P. R. Mallory & Co., Inc.

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flight Test Analysis Engi- neer Flight Test Engineer A Functional Test Engineer-- Electrical Functional Test Engineer-- Electronics Functional Test Engineer-- Hydraulic -Mechanical Functional Test Technician Functional Test Technician- Electronics Instrumentation Engineer A Liaison Engineer Manufacturing Research Engi- neer Manufacturing Technician Mechanical Design Engineer A Methods and Time Standards Engineer A Process Analyst "A" Process Engineer Production Design Engineer Production Methods Engineer Research Engineer Salvage Engineer Service Engineer A Standards Analyst "A" Standards Engineer Stress Analyst Stress Engineer Structures Engineer Tool Engineer Tool Research Engineer Tooling Standards Engineer Tooling Standards Technician Weight Analyst Weight Engineer Wind Tunnel Test Engineer Drafting Engineer A Draftsman A Engineering Assistant Engineering Contact Man Engineering Technician Flight Test Analyst A Laboratory Assistant Loftsman A Mechanical Design Draftsman Parts Catalog Analyst Parts Catalog Technician Process Control Analyst Research Technician A Technical Computer Technical Writer A Time -Study Man Tool Procurement Analyst P. R. MALLORY & CO., INC. and INTERNATIONAL UNION OF ELECTRICAL RADIO AND MACHINE WORKERS, CIO and EMPLOYEES REPRESENTATIVE COMMITTEE OF P. R. MALLORY & CO., INC. P. R. MALLORY & CO., INC. and INTERNATIONAL UNION OF ELECTRICAL RADIO AND MACHINE WORKERS, CIO, Petitioner . Cases Nos . 13-CA-1297 and 13-RC-2860. De- cember 18, 1953 DECISION AND ORDER On July 10, 1953, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal 107 NLRB No. 103. P. R. MALLORY & CO., INC. 439 of those allegations. Finally, the Trial Examiner found no merit in the Union's "Objections to Election" and recom- mended dismissal of its petition in Case No. 13-RC-2860. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below. 1. For the reasons indicated in the Intermediate Report, we reject the Respondent's contention that the ERC is not an existing labor organization within the meaning of Section 2 (5) of the Act, and we agree with the Trial Examiner that the Respondent violated Section 8 (a) (2) and (1) of the Act by its conduct with respect to the ERC, as detailed in the Inter- mediate Report.' 2. The General Counsel has excepted to the Trial Exam- iner's recommendation that the petition in Case No. 13-RC- 2860 be dismissed. However, the Union has filed no excep- tions, it is not now pressing its objections to the election, and it has recently filed another petition. More than a year has now elapsed since the holding of the election in this case. Under all these circumstances, no useful purpose would be served by considering and deciding the merits of the objections. Ac- cordingly, without passing on the merits of the objections to the election, we shall dismiss the petition in Case No. 13-RC- 2860, without prejudice to the processing or filing of timely new petitions by the Union, or any other labor organization. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, P. R. Mallory & Co., Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Dominating or interfering with the administration of Employee Representative Committee of P. R. Mallory & Co., iThe General Counsel excepts to the intermediate Report because of the Trial Examiner's failure to find, specifically, that the issuance and distribution of the Employee Handbook, referred to in the Intermediate Report, in view of its contents relating to the ERC, and the discussion of those contents with groups of employees, constitute independent acts of support within the meaning of Section 8 (a) (2) of the Act. As it is sufficient to support our Order that Section 8 (a) (2) was violated by the conduct of the Respondent in its totality with respect to the ERC, as set forth in the Intermediate Report, we find it unnecessary to de- termine whether the Respondent's conduct with respect to the Employee Handbook, standing alone, constitutes an independent violation of the Act, and hence we make no determination in this regard 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., or any other labor organization of its employees, and from contributing support to it, or any other labor organi- zation of its employee. (b) Recognizing Employee, Representative Committee of P. R. Mallory & Co., Inc., or any successor thereto, as the rep- resentative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Engaging in any like or related acts or conduct inter- fering with, restraining, or coercing its employees in the exercise of their right to self-organization and to bargain collectively through representatives of their own choosing. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from, and com- pletely disestablish, Employee Representative Committee of P. R. Mallory & Co., Inc., as the representative of any of its employees for the purpose of dealing with the Respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at its plant in Frankfort, Indiana, copies of the notice attached hereto marked "Appendix A." 2 Copies of such notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by a representa- tive of Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the petition filed in Case No. 13-RC-2860 be, and it hereby is, dismissed without prejudice. 2In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE hereby disestablish the Employee Representative Committee of P. R. Mallory & Co., Inc., as the represen- P. R. MALLORY & CO., INC. 441 tative of any of our employees for the purpose of dealing with us concerning grievances , labor disputes , wages, rates of pay , hours of employment , or other conditions of employment , and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , or in the exercise of their right to bargain collectively through representa- tives of their own choosing. All our employees are free to become , remain, or to refrain from becoming or remaining members of any labor organiza- tion except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. P. R. MALLORY & CO., INC., Employer. Dated ................ By.................................................... (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced , or covered by any other material. Intermediate Report STATEMENT OF THE CASE In, Case No 13-CA-1927 the issues for decision herein are: i 1. Did P. R. Mallory &Co., Inc., herein called Respondent , interfere with, restrain, or coerce employees in violation of Section 8 (a) (1) of the National Labor Relations Act, as amended, herein called the Act? 2. Has Respondent dominated and interfered with the administration of a labor organi- zation and contributed financial and other support thereto'? 3. Did Respondent " neglect, fail and refuse. . . to grant its employee Ethel Hooten a wage increase . . . because of her membership in and activities on behalf of the Union"? In Case No. 13-RC-2860 the issues for decision herein2 are : Did Respondent immediately prior to an election engage in specified conducts and, if it did , did such conduct substantially and materially affect the results of the election 'Other issues were disposed of at the hearing before the undersigned in Frankfort, Indi- ana, on May 11, 12, 13, 14, and 15, 1953 2 See footnote 1, supra. 3It is alleged that "within one week prior to the election . [ Respondent] during working hours called employees into the personnel office of the company in small groups and dis- cussed with them working conditions and unionzation , urging the employees to vote against the union in the forthcoming election. The aforementioned company agents also promised all of the employees a Christmas party if the union lost the election and further promised that the company would grant to the employees in Frankfort , Indiana, all of the benefits in existence in the Indianapolis plant of the company presently represented by IUE-CIO, Local 1001 The aforementioned activities by company agents occurred notwithstanding the en- forcement of a company rule against solicitation on company time." 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Interference, Restraint, or Coercion It appears from the record herein-that Ethel Hooten, a stamping machine operator, and O. E. Parnell, a supervisory employee, have been acquainted with one another for a con- siderable number of years (15 years), that during the time material herein they frequently discussed the International Union of Electrical Radio and Machine Workers, CIO, herein called the Union, and its activities and that, generally. Hooten voiced sentiments in favor of the Union and Parnell indicated he was opposed to the Union. Both Hooten and Parnell testified that these discussions were conducted in a jocular as well as in a serious vein. The incidents in which it is contended Parnell exceeded the permissible limits of Section 8 (c) of the Act (the so-called free-speech section of the Act) follow. Hooten testified that in August 1952 Parnell ... asked me what I would do if the Company, if a union got in the plant, and the com- pany moved out of town. He [Parnell] said "you don't need to work, but a lot of these girls do." Hooten testified that June Ruckel and Clara Jarboe were present when Parnell made the statement quoted above, and that the statement was made at "Mrs. Ruckel's machine." Hooten's testimony does not reflect whether this was a jovial or serious statement except for the following: Q. The ones [the conversations between Hooten and Parnell] that were serious, where did they take place9 A. It would beat the machine most of the time. Parnell's version of this incident follows. Q. Now, Mrs. Hooten has testified that along about August of 1952, you asked "what she would do if the union got in and the company moved out of town," saying to her, "You don't need to work, but a lot of the girls do." Do you remember a conversation in which that, or something like that, was said, Mr. Parnell? A. I remember something like that. Q. Could you tell us what was said - - First, can you tell us when the conversation took place? A. As I remember, it was at the noon hour. Q. Can you tell me where it was? A. At my desk. Q. At your desk? A. Yes, sir. Q. 'Can you tell me how she happened to be there? A. No, I do not know how she happened to be there. Q. Now, can you tell us, as nearly as you can, what that conversation was? A. As I remember, she asked me if I thought if the union came into the plant that they would move it out, and I told her that I didn't know, and I don't know just how the conversation went, but I remember that I said, if they did move the plant out, it probably wouldn't hurt her too much, but it might some of the other girls who didn't have another trade. Q. What do you mean, it wouldn't hurt her too much? A. Well, she is a beauty operator on the side. I think. Q. Well, was there anything else in the conversation? A. No, not that I recall. Parnell testified he did "not recall" a conversation with Hooten "near the work stations of June Ruckel and Clara Jarboe," and that he did not remember "ever talking to her at the place of work of Mrs. Ruckel and Mrs. Jarboe. In response to a question by the under- signed Parnell testified he never told Hooten "what might happen if the union got in." Neither Ruckel nor Jarboe testified in these proceedings. It is apparent from this record that Hooten and Parnell had many conversations in the plant on a variety of subjects, including the Lhion, and that the conversations concerning the Union were sometimes serious and sometimes on a jocular and kidding level. However, P. R. MALLORY & CO., INC. 443 accepting Hooten's testimony at face value, it is not readily apparent that in the above out- lined conversation Parnell intended to or purported to speak for Respondent and it is very doubtful that Hooten considered Parnell's comments a reflection of Respondent's policy. In any event, Hooten did not make a favorable impression upon the undersigned, her uncorro- borated testimony is not convincing, and where there are inconsistencies between the testimony given by her and that given by Parnell the undersigned credits the latter. Hooten testified that "at one time," Parnell "came up and told me that we didn't have very many at the meeting [union meeting], but now I don't know which one that was. I asked him how he knew," and he said "he kept count of us." Hooten further testified she had never seen Parnell "in the vicinity of the union meetings." Parnell testified: Q. Now, Mrs. Hooten also testified that you and she argued a lot about the union, and that once you said to her that there were not many at the union meeting; that you kept count of them. Did you ever say that to her? A. No. s s o a Q. Did you ever observe a union meeting since you have been employed at Mallory's? A. No, sir. Q. Did you ever keep count of the people in the meetings? A. No, sir. The undersigned believes Hooten's testimony concerning Parnell's comments about attendance at union meetings too limited in scope to warrant a finding thereon that Respondent interrogated employees concerning such matters, or that Respondent thereby created and fostered a belief in its employees that Respondent had the union meetings under surveillance, or that Respondent through Parnell engaged in surveillance of union meetings. The under- signed cannot ascertain from this record the details of the comments, i.e., whether there was more to the conversation, whether these are words taken out of context, whether these were in a serious or jocular vein. Furthermore, as noted above, the undersigned believes and finds that Parnell is a more reliable witness than Hooten. His denials are credited. Hooten testified that on one occasion when she and Parnell were talking about the Union, Parnell asked why she wanted to be mixed up with the Union and said he had attended a (foremen's) meeting and they wanted to know "about that Hooten woman" and "why they put up with me, if I was mixed up with the Union" and that he (Parnell) told them she (Hooten) was "a good worker and that was the only reason." Hooten did not indicate the details of this conversation, i.e., when and where it occurred, who was present, how the conversation developed, or whether it was in a jocular or serious vein. Parnell testified he did not have "that [the conversation noted immediately above] conver- sation with Mrs. Hooten" or "one with that substance in it" and that "that alleged conver- sation in the foremen's meeting" did not take place. The undersigned credits these denials by Parnell. Kathleen Decker testified that in September 1952, and shortly after she had passed out union leaflets, Parnell (who she described as "just a general flunkey," with "no supervisory powers at all") asked for a cigarette and said, "Why don't you get out of the Union? You are not going to win, and you will get fired as it is." Decker testified she responded, "You do the way you think, and I will do the way I think" and "You were one of the first ever to sign a union card, and when I hand the cards to Mr. Bernd[division manager],Iam going to put your card right on top." Decker further testified Q. You didn't think that you were going to be fired, did you? A. If the factory lives up to everything they said they did, I knew that I'wouldn't, although Paul [Parnell] told me that some of them, some of the foremen had asked Mr. Bernd if I was going to be fired, and Mr. Bernd says, no, he wanted to prove the factory could get along without a union. Parnell denied that the conversation alluded to by Decker occurred and denied that a conversation substantially like that took place and testified he did not recall ever having "bummed" a cigarette off of Decker. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decker impressed the undersigned as a truthful and credible witness, and if the other evidence involving Parnell was credited the undersigned would be inclined to find that by these remarks Respondent violated the Act by attempting, although unsuccessfully, to restrain or coerce employees in the exercise of their rights. However, as noted elsewhere herein, the other evidence against Parnell is not credited. Furthermore, Decker's testimony as a whole indicates that Parnell may not have been reflecting Respondent's attitude. In these circumstances the undersigned finds Decker's testimony, outlined above, insufficient to warrant a finding thereon that Respondent committed unfair labor practices. During the month of August 1952 the Union held a meeting at the Isaak Walton Lodge in Frankfort, Indiana, which was attended by about 20 people. The Isaak Walton Lodge is located near the Frankfort Golf Course and the road leading to the Lodge parallels, and is adjacent to, the golf course. Evelyn Michael testified that she accompanied Ethel Hooten to the meeting at the Lodge, that as they (Michael and Hooten) drove along the road leading to the Lodge they observed Roy Brogan, Bob Glass, Bud Grafton, and 1 other person whom Michael was not able to identify, playing golf.4 Michael further testified that upon arrival at the Lodge she and Hooten "sat in the car" for about 5 or 10 minutes and talked before going inside the lodge. Michael testified the golfers "were playing golf all through the golf links," that the 4 of them stayed fairly close together, that she did not see any of them sit down, and that while she and Hooten were sitting in the car the golfers were far enough away so that "we couldn't distinguish who they were." Michael further testified: Q. Was there any discussion in the meeting [the meeting at the Lodge] about the fact that those four men were outside? A. Not that I remember, no. and that she did not remember Hooten leaving the meeting which lasted between 2 and 3 hours. Hooten testified that she and Michael sat in the car about a half hour, that throughout this time she observed Glass and Frushour about 30 feet away talking and watching the cars drive in toward the Lodge, and that while she and Michael were sitting there she saw Brogan and Grafton go up and sit down on a hill and watch the parking lot. Hooten further testified that the presence of these golfers was discussed at the meeting and that she left the meeting to see if they were still there and observed Brogan and Grafton in the same position they had been about an hour and half earlier. Hooten further testified that the next day Brogan said "there wasn't very many at the union meeting." Glass, Frushour, Brogan, and Grafton testified they frequently constitute a foursome and play golf at the club in question. They denied that on the occasion in question they were doing anything other than playing golf and specifically denied the conduct attributed to them by Hooten. The undersigned credits their testimony. The undersigned believes the evidence adduced insufficient to sustain the allegations of the complaint to the effect Respondent engaged in surveillance. 8 (a) (2) There exists at Respondent's Frankfort plant an organization known as the Employee Representative Committee of P. R. Mallory & Co., Inc., herein called the E.R.C. A pamphlet entitled Employee Handbook ,5 distributed by Respondent in November 1952, among its Frankfort employees, with respect to this organization, states: Employee Representative Committee The purpose of the Employee Representative Committee is to: a. Represent the employees of the respective areas and bring the suggestions and problems of these employees to Management for consideration. 4Robert Glass is a factory foreman, Roy Brogan is an assistant foreman, Carol E. (Bud) Grafton holds a nonsupervisory salaried position, and Thomas A. Frushour, the fourth golfer, is the production control supervisor 5 An examination of the Handbook reveals its function as an introduction and reference book for employees in regulating their relationship to the job and Respondent. P. R. MALLORY & CO., INC. 445 b. Sit with Management periodically and assist in the formulation of the rules and regulations for the Division that apply to all or most of the employees. c. Use their knowledge of Management's plans and pass this information along to the employees who selected them as promptly and as accurately as possible. This Committee is composed of employees who are elected to represent various functional groups. Meetings are held periodically in which all matters affecting employees, such as rates of pay, hours of work and working conditions are discussed. From these discussions, approved working policies are issued by the Committee. These working policies then become the rules and regulations for such things as seniority, paid vaca- tions , leaves of absence, grievance procedures , etc. Get acquainted with your repre- sentative and solicit his assistance whenever you feel it necessary. Prior to the election of representatives Respondent 's personnel department prepares and posts notices concerning the election. The elections are held on company time and property and the meetings- (both those of the ERC and those where the elections are con- ducted) are presided over by Respondent's division manager. The ballots, prepared by Respondent, consist of a list of the employees in the department concerned and the em- ployees select from this list their representative for the ensuing period. The number of representatives from each department, the length of time that representa- tives may serve on the E.R.C., and the eligibility requirements to become members of the E.R.C. are determined by Respondent's division manager. Only persons working in the Frankfort plant are eligible to become members of the E.R.C. and current representatives are not permitted to succeed themselves. Supervisory personnel may, and do, serve as committee members. Respondent's division manager sets the time, date , and place for meetings of the E.R.C., presides at the meetings , prepares , reads , and distributes minutes of the meetings, and makes the final determination of what action, if any, that may be taken by the E.R.C. Repre- sentatives are paid their hourly rate of pay while attending E.R.C. meetings. There exists at Respondent's Frankfort plant a written procedure for the handling of grievances and the E.R.C. is designated therein as the representative of the employees in the processing of grievances--"problems, complaints, questions and suggestions." In addi- tion to employee grievances numerous matters, including seniority, wages, insurance, leaves of absence, shift schedules, and other conditions of work have been discussed at E.R.C. meetings and from these discussions various rules and regulations concerning such matters have been formulated and placed in effect. This record reflects that Respondent authorized newspaper advertisements in November 1952 in which it was stated, inter alia, "it is a fact that the employees in our Hoke Avenue plant [Frankfort plant] have an elected committee [the E.R.C.], representing all departments, to deal with management." The E.R.C. also makes the arrangements for and supervises the conduct of an annual picnic and an annual Christmas party. Respondent pays the expenses incurred for these functions and maintains for this purpose a special fund known as the Mallory Activities Fund--a separate bank account of profits from the sale of cigarettes, cokes, and milk from vending machines in the plant. Pursuant to the Board's Decision and Direction of Election issued in Case No. 13-RC- 2860 6 an election was conducted on November 19, 1952, to determine whether the employees desired the Union as their collective-bargaining representative. In November 1952, and prior to the election, the Employee Handbook heretofore mentioned, which was prepared with the aid and suggestions of the E.R.C., was distributed among the employees involved herein. Respondent's officials and supervisors called together groups of employees, explained the contents of the booklet, and gave each employee a copy thereof. Mrs. Faye Shipley, an employee, testified that Berton Purdy, Respondent's chief engineer, explained the booklet to her and to employees Mary Leahy and Anna Harlan and with respect to the E.R.C. said "we do not want a union" and indicated the E.R.C. could take care of employee problems (grievances) as well as the Union would do it. Purdy testified he did not recall explaining the booklet to Mrs. Shipley, that he did not remember saying and doubted that he said "we don't want a union," and that he did not remember talking about grievances at all or "I don't think I referred to grievances." Purdy further testified: 6101 NLRB No. 10. 337593 0 - 55 - 30 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . In the conversation I had with those groups that came to me there was no particular discussion of unions. I was trying to explain using the employees' handbook as a guide to over-all company's policies, and, well, what was contained in the book, and any conversations as to unions, to the best of my knowledge, were those that were brought up as incidental conversation by the people and they may have asked a question or so about them. Q. Do you remember any question about unions being brought up by Mrs. Shipley or Mrs. Shipley's group9 A. No, t can't identify any in that particular group, or, in fact, any particular group, I don't believe. Q. And, in the course of that explanation [regarding the section dealing with the E. R. C.] , did you -- strike that "did you" -- Do you recall comparing the functions performed by the committee with those normally performed by a union? A. No, I do not. Q. Would you say that you did not compare them, is that your positive testimony? A. I do not believe that I compared them; because I tried to, in my discussion of this book, omit any comparison between anything contained in here with the union as such. Leonard Gassaway, Respondent's division controller, distributed the booklet entitled Employee Handbook to a group of employees consistuig of Ethel Hooten, Tressie Duncan, Vivian Zink, and Cleota Lewis. Duncan testified that at this time Gassaway remarked that "the company was not ready for a union." Hooten testified Gassaway "said the management didn't want a union, and he said that the booklet would explain that the company would do as much for us as the union would, and he wanted to know why we wanted to pay three or four dollars union dues when the company would do as much ...." Neither Gassaway, Zink, nor Lewis testified herein. Twanette Thomas, an employee, testified she was told (the record infers at the time the booklet was distributed) by Robert Farrell, staff assistant to Respondent's division manager, that the purpose of the E.R.C. "was to benefit the employees, and was to assist the employees in bringing their troubles to the one elected to the committee, and they were to help settle the problems." She further testified that Farrell told her (Thomas did not remember when) that employees were to take their problems "to the one that was on the committee, and she was to go to the foremen, and if they can't be settled there, they were to go to the personnel manager with the foreman and the girl having the trouble." Farrell did not testify herein. There is no doubt that Respondent dominates and controls the E.R.C. However, Respondent contends that the E.R.C. is merely a conduit of communication between the employees and management and does not exist for the purpose of collective bargaining or of dealing (Re- spondent admits it exists for the purpose of discussing) with Respondent and is therefore not a labor organization within the meaning of the Act.7 The undersigned believes that this contention is without reality and substance and has an aura of "hair splitting" which may not be employed in construing and applying the Act. (See N.L.R.B. v. Metallic Bldg. Co., 204 F 2d 826 (C. A. 5).) It seems apparent from the record herein and the facts outlined above that the E. R. C. is more than a mere advisory committee by which Respondent obtains facts which it then uses in determining what policies to adopt and more than a mere conduitof communication. This E.R.C. discusses and advises with respect to matters affecting conditions of employment, and in a very real sense participates in the formulation and carrying out of policies con- cerning grievances, wages, hours of work, and other conditions of employment. Although Respondent controls the ultimate determination of these matters, which may affect the effectiveness of the E.R.C., such control does not relegate this committee to a mere instru- ment of reporting facts and deprive it in theory, or in fact, of its standing as a committee (in the very language of Respondent) "to deal with management." 7 The Act (Section 2 (5)), states: "The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan , in which employees participate and which exists for the purpose, in whole or in part , of dealing with employers concerning grievances , labor disputes, wages, rates of pay, hours of employment, or con- ditions of work." P. R. MALLORY & CO., INC. 447 8 (a) (3) It is Respondent 's policy to grant rate increases in pay within the rate range of the job grade and with this in mind Respondent periodically , usually every 90 days , reviews the performance of eligible employees and if satisfied therewith grants the appropriate wage increase. In accordance with the review procedure then in effect , Respondent on or about December 1, 1952, reviewed the performance of Ethel Hooten and refused to grant her a wage increase. Hooten was an outstanding and outspoken proponent for the Union during the period of time involved herein and there is no doubt from this record that Respondent was aware thereof. Concerning her failure to receive a wage increase Hooten testified her foreman, Orten Adair, said he didn 't approve an increase for her because of her "attitude " and that he did not explain what he meant by "attitude " although he did say "you are one of the best pro- duction workers we have got out here, but it is because of your attitude. " 8 Hooten further testified that she had not had "any difficulty with" her "fellow employees " or "any difficulty or disagreements with any of" her supervisors and that she had never held back in trying to perform her duties . However, she also testified that Adair "was always jumping on me about something" and the context of this testimony indicates Hooten meant that Adair fre- quently cautioned her about the manner in which she performed her assigned tasks. Adair testified Hooten required an undue amount of supervision , that she spent too much time out of the department without authority , that she bothered people going through the department , that she protested about the night operation of her machine, that she resented not being permitted to put her coat on until after the whistle blew, that she resented working on any machine other than the one assigned to her (the stamping machine), and that there were complaints about her using abusive language . Adair also testified Hooten was a satis- factory worker as long as her machine was in operation but that this machine was not in constant operation and that Hooten resented doing other work during these times and used these periods for visiting . This record corroborates Adair, at least to the extent of re- vealing that this machine was not in constant operation and that Hooten during these periods frequently left her place of work and engaged in conversations with other people. Further- more, Hooten appeared to be of a temperament likely to engage in the conduct attributed to her under the circumstances revealed by this record. Adair testified Hooten's attitude , as outlined in the paragraph immediately above, existed throughout September , October, and November , and that he talked to her at least once a week to try to get her to improve but she did not. Both Hooten and Adair testified that when Adair told Hooten she was not going to get an increase Hooten indicated she didn't expect one. They both testified that Adair stated the reason she didn't get an increase was because of her "attitude." Adair further testified that in view of Hooten 's activity on behalf of the Union and her remark that she did not ex- pect an increase he got the impression she did not expect an increase because of her union activities and that he made clear to her that such was not the case by explaining that she did not get an increase because of the factors noted above. Respondent follows a policy of posting bulletin board notices of job openings and accepts bids for those jobs from employees . In December 1952 Hooten bid successfully for one of these jobs and received a promotion to the next grade on December 12, 1952. Adair testified that the foreman in the department where the vacancy existed consulted him about Hooten's bid, and that he (Adair) expressed his opinion that he "thought maybe the change would do her good ; manybe [sic] her attitude would change, and I didn't want to stand in anybody's way in making more money or getting a better job." Other employees outstanding in behalf of the Union and known to be such , including Decker, received their increases in due course. While the matter is not free from doubt, in the light of the entire record herein, the undersigned is not convinced that a preponderance of the credible evidence establishes that Hooten failed to get a wage increase on or about December 1 , 1952, because of antiunion considerations. 8 This record reflects that quantity, quality , good housekeeping, attendance, job knowledge, and cooperation are considered in determining whether these periodic increases should be granted and that cooperation means ability to get along with other employees and a belief that the foreman is generally trying to do a fair and decent job, rather than having a com- plex that the foreman is doing them wrong. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RC Case On November 19, 1952, an election was conducted with the following results: Approximate number of eligible voters 284 Void ballots 0 Wtes cast for the Union 112 Votes cast against the Union 154 Valid votes counted Challenged ballots 266 As noted in footnote 3 it is alleged that despite enforcement of a company rule against solicitation on company time, the Company, immediately prior to the election, (1) called employees together in small groups and discussed with them working conditions and unioniza- tion, urging employees to vote against the Union in the forthcoming election; and (2) promised employees a Christmas party if the Union lost the election and further promised that the Company would grant to the employees in Frankfort all the benefits in existence in the Indian- apolis plant of the Company. The facts with respect to discussions with groups of employees are set forth above in the sections entitled "8 (a) (2)" and "Interference, Restraint, or Coercion" and will not be re- peated here. The Employee Handbook, discussed above, reveals that the Company has two rules con- cerning solicitations: (1) "Employees must refrain from... distributing literature or soliciting money without specific approval of the company"; and (2) "Mallory does not discourage your generosity toward worthy charities. To cut down on the number of times you are asked to give, and to help screen the unworthy causes, the company has an organization called the Mallory Employees Contribution Association which you are entitled to join. Incidentally there will be no charitable solicitations in our plant." There is no contention in these proceedings that these rules are per se violative of the Act. The only evidence of enforcement of these rules consists of the testimony of Bernd, division manager, that at several meetings of the E.R.C. inquiry was made as to whether money could be solicited for certain charities and to establish a fund "for Christmas gifts for supervisory department heads, etc.," and it was pointed out that it was against the Company's policy to peraut such solicitations. As noted above, there is evidence that the Company talked to employees about working conditions and indicated its opposition to the Union. However, as noted above, except for the possible threat to Decker, the undersigned is not convinced that the Company made any threats or promises of reward for a defeat of the Union in the election. It is believed that the single isolated threat to Decker (assuming a finding that such a threat was made) under the circumstances revealed herein is not sufficient to warrant a recommendation that the results of the election be set aside. Although, as noted above, the Company did talk to employees, during working hours, about working conditions and did indicate its opposition to the Union, it is believed that under the circumstances revealed by this record this conduct is not sufficient to warrant a recommen- dation that the election results be set aside. It is noted that these talks concerned primarily conditions of employment, including the existence and function of the E.R.C., existing at the Company's plant (and which had existed prior to the filing of the petition in the RC case) and were not made in such a manner as to indicate threats or promises for a defeat of the Union in the forthcoming election. The evidence does not establish that the distribution of the Employee Handbook, which was discussed in these talks, was timed so as to give the Company an opportunity to oppose the Union in the forthcoming election. The record reveals that "the preparation of this handbook had been in the mill for some time" (the record does not reveal how long but the inference from the entire record is that Respondent had been considering such a booklet before the filing of the petition in the RC case) and that "it was mentioned to the Employee Committee [the E.R.C.], about 4 or 5 weeks before it was dis - tributed" (distribution of this handbook began around the first week in November). There is no evidence that the Union asked for and was denied the privilege of talking to the employees during working hours (asked for and was denied an opportunity to address the employees under circumstances substantially the same as those existing when the Company talked to the employees). This record reveals that announcement of a Christmas party was made. But there is no evidence that the holding of such a party was conditioned upon the Union's losing of the P. R. MALLORY & CO., INC. 449 election. Furthermore, the party, and apparently the announcement thereof, followed a pattern set the year before. There is no evidence supporting the allegation that the Company promised that it would grant to the employees in Frankfort all the benefits in existence in the Indianapolis plant if the Union lost the election. Exhibits offered and received in evidence, and later withdrawn, reveal that the Union in newspaper advertisements claimed that their efforts (the Union's efforts) on behalf of employees in the Company's Indianapolis plant resulted in many gains not available to employees in Frankfort and in response thereto the Company, in newspaper advertisements, stated The fact is that you enjoy the same benefits as our Indianapolis employees in such things as ... vacation privileges--sick leave with pay--insurance plans--equal pay for men and women--equal distribution of overtime--seniority privileges--safety, sanitation and health conditions. and reveal that the Company in a letter dated November 18, 1952, stated that arrangements had been made so that "profit sharing at the Frankfort plant will be exactly the same as that established January 1, 1953, for the Indianapolis plant." However, at the hearing herein the General Counsel stated he was not contending that this was a promise of benefit because announcement of the "profit-sharing" plan, which had been made with the Union, had been made prior to the filing of the petition in the RC case. Furthermore, the withdrawal of these exhibits seems to infer that by this action the General Counsel and the Union were abandoning any contentions based upon the announcement of the Christmas party and announcements concerning benefits at the two plants. In view of the foregoing it is believed that the Union's objections to the election and its petition in Case No. 13-RC-2860 should be dismissed. (See Aerovox Corporation 102 NLRB 1526 ) Ultimate Findings and Conclusions In summary, the undersigned finds and concludes: 1. International Union of Electrical Radio and Machine Workers, CIO, and Employee Representative Committee of P. R. Mallory & Co., Inc., are labor organizations within the meaning of the Act. 2. By dominating and interfering with the administration of, and by contributing support to, the Employee Representative Committee of P. R. Mallory& Co.. Inc , Respondent has engaged in and is engaging in violations of Section 8 (a) (2) and 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices occurring in connection with the operations of Respondent's Frankfort plant, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.9 4. The evidence adduced does not establish that Respondent, independent of its domination and control of the E.R.C., interfered with, restrained, or coerced employees in the exercise of their rights guaranteed in Section 7 of the Act 5. The evidence adduced does not establish that Respondent engaged in an unfair labor practice by refusing to grant a wage increase to Ethel Hooten on or about December 1, 1952 6. The evidence adduced does not establish that Respondent engaged in conduct which raises substantial and material issues with respect to the conduct of the election held on or about November 19, 1952. [Recommendations omitted from publication.] 9Respondent, a Delaware corporation having a principal office in Indianapolis, Indiana, engages in the manufacture and sale of a wide variety of electronic and metallurgical parts, i.e., television tuners, timer switches for automatic washers, capacitors and resistors for radio and television, rectifiers, vibrators, contacts, special metal alloys, and resistance welding electrodes; dry batteries, meters, and hearing aids. In the course of its business, Respondent operates a plant located in Frankfort, Indiana, known as its Resistor Division, and receives at this plant annually materials , supplies , and equipment valued in excess of $500,000, of which more than 30 percent comes directly to the plant from outside of Indi- ana Annually products valued in excess of $450,000 are shipped from this plant to points and places outside of Indiana.