel for the General Counsel
I think when the presiding officer requests aid and assistance from trial lawyers,
he should get it or get some explanation as to why he is not getting it
I should add that the response of the General Counsel's representative to that admoni-
EDMONT, INC. 1533
Upon consideration of the briefs and on the entire record, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The pleadings establish and I find that Respondent is an Ohio corporation, en-
gaged at Coshocton, Ohio, in the manufacture and sale of coated fabric gloves, and
that it annually ships and transports products valued in excess of $100,000 to points
outside the State. Respondent admits and I find that it is engaged in commerce
within the meaning of the Act, and I further find that it will effectuate the policies
of the Act for the Board to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America , AFL-CIO, is a labor organization
within the meaning of the Act. Whether Edmont Employees ' Committee is such a
labor organization is an issued discussed and disposed of later in this report.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
1. The rule against distribution of literature
The complaint , as amended at the opening of the hearing, alleges that Respondent
"maintained in effect and enforced a no solicitation rule applicable to its employees
which prohibits the distribution of literature supporting any labor organization, in
nonworking areas, and during nonworking times." The complaint further alleges
that Respondent had threatened an employee with disciplinary action for distributing
union literature in a nonwork area before the start of his worktime . The allegations
are supported by stipulation and uncontradicted evidence.
The parties stipulated that a plant rule provides that "No booklets, literature, or
cards, etc., of any type will be distributed or posted on the bulletin boards within the
plant at any time without the approval of the Personnel Office." The uncontradicted
evidence of Kenneth Fye, who was a company employee from 1955 until late in
November 1961, establishes that he distributed union literature in the plant lunch-
room on his own time the night before the election , and that several days thereafter
Respondent 's supervisors gave him a verbal warning for distributing the literature.
Respondent, conceding that its rule is presumptively invalid under Walton Manu-
facturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C.A. 5), urges that special
circumstances make the rule necessary here. The "special circumstances" are that
the lunchroom is in close proximity to the work area, and the Company feared that
discussion of controversial issues in the lunchroom would be carried over into the
work areas and would be continued there. The Company's vice president testified,
without contradiction, that, prior to adoption of the rule, the circulation of political
propaganda in the lunchroom had precisely that result. In my view this defense
falls short of establishing that the rule is "necessary in order to maintain production
or discipline." Walton Manufacturing Company, supra A mere generalized state-
ment that political discussions were carried on at the work stations falls far short of
establishing an impact on production or discipline necessary to justify an abridgment
of Section 7 rights.
I therefore find that the maintenance and enforcement of the rule against distribu-
tion of literature in nonworking areas during nonworking time constituted interfer-
ence , restraint , and coercion of employees in the exercise of their Section 7 rights,
in violation of Section 8(a) (1). In the absence of any showing that the Union was
in fact impeded in the distribution of literature , I would not recommend that the
election be set aside because of the mere existence of this rule . The rule was in
effect at the time the Union signed the agreement for consent election. Its enforce-
ment against Fye occurred after he distributed literature and after the election.
2 The bowling shirts
Respondent sponsored a bowling league for its employees , but declined an em-
ployee request that the Company supply bowling shirts. Five of the employees
tion may indicate that the fault (for so I obviously deem it) should not be laid at his
personal door He said, "I will consider that subject with my supervisors when I return
to Cleveland "
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then arranged with the Union to furnish bowling shirts for them. The back of
the shirts bore the legend: "Edmont Amalgamated." Company Personnel Manager
Hopkins, after the election, directed the men not to wear the shirts, stating (accord-
ing to Fye ), "We don 't want advertisement, so we just don't want you to wear
them." Fye asked if he could wear the shirt if he removed the word "Amalgamated,"
but Hopkins refused. Some of the men, without objection from the Company, con-
tinued to wear the shirts after covering the words "Edmont Amalgamated" with
cloth.
General Counsel, citing Mayrath Company, 132 NLRB 1628, and Power Equip-
ment Co., 135 NLRB 945, argued that the bowling shirt episode constituted inter-
ference with the employees ' right to wear union insignia . General Counsel con-
ceded, however, that if the Company told the employees not to wear the shirts
"because they have the name of Edmont with Amalgamated they would have been
within their rights. . . . In short, General Counsel rests his case on this matter
on an alleged failure of the Company to state clearly to the employees that it
objected solely to the use of its name on the shirts.
As I read the record, however, Respondent did make reasonably clear its position
that it objected to the use of its name on the shirt. I have little doubt that the
Company's basic objection was to the coupling of its name with that of the Union,
and indeed the Company's cross-examination of Fye brought out the Company's
concern over the possibility that the shirts would occasion a lessening of good feeling
among participants in the company-sponsored bowling league. If, for example,
the men had worn shirts with a "team" name coupled with that of the Company
(e.g., "Edmont Indians" or "Edmont Buckeyes," etc.), I doubt that the Company
would have objected to the advertising. Such speculations however, find no direct
support in this record. The employees have no Section 7 right to wear a shirt with
the Company's name on it, and, on this record, I find that the Company told the em-
ployees that it wanted its name eliminated from the shirts . That conduct is not
violative of the Act.
B. The discharge of Charles Miller
Charles Miller had been employed by Respondent for over 10 years at the time
of his discharge in late September 1961, during which period his base pay had
increased from 85 cents an hour to $1.60. His foreman considered Miller to be a
good workman, although he had received warnings in 1957 for fighting, in April
1960 for "single dipping" gloves, in September 1960 for leaving work early and
without "ringing out," and in February 1961 for an uncooperative attitude toward
a company campaign to reduce rejects. The latter offense, as it was the third within
a 12-month period, carried with it a 3-day suspension
Miller was a staunch supporter of the Union, and indeed was the first employee
with whom the union organizer communicated when the Union commenced its
1961 organizing campaign. Miller's activity in that drive was more constant but
not otherwise more noticeable than that of several other employees. I find, how-
ever, that the Company knew of his prounion position, partly from the fact that
he had acted as an observer for the Union at a 1960 election which the Union lost,
partly from statements that Miller himself and other employees made to supervisors
indicating Miller's union sympathies, and partly from seeing him in the company of
union organizers.
On the morning of September 27, 1961, 2 days after the parties agreed to a con-
sent election, Robert Burch, foreman of the dipping department. received a com-
plaint from employee Fye that Fye was experiencing difficulty in "stripping" gloves.
As one possible cause of such a difficulty is that the gloves have been dipped in a
rubber solution only once rather than twice,2 Burch went to observe Miller, the
dipper. When Burch first observed Miller, the latter was double-dipping, as was
required on those gloves. But, upon leaving Miller, Burch, contrary to his practice,
made a quick circle and returned to Miller's station, and on this occasion saw him
single-dipping. Burch promptly told Miller to ring out and go home 3 Miller con-
tinued to dip for some minutes until a replacement arrived, and then made a vain
effort to see the company president While waiting, he again saw Burch, who told
him to go home and that the Company would let him know within 3 days what
its decision was with respect to his further employment there. Burch also told
Miller at that time: "Charley, I am getting you for insubordination," presumably
2 Certain types of gloves are to be "single-dipped" while others required "double-dipping "
3 According to Miller. Burch also told him he was fired Burch denies this, and I regard
the conflict as immaterial. If reviewing authorities disagree with me as to its materiality,
they may resolve the conflict or remand the case for a further hearing
EDMONT, INC. 1535
a reference to Miller's continuing to dip for some minutes after Burch told him
to stop.
That afternoon and the next day, September 28, a group of top management
officials reviewed Miller's situation and decided to discharge him. He was notified
of his discharge on September 28. A subsequent grievance brought on his behalf
by the grievance committee (discussed below) proved of no avail.
According to the Company, Miller was discharged for "single-dipping," an of-
fense which materially lowered the caliber of Respondent's product but which was
tempting to a piece-rate employee like Miller as it increased his production. He had
been caught at this same offense 20 months before and was warned then that a
repetition thereof would result in discharge.
In support of the contention that Miller's union activity was a factor in his dis-
charge, General Counsel and Charging Party point to the timing (2 days after the
parties signed an agreement for consent election), to Miller's known union activity,
to the fact that another employee caught single-dipping on another occasion had
merely been warned, and to the fact that under Respondent's own warning system
this was not Miller's fourth offense within 12 months, and hence merited nothing
worse than a 3-day suspension. Finally, they also suggest that Miller's proclivity to
single-dip, to which he readily admitted, must have been known to his foreman, who
had theretofore not only condoned it, but who, even at the hearing, characterized
Miller as a good workman.
I find, however, that Respondent satisfactorily explained those matters. The immi-
nence of the election and Miller's union activity obviously conferred no license on hun
to violate company processing procedures, and obviously did not preclude Respondent
from visiting proper discipline upon him. At most they suggest the need for close
scrutiny of the reasons advanced by Respondent. Miller had already been warned
when caught single-dipping, and indeed had been told that a repetition of that offense
would result in discharge; there is no showing that any other employee had received
more lenient treatment for a repetition of this offense. As to the warning system,
I credit the testimony of the company vice president that the system was inapplicable
to offenses of this nature which affected the quality of the product. It seems to me
to be entirely reasonable to limit the warning system to such offenses as failing to
clock out, or fighting, or similar matters. Under General Counsel's theory, the
warning system would permit an employee to be detected while shortcutting pro-
duction routines three times a year, and still be immune to discharge. Finally, there
is no showing of company knowledge of Miller's continual single-dipping. In this
respect, I discount the testimony of employee Dawson that he often saw Miller
single-dip while the foreman was looking on. Assuming that Dawson had oppor-
tunity to observe this, the record is clear that he was mistaken as to which gloves
required single-dipping and which double. Miller may have successfully concealed
his wrongful single-dipping as he did on the last day when the foreman first walked by.
In sum, while the matter is by no means free from doubt, I find on the whole record
that General Counsel has not sustained his burden of proof with respect to Miller's
discharge, and that the complaint as to him should be dismissed.
C. The Edmont Employees' Committee
After the Union's 1960 attempt to organize ended in its defeat in a Board election,
the employees became interested in establishing a committee of their own, primarily
to present grievances. These efforts, despite some advisory assistance by the com-
pany vice president. Charles Leader, proved abortive, and by early 1961 the project
was abandoned. Early in 1961, however, the employees were summoned to a
meeting where according to the testimony of employee Eloise Wright, Leader told
them that in view of their lack of success in organizing, the Company had "taken
it upon themselves to organize a committee and set up a means of bringing griev-
ances and problems of the factory to the attention of management." Leader, who
said he had worked on the plan with others, briefly outlined the plan, and said that
later on he would give the employees "more details as to how it would work, general
instructions, and so on." Shortly thereafter, in April 1961, the employees elected
their representatives to the new organization known as the Edmont Employees'
Committee. The number of representatives from each group and the term of office
was set by the Company.
At the first meeting in May 1961, Vice President Leader told the 15 elected rep-
resentatives to elect a chairman, vice chairman, and secretary,4 and to select a
A No treasurer was elected, for in fact the Committee had no dues, no funds, and no
expenditures.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance committee of 5, including the chairman ex officio . Leader explained that
if a grievance remained unsettled after several preliminary steps, it would come
before the grievance committee which would collect the facts and bring them to
the management 's attention.
The Edmont Employees ' Committee met as a group on the first Thursday of each
month, and ordinarily met with management on the following Thursday . The com-
pany personnel manager determined what subjects would be discussed at the next
joint meeting , drawing from a list presented by the Committee . Time limitations
prevented the discussion at joint meetings of all the matters discussed at the Com-
mittee's meetings. Day-shift employees received their regular pay for time spent
in committee meetings (either with or without management participation ) during
working hours , but not for time outside working hours . Employee Fye , who worked
from 11 p.m. to 7 a in., testified and I find, that he was paid for attending meetings
outside those working hours . The Company furnished the Committee with a locked
box in which to keep the minutes, and also furnished facilities for the meetings
The basic manual governing the operation of the Committee was prepared jointly
by management and employee representatives
A second election of representatives was conducted in December 1961. Accord-
ing to the undenied and credited testimony of Eloise Wright, a member of the Com-
mittee, the chairman of the Committee , Hardesty , "said that he would get instruc-
tions from Robert Hopkins [Respondent 's personnel manager] as how we would
proceed, and he [whether Hardesty or Hopkins is not clear] appointed different
ones to set in for the balloting, and it was done much in the same manner as the
other one was"
In addition to specific grievances handled by the grievance committee , the Ed-
mont Employees ' Committee discussed with management such matters as the method
of establishing the amount of vacation pay, payments for downtime , premium pay
for odd hours, job bidding , vending machines , parking problems , and bonuses.
Upon these facts I have no doubt that the Edmont Employees' Committee is
a labor organization within the meaning of Section 2 ( 5) of the Act . Repondent
urges that it was a mere channel of communications , and that Respondent did
not deal with it concerning terms or conditions of employment . In making this
argument, counsel for Respondent asserts that the grievance committee is "separate
and distinct" and is not "in whole or in part, an adjunct to the Edmont Employees'
Committee." The record conclusively refutes this argument , for the grievance
committee is so much an "adjunct" of the other that the grievance committee is
chosen from among the 15 representatives to the Employees' Committee, includes
the chairman ex officio, and is provided for in detail in the document describing
the functions and purposes of the Employees ' Committee . Even apart from the
work of its grievance committee , the Employees' Committee dealt with manage-
ment on many terms and conditions of employment . The fact that management
was under no compulsion to yield to any of the Committee 's suggestions does not
detract from the fact that the parties dealt with each other in meeting and dis-
cussing them . N.L.R.B . v. Cabot Carbon Company and Cabot Shops, Inc.. 360
U.S. 203, 210-213.
Somewhat more difficult is the question whether, within 6 months of the filing
and service of the charge , Respondent dominated or supported the Committee. I
find evidence of such unlawful support in the fact that the Company continues
to compensate the members of the Committee for time spent at committee meet-
ings ( as distinguished from meetings with management ) and by permitting such
meetings to be held on company property during working hours. Furthermore,
the election held in December 1961 was conducted , to some extent or in some re-
spects at least, pursuant to instructions given by the company personnel manager.
Under these circumstances I find that the Company was guilty of illegal assist-
ance within the limitations period provided by the Act. See McCulloch Motors
Corporation , 120 NLRB 1709 , 1710-1711 . At the very least the conduct described
immediately above is sufficiently ambiguous to permit resort to earlier conduct to
shed light on events within the limitations periods, and the Company 's role in the
creation of the Committee removes any ambiguity which may be thought to lurk
in the conduct within the period.
I therefore find that Respondent in its dealings with the Edmont Employees'
Committee violated Section 8 (a) (2) and ( 1) of the Act.
IV. THE REMEDY
1. Having found that Respondent maintained and enforced an illegal no-distri-
bution rule, I shall recommend that Respondent rescind the illegal aspects of the
rule. In my view, however, the existence of the rule did not preclude the hold-
EDMONT, INC. 1537
ing of a fair election as there is no evidence that the Union had any difficulty in
communicating its propaganda to the employees, and the sole instance of enforce-
ment of the rule occurred after the election.
2. I have found that within the 6-month period preceding the charge, Respondent
unlawfully supported the Edmont Employees' Committee. The facts set forth above
establish that at the inception of that Committee it was formed and dominated
by Respondent which prescribed the manner in which the Committee was to op-
erate. The limitations period in the Act operates to preclude the finding of un-
fair labor practices occurring over 6 months prior to the charge, but does not
preclude resort to earlier evidence to determine the proper remedy for violations
occurring within the period. See Herbert D Young, d/b/a Murfreesboro Pure
Milk Co., 127 NLRB 1101, 1102, footnotes 1 and 3. For example, if a union vio-
lates Section 8(b)(4), the question whether a broad or a narrow cease-and-desist
order should be issued may be affected by whether the union committed similar
acts outside the limitations period. So, here, the violation of Section 8(a(2)
having been established, I may consider the prelimitations conduct in deciding
whether a disestablishment order, or a mere cease-and-desist order, is appropriate.
In view of the unlawful support which management continues to furnish, there
is no reason to believe that the Committee is not still dominated by management,
and under Board precedents, it should be disestablished .5 However, as the Com-
mittee's existence was well known to the Union prior to the signing of the agree-
ment for consent election, and as the Committee engaged in no conduct between
that date and the holding of the election other than to hold meetings (one or two
of which were with management), I find that the existence of the Committee
is not grounds for setting aside the election.6
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. Both the Union and Edmont Employees' Committee are labor organizations
within the meaning of the Act.
3. By maintaining and enforcing a rule prohibiting an employee from distribut-
ing union literature in the plant lunchroom on his own time, Respondent has en-
gaged in an unfair labor practice in violation of Section 8(a)(1) of the Act.
4. By assisting Edmont Employees' Committee, Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(2) and (1) of the Act.
[Recommendations omitted from publication.]
5 See Lee-Rowan Manufacturing Company , 129 NLRB 980, 990-991, Holland Manu-
facturing Company, 129 NLRB 776, 784-785, enfd. 229 F. 2d 840 (CA 3) , Jackson Tile
Manufacturing Company, 122 NLRB 764, 777-778, enfd 272 F. 2d 181 (CA 5) ; Multi--
Color Co, 122 NLRB 429, 463-464; Pacemaker Corporation, 120 NLRB 987, 989-990, enfd
260 F. 2d 880 , 883 (C.A. 7).
6 The question whether to set aside the election is rapidly approaching the academic.
The practical consequence of setting it aside Is to permit the holding of another election
before November 9, 1962 . If this report is reviewed by the Board, to say nothing of the
subsequent possibility of court review, and if a 60-clay posting period is necessary to purge
the atmosphere , the prospects of an election by that date are dubious
O