Utrad Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 434 (N.L.R.B. 1970)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Utrad Corporation and International Union of Dis-
trict 50, Allied and Technical Workers of the
United States and Canada ' and International Union
of Electrical , Radio & Machine Workers, A F L-
CIO. Cases 25-iCA-3408 and 25-CA-1897
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND BROWN
On April 29, 1970, Trial Examiner William W.
Kapell issued his Decision in the above-entitled consol-
idated proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in other
unfair labor practices alleged in the consolidated com-
plaint. Thereafter, both Respondent and General
Counsel filed limited exceptions, with briefs in support
thereof, to the Trial Examiner's Decision. Respondent
has also submitted a brief in answer to General Coun-
sel's limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner's finding that
Respondent's original no-solicitation rule published
in the employee handbook constitutes too broad a
proscription of employee union activity and is presum-
tively violative of the Act. While we also agree with
his finding that no violation may be based on the
,promulgation of the rule, under Section 10(b) of
the Act, we find merit in the General Counsel's
exception to the Trial Examiner's finding that the
rule was not maintained in effect. The record indicates
that the employee handbook containing the unlawful
' International Union of District 50 , U M W A, amended its constitution
and changed its name on April 9, 1970
rule was revised within the relevant period without
change in this rule and that it was given to all
new employees, including employees hired within the
10(b) period, without notice to them or to incumbent
employees that Respondent did not intend to enforce
the rule as written. In our opinion, both the republica-
tion of the rule, and the failure to renounce it specifi-
cally, constituted maintenance thereof which reason-
ably tended to inhibit employees in the exercise of
their Section 7 rights. Accordingly, we find that
Respondent maintained an invalid no-solicitation rule
in effect during the relevant period, in violation of
Section 8(a)(1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
Respondent, Utrad Corporation, Huntington, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, with the following modification:
1. Renumber the present paragraph 1(d) as 1(e)
and insert the following as paragraph 1(d):
"(d) Maintaining in effect a broad no-solicitation
rule which unduly tends to restrain or impede its
employees in their organizational activities."
2. In the Appendix to the Trial Examiner's Recom-
mended Order insert the following respective para-
graphs after the second indented paragraph and as
the final paragraph:
WE WILL NOT prohibit our employees from
soliciting on behalf of International Union of
District 50, Allied and Technical Workers of
the United States and Canada, or any other
labor organization, on company property during
their nonworking time.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist any
S Cone Mills Corporation, 174 NLRB No 151, Varo, Inc, 172 NLRB
No 236 We note that Respondent has, subsequent to the issuance
of the amended consolidated complaint, rescinded the unlawful no-solicita-
tion rule by publishing a revised rule in the employee handbook Remedial
action is, nevertheless, necessary in order to assure all employees that
the offending rule has been rescinded , and to adequately publicize the
revised rule See Casey Manufacturing Company, 167 NLRB 89,97
Chairman Miller would affirm the Trial Examiner's finding that the
no-solicitation rule was not maintained in effect in violation of Sec
8(a)(i)
Member Brown would not adopt the Trial Examiner's conclusion that
the revised rule was presumptively valid See Campbell Soup Company,
170 NLRB No 167 (Member Brown dissenting in part), Exide Alkaline
Battery Division ofESB, Inc, 177 NLRB No 99
185 NLRB No. 49
UTRAD CORP
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.'
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar
as it alleges violations of the Act not found herein.
This paragraph conforms the notice to the Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner- Cases 25-CA-
3408 and 25-CA-1897, proceedings under Section 10(b)
of the National Labor Relations Act, as amended, herein
called the Act, were heard in Huntington, Indiana, on
October 21 and 22, 1969,` and in Fort Wayne, Indiana,
on February 10, 1970,2 with all parties participating except
International Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, hereafter referred to as IUE, pursuant to
notice on the complaint' issued on September 9 by the
Regional Director for Region 25, alleging violations of
Section 8(a)(1) and (2) by Utrad Corporation, hereafter
referred to as the Company or Respondent.
The amended consolidated complaint, as further amended
on October 8, in substance, alleges that in January 1964
Respondent interrogated its employees in violation of Section
8(a)(1) of the Act, and has since assisted and dominated
Utrad Employees Association, hereafter called Association,
a labor organization of its employees in violation of Section
8(a)(2) of the Act, that about April 1, 1964, Respondent
and IUE entered into a settlement agreement in Case 25-
CA-1897, which was approved by the Regional Director,
providing, inter aha, that Respondent would disestablish
the Association as the bargaining representative of its
employees and would not dominate or interfere with the
formation or administration of any labor organization or
otherwise interfere with, restrain, or coerce its employees
in the exercise of their Section 7 rights; that since about
November 26, 1968, Respondent has maintained in effect
a rule prohibiting solicitation of union membership or sup-
port, that despite its solicitation rule, Respondent refused
District 50's request to reply to Respondent's campaign
speeches to its employees on its time and property, that
about May 5 Respondent kept the activities of District
50 under surveillance and gave the impression of doing
so; that in June and July Respondent interrogated its employ-
ees concerning their union activities, that in July Respondent
All dates hereafter refer to the year 1969 unless otherwise noted
The hearing was initially closed on October 22, and thereafter reopened
pursuant to the Board 's Order of November 4, reversing the Trial Examin-
er's exclusion of certain evidence pertaining to presettlement violations
' Based on charges filed on February 7 and March 25, 1964, by
IUE in Case 25-CA-1897, and a charge filed on May 26 by International
Union of District 50, U M W A , hereafter referred to as the Union
or District 50
435
advised its employees that the plant would close if the
Union prevailed; that since about January 1964 by the
above acts and conduct, Respondent violated the terms
of the aforedescribed settlement agreement, and that about
September 9 the Regional Director vacated and set aside
the said agreement. Respondent in its duly filed answer
denied that the Association is a labor organization or
that it engaged in any violative conduct or breach of
its settlement agreement
All parties appearing were afforded full opportunity to
be heard, to introduce relevant evidence, to present oral
argument, and to file briefs Respondent and the General
Counsel filed briefs which have been fully considered. On
the entire record in the case, and from my observation
of the witnesses, I make the following-
FINDINGS OF FACT
I COMMERCE
At all times material herein Respondent has been engaged
in the manufacture, distribution, and sale of electronic
transformers and related products at Huntington, Indiana.
During the past 12 months, which period is representative
of all times material herein, Respondent manufactured,
sold, and shipped from its Huntington, Indiana, plant fin-
ished products valued in excess of $50,000 to points outside
the State of Indiana During the past year Respondent,
in the course and conduct of its Huntington, Indiana,
facility goods and materials valued in excess of $50,000
which were transported to said facility directly from States
other than the State of Indiana. Respondent admits, and
I find, that at all times material herein it has been engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
Ii. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that at all times material
herein District 50 and IUE have been labor organizations
within the meaning of Section 2(5) of the Act. I find
further as indicated hereafter that at all times material
herein the Association has been a labor organization within
the meaning of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
A Introduction and Contentions of the Parties
The General Counsel contends that following the execu-
tion and approval of the settlement agreement in April
1964 involving violations of Section 8(a)(1) and (2),
Respondent has failed to comply with its terms and has
engaged in additional violations of said section, thereby
causing the Regional Director to withdraw his approval
of the settlement agreement (which pursuant to Board
policy thereby became a nullity), and to institute the within
proceeding. Although no violation of Section 8(a)(1) and
(2) may be predicated upon Respondent's conduct prior
to the settlement agreement unless and until it is first
determined and found that this section has been violated
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent subsequent to April 1964, I will, nevertheless,
first treat with conduct prior to April 1964 as background
shedding light upon and imparting meaning to Respondent's
alleged postsettlement conduct Respondent contends that
its conduct after the execution of the settlement agreement
was not violative of the Act, and that the settlement was
not breached but fully complied with
B. Respondent's Presettlement Conduct
The unrefuted testimony shows that about January 24,
1964, employee Dorma K. Bird joined the IUE organizing
campaign which was then in progress at Respondent's
plant and handbilled at the plant entrance. After passing
out handbills, she and employee Marilyn Schieman put
on union badges, entered the plant, and began working.
That afternoon she, Kay Harris, Bob Brown, Marie Schie-
man, and Marilyn Schieman, all of whom were employees
campaigning for the IUE, were summoned by Plant Manager
Carney to the office of President Kaufman There, they
met with company officials, Kaufman, Carney, Sprinkle,
and Clark. After Carney expressed shock and surprise
to find the employees campaigning for the IUE because
he had not realized that the situation in the plant was
so bad as to call for a union, Kaufman asked the employees
about their complaints and was advised that they included
favoritism among the employees and low wages He, there-
upon, suggested that the employees form a club and elect
officers who could appoint grievance and social committees,
that the grievance committee could take employee grievances
every Friday to management and resolve them, and that
they did not need a union and rather than pay union
dues they could spend their money on club picnics and
parties He then explained how they should go about having
an election ,' agreed to provide the ballots, suggested the
name of "Utrad Employee Association" as the name of
their organization, and requested them to remove their
union badges and throw them in the trash can Three
of the employees did so, but Marilyn Schieman and Dorma
Bird removed their badges and kept them.
Kaufman then used the intercom system in the plant
to call all the employees to a meeting at which he stated
that the employees campaigning for IUE really never wanted
a union , that they just wanted better working conditions,
that they had decided to organize a club, and that they
would have grievance and social committees He also men-
tioned that the Company had had trouble with a unionized
California plant He did all the talking and never asked
whether the employees were agreeable, and they just went
along with him.
A few days later upon punching out, the employees
found ballots (prepared by Respondent) which they took
home. The following day when Carney distributed pay-
checks, Marie Schieman accompanied him with a ballot
box into which the employees dropped their marked ballots
' Employees interested in running for office were told to hand in
their names which would first be posted on the company bulletin board,
and then placed on the ballots
and were tallied by Dorma Bird and Marie Schleman '
Personnel Manager Sprinkle then told them to notify the
winning candidates about their election and also to advise
Bob Pinkerton, the president-elect, how to go about having
meetings and to select the members of the grievance commit-
tee. After so advising Pinkerton, Mrs Bird inquired of
Mr Carney whether the Association grievance committee
could hold their meetings on company time, otherwise
they would encounter complications in arranging their car-
pools for their rides home He assured her that all meetings
would be held on company time and that they could
take all the time they needed.
Following his notification of election to the presidency,
Pinkerton and Emiline Wright, the newly elected treasurer,
were summoned by Sprinkle to the office of Mr Cramer,
the plant accountant, where they were presented with a
check for $500 from the Birch Vending Machine,' and
were told they would be receiving similar checks quarterly
for about $300 On February 4, 1964, Cramer asked Pinker-
ton to sign a checking account card in the name of Utrad
Employees Association, and was told that Mrs. Wright
would also sign a similar card, and that they would thereafter
sign Association checks'
About February 3, 1964, the Association held a meeting
of its officers in the fine wire room of the plant after
working hours! On February 4, the Association officers
met with Clark and Sprinkle and told them the Association
wanted to set up bylaws, a constitution, and policies in
order to function as an organization Clark replied that
the Company already had certain policies which would
be shown to them if they would meet with him the following
Friday. On the following Friday the Association officers
met in Clark's office with Clark, Sprinkle, and Carney
and were shown a company policy book The contents
of the book were then read paragraph by paragraph and
discussed Certain changes were suggested by the Associa-
tion officers and discussed These included requests for
time-and-a-half wage rates on Saturdays when a holiday
fell during the week, night premium pay to be paid during
a 2-day temporary transfer to another job, and the dropping
of job posting. Management agreed to these changes. Two
or three months later, following the execution and approval
of the settlement agreement , the Association officers received
a new company policy book which included the changes
requested at their prior meeting. All of the above matters
relating to the Association took place on company time
except where noted otherwise.
Meanwhile on February 7 and March 25, 1964, IUE
filed charges against Respondent for violating Section 8(a)(1)
and (2) of the Act based upon its assistance in the formation
The elected officers were Robert Pinkerton, president, Barbara Bow-
man, vice president , Emiline Wright , treasurer, Biff Mullens , recording
secretary , and Effert Hamilton, sergeant at arms
The Company pursuant to its arrangement with Birch, a catering
company, had been receiving a percentage of the receipts from vending
machines which had been set up in the company cafeteria
The payments received by the Association were used to fund the
employees ' recreational and social activities, consisting of parties , bowling
events, picnics, etc
Permission had been obtained from Sprinkle to use the wire room
whenever desired
UTRAD CORP
of the Association, dominating and interfering with its
operations, and violative interrogation of its employees.
Thereafter, pursuant to the settlement agreement Respond-
ent agreed to disestablish the Association as the representa-
tive of any of its employees for the purpose of dealing
with the Association concerning grievances, wages, hours
of employment, or other conditions of employment, and
to stop dominating or interfering with the formation of
any labor organization or assisting in its support, or in
any other manner interfering with, restraining, or coercing
its employees in the exercise of their statutory rights
C. Respondent's Alleged Postsettlement Conduct
1. The alleged surveillance
Respondent's plant is located in Huntington, Indiana.
It fronts on Briant Street and has one gate at the south
end leading from the parking lot to that street and another
gate from the parking lot leading to State Street, which
intersects Bnant Street about one block from the south
end of the plant At the south end of the plant there
is an overhead door with three windows, which is close
to the Bnant Street gate and leads into the toolroom.
Farther to the east a loading dock is located inside the
plant from which one can see the State Street gate about
a block away but not the Briant Street gate During the
middle of May District 50 was engaged in an organizational
drive at the plant and its representatives, Jake Haffner
and Robert Davidson, were handbilling at the Briant Street
gate and at the State Street gate, respectively. Employee
Cynthia Garrison testified that on two occasions on one
afternoon she saw Plant Superintendent Kenneth Kroge
standing on the loading dock looking out toward the State
Street gate where Davidson was handbilling. On each occa-
sion Kroge was talking to employee Glen Curtis who works
in that area. During the ordinary course of his work Kroge
has occasion to make several trips daily to the loading
dock and he testified that he was unaware of the handbilling
when he approached the loading dock to check on incoming
material.
Employee Richard Deitch, a toolroom employee under
the immediate supervision of Foreman Glen Dillon, testified
that during May he observed Dillon looking out through
the windows of the overhead door at the south end of
the plant in the direction of the Briant Street gate for
about half an hour while Haffner was handbilling, and
that he commented, "Well, there's a man making his mon-
ey." Dillon stated that he frequently in the course of
his work has occasion to visit the area where he was
observed by Deitch, and that on one of these occasions
he noticed several people looking out of the window so
he walked over to "break" it up and observed the handbilling
for about 5 minutes . Haffner testified that while handbilling
at the Briant Street gate in the early part of May he
observed a man , whom he subsequently learned to be
Maurice Clark, the company president, watching him from
inside the overhead door at the south end of the plant
for about 10 to 15 minutes. Clark denied observing the
handbilling near the overhead door or dock to which he
normally goes three or four times a day, but admitted
437
seeing the handbilling take place at the State Street gate
on one occasion
2. The alleged violative interrogation and threat of reprisal
Sometime in May, Foreman Dillon in a conversation
with Richard Deitch in the toolroom inquired what were
his views or thoughts about the Union Deitch responded
that he could not talk to him on company time, and
later told a fellow employee, Ralph Gordon, and his immedi-
ate supervisor, Jackson, about this conversation. Dillon
acknowledged talking to Deitch on many occasions, not
specifically about the Union, but on various things.
Employee Ralph Gordon testified that beginning in June
his foreman, Dillon, talked to him on three or four occasions.
In the first two conversations he asked Gordon what he
thought about the Union and if they needed one. Gordon
replied that he was a union man and supported the Union.
In the third conversation, when again asked what he still
thought about the Union, Gordon replied, "Well, I'll dust
have to wait and tell you later after the election." On
the day of the election, when faced with the same question
by Dillon, Gordon reiterated his support for the Union,
to which Dillon replied, "You'd better give it some serious
thought because if the Union gets in the Company will
close the place down, they wouldn't tolerate a union, they
wouldn't have a union." Gordon refused to believe it and
said so Dillon vehemently denied telling Gordon that the
Company would close down the plant if the Union prevailed.
Employee Cynthia Garrison testified that, about 2 weeks
before the July 18 Board election, Foreman Lawson
approached her work station and in a general shop talk
he also asked why she wanted a union. She testified further
that Production Manager Pinegor also approached her
around that time and asked her the same question. She
replied in each conversation that she had certain gripes
against the Company. At the time of such conversation
she wore clothing marked with prounion slogans. Neither
Lawson nor Pinegor testified.
3. The no-solicitation rule
Rule 21 of the general regulations of the Company's
handbook which has been in existence for 5 years, provided-
Employee soliciting will not be allowed unless approved
by the personnel department.
Employee Garrison, who was aware of the rule, neverthe-
less actively and openly campaigned on behalf of District
50 during its organizational campaign and obtained over
100 authorization cards in the plant during nonworking
time. Although observed by management in these activities,
she was never reprimanded or told to stop. Employee
Carolyn Dailey also engaged in such activities without
any interference by management, despite its knowledge
that these activities were carried on. During the week
of October 13, the employees received revisions of the
Company's handbook stating that the aforesaid rule read
as follows:
Employee soliciting during worktime will not be
allowed.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The Union's request to address the employees at the plant
In a letter of July 5 to the Company, the Union stated
it had learned that the Company in campaign speeches
to the employees in the plant had made certain statements
concerning the Union, and requested equal time to address
the employees under similar circumstances to deny the
validity of these statements. By reply of July 8, the Company
refused to grant the Union's request, and stated further
that it had supplied the Union with a list of its employees
and their home addresses where they could be contacted
5 Respondent's assistance to and domination of the
Association
In April or May the Association officers, including Presi-
dent Kenneth Grimes,' decided to generate greater employee
participation in the Association by having each department
elect a representative who would convey the complaints
and requests of their constituents to the Association, who
in turn would bring them to the attention of management
for its consideration and resolution. In implementing this
plan, the foremen either directly or through department
rank-and-file employees distributed slips of paper to each
employee in the various departments with instructions to
designate whom they wished to represent them for the
purpose of referring their complaints and demands to the
Association The names of the individuals receiving the
most designations in each department were thereafter posted
on the company bulletin board as the elected representative
for their respective departments All the activities involved
in the designation of department representatives took place
during working time.
Beginning in June, the Association officers met with
Company President Clark" on four occasions in his office
during working hours. The first meeting was held at the
request of Emiline Wright, who had dust been elected presi-
dent of the Association in May, to discuss recreational
activities such as bingo, horseshoes, and volley ball for
employees during the lunchtime." Clark approved of these
activities provided they were supervised. He also agreed
to the use of the cafeteria for Association meetings of
its officers if it did not interfere with production. During
the latter part of July, following the Board election on
July 18, which the Union lost, three of the Association
officers met again with Clark." He stated that the Board
election results indicated there were about 100 dissatisfied
employees who wanted company changes or improvements.
In order to alleviate this situation , he requested that sugges-
tions be collected from the employees by the Association
representatives and passed on to management through the
Association officers. He also told the Association that all
' Grimes was president for 1 year from May 1968, and has been
a supervisor since sometime in 1967
° Clark had been plant manager in 1964
According to Mrs Wright, the Association was the same organization
which was formed in 1964 when she was the elected treasurer
" Although Wright testified she was unable to recall who requested
this meeting , I find that she was evasive in answering this and other
questions , and that from the subject matter discussed, it appears highly
probably that Clark called the meeting
they could do would be to solicit the viewpoints of the
employees and present them to the Company which would
then consider them " The following day the Association
officers met with the Association representatives in the
cafeteria on company time. Mrs Wright told them that
management realized from the election results that the
employees wanted some changes and asked what changes
they would like to have made in the company handbook,
and to write them down on slips of paper and turn them
in to her About a week later, the Association officers
met again with the representatives in the cafeteria on compa-
ny time About 50 slips of paper containing various sugges-
tions for changes in the company handbook were turned
in to Wright
In the early part of August, the Association officers
met with President Clark for the third time in his office
on company time Personnel Manager Bill Pinegor and
a Mr. Brown were also present. Mrs Wright was spokesman
for the Association. At the suggestion of Clark they dis-
cussed proposed changes in the handbook page by page
Such changes included insurance eligibility after 30 days
of employment rather than 90 days, disqualification for
a raise after an absence of 3 unexcused days in a 90-
day period prior to the next salaried increase rather than
3 days' absence, tardiness up to 6 minutes to be excused
because of the train traffic around the plant, which frequent-
ly blocked access thereto, emergency leave because of death
in the family to include in-laws in addition to other listed
relatives, wage review for increases every 6 months instead
of a year, eligibility for holiday pay not to be impaired
because of tardiness the day before or after a holiday,
and eligibility for vacations after I year of employment
instead of 1 year after July 1. They also discussed some
matters which did not appear in the handbook, such as
having a foreman distribute paychecks rather than leaving
them in the timeclock, and the hiring of a nurse's aide
to render first aid instead of a foreman Clark took notes
during the discussion and reiterated that the suggestions
would be considered by the Company but that he could
not negotiate or bargain with the Association.
Meanwhile on May 26, the Union filed charges upon
which the General Counsel thereafter on September 9 issued
the amended complaint herein, and notified the parties
that the approval of the 1964 settlement agreement was
withdrawn and the agreement set aside because of Respond-
ent's failure to comply with it.
Sometime during September the Company distributed
several pages of revisions to the handbook to the employees
These revisions included insurance changes, tardiness penal-
ties, a change in eligibility for holiday pay in connection
with the number of hours worked the day before and
after the holiday, vacation after 1 year of employment,
emergency leave for a death in the family extended to
include in-laws, wage reviews to be made very 6 months
after 1 year of service, and the number of unexcused
absences to disqualify an employee for a rate increase
" Yet, it also appears that at all times material herein , a suggestion
box had been set up in the personnel office for complaints and suggestions
UTRAD CORP
at review time All of these revisions had been discussed
in the meetings of the Association officers with Clark.
IV. CONCLUSIONS
A The Postsettlement Violations
1. The surveillance or impression of surveillance
It appears, and I find, that supervisory personnel observed
the handbilling by District 50 at the plant. It also appears
that these supervisors were on company premises at places
where their duties at times required their presence In
these circumstances, I find that their observation of the
handbilling from within the Company's premises did not
constitute surveillance or the impression of surveillance
within the meaning of Section 8(a)(1). Borden Cabinet
Corp., 148 NLRB 996, 1001, R. & J. Underwear Co.,
Inc., 101 NLRB 299, fn 2; E. D Foods, Inc, d/b/a
Deaktor's Foodland. 168 NLRB No 48. Furthermore, even
assuming that an intent to engage in surveillance on its
premises in the circumstances herein would be violative
of the Act, I find that the General Counsel failed to
establish by the preponderance of credible evidence that
such intent can be imputed to the Respondent. See Roxanna
of Texas, Inc., 98 NLRB 1151, 1162 I, therefore, conclude
that the General Counsel failed to establish surveillance
or the impression of surveillance within the meaning of
Section 8(a)(1)
2 The violative interrogation and threat to close the plant
The unrefuted evidence shows that three employees were
interrogated as to what they thought about the Union
Two of the three interrogators were foremen while the
third one was the production manager . Two of the employees
did not hesitate to express their support for the Union
while the third one declined to discuss the subject on
company time , but mentioned having had the conversation
to a fellow employee. Based on the demeanor of Gordon
in testifying and the plausibility of what was said , judged
by his reply, I find that Dillon made the threat to Gordon
that the Company would close the plant if the Union
prevailed
Respondent contends that neither the interrogations nor
Gordon 's threat , if made, was coercive , that the employees
were unaffected , and that such isolated incidents would
not warrant a finding of violation or remedial relief.
Respondent also argues that a feeling of friendliness between
the interrogators and the employees negated any intimidating
impact . The fact that the parties may have been on friendly
terms does not bar a finding, if, under all the circumstances,
the inference of coercion is a reasonable one. See Daniel
Construction Co. v N.L.R.B., 341 F 2d 805, 812 (CA.
4), enfg . 145 NLRB 1397 , cert . denied 382 U S 831.
Nor does the fact that a threat did not intimidate an
employee preclude a finding of violation . As the Circuit
Court of Appeals for the District of Columbia stated "the
question is not whether an employee actually felt intimidated
but whether the employer engaged in conduct which may
reasonably be said to tend to interfere with the free exercise
439
of employee rights under the Act" Joy Silk Mills v.
N.L.R.B, 185 F 2d 732, 743-744, cert . denied 341 U.S
914. See also N L R.B v. Flemingsburg Mfg Co, 300
F.2d 182, 184 (C.A. 6)
As appears from its conduct during the 1964 IUE cam-
paign , the Company was adamantly opposed to unionism
That opposition was reinvigorated and surfaced again when
District 50 appeared on the scene in 1969 While it counter-
acted more astutely in some ways, i e,1lie L.ihlnc-audicn^c
speeches , it also trangressed in other ways. Thus, Dillon's
persistent questioning of Gordon and his apparent inability
to convert him culminated in his threat that the plant
would close if the Union prevailed Construed in the light
of its presettlement violations , no doubt was left that with
the advent of a new union campaign , Respondent was
reacting in similar manner Even Production Manager Pine-
gor, high in the supervisory hierarchy , participated in the
interrogation . While it appears, as stressed by Respondent,
that relatively few incidents of interrogation or threats
were established, that fact loses much of its significance
in view of Respondent 's past history . Of significant impart
is the fact that Respondent never gave assurance against
reprisals during the interrogations . Furthermore , although
not all interrogation of an employee concerning his union
sympathies is a violation of the Act, it is clear that "What
may ordinarily be a harmless inquiry is capable of becoming
an unfair labor practice because of attendant circumstances."
Jervis Corporation v. N.L.R.B., 387 F.2d 107, 111 (C A.
6) Based on the entire record , and viewed in the light
of its manifest hostility to union organizing attempts, I
conclude that Respondent engaged in coercive interrogation
and threats in violation of Section 8(a)(1) of the Act.
3. The no-solicitation rule
It appears, and I find, that the no-solicitation rule had
been promulgated for about 5 years prior to the filing
of the charge herein Although this rule is broad enough
to be presumptively violative of the Act," its actual promul-
gation occurred more than 6 months before the filing of
the charge, and is, accordingly, barred by the 10(b) limita-
tion. Mason & Hanger-Silas Mason Co., Inc., 167 NLRB
No. 122. enfd on this point 405 F.2d 1 (C.A 5). It
also appears that the employees openly campaigned on
behalf of the Union and solicited a great number of authori-
zation cards during nonworking time . Although they were
observed by management in these activities, nothing was
done to interfere with or circumscribe these activities. In
view of the i.j, K of enforcement of the rule or the intent
of Respondent to maintain it in effect, and based upon
Respondent's revised and presumptively valid rule, which
has been publicized in the Company's new handbook, I
conclude that the rule was not maintained in effect in
violation of Section 8(a)(l)
14 Stoddard-Quirk ManuJa, luring Co 138 N L R B 615
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The denial of the Union's request to address the
employees in the plant
It is uncontradicted that District 50 requested equal
time to address the Company 's employees in the plant
to refute certain statements in speeches allegedly made
by Respondent during working hours concerning the Union
Respondent refused the request and suggested that District
50 contact its employees at their homes , their names and
addresses having been previously supplied by it. The General
Counsel contends that in view of the unlawful solicitation
rule, Respondent was obligated to give the Union equal
time to reply to its antiunion captive-audience speeches.
He cites Montgomery Ward & Co. v NL. R.B.,15 where
it was held that an invalid solicitation rule, unlawful surveil-
lance of union activity , and antiunion captive-audience
speeches by the company "created a glaring imbalance
in organizational communication" that justified the union's
request to address the employees under the same circum-
stances as the respondent had That case is clearly distin-
guishable from the instant case where prounion employees
had access to the employees and freely solicited them
for the Union in the plant without any interference . 16 Under
these circumstances the denial of the Union 's request did
not create so glaring an imbalance in organizational commu-
nication which would warrant a finding of violation of
Section 8(a)(1)
5 The assistance to, and domination of, the Association
As related above, it appears that Respondent initiated,
organized, and, for all practical purposes, controlled the
Association at the time of the 1964 IUE organizing cam-
paign There is no dispute as to the composition, structure,
or functions of the Association. Its prime purpose and
objective was to defeat the IUE by supplanting it with
the Association." However, because of the 10(b) limitation,
Respondent's role in the formation and control of the
Association may be considered only as background and
for the light it may shed in appraising the status of the
Association and Respondent's conduct towards it within
the 6-month period of the filing of the charge in the
postsettlement case
Since the Association's organization, its sole source of
financial support has been the rebates received from the
vending machine company pursuant to Respondent's
arrangement with that company Also, since 1964 company
supervisors, as well as rank-and-file employees, have been
members of the Association and have served, at times,
as its officers. Grimes was a supervisor prior to his election
to the presidency of the Association in May 1968 and
has since continued to be a supervisor It also appears
that the employees never paid any dues to the Association;
" 339 F 2d 889 (C A 6), enfg. 145 NLRB 846
16 Nor are there any findings herein of enforcement of an unlawful
no-solicitation rule
" Respondent in its supplemental brief does not question the illegality
of the Association in 1964, and asserts that is why it entered into
the settlement agreement
that it had no means of financial support other than that
received through the arrangement with the vending compa-
ny," that its officers and representatives were paid for
time spent conferring with the Employer and/or with each
other, that the employees were paid for time spent conduct-
ing Association elections; and that Respondent furnished
the Association with space for meetings and supplies for
its elections It is also undisputed that the Association
officers met with management at the latter's request to
suggest or recommend changes to dissipate the widespread
employee dissatisfaction evidenced by the union vote at
the Board-conducted election Thus, once more it appears
that with the advent of another union's attempt to organize
the employees and the open support accorded it by employ-
ees, the Company was prompted to stimulate or revive
dealing with the Association in order to overcome employee
gripes. While it is true that most of the Association activities
were social in nature, it also functioned again, as the
result of District 50's organizational campaign, for the
purpose of bringing employee grievances to the attention
of the Company. As related above, the Association officers
in their meetings with management reviewed company poli-
cies and rules set forth in its handbook and proposed
changes, including tardiness in reporting for work, insurance
coverage, vacations, merit increases, holiday pay policies,
and time off to employees to attend funerals of additional
members of their families These proposals were for the
most part acted on favorably by Respondent.
Respondent contends that the Association functioning
only as a social club without its aid or assistance does
not qualify as a labor organization within the meaning
of the definition set forth in Section 2(5) the Act.19
Respondent, in particular, points out that it never negotiated
with respect to any Association proposals and specifically
informed the Association that it would not engage in such
negotiations but would simply entertain and consider any
proposals made by the Association. In N.L.R.B. v Cabot
Carbon Co. and Cabot Shops, Inc., 360 U.S 203, employee-
elected committees met with management for the purpose
of solving problems of mutual interests The committees
made recommendations affecting employment conditions,
which were either approved or rejected by management,
and never attempted to negotiate collective-bargaining agree-
ments.20 The Court held that the term "dealing with"
in Section 2(5) of the Act was not to be read as synonymous
with the more limited term "bargaining with" in construing
the legislative intent, and that, in fact, Congress in enacting
the bill had rejected the substitution of the term "bargaining
with" for the term "dealing with." The Court concluded
that employee committees, under whatever name called,
that function similarly to those in that case were "labor
" The rebates from that company now exceed $3,000 a year
" The term labor organization is defined in that section as follows
The term "labor organization" means any organization of kind,
or any agency or employee representation committee or plan, in
which employees participate and which exist for the purpose, in
whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions
of work
30 The committees had no membership requirements, collected no
dues, and were assisted by plant clerks in conducting their election
UTRAD CORP
organizations" as defined in the Act. In rejecting employer's
further contention that the employee committees were not
"dealing with" the employer because they only made propos-
als and requests which amounted to recommendations only
and that the final decisions remained with the employer,
the Court stated that this was true of all such "dealing,"
whether with an independent or a company dominated
"labor organization," the principal distinction lying in the
unfettered power of the former to insist upon its requests
I accordingly conclude that the Association herein consti-
tuted a "labor organization" within the meaning of Section
2(5) of the Act President Clark's statement to the Associa-
tion officers that he could not negotiate with them but
would merely consider their proposals did not detract from
or nullify his dealings with the Association as a labor
organization within the meaning of Section 2(5) of the
Act Nor is it relevant that the Association primarily engaged
in social activities, it suffices if it exists for the purpose
in part of dealing with the Employer concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or conditions of work 21
Respondent also contends that it neither assisted nor
dominated the Association Section 8(a)(2) of the Act,
in pertinent part, makes it an unfair labor practice for
an employer "to dominate or interfere with the . adminis-
tration of any labor organization or contribute financial
or other support to it " As pointed out, supra, the employees
pay no dues or assessments to the Association which has
no means of financial support other than what Respondent
furnishes to it by its arrangement with the vending machine
company Respondent pays the officers of the Association
not only for their time spent in conferring with management
but also for time spent in conferring with each other
and with Association department representatives, and for
the time spent in conducting their elections. It also supplies
the ballots and other paraphernalia to the Association for
its elections, and furnishes the Association with space for
its meetings in the plant I, therefore, conclude that Respond-
ent furnished unlawful assistance and support to the Associa-
tion within the meaning of, and in violation of, Section
8(a)(2) of the Act. See St. Joseph Lead Company, Zinc
Smelting Division, 171 NLRB No 74.
As indicated, supra, the Union vote at the Board-conduct-
ed election caused Respondent to realize the serious inroad
made by the Union, presumably because of widespread
employee dissatisfaction. It, thereupon, decided to resort
to the tactics so successfully used in 1964 against the
IUE. This time it had only to call the Association into
meetings and to listen to its suggestions to ameliorate
employee gripes concerning working conditions. It, thereby,
reincarnated or revived the Association as a "labor organiza-
tion" for that purpose. However, the Company retained
complete control or domination of the manner in which
the Association functioned with regard to its suggestions
Thus, it firmly impressed upon the Association that they
were not negotiating any terms or conditions of employment,
and that its suggestions would be considered and be either
" See Pines ofAmerica, 178 NLRB No 58, where an employee committee
which existed at least in part for the purpose of dealing with employee
grievances was held to be a "labor organization "
441
approved or rejected. In the final analysis the Company
convened and treated the Association as an advisory body
for the limited purpose of combating unionism Its conduct
was calculated to undermine support for the Union by
soliciting and adjusting employee grievances while conduct-
ing a campaign against unionization By expressing a willing-
ness to receive and consider employee requests at a time
when a union appeared to have gained a foothold "might
well have indicated to the average employee that better
conditions would be forthcoming, as in fact they were."
NL.R.B. v. Yokell d/b/a Crescent Art Linen Co., 387
F.2d 751, 755 (C.A. 2). Such conduct not only interfered
with the employees' exercise of their 'ection7 organizational
rights, but also prevented or discouraged the employees
from seeking representation elsewhere Considered in the
light of its assistance to, and support of, the Association
and its past practices in combating unionism , I conclude
that Respondent dominated the Association i n its function-
ing as a labor organization within the meaning of Section
8(a)(2) of the Act See N.L.R.B. v. Cabot Carbon Co.
and Cabot Ship, Inc , supra , internationa Association of
Machinists, Tool and Die Makers Lodge No 35 [Serrick
Corp] v N.L R B., 311 US 72, 80, and N L.R B v.
Oliver Machinery Corp, 210 F.2d 946, 947 (C A 6), enfg.
102 NLRB 822
B. The Presettlement Violations and the Settlement
4greemeni
In the absence of any evidence to the contrary, I find
that from the time it entered into the 1964 settlement
agreement until the occurrence of the postsettlement viola-
tions in 1969, Respondent complied with the terms and
conditions of that agreement 22 It also appears that through-
out that period the Association continued to function pre-
sumably only as a social club The General Counsel contends
that because of the Company's violations in 1969, the
Regional Director was warranted in withdrawing his approv-
al of the settlement agreement, and proceeding to an adjudi-
cation of Respondent's alleged presettlement conduct It
amply appears from the undisputed testimony that prior
to the settlement agreement Respondent engaged in conduct
violative of Section 8(a)(1) and (2). Nor does Respondent
question that conclusion However, more than 5 years had
elasped before it again engaged in violative conduct. The
remoteness of those violations poses the question as to
whether or not setting aside the settlement agreement in
the circumstances herein would be appropriate or even
warranted No Board guidelines or criteria have been cited
as applicable in resolving this unusual and rare issue. Nor,
in the case at bar do I find that a Board order based
upon the postsettlement violations would be modified or
changed in material manner by a further finding of presettle-
ment violations I, therefore, conclude in the circumstances
herein that it is not necessary to set aside the presettlement
agreement and make findings of violations based on
" Pinkerton also testified that until he left the Company in 1965,
Respondent complied with the settlement agreement
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's presettlement conduct in order to properly RECOMMENDED ORDER 23
effectuate the policies of the Act
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
1. At all times material herein, Respondent has been
engaged in commerce as an employer within the meaning
of Section 2(6) and (7) of the Act
2 At all times material herein, the Association and
District 50 have been labor organizations within the meaning
of Section 2(5) of the Act
3 By engaging in violative interrogation of and threats
to employees, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
4. At times material herein, Respondent has assisted,
contributed support to and dominated the Association while
functioning as a labor organization, within the meaning
of and in violation of Section 8(a)(2) and (1) of the Act.
5. It is not necessary to set aside the 1964 settlement
agreement or to adjudicate the alleged presettlement viola-
tions in order to effectuate the policies of the Act
6 Allegations of the amended complaint as to which
specific findings of violation have not been made have
not been sustained by the preponderance of the evidence
7 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
It having been found that Respondent unlawfully interro-
gated and threatened employees within the meaning of
Section 8(a)(1) of the Act and also unlawfully dominated,
assisted, and contributed support to the Association, I
recommend that it cease and desist therefrom and take
certain affirmative steps, including disestablishment of the
Association insofar as it functioned as a labor organization,
necessary to effectuate the policies of the Act.
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall , as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
Upon the foregoing findings of fact and conclusions
of law and the entire record in the cases, and pursuant
to Section 10(c) of the National Labor Relations Act,
as amended, it is hereby ordered that Respondent Utrad
Corporation, its officers, agents, successors , and assigns,
shall:
1 Cease and desist from
(a) Dominating or interfering with the administration
of, or contributing financial or other support to, Utrad
Employees Association as the representative of its employees
with respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work
(b) Interrogating employees concerning their union activi-
ties in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the Act.
(c) Threatening its employees with the closing of the
plant in the event they choose to be represented by a
labor organization.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right
to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Withdraw and withhold recognition from and dises-
tablish Utrad Employees Association as the representative
of its employees for the purpose of dealing with it with
respect to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment.
(b) Post at its plant in Huntington , Indiana, copies of
the attached notice marked "Appendix "2a Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
have been taken to comply herewith 25
IT IS FURTHER RECOMMENDED that the amended com-
plaint be dismissed insofar as it alleges violations of the
Act not specifically found.
" In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals , the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals I c an Order of the National Labor Relations
Board "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
UTRAD CORP
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT Interrogate our employees concerning
their union activities in a manner violative of Section
8(a)(1) of the Act.
WE WILL NOT threaten our employees with the
closing of the plant in the event they choose to be
represented by a labor organization
WE WILL NOT dominate or interfere with the admin-
istration of, or furnish financial or other support to,
Utrad Employees Association for the purpose of dealing
with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions
of employment
WE hereby withdraw all recognition from and dises-
tablish Utrad Employees Association as the representa-
443
tive of our employees for the purpose of dealing with
us concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of
employment.
Dated By
UTRAD CORPORATION
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.