Jet Spray Corp.

National Labor Relations Board - Board Decisions

Jul 9, 1984

271 N.L.R.B. 127 (N.L.R.B. 1984)

JET SPRAY CORP.
Jet Spray Corporation and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW and Jet
Spray Employees' Committee, a/k/a Jet Spray
Employees' Association, Party to the Contract.
Cases 1-CA-19872, 1-CA-19896, I-CA-
20206, 1-CA-20465, and 1-CA-20491
9 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 December 1983 Administrative Law
Judge Claude R. Wolfe issued the attached deci-
sion. The General Counsel and the Charging Party
filed exceptions and supporting briefs,' the Re-
spondent filed cross-exceptions, a supporting brief,
and a brief in opposition to the exceptions, 2 and
the Association, Party to the Contract, filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge that the Respondent
violated Section 8(a)(2) and (1) by dominating the
Jet Spray Employees' Committee and further vio-
lated Section 8(a)(2) and (1) by recognizing, bar-
gaining with, and executing a collective-bargaining
agreement with the Jet Spray Employees' Associa-
tion at a time when a valid petition for representa-
tion filed by another labor organization was pend-
ing before the Board. We find, however, contrary
to the judge, that the Jet Spray Employees' Asso-
ciation was a mere continuance of the dominated
Jet Spray Employees' Committee and that the Re-
spondent dominated the Jet Spray Employees' As-
sociation in further violation of Section 8(a)(2) and
(1). A brief recapitulation of the critical events re-
veals the following.
In early 19823 shortly after the Respondent relo-
cated to its present facility, the Auto Workers (the
i In his decision the judge inadvertently stated that Thomas Waldstein,
Esq., appeared as counsel for the Party to the Contract when in fact he
appeared as counsel for the Charging Party.
2 The Respondent contends that the Board should reject the exceptions
of the General Counsel and the Charging Party because they fail to meet
the requirements of specificity set forth in Sec. 102.46(b) of the Board's
Rules and Regulations. Although the exceptions do not comply in all re-
spects with the requirements of the rule, they sufficiently designate those
findings of the judge claimed to be erroneous and therefore we shall con-
sider them. Giddings d Lewis, Inc., 240 NLRB 441 (1979).
3 All dates are in 1982 unless noted otherwise.
Union) commenced union organizational activities
among the Respondent's employees. In late April
the Respondent's president, Leonard Jacobs, dis-
cussed with legal counsel Charles Mahoney the
likelihood of unionization if the Respondent did not
remedy certain existing problems. Shortly thereaf-
ter, on 23 April, Jacobs notified the employees that
the Respondent had arranged for the employees
and management to discuss and attempt to solve
unspecified "problems" caused by the relocation.4
Later that day the Respondent's personnel manag-
er, Elaine Clement, instructed its supervisors that
the employees in certain departments were to
select two "representatives" to attend an employee-
management meeting and that a total of 20 employ-
ee representatives were to be selected. Pursuant to
these instructions the employees then met on com-
pany premises and selected representatives.
On 28 April the employee representatives,
known as the Jet Spray Employees' Committee
(the Committee), met with the Respondent's repre-
sentatives, including Company President Jacobs
and legal counsel Mahoney, during working time
in the plant's conference room. 5 The Committee
voiced several concerns regarding working condi-
tions. In response Mahoney and Jacobs advised the
Committee that the Respondent would look into
these concerns and take steps to remedy them.6
Mahoney also told the Committee that, while em-
ployees had the right to organize and could choose
representatives either through the Union or
through the Committee, if employees selected the
Union there was a consequence to pay and the Re-
spondent would deal with that later through long
court battles. 7 Thereafter, on 4 May, Supervisor
John Doolan asked two employees if they had at-
tended a meeting of the Union the previous night,
if there was a large turnout, and what took place.8
· No exceptions were filed to the judge's finding that Jacobs' notice to
the employees 23 April was motivated by the Union's organizational ef-
forts.
6 A meeting between the management and employee representatives
originally scheduled by the Respondent for 26 April was postponed at
the initiation of the employee representatives because they feared retalia-
tion from a management vice president if they expressed their concerns
about working conditions.
e No exceptions were filed to the judge's findings that the Respondent
solicited the employees' grievances and then remedied those grievances
because it feared union organization and wanted "to nip it in the bud"
and that the Respondent violated Sec. 8(aXl) by soliciting, promising to
remedy, and remedying grievances for the purpose of discouraging sup-
port for the Union.
I No exceptions were filed to the judge's finding that the Respondent
violated Sec. 8(aXl) by threatening its employees with extended litigation
and other consequences if they selected the Union as their representative.
8 No exceptions were filed to the judge's finding that by this conduct
the Respondent coercively interrogated employees in violation of Sec.
8(aX I).
271 NLRB No. 32
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 5 May Company President Jacobs issued a
memorandum to employees setting forth new re-
strictions on discussion by employees of nonwork
matters on company time.9 Also on 5 May Ma-
honey stated to the Committee that "you realize
you were formed to present the [employees'] prob-
lems," and he invited the Committee to take the
"next step" by participating in the solution of those
problems if such an effort was supported by the
employees. The Committee then requested and re-
ceived permission from the Respondent to meet
with the employees in their respective departments.
It is undisputed that at all relevant times the
Committee had no formal structure, collected no
fees or dues from the employees, and met only on
the Respondent's premises.
On 6 May Jacobs distributed a memorandum to
the employees urging them to support the Commit-
tee and indicating that the Respondent was pre-
pared to work closely with the Committee con-
cerning working conditions if the employees were
committed to these efforts. After the employees
were polled on company time and voted to contin-
ue dealing with the Respondent through the Com-
mittee, the Committee informed Jacobs that the
Respondent had 30 days to make an effort to
remedy the employees' complaints or they would
turn to an outside union.1 0
Throughout May and June the Committee and
the Respondent continued to meet and discuss
working conditions. On 14 May Supervisor Roger
Messier asked an employee if he knew who had
contacted and who was involved with the
Union." Thereafter, on 18 May, legal counsel Ma-
honey informed the Committee that union solicita-
tion in the plant at any time or on company prop-
erty would not be tolerated and that violators of
this policy would be terminated.1 2 On 4 June
Jacobs announced to employees the implementation
of various new working conditions effective I July.
On 9 Julyl3 the Regional Director for Region 1
issued the instant complaint in Cases I-CA-19872
9 In the absence of exceptions we adopt pro forms the judge's finding
that Jacobs' 5 May memorandum violated Sec. 8(aXI) of the Act.
'0 No exceptions were filed to the judge's finding that the 6 May poll
failed to meet the standards for employer polling set forth in Struksnes
Construction Co., 165 NLRB 1062 (1967), and therefore violated Sec.
8(aXi).
" No exceptions were filed to the judge's finding that by this conduct
the Respondent coercively interrogated an employee in violation of Sec.
8(aXI).
I1 No exceptions were filed to the judge's finding that Mahoney's
statements violated Sec. 8(aXl). As noted by the judge the no-solicitation
rule set forth by Mahoney on 18 May is unlawful under the standard of
Essex International, 211 NLRB 749 (1974), which the Board returned to
in Our Way, Inc., 268 NLRB 394 (1983) (Member Zimmerman dissenting
with respect to the overruling of T.R.W Bearings), overruling T.R.W.
Bearings, 257 NLRB 442 (1981).
Is The judge found that the Respondent violated Sec. 8(aXl) when on
9 July on a cruise boat at the Respondent's annual summer party Jacobs
and l-CA-19896 naming the Committee as a Party
in Interest and alleging numerous violations of Sec-
tion 8(a)(2) and (1) as well as seeking the disestab-
lishment of the Committee.
On 6 August Jacobs informed the employees that
the Respondent had decided to conduct a poll to
determine the employees' desire for representation.
The polling was conducted 12 August. A total of
124 votes were cast for the Committee, 66 for the
Union, 22 for no employee organization, and there
was I abstention. As found by the judge the Re-
spondent conducted the poll because of the issu-
ance of the 9 July complaint. 14
Within a few days of the 12 August poll mem-
bers of the Committee hired private counsel. 5 By
letter of 17 August counsel retained by members of
the Committee made a demand for recognition to
the Respondent on behalf of an organization re-
ferred to in the letter as the Jet Spray Employees'
Association (the Association). The 17 August letter
noted that the Respondent had committed itself to
respect the results of the 12 August poll and that
on the basis of that vote the Association represent-
ed the Respondent's employees. By letter of 24
August attorney Mark Peters responded on behalf
of the Respondent that "I understand that the Jet
Spray Employees Association is the organization
otherwise known as the Jet Spray Employees
Committee. Because the Association, under the
name of the Committee, has been shown by the
poll to have the support of a majority of the em-
stated to employee William Mullins that he knew Mullins was heavily in-
volved with the Union. In agreement with the Respondent we find that
this statement did not violate the Act. Thus, Mullins was an open union
adherent who campaigned openly for the Union on company premises
and the conversation with Jacobs in which this statement was made oc-
curred during an informal encounter at a social occasion. In these cir-
cumstances we find that Jacobs' acknowledgement of Mullins' open
union activities did not unlawfully create the impression that Mullins' ac-
tivities were under surveillance. Owes-Illinoir, 265 NLRB 931 (1982). We
shall therefore dismiss the allegation in the complaint that the Respond-
ent unlawfully created an impression that employee union activities were
under surveillance. Member Zimmerman would find for the reasons set
forth by the judge that Jacobs statements to Mullins created an unlawful
impression of surveillance.
In the absence of exceptions we adopt pro forma the judge's findings
that on 9 July the Respondent violated Sec. 8(aX1) by soliciting Mullins
to abandon his union activity and by promising benefits conditioned on
the cessation of union activity.
14 Contrary to Jacobs' assertions to employees 6 August that the poll
was motivated by competing claims for representation by the Committee
and the Union there is no evidence that the Union made a recognitional
demand until 10 August, I day before the Union's filing of a representa-
tion petition with the Board. Further, there is no evidence that the Com-
mittee made a demand for recognition as of 6 August.
No exceptions were filed to the judge's finding that the 12 August poll
violated Sec. 8(aX1).
ts According to the testimony of employee Michael Regan, the Re-
spondent's legal counsel Mahoney stated to the Committee 5 August that
"[y]ou as a committee can act just like a union; and we'll treat you just
like a union. You can go get your own lawyers." While Mahoney testi-
fied that he never at any time offered legal advice to the Committee or
its members he did not deny the foregoing comments attributed to him
by Regan.
128
JET SPRAY CORP.
ployees who were eligible to cast ballots in that
poll, the Corporation does agree to recognize the
Association as the exclusive collective bargaining
agent for these employees." Concurrent with this
exchange of letters the organization known as the
Association elected four officers,1 6 drafted a con-
stitution, registered with the United States Depart-
ment of Labor as a labor organization, and began
securing signed membership cards and dues author-
izations from the Respondent's employees.
At a membership meeting of the Association
held 17 November the Association passed a motion
"to confirm the fact that the Committee no longer
exists as it once was, and that we are now one
body, the Jet Spray Employees Association." On
23 November the Respondent and the Association
commenced bargaining negotiations and thereafter
reached agreement on a collective-bargaining
agreement effective I January 1983.
Based on the foregoing we agree with the judge
that the Committee was a dominated labor organi-
zation from its inception inasmuch as the Commit-
tee was formed not at the initiation of the employ-
ees but at the sole direction of the Respondent, the
Respondent and not the employees determined the
number of representatives and their method of se-
lection, the Committee had no formal structure or
independent means of support, the Committee con-
ducted its meetings at the pleasure of the Respond-
ent on company time and property, and the Com-
mittee continued to exist at all times as part of the
Respondent's campaign to undermine through un-
lawful means the independent organizing efforts of
another labor organization.
The Respondent contends that the impetus for
the continuation of the Committee, if not its incep-
tion, came from the employees and not from the
Respondent. We find no merit in this contention.
Thus, the record reveals that soon after learning of
the Union's organizational campaign the Respond-
ent's president, Jacobs, formed the Committee and
in direct response to the Union's campaign inter-
fered with the employees' statutory right to select
or reject a bargaining representative free from co-
ercion by soliciting grievances, promising to
remedy grievances, and thereafter remedying
grievances. In further response to the Union's cam-
paign the Respondent threatened employees with
extended litigation and other reprisals if they se-
lected the Union and engaged in numerous other
concurrent unfair labor practices directed at the
Union's supporters while continuing to deal with
3s Barry Carr was elected president of the Association. It is undisputed
that Carr was the leading spokesperson and informal chairman on behalf
of the Committee. The Committee's informal secretary was Pamela
Yukna. Yukna was elected the Association's recording secretary.
the Committee. In these circumstances in which
the employees were confronted with the alternative
of, on the one hand, receiving the benefits of the
favored Committee formed by the Respondent or,
on the other hand, receiving reprisals for support-
ing the Union, it is not surprising that employees
continued to participate in the Committee. In this
context such participation does not establish that
the impetus for the Committee's continued exist-
ence rested with the uncoerced desires of the em-
ployees. Further, in view of the absence of a
formal structure or any independent means of sup-
port, as well as the holding of its meetings on com-
pany time and property and the circumstances sur-
rounding its creation, we find no merit in the Re-
spondent's contention that the Committee "func-
tioned wholly independent of management" after
its creation. Accordingly, we conclude that the Re-
spondent dominated the Committee in violation of
Section 8(a)(2) and (1) and that a disestablishment
remedy is warranted. Kurz-Kasch, Inc., 239 NLRB
1044, 1048 (1978); Sound Technology Research, 221
NLRB 496 (1975).17
Under the circumstances of this case we further
find that the Association is a mere continuance of
the Committee and is also a dominated labor orga-
nization whose disestablishment is warranted.
The record demonstrates that within a few days
of the 12 August poll won by the Committee the
organization known as the Association emerged in
the Committee's place. The exchange of letters be-
tween the Respondent and newly retained counsel
for the Association reveals conclusively that the
parties themselves considered the Committee and
the Association to be one and the same organiza-
tion. Thus, the Association claimed majority status
on the basis of an unlawful poll won not by the As-
sociation but rather by the Committee. Indeed, on
the date of the poll the Association did not even
purport to exist. In response to the Association's
demand for recognition on the basis of the poll
won by the Committee the Respondent granted
recognition because the Association "under the
name of the Committee" had attained majority
status.
" Because the Committee was purely a creation of the Respondent,
was not formed at the initiation of the employees, and continued to exist
as part of the Respondent's campaign to undermine the Union through
unlawful means, we find this case factually distinguishable from, and
therefore find it unnecessary to rely on, Northeastern University, 235
NLRB 858 (1978), enfd. in part, enf. denied in part 601 F.2d 1208 (Ist
Cir. 1979), in which employees and not the employer were the impetus
behind the formation of the labor organization involved. See also Spiegel
Trucking Co., 225 NLRB 178 (1976), in which an employer's direction to
employees to form a union accompanied only by the suggestion to retain
an attorney and a promise to negotiate was found insufficient to establish
employer domination.
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the absence of a hiatus between
the disappearance of the Committee and the emer-
gence of the Association and the virtual admission
of continuity among these labor organizations as
demonstrated by the exchange of recognition let-
ters between the Association and the Respondent
on 17 and 24 August, we also note that employees
Barry Carr and Pamela Yukna, leading spokesper-
sons of the Committee, also served as leading offi-
cials of the Association. That the Association is a
mere continuation of the Committee is further dem-
onstrated by the dissolution motion of 17 Novem-
ber at a membership meeting of the Association, in
which the Association determined that the Com-
mittee "no longer exists as it once was" and de-
creed that "we are now one body, the Jet Spray
Employees Association." In these circumstances
we find that the judge erred in finding that the
Committee "effectively ceased to exist" prior to
the Respondent's 24 August recognition of the As-
sociation and further erred in finding that an entire-
ly new and independent labor organization
emerged to represent the Respondent's employees.
For many years the Board has applied a rule of
reason that, where, as here, there exists substantial
continuity between the purported disappearance of
a dominated labor organization, and the emergence
of an ostensibly independent labor organization, the
party responsible for the domination must at mini-
mum affirmatively assure employees freedom from
further employer involvement in the decision to
choose or reject representation. In the absence of
such assurances the Board and the courts have
found that employees likely will conclude that the
newly emerging organization will enjoy the same
dominating favor and support enjoyed by the pre-
vious organization and therefore the newly emerg-
ing organization is deemed to inherit the dominated
status of the previous organization.'a As noted by
Judge Hand: 19
[W]here an unaffiliated union seems to the em-
ployees at large to have evolved out of an ear-
lier joint organization of employer and em-
ployees, the Board may take it as datum, in the
absence of satisfactory evidence to the con-
trary, that the employees will suppose that the
company approves the new, as it did the old,
and that their choice is for that reason not as
free as the statute demands.
Here the Respondent not only offered no such
assurances but instead demonstrated clearly to em-
Is See Huberta Coal Co., 168 NLRB 122, 123 (1967), and cases cited.
"g Westinghouse Electric d Mfg. Co. v. NLRB, 112 F.2d 657, 660 (2d
Cir. 1940), enfg. in pertinent part 18 NLRB 300 (1939), affd. 312 U.S. 660
(1941). See also NLRB v. Southern Bell Telephone Co., 319 U.S. 50 (1943).
ployees that it considered the Committee and the
Association to be one and the same organization
and that the latter would enjoy the fruits of the un-
lawful poll won by the former. In these circum-
stances we find that the Association is a continu-
ance of the Committee and that it shares the same
infirmities as the dominated Committee. Although
we recognize fully that on the retention of private
counsel the Association, unlike the Committee,
drafted a constitution, elected officers, secured
signed membership cards and dues authorizations,
and formally registered as a labor organization, it is
our view that to find such factors dispositive in the
circumstances of this case is to exalt form over sub-
stance. Notwithstanding these formalities the essen-
tial fact remains that the parties rightfully consid-
ered the dominated Committee and the Association
to be one and the same. The transfer of the Re-
spondent's favor from one to the other without
hiatus or assurances of independence therefore
merely heightened the perception that the creation
and continued existence of both the Association
and the Committee were attributable to the efforts
of the Respondent. Accordingly, we conclude that
the formalities of structure that ordinarily would
tend to support a finding of independence are out-
weighed in the circumstances of this case by those
factors tending to demonstrate that both the Com-
mittee and its continuance, the Association, were
dominated labor organizations. We therefore find
that the Respondent dominated the Association in
violation of Section 8(a)(2) and (1) and we shall
modify the judge's Order by ordering the disestab-
lishment of the Association. 2 0
ORDER
The National Labor Relations Board orders that
the Respondent, Jet Spray Corporation, Norwood,
Massachusetts, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Forming, dominating, or interfering with the
administration of the Jet Spray Employees' Asso-
ciation and the Jet Spray Employees' Committee,
or with the formation or administration of any
other labor organization of its employees, and con-
tributing support to the Association and the Com-
mittee or to any other organization of its employ-
ees.
(b) Recognizing or in any manner dealing with
the Association and the Committee, or any reorga-
nization or successor thereof, as a representative of
So Of course nothing in our Order should be construed as limiting the
right of the Respondent's employees in the future to select either an inde-
pendent or an affiliated labor organization to represent them if they so
desire.
130
JET SPRAY CORP.
any of its employees for the purpose of dealing
with Jet Spray Corporation concerning grievances,
labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of work.
(c) Assisting or contributing support to Jet Spray
Employees' Association by recognizing or bargain-
ing with that labor organization as the exclusive
representative of its employees for the purpose of
collective bargaining.
(d) Maintaining or giving any force or effect to
the collective-bargaining agreement between the
Respondent and the Association effective I January
1983, or any extension or modification thereof; pro-
vided, however, that nothing in this Order shall au-
thorize or require the withdrawal or elimination of
any wage increase or other benefits, terms, and
conditions of employment that may have been es-
tablished pursuant to the performance of that con-
tract.
(e) Withholding from the pay of any of its em-
ployees union dues or other union fees or assess-
ments that have been deducted on account of any
obligation of membership in Jet Spray Employees'
Association, and paying to the Association any
dues, fees, or assessments that have been deducted
from the pay of its employees.
(f) Directly or indirectly polling its employees
regarding their preference of collective-bargaining
agents.
(g) Promulgating, implementing, or enforcing
overly broad solicitation rules, or threatening em-
ployees with warnings or discharge for violations
of those rules.
(h) Threatening employees with extended litiga-
tion or other reprisals if they select a union as their
collective-bargaining representative.
(i) Soliciting, promising to remedy, or remedying
employee grievances in order to induce its employ-
ees to refrain from supporting the UAW or any
other labor organization.
(j) Coercively interrogating its employees re-
garding their union activities or those of others.
(k) Soliciting employees to abandon union activi-
ty.
(1) Promising benefits to employees conditioned
on the cessation of union activity.
(m) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2.Take the following affirmative action necessary
to effectuate the purposes and policies of the Act.
(a) Withdraw and withhold all recognition from
Jet Spray Employees' Association as the represent-
ative of its employees for the purpose of collective
bargaining and completely disestablish the Jet
Spray Employees' Association as such representa-
tive.
(b) Reimburse all former and present employees
for all initiation fees, dues, assessments, and other
moneys, if any, paid by or withheld from them in
the manner provided in the remedy section of the
administrative law judge's decision.
(c) Withdraw all recognition from the Jet Spray
Employees' Committee as a representative of any
of its employees for the purpose of collective bar-
gaining and completely disestablish the Jet Spray
Employees' Committee as such representative.
(d) Withdraw the solicitation rules announced by
Leonard J. Jacobs 5 May 1982 and by Charles F.
Mahoney 18 May 1982.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of moneys due under the terms of this
Order.
(f) Post at its Norwood, Massachusetts plant
copies of the attached notice marked "Appen-
dix." 21 Copies of the notice, on forms provided by
the Regional Director for Region 1, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations that
Barry Carr committed unfair labor practices are
dismissed in their entirety.
21 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT form, dominate, or interfere with
the administration of the Jet Spray Employees' As-
sociation and the Jet Spray Employees' Committee
or any other labor organization of our employees,
nor will we contribute support to the Association
and the Committee or to any other organization of
our employees.
WE WILL NOT recognize or in any other manner
deal with the Association and the Committee, or
any reorganization or successor thereof, for the
purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment.
WE WILL NOT assist or contribute support to Jet
Spray Employees' Association by recognizing or
contracting with that labor organization as the bar-
gaining representative of our employees.
WE WILL NOT give effect to our 1 January 1983
contract with Jet Spray Employees' Association, or
to any renewal, extension, modification, or supple-
ment thereof, but we are not authorized or re-
quired to withdraw or eliminate any wage rates or
other benefits, terms, and conditions of employ-
ment that we have given to our employees under
that contract.
WE WILL NOT solicit employee grievances,
promise to remedy them, or remedy them for the
purpose of discouraging union activity.
WE WILL NOT directly or indirectly poll employ-
ees regarding their preference of collective-bargain-
ing agents, nor will we coercively interrogate em-
ployees regarding their union sympathies or activi-
ties or those of other employees.
WE WILL NOT withhold from the pay of any of
our employees union dues or other union fees or
assessments that have been deducted on account of
any obligation of membership in Jet Spray Em-
ployees' Association, nor will we pay to the Asso-
ciation any dues, fees, or assessments that have
been deducted from the pay of our employees.
WE WILL NOT promulgate, implement, or en-
force overly broad solicitation rules, nor will we
threaten employees with warnings or discharge for
violations of any such unlawful rules, and WE WILL
withdraw the rules announced by Leonard J.
Jacobs in his letter of 5 May 1982 and by Charles
F. Mahoney to the Committee 18 May 1982.
WE WILL NOT threaten employees with extended
litigation or other reprisals if they select Interna-
tional Union, United Automobile, Aerospace &
Agricultural Implement Workers of America,
UAW, or any other labor organization, as their
collective-bargaining representative.
WE WILL NOT solicit employees to abandon
lawful union activity or promise them benefits on
condition they do so.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL withdraw and withhold all recognition
from Jet Spray Employees' Association as the col-
lective-bargaining representative of our employees
and WE WILL completely disestablish the Jet Spray
Employees' Association as such representative.
WE WILL reimburse all our employees, former
and present, for dues and other moneys unlawfully
exacted from them under our contract with Jet
Spray Employees' Association.
WE WILL withdraw and withhold all recognition
from Jet Spray Employees' Committee as the col-
lective-bargaining representative of our employees
and WE WILL completely disestablish the Jet Spray
Employees' Committee as such representative.
JET SPRAY CORPORATION
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
consolidated proceeding was heard at Boston, Massachu-
setts, in March, April, and July 1983 pursuant to charges
timely filed and complaints issued and amended. It is al-
leged that Jet Spray Corporation (Respondent or Jet
Spray) violated Section 8(a)(1) of the Act by in numer-
ous ways interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them
in Section 7 of the National Labor Relations Act. It is
further alleged that Respondent violated Section 8(a)(2)
and (1) of the Act by unlawfully dominating and/or
interfering with the formation and/or administration of
the Jet Spray Employees' Committee and the Jet Spray
Employees' Association' (herein sometimes called the
Committee and the Association). 2 Respondent denies the
commission of unfair labor practices.
On the entire record, 3 and after careful consideration
of the comparative demeanor of the witnesses as they
I The names of the Committee and Association appear as amended at
hearing.
2 Allegations of violations of Sec. 8(a)(3) and (5) of the Act were
either settled or withdrawn during the course of the trial of this case.
The General Counsel also withdrew a paragraph of the complaint relat-
ing to the conduct of Frank Serra.
a After settlement of various aspects of this case, the General Counsel
withdrew numerous exhibits. They have been removed from the official
exhibit file.
132
JET SPRAY CORP.
testified before me and the able posttrial briefs filed by
the parties, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Massachusetts corporation engaged in
the manufacture, sale, and distribution of beverage equip-
ment at its Norwood, Massachusetts plant where it annu-
ally purchases in excess of $50,000 worth of products di-
rectly from outside the Commonwealth of Massachusetts.
Respondent is engaged in commerce within the meaning
of the Act.
II1. SUPERVISORS AND AGENTS
The pleadings and on the record agreements of the
parties at trial establish that the following named individ-
uals at all times material to this proceeding, except in the
case of Alfred Pace as noted, occupied the positions set
forth after their names and were supervisors within the
meaning of Section 2(11) of the Act and agents of Re-
spondent: Leonard J. Jacobs-president; Carol McNa-
mara-administrative assistant; Elaine Clement-director
of personnel; Dante Finelli-supervisor; Frank Serra-
supervisor; John Doolan-supervisor; Ronald Baker-su-
pervisor; Alfred Pace-vice president of manufacturing
until 6/18/82 when terminated; and Roger Messier-su-
pervisor.
The complaint alleges and Respondent's answer denies
that Charles F. Mahoney acted as Respondent's agent.
Mahoney was retained by Respondent as its labor rela-
tions attorney in April 1982 and thereafter acted as its
spokesman in meetings with the Committee and later the
Association on matters concerning the employees' wages,
hours, and working conditions, including the negotiation
of a collective-bargaining agreement. Accordingly, I find
that Charles F. Mahoney was at all times material to the
allegations before me an agent of Respondent within the
meaning of Section 2(13) of the Act.
The parties disagree on the agency status of Barry
Carr. The General Counsel has brought forth in support
of the allegation that Carr is or was an agent of Re-
spondent nothing more than evidence warranting suspi-
cion. There is no convincing evidence to support the
General Counsel's contention, and I conclude and find
that it has not been shown that Carr ever was such an
agent during the occurrences before me. All that the
record reveals is that Carr was an aggressive leader of
the employees supporting the Committee and the Asso-
ciation. That his interests in that capacity may have
placed him in opposition to the interests of the Union
does not establish that Respondent may fairly be held re-
sponsible for his actions in expressing that opposition,
nor do warnings by him that Respondent would or
might retaliate against UAW adherents, or the circum-
stance that he may have successfully interceded on
behalf of employees receiving discipline. Inasmuch as the
evidence does not show that he was or is an agent of Re-
spondent or was held out by Respondent to be one, I
conclude that his conduct may not be attributed to Re-
spondent and therefore may not be found violative of
Section 8(a)(1) of the Act. That being so, the complaint
allegations that Respondent by Carr committed viola-
tions of Section 8(a)(1) are to be dismissed.
111. LABOR ORGANIZATION
The complaint alleges, and Respondent admits, that
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, UAW (the
Union or UAW) and Jet Spray Employees Committee,
a/k/a Jet Spray Employees' Association are each a labor
organization within the meaning of Section 2(5) of the
Act. The Association filed a motion to intervene, which
was granted, and a statement of position wherein it as-
serts it is a labor organization designated by Respond-
ent's employees as their exclusive collective-bargaining
representative and is party to a collective-bargaining
agreement with Respondent.
Respondent's answer is binding on it, but, although all
parties agree the Association is a labor organization, the
Association does not admit the Committee was or is a
labor organization. I find it was because it existed for the
purpose of dealing with an employer concerning griev-
ances and working conditions. NLRB v. Cabot Carbon
Co., 360 U.S. 203 (1959).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology
Respondent moved its operations from Waltham, Mas-
sachusetts, to a much larger facility in Norwood, Massa-
chusetts, during the winter of 1981-1982. The move
began about November and was completed in January or
February. After the move productivity and quality fell
off, customer complaints increased, intramanagement
communication and the relationships between manage-
ment members and employees were poor, and employee
morale was low.
On April 9, 1982,4 employee Leonard Murgo, after
discussing it with fellow employee Michael Regan, called
Richard Emberley, the executive vice president of UAW
Local 1596, and told him a union was needed at Jet
Spray. Emberley told him to select employees from each
of Respondent's departments to attend a meeting with
the Union. Emberley later set April 20 as the meeting
date.
Between April 9 and 20, Murgo and Regan solicited
different employees to attend the union meeting. All but
Barry Carr agreed. Carr, a stockroom employee who
was approached on April 20, declined on the ground he
had prior arrangements to go with Respondent's person-
nel manager Elaine Clement that evening to buy equip-
ment for the company softball team. There is no evi-
dence, nor do I conclude, that Carr told Clement of the
meeting scheduled for that evening. The meeting of
April 20 took place and at least 2 employees, Regan and
Murgo, of the approximately 20 attending then signed
UAW authorization cards.
Respondent's president Leonard Jacobs called attorney
Charles Mahoney in mid-April and met with him on
April 21 or 22. The two discussed various problems at
' All dates are 1982 unless otherwise indicated.
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant, but Jacobs denies mentioning the UAW or any
union to Mahoney. Mahoney first testified, consistent
with his pretrial affidavit given to a Board agent,5 that
Jacobs told him that he had heard rumors of employee
union activity. Mahoney's testimony, after he testified
Jacobs had told him of rumors of union activity, that
Jacobs actually said he had heard rumors employees
would turn to a union if the problems were not solved
further discredits Jacobs' testimony and reveals that
Jacobs was concerned that a failure to remedy existing
problems would result in union representation of the em-
ployees.
On April 23, the following letter from Jacobs was dis-
tributed to employees in their pay envelopes:
Dear Member of the Jet Spray Family,
We have just come through a hard winter. To-
gether we have been making the very difficult tran-
sition from Waltham to Norwood. It has not been
an easy time for any of us.
Now that we have begun to settle in, I think we
must begin to talk together about the changes that
have occurred and, most importantly, how the Jet
Spray family is going to work together in our new
setting. I am especially eager to do this now be-
cause I am aware that our move has caused prob-
lems for all of us.
It seems to me that the best way to do this is by
giving ourselves more opportunity to talk together
about what the move has meant and how we can
work together to resolve the problems it has
caused. In order to do this, I have asked Al Pace,
Elaine Clement and Frank Serra to arrange a meet-
ing . . . which will probably be the first of several
. . . with a number of you from various areas
within the company. The purpose of such a meeting
will be for us to share ideas about this transition we
have gone through, the problems it has caused, the
ways in which we might solve those problems. I am
eager to hear what your ideas are, what the prob-
lems are from your point of view, because I think if
we can focus on these together and discuss them
within the family, we can resolve them.
Our success in this will depend very much on
you. So I want to urge those of you who do partici-
pate in such a meeting to do so in the way that I
will: We should be open and frank with one another
and should not worry about creating hard feelings
because only if we are willing to work honestly to-
gether will we be able to keep this family united
and work effectively together the way we want to.
I look forward to our tackling this job together.
s Mahoney claims that the affidavit, which was given under oath and
signed by him, contains distortions of what he told the Board agent and
that he so told the Board agent. Noting that Mahoney made some correc-
tions in the statement and initialed them, and considering the fact that he
is an experienced attorney not likely to carelessly affix his signature to a
sworn statement which he has not carefully reviewed or knows not to be
true, I am persuaded the affidavit is an accurate reflection of what he
told the Board agent preparing the document.
On the same day, the supervisory staff was provided
with the following written instructions prepared by
Elaine Clement:
1. Employees in each department will select 2
representatives to attend an Employee/Management
Meeting as mentioned in Mr. Jacobs' memo of
today. 6 Time will be provided later today between
3:00 and 4:00 p.m. for you to select these represent-
atives and discuss problems to be brought up at the
meeting. At the conclusion of the meeting please
notify supervisors of your choice of representatives.
2. The function of the representative is to convey
any and all problems and concerns of their own and
their fellow workers to the management representa-
tives. The representative should stimulate frank dis-
cussions from among their group.
3. These representatives should then attend a
meeting to be help [sic] on Tuesday, April 28th at
2:45 p.m. in the cafeteria. Everyone present at that
meeting should be prepared to stay as long as is
necessary to conclude the meeting.
Attached to these instructions was a list of the depart-
ments and the number (1 or 2) of employee representa-
tives to be selected from each, to a total of 20. Pursuant
to these instructions the various departmental supervisors
provided their employees with a place to meet and con-
duct an election of representatives, and then left the area.
No supervisors were present during the actual selection
of representatives.
Respondent scheduled a meeting with the employee
representatives on April 26. On that day the employees
met on company time prior to the scheduled meeting
with management and decided not to meet with the
Company's representatives because they feared Vice
President Pace, whom they viewed as a vindictive man,
might retaliate against them for expressing their con-
cerns. They so advised Clement.
Later the same day, employee representatives Carr and
Connor were called to Jacobs' office. From the begin-
ning of the employee meetings Barry Carr assumed the
mantle of spokesperson for the group. Contrary to the
General Counsel's contention, the evidence does not
show Carr was appointed by Respondent as spokesper-
son. Carr is an aggressive individual who, as one em-
ployee witness noted, appointed himself. Clement prob-
ably suspected he was taking a leadership role from her
observations during brief visits to the employee meeting
to ascertain whether they were ready to meet with man-
agement, and from the fact that he advised her of the re-
fusal to meet. Accordingly, I do not find it surprising he
was one of those called to the office. Jacobs was upset
because there had been no meeting with management
that day, but arranged that he and Mahoney would meet
with the Committee on April 28.
The employee representatives met with Jacobs, Ma-
honey, company attorney Peters, and Carol McNamara,
Respondent's administrative assistant, on April 28 during
working time in the plant general conference room. In
6 Clement explains this is a reference to Jacobs' letter of April 23.
134
JET SPRAY CORP.
addition to the testimony of all witnesses pertaining to
the content of this meeting, I have considered the con-
tent of the minutes which were received in evidence
without objection and which are clearly not a verbatim
report but rather in the nature of notes of matters
deemed significant by McNamara who wrote them 7 in
constructing a fair synopsis of the relevant events that
took place during the meeting.
Pamela Keebler (now Yukna), who had been keeping
notes for the employee group, voiced the list of concerns
compiled by the employees. These included wage raise
policies and wage differentials, medical insurance bene-
fits, vacation policies, the length of lunch breaks, cafete-
ria prices, the existing prohibition of taking coffee to the
work station, various safety hazards, the first aid pro-
gram, safety shoes, job security, need for a credit union,
and productivity. Mahoney and Jacobs advised the em-
ployee representatives that Respondent would look into
the expressed concerns and take steps to remedy them.
Jacobs specifically said the safety shoe program formerly
in effect at Waltham would be reinstituted and the safety
problems would be promptly addressed. Jacobs concedes
the safety problems were in fact remedied as soon as pos-
sible.
There is general agreement that Mahoney told the em-
ployees that they had a right to organize, but after that
the versions sharply differ. Michael Regan first testified
that Mahoney said the employees could either go to the
Union or deal with the Company but he was not going
to tolerate guerilla warfare, and if the employees wanted
to go to the Union he would deal with that later with
long court battles. On cross-examination Regan agreed
that Mahoney said the Company could not deal with
two groups representing the employees, employees could
choose representation by a union or through the group
then assembled or otherwise and were free to organize in
any way they choose, but avers Mahoney also said there
was a consequence to pay. Leonard Murgo asserts that
Mahoney said there was guerilla warfare going on within
the Company and if it continued there would be long
legal battles, strikes, and great hardships for employees. 8
William Mullins, a witness with admitted faulty memory
in some respects, reports that Mahoney said he knew
there was talk of union meetings and he knew about the
unions, and he would deal with any type of guerilla ac-
tivity inside the Company. Mahoney testified that he
made the employees' right to form a union clear to them
and told them the Company would not interfere with
that right. He denies any statements of detrimental con-
sequences. He further denies using the word "conse-
quence" or that there was any discussion of conse-
quences resulting from union activity. He concedes he
might have used the term "guerilla warfare" on April 28.
McNamara's minutes attribute to Mahoney the advice
that the right to organize is a freedom but there is a con-
sequence. The minutes also contain the following note:
I McNamara credibly testified her notes were interpretations but re-
flect what she heard. The McNamara "minutes" bear the heading "Min-
utes of Meeting held with Jet Spray Grievance Committee 4/28/82."
8 Murgo further claims that Mahoney added that union activity in the
Company should stop immediately, but I do not credit this testimony.
C. Mahoney-very impressed with what has taken
place today. You must understand that you have
rights you can exercise but they cannot be crossed-
section. There is a great concern coming from the
employees if you want to address the problems and
solve them we must do it together. But, we are not
going to deal with this and then deal with some-
thing else again. If you want to deal with it fine, but
you cannot deal with it and have gorrila [sic] war-
fare going on.
Regan was a more impressive witness than Murgo on
this incident, Mullins was forgetful, and Mahoney's be-
lievability suffers from his unpersuasive attempt to brand
his pretrial statements as inaccurate recordings. On the
whole, I am persuaded that Regan's testimony is the
most credible and that Mahoney's mention of guerilla
warfare was a reference to potential conflict between the
Union and the Committee with both vying to represent
the employees. Although I also find that Mahoney made
reference to long litigation and consequences if the
Union were selected, I discount Murgo's claim that
strikes and employee hardship were specifically men-
tioned as embellishment. If these two ominous items
were mentioned by Mahoney, I do not believe Regan
would have forgotten or failed to mention them during
his testimony.
On April 30, the UAW distributed more than 200 leaf-
lets outside the plant advising, inter alia, that a union
meeting would be held on May 3. This was observed by
Supervisor Messier who spoke to the union agents. The
UAW again distributed leaflets at the same location on
May 3 and 6, each of which announced union meetings
on the day of distribution.
On April 30, Jacobs addressed a memorandum to all
employees setting forth the progress on completion of
the first aid room which had been designed into the new
building specifications in 1981 before construction com-
menced. Delay in the operation of this first aid facility
was caused by the delayed delivery of necessary equip-
ment. Respondent had decided long before the hiring of
Mahoney or the beginnings of union activity to staff this
room with a nurse and a physician. Two other memoran-
da to employees were issued by Jacobs on the same date.
One announced the company policy with respect to the
purchase of safety shoes. The other stated a new policy
permitting employees to carry purchased beverages
which were not completely consumed prior to starting
time or the conclusion of morning and afternoon breaks
to their work areas.
Another Jacobs' memorandum was directed to em-
ployees on May 3 setting forth an amended leave of ab-
sence without pay policy. Yet another such memoran-
dum of May 3 reads as follows:
As you know, at my request of approximately ten
days ago, a committee of twenty of your represent-
atives was convened in order to meet with me for
the purpose of representing all of you on matters of
concern that require attention of me and my man-
agement staff. That committee has met with me on
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two occasions; Wednesday, the 28th and Friday the
30th.9
During the course of our first meeting the com-
mittee presented a substantial but manageable list of
your problems. Many of these, you will understand,
can only be addressed as members of management
and the committee work together and define the
most satisfactory policies and practices from your
and the company's point of view. Others among the
problems we have been able to address very quick-
ly. For example, last week I, personally, toured the
plant and identified a number of problems pertain-
ing to safe operations of the plant and some machin-
ery. I have instructed that these matters be rectified
as soon as is possible and, in some instances, that is
immediately.
With respect to First Aid, I have informed the
members of the committee concerning the steps
being taken to establish and stock the First Aid
Room which will offer services of an LPN and pe-
riodically a physician. More details are in the at-
tached policy memorandum concerning this.
I also learned of discrepancies in company appli-
cation of the safety shoe program and the inconsist-
encies should not have occurred, in fact, is being
corrected. It will operate in accordance with the
policy attached.
Regarding merit increases, I learned that during
our transition period some merit increases were not
processed and discussed with some employees on a
timely basis, even though the effective date of the
increases were retroactive. I was distressed by this
and have instructed members of management to
insure that all merit increases are processed by the
employees' anniversary date.
By this process we have quickly addressed these
problems previously listed. More important issues
have been discussed or are in process right now.
Namely, regarding a credit union; we will have a
credit union and it will be implemented within one
month. Also, the company has had a discretionary
sick pay policy to this point in time. We will aban-
don this and we will develop a written formal sick
leave policy. This policy will be issued to all em-
ployees within 10 days
The issue of the cafeteria pricing has been re-
viewed and in accordance we have reduced the
prices on many items to be effective tomorrow
morning. I would like to convey that our cafeteria
is company subsidized. Since moving to Norwood
the monthly cost of subsidy for Jet Spray has been
running approximately $8,000 per month.
The subject of safety issues brought forth is pres-
ently being addressed and remedial action will be
taken as quickly as possible.
Relative to the job bid program, I would like to
clarify for the benefit of all that any eligible em-
ployee may bid on any job opening at any time and
that job bid application will be processed.
9 Carr and Jacobs refer to a meeting of Jacobs with the Committee on
April 30, but further details of the meeting were not developed.
I will continue to keep in touch with you
through contact with the employee committee as
well as from time to time with similar memoran-
dum.
On May 4, Supervisor John Doolan' 0 asked quality
control inspectors Vautour and Aucoin if they had at-
tended a UAW meeting the previous night, if there was
a large turnout, and what took place. They said "yes" to
the first two questions, and gave noncommittal answers
to the third.
Jacobs issued another memorandum to employees on
May 5 headed "Violation of Company Rules" and read-
ing:
It has come to my attention that several employ-
ees are spending company time discussing matters
other than work, going into other departments and
disturbing people at their jobs, and so forth.
Effective immediately, any employee in violation
of the company rules will be given a verbal warn-
ing, to be followed by a written warning if the in-
fraction continues.
There is no evidence of any preexisting rule covering
employee conversations or visits to other departments.
There were two meetings on May 5. The first included
all levels of management and supervision together with
the Committee. It was a failure because the participants
were apprehensive and communication between them
was conspicuously absent. Shortly thereafter Jacobs, Ma-
honey, McNamara, and Attorney Peters met with the
Committee. Mahoney relates' t that he addressed the
Committee as follows:
I said "you realize you were formed to present
the problems and you were elected for just that
purpose and we have invited you now to take the
next step of participating in the solution of these
problems if you wish to do so." I said "You were
not elected to participate in the solution of the
problems and we unstand [sic] this. The problems
you and others have presented would require a
major investment in effort, time and money to
solve. We are prepared to make that commitment if
the employees are willing to do so. However you
will have to go back to the Employees, and get
their vote to authorize it." I said again "you don't
know me very well but I want you to know if the
Employees of the Company want a union they have
a right to do and we wont [sic] interfer [sic] but if
you want to go forward the way we are suggesting
go get the vote if you wish to because we don't
want to spend time, money and effort if it is not
1' Doolan erroneously appears as Dolan in the pleadings. He did not
testify.
II Mahoney was acting in his capacity as Respondent's agent when he
addressed the group, and his pretrial affidavit of June 16, 1982, was taken
during the period he continued as company spokesman in dealing with
the Committee. His affidavit recitation of what he said at this meeting is
therefore an admission under Rule 801(d)2XD) of the Federal Rules of
Evidence. His testimony before me is more general than his affidavit but
is not inconsistent with it.
136
JET SPRAY CORP.
supported by the Employees. I want you to know
what we are talking about is a process and that you
should understand right up front that we might end
up in agreement or not in agreement in the prob-
lems presented by you. One thing we are not going
to do to is engage in guerilla warfare. If the Em-
poyees deceeded [sic] they wanted a union we
would deal with it in that context.
I believe the foregoing statement is more probably a gen-
eral description of what was said rather than a collection
of exact quotations, notwithstanding the presence of quo-
tation marks in the affidavit. In any event, I find this ex-
tract from Mahoney's affidavit to be an accurate reflec-
tion of what he said at the May 5 meeting.
After Mahoney's remarks the Committee recessed and
then returned with a request that its members be permit-
ted to meet with the employees in their respective de-
partment for the purpose of ascertaining their desires in
the light of Mahoney's comments. Permission was grant-
ed.
On May 6, Jacobs issued the following memorandum
to all employees:
The purpose of this memo is to keep you in-
formed of the progress we are making in the proc-
ess which has been initiated through meetings be-
tween the Employees' Committee and Management.
On May 3, 1982, I wrote to you concerning a
number of the specific problems and issues which
the Employees' Committee has listed. I have shared
that information with all the Managers. Yesterday I
met jointly with the Employees' Committee and
Managers to continue our process of re-establishing
open communications and improved working condi-
tions and productivity in the company.
The Employees' Committee and I are agreed that
the committee must have employee support in our
joint efforts to improve communications, working
conditions and productivity so that the company
can remain strong and continue to grow. With this
in mind, I have agreed to the committee's sugges-
tion that the two employee representatives from
each department met today with their fellow em-
ployees in the department so that they can report
on our work to date and can obtain the support
necessary for us to continue to deal with the mat-
ters together. I have arranged to have these meet-
ings take place today for ten minutes at the end of
your afternoon coffee break.
Management and the Employees' Committee
cannot be expected to invest the time, money and
effort needed to resolve the problems and issues
that have been listed unless the committee has
broad employee support. I have personally assured
the members of the committee that I am prepared
to work closely with them if I feel certain that
there is a similar commitment from the employees
to do so. I hope, that in your meetings today you
will give the members of the committee your full
support so that we can continue working together
to improve our communications with one another,
the working conditions of everyone and the produc-
tivity of the entire company.
I look forward to having your support and to
continuing my work with the Employees' Commit-
tee.
The same day, May 6, the Committee members polled
the employees in their departments to ascertain whether
they wanted to continue dealing with Respondent
through the Committee rather than the Union.
Supervisor Doolan's statement to employee Vautour
on May 6 that the vote was to choose between Jacobs
and the UAW reflects the realities of the situation and
underscores that Respondent was aware and apprehen-
sive of organizing efforts of the Union.
The Committee suggested that the employees agree to
give Respondent 30 days to correct the problems they
had raised through the Committee. The vote was over-
whelmingly in support of continued dealings between
Jacobs and the Committee. After the polling concluded,
the Committee met with Jacobs. Barry Carr announced
that the employees had voted in favor of giving Jacobs
30 days within which to make good faith efforts to
remedy the employee complaints previously voiced
through the Committee, and that the employees would
turn to a union if Respondent did not make such ef-
forts. 12
The Committee and Respondent continued to meet in
May and June and to discuss the employee complaints,
and Respondent took steps to remedy these concerns as
it had promised to do. The matters discussed and re-
solved are clearly related to the working conditions of
Respondent's employees. Thus, we have Respondent pre-
paring drafts of new or revised policies in response to
Committee complaints. On May 14, 18, 20, and 25, intra-
management communications set forth various proposals,
suggested solutions, and announced solutions designed to
meet those complaints. In summary, these communica-
tions concerned policy drafts on absence policy, disabil-
ity insurance, medical insurance, sick leave, personal
days off with pay, the implementation of a safety com-
mittee, safety shoe procedure, need for additional rest-
rooms, first aid equipment, the correction of noise prob-
lems, and the installation of new equipment. Some of
these items such as first aid equipment, restrooms, safety
items including the securing of machinery, and the instal-
lation of new machinery were either items in implemen-
tation of the preexisting plans for the new building or the
correction of problems arising as a result of the construc-
tion which would most likely have been effected with or
without a Committee or a union campaign. Others such
as the absence policy, insurance, sick leave, personal
leave, and the safety shoe policy were in direct response
to employee complaints voiced through the Committee.
In addition to its dealings with the Committee, the
Company caused job classifications and opinion surveys
1' Carr's testimony to this effect is reinforced by McNamara's notes
that management was advised that, if it did nothing, employees would
have no other resource but to turn to "the union." The word "union" is
not capitalized in McNamara's notes as the General Counsel's brief indi-
cates it is.
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be made by the American Association of Industrial
Management who had done such surveys for the Compa-
ny at intervals over a period of many years. I find noth-
ing unlawful in the actual conduct or content of these
surveys. The changes in company policies and practices
after these surveys cannot, however, be attributed solely
to a normal business-like reaction to routine surveys be-
cause Jacobs announced to all employees via a memoran-
dum of June 4 that the following new policies were to be
effective July 1, after an initial review of the survey re-
sults, and meetings with supervisors, managers, and the
employee committee: credit union services, medical/first
aid room, absence from work, disability insurance, sick
days, personal days, safety shoe policy, and a Jet Spray
safety committee. The medical/first aid room and the
safety committee were apparently under contemplation
prior to the rising of the Committee, but Jacobs clearly
states that all of these policies were effected after consul-
tation with the Committee. A volume could be written
detailing all the various details of investigation, consider-
ation, and implementation of all these items, but for the
purposes of this decision it is sufficient to note that all
were discussed with the Committee before implementa-
tion and all were implemented after company knowledge
there was union activity afoot.
While all this was going on in May and June, there
were events which the General Counsel contends con-
tained elements violative of Section 8(a)(1) of the Act.
On May 10, employee Mullins received a warning from
Supervisor Dante Fenelli for leaving his machine to
advise another employee on the production line that ma-
chinery he had worked on was missing certain screws
when it reached Mullins' work station. Fenelli had a few
days earlier told him that he was not to leave his ma-
chine but should tell Fenelli about any such problems
and Fenelli would have it corrected. On the day in ques-
tion, May 10, Mullins says he made unsuccessful efforts
to contact Fenelli before leaving his machine to speak to
the errant employee. As he returned to his station, Fen-
elli called him over and handed him a written warning.
If, as Mullins says, Fenelli was available to give him a
warning I have some difficulty in concluding he was not
available prior thereto, but it seems probable, in view of
the absence of such restrictions on employee movement
in the past, that the instruction not to leave the machine
and the subsequent warning were issued in implementa-
tion of the rule announced by Jacobs in his May 5
memorandum.
On the same day, May 10, Doolan told Vautour that
he had been told to instruct Vautour not to speak to
people on the line. Vautour reported this to Jet Spray
Vice President Arzburger. Arzburger told Vautour that
he could speak to anyone on the production line as long
as it was job related. Vautour credibly testified this was
the first time his talking was so restricted.
Later that day, Mullins complained to Barry Carr.
Carr said he would talk to Jacobs. Later yet, Carr re-
turned to Mullins stating that he had talked to Jacobs
and not to worry about it. Carr left. Fenelli then came to
Mullins a short time later and tore up the warning. Fen-
elli left. Carr returned and told him "We" had taken care
of it. After this relation, Mullins added that Carr had
said that if Mullins turned in his union cards the warning
would be torn up. Mullins did not do so, and I therefore
cannot conclude he was rewarded for doing so. All I can
gather with any certainty from this episode is that Carr
acted on Mullins' behalf in securing the withdrawal of
the warning. This is not surprising because it is clear
Carr was the acknowledged spokesperson, even if self-
appointed, of the Committee with whom Respondent
was dealing at the time, and Mullins directed his com-
plaint to Carr. I certainly cannot find on this evidence
that Carr was acting as Respondent's agent.
On May 14, Supervisor Roger Messier asked Leonard
Murgo if he knew who was involved with the Union.
Murgo said he could not answer that. Messier then asked
if Michael Regan was involved and if he was involved.
Murgo replied to both questions that he could not
answer that. When Messier asked who contacted the
Union, Murgo said he did. It requires no research or ci-
tation of authority to conclude that Supervisor Messier
has engaged in systematic interrogation into the union
activities of Murgo and others.
At a meeting with the Committee on May 18, Ma-
honey again assured employees that they had a right to
organize on behalf of a union, but added that there was a
company policy against solicitation in the plant. He con-
tinued that solicitation in the plant at any time or on
company property would not be tolerated and that viola-
tors of the policy would be terminated. 13
The Union had filed the charges in Case l-CA-19872
on May 19, and in Case l-CA-19896 on May 25, and on
July 9 a consolidated complaint issued alleging Respond-
ent had violated Section 8(a)(2) and (1) of the Act.
The Company's annual summer party took place on a
cruise boat on July 9. William Mullins was strolling on
the deck when he encountered Jacobs. Mullins took the
opportunity to thank him for taking care of the written
warning he had received from Fenelli. Jacobs made no
reply to this, but the two fell into conversation in the
course of which Jacobs told Mullins that he knew Mul-
lins was heavily involved in the UAW, and he wanted
Mullins to help save the Company. Jacobs continued that
they would have a much better Company and they could
do it without involving the Union. Mullins opined that
the first thing Jacobs had to do to save the Company
was give a dollar raise to everyone. Mullins made a few
more statements whose content was not adduced. Jacobs
apparently said nothing further. All witnesses to this
conversation had been drinking, to what extent is un-
clear, but Mullins seemed to have a clear recollection of
the incident and I have credited his testimony which was
's I do not credit Vautour's account that Mahoney threatened to take
action against Committee members engaged in union activity. In my
opinion, Vautour testified to what he thought Mahoney meant rather
than what he said, and that his recollection of Mahoney's statements
were colored by statements by Carr, after Mahoney and Jacobs left, that
Jacobs had led him to believe employees might be terminated for attend-
ing a union meeting. I further find that Regan's testimony that Mahoney
said, on June 17, that anyone signing or completing cards on company
time could be terminated is in error as to date and refers to Mahoney's
May 18 statement. The evidence does not support a finding that such a
rule existed, that there was a valid business reason for the rule, or that
employees were made aware of those times or places they could solicit.
138
JET SPRAY CORP.
delivered in a straightforward and believable manner.
Moreover, he is substantially corroborated by Vautour
who overheard a portion of the conversation.
On July 13, the Committee met, without Respondent's
representatives present, and discussed the fact it had been
named in the complaint as a party in interest. There was
some feeling expressed that the Committee was unfairly
characterized in the complaint. Barry Carr said he
wanted to answer the complaint. After Carr spoke, Ma-
honey entered the meeting, whether by request or on his
own initiative is not clear. Mahoney declined to give any
advice other than that the Committee could contact the
Board's offices to secure information about the com-
plaint. I credit Michael Regan, however, that Mahoney
said the charges were not true and if he ended up in
court he would "tear 'em apart when they were on the
stand." I think it unlikely the foregoing is an exact quote,
but I am persuaded Mahoney did convey the idea he
would discredit opposing witnesses. Even if the quote is
exact, I am not persuaded that an attorney's statement he
will fiercely attack the testimony of opposing witnesses
is an unfair labor practice. After this meeting Carr draft-
ed a response to the complaint and chaired another meet-
ing of the Committee, without management present,
where his draft was amended in accord with suggestions
from Committee members. This document was apparent-
ly then forwarded to the Board. Its disposition thereafter
is unknown to me.
On August 6, Leonard Jacobs directed a letter to all
employees announcing that the UAW was seeking to
represent the employees and the Committee had demand-
ed to be recognized and negotiated with as the employee
representative and because of this Respondent had decid-
ed to poll the employees to determine whether either or-
ganization had majority support. He advised that the poll
would be by secret balloting conducted by Deloitte, Has-
kins & Sells, an independent accounting firm, that there
would be no reprisal for voting one way or another, and
that Respondent would abide by the results.
The UAW requested recognition as the collective-bar-
gaining representative of Respondent's production and
maintenance employees on August 10, and filed a repre-
sentation petition with the Board on August 11. It ap-
pears the petition was supported by 103 signed UAW or-
ganization cards. Jacobs replied to the UAW request for
recognition by letter of August 11 referring the Union to
Respondent's attorney. It is not established that Respond-
ent received the petition on or before August 12.
Respondent urges, as did Jacobs' August 6 letter, that
the August 12 poll was conducted after the Committee
had requested recognition as exclusive collective-bargain-
ing agent. I think not. Carr's vague recollection that he
thinks a written demand was made on Respondent in
July stands unsupported. No such document appeared at
trial. The only written demand of record is that of the
Association dated August 17, and I am persuaded this is
the demand referred to by Carr. Jacobs made no refer-
ence to any such demand, and Mahoney merely testified
that he advised Jacobs that in the light of the issuance of
a complaint the Company should determine through in-
dependent means whether the Committee had majority
status it claimed to have, or if the employee wanted the
UAW to represent them, or if they wanted no represent-
ative. The first complaint in this case issued July 9, 1982,
alleging violations of Section 8(a)(2) and (1) of the Act. I
am persuaded that, as Mahoney plainly states, this com-
plaint, not any recognition demands, caused Respondent
to commission the August 12 poll.
Deloitte, Haskins & Sells conducted a secret-ballot
election of all hourly employees in the company cafeteria
on August 12. A payroll register of August 11 was used
as a voting eligibility list. No representatives of Respond-
ent were present and no party on the ballot had an elec-
tion observer present. There is no evidence the election
itself was not fairly conducted or the secrecy of the
ballot was not preserved. The results were 124 votes for
the Committee, 66 for the UAW, 22 for no employee or-
ganization, and I abstention. The results were reported
to Respondent, the Committee, and the Union by letter
of August 12 from Deloitte, Haskins & Sells.
Within a few days of this poll the Committee hired an
attorney and, on August 19, elected temporary officers,
and commenced drafting a constitution, bylaws, and re-
lated documents for the purpose of becoming an inde-
pendent labor organization denominated Jet Spray Em-
ployees Association. The Association also registered
with the United States Department of Labor as a labor
organization. By letter of August 17, the Association re-
quested recognition as exclusive collective-bargaining
agent on the basis of the August 12 results. By letter of
August 19, Respondent, in reply to the UAW's August
10 request, declined to recognize the UAW. Then, on
August 24, Respondent extended recognition to the As-
sociation as the exclusive collective-bargaining represent-
ative of the employees who were eligible to vote in the
August 12 poll, and requested the Association to arrange
bargaining meetings with Charles Mahoney.
Respondent and the Association commenced negotia-
tions on November 23, and continued with bargaining
sessions until a complete collective-bargaining agreement
was reached effective January 1, 1983, and encompassing
the wages, hours, and working conditions of the employ-
ees affected. This contract has a union-security clause re-
quiring Association membership in good standing as a
condition of continued employment after a 30-day grace
period in the case of current employees and 90 days in
the case of new employees. The contract also provides
for employer deduction of Association dues from em-
ployee wages upon receipt of written authorization from
the affected employees.
B. Conclusions
Jacobs testified that he had contacted another attorney
in early April about solving the various communications
and other problems resulting from the plant move. Why
he contacted an attorney rather than some other profes-
sional versed in industrial relations is unexplained. This
attorney referred him to Mahoney with whom Jacobs
first spoke on April 15 or 16 and advised that he needed
advice on labor relations and productivity problems. I
note that the first employee/UAW contact took place on
April 9. The timing of this sequence of events raises
some suspicion that Jacobs knew or suspected union ac-
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity, but it does not warrant a finding that Jacobs so
knew or suspected as early as April 15 or 16. However,
Mahoney's admission that Jacobs spoke to him on April
21 or 22 about reports of employee union activity and
the possibility of union organization if Respondent did
not remedy existing problems shows that Jacobs not only
knew or suspected such activity existed before that time
but was also seeking to fend off union organization by
generating a more kindly feeling toward the Company
among dissatisfied employees by addressing the sources
of their discontent. To this end Jacobs wrote his April 23
memo soliciting employees to voice their complaints and
promising to take steps to resolve them. Respondent
argues that it was not required to ignore its problems be-
cause a union may have commenced organizing. That is
not the point. The point is that the evidence indicates
Respondent promptly undertook its solicitation and
promises because it feared union organization and wanted
to nip it in the bud. The move to Norwood from Wal-
tham had been completed by January 1982. According to
Jacobs, he noticed in January, February, and March that
things were not going as they should and therefore he
called the attorney. There is no credible explanation of
his failure to seek assistance before April, and on his first
meeting with Mahoney he coupled a need to correct ex-
isting problems with the presence of union activity. The
record indicates there were indeed problems of commu-
nication, productivity, and profitability after the move,
but I am persuaded his communication to Mahoney on
April 21 or 22 warrants the conclusion that the prompt
attention to employee concerns commencing April 23
was motivated by the reports of union activity.
As a vehicle for accumulating employee grievances,
Respondent on April 23 directed the election be held
that very day of employee representatives in numbers
and at a specific hour set by Respondent, and instructed
said representatives to gather and convey all employee
"problems and concerns" to management representatives
at a meeting set for 2:45 p.m. on April 28. Written in-
structions to this effect were distributed to departmental
supervisors who then relayed the instructions to employ-
ees. Employees took no hand in the preparation or issu-
ance of these procedures, but were merely directed to
follow them. The instructions were prepared by Elaine
Clement, Jet Spray director of personnel, pursuant to
Jacobs' memo.14 The Committee resulting from this in-
struction was purely a creation of Respondent.
All meetings with the Committee composed of these
elected representatives were held on company time and
property at the pleasure of Respondent. The number and
method of selection of its members were decreed by Re-
spondent. The committee had no independent resources
or existence of its own, and continued only because Re-
spondent wished it to do so. Moreover, its only function
was to bring employee grievances to the Company
which might or might not remedy them as it pleased.
The Committee had no recourse but to accept Respond-
ent's decisions as final.
'4 I do not credit Jacobs that he knew nothing of the instructions pre-
pared by Clement.
Respondent not only used the Committee as a means
of soliciting grievances and conveying promises of
remedy to employees, but also utilized it as a forum to
advise employees of their rights to organize and suggest
the Committee as a viable option to the Union. Mahon-
ey's statements to the Committee on May 5 and Jacobs'
memo of May 6 were clearly calculated to convey that
the Respondent wanted to deal with the Committee not
the UAW and was willing to accord the Committee a
larger role in the determination of working conditions
and the resolution of grievances generally if employees
would forswear the Union and support the Committee.
Faced with company threats of lengthy litigation if they
selected the Union, the blunt proposition expressed by
Supervisor Doolan that they were choosing between the
UAW and the Company which controlled their liveli-
hood, and the promised and actual correction of some of
their concerns, it was inevitable that the employees
would react as they did in voting against the Union on
May 6.
After the vote, the Respondent continued on its course
of soliciting, promising to remedy, and remedying em-
ployee grievances through the use of the Committee as
an intermediary between it and the employees.
Looking at the picture as a whole, a pattern of em-
ployer conduct designed to defeat union representation
emerges. Jacobs told Mahoney of his apprehension of
union activity. Thereafter, Respondent constructed the
Committee, which existed only at its pleasure and was
clearly dominated, supported, and controlled by Re-
spondent, for the purpose of eliminating that activity. By
so doing, Respondent violated Section 8(a)(2) and (1) of
the Act. Ace Mfg. Co., 235 NLRB 1023, 1029-1030
(1978); Kux Mfg. Corp., 233 NLRB 317 (1977); Kunz-
Kasch, Inc., 239 NLRB 1044 (1978).
In furtherance of its efforts to discourage union activi-
ty other than that devoted to the Committee, Respond-
ent utilized the Committee as a conduit through which it
solicited employee grievances and promised to remedy
them. Respondent did in fact take prompt steps to
remedy such grievances and so advised the employees,
taking care to let the employees know that benefits re-
ceived had resulted from consultations with the Commit-
tee. Some of the problems raised by employees, notably
safety concerns and the first aid facility, would have
been remedied in any event, but here again Respondent's
implementation of such remedies was announced under
the guise of something negotiated with the Committee.
The record requires a conclusion that Respondent's solic-
itation of grievances, promises to remedy them, and
actual remedies thereof throughout the existence of the
Committee were undertaken for the purpose of discour-
aging employee activity in any labor organization other
than the Committee and were repeated violations of Sec-
tion 8(a)(1) of the Act. See, e.g., Kurz-Kasch, supra.
The poll of May 6 was the result of Mahoney's sug-
gestion that it would negotiate with the Committee if the
employees voted to authorize the Committee to so nego-
tiate. Respondent was motivated, I conclude, by its
desire to give the appearance of legitimacy to the Com-
mittee whose existence it controlled and to placate em-
140
JET SPRAY CORP.
ployees threatening to turn to the UAW. The vote was
initiated and arranged by Respondent, and held on com-
pany time and property. Jacobs' May 6 memorandum to
all employees clearly reflected Respondent's wish that
the employees authorize the Committee to represent
them. I agree with the General Counsel that this polling
of the employees violated Section 8(a)(1) of the Act be-
cause it did not meet the standards set forth in Struksnes
Construction Co., 165 NLRB 1062, 1063 (1967), where
the Board stated:
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards
are observed: (1) the purpose of the poll is to deter-
mine the truth of a union's claim of majority, (2)
this purpose is communicated to the employees, (3)
assurances against reprisal are given, (4) the em-
ployees are polled by secret ballot, and (5) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
There were no unusual circumstances and none of the
enumerated safeguards were observed.
The purpose of the August 12 poll was, I conclude,
not to determine the truth either of a majority claim by
the Committee which had made none other than to
report the results of Respondent's unlawful poll of May
6, or of a majority claim by the UAW who made its bar-
gaining demand and claimed a majority by letter of
August 10, 4 days after Jacobs' August 6 letter announc-
ing the poll. I am persuaded Respondent's true purpose
of the poll, in the face of a complaint alleging violations
of Section 8(a)(2) of the Act, was to take the chance that
its grants of benefits and previously expressed preference
for dealing with the Committee would persuade the em-
ployees to vote for the Committee and thus provide Re-
spondent with an argument that the Committee was a
bona fide independent labor organization.
Whether or not my conclusion on motivation is cor-
rect, the purpose of the poll was not the one required by
Struksnes, supra, nor was the poll conducted in an unfair
labor practice free atmosphere. Accordingly, the poll
violated Section 8(a)(1) of the Act. Moreover, the results
of the poll are entitled to no deference because the Com-
mittee was formed, dominated, and assisted by Respond-
ent, and this, combined with Respondent's other unfair
labor practices, removes any reasonable possibility the
vote for the Committee was indicative of an uncoerced
or unassisted majority.
After Respondent became aware of UAW activity, it
announced new rules on solicitation where there previ-
ously had been none. Jacobs' May 5 announcement of a
rule forbidding employees from discussing matters other
than work on company time is separable from the injunc-
tion not to disturb others at work and is ambiguous.
T.R. W. Bearings Division, 257 NLRB 442 (1981). The
concluding phrase "and so forth" is even more ambigu-
ous. There is no evidence that this ambiguity was re-
solved by an explanation to the employees of the times
they might engage in union activity or what "and so
forth" meant. Jacobs' announced rule was therefore un-
lawfully broad and violated Section 8(a)(1) of the Act as
did the application of that rule to Vautour and Mullins.
Moreover, the threat of warnings for infractions of the
unlawful rule violated Section 8(a)(1) of the Act because
it tended to restrain employees from engaging in lawful
union activity.
Mahoney's statement of May 18 that solicitation in the
plant at any time or on company property would not be
tolerated and that violators of this policy would be ter-
minated was unlawful on two counts. The rule itself was
unlawfully broad under both TR. W Bearings and its
predecessor Essex International, 211 NLRB 749 (1974),
which TR. W. overruled, and its announcement violated
Section 8(a)(l) of the Act. The threat to terminate viola-
tors of the unlawful rule plainly tended to restrain and
coerce employees in the exercise of their statutory rights
to engage in union and protected concerted activity, and
violated Section 8(a)(1) of the Act.
Certain other statements by Respondent's agents vio-
lated Section 8(a)(l) of the Act. On April 28, Mahoney
threatened employees with extended litigation if they se-
lected a union other than the Committee to represent
them. A statement of this nature can reasonably be ex-
pected to deter employees from engaging in legitimate
union activities and therefore violates Section 8(a)(l).
The same is true of Mahoney's ominous prediction of
consequences which, though ambiguous, conveyed a
threat of unspecified reprisals.
John Doolan's questioning of his subordinates Vautour
and Aucoin on May 4 with regard to their attendance at
a UAW meeting, the size of the group attending, and the
content of the meeting were probings into employees'
union activities of a type which reasonably tend to
coerce employees in the exercise of their Section 7 rights
and are violative of Section 8(a)(1). See, e.g., Holland
American Wafer Co., 260 NLRB 267, 273 (1982). Similar-
ly, Supervisor Roger Messier's questions posed to Leon-
ard Murgo on May 14 were coercive interrogation into
the union sympathies and activities of Murgo and others
which violated Section 8(a)(1).
On July 9, Jacobs' statement to Mullins that he knew
Mullins was heavily involved in the UAW created an un-
lawful impression of surveillance of Mullins' union activi-
ties. By so doing Jacobs violated Section 8(a)(1) of the
Act. Clements Wire Mfg. Co., 257 NLRB 206, 212 (1981).
Jacob's further statements to Mullins that he wanted
Mullins to help save the Company and it would be a
much better Company without the Union constitute a so-
licitation of Mullins to abandon his union activity and an
implied promise of benefit if such activity ceased. Both
the solicitation and the promise were patent efforts to
persuade Mullins to abjure his union activities and sup-
port Respondent, and solicitation and promise were each
individual violations of Section 8(a)(l) of the Act.
The questions posed with respect to the Association
are whether it is (1) a dominated labor organization, (2)
an assisted labor organization, or (3) a bona fide inde-
pendent labor organization free of either domination or
assistance.
The General Counsel and the Charging Union argue
that the Association is dominated by the Respondent. I
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot agree. The Committee effectively ceased to exist
when its members hired an attorney, after the August 12
vote, for the Association. The attorney requested recog-
nition on the Association's behalf on August 17. This re-
quest was premature because the Association did not for-
mally exist until August 19. By the time Respondent ex-
tended recognition to the Association it had elected offi-
cers and begun its existence as a labor organization. Its
organization had its genesis among Committee members,
but it is an entirely different organization de jure and de
facto rather than a disguised continuance of the Commit-
tee. There is no evidence Respondent initiated, financed,
or otherwise participated in the formation or subsequent
operations of the Association. After recognition the As-
sociation and Respondent had numerous negotiating ses-
sions culminating in a collective-bargaining agreement.
On the record before me I find no evidence that the ne-
gotiations were not bona fide collective bargaining be-
tween the parties as equals, as opposed to the relation-
ship of master-servant between the Committee and Re-
spondent. The mere fact that the contracting parties may
have agreed to adopt some existing policies previously
worked out by Respondent and the Committee estab-
lishes nothing, nor does the election of former Commit-
tee leaders to office in the Association. Although I am
reasonably certain, given Respondent's fear of an outside
union, that Respondent did not oppose the formation of
the Association there is simply no evidence preponderat-
ing in favor of a conclusion that the Association is or has
been dominated by the Company.
Turning to question (2), I find that Respondent violat-
ed Section 8(a)(2) and (1) of the Act by recognizing the
Association after a valid petition for an election had been
filed with the Board by the UAW and the UAW had re-
quested recognition. Bruckner Nursing Home, 262 NLRB
955 (1982). Moreover, the Association requested recogni-
tion and was recognized on the basis of the unlawful
August 12 poll yielding a majority for the Committee.
The Association did not exist at the time of the poll and
the authorization cards it later obtained from employees
postdated the request for recognition and were not the
basis on which Respondent recognized the Association.
The Association argues that because the Respondent
committed itself on August 6 to recognize the winner of
the August 12 vote its later recognition of the Associa-
tion was properly based on its prepetition commitment.
The Association was not on the ballot, and neither the
Association nor Respondent can change that simple fact.
Moreover, the result of the August 12 vote is unreliable
for reasons noted above. Either the Association is the
same entity as the Committee under a different name, in
which case it is a dominated labor organization, or it is a
new entity which received assistance in the form of rec-
ognition at a time the UAW petition was on file and on
the basis of a vote for an entirely different entity. In
either case, Respondent violated Section 8(a)(2) and (1)
by extending recognition. I find Respondent unlawfully
assisted a new entity rather than continued to deal with
the existing dominated group under a sham identity de-
signed solely to hide the truth of its domination.
CONCLUSIONS OF LAW
1. Respondent Jet Spray Corporation is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, UAW,
Jet Spray Employees' Committee, and Jet Spray Em-
ployees Association have been at all times material
herein labor organizations within the meaning of Section
2(5) of the Act.
3. By dominating the Jet Spray Employees' Commit-
tee, Respondent violated Section 8(a)(2) and (1) of the
Act.
4. By recognizing, bargaining with, and executing a
collective-bargaining agreement containing a union-secu-
rity clause with the Jet Spray Employees' Association at
a time that a valid petition for representation election
had been filed with the Board by another labor organiza-
tion, Respondent gave unlawful assistance to Jet Spray
Employees' Association in violation of Section 8(a)(2)
and (1) of the Act.
5. By soliciting, promising to remedy, and remedying
employee grievances on numerous occasions in 1982 for
the purpose of discouraging lawful employee union ac-
tivity, Respondent violated Section 8(a)(l) of the Act.
6. By causing polls for the purpose of ascertaining its
employees' union preference to be conducted on May 6
and August 12, 1982, without lawful purpose or observ-
ance of the required safeguards, Respondent violated
Section 8(a)(l) of the Act.
7. By promulgating, implementing, and enforcing
overly broad rules on solicitation by employees, Re-
spondent violated Section 8(a)(1) of the Act.
8. By threatening employees with warnings and dis-
charge for violations of its unlawful solicitation rules,
Respondent violated Section 8(a)(1) of the Act.
9. By threatening employees with extended litigation
and other consequences if they select a union as their
representative, Respondent violated Section 8(a)(1) of the
Act.
10. By coercively interrogating employees with re-
spect to their union activities and sympathies and those
of others, Respondent violated Section 8(a)(1) of the
Act.
11. By creating the impression that employee union ac-
tivities were under surveillance, Respondent violated
Section 8(a)(1) of the Act.
12. By soliciting an employee to abandon union activi-
ty, Respondent violated Section 8(a)(1) of the Act.
13. By promising benefits to employees conditional on
the cessation of employee union activity, Respondent
violated Section 8(a)(1) of the Act.
14. The unfair labor practices found above have affect-
ed and are affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease and desist and notice
posting requirements my recommended Order will re-
quire Respondent to withdraw and withhold recognition
of the Association as the collective-bargaining represent-
142
JET SPRAY CORP.
ative of its employees and to cease giving effect to the
collective-bargaining agreement with it effective January
1, 1983, or to any renewal, modification, or extension
thereof, until such time as the Association shall have
been certified by the Board as the exclusive representa-
tive of the employees in question. However, nothing in
this Order shall authorize or require the withdrawal or
elimination of any wage increase or other benefits, terms,
and conditions of employment which may have been es-
tablished pursuant to the performance of that agreement.
I shall further order Respondent to reimburse all present
and former employees for all initiation fees, dues, and
other moneys which may have been exacted from them
by, or in behalf of, the Association pursuant to the
union-security and dues-checkoff provisions of the afore-
mentioned collective-bargaining contract, together with
interest thereon. Vernitron Electrical Components, 221
NLRB 464 (1975), enfd. 548 F.2d 24 (Ist Cir. 1977).
Although the Committee no longer exists, I believe it
prudent in this case to ensure no resurrection of the
Committee in that or any other guise by issuing the cus-
tomary disestablishment order. I shall do so.
[Recommended Order omitted from publication.]
143