Streamway Division of the Scott & Fetzer Co.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Streamway Division of the Scott & Fetzer Co. and Linda Elaine Keane and Donald R. Wilkes. Cases 8-CA-12351, 8-CA-12498, and 8-CA- 12423 May 8, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On December 17, 1979, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Streamway Division of the Scott & Fetzer Co., Westlake, Ohio, its officers, agents, successors, and I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I Contrary to the Administrative Law Judge, we find Foreman Adams' statement to employee Keane constituted an expression of animus. Nevertheless, we are satisfied that the record establishes Keane's discharge was motivated solely by her poor job performance. In affirming the Administrative Law Judge's finding that Personnel Manager Louise Akers did not unlawfully interrogate alleged discrimina- tee Linda Keane, we rely on his refusal to credit Keane's testimony. We do not rely on his further finding that there would be no element of in- terference, restraint, or coercion under the circumstances present even if Akers had asked "why" or "if' the employees wanted a union. D In par. I(d) of his recommended Order the Administrative Law Judge used the broad injunctive langauge "in any other manner." Re- spondent herein has not demonstrated a proclivity to violate the Act, nor has it engaged in conduct so widespread as to demonstrate a general dis- regard for the employees' fundamental statutory rights. Thus, in our opinion, the broad injunctive language is not appropriate, and we have modified the recommended Order accordingly. Hickmorrt Foods, Inc., 242 NLRB No. 177 (1979). We note that the Administrative Law Judge's notice contains the narrow injunctive language in conformity with par. (d) of the recom- mended Order, as modified herein. We have, however, corrected the notice to conform with par. I(a) of the recommended Order. 249 NLRB No. 54 assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the phrase "in any like or related manner" for the phrase "in any other manner" in paragraph (d). 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT dominate or interfere in the formation or administration of the In-Plant Employee Representation Committee, or any other labor organization of our employees, or give assistance or support to such labor orga- nizations. WE WILL NOT interrogate our employees about their union membership, activities, or desires. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to self-organi- zation, to form, join, or assist International Molders and Allied Workers Union, AFL- CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid and/or protection. WE WILL withdraw and withhold all recog- nition from and completely disestablish the In- Plant Employee Representation Committee as a bargaining representative of any of our em- ployees. All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. STREAMWAY DIVISION OF THE SCOTT & FETZER CO. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: This proceeding was heard by me on May 22 and 23, 1979, in Cleveland, Ohio. A charge was filed by Linda E. Keane, an individual, on October 19, 1978, in Case 8-CA-12351 alleging violations of Section 8(a)(1) and (3) of the Act; a charge was filed by Donald R. Wilkes, an individual, on November 28, 1978, in Case 8-CA-12423 alleging viola- tions of Section 8(a)(1) and (3); and a charge was filed by STREAMWAY DIV. OF THE SCOTT & FETZER CO. 397 Keane on January 4, 1979, in Case 8-CA-12498 alleging violations of Section 8(a)(1) and (2) of the Act. A consol- idated complaint was issued upon these charges by the Regional Director for Region 8. Upon the entire record, including my observation of the witnesses and after consideration of the briefs filed by General Counsel and Respondent, I make the follow- ing: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is now and has been at all times material herein an Ohio corporation with its principal office lo- cated in Lakewood, Ohio, and a facility in Westlake, Ohio, herein called its plant, where it is engaged in the manufacture of faucets and valves. Respondent annually ships goods valued in excess of $50,000 directly to points located outside the State of Ohio. The complaint alleges, Respondent admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Allied Workers Union, AFL-CIO, herein called the Union, is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On October 26, 1976, and November 28, 1977, Interna- tional Union United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW, filed pe- titions seeking to represent Respondent's 60 to 70 pro- duction and maintenance employees. Elections pursuant to those petitions were conducted, the second being in February 1978. The UAW lost both elections. Alleged discriminatee Donald R. Wilkes was a UAW observer for the second election. A. Discharge of Linda Keane Alleged discriminatee Linda Keane testified that in February, shortly after the 1978' election, she comment- ed to Foreman (and undisputed supervisor within the meaning of Section 2(11) of the Act) Steve Adams that there were a lot of new faces around, including some from a temporary employment service. According to Keane, Adams replied, "Yes, we are going to get rid of all the regulars and won't have to worry about a union election with all the temporary employees." General Counsel advances this statement as evidence of union animus, but not an independent violation of Section 8(a)(l). Adams denied making the statement. I found Keane to have been the more credible witness on this point, and I do not credit Adams' denial. While it is clear that Respondent would rather not recognize and bargain with any independent labor oragnization, 2 Adams' state- ment falls short of an expression of corporate intent to i All dates are in 1978, unless otherwise specified 2 This is made clear by a pamphlet of Do's" and "Don'ts" for super- visors introduced by Respondent. thwart employees' exercise of their Section 7 rights by unlawful means. Therefore, it is not an expression of un- lawful animus as General Counsel argues. Leonard Prichard was called as a witness for the Gen- eral Counsel. Prichard is vice president of Prichard En- gineering, a metal fabricating job shop which, for a time, regularly did business with Respondent. General Counsel relies on Prichard's testimony of two conversations with Adams as evidence of union animus, including, specifical- ly, animus against Keane's union activities. The first con- versation occurred in April or May, the second in Sep- tember. Prichard testified that in the first conversation, Adams told him that he was going to fire anybody who had worked for the Union; that he was going to fire "ev- erybody" because of the Union; that he was going to fire Keane; and that Respondent would never have a union. Prichard testified that in the September conversation he told Adams that there was going to be a union meeting that night, but no employee's name was mentioned. Ac- cording to Prichard, Adams said that "they would close the place down." Prichard's testimony is completely unreliable. He admits that he dislikes Respondent and that he dislikes Adams in particular because of a business-related dis- agreement in which Adams had shown himself to be "two-faced." Further, he admitted a friendship with Keane which rose at least to the level of causing him to be unhappy over her discharge. Prichard punctuated his testimony with various gratuitous observations,3 was at times evasive, and became visibly angry when his bias was demonstrated. Prichard admitted that he initiated conversations with Adams about unions and that he was taunting Adams when he did so. Finally, Prichard ad- mitted that he was consistently joking with Adams on the topic of unions and Adams was joking in kind. In short, I do not credit any of the above testimony by Pri- chard (which Adams credibly denied); specifically, I do not credit the statement that Adams said he intended to fire Keane. General Counsel contends that specific knowledge of Keane's activity on behalf of the Union is made out by the testimony of employee Scott Smith whose testimony is essentially undenied. In September, Smith asked Plant Manager Varesco several times for a list of employees' names and addresses for his then-impending wedding. After ignoring him, and then refusing on the basis that no such current list existed, Varesco told Smith to see Keane because Respondent believed that she had one. In fact, Keane (as she testified) had sought addresses from employees for the Union, but did so on the pretense of making up a Christmas card list. Varesco had heard about the Christmas card list, but there is no evidence that he knew, or had reason to believe, that it was a pre- tense for securing a list of names and addresses for the Union. The list Keane sought was to assist the Union in con- tacting employees at the plant. Activity on behalf of the Union began in July when Keane, employee Linda Pierce, and alleged discriminatee Wilkes met with Union 3 Prichard volunteered. "that company needs a union," although at an other point he olunteered, "I hate unions" . _ 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representative Clayton Kisner at Pierce's apartment. Kisner gave the employees union authorization cards to be distributed at the plant and Keane and Wilkes did so. There is no evidence of the extent of this distribution or Respondent's knowledge thereof. Keane testified that in August, Respondent's personnel manager, Louise Akers, approached her work station to discuss her career. Such discussions had been held before as Keane had taken advantage of an Employer-paid real estate course. Keane testified that she did not know if anything she had previously said to Akers had prompted this visit to her work station, but she did acknowledge a similar conversation with Akers shortly before. When asked if she had asked Akers to get information for her, Keane evasively responded, "I don't know what I would have asked her." Keane testified that after a discussion of the real estate career which Keane was then abandoning in favor of continued employment with Respondnt, "from there it went on to if I liked what I was doing, why did I feel that the people were upset and restless and the morale was low, and we went into the---she asked why I felt the people needed a union, or if I felt the people needed a union, and I said yes, that we weren't getting any satisfaction. We needed some kind of help." Keane admitted that it could have been she who initiated the reference to a union. Akers did not testify, but even in absence of a credible denial I find Keane's testimony to be too inexact to be worthy of credit or the finding of a violation. Keane did not remember the nature of the alleged interrogation ("if" or "why" the employees wanted a union); she was evasive about whether she knew if previous contact with Akers had precipitated Akers' visit to her work station; and she vacillated on who it was that initiated the reference to a union. In summary, I find the testimony too unreliable to credit. Moreover, even if Akers asked "why" or "if" the employers wanted a union, there is no element of inter- ference, restraint, or coercion in the single question asked in the circumstances as described by Keane. Ac- cordingly, I shall recommend that the allegation of the complaint that the question by Akers constituted an un- lawful interrogation be dismissed. According to Keane, the Union scheduled its first meeting on Septemer 18 (the day of her discharge). During the lunch period on that date, she loudly pro- claimed to 20 employees in the lunchroom that she was going to the meeting and she hoped everyone else would also. No supervisors were present at this lunch hour gathering and there is no reason to find, as General Counsel contends, that Respondent is charged with knowledge of Keane's union sympathies or activities from this remark. Keane was a soldering machine operator. Employees such as she worked on a piece rate, which is set by time- and-motion studies conducted by Industrial Engineer George Shakkour. If an employee does not produce enough pieces per hour, he or she is paid a flat rate rather than an incentive rate which is higher. Keane ad- mitted that on September 15, she got into a dispute with Shakkour over the rate4 of a job upon which she was working. Keane testified that she "just got very aggra- vated and said I wasn't going to bust my ass for no money at all. I was going to take my time and do the job right." In fact, Keane's production for that day, as well as the day before, was much lower than what other em- ployees, as well as she, had done on the same job. On the following day, Keane was discharged with a notifica- tion: On September 14 and 15 you were assigned to as- semble and solder 108-5-8 hose end spouts. On Thursday, Septemer 14, you produced 37 percent of standard. On Friday, September 15, you produced 49 percent of standard. In conversation with George Shakkour, Engineer, concerning the stand- ard, which you helped establish, you told George: "I will not bust my ass, because I know I won't make any money, so I am going to take it easy on myself." Your past record indicates general poor at- titude concerning company rules, absenteeism and levels of productivity. We find that we have no other alternative at this time than to terminate your employment, effective 3:30 p.m., September 18, 1978. Keane had previously been warned, in writing, about poor job performance and attendance. General Counsel does not contend that any of these prior warnings were unlawfully motivated or knowingly false, although there was various quibbling with the correctness of some parts of the prior warnings. It would serve no purpose to thrash out whether each of the prior written warnings were for just cause. They were not alleged as unlawful; even if they were, Keane's remarks on Septemer 15, coupled with her poor production of September 14 and 15, would be cause for discipline. Since it was cause for discipline, it was cause for discharge because the Board does not pass on the severity of the discipline imposed absent evidence of discriminatory punishment for like of- fenses. There is no evidence that any other employee had vowed not to make standard on the day he or she failed to do so and received a lesser punishment than dis- charge. In summary, I find that General Counsel has not made out a prima facie case of unlawful discrimination in the discharge of Keane in that there is no evidence of em- ployer knowledge of, or animus against, her activity on behalf of the Union. Moreover, assuming the General Counsel has established a prima facie case in regard to Keane's discharge, there is no basis for concluding that the reason given at discharge was not the sole motivating cause for the discharge. Accordingly, I shall recommend that the Section 8(a)(3) and (1) allegations relating to Keane's discharge be dismissed. B. Discharge of Donald R. Wilkes Former employee Donald R. Wilkes, a polisher, testi- fied that 4 or 5 days after the gathering at Pierce's house I There was no contention that the setting of the rate had been a part of a scheme to find a basis to discharge Keane. STREAMWAY DIV. OF THE SCOTT & FETZER CO. 399 (at which he received the authorization cards from Kisner): I was returning from lunch and Chuck (Zerby) stopped me on the way back from lunch and he says, I heard you guys were at Linda Pierce's house last night. He said it must have been some little party, and he asked me who was there, and I just told him that Linda Keane and myself were there. I didn't mention anything about Mr. Kisner being there. General Counsel contends that this question (which was factually undenied since Zerby did not testify) constitutes an interrogation in violation of Section 8(a)(1) and re- quests remedial relief thereupon as well as a conclusion of specific knowledge of the union activity of and animus against Wilkes. It was stipulated that Zerby was a supervisor within Section 2(11) of the Act, but, even as related by Wilkes, the "party" remark appears to have been more of a salacious jibe by Zerby than an interroga- tion about suspected union activity. At any rate, there is no evidence to conclude that the remark and question were oriented in union considerations, and I do not do so. Accordingly, I shall recommend that this allegation of the complaint be dismissed, and I further find that there is no evidence (in this remark or anywhere else in the record) of knowledge of activity by Wilkes on behalf of the Union or animus toward such activity. In regard to the allegation of his discriminatory dis- charge, these are the relevant facts according to Wilkes: On the evening of September 3, he stepped off his front porch into his child's tricycle, became entangled, fell and twisted his ankle. He helped himself up and went back into his house where a card game was going on. He went to the hospital the next morning where he got verbal directions to stay off of it for "2 or 3 weeks." After leaving the hospital, he and his wife purchased crutches for him and then he went home where he spent the day mostly on the couch. On September 5, he went to the plant and informed Zerby of the accident and that he would be off for a while. Zerby told him to return as soon as possible as he was greatly needed. Wilkes called his doctor's office on the next day and the receptionist gave him an appointment for September 18. Wilkes saw his doctor on September 18 and reported the existence of continued pain. The doctor told him not to go back to work until September 25. He went to work on Septem- ber 25, worked the entire day, and upon his arrival at work on September 26, was discharged for "excessive absenteeism." Since there is no evidence of employer knowledge of Wilkes' activity on behalf of the Union and no animus toward him or such activity, there is no prima facie case regarding Wilke's discharge. However, it is to be noted that Wilkes had a poor attendance record in his 2 years of employment which was fully documented by Re- spondent. 5 It would serve no purpose to review these records. It suffices to state that he received three prior written warnings (none of which are alleged to have I Wilkes admitted being a "smart alec" regarding attendace in a pre- hearing statement. been issued discriminatorily), two of which were desig- nated as "final" warnings. (The second "final" warning was issued by Respondnt on May 3 because the absences noted thereupon were caused by the ill health of Wilkes' wife.) Many other employees were discharged for ab- sences during Wilkes' 2-year tenure of employment (in- cluding absences caused by the employees' poor health) and some of the other dischargees had better attendance records than Wilkes. While Respondent did not know of Wilkes' alleged ac- tivity on behalf of the Union, it did know (at least by the time of the discharge) the real reason for his last absence. Wilkes had taken his 1978 vacation at some time before September. Then his father-in-law gave him and his wife a gift of an air trip from Cleveland to New Orleans and a 6-day river boat cruise on the Mississippi. Wilkes planned the trip and, as he admitted, told fellow employ- ees that he was going. He testified that he had intended to ask Zerby for time off to take the trip but did not get around to it. He left Cleveland with his wife on Septem- ber 8, and returned on Sunday, September 17. While he was gone, Respondent attempted to contact him by letter and telephone, but, of course, was unsuccessful. When he returned to work on September 25, he showed to his fellow employees, and Zerby, photographs taken during the cruise. As noted, he was fired for "excessive absen- teeism" at the start of the following day. Counsel for General Counsel would have the Board ignore Wilkes' final absence or treat it as some sort of period of convalescence. However, Respondent, as noted, introduced records of discharges for absenteeism of employees who were actually disabled. Here it is quite evident that Wilkes either fabricated the entire tricycle scenario or, at least, was not injured to the extent that he claimed. The hospital record of September 4 indicates the only prescription by the emergency room physican was: "ace (bandage), ice and elevate . . . aspirin for 2 days as needed." It says nothing about immobilization beyond 24 hours (certainly not for "2 or 3 weeks") and nothing about crutches. Indeed, it says nothing about any injury which would incapacitate an otherwise seemingly healthy 36 year old man, such as Wilkes. Wilkes first tes- tified that he asked that his "follow-up" appointment be made for September 18 when he contacted his doctor's office on September 5; then he stated that the reception- ist just gave him that date. He testified that he did not ask for an earlier appointment "simply because I didn't feel there was a lot he could do about the pain" (for which the hospital had prescribed a 2-day aspirin treat- ment). I find that the real reason for Wilkes' not asking for an appointment earlier than September 18 was that he did not plan to return to Cleveland until Sunday, Sep- tember 17, which is in fact what he did. I do not believe Wilkes stepped off his own front porch incapacitating himself for 21 days by contact with his child's tricycle, whether he became "entangled" or not, I believe the entire account was fabricated for one reason or another to "cover" his absence which he had 6 It is to be noted that Wilkes testified that he was able to extricate himself without assistance of his fellow card players. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD planned in advance. But even assuming he was injured to any extent, there is no reason to believe that the reason assigned at discharge, excessive absenteeism, was mixed with any motivation oriented in unlawful considerations. On September 26, Respondent was presented with evi- dence that a chronically absent, repeatedly forewarned employee had taken a river boat cruise while he was sup- posed to be incapacitated. Not illogically, Respondent concluded that Wilkes' last absence, whether caused by injury or irresponsibility, had brought his absenteeism record to the point of being excessive. I find that on the basis of this consideration, and this consideration alone, Respondent terminated Wilkes. Accordingly, I shall rec- ommend the complaint in regard to Wilkes' discharge be dismissed. C. The In-Plant Committee There is at Respondent's plant a committee of employ- ees which has existed since March 1977. At that time Re- spondent's president, Joseph DiGiacomo, drawing upon his experience with another employee, decided that such committee would be beneficial. According to DiGia- como, the purpose of the committee at Respondent's plant was: The program was designed to satisfy a number of specific issues. The first issue was to allow a number of employees in the hourly unit to come in contact with the management on a regular basis. Number two was intended to provide this experi- ence for a number of people so the program was designed to have a unit of membership, yet a lot of different participants. Number three, it was intended to provide a sampling of the ideas and thoughts of the employees of the group. It also was to allow them to raise certain issues, suggestions, submit sug- gestions, and allow us to communicate and convey information forward and backward. DiGiacomo specifically acknowledged that a purpose of the committee was so that the employees would have a vehicle to complain about conditions of employment. After deciding to establish the committee, DiGiacomo met with the employees to explain how it would work. DiGiacomo posted a memorandum to all hourly employ- ees after meeting with them. The memorandum, which apparently remained posted to the date of the hearing, states that the "Plant Representative Coordination," as the memorandum was entitled, was designed to provide "more readily accessible channels of communication." The memorandum establishes the number of "representa- tives" chosen from Respondent's four production depart- ments, the scheduling of one general and one depart- mental meeting each month at designated hours (during working time) for each department, the maximum term allowable for each representative to serve, the procedure for nominating employee representatives, method of counting the votes "with the assistance of the senior em- ployees," rules governing what happens in cases of ties, and limitation upon the amount of time an employee can serve as a representative. The memo concludes: "It is in- tended that this policy be included in the handbook at the next printing." According to undisputed testimony, the elections for representatives are conducted on working time, on bal- lots prepared, distributed, and counted by supervision (presumably with the assistance of the "senior employ- ee"). One complaint voiced by the employees during a 1978 departmental meeting was over a 1977 change in Re- spondent's vacation policy. Respondent had, prior to 1977, used the employees' dates of hire as their seniority date for computing vacation eligibility. At some time in 1977, Respondent changed the policy so that seniority credit did not begin to accrue until the beginning of the fiscal year following hire. According to employee wit- ness Jennifer Keysar, some representatives complained about the policy at one regularly scheduled committee meeting in October or November 1978. As a result of the complaints, the policy was changed so that all seniority dates were advanced to the first of the fiscal year pre- ceding, rather than following, hire for the purpose of computing vacation eligibility. Other complaints related in these meetings were answered with Respondent's jus- tifications, but there is no evidence that any other griev- ances were adjusted because of the complaints made at the meetings. Respondent denies that the committee established by DiGiacomo constitutes a labor organization within the meaning of Section 2(5) of the Act. In its brief Respond- ent states, "Thus, the committee does not exist for the purposes of engaging in collective bargaining and in fact does not engage in such bargaining. Nor, as a realistic matter, can it be said that the committee is 'dealing' with employees [sic] on subjects involving working condi- tions." Section 8(a)(2) of the Act provides that it is unlawful for an employer: . . .to dominate or interfere with the formation or administration of any labor organization or contrib- ute financial or other support to it. Section 2(5) of the Act provides that: The term "labor organization" means any organiza- tion of any kind, or any agency or employee repre- sentation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. [Emphasis supplied.] I need not decide whether the meetings of the repre- sentatives with Respondent constitute "collective bar- gaining." It is clear that the representatives all function as a "committee" pursuant to a "plan" in which employ- ees participate for the purpose of dealing with Respond- ent. The term "dealing with" in Section 2(5) of the Act has a broader connotation than "negotiating with" or "bargaining with" as Respondent argues. See N.L.R.B. v. Cabot Carbon Co., 360 U.S. 203 (1959). DiGiacomo's tes- timony clearly indicates that working conditions were STREAMWAY DIV. OF THE SCOTT & FETZER CO. 401 something the representatives were supposed to talk about in the meetings. Indeed, he testified that he elicited comments from each representative individually because some people were reluctant to speak out. It is further clear that DiGiacomo intended the members of the com- mittee to act in a "representative" capacity as his memo- randum clearly states at the point where it names them as such. It matters not that only one grievance, vaca- tions, was actually adjusted at the meetings. The vehicle, a labor organization within Section 2(5) of the Act, was established by Respondent for the ostensible purpose of securing adjustments in terms and conditions of employ- ment, and the inhibiting effect upon employees, and therefore the violation, is clear. On the basis of the above, I find and conclude that, as alleged in the complaint, Respondent has dominated and interfered with the formation or administration of a labor organization, its in-plant committee, and contributed fi- nancial or other support to it. Miller Materials Co., 244 NLRB No. 73 (1979); Kux Manufacturing Corporation and Continental Marketing Corporation; A Joint Employer, 233 NLRB 317 (1977); Ace Manufacturing Co., Inc. Divi- sion of A-T-O, Inc., 235 NLRB 1023 (1978). D. The PRADCO Inquiry During the summer of 1978, Respondent employed Personnel Research and Development Corporation (PRADCO) to perform an attitude survey of managerial personnel, office clericals, and production and mainte- nance employees. Terry Owen, who described himself as "one of the principals" of PRADCO, testified that the purpose of the attitude survey conducted among Re- spondent's employees was "to identify the problems, bar- riers, issues that might have been taking place within the Company that would make it in a less than effective place to work . . . a better place for its employees to work, so that what comes out of it at the end of the action plant is a better well-run company." According to the undisputed testimony of Keane, before the attitude survey was conducted, DiGiacomo called a meeting of all employees and told them that the PRADCO representatives would be contacting them and conducting meetings in small groups and that the em- ployees were to tell them of their problems because Re- spondent wanted to learn why the employees were not communicating and getting satisfaction. The attitude survey was conducted in the week of September 11 by Owen and William Snell who did not testify. The employees were interviewed in groups of five to seven by Snell and Owen. According to Owen, "We would tell them in effect that we are your spokes- men. Whatever it is that you would like to have heard by top management should be mentioned here." Owen testified that he gave employees absolute assurance of confidentiality. Keane and former employee Karen Dennis testified about meetings which they attended which were not the same ones. Neither could identify Owen or Snell, but both testified that as the meetings which they attended were breaking up and the employees were leaving the room, the PRADCO representatives mentioned a union. Keane testified, "I believe he asked what the people-I don't know how he phrased it, but something about the people being unhappy, and is that why we were getting a union in there." Also Keane testified he asked, "Is that the reason that we felt we needed a union was because of all the things that we have mentioned." Dennis testi- fied that during the meeting she attended, the employees listed several complaints about their terms and conditions of employment and "the man had asked us as we were going out the door was how we felt about a union." Dennis replied that, "I asked him why, and he said be- cause I told him I was in the Union, and I asked him why he asked, and he said nothing." Respondent denies that PRADCO is an agent of Re- spondent, and further denies that any interrogations oc- curred. Owen listed several questions which he asked the employees, but denied ever asking whether the employ- ees wanted a union or "any questions relating to union- ization." He further denied there was ever any discussion between himself and DiGiacomo about the subject of union organization as a part of the survey. I found Dennis and Keane credible in their testimony on this point and I find that some agent of PRADCO, whether Owen or Snell, asked the questions related by the two employees. It is not necessary that the employees be able to spe- cifically identify the agent of Respondent. Where it is clear that the individual to whom the critical remarks are attributed is placed in his position of apparent authority by Respondent, Respondent is responsible for his con- duct. Booth Services, Inc., 206 NLRB 862, 864-865, enfd. 516 F.2d 949 (5th Cir. 1975). Even if PRADCO did not rise to the level of an agent within Section 2(13), Re- spondent is still responsible for its conduct under Section 2(2) of the Act in the circumstances of this case. See Helena Laboratories Corporation, 225 NLRB 257 (1976); Aircraft Plating Company, Inc., 213 NLRB 664 (1974); and Broyhill Company, 210 NLRB 288 (1974). Accord- ingly, I find that Respondent is charged with responsibil- ity for the conduct of these individuals. The formalization of the meetings by Respondent, coupled with the instructions to attend and voice their grievances and feelings, demonstrates that the question- ing of the employees, at least in the two meetings de- scribed, was not an isolated matter or one the impact of which would be lost upon the employees. Under the to- tality of the circumstances, I find that the questioning of the employees at the culmination of the two meetings de- scribed bore a coercive impact which must be remedied by Board order. Accordingly, I find that Respondent, by the above questioning by its agent, has interrogated employees in violation of Section 8(a)(l) of the Act, and I shall recom- mend appropriate relief thereupon. E. Change in Vacation Policy As noted above, following complaints made at the 1978 committee meetings, Respondent, for purpose of computing vacation eligibility, advanced all seniority dates from the beginning of the fiscal year following hire to the one preceding it. General Counsel contends that the change in seniority computation constitutes the granting of a benefit and an independent violation of 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act. In so doing, General Counsel cites N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964), for the proposition that "the Act prohibits con- duct immediately favorable to the employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect."(Br. p. 11.) The "immediately favorable" nature is speculative7 there is no evidence of knowledge of a current organiza- tional attempt,8 the change was not made with any pur- pose9 "express" or otherwise, other than, presumably, to remedy the grievance; and there is no reason for con- cluding that the change would have the effect of inter- fering with "unionization" by the employees of Respond- ent. Accordingly, I shall recommend that this allegation of the complaint be dismissed. CONCLUSIONS OF LAW 1. Streamway Division of the Scott & Fetzer Corpora- tion is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Molders and Allied Workers Union, AFL-CIO, and the In-Plant Employee Representation Committee are labor organizations within the meaning of Section 2(5) of the Act. 3. By dominating and interfering with the formation of the In-Plant Employee Representation Committee, and giving support to it, Respondent violated Section 8(a)(2) and (1) of the Act. 4. By interrogating its employees about their union membership activities, and desires, by its agent PRADCO, Respondent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent did not violate the Act by discharging employees Linda Keane and Donald R. Wilkes. Having found that Respondent violated the statute, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Re- spondent has dominated and interfered with the forma- tion of the In-Plant Employee Representation Commit- tee, it will be recommended that Respondent disestablish it, withdraw and withhold all recognition from said labor organization, or any successor thereto, as the collective- bargaining representative of its production and mainte- nance employees. 7 Since all employees hired during any given year still have the same seniority date vis-a-vis each other, whether the change constitutes a bene- fit at all is questionable. s While one meeting had been called by the Union on September 18, there is no evidence of activity thereafter. I See the Board discussion of Exchange Parts Co. in Tonkawa Refining Co., 175 NLRB 619 (1969). Under the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' o The Respondent, Streamway Division of the Scott & Fetzer Corporation, Westlake, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering in the formation or ad- ministration of the In-Plant Employee Representation Committee or any successor thereto or giving support to such labor organizations. (b) Giving any other assistance or support to the In- Plant Representation Committee, or any other such labor organizations. (c) Interrogating its employees about their union activ- ities, membership, or desires. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other material aid or protection, or to refrain from any or all such activi- ties. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Withdraw all recognition from and completely dis- establish the In-Plant Employee Representation Commit- tee as the representative of Respondent's employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at its Westlake, Ohio plant, copies of the at- tached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by an authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."