The Multi-Color Co.

THE MULTI-COLOR COMPANY 429 Since the violations of the Act which Respondent has committed are related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future may reasonably be anticipated from its past conduct, the preventive purposes of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 983 is a labor organization within the meaning of Section 2(5) of the Act. 2. Idaho Concrete Products Co. is an employer within the meaning of Section 2(2) of the Act. 3. All production, maintenance, and transportation employees of Respondent at its Pocatello, Idaho, plant, excluding outside salesmen, office clericals, profes- sional employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 983 was on September 6, 1957, and at all times thereafter has been and now is the ex- clusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on September 20, 1957, and thereafter to bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 983 as the exclusive representative of its employees in the aforesaid appropriate unit, and by unilaterally changing conditions of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, by threatening employees with economic reprisals in the event of union organization or victory in a representation election, and by preparing and sponsoring demands by employees for a new election, Re- spondent has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. By discriminating in regard to the hire and tenure of employment of Glen Scheu, thereby discouraging membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Multi-Color Company and Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and "Grievance Com- mittee." Case No. 7-CA-1629. December 16, 1958 DECISION AND ORDER On August 7, 1958, Trial Examiner Earl S. Bellman 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 there- from 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 as alleged in the complaint and recommended 122 NLRB No. 71. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' that these allegations of the complaint be dismissed. Thereafter;. the Respondent and the General Counsel filed exceptions to the In- termediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board. has delegated its powers in connection with this case to a three-- member panel [Chairman Leedom and Members Bean and Fanning].. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the basis of the entire record in this case, and pursuant to, Section 10(c) of the National Labor Relations Act, as amended, the, National Labor Relations Board hereby orders that the Respondent,, The Multi-Color Company, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Assisting, dominating, or interfering with the administra- tion of the "Grievance Committee," or the formation or administra- tion of any other labor organization of its employees, and from con- tributing support to it or to any other labor organization, and from otherwise interfering with the representation of its employees through a labor organization of their own choosing. (b) Recognizing the "Grievance Committee," or any successor thereto, as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organ- ization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as au- thorized in Section 8 (a) (3) of the Act. 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 completely disestablish, the "Grievance Committee," or any successor thereto, THE MULTI-COLOR COMPANY 431 as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at its plants in Detroit, Mich., copies of the notice at- tached to the Intermediate Report marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by its authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint, inso- far as they allege unfair labor practices not found herein, be, and they hereby are, dismissed. 1 In the notice, the words "The Recommendations of a Trial Examiner" shall be changed to "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER' STATEMENT OF THE CASE Upon a charge duly filed on April 3, 1957,2 by Truck Drivers Local Union No. 299, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America , herein called the Union , the General Counsel of the National Labor Relations Board,3 by the Regional Director for the Seventh Region (De- troit, Mich.), issued a complaint dated June 27, 1957, against The Multi-Color Company, herein called the Respondent , alleging that the Respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the complaint and notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices , the complaint alleged, in substance, that: ( 1) The Grievance Committee is a labor organization within the meaning of the Act and is composed of employees of the Respondent ; (2) the Respondent has recognized and bargained with the Grievance Committee as the exlcusive repre- i The caption of this case has been amended in two respects : (1) by adding thereto the "Grievance Committee," pursuant to a motion by the General Counsel, which was granted at the hearing herein without objection, and (2) by striking from the designation of the Charging Party the letters "AFL-CIO," which appeared after its name in the pleadings, because the Board has since been notified "by the AFL-CIO that it deems the Teamsters' certificate of affiliation revoked by convention action." See Ozark Hardwood Company, 119 NLRB 1130, and Shamrock Dairy, Inc., at at., 119 NLRB 998. 2 As shown by return receipt for registered mail, the Respondent received a copy of the charge on April 5, 1957. 3 The General Counsel and his representatives at the hearing will be hereinafter called the General Counsel ; the National Labor Relations Board, the Board. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative of certain of its employees, "including but not limited to, reproduction operators, helpers, technicians, and some messengers, packers, and trimmers"; and (3) the Respondent, in violation of Section 8(a)(1) and (2) of the Act, has, beginning about December 6, 1956, dominated and interfered with the formation and administration of, and has contributed financial and other support to, the Grievance Committee by acts and activities, "including but not limited to" the following, as specified in the language of the complaint: a. Forming and assisting in the formation of the plan of organization and operating procedures of the "Grievance Committee." b. Recognizing and dealing with the "Grievance Committee" as exclusive collective bargaining representative of its employees described heretofore. c. Participating in, paying all costs of, officiating at, directing, and domi- nating all meetings, proceedings, affairs, and other activities of the "Grievance Committee." On July 8, 1957, the Respondent filed its answer which, in essence, denies that the Respondent is engaged in commerce; denies that the Grievance Committee is a labor organization within the meaning of the Act; and denies that the Re- spondent has engaged in any unfair labor practices or any of the alleged acts or activities with respect to the Grievance Committee. In addition, the Respondent's answer alleges that the Respondent is engaged in "providing services which are not the subject of commerce"; that the Grievance Committee is not and does not purport to be "an exclusive representative of any" of the Respondent's employees for the purpose of bargaining with the Respondent in respect to rates of pay, wages, grievances, and other conditions of employment; that "the purpose of the com- mittee which was designated by its employees" is to bring to the Respondent's attention and to discuss "matters of mutual interest," without any power or au- thority "to enter into any agreement which would be binding upon" any of the Respondent's employees; and that the Respondent has had "no discussions of any kind whatsoever" with the Grievance Committee concerning "any matters affect- ing messengers, packers and trimmers, which employees have been members of a bargaining unit represented" by the Union. On July 24, 1957, the Regional Director duly issued and served on the Re- spondent and the Union an order rescheduling hearing from July 30 to August 13, 1957. Thereafter, on July 25, the Regional Director served by registered mail copies of the original notice of hearing, the complaint, and the order rescheduling the hearing, upon The Multi-Color Company Grievance Committee, herein called the Grievance Committee, upon The Multi-Color Company Appeal Board, herein called the Appeal Board, and upon Charles Miller, designated as "Member" of the Grievance Committee and of the Appeal Board. On August 8, 1957, the Regional Director issued another order further rescheduling the hearing from August 13 to August 20, and served by registered mail copies of said order on the Respondent, the Union, the Grievance Committee, the Appeal Board, and on Member Charles Miller. Pursuant to notice rescheduling the hearing, a hearing was held on August 20, 21, and 22, 1957, at Detroit, Mich., before me, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel and participated in the hearing. No appear- ance was entered for either the Grievance Committee or the Appeal Board, and the record shows that Charles Miller, who was present in the hearing room, chose not to enter an appearance, after I had specifically asked him if he wanted "to make a formal appearance for the committee.' 14 Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Before calling witnesses, the General Counsel asked that, with respect to the question of jurisdiction, "official notice" be taken of two Board decisions which will be adverted to later. The General Counsel also asked that "official notice of the record" in a previous complaint case involving the Respondent and the Union be taken by the Trial Examiner and the Board. The reason stated by the Gen- eral Counsel for this and similar requests, and the positions taken pertaining thereto, are discussed in a subsequent section of this report. On the second day of the hearing, during the General Counsel's case, a motion by the General Counsel, sup- ported by the Union and strenuously opposed by the Respondent, was grant,d which amended the complaint to allege that the Respondent had `on or about 4 Just prior to my above question, the General Counsel had pointed out that Miller was present in the hearing room and had been served with a copy of the complaint, and Miller had stated, "I was just asking my employer if there was anything I should say." THE MULTI-COLOR COMPANY 433 November 27, 1956, illegally interrogated employees Nancy Williams and Maries Swinyar in respect to activities on behalf of, and the membership of the Union." The Respondent thereafter was accorded reasonable opportunity to meet the added allegation and orally amended its answer to deny said allegation. At the close of the second day of the hearing, counsel for the Union stated that he would not thereafter be present at the hearing, that he desired to file a brief, and that he had no objection to the hearing proceeding without him. Upon con- cluding the taking of testimony, the General Counsel and counsel for the Re- spondent, as will appear more fully in a subsequent section of this report, each explained on the record what matters each wanted officially noted and their re- spective reasons for asking that such official notice be taken. A motion by the General Counsel, to which the Respondent had no objection, to conform the plead- ings to the proof as to formal and minor matters, was granted, as was also a motion, mentioned above in footnote 1, that "Grievance Committee" be added to the caption of all of the pleadings herein. The parties were afforded opportunity to argue orally and to file briefs or proposed findings of fact and conclusions of law, or both. No oral argument was desired. Pursuant to an extension of time for filing, duly granted by the Chief Trial Examiner, able and detailed briefs have been filed by the General Counsel, the Respondent, and the Union, all of which have been carefully considered. Upon the basis of the entire record in this case; such official notice as I believe can appropriately be taken under the unusual circumstances discussed subsequently herein; my observation of the demeanor of the witnesses at the hearing; my analysis of the testimony and the documentary evidence herein; and my consideration of the various positions taken by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, The Multi-Color Company, is a Michigan corporation. It has its principal office in Detroit, Mich., and has other installations located in the Metropolitan Detroit area. The Respondent is engaged in the reproduction of plans, drawings, specifications, and other documents . During the calendar year 1956, the Respondent admittedly received directly from points located outside the State of Michigan, raw materials purchased from various sources and valued in excess of $200,000, which were consumed in its aforesaid operations. Also during the calendar year 1956, the Respondent admittedly transmitted to customers located outside the State of Michigan from its place of business in the Metro- politan Detroit area, reproductions of plans, drawings, specifications, and other documents, receiving from such out-of-State customers more than $55,000 for its services in making such reproductions. In addition, during the calendar year 1956, the Respondent received more than $200,000 for services in producing reproduc- tions for customers located in the State of Michigan who produce or handle goods valued at more than $55,000 to points outside the State of Michigan. The Respondent contends that it is not engaged in commerce but is rather pro- viding services which are not subject to commerce. In an unpublished Decision and Direction of Election in The Multi-Color Company, Case No. 7-RD-191, issued on February 3, 1955,6 the Board found that the "Employer is engaged in commerce within the meaning" of the Act. Later that same year, in its decision of November 16, 1955, in The Multi-Color Company, Case No. 7-CA-1243, wherein no issue was raised concerning jurisdiction, the Board again asserted juris- diction.7 Everything considered, I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction.8 It should be noted that allegations in the charge, which had not been reflected in the complaint as originally issued, included that on or about November 30, 1956, the Respond- ent had "interrogated its employees concerning their affiliation, sympathies, and activities on behalf of" the Union, and that the Respondent had "threatened said employees with loss of employment, and otherwise harassed them in order to discourage their membership in or activities on behalf of" the Union. 0 This earlier decertification case will hereinafter be referred to as Case No. 7-RD-191. 7 See 114 NLRB 1129, 1138. In this earlier complaint case, which will hereinafter usually be referred to as Case No. 7-CA-1243, the nature of the business appears to have been the same, and the commerce facts set out very similar to, although somewhat less extensive than, the admitted commerce facts in the instant matter. 8 See Jonesboro Grain Drying Cooperative, 110 NLRB 481, 483, 484. 505395-59-vol. 122-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED 9 Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is admittedly a labor organization within the meaning of the Act. At the time the Union filed the charge in the instant matter, it was affiliated with the American Federation of Labor-Congress of Industrial Organizations, but the Board, as indi- cated above in footnote 1, has since been notified that the AFL-CIO deems that the Teamsters' certificate of affiliation has been revoked. In its decision of No- vember 16, 1955, in Case No. 7-CA-1243, the above-mentioned former complaint case in which the Union had filed the charge, the Board foundio that for "a period of about 8 or 9 years" the Union had been recognized by the Respondent as the exclusive bargaining representative of employees in a unit the appropriate- ness of which "the parties do not dispute," and that "since its initial recognition [the Union] has negotiated successive annual contracts with the Respondent," the last of which expired on November 15, 1954, covering the employees in said unit, which the Board found to be an appropriate unit, and which it defined as con- sisting of: all the Respondent's drivers, foot and bicycle messengers, and trimmer shippers, employed at Respondent's Detroit, Michigan, establishments, ex- cluding office employees and clerical employees, confidential employees, pro- fessional employees, guards, and supervisors as defined in the Act. It should be noted that the developments upon the basis of which the Board, in its above decision in Case No. 7-CA-1243, found that the Respondent had en- gaged in activities violative of Section 8(a)(1), (2), and (5) of the Act, began in November 1954 in connection with negotiations between the Respondent and the Union with respect to. reaching a new agreement.. And it should also be noted that the above-defined appropriate unit, the appropriateness of which has not been questioned by any of the parties in the instant matter, had also earlier in 1955 been found the appropriate unit in the Board's decision of February 3 in Case No. 7-RD-191,11 a case arising from a petition to decertify the Union, which had been filed on November 26, 1954, and after which the Respondent did not negotiate further with the Union. III. Preliminary problems as to what constitutes the background of events in issue herein Under the unusual circumstances of this case, difficult and complicated prelimi- nary problems arise in determining what can be said to constitute background having significant bearing on events which are in issue in the instant matter. To assist in orientation to these preliminary problems, it may be well to indicate briefly the general nature of the events giving rise to the issues herein, which cover only a relatively brief period. These events had their inception in developments surrounding the separation on November 27, 1956, of Marjorie Mier, an office employee who had worked a long time for the Respondent, and in the unrest and organizational activity among em- ployees of the Respondent which followed the separation of Mier. The alleged interrogation of the two employees, which was put in issue by the amendment to the complaint during the hearing, occurred after the separation of Mier, when the employees generally did not know why Mier had left and were upset by a sense of uncertainty pertaining thereto, and a meeting of employees, including supervisors, called by the Respondent on December 6, 1956. At the beginning of this meeting, Vice President Albert Fuchs, who left the meeting before it was over, explained that Mier had voluntarily left her employment. During this meeting on December 6, there was also discussion of several other matters, including some grievances and the desirability of the employees having some type of organization. Shortly after this meeting, it is evident that feelings of anxiety and insecurity among employees were relieved; that organizational activity on behalf of the Union Discussion of the Grievance Committee, the status of which as a labor organization is sharply in dispute, will be reserved for a subsequent section of this report. 30 See 114 NLRB 1129 at page 1130. 11 While the language used is not quite identical with that appearing in Case Nn. 7-CA-1243. as quoted above, there is no doubt that the unit found in both cases is the same. Incidentally the number of employees in this unit has apparently not varied much during the past several years, ranging from approximately 26 to perhaps as many as 29 or 30 employees. THE MULTI-COLOR COMPANY 435 ceased; and that the Grievance Committee and its related Appeal Board came into existence during December 1956. in asking at the opening of the hearing that the Trial Examiner and the Board `'tale official notice of the record in the proceeding in 7-CA-1243," General Coun- se, stateu that tie so requested to enable the Trial Examiner and the Board ' to have a better understanuing of" the facts to be presented in the instant matter ann "to better evaluate" the Respondent 's "conduct in the instant case in relation to the conduct which is set forth in the record in the preceding case." When it became clear that the General Counsel wanted official notice taken both of the record in Case No. 7-CA-1243 and of the Board's decision therein, I indicated that it seemed to me that if the General Counsel wanted " anything particularly noted" in a record as long as the 302-page one in said former complaint case, he should indicate such matters specifically , and explain . what kind of inferences he contended should be drawn . The General Counsel then indicated that he would eventually "point out the specific sections of the record," and also moved that I take official notice of the board's decision in said case . The Respondent submit- ted that the matter was "not material at all." I stated that I would take official notice of the Board 's decision to the extent that the General Counsel would "show me how it has bearing." At the close of the hearing, I reminded the General Counsel that I definitely wanted "an indication from him as to exactly what parts of the transcript of the previous hearing" he wanted me to note and his reasons . The General Counsel replied that he would do so in his brief . This statement led to a discussion by the Respondent of its right to file what would amount to a reply brief and to point out therein matter which the Respondent might want officially noted . The Gen- eral Counsel thereupon objected "to the Trial Examiner noticing any other record at any time subsequent" unless a request for such notice was made , on the record during the hearing. After carefully canvassing the problem thus raised, it was eventually decided, in view of the lack of any provision in the Board's Rules and Regulations for the filing of reply briefs , that fairness could be served, and the parties would not need to be left in the dark as to each other 's basic positions, it both the General Counsel and the Respondent would state on the record ,12 with- out prejudice to detailing more specifically thereafter in the briefs, the essential nature of what each was contending on the basis of what each wanted officially noticed. Pursuant to the foregoing procedure, the General Counsel contended essentially that official notice of the record and the decision in Case No. 7-CA- 1243 would demonstrate a similarity between the former complaint case and the case at bar in the "pattern of conduct and events ." The General Counsel pointed out that in Case No. 7-CA-1243 there had been increased activity by the Union due to con- tract negotiations ; that the next step had been a meeting of the employees of the Respondent at which Fuchs spoke; and that thereafter a committee had been formed with the result that the Union "was out of the scene ." As to the general pattern in the instant matter, the General Counsel pointed out that there was increased union activity "due to Mrs. Mier's departure"; that the next step was again a meeting of the employees at which Fuchs spoke; and that again "a committee results" and the Union goes out of the picture. Essentially what the Respondent asked that "judicial notice" be taken of, and considered as "background as to the inquiries which were made by management" of two employees in November 1956, are petitions filed in two representation pro- ceedings and supporting signatures of practically all of the employees in the bar- gaining unit, seeking decertification of the Union which had for many years been recognized as the bargaining representative for that unit . According to the Re- spondent, such documents filed in these two former cases, one of which was the earlier-mentioned Case No. 7-RD-191, in which the Board's decision issued on February 3, 1955, and the other of which will subsequently be further identified, should be taken into consideration in conjunction with two exhibits received in evidence in the hearing before me, said exhibits containing signatures, apparently affixed during August and October 1956, by most of the employees in said appro- priate unit, and stating that the signing employees did not desire to have the Union represent them. The Respondent's brief relies on, but does not amplify, the foregoing position taken at the hearing as to official notice. The brief filed by the General Counsel essentially stresses, without giving any specific citations to the record in Case No. 7-CA-1243, "a recognizable similarity" between that case and the instant matter, "As has been noted earlier, counsel for the Union by that time had excused himself from further oarticination in the hearing. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contending that both cases show "intensified Union activities, a meeting of em- ployees, establishment of an e. r. p. and the cessation of Union activity," and that the respective "meetings occurring in the context they have, must perforce repre- sent the Employer's customary response to an employee crisis." It should also be noted that the Union's brief, in discussing "all of the cir- cumstances" with respect to which the alleged interrogation of Swinyar and Wil- liams, two drivers in the unit which the Union had for years represented, should be considered, states that it occurred "against a background of a previous unfair labor practice charge sustained by the Board and which at the present time is in the Court of Appeals for the Sixth Federal Circuit for enforcement." In addition, it should be kept in mind that the situation described in the foregoing quoted state- ment from the Union's brief was also true at the time of the hearing before me, when confused, inconsistent, and conflicting testimony discussed below was given, and that it also continued to be true at the time the briefs herein were filed. On December 20, 1957, while I had the foregoing positions of the parties with respect to official notice under advisement, the United States Court of Appeals for the Sixth Circuit entered an order denying enforcement of the Board's order in Case No. 7-CA-1243,13 on the ground that it appears that "the findings of the Board" that the Respondent violated Section 8(a)(2) and (1) of the Act by "sup- porting and assisting an employee committee," and 8(a)(5) and (1) of the Act because it "had refused so to bargain" with the Union, "are not supported by substantial evidence on the record considered as a whole." The aforesaid order sets out no recital of facts and hence affords no clue as to what facts the Court of Appeals for the Sixth Circuit deems to be established "by substantial evidence on the record considered as a whole." After careful study of the foregoing development in the light of various deci- sions to which we will turn presently, it appeared that problems confronting me in the instant matter might be further affected by whether or not the Board should decide to petition the Sixth Circuit for reconsideration of its order, or to petition the Supreme Court for certiorari in the case. The time for filing such petitions having now elapsed without the Board choosing to take either of the aforesaid actions, it is now clear that the order of the Sixth Circuit will stand without modi- fication or reversal. And it seems equally clear that the question of the effect of said order on my determinations in the instant matter must be given careful con- sideration. With respect to this question, to which we next turn, none of the parties has indicated any desire to supplement, amplify, or modify its position with respect to official notice. An understanding of the discussion to follow about the impact of the order of the Court of Appeals for the Sixth Circuit, on the question of official notice with respect to the record and the decision in Case No. 7-CA-1243, will be facilitated by a careful reading at this point of the Board's decision therein (114 NLRB 1129), and by comparing and contrasting the findings and conclusions of the Trial Exam- iner in that case with those of the Board. This is so especially with respect to the meeting on November 22, 1954, of employees in the unit represented by the Union, at which Vice President Fuchs spoke. It is that meeting, attended by super- visors and held in the Respondent's cafeteria after working hours, which the Gen- eral Counsel visualizes as paralleling the meeting held on December 6, 1956, in the case at bar. Since the purported similarity in the context of these two meet- ings is so central to the General Counsel's "customary response" theory about the like course of conduct followed by the Respondent in the two cases, certain points about the meeting of November 22, 1954, should be noted particularly. In connection with his findings as to what happened at said meeting, the Trial Examiner in Case No. 7-CA-1243 states, at footnote 7 on page 1139, that the "testimony concerning this meeting is hazy and lacking in detail"; that his find- ings of fact result from his "attempt to reconcile the evidence and determine what probably occurred"; and that said findings "are based upon a consideration of the entire record and observation of the witnesses." During one stage of this meet- ing, three women employees, one of whom was the same Marie Swinyar who is involved in the alleged interrogation in the instant matter, constituted themselves the Employees Committee. It seems apparent, from a detailed appraisal of his report as a whole, that the Trial Examiner viewed this meeting of November 22 as consisting largely of a discussion of grievances, but with enough other aspects to justify a finding of assistance to said Employees Committee. However, the Trial Examiner did not find that the evidence as a whole was sufficient to warrant a find- ing that the Respondent had refused to bargain with the Union. 13 See N.L.R.B. v. The Multi-Color Company, 250 F. 2d 573 (C.A. 6). THE MULTI-COLOR COMPANY 437 By contrast, the Board found not only assistance to the Employees Committee, but also refusal on the part of the Respondent to bargain with the Union. The Board based its position to a considerable extent on events at the November 22 meeting, the findings as to which it supplemented as to details and as to emphasis, stating, in footnote 1 on page 1131, that with respect to what occurred at said "meeting of the employees, we base our findings of fact upon our independent consideration of all relevant testimony and the record as a whole." The Board further found "no merit in the Respondent's argument, which the Trial Examiner apparently has accepted, that the November 22 meeting of the Respondent's offi- cials with practically all of the employees assembled was no more than a good- faith attempt to handle grievances." The Board also held that there could "hardly be a more persuasive indication of an intent to refuse to accept the statutory obli- gation" to bargain with the Union "than contemporaneous conduct aimed at estab- lishing another union." 14 Viewing the decision in Case No. 7-CA-1243 as a whole, it is evident that the ultimate findings and conclusions of both the Trial Examiner and the Board with respect to unfair labor practices, while differing in tone and extent, stem in large part from the meeting of November 22, 1954. It is also evident from the briefs filed with the Sixth Circuit in 250 F. 2d 573 that the matter was submitted essen- tially on questions as to whether or not there was substantial evidence to support the Board's findings of violations of the Act and its order. In this connection, it should be noted that the initial section of the Respondent's brief, entitled "Counter- Statement of Facts," asserts that the statement of facts in the Board's brief "is accurate but insufficient to clearly present the fundamental issues." The Respond- ent's brief thereafter, in a section entitled "The November 22 meeting," spells out findings in detail about this meeting which appears to cast the meeting in a some- what different light from that of the briefer findings of the Board and its Trial Examiner. It will be recalled that the only explanation the Sixth Circuit gave for its failure to enforce the Board's order was that it was not supported "by sub- stantial evidence on the record considered as a whole." The foregoing sufficiently poses problems confronting me in determining what in Case No. 7-CA-1243 has been established, especially with respect to the No- vember 22 meeting, which has significant bearing as background in the instant matter. To begin with, I am satisfied, for reasons with which it is unnecessary to burden this report, that where in a decided case the Board and its Trial Ex- aminer are not in agreement, as occurred in Case No. 7-CA-1243, any Trial Examiner in a subsequent case, upon which such decided case has bearing, un- doubtedly is bound by the findings and conclusions of the Board as to the facts and the law in such earlier case, rather than by any divergent holdings of the Trial Examiner in said case. On the other hand, it seems equally clear, under the decision of the Supreme Court in Universal Camera,15 that a reviewing cir- cuit court of appeals may consider the divergent holdings of a Trial Examiner in determining whether or not the "substantial evidence" standard has been met, espe- cially where the element of credibility is involved, as it apparently was in Case No. 7-CA-1243. In any event, I am convinced that, under all of the circumstances now prevailing, it is not incumbent upon me to consider the record as a whole in the former complaint case, a thing which evidently has been done three times al- ready, first by the Trial Examiner therein, then by the Board, and finally by the Sixth Circuit Court, and with three definitely different results. Accordingly, I have decided not to take any notice whatsoever of the record itself in Case No. 7-CA-1243. With respect to the question of what now remains of the Board's decision of November 16, 1955, of which it would be appropriate for me to take official notice, in view of the decision of the Sixth Circuit on December 20, 1957, problems of a more difficult nature are presented. While diligent search has not revealed prece- dent which seems squarely in point, it would be well now to discuss certain recent decisions which seem to fall on various sides of the problems here presented. In a decision issued on December 13, 1957, in Insurance Agents',16 the Board stated that, in dismissing the complaint in that case, "the Trial Examiner was under the erroneous impression that he was not bound by the Board's decision" 14 See 114 NLRB 1129 at page 1132. As to the fact that such conduct took place 2 years prior to events in issue in the instant matter, see Andrew Brown Company, 120 NLRB 1425, concerning the use of "background in evaluating conduct engaged in within the 6-month period" established by Section 10(b) as "a statute of limitations." 'b See Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496-497. 1e Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Com- pany of America), 119 NLRB 768. -438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Textile Workers Union.17 The gist of the crucial Board holding in Textile Workers Union, which was involved, was that by engaging in unprotected harass- ing tactics during the course of negotiations a union had evidenced failure to bar- gain in good faith. In spelling out the duty of a Trial Examiner in such circum- stances, the Board used the following language, which it has since repeated in a subsequent decision discussed below: It has been the Board's consistent policy for itself to determine whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise. But it is not for a Trial Examiner to speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views. On the con- trary, it remains the Trial Examiner's duty to apply established Board prece- dent which the Board or the Supreme Court has not reversed. Only by such recognition of the legal authority of Board precedent, will a uniform and orderly administration of a national act, such as the National Labor Relations Act, be achieved.'S [Emphasis supplied.] In a decision issued on December 14, 1957, in Herbert A. Spencer et al. d/b/a U & Me Transfer, 119 NLRB 852, involving the question of whether or not rail- road workers are employees within the meaning of the Act, the Board decided to acquiesce in a decision of a circuit court as to which it had "not filed certiorari proceedings" and within whose "geographical jurisdiction" the case arose, giving the following explanation of its action, in footnote 11 of said decision: Seaboard, FEC, and their respective employees are subject to the provisions of the Railway Labor Act. Notwithstanding the recent adverse decision of the Court of Appeals for the Fifth Circuit in W. T. Smith Lumber Company v. N.L.R.B., 246 F. 2d 129, Chairman Leedom and Members Murdock and Bean are still of the view, previously maintained by them in Paper Makers Importing Co., Inc., 116 NLRB 267, and in W. T. Smith Lumber Company, 116 NLRB 1756, that railroad workers are not employees within the meaning of the Act and thus are not subject to inducement or encouragement in the statutory sense. However, as the Board, for reasons sufficient to it, has not filed certiorari proceedings for review, Chairman Leedom and Members Mur- dock and Bean acquiesce in the court's decision and here apply the court's view, the instant case falling within the geographical jurisdiction of that court. Member Jenkins, however, is in agreement with the court's view in the W. T. Smith Lumber case. In a decision issued on February 13, 1958, in Novak Logging Company, 419 NLRB 1573, where the issue which was presented involved the Board's Midwest Piping doctrine, the Board disagreed with the Trial Examiner, who had not fol- lowed two Board decisions which, as the Trial Examiner stated in his Intermedi- ate Report, "were denied enforcement in the courts"; as to which "the Board did not request certiorari"; and concerning which he therefore assumed "that the Board has accepted such decisions as the law on the facts thereof." Concerning the foregoing position of the Trial Examiner, the Board had this to say in its Novak Logging decision: The Trial Examiner improperly "assumed," because the Board did not seek Supreme Court review in the two cases he cited which denied enforcement of the Board's orders, that the Board has "accepted" these court decisions "as the law on the facts thereof." 19 This proposition of the Trial Examiner is fundamentally in error. The Board's reasons for not requesting review may be, and often are, entirely unrelated to its opinion of the broad question of law involved; and no inference can be drawn that the Board has accepted an adverse court decision from the mere failure to petition for certiorari in the 1S Textile Worker8 Union of America, CIO, et at. ( Personal Products Corporation), 103 NLRB 743. In a footnote at this point, Member Murdock explained why he was : . An full agreement with the views just stated as to the oblig-ion of Trial Examiners to follow Board precedent despite conflicting court precedent, it being the sole prerogative of the Board to decide when to reverse its own precedents and to adopt and apply contrary court decisions. 19 At this point in its decision, the Board cites the court decisions involved and explains its position with respect to them. THE MULTI-COLOR COMPANY 439 case. The guide rule for the Trial Examiner has been stated in detail in a recent Board opinion: At this point in its decision in Novak Logging, the Board quoted in full the lan- guage from its decision in Insurance Agents' which has been set out above. On February 27, 1958, the Board issued its Third Supplemental Decision and Recommendation in Moss Planing Mill Co., 119 NLRB 1733, which had for the second time been remanded to the Board by the United States Court of Appeals for the Fourth Circuit. It, appears that, contrary to the Board, the Fourth Circuit Court directed that the, money "received under the North Carolina Workmen's Compensation Act be deducted as income from [the] gross back pay" of an em- ployee. The Board states that in view of its decision •'to accept the remand, the Board recognizes the court's views as binding upon it for the purpose of disposing of this case." But the Board also states that it does not, "by virtue of this deduc- tion, signify agreement with the court's determination that workmen's compensation awards are deductible from gross back pay." From the foregoing decisions it would appear that, until a given point of law has been determined by the Supreme Court, the Board reserves to itself the sole prerogative of deciding when and with respect to what contrary circuit court deci- sions it will reverse or modify its own precedents and that it will likewise deter- mine when, without abandoning its own legal position, it will acquiesce in a con- trary court determination in a given case. Thus, in Moss Planing, having decided to accept the remand, the Board recog- nized the contrary view of the circuit court on a legal matter as binding upon it for the purpose of disposing of that case. Similarly, in U & Me Transfer, the Board decided for that case to acquiesce to a contrary position of the circuit court within whose geographical jurisdiction the matter falls with respect to a question of law about which the Board had not chosen to file certiorari proceedings. But in Novak Logging, which does not fall within the geographical jurisdiction of either of the circuit courts whose adverse decisions the Trial Examiner assumed the Board accepted "as the law on the facts thereof," the Board asserted "no infer- ence can be drawn that the Board has accepted an adverse court decision from the mere failure to petition for certiorari" because the Board's reasons for not requesting review may well be "entirely unrelated to its opinion of the broad ques- tion of law involved." And finally, from the above-quoted section of its Insurance Agents' decision, which the Board itself later quoted in its decision in Novak Logging, it is manifest that the Board, in the absence of a ruling otherwise by the Supreme Court, reserves to itself alone any determination to acquiesce in a contrary view of a circuit court; that the Board expects its Trial Examiners to avoid speculation among conflicting decisions by applying "established Board prece- dent which the Board or the Supreme Court has not reversed"; and that the Board takes the foregoing position because "a uniform and orderly administration of a national act," such as the Board administers, can be achieved only by such recog- nition of "the legal authority of Board precedent." The situation confronting me clearly involves an adverse decision respecting which the Board has not chosen either to seek certiorari, or reconsideration on the part of the circuit court within the "geographical jurisdiction" of which the instant matter falls. But this situation does not involve a remand which the Board has accepted, and the Board has not taken any affirmative action to indicate its acquiescence in the decision of the Sixth Circuit Court in 250 F. 2d 573. Further, it is obviously the Board's policy, absent a Supreme Court ruling, to reserve to itself any determination to acquiesce in a contrary view of a circuit court on a matter of law. It is thus obvious that if what is involved in the adverse decision of the Sixth Circuit Court is actually a matter of law, within the meaning of the above-discussed four decisions of the Board, I have been instructed by the Board that I am not to assume that its failure to petition for certiorari indicates that the Board has accepted said adverse court decision "as the law on the facts" in Case No. 7-CA-1243, but that I am rather to follow the Board's decision, despite the decision of the circuit court having geographical jurisdiction to the effect that the Board's findings of violation "are not supported by substantial evidence on the record considered as a whole." In my opinion, when considered in its total setting, the substantiality-of-evidence question involved in the adverse decision of the Sixth Circuit Court is an essen- tially different type of legal question from the four questions of law involved in the Board's decisions in Moss Planing, U & Me Transfer, Novak Logging, and Insurance Agents'. As the above review of said decisions shows, the question of law at issue in each of those decisions was of a type which can arise again in other cases. Hence, the determination of any such a question creates a potential 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precedent, and it is "the legal authority of Board precedent" with respect to such "broad" questions of law, as I understand it, which is involved in the Board's insistence that "a uniform and orderly administration" of the Act can be achieved only by recognition of "established Board precedent which the Board or the Supreme Court has not reversed." By contrast, determinations involving substantiality of evidence on the record considered as a whole are essentially unique and unrelated determinations, arising from the never-to-be-repeated evidentiary patterns and problems of individual cases. Further, it would appear, from decisions of the Supreme Court, that the Court visualizes the statutory scheme as vesting the courts of appeals with final authority in determining such matters, and that the Court views them as matters in which certiorari is not to be granted. With respect to the foregoing, the last two para- graphs of the decision of the Supreme Court in Pittsburgh Steamship,20 on a writ of certiorari to the Court of Appeals for the Sixth Circuit, are so instructive that I am quoting them herewith in full: Were we called upon to pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals, we might well support the Board's conclusions and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders. "The jurisdiction of the court [of appeals] shall be ex- clusive and its judgment and decree shall be final, except that the same shall be subject to review . by the Supreme Court of the United States upon writ of certiorari. . . Taft-Hartley Act, § 10(e), 61 Stat. 148, 29 U.S.C. (Supp. III) § 160(e). Certiorari is granted only "in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing con- flict of opinion and authority between the circuit courts of appeal." Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 393; Revised Rules of the Supreme Court of the United States, Rule 38 (5). The same considerations that should lead us to leave undisturbed, by denying certiorari, decisions of Courts of Appeals involving solely a fair assessment of a record on the issue of unsubstantiality, ought to lead us to do not more than decide that there was such a fair assessment when the case is here, as this is, on other legal issues. This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilt- ing one way rather than the other, though fair-minded judges could find it tilting either way. It is not for us to invite review by this Court of decisions turning solely on evaluation of testimony where on a conscientious considera- tion of the entire record a Court of Appeals under the new dispensation finds the Board's order unsubstantiated. In such situations we should "adhere to the usual rule of non-interference where conclusions of Circuit Courts of Appeals depend on appreciation of circumstances which admit of different interpretations." Federal Trade Comm'n v. American Tobacco Co., 274 U.S. 543, 544. Subsequent to the above-quoted decision, the Supreme Court, in its decision in American National Insurance,21 reiterated that "Congress charged the Courts of Appeals, not this Court, with the normal and primary responsibility for reviewing the conclusions of the Board" and, quoting its Pittsburgh Steamship decision, re- asserted that the Supreme Court: "is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way." Having given extended and careful consideration to the situation confronting me, it is my considered judgment that what is here involved is not the kind of "broad question of law" to which the above Board decisions pertain, and that under the above-quoted Supreme Court decisions, the decision of the Sixth Circuit Court in 250 F. 2d 573, now a final one, is binding upon the Board and upon me as its Trial Examiner. Therefore I am herein treating the decision of the Sixth Circuit wN.L.R.B. v. Pittsburgh S.S. Company, 340 U.S. 498, 502-503. 21 N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 409-410. TiIE MULTI-COLOR COMPANY 441 as binding on me insofar as any notice of the Board 's decision in Case No. 7-CA- 1243 as background for issues in the instant matter may be appropriate. Reaching the foregoing conclusion does not, however, dispose of all of the prob- lems related to official notice. This is partly so because the opinion of the Sixth Circuit contains no recital of the facts which it deems to have been established by substantial evidence and no suggestion as to what facts found by the Board it may have rejected. In any event, I have quite carefully canvassed this factual problem and I am convinced that, once the stigma of the unfair labor practices found by the Board in its decision in Case No. 7-CA-1243, and of the antiunion attitude implicit in the Board's holding therein that there could "hardly be a more persuasive" indication of the Respondent's refusal to accept its statutory obligation, have been recognized as removed from the picture by the decision of the Sixth Circuit, the most significant element in the "pattern of conduct and events " theory as between the two cases has been lost to the General Counsel . In short, with- out burdening this report with the details which I have duly considered, it is my conclusion that, with the element of illegal motivation withdrawn from the pattern of conduct in the former case, there is not a sufficient parallel or similarity of patterns as between the totality of events in the two cases to be persuasive on the issues before me in the instant matter, even accepting the facts found in the Board's decision in Case No . 7-CA-1243, particularly with respect to the meeting of November 22, 1954. The further impact of what has heretofore been said on official notice as it specifically affects the issues in this case can be presented best, it seems to me, by relating discussion thereof to the two remaining groups of problems , those per- taining to the alleged interrogation , and those relating to the formation of the Grievance Committee . The events surrounding the alleged interrogation, which occurred first, will next be considered. IV. THE UNFAIR LABOR PRACTICES A. The alleged interrogation 1. The surrounding circumstances There is no dispute that shortly before December 6, 1956, the day upon which the Respondent held a meeting of its employees, two of the drivers, Nancy Wil- liams and Marie Swinyar, were called to the office on the same day and questioned by Mrs. Irene Geller, who is known in the Respondent's operations by her maiden name, Irene O'Leary, and will be so referred to herein. But there is so much dispute as to what actually transpired on that day and as to what its significance adds up to, under all of the circumstances, that it seems best to go into some of the less disputed facts which form the general frame of reference, before trying to decide, from the extensive, confused, and contradictory testimony as to the conversations themselves, the essential nature of what may have occurred. We begin our examination of the general circumstances by determining the role in the Respondent's hierarchy of O'Leary. About 6 months before the hearing in the instant matter, O'Leary had become the Respondent's vice president and Albert Fuchs had become its president. How- ever, at the time of the events in issue herein, O'Leary had been the Respondent's secretary-treasurer and Fuchs its vice president, positions which they also had held at the time of the 1954 events in the former complaint case. In fact, "prior to 1945, or 1946, the end of the War," Irene O'Leary, who has worked for the Respondent for 33 years, was 1 of the 2 "active officers" of the Respondent, the other being President Walter Fuchs, the father of the present president. It was "after the end of the War" that Albert Fuchs was brought into the company as one of its officers. Thereafter, during the 4 or 5 years prior to the death of Walter Fuchs in an airplane crash over the Grand Canyon in the summer of 1956, the role of the father in the Respondent's affairs had been a decreasing one and that of his son, who became vice president some 10 years ago, an increasing one. Thus before his father's death, Vice President Fuchs and O'Leary had become the active officers of the Respondent. Following his father's death in 1956 and prior to his election to the presidency in 1958, Albert Fuchs, who will be the only Fuchs discussed hereinafter, acted as president of the Respondent. I think there can be no doubt from the testimony of O'Leary that Fuchs and she run the Respondent's affairs; that what one knows about the activities and problems of the Respondent the other also knows; that their duties and functions have been the same for some years and have not changed "a bit" because of their recent election to higher offices; and that their 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "joint effort" from their adjoining offices controls the Respondent's operations, which involves less than 10U employees altogether at 5 locations in Detroit. We turn now to certain aspects of the background with which Swinyar is iden- tified. Swinyar, who has worked for the Respondent longer than Williams,22 started working for the Respondent as a driver in September 1954. It was thus shortly after she started work that Swinyar became one of the three members of the Employees Committee which came into existence at the earlier-discussed meet- ing of November 22, 1954. The Board's decision in Case No. 7-CA-1243 shows the circumstances surrounding the origination of this committee, composed of Charlotte Hollenbeck, Eve Davis, and Marie Swinyar. In view of the short time Swinyar had then been in the Respondent's employ, one should not overlook the possible impact on her actions at that time of the position being taken during the November 1954 negotiations by the Union, to the effect that if it were financially necessary, in order for the Respondent adequately to increase wages, "2 or 3 em- ployees should be laid off." 23 On November 26, 1954, Charlotte Hollenbeck filed with the Board a decertifi- cation petition in the previously mentioned Case No. 7-RD-191. In support thereof she also filed "a petition stating that the signatories thereto wished to dis- associate themselves from the Union," said petition being signed by "21 of the approximately 25 employees in the unit." 24 On February 3, 1955, the Board issued a Decision and Direction of Election in Case No. 7-RD-191 to determine whether or not the employees in the appropriate unit already set out above in section II of this report desired to be represented by the Union. In said unpub- lished decision, the Board denied a motion by the Union to dismiss the petition therein because it was "obviously the product of coercion and promises of benefits to the employees supporting it." The Board stated, as its reason for such denial, that "the evidence adduced at the hearing failed to substantiate this allegation." However, before the election which was directed in Case No. 7-RD-191 was conducted, charges were filed by the Union in Case No. 7-CA-1243. Thereafter the Board's decision in the latter case superseded the above-quoted position in the former case which concerned essentially evidence adduced in the RD case with respect to the November 22, 1954, meeting 25 In addition to Case No. 7-RD-191, the Respondent has also asked that, as part of the "background as to the inquiries which were made by management," I take notice of a decertification petition which was later filed "practically with unani- mous support" of the employees in the unit. It would appear from statements on the record by the General Counsel and counsel for the Respondent that the documents in said case, being Case No. 7-RD-214, are on file with the Regional Office rather than with the Board; that the case "was dismissed on a regional level"; and that said dismissal was upheld by the Board. In any event, without deciding what official records, if any, it might be appropriate under all of the circumstances for me to notice with respect to Case No. 7-RD-214, the unchal- lenged statements in this paragraph with respect to said case will be assumed to be true. Furthermore, with respect to Case No. 7-RD-214, there is in evidence in the instant matter a copy of a letter addressed to the Board in Washington which bears the signature on its first page of Marie Swinyar. This letter states, among other things, that "the undersigned employees" had been informed of a letter from Regional Director Thomas Roumell "dismissing the petition of Charlotte Hollen- beck"; that "none of the undersigned employees desire to be represented by the union which claims to represent them"; and that the employees were acting for themselves in requesting that the petition "to hold an election be granted" because the illness of Hollenbeck "makes it impossible for her to continue to act for us." Attached to the first page of the letter, which was signed by Swinyar but was undated, was a second page containing 28 signatures of employees in the unit, each signature having a date beside it, said dates ranging from August 28 to August 30, 1956. In addition to her signature appearing alone on the first page of the letter, Swinyar's signature, just below that of Williams, appears among, the 28 names on the second page of said letter. I am satisfied from the testimony of 22 Swinyar and Williams have apparently known each other for some time, however, as Swinyar testified that they had "worked together at various other places." as See 114 NLRP. at 1131. ^ The above facts, taken from the Board's decision in Case No. 7-CA-1243 (page 1140), constitute essentially the facts respecting which the Respondent has asked that I take .official notice of documentary evidence introduced in the record in Case No. 7-RD-191. 25 See 114 NLRB at 1141. THE MULTI-COLOR COMPANY 443 Fuchs that it was shortly after August 30, 1956, that the Respondent received a copy of the above two-page document and, from testimony of O'Leary, that she understood that, with respect to employees trying to get a Board election, Swinyar "was the one that was handling it." Under date of October 26, 1956, the Respondent received an additional letter addressed to it which was signed by 29 employees in the unit, among them Swinyar and Williams, whose signatures were again next to each other. This letter, ad- dressed to the Respondent directly, stated that the signers were not members of the Union and did not want to be; that they did not want the Union to negotiate or bargain with the Respondent as their agent; and that copies of the letter were being sent to the "Board in Detroit and in Washington." There is nothing in the record in the instant matter to show that the foregoing documents of August and of October 1956 were anything other than what they purported to be, or that the Respondent was in any way responsible for either of them. Moreover, in view of the decision of the Sixth Circuit Court, which it has been decided above negatives the Board's holding of unfair labor practices in Case No. 7-CA-1243 so far as background in the instant matter is concerned, I believe that the foregoing documents, and the earlier filed petitions and supporting documents in Cases Nos. 7-RD-191 and 7-RD-214, must be treated for the pur- poses of determining the issues before me as the voluntary expression of an over- whelming majority of the employees in the unit which the Union has represented. In addition to the foregoing, the evidence as a whole satisfies me that during the 2-year period, from November 22, 1954, until after the separation of Mier on November 27, 1956, the Respondent had received no indication from its employees in the unit, who constitute about a third of all the employees, that there had been any change in their position with respect to desiring not to have the Union repre- sent them, and there is no showing that the remaining employees have ever been represented by any union. Further, I believe that the Respondent was warranted in assuming that Swinyar had succeeded Hollenbeck as the leader of the employees in the unit in their efforts to disavow the Union and to get it decertified. The remaining background with respect to the questioning of Williams and Swinyar to be examined pertains to the extent and nature of the unrest among the. Respondent's employees which developed upon the termination of Mier's employ- ment. The separation of this office employee, who had worked for the Respondent for at least 13 years,26 took place on November 27, which was the last Tuesday in November. It took place after a period of discontent on Mier's part and with- out the employees generally knowing how or why the separation came about. This. is the gist of the explanation of Mier's separation and what followed, based on credited portions of the essentially corroborative evidence of Fuchs and O'Leary.27 'e O'Leary testified that Mier had "been with the company" 13 years, but Swinyar referred to Mier as having "been there seventeen years." 27 O'Leary was called as a witness by the Respondent. Fuchs, who was initially called by the General Counsel "under Rule 43-B," was taken by the Respondent as its own witness during cross-examination by counsel for the Respondent when he wanted to go into new matters. In addition, affidavits admittedly made by Fuchs and O'Leary, respec- tively, were offered by the General Counsel and were received into evidence without objection. Fuchs' affidavit is seven pages long and that of O'Leary is five pages. Both affidavits were sworn to before the same notary public, James P. Pirrie, who is also the Respondent's production manager, on February 25, 1957. Thus the events in issue in the instant matter, which were then mostly 3 months or less in the past, were obviously considerably fresher in mind to Fuchs and O'Leary at the time they made their respective affidavits than those events were some 6 months later, at the time Fuchs and O'Leary testified on August 21 and 22, respectively. Accordingly, their affidavits, which are essentially consistent with each other where they cover the same points and do not con- tain anything which impresses me as inherently implausible, have been carefully com- pared with the testimony respectively given by these two top officials of the Respondent, who were obviously interested witnesses, and who impressed me in some respects as being evasive and less than candid, as did also Marie Swinyar. While all of these factors having a bearing on credibility have been carefully analyzed and weighed, only a few such matters will be mentioned hereinbelow, both because to go into them at length would protract this'report, and because I do not believe that it would necessarily con- tribute to the future of labor relations among the Respondent' s employees under the circumstances here prevailing to pinpoint all of the examples in the record reflecting on the veracity of O'Leary, Fuchs, and Swinyar. For the moment, it is sufficient to say that in a relatively few respects in which the affidavits of Fuchs and O'Leary vary from their testimony on points adverse to the Respondent, I am satisfied that the affidavits present 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marjorie Mier, who started her employment with the Respondent as a telephone operator, was taught office work by O'Leary and eventually supervised other office employees, being responsible directly to O'Leary, who is in charge of all office work. Mier, who during her employment did not work in any classification which the Union has represented, had had no training as a bookkeeper. Eventually it became necessary to secure a trained bookkeeper and, after looking around for some time, O'Leary secured from the Burroughs Corporation a qualified book- keeper with university training, Mary Bowling, who started working on a part-time basis in September 1956, and joined the Respondent's staff on a full-time basis in November of that year. Bowling, who was able to do several types of specialized office work and to "see to it that the other girls in the office did their work," was receiving, because of "her greater experience and training," a higher rate of pay than Mier. Leaving what she apparently thought was a satisfactory situation in the office, O'Leary went on her vacation in November. When she returned later that month, O'Leary found that people in the office were not talking to one another and that Bowling was ready to quit. Mier, according to Bowling's explanation to O'Leary, had found out what Bowling's salary was. In any event, time did not cure the dissatisfaction which Mier felt over her inferior position in relation to Bowling and she did not come around to recognizing, as Fuchs and O'Leary evidently hoped that she would, that "the training and experience of the new employee justified the differential in compensation." Finally after Mier had discussed the matter with a number of people, she had a discussion of the situation with Fuchs. Fuchs told Mier that O'Leary was in charge of the office and that while he "was willing and anxious to listen to any gripe by any employee," he would not overrule O'Leary's judgment on the matter. Mier told Fuchs that he was unsympathetic, left his office, and quit her job voluntarily on November 27. Shortly after Mier left, managers who are in charge of the Respondent's branch locations and also "people in the main office" informed Fuchs that they and other employees were receiving telephone calls from Mier to the effect that she had "got a bum deal" from the Respondent; that the Respondent's employees "lacked job security"; that there was "a great deal of difference in the amounts being paid" to people doing the same kind of work; and that they "should be concerned about who they are working for." The net result, as Fuchs observed it, was "a general upheaval of the production employees," who were "talking among themselves, not getting the work out," to such an extent that the "efficiency of the operation was greatly impaired." O'Leary received similar calls from branch managers and others, telling about telephone calls from Mier discussing wage rates and "telling them their jobs weren't secure, that they should get out." In some instances, O'Leary was told that Mier "had also discussed with them the union which represented some com- pany employees." O'Leary was also told that "the employees were discussing union membership among themselves and that membership cards were being circulated." Branch managers reported to O'Leary that employees were congregating in groups and were not getting their work out. One manager came to O'Leary and told her that Mier was "tearing down the morale of the whole company, and to please do something about it." The foregoing depicts the situation which developed following Mier's separation, as the Respondent's top management, Fuchs and O'Leary, understood it. We turn next to an appraisal of the situation as it had developed up to that point, as revealed by the testimony of Williams and Swinyar. Williams testified, on direct examination as a witness for the General Counsel, that following "a lot of unrest after the dismissal of" Mier, the Union asked "some of us that hadn't signed up to join" and that various ones were "talking about their getting back in." On cross-examination, Williams testified that the employees who were talking among themselves about joining the Union "was the whole complete company," and that it was "talked amongst all the employees," including the office employees. There is nothing to show that Williams had any union cards herself, signed up any employees, or did any soliciting for the Union, although she did testify that she had "met Mr. Shelf" of the Union by accident one evening after work on Woodward Avenue. In any event, Williams, who im- pressed me as a forthright witness, testified that the explanation of Mier's leaving, a more reliable explanation of what happened. Furthermore, as the affidavits in some other respects present a more detailed and coherent explanation of developments than the testimony, I have relied more largely on the affidavits of Fuchs and O'Leary than on their testimony in making a number of the findings which follow in this report. THE MULTI-COLOR COMPANY 445 which was eventually given at the general meeting of employees on December 6, seemed to settle the unrest which had existed. Swinyar, when first called as a witness by the General Counsel, testified that: She discussed the Union with "just everybody in general"; that employees were wondering why Mier had left so quickly after such a long period of service; "it was brought up there was no protection for any employee"; people said that "they would like the Union to be brought back in"; and there were "cards brought around there." Swinyar was sure that the foregoing had taken place before the meeting of December 6, the date of which she was certain as that day was her birthday, because "after the meeting there wasn't anything more." It eventually developed, during Swinyar's second appearance on the witness stand toward the end of the hearing, when she was recalled by the Respondent for further examina- tion after the amendment with respect to interrogation had been permitted during the hearing, that: It was Swinyar who had actually been getting employees to sign cards for the Union ; she had "signed up all but one of the drivers , trimmers, shippers and messengers" at the 126 Delaware branch, the branch at which Swin- yar, Williams, and most of the employees in the unit worked; the only employees Swinyar had signed up were among the classifications in the Union 's unit; 28 Swin- yar had not signed up employees at other branches because following the employee meeting she "let it rest right there"; after said meeting of December 6, employees "asked that their cards be returned, or destroyed"; and Swinyar did not turn the cards which she had secured over to the Union but destroyed them all without management knowing which of the employees had signed union cards. 2. The evidence as to the questioning of Swinyar and Williams We come now to the confused and conflicting testimony concerning the question- ing of Swinyar and Williams which is so sharply in issue. While the amended complaint alleged that the date thereof was on or about November 27, 1 am con- vinced that the questioning took place shortly before December 6, which in 1956 fell on Thursday, after the apprehension among the employees following Mier's separation had had time to develop , and after Swinyar had been signing up em- ployees for the Union. In any event, the gist of the testimony as to what hap- pened when both Swinyar and Williams were questioned by O'Leary on the same day, which date was certainly sometime between November 27 and December 6, will now be presented. Williams, the first witness to testify as to questioning by O'Leary, was asked on direct examination by the General Counsel if she had any discussion with any member of supervision about union activity. Williams replied that O'Leary called her "over next door one day" 29 and asked her if she knew "anything in regards to it." Williams fixed the place of the conversation as in "Mr. Fuchs' office" and identified additional persons present when the conversation took place as Fuchs and McGhee.30 When asked to "relate the conversation," Williams testified: Miss O'Leary asked me if I knew anything in regards to the union, or the cards being passed around, and I told her I did not. And I had a delivery to make, and I asked to be excused. Asked if she could recall anything further about the conversation, Williams replied that that was as much as she could "remember right now"; that she "knew the union was discussed there"; and that she told O'Leary that she "didn't know any- thing in regards to it." The General Counsel then asked if Williams was "asked anything as to who was passing" union cards, and Williams replied, "Yes, I was." Asked by whom, Williams answered, "Miss O'Leary asked me if I knew who had them, and I told her, no, I didn't." Williams also testified that she could not remember being asked anything else about union activities; that she had had only one conversation with respect to the Union with anyone from supervision; and that she thought the above conversation took place after the meeting of the employees. 2813y contrast, Swinyar had testified during her first appearance as a witness that some of the other employees had signed union cards. 29 Next door to 126 Delaware, out of which most of the drivers work, is the Respond- ent's main office at 116 Delaware. 3° The parties stipulated that William R. McGhee is a supervisor within the meaning of the Act, and that prior to June 1, 1957, he was the Respondent's assistant production manager. At the time of the hearing herein, McGhee was production manager of printed circuits. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams testified prior to the amendment to the complaint alleging such ques- tioning as violative of Section 8(a)(I) of the Act, and was not cross -examined on the foregoing testimony. Nor was she later recalled by any of the parties. As the first witness testifying on this matter, Williams did not have her memory refreshed by hearing any of the other witnesses testifying on this subject, or by being asked any questions on this matter, other than those asked by the General Counsel. While Williams, on the whole, impressed me favorably as a witness during her relatively brief examination, I am convinced on all of the evidence that she was mistaken in placing the conversation after the December 6 meeting. Swinyar, a robust, mature, and loquacious witness, first testified for the General Counsel immediately following Williams. On direct examination, she testified that the only conversations which she had had with supervision about the Union were two which took place on the same day, the first at noon and the second about 5:30 p.m., after she had come in from her run. Swinyar identified the time of the two conversations as roughly 3 or 4 days after Mier had left and before the December 6 meeting. She placed the first conversation as occurring in O'Leary's office, with the additional individuals present as being Fuchs, Production Manager Pirrie, and Horace Sisson 31 This is Swinyar's version of all that she could recall as taking place at the noon meeting: they asked about the union cards, they wanted to know if I knew any- thing about them. . . They wanted to know if 1 had seen them, and 1 also told them no, that I hadn't seen anything of the union cards. And they says, oh, Mr. Fuchs says, "If you want the union, say so; if you don' t want the union, just leave it go at that." He says, "If you want to bring it back, if you don't, that's up to you." If I recall, Mr. Fuchs put on his hat and left. As to what happened that night during the second conversation, which Swinyar fixed as taking place "in the front office" with Pirrie, McGhee, and O'Leary pres- ent, Swinyar testified as follows: I was asked . . . if I knew anything about the union cards. And I told Mr. McGhee, I says, "I don't know anything about it." And I says, I had ex- plained that to them, and I didn't see why I had any reason to tell him any- thing I had said, outside of what I had said already that noon.... He wanted to know who had the cards, and where they were at. He said he heard there was rumors of those cards, and that was it. . . . O'Leary said, "If you want the union, bring it back. Just let Albert know-I should say, Mr. Fuchs- "what you would like, one way or the other." She said, "Just make it easy on him so he knows what to do." On cross-examination, Swinyar testified that: She was one of the members of the Employees Committee of three which had been formed right after she had started work in the fall of 1954; the purpose in organizing said committee was to get the Union decertified; practically all of the union employees within the unit had signed a petition to get that brought about; there had been numerous Board hearings on this matter which she and management representatives had attended; the employees had presented numerous requests to management to have an elec- tion to decertify the Union; and so far as she knew, it was not until after Mier had left that "any member of the employees' group" had advised management of any change in their attitude toward the Union, or of any desire to have the Union back. Asked then what was said when she was talking with O'Leary and Fuchs about "rumors they wanted it back," Swinyar answered, "Mr. Fuchs had said if they wanted it back, to bring it back, not to fight it." Asked if Fuchs had said anything about her "notifying the other employees of the circumstances" of Mier's n Sisson, whose supervisory status is in dispute, worked in the printed circuit depart- ment. His later activities with respect to the Grievance Committee are discussed in the next section of this report. Later during her testimony, Swinyar once referred to Sisson as "not a supervisor." Swinyar also eventually testified that when she had had the union cards, she had asked Sisson "if he wanted to sign one of the cards," and that Sisson had said that "hold rather not." When called as a witness by the Respondent, Sisson denied being present at the office during any conversation between Swinyar and O'Leary ; could not "specifically" recall any conversation with Swinyar in which they had discussed the Union; and denied that Swinyar had asked him if he wanted to join the Union or sign a union card. While'I feel less than certain about the matter, taking all factors into consideration, I think it probable that Swinyar discussed the Union with :Sisson and may have even asked him if he wanted to join. THE MULTI-COLOR COMPANY 447 leaving, Swinyar explained that Fuchs had "mentioned at one of those meetings in there" that he thought it would be "a good idea" if Swinyar would tell them, but that she had told Fuchs that it was his place to tell them, that "coming from him" the other employees would "be better satisfied" than if she told them, and that this, among other things, was "exactly what was done" thereafter at the meet- ing on December 6 .32 When asked on cross-examination who had been present at the first meeting in O'Leary's office, Swinyar named O'Leary, Fuchs, and Sisson, and said that there might have been somebody else but that she could not recall whether or not there was. It was then pointed out that she had named Pirrie on direct examination. Swinyar thereupon testified that Pirrie "was at the second one" and might have been at the first one, too. Upon further questioning, Swinyar insisted that she was sure Pirrie was at the second meeting, and that she could not "quite rightfully say" whether that meeting had taken place before or after the meeting on Decem- ber 6. When asked if she did not know that Pirrie was in California during the first part of that December, Swinyar insisted that Pirrie "was in that room there because I remember calling him by name"; that she even knew "right exactly where he was sitting in the chair"; and that Pirrie had asked her "to tell who had them," to which she had replied that she "didn't squeal" and that he "didn't, either." Later in her cross-examination, Swinyar testified that: When some of the people were taking union cards around to get them signed right after Mier had left was "at about the same time" that she had had the discussion when Pirrie was in the office; all the card-signing, discussion of the Union, and desire for "some protec- tion" had taken place before the December 6 meeting; thereafter there was "nothing more said"; and those who "had signed cards before wanted it dropped because they said their mind was clear." Swinyar also reiterated that at the first of the two office discussions, the only one at which Fuchs had been present, Fuchs had said that. if the employees wanted the Union, he would rather they "have it and be happy," and that if" they did not want it, that was up to them also. And Swinyar again indicated that when they got through talking at the second office meeting in the evening, O'Leary said, "If the employees want the union back here, just let Albert know about it." During cross-examination by the Respondent, Swinyar also testified that she addresses Fuchs as Al or Albert and that he called her Marie; that since she has been working out of 126 Delaware, she has had a great deal of contact with O'Leary and has discussed all kinds of things, personal as well as business, with her; and that, except for the two occasions about which she had testified, people from supervision had "not at any other time" talked with her about the Union. During redirect examination by counsel for the Union, Swinyar, in testifying about Fuchs asking her to "pass the word along" to the other employees about why Mier had left, placed with evident certainty her two office discussions as having taken place before the general employee meeting. Swinyar also testified that although she had said during the office meetings that she "didn't know who was circulating them," she actually had been "circulating cards before then." She further testified that while she did not know whether Sisson had stayed through the discussion, he had been in the office when she had walked in. The gist of Swinyar's testimony, on further recross-examination by the Respond- ent, was, with respect to the noon discussion, that she was asked if she "had signed a card"; that she admitted that she had; that she could not recall if they had asked her who had solicited her to sign the card; and that while they "just said they knew that cards were going around," she could not "particularly recall" and could not "truthfully say" if they had asked "who was going around soliciting the card signing." As to the evening meeting, Swinyar testified that when she had first come in, McGhee had asked her "before Miss O'Leary got there, where the cards were, and who had them." While admitting that she could not remember the exact words, Swinyar insisted convincingly that she had been asked that evening "where the cards were, who had the cards." Upon still further redirect examination by the Union, just before Swinyar was excused during her first appearance as a witness, Swinyar testified that, while she could not remember exactly things that happened 7 or 8 months earlier and "pin it right down to words," the following two statements, which counsel read to her "a Other aspects of this meeting of December 6, which clearly occurred later, will be considered below in dealing with the 8(a) (2) issues. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from a six-page affidavit which she had earlier admitted having "subscribed and sworn to on January 29, 1957," were "roughly" correct: They asked me where the cards had come from and my reply was that they had just come in, that I did not know. ._ .. And they asked me what the deal was, and who had brought the cards in, and I told them I did not know. During examination by counsel for the Respondent of President Fuchs, who was called by the General Counsel under Rule 43-B, and shortly after the complaint had been amended to allege interrogation, Fuchs testified, with respect to Swinyar's testimony which he had heard her give the preceding day, that he remembered a conversation "a few days" after Mier's separation in which he had asked Swin- yar to notify the employees that Mier had quit voluntarily and had not been dis- charged, and during which Swinyar had suggested that it was his job to so notify employees. Fuchs also recalled a conversation in O'Leary's office. When asked to give his best recollection of that conversation, "particularly with respect to any union," Fuchs answered: The gist of the conversation was, if. there had been-if there was a change in the attitude of the employees that they should want a union, please so inform me. That as far as I was concerned I just wanted to know whether they wanted it, or didn't want it. When asked if he remembered being present at any conversation with Williams in which the Union was mentioned, Fuchs first replied that he could not "specifi- cally recall the case of Nancy Williams." He next testified that he could not "vividly" remember any talk with her on that subject and that he "didn't know" that he had talked with her. Fuchs then flatly denied remembering any such con- versation. He further explained that his office is adjacent to O'Leary's office with "just a partition going up about three-quarters of the way up, with a door opening to her office," and that he had frequently heard people in O'Leary's office, mainly drivers, talking with O'Leary about the union situation or representation by a union. Fuchs also testified that at no time between November 1954 and Novem. her 1956 had any employees given him any indication whatsoever that they had any desire to have union representation and that he "certainly was" interested in determining what the attitude of the employees was with respect to a union. At this point in his examination, Fuchs was asked by counsel for the Respond- ent if he had refreshed his memory from records as to whether Pirrie, who was not in Detroit at the time of the hearing in the instant matter, had been on com- pany business somewhere other than Detroit during later November and early December 1956. Fuchs testified that he had done so and various documents were identified and examined by counsel. Said documents were not thereafter entered in evidence because the Respondent, the Union, and the General Counsel stipu- lated that Pirrie arrived in Los Angeles, California, on November 26, 1956, and did not return to Detroit until Sunday, December 9, 1956. In response to questions which I asked toward the close of his testimony, Fuchs explained that he had not actually met in the same office with O'Leary and Swin- yar; that he had rather been in his office on one side of the partition "with a wide door in it," while O'Leary and Swinyar had been in O'Leary's office on the other side of the partition some 6 feet away; and that while they could all see each other, he had taken no part in the conversation, which had been strictly between the two women. The next witness, William McGhee, was called under Rule 43-B by the General Counsel. At the time of the events in the above-discussed testimony, which obvi- ously took place while Production Manager Pirrie was not in Detroit, McGhee was the Respondent's assistant production manager. At no time during McGhee's examination was he asked any questions about his presence at or participation in any discussion with Williams or Swinyar. Nor did the Respondent later call McGhee as a witness during the presentation of its own case. The Respondent opened its case by recalling Swinyar for further cross-examina- tion. Swinyar first testified that, before taking the stand, she had met at noon that day with Fuchs, O'Leary, McGhee, and Attorney Desenberg, and had dis- cussed with them the conversations which she "had testified to the day before yesterday." When asked if her memory as to who might have been present at any of the office meetings had changed as a result of the stipulation that Pirrie had been out of Detroit from November 26 to December 9, Swinyar replied: Like I say, I thought he was there but its possible I might have been wrong, but I thought it was Mr. Pirrie. I don't know who it could have been, unless THE MULTI-COLOR COMPANY 449, it was Mr. Evans, but I could have sworn it was Mr. Pirrie. I guess its pos- sible I was wrong. In my opinion, it is not necessary to digest fully the testimony given by Swinyar- during her second appearance as a witness. This is so because the examination, which went back and forth between the Respondent and the General Counsel, usually did not substantially expand the range of variations in Swinyar's earlier testimony, and often served largely to convince me that Swinyar, during the period of her organizational activities some 9 months earlier, had discussed the Union so much, with so many people, that try as she would, she could not be sure what had been said during various conversations. But because of the pivotal nature of Swinyar's testimony with respect to the. interrogation issue, certain points brought out by counsel for the Respondent dur- ing this further examination should be noted. Swinyar knows Pirrie "quite well" and they "kid back and forth a great deal." Swinyar was certain that: Her first talk with O'Leary had taken place in O'Leary's office, next to Fuchs' office; they had not later moved to the front office or conference room; and it was at a second and separate conversation that evening that she had seen McGhee. Swinyar testified that: She was not in O'Leary's office over 10 or 15 minutes that noon;. whether or not Sisson stayed, he took no part in that conversation; Fuchs left shortly before she did; she did not know who the other person there was that day; and she had not seen Pirrie that day. Swinyar further testified that: She could not remember how the first conversation started; with respect to the unrest then existing, O'Leary asked how the employees felt; she replied that everybody was much disturbed and wondering what was going on that they let Mier go; she had not up to that point known that Mier had quit; and O'Leary told her that Mier "walked out on her own accord." Swinyar could not recall that anything had been said to her at that time about production or operations being upset by gossiping. Swinyar also testified that: She recalled that O'Leary asked her "if anyone was circulating cards"; that was the only thing she could definitely recall with respect to anything like that; she first told O'Leary that she did not know anything about it; O'Leary told her that "if the people want the union . . . instead of trying to fight it . . . bring it back in instead of having all of the unrest"; and O'Leary also said to "come in and tell Albert" and let him know whether you want the union or not. As to the discussion she had had with Fuchs before the December 6 meeting about his telling the employees why Mier had left, Swinyar identified that as "just a passing conversation" not in any room, which she thought. had taken place after the day of the two office discussions. As to further examination by the General Counsel, it should be noted that Swinyar testified: The noon conversation was mostly between her and O'Leary;. Pirrie may be in O'Leary's office almost anytime she goes into that office; the conversation in her testimony with Pirrie might have occurred at some other time when Pirrie was in Detroit; and it was possible that her testimony might contain- a jumble of different conversations at different times which were all mixed up. Thereafter, the General Counsel gave Swinyar her affidavit, portions of which Swinyar read. Swinyar then testified that: Her affidavit had refreshed her recol- lection as to what O'Leary had said about union cards; O'Leary had asked her if she "had signed one of the cards"; her answer to O'Leary was "Yes"; O'Leary asked her "where the cards had came from"; and she told O'Leary that she "did not know." When questioned as to whether anything had been asked about what the "deal" was, Swinyar said that she did not understand, and that she did not remember that word being used. The sentence from her affidavit, "They asked me what the deal was and who had brought in the cards," was then read to Swinyar.33 Swinyar thereupon explained that it meant "what the score" was; that it was "a matter of speech" and did not "concern anything in a deal" because there was "no deal made"; and that what O'Leary had asked was "what gives with the cards" and "where they came from." After some further questioning by the General Counsel as to her "present recollection" of the matter, Swinyar testified: Miss O'Leary asked me if I knew where the cards came from, or who brought them in, or how they got in, and that I told her I do not know. I said they just got there. 13This sentence is part of the material quoted hereinabove, which counsel for the Union, who was not at the hearing at the time now under consideration, had read to Swinyar 2 days earlier when she was first on the witness stand. 50"95-59-vol. 122--30 450 DECISIONS OF NAT-TONAL LABOR RELATIONS BOARD Upon further questioning by the Respondent, Swinyar testified that it was "too long ago to remember" the exact words that had been used; that the affidavit which she had been using to refresh her recollection had not been written by her but by the attorney for the General Counsel; and that she had "corrected it" while he was there and "signed the pages." When asked if the attorney had written down her "exact words" Swinyar replied, "He wrote them down just about as I had said them." At the conclusion of her testimony, Swinyar testified, in essence, upon further questions by the Respondent and the General Counsel, that, while she could be wrong, she believed that it was after December 6, when the whole thing was over and "after the cards had been destroyed," that she had told O'Leary that she had signed a union card; that what O'Leary had earlier asked was "who had the cards" and not whether she had signed one; and that following the December 6' meeting, "after everything had quieted down," she was asked "if everybody was satisfied" and if there was any "dis-rest" in the company, and that she had said "no." We come now to O'Leary's version of the conversations in issue. As the last witness for the Respondent, O'Leary, who had been at the hearing " during all of the testimony," testified on direct examination that: On a day after Mier had left but before the general meeting, she had conversations with both Williams and Swinyar; she had called around 9 o'clock that morning and had "asked for Marie, but she was out"; she had asked Williams, who was there, to come over to see her; 34 and Williams did so "before she went out on her run." According to O'Leary, she saw Williams, who comes to her office from time to time to discuss .a variety of things, including personal affairs, in "the front office, referred to as the conference room." O'Leary did not think there was anyone else present dur- ing the conversation, which lasted 2 or 3 minutes, but was apparently not certain with respect to McGhee.35 The following is O'Leary's version of what transpired when she saw Williams: I said, "Nancy, everything around here seems to be in a turmoil, low effi- ciency, the jobs aren't going out, and everybody's upset, can you tell me what's wrong, what's going on?" And she said she didn't know anything. I said that I had had a call that the drivers were delivering union cards on their routes, and getting off their road that they took. And she said that she knew nothing about it, she said she had a rush job, she was late, she was leaving, and asked to be excused, and I told her, "You can go ahead." Later that same day, sometime around noon, when Swinyar returned from her run, Swinyar came over to see O'Leary, as O'Leary had left word that she should do. O'Leary testified that she saw Swinyar in the conference room because she does not "carry on any personal conversations, or conversations of that nature in my office, there's too many people, too much commotion." O'Leary was not cer- tain whether there was anyone else present when she talked with Swinyar; she thought that McGhee was standing in the door when she went in and did not "know if he stayed there or not." What follows is O'Leary's answer, when she was asked to tell what was said during her conversation with Swinyar: I said the same thing as I did to Nancy, asked her to tell me what all the trouble was about, why the employees were all upset, and there was such a commotion. And she told me that it was due to Marjorie Mier, her dis- missal. I said, "Well, I wish to correct you, she wasn't dismissed, she walked out." And she said, "Well, that is not the rumors and the gossip that's going around, that she was fired." And, I says, "Well, have you talked to Marge?" And she says, "No." "Has Marge tried to call you?" "Not that I know of." I said I had calls from department managers, and branches, saying that noth- ing is going right, the drivers are criss-crossing, and meeting each other, and delivering cards, which I assumed were union cards. I asked her if she knew anything about that, or if she was delivering them. She said she was not, she hadn't heard of any, or even seen one. 3s It will be recalled that the two drivers involved work at the branch next door to the main office. a; O'Leary testified that she did not think McGhee was present, and testified definitely that Fuchs was not there and that Pirrie was not there. It should also be noted that O'Leary testified that the night before taking the stand she had talked with Pirrie In Texas by long distance telephone. The Respondent did not request any continuance because of Pirrie's absence from Detroit at the time of the hearing. THE MULTI-GOY OR- COMPANY 451 And I said , "Nancy, if you want the union, go ahead and get it. Go and tell Mr. Fuchs. He can help you much quicker, and you don't have to dis- rupt.the progress of the work, the production of the company. .After acknowledging that she had misspoken herself in saying Nancy (last para- graph above) when she had meant Marie, O'Leary testified further, with respect to the conversation , that: She was "just explaining that Marge had walked out"; .she had asked Swinyar "if she was taking her deliveries instead of going off her route"; she did not ask Swinyar "if she had signed any union card at that time"; and Swinyar had told her "that she hadn 't seen the cards, that she knew nothing about them." As to whether she had had a second conversation that same day with Swinyar, O'Leary testified that: She had heard Swinyar testify to that effect and had tried to refresh her memory ; she would have had no reason to call Swinyar back as .she had talked with her, had got the information she wanted, and knew "Marie too well to doubt her"; and while she would not say that she did not call Swinyar in again, she had "no recollection whatsoever of it." When asked if Swinyar, .after "the unrest was over," had ever given her "any other information about what had been going on," O'Leary testified that she could not "recall that she ever did." O'Leary emphatically denied that Swinyar had ever told her that "there had been .some cards." As to the fact, pointed out by counsel for the Respondent toward the close of direct examination, that Fuchs' testimony did not accord with O'Leary's recollection as to the place of the conversation with one of the two drivers, O'Leary testified that it was "possible that Marie came into my office, and maybe when the discussion started we went into the front office." During her testimony on cross-examination, with respect to the situation which had developed after Mier's separation,36 the General Counsel asked O'Leary if it had been reported to her that Mier "also discussed Local 299 with the people that she was calling up." O'Leary at first flatly denied that it had been so re- ported. When asked if she had ever made such a statement "to the investigator in respect to this case," O'Leary admitted that "it may have been a rumor," ex- plaining that she did not remember, that "everybody was telling" her about Mier, and that she "wouldn't be a bit surprised if she was." Asked if it was not impor- tant to her that Local 299 was "again coming into the picture," O'Leary replied that it did not bother her at all, adding: All I wanted them to do, and I told all of them, that if they wanted the union, to bring it in. They didn't have to go all through this commotion, to go to Mr. Fuchs and tell him, and he could take care of it very quickly, but to get things back running on a normal basis. In point of fact, O'Leary's affidavit, which is discussed above in footnote 27, contains the following statement pertaining to reports about Mier discussing the Union: Some of them told me that she had also discussed with them the union which represented some company employees. Respecting her conversations with Swinyar and Williams, and the circumstances .pertaining thereto, the pertinent portion of O'Leary's affidavit reads as follows: After Mrs. Mier quit her job, I was told that the employees were discuss- ing union membership among themselves and that membership cards were being circulated. It did appear that there was a great deal of conversation and gossip among the employees during working hours and that they were not giving sufficient attention to the work which was to be done. I asked a couple of the older employees what was going on and told one or both of them that I had heard that union cards were being circulated. These employees, I be- lieve that it was Marie Swinyar and Nancy Williams, or the one to whom I made this statement, said that they knew nothing about any union activity, and I commented that if the employees wanted a union they should go in and tell Mr. Fuchs about it, because we had no objection to any organization which the employees might choose to represent them with the company. My conversation with these employees, both of whom worked out of the main office where my office is located, was solely for the purpose of finding out what had interfered with the efficiency of our operations. 3 Some of said testimony has already been quoted earlier in this report. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Contentions of the parties and conclusions as to interrogation Without attempting to cover the contentions of the parties in full, it will be helpful at this point to set out the basic contenions. The General Counsel's brief considers the interrogation issue as divided into two questions: whether or not there was interrogation, and if there was, whether said interrogation was improper. With respect to the first question, the brief devotes. several pages to detailed consideration of the many-faceted problem of credibility involved, and stresses the failure of the Respondent to offer "controverting evi- dence" relative to the "quite penetrating" questions asked of Swinyar by McGhee.. The General Counsel's brief summarizes the "enlightenment" sought by O'Leary and McGhee during the conversations as "who passed out cards, who brought the cards in, who signed the cards, where the cards were, and what the deal behind the Union was." On the second aspect of the problem, the General Counsel con- tends that the interrogation exceeded the bounds of permissibility because there was "no demonstrable causal relevancy or connection with the issue of turmoil," and because the Union had not "at the time of the interrogations made any claim. of majority representation" on the Respondent. The General Counsel also contends that: As "a result of the questioning of Marie Swinyar an employee meeting was called"; out of said meeting there was "the emergence" of the Grievance Com- mittee; the contention that "the interpersonal contact between supervisors and em- ployees has always been on a friendly plane" at the Respondent's operations has. little bearing; and the Respondent's "seemingly nonchalant attitude toward unions" is not consistent with its "conduct and relations vis a vis the Union set out in the: previous case," Case No. 7-CA-1243. Among the contentions in the Union's brief, the following should be noted. The: interrogation in issue took place during a period of union activity which "appar- ently was among all employees of all departments of the Company." The interro- gation of Williams by O'Leary took place "in front of other supervisory personnel and the president of the Company." The first interrogation of Swinyar by O'Leary took place "at a time when other supervisory and executive personnel were pres- ent." The second interrogation of Swinyar "was carried on first independently by Mr. McGhee and then jointly by McGhee and Miss OLeary." The section of the- Union's brief concerning the legal aspects of the interrogation issue opens by cor- rectly stating that such matters are "now controlled by those principles set forth by the Board in Blue Flash Express, Inc., 109 NLRB 591," and by recognizing. that under such principles interrogation "is not per se a violation" of the Act, but must be tested by determining whether or not, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the exercise of rights. guaranteed to employees by the Act. The Union's brief then devotes a number of pages to distinguishing and comparing the interrogation and its surrounding. circumstances in the instant matter with respect to Blue Flash and certain other cases, particularly Syracuse Color Press, Inc., 103 NLRB 377. With respect to^ the latter case, Swinyar and Williams are viewed by the Union as "key employees" because they "were the two in contact with the union." The Union also stresses, as evidence of "coercive effect upon union activity," the fact that Swinyar, who. was actually getting cards signed, denied knowing who was doing so. We turn now to the gist of the Respondent's contentions as to interrogation. In its brief, the setting of the questioning of Swinyar and Williams, two employees. who had "within the past month signed an anti-union communication" to the Re- spondent, is stressed as taking place during a period of "turmoil and disturbance" caused by Mier's leaving, which "seriously interfered with the normal business. operations" of the Respondent, and during which O'Leary had heard rumors that drivers "were departing from their regular routes, criss-crossing and delivering- union cards." In seeking "to resolve what would have been an inconsistent posi- -tion," O'Leary first asked for Swinyar, who was not in, and then Williams. who was. Upon questioning Williams, during "only a short conversation," O'Leary asked Williams only if she "knew anything about the union or the cards being passed around." As to the questioning of Swinyar, the Respondent's brief appears. to concede that there were two conversations and that McGhee apparently "wasl present at one of these talks." Pointing out that, aside from O'Leary and Swin- yar, there "is a great deal of confusion as to any others who may have partici-- pated," the brief stresses the absence from the city of Pirrie, and the testimony repeatedly given by Swinyar to the effect that she was told to bring the Union back in if the employees wanted it and just to let Fuchs know what the employees. wanted. Relying on court decisions and the Board's Blue Flash decision, the- Respondent contends, in effect, that: It was justified in inquiring into inconsistent: THE MULTI-COLOR COMPANY 453 positions respecting the Union ; there is no evidence of any threat or coercion in connection with these inquiries ; the inquiries were not shown to be part of any .general pattern ; and when all of the circumstances, including the fact that the Respondent "expressly stated that a union would not be opposed ," are taken into consideration, no violation of the Act by virtue of its questioning of Swinyar and Williams has been established. The evidence has already been presented in sufficient detail and enough has been said about the nature of the credibility problems to suggest the difficulties, involve- ments, and uncertainties which would necessarily attend any attempt to resolve all ,of the conflicts and inconsistencies in the evidence pertaining to the crucial con- versations and to arrive at precise factual findings . Conceding the desirability of precision in fact finding, especially where the contentions of the parties are such .as they are here, I have reached the conclusion , reluctantly and after protracted .analysis and reflection , that certainty is not broadly or uniformly possible. How- ever, I do believe that some findings and observations, which will shed light on the contentions, can be made with a reasonably high degree of probability. To a presentation of such matters, without protracting this report with all of the reasons and bases therefor, we now turn. In the first place, I believe that any conversation during which O 'Leary asked 'Swinyar if she had signed a union card, or during which Swinyar admitted or pos- sibly volunteered that she had done so, took place under circumstances not revealed by the record , at some indeterminable time after the meeting of employees on December 6, and after Swinyar had destroyed the union cards which she had secured because the explanation of Mier 's separation given at the December 6 meeting had set the minds of the employees at rest on the particular matter which had precipitated the unrest , turmoil, and disturbance which undoubtedly had ex- isted prior to that meeting. Furthermore, the record is barren of any details sur- rounding any conversation , "kidding" or otherwise , which Swinyar may have had concerning the Union with Production Manager Pirrie after Pirrie had returned to Detroit on December 9, 1956 . In addition, I am satisfied that it was during :a separate and casual conversation which occurred after the conversation in issue that Swinyar told Fuchs that he was the one who should tell the employees about Mier leaving ; that Swinyar's remark on that occasion was only one of several fac- tors leading to the decision to hold a meeting of employees ; and that, as will be more fully explained in the next section of this report , "the emergence" of the 'Grievance Committee is not to be found in the meeting of December 6, but rather in action taken subsequently thereto. In short, I believe that at least the foregoing several things , which were jumbled together in parts of Swinyar's testimony, occurred in various conversations after the two involving her which are in issue, and that such subsequent conversations were either innocuous ones or, in any event , too devoid of detail and surrounding -circumstances to shed any light on the issues under consideration . Furthermore, I am not convinced that later developments , yet to be considered in this report, including other aspects of the December 6 meeting and the establishment of the Grievance Committee , were part of a course of conduct having bearing on whether ^or not such questioning as took place during the three crucial conversations con- stituted interrogation which, under all of the circumstances , exceeded permissible bounds of inquiry under the Blue Flash decision. As to the initial conversation on the day in question, which O'Leary, about whose top managerial position there can be no doubt,37 had with Williams, who is not shown to have been active in behalf of the Union , it is my considered judg- ment that : After calling Williams to her office, there was a short conversation which took place in O'Leary's office, rather than in Fuchs' office or in the confer- ence room ; 38 McGhee may have been present, at least at the inception of the 5; Because the management of the Respondent was essentially a joint effort between Fuchs and O'Leary, and there was turmoil reported to and warranting consideration and possible action at the highest level, I find no significance in the General Counsel's position that, by calling in Swinyar and Williams, O'Leary "completely by-passed the immediate supervisor of the drivers." "I Under all of the circumstances, I do not credit O'Leary's testimony that this con- versation, and the first of the conversations with Swinyar, occurred in the conference room. Nor do I think that Williams was accurate in placing her conversation in Fuchs' office. I think the conversation more likely occurred in O'Leary's office, with Fuchs being present to the extent that he was in his adjoining office and visible to Williams through a wide door, as I a.m confident was the case at noon that day in the first of the Swinyar conversations. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation; Fuchs, although he truthfully testified that he could not remember being present at any conversation involving Williams, was actually nearby in his. adjoining office and visible to Williams; and no one other than O'Leary and Williams took any part in the discussion. I further believe that: O'Leary opened. the conversation by referring, in effect as O'Leary testified, to some such matters as things being in turmoil, everybody being upset, and there being rumors that drivers were delivering union cards; O'Leary, in pursuing her inquiry as to what. was going on, eventually asked Williams, essentially as Williams testified, if Wil- liams knew anything about the Union or union cards being passed around and if she knew "who had them"; Williams disclaimed any knowledge of the foregoing union matters and was excused because she was late for a rush job; and what took place during O'Leary's brief discussion with Williams cannot fairly be ap- praised as interrogation of a "key" employee who was in any realistic sense in touch with the Union. But if McGhee was present during some or all of the conversation, which is not certain, and Fuchs was in his adjoining office, as I think he was, the incident could be said to approximate the Union's characteriza- tion of it as O'Leary questioning Williams "in front of other supervisory person- nel and the president of the Company." In any event; it seems to me most likely that it was not long afterward that Williams learned from her friend what hap- pened during Swinyar's two conversations later that day. And as we shall pres- ently see, both of Swinyar's conversations undoubtedly ended on the theme that it was all right with the Respondent if the employees wanted to bring back the Union. We turn now to the two Swinyar conversations which occurred later that day, taking the latter of the two first because it is much the simpler one. Whatever may have been the reason for questioning Swinyar for a second time that day, it is obvious that Pirrie, who was admittedly out of the city at that time, could not have been present, despite Swinyar's vivid insistence initially that he was pres- ent then, The evidence as a whole persuades me that Swinyar correctly placed this second. conversation "in the front office" and that only McGhee was talking to Swinyar at the outset that evening. As a part of the conversation before O'Leary got there, McGhee asked Swinyar, as Swinyar testified without contradic- tion and with essential consistency, where the union cards were and who had the cards. During the initial part of the conversation, Swinyar insisted that she did not know anything about union cards. Moreover, the only thing which I am convinced was said after O'Leary joined McGhee and Swinyar was O'Leary's state- ment to Swinyar, to quote Swinyar's version of it, "If you want the union, bring it back. Just let Albert know what you would like, one way or the other. Just make it easy on him so he knows what to do." Thus there can be no doubt that the series of three conversations that day ended with essentially the foregoing statement by O'Leary to Swinyar. Further, it is clear from Swinyar's testimony that, as O'Leary in point of fact patently does, Swinyar understood that O'Leary substantially outranks McGhee in authority. We come now to the discussion involving Swinyar about noon on the day in question. It is this middle one of the three conversations that day about which the evidence is the most extensive and the least consistent. Nevertheless, after long study of the evidence, there are a number of things about this conversation. concerning which I feel reasonbaly confident, although other aspects are tinged with considerable uncertainty, especially because the two principal participants, Swinyar and O'Leary, both of whom understandably may well have felt that the whole truth would not serve her best interest, did not impress me as uniformly candid witnesses3B In my opinion, it is Fuchs' testimony which accurately describes this conversation's place and participants. This was not a secret huddle in the conference room. Nor was it a panel quiz, with four members of management interrogating a single so Without belaboring the point, one whose allegiances have repeatedly shifted may find the full truth as embarrassing as one whose singleness of purpose has not deviated in many years. And it must also be remembered that both the Respondent, of which O'Leary has long been one of the two active officers, and Marie Swinyar, one of the three forming the Employees Committee, repeatedly appear, including in the caption, in the order, and in the notice, in the Board's decision in Case No. 7-CA-1243, which at the time of the hearing in the instant matter was still pending before the Sixth Circuit Court. But for reasons earlier noted, I do not believe that pinpointing all credibility matters would serve any useful purpose. THE MULTI-COLOR COMPANY 455 employee.40 What took place was rather a discussion of some 10 minutes or so between O'Leary and Swinyar in O'Leary's office. This conversation was wit- nessed through a wide door by Fuchs who was in his adjoining office. Toward the end of the conversation, Fuchs, who left before Swinyar did; asked Swinyar to please inform him if there was a change in the attitude of the employees be- cause he just wanted to know whether or not the employees did want the Union. Other than the foregoing remark as Fuchs left, the conversation was between Swinyar and O'Leary, who at or near the end of the conversation also urged Swinyar to let Fuchs know if the employees wanted the Union, indicating that it would be better to bring the Union back, if that was what the employees wanted, rather than to have all of the unrest. It is particularly significant that the thing about this conversation concerning which the testimony of Fuchs, Swinyar, and O'Leary is uniformly consistent is that the closing remarks of this conversation were essentially of the above nature. I find it also quite significant that the testimony of Swinyar and O'Leary is in agreement that it was during this conversion that Swinyar first learned that Mier had not been discharged at all but had "walked out." This information appar- ently was supplied early in the conversation by O'Leary when Swinyar, in re- sponse to O'Leary's opening remarks about the unrest and her inquiry as to what was causing it, told O'Leary that the upset and commotion among the employees was due to the "dismissal" of Mier. It must have come as a real jolt for the employee who "had in the past been a leading, if not the most prominent, pro- tagonist of the anti-Union activities," to borrow a characterization of Swinyar from the General Counsel's brief, but who by that time had switched roles and was then signing up employees for the Union, to be suddenly confronted with the proba- bility that the basic premise motivating her shift in roles was an erroneous one. In any event, I think that this unexpected but crucial information may have been of "sufficient traumatic import" 41 to leave Swinyar, "a relatively bold worker," as the Union's brief correctly puts it, somewhat stunned and uncertain as to the validity of her course of conduct. In addition, I think it is quite possible that preoccupation on Swinyar's part, with this unexpected development and its possible ramifications, may account, on the one hand, for the vagueness of Swinyar's mem- ory as to what transpired immediately afterwards during the conversation, when O'Leary undoubtedly questioned Swinyar in some fashion or other as to what Swinyar knew about or had to do with union cards, and, on the other hand, for the unwillingness of Swinyar to admit at that time that she knew anything about or had anything to do with circulating union cards. Furthermore, since Swinyar could not know how other employees who had signed union cards under the im- pression that Mier had been discharged might feel about being represented by the Union, upon learning that this longstanding employee had actually quit instead, Swinyarwas obviously not in a position to tell O'Leary and Fuchs what the em- ployees really felt about bringing the Union back, when she was urged to let them know if the attitude of the employees on that score had changed. Thus during a conversation in which O'Leary and Fuchs were trying to find out what the "score" was with respect to the Union, the individual from whom they were seek- ing information suddenly found that she herself was uncertain as to the "score." In the course of the foregoing analysis, enough has been said about several of the contentions of the parties concerning interrogation to indicate the basic con- siderations which, after patient reflection on these complicated problems, have become uppermost in my thinking with respect to these issues. To be sure, the Union had not recently asked the Respondent to recognize or to bargain with it. But the Respondent was at that time under a Board order to bargain with the Union, and it was also confronted with employee unrest 42 which it understood was associated with renewed union activity. It can scarcely be said to be unreasonable for top management, under such circumstances, to try to find out from an employee leader, who had in the past been against the Union, whether the attitude of the employees had changed and to try to convey to that employee management's desire to, get things straightened out by bringing the Union back, if that was what the employees -wanted. In my opinion, despite some ragged edges which leave this 10 Not only was Pirrie clearly not in Detroit at the time, but if Sisson was in the office at all, I am satisfied that he was leaving O'Leary's office as Swinyar entered it. Compare footnote 31. "This phrase Is from the General Counsel's brief, which explains Swinyar's "somewhat weak" memory of her conversations as due to lack of "sufficient traumatic import to her." ° Characterized In the General Counsel's brief as "widespread and noticeable ferment among the employees." 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter not without elements of doubt, the foregoing is essentially what the core of the Respondent's conduct actually comes down to, when appraised under all of the circumstances which the principles of the Board's Blue Flash decision make relevant. In short, when the evidence as a whole is viewed in the light of all credibility factors and the uncertain residue of probable facts therefrom is considered in the light of the complex factors in this case which constitute the surrounding circum- stances, I am not convinced that the General Counsel has shown by substantial -evidence on the record considered as a whole that the interrogation of Swinyar and Williams was of such an extent and nature as to exceed the permissible bounds of inquiry under the Board's Blue Flash doctrine. Accordingly, it will be recom- mended below that the allegation as to interrogation be dismissed. B. The Grievance Committee 1. The contentions of the parties It may expedite consideration of the issues concerning the Grievance Committee, .about which the evidence is in some respects ambiguous and inconsistent, to state at the outset the positions of the parties concerning said committee and the role of the December 6 general meeting with respect to it. The General Counsel's brief states the ultimate issues with respect to the Griev- ance Committee as being, first, whether or not said committee is a labor organiza- ltion within the meaning of the Act, and second, whether or not it is dominated by the Respondent. As to the first, the General Counsel, relying on factual and legal contentions considered later, contends essentially that the Grievance Commit- tee is not "a mere forum of discussion between the Employer and employees," but :a labor organization whose purpose is "to channelize employee complaints to management," and whose fundamental design is to afford "a formalized step by step process from the presentation to the resolution of employee complaints." Respecting the second ultimate issue, the General Counsels' brief advances vari- ous factual and legal contentions to establish the domination of the Grievance ,Committee by the Respondent. Leaving part of these for later discussion, it should be noted now that the General Counsel visualizes the Grievance Committee as "a culmination of ideas which originated with and were crystallized not by rank and file employees but by supervisory employees." The brief also points out that it was against a "backdrop of turmoil" and a "renascence" of union activities which "encompassed the total employee complement" that the Respondent followed its "customary response to an employee crisis" by calling one of its "rare" employee meetings. The General Counsel then contends that: The Grievance Committee "had its genesis prior to" the December 6 meeting in discussions among "three supervisory employees, McGhee, Evans and Sisson"; when said meeting "had turned into a disorganized rabble," Sisson laid before it "the pre-formed idea of :an e.r.p."; at said meeting said proposal was given "further momentum through vocal support by his two colleagues, McGhee and Evans"; no decision on the •creation of such a committee was reached at the December 6 meeting; and such a "succession of events nullifies any possible argument" that the Grievance Com- -mittee evolved from "a spontaneous employee act." The General Counsel sees the ultimate establishment of the Grievance Committee as evolving from the continued .activities after the meeting of "the same trio of supervisors," who decided to effectuate the idea, secured the "approval and endorsement" of Fuchs, and, through McGhee, "directed the department and branch managers to suggest this committee system to their employees." Further, a broad parallel is urged by the General ,Counsel between the sequence of events surrounding the emergence of the Griev- ance Committee in the instant matter and those surrounding the Employees Com- mittee in the former complaint case. We turn next to some of the contentions of the Union. Respecting the role played by Sisson, Evans, and McGhee with respect to the Grievance Committee, the Union's brief -stresses a conversation among them as having planted the "seed" leading to the organization of said committee; asserts that when the discussion at the general meeting of December 6, called "by management to explain the back- ground" with respect to Mier, eventually "took a turn toward union representa- tion," said three supervisors "intimately" joined in working out "the mechanics for setting up the Grievance Committee" during said meeting; and emphasizes the subsequent role of McGhee, then the assistant production manager,43 whose above- 41 It will be recalled that Production Manager Pirrie did not return to Detroit until December 9, 1956. THE MULTI-COLOR COMPANY 457 discussed role in questioning Swinyar is also stressed in said brief . In fact, in the section devoted to analyzing numerous decisions to support the general position that the Grievance Committee is a dominated labor organization, the Union's brief states: The fact is, the very existence of the Committee and its continued operation was so personally due to the activity of Supervisor McGhee that it is prac- tically McGhee's organization, though other supervisors played lesser parts. Coming now to the Respondent 's contentions, the opening paragraph in the section of its brief stating facts about the "Committees," with page citation omitted and italic supplied, reads as follows: Shortly prior to the December 6 meeting there was a discussion about the existing turmoil among the employees between Evans , McGhee and Sisson. They concluded that employees should be given full information on the Marge Mier incident and that some method of handling daily complaints should be set up. It was their personal idea that this might be done by having the employees set up some kind of a representative committee . At the meeting on December 6 Sisson suggested a committee consisting of one person from management, one from supervision and one from the hourly rated employees, but that was turned down. Later McGhee asked each of the branch managers to suggest to the employees the selection of a representative to form a com- mittee. Reserving for the moment other factual positions with respect to the Grievance Committee and the December 6 meeting, we turn to the Respondent's three overall contentions, which the portion of its brief devoted to the legal aspects of the prob- lem summarizes as follows, in its opening paragraph: Respondent contends first , that the so-called grievance committee is not a labor organization as defined in the Act; second , that it has not recognized and bargained with the so-called committee on any matters covered by the Act; and third, that there is no testimony that Respondent or anyone else has contributed any support, financial or otherwise, to the Committee. Thereafter, quoting at some length from two circuit court decisions,44 the Re- spondent takes essentially the position that: It has a legitimate interest in having "an established channel of communication" between itself and its employees; said committee was such a channel rather than "an organization of any kind"; the "so-called committee had no authority from the employees of the company"; it was "an abortive effort to provide a means of avoiding unrest and disturbance and to improve the company's operations"; and any contribution by the Respondent was "limited to permitting the committee to hold a meeting on Respondent's premises during working hours without loss of pay." The Respondent's brief also contends that: The "necessity or advisability for establishing some means by which the Respondent could communicate with its employees is apparent" from the cir- cumstances which then existed and from the "four widely separated locations" at which the Respondent operates; "only a limited number" of the Respondent's 90 to 95 employees had ever been represented at any time by a labor organization; solicitation by the Union at that time was confined to the classifications which the Union had previously represented; and the Respondent demonstrated its "entire good faith in the matter by specifically stating that the committee could not repre- sent the employees who had previously been represented" by the Union. The legal argument in the Respondent's brief closes as follows: The record shows that some of the supervisory employees and one of the hourly rated employees 45 concluded that a representative committee would be helpful to the business and that they made the suggestion which resulted in two meetings of a five-man group of hourly rated employees. The over-all management of the company is not connected in any way by the record in this case with this abortive attempt to set up a representative group.46 44Coppus Engineering Corporation v. N.L.R.B., 240 F. 2d 564 (C.A. 1), and N.L.R.B. v. Associated Machines, Inc., 219 F. 2d 433 (C.A. 6). 46 In addition to the stipulation respecting the supervisory status of McGhee, stated in footnote 30, the parties also stipulated that "James Evans is photographic department manager" and a supervisor within the meaning of the Act. The supervisory status of Horace Sisson, however, is in dispute. 4e While the Respondent's brief repeatedly uses "abortive" with reference to the Griev- ance Committee, which the evidence indicates has not met since the two meetings it held' 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The inception of the committee idea and the role of the December 6 meeting There can be no doubt that the idea of establishing a committee had its incep- tion before the December 6 meeting, during a conversation among Sisson, Evans, and McGhee, who are twice referred to in Fuchs' affidavit as "three supervisory -employees." As has already been indicated, Evans and McGhee admittedly are supervisors within the meaning of the Act. As to Sisson, an older man, he is -described in Fuchs' affidavit as doing "sales, clerical and expediting work," and in an affidavit of Evans as an employee "who assisted the manager of the photo circuit department." Sisson testified that his duties included "outside contacting of prospective customers in connection with contracts and orders," and that the head of his department is the only other one doing that type of work. I am satisfied that Sisson's functions are and have been for many years too closely allied to management to make him merely a rank-and-file employee, even assuming that the evidence falls short of establishing that he is a supervisor within the meaning of the Act. As a witness called by the General Counsel under Rule 43-B, Evans testified that "either the day of the meeting, or the day before," he had a discussion with McGhee and Sisson; that they decided that "there should be a meeting held so .all the employees could be told the truth about the case of Mrs. Mier"; and that the following statements, appearing in an affidavit which he signed on May 23, 1957, and which was received in evidence without objection, are true: We also discussed the fact that there had never been any organized basis for handling the daily complaints on little matters which arise in any operation. We agreed that some way should be provided to give the employees a chance to make their complaints to someone who would present them to the manage- ment and we came to the conclusion that it would be a good idea to have the employees set up some kind of a representative committee. [Emphasis supplied.] Evans, the manager of the photographic department, also testified that he had been aware of disturbance and unrest in the plant; that he considered it important to have an employee meeting "to quell all the rumors that were going around" about Mier; and that the suggestions that such a meeting should be held was made to Fuchs. We come now to the meeting of December 6, 1956, about some aspects of which the evidence is relatively consistent, but as to others there are "some dis- crepancies with respect to the details," to use a mild phrase from the Respondent's brief. The evidence is consistent that: This meeting was held after work in the Respondent's main office; it was called by Fuchs through the usual supervisory channels; the meeting included supervisors as well as employees; most of the em- ployees were in attendance; and Fuchs opened the meeting by standing on a little stool and explaining in some detail what had happened with respect to Mier, -emphasizing that she had not been discharged but had quit. In my opinion, the weight of the evidence as a whole indicates that the Re- spondent's purpose in calling this meeting was to explain the background of the separation of Mier to its entire staff and thereby allay rumors and suspicion. I also believe that Fuchs reached his decision to use such a meeting of all the employees for this purpose, not as "a direct result" of a discussion with Swinyar, as the General Counsel contends, but rather as a result of what he had learned from all sources about the unrest which undoubtedly had by that time developed 47 Further, I do not believe that the evidence concerning this meeting, namely, the testimony of Swinyar, Fuchs, Evans, and McGhee, and the affidavits of Fuchs, Evans, and O'Leary, upon a careful analysis of which the findings herein have been made, warrants any inference that Fuchs knew, at the time he called the meeting, about the opinion which Sisson, McGhee, and Evans had already formed concerning the desirability of the employees having a committee. Nor does there appear to be any substantial basis for inferring that in calling the meeting Fuchs intended that the discussion should take any turn toward employee representation. My analysis of all of the evidence as to this meeting convinces me that said meeting, which lasted less than an hour all told, passed through three phases, and during December 1956, I do not consider the issues pertaining to the Grievance Committee to be moot. See the last paragraph in the above-cited decision of the Sixth Circuit Court in Associated Machines. 47 For instance, Fuchs testified at one point that he thought that "the department heads all wanted such a meeting." - THE MULTI-COLOR COMPANY 459 that, so far as determinable and material to the contentions before me, what fol- lows is essentially what happened after Fuchs had opened the first phase of the meeting with his explanation about the separation of Mier. Fuchs then mentioned some of the things which it had been reported to him "had been told to various employees " by Mier, referring specifically to a statement that Mier "was alleged to have made that there would be no distribution of a Christmas bonus." Fuchs stated that "the payment of the bonus had always been dependent on the profits which the company might make and that the matter had not even - been considered for the current year." Fuchs explained that "a decision with respect to this bonus would be made after" the books had been examined and the Respondent knew "in a general way the results of the current year's operations ." 48 Fuchs also dis- claimed any basis for "vicious rumors " which he said he had heard that Mier had . started ,49 and explained that he wanted to carry on company policies and tradi- tions established by his father , whose death a few months earlier in an accident has already been noted . This first phase of the meeting concluded with Fuchs and O'Leary, but not the supervisors , leaving it, at the juncture and for the reason set ,out in these words in O'Leary 's affidavit: When Mr. Fuchs finished speaking, there was a general discussion concerning the company's operations which continued for a short time and then some employees asked a question about union representation . Mr. Fuchs stated that he would not enter any discussion on that subject but that he would leave the meeting and the employees could discuss it among themselves. The evidence as to what transpired during the second phase of the meeting, after Fuchs and O'Leary had left the employees, including the supervisors, to continue the discussion , is not very coherent or complete . Apparently there was some con- fusion of representation by the Union and possibly of some "gripes ." Appar- ently Evans eventually acted as chairman and there was also some discussion of a proposal advanced by Sisson that a committee be formed, said suggestion being approved by Evans and McGhee. In addition , there may have been some expla- nation by McGhee of how the merit system of compensation worked , but the .affirmative evidence in the record on this matter, testimony of Swinyar which is in conflict with that of Evans, is not sufficiently consistent or convincing to estab- lish any parallel with discussion of the merit system at the meeting of November 22, 1954, in the former complaint case. As the Board and the Trial Examiner both stressed, during that meeting, which was confined to employees in the unit which the Union represented and supervisors , Fuchs himself had gone into the question of the merit system and had secured an expression of employee opinion thereon.so In any event, Fuchs' affidavit states that the day following the meeting , he heard that during his absence from said meeting "there was a considerable amount of talk about pros and cons of the teamsters ' union," and that he also was told that "a suggestion was made at the meeting by some employee that they should organ- ize a committee or group to take up gripes , complaints or grievances with the management." 51 It was McGhee's testimony that no decision was reached at the meeting on any subject . The affidavit of Evans contains the following passage, which is the most coherent statement in the record on this particular point and .is accepted: Mr. Sisson at the meeting suggested a committee of one representative of the employees , one from the salaried staff and one from management. This idea was not acceptable . The employees themselves suggested that the employees pick one or two employees from each department to straighten out difficulties. However, nothing definite was decided at the meeting . [Emphasis supplied.] Furthermore, from testimony of Swinyar which I credit and from admissions in -the Respondent's brief, I find that during the meeting both McGhee and Evans expressed their approval of the idea advanced by Sisson that the employees form a committee . And finally, I am fully satisfied that, despite the approval of a . The above quotations are from Fuchs ' affidavit and are consistent with both Fuchs' testimony and other evidences as to the discussion of the Christmas bonus. "The term "vicious rumors" is taken from the testimony of Swinyar , who testified that among rumors which she had heard was one that before Fuchs "would let the union come back in that he would sell the company , since his dad was gone." See 114 NLRB 1129 at 1131 and 1139. For reasons which appear presently, I have no doubt that McGhee was one of those who so informed Fuchs, 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee plan voiced by admitted supervisors, McGhee and Evans, there was no action taken at the December 6 meeting by the employees to adopt, approve, or institute any kind of employee committee, much less any working out of "the mechanics for setting up the Grievance. Committee," as the Union contends. The final phase of the meeting began when Fuchs (but not O'Leary) was called back to answer some questions and to discuss some of the complaints which em- ployees had about conditions. Most of these matters involved "such things as the furnishing of gloves in one of the departments." However, a question was raised with respect to "the wage rate of employees in the printed circuit department." These employees are among the majority of the Respondent' s employees who have never been organized. They "complained that there had been no wage increase for some time and expressed their desire for an adjustment in the rates." Fuchs told them that the Respondent was "attempting to establish a new line of work and that the department had continuously lost money." Fuchs also explained that he could not "promise any wage increase in that department" at that time; that he had "high hopes that the department would become profitable"; and that when it did, "those employees who had stayed with the company would receive the benefits in the form of increased wages." 52 In my opinion, the significance of this third phase of the meeting lies in the fact that there obviously were working conditions about which employees were not satisfied, even though they had not accepted the idea sponsored by Sisson, McGhee, and Evans of forming a com- mittee to present them to management. Before leaving the meeting of December 6, 1956, at which, in contrast with the meeting 2 years earlier, no refreshments were served, it should be noted that whereas the Employees Committee in the former case was clearly formed during a phase of the 1954 meeting, no committee at all had come into existence by the close of the 1956 meeting. Furthermore, without recapitulating here variations between the two meetings which already have been touched upon, and without adding other variations which a comparison of all of the facts found about these two meetings will show, it would be well to state that I am not convinced, par- ticularly in view of the decision of the Sixth Circuit Court in 250 F. 2d 573, that there is any significance to the broad parallel urged by the General Counsel in the sequence of events in the two cases. 3. The establishment, structure, and function of the Grievance Committee Upon analyzing and weighing the evidence in the record about the matters cov- ered by this section of the report, I am convinced that, generally speaking, the most cogent, concise, and reliable evidence thereon is to be found in certain later- quoted portions of the affidavits of Fuchs and Evans. Further, I am satisfied that the weight of the evidence as a whole, despite some variations, ambiguities, and inconsistencies, warrants the findings which follow in this section of the report, and that to the extent that any testimony of Fuchs, McGhee, or Charles Miller may be inconsistent with such findings, such testimony is not to be credited. Con- cerning credibility problems, it would be well to point out again what has already been said above in footnote 27 with respect to Fuchs' affidavit and his testimony in general. As to Charles Miller, it should be noted that he is shown, in the text which precedes footnote 4, to have been served with notice of hearing but that he chose not to enter an appearance. As the first witness called by the General Counsel, Miller appeared to me to be testifying reluctantly, and some of his testi- mony about the Grievance Committee was vague and evasive. Of course, all of Miller's testimony has been taken into consideration, along with all of the other evidence, in making the findings which follow, and some of such findings are based largely on Miller's testimony. Shortly after the December 6 meeting,53 Fuchs learned from McGhee, if not from Evans and Sisson also, of the conclusion which those three had reached that "the complaints and questions of the employees" were magnified because they had "no one with whom they could discuss the conditions to which they objected," and that this situation could be corrected by "having the employees form a committee" to which each individual could "express his own gripes and complaints," with the 62 The quotations in the above paragraph are from Fuchs' affidavit, which I am satisfied, from all of the evidence, including Fuchs' own testimony, is in error in placing this phase of the meeting before the Union and a committee were discussed. There can be no doubt that Fuchs was called back to the meeting after he had left, and it is quite clear that be and O'Leary left at the point where the discussion "took a turn toward union representation." as Fuchs testified that it was within "a relatively short period . . . one, two, three days." THE MULTI-COLOR COMPANY 461 committee then discussing "these conditions with the management." With respect to the foregoing, Fuchs told his informants that he had "no objection to any kind of an organization that the employees wanted" and that he thought it was "a good idea to give the employees some way to bring their complaints to the attention of the "management." Thereafter the above-named "three supervisory employees took the matter up with department heads and asked them to suggest to their employees a plan of this kind." 54 It is clear from the evidence as a whole that, having secured Fuchs' approval of the plan to set up an employee committee, the initiative in carrying out the project was taken by McGhee. In fact, McGhee testified that he was the one who asked each of the branch managers and department heads to suggest to their em- ployees that they select representatives to form a committee. While the timing is not precisely fixed by the record, the foregoing activity by Assistant Production Manager McGhee could well have taken place before Production Manager Pirrie returned to Detroit on December 9. At any rate, Fuchs testified that he thought that "it was one, two, or three days, just shortly after" the December 6 meeting that the first meeting of the committee of five employees, one from each of the Respondent's five branches, was held. Moreover, I find certain statements in the affidavit of Evans, whose department (by some process or other which is not at all clear in the record) selected Miller as its representative, quite revealing as to the dominant role played by McGhee in establishing the committee. Following an explanation that shortly after the December 6 meeting he had heard that "it had been decided to go ahead with the idea" which McGhee had presented to Fuchs, Evans' affidavit reads: Afterwards all department heads were advised to inform their people that there was going to be another meeting and that the employees pick a repre- sentative, which they did do in each department. Mr. McGhee was the one who advised me of this. Each department chose their own representative. These representatives held a meeting at which the committee was formalized. [Emphasis supplied.] The Grievance Committee has held two meetings, about a week apart, during mid-December 1956. Both meetings were held on the Respondent's time and on its property without any loss of pay to those attending. The first meeting was a morning one which lasted about 2 hours. It was held in the conference room at 116 Delaware and probably took place during the early part of the week begin- ning Monday, December 10. The five employee representatives present, none of whom were from classifications formerly represented by the Union, included Miller, who was later replaced by another employee from his branch, and Robert Wyatt, whose alleged supervisory status is sharply disputed.55 Fuchs and McGhee were both present at this first meeting, McGhee coming "in and out as business called." In addition, Sisson attended one of the two meetings, probably the first one, having been, according to McGhee, "asked to sit in because of his wide amount of expe- rience with some other companies." During the first meeting, which did not include "office personnel," Vice Presi- dent Fuchs "ruled out the union group," that is to say, excluded those categories which the Union had represented from coverage by the committee, so that the employees at the five branches whom the five representatives present were treated as representing comprised "just a production group." 56 In addition, Fuchs sug- gested that a three-man group could get together easier and might accomplish more, when considering matters brought up by the five employee representatives, of whom Wyatt became the chairman, and that group's only officer. Such a three-man group, referred to hereinafter as the Appeal Board, was set up. It in- cluded Fuchs himself as the representative of management, Wyatt as the repre- sentative of the five-man group of employee representatives, and Miller, who was selected as a third representative satisfactory to both management and employee representatives. Upon being so selected, Miller resigned to accept the position on the Appeal Board, and his place as an employee representative was thereafter ^ The quotations in the above paragraph are from Fuchs ' affidavit. 55 Wyatt represented the branch at 126 Delaware , and Miller the one at 116 Delaware. Miller was replaced by Jim Burd before the second meeting. The representatives from the remaining three branches were : Leonard Dunton , downtown branch ; Sam Corman, Oakland branch ; and Paul Plavliscak , northwest branch. The only employee representa- tive as to whom any question about supervisory status has been raised is Wyatt. ° The quotations in the above sentence are from testimony of Miller which is not in conflict with any other evidence. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filled by another employee from his branch before the second meeting . At the: second meeting, those present included the five employee representatives , Fuchs,. McGhee, and Miller. Before going further into detail about the Grievance Committee , it would be. well to summarize, by quoting from Fuchs' affidavit , just what Fuchs understood to be the structure and function of the Grievance Committee . According to Fuchs, "committee members were designated by general agreement among the employees. in each group without any formal election," none being supervisory employees or from classifications claimed by the Union . The affidavit then proceeds as follows: The committee plans to meet once each month, at which time each member is to present any complaints or gripes . which have come to his attention., The committee then takes up with management any complaints which have not- been eliminated , and if the representative of management who is directly in. charge of the operation where the complaint is applicable does not dispose of it, it is referred by the committee to what might be called an "Appeal. Board." [Emphasis supplied.] After explaining the composition of the Appeal Board, Fuchs' affidavit continues: The "Appeal Board" has had only one matter brought to their attention which. was to systematize the merit system of compensation which is used with respect to production employees and others , not including the classifications who have been represented by the teamsters ' union. As a result of this sug- gestion, the merit system has been somewhat formalized . . Any dissatis- faction of any employee with his merit rating is a proper subject to be taken up through the committee which handles the complaints of employees. [Em- phasis supplied.] Fuchs' affidavit concludes by explaining that the procedure established helps "to eliminate conditions to which employees might object"; that he has heard "no, complaints from employees concerning the system "; and that he believes that the employees are benefited by having "someone to whom they feel free to state any- complaint which they may have concerning the operation of the company ." [Em-- phasis supplied.] The production employees covered by the Grievance Committee have never been accorded an opportunity to vote on whether or not they want said commit- tee. Further , said committee, which obviously has been established largely through, the efforts of McGhee ,57 has never received any written authorization from any employees to represent them . The Grievance Committee has no members, no, constitution , no bylaws, no records , no minutes of meetings, no dues, no funds, and no expenses. Said committee 's functions have obviously been made possible by the use of Respondent's time , premises, and facilities , and it is apparent that any representative's service as such can continue only so long as he remains an employee of the Respondent . There is nothing in the evidence to show that any- representative has any sort of tenure of office as a representative or has been selected as such representative by secret ballot . In fact, Miller's own testimony as to how he was selected indicates that he was not selected by any kind of ballot, and Fuchs' understanding was that such designations were "without any formal election." The evidence as a whole indicates that the participation of employees them- selves in the functioning of the Grievance Committee consists of their informal selection of their departmental representative, the presentation of any kind of- gripes, grievances , or complaints to him , and the receipt from the representative of information about anything done by the Grievance Committee ,58 including any action which may be taken thereafter in the handling of any matters presented" at any of the several steps under the grievance procedure which culminates in the Appeal Board , which the Union properly characterizes in its brief as "sort of an arbitration procedure to take care of grievances." Among matters which were discussed at one or the other or both of the two meetings of the Grievance Committee were that "everybody would like more, sr There is much in the evidence which bears out the contention of the Union that the Grievance Committee "is practically McChee's organization ." In this respect, it is note- worthy that Miller testified that it - was McGhee who arranged for the employees involved to get together after the first meeting to pick Miller's successor as an employee repre- sentative after Miller had become one of the three members of the Appeal Board. 5' Miller testified that the five representatives "are to go hack and tell their group what occurred" and that he reported back informally to the employees at his branch. THE MULTI-COLOR COMPANY 463 money," 59 and that there should be some sort of clarification and certainty about wage scales and job classifications . While nothing seems to have been done about the former, the latter problem was handled in such a way that it was referred to in Fuchs' affidavit as the "only" matter brought to the attention of the Appeal Board. In any event, despite some evasive and ambiguous testimony on this mat - ter, there can be no doubt that the problems involved were discussed at some length during both of the meetings . Moreover, it is quite clear that by the end of the second meeting, despite the Respondent 's apparent policy not to "discuss wage rates of any employee with other employees," 60 the employee representatives were able to take back for posting on the bulletin boards at each of the Respond- ent's branches a one-page document , which met with Fuchs' approval and which read as follows: Official Wage Scale and Job Classification for Production Personnel B. Helper: $1.24 to $1.54 per hour. Anyone in the process of helping in production and training for the job of operator and junior technician. C. Operators and Junior Technicians: $1.50 to $1.80 per hour. Those whose principle (sic) job is the operation of the major machines of reproduction and/or those whose jobs involve the processing of Printed Circuits. D. Technicians : $ 1.74 to $2.04 per hour. Those who have obtained a high degree of proficiency in their quality of product. Capable of using all production machines in their departments and have displayed the necessary amount of initiative to carry a job through to completions without constant job check and supervision. E. Senior Technicians : $2.00 to Those whose skills have taken them to a position where they are capable of any function of their department . These would include those who assist department heads, department heads and branch managers. It is the foregoing document which Fuchs' affidavit refers to as "somewhat" formalizing the "merit system," and with respect to "his merit rating ," any dis- satisfaction of any employee "is a proper subject to be taken up through the committee." 4. Conclusions as to the Grievance Committee The facts which have been found above dispose of many of the contentions of the parties set forth in the first part of this division of the report. The principal questions remaining are whether or not the Grievance Committee , of which the Appeal Board is patently an integral part,81 is a labor organization within the meaning of the Act, and whether or not the Grievance Committee is dominated by the Respondent . We will consider the latter question first. Undoubtedly the idea of having the employees form a "representative committee" to present their "complaints" to management was conceived before the December 6 meeting by McGhee, Evans , and Sisson , but their "idea was not acceptable" to the employees at said meeting and "nothing definite was decided" at the December 6 meeting. Shortly afterward, the idea of a representative committee , which the "three supervisors" had not been able to sell to the employees on December 6, was explained to Fuchs by McGhee. Fuchs approved and accepted the plan. McGhee thereupon advised all department heads to inform their employees to "pick a representative, which they did do in each department ." These five repre- sentatives selected by the employees met, without loss of pay , on the Respondent's time and premises . At their first meeting, with Fuchs, McGhee, and Sisson also present, Fuchs proposed the Advisory Board, which was accepted and set up at that meeting, thus completing the general structure of the Grievance Committee. In my opinion , the facts demonstrate beyond doubt that: The Grievance Com- mittee, from the birth of the idea to its execution , establishment , and maintenance, is essentially the creature of the Respondent; the Respondent has formed and assisted in the formation of its plan and its operating procedures ; the Respondent 59 This phrase is from Efiller 's testimony . He also testified that this complaint was "more or less unanimous " throughout the group but that that "was as far as it went." eo This phrase is from O 'Leary's affidavit. O' When "Grievance Committee" is used hereinafter , it will be understood to include the Appeal Board. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has dealt with it concerning complaints of its production employees; 62 and the Respondent has participated in and paid all costs of the meetings, proceedings, and activities of the Grievance Committee.63 In short, it is my considered judg- ment that the Respondent's domination of the Grievance Committee is so complete, and that the pattern of such domination is so similar to that revealed by the recent Board decision in Pacemaker Corporation, 120 NLRB 987, that said com- mittee must be completely disestablished,64 provided the Grievance Committee is a labor organization within the meaning of the Act, to which question we now turn. Obviously the Grievance Committee, to use phraseology from Section 2(5) of the Act, is an "agency or employee representation committee or plan," despite its failure to show many of the structural characteristics found in labor organizations which are independent of employer domination or support. Further, it is a "representation committee or plan, in which employees participate," even though the idea of doing so was not theirs and they selected their representatives on being told to do so by their supervisors. In addition, the central purpose of the plan is clearly to get expressions of employee dissatisfaction channeled to management through the representatives, with action thereon reported back to the employees. And finally, whatever excursions the Grievance Committee might eventually take into such fields as advising the Respondent on production problems and efficiency, or plant layout and equipment, these were not the kind of problems which brought the Grievance Committee into existence, or the type of dissatisfaction considered by it at its two meetings. Manifestly what said committee did do constituted "dealing" with matters falling within some of the several classifications within the broad field characterized by Section 2(5) of the Act as "concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work." One aspect of the Grievance Committee is particularly persuasive on the ques- tion of whether this committee is a labor organization, within the meaning of the Act, or merely a permissible channel of communication whereby the Respondent is enabled, to use a phrase from its brief, to be "advised of the attitude of its employees and to disseminate information among" them. This aspect is the step- by-step procedure intended to be followed by the committee, as described in Fuchs' own words in his affidavit. The first step consists of each representative being advised of the gripes, grievances, or complaints by the employees he represents. The second step consists of each representative presenting to the monthly meeting any complaints which have come to his attention. During the third stage, the representatives of the employees take up with the representatives of management directly in charge of operations any complaints "which have not been eliminated." And finally, any complaints not disposed of at the third stage are referred to the Appeal Board, where the representative of management and the representative of the employees is supplemented by a third individual, acceptable to both. Certainly no channel intended solely for communicating attitudes and dissemi- nating information requires this series of step-by-step developments, aimed at re- solving differences, and culminating in what bears the form of essentially an arbi- tration procedure. In my opinion, this step-by-step setup of the Grievance Com- mittee holds out to the Respondent's production employees a procedure whereby all of their complaints, without restriction as to kind or cause, are envisioned as receiving consideration and possible adjustment. In my opinion, the Grievance Committee is undoubtedly a labor organization within the meaning of the Act. In reaching the foregoing conclusion, and the above conclusion as to domina- tion, I have given detailed consideration to the decision of the First Circuit in Coppus Engineering and to that of the Sixth Circuit in Associated Machines, cited 62 In my opinion, the evidence does not establish the allegation of the complaint that the Respondent has dealt with said committee for any of the classifications of employees in the unit which the Union has represented. 61 It is immaterial that the record does not show that the Respondent's support of the Grievance Committee has entailed any contributions of cash, as such. g In reaching the above ultimate conclusion, I have considered the contested position of the General Counsel that Wyatt, the chairman of the employee representatives, is a supervisor, and the numerous bits of evidence adduced as to Wyatt's duties and authority. While the matter is not without some elements of doubt, the evidence as a whole with respect to Wyatt has not impressed me as sufficiently substantial to warrant a finding that Wyatt actually is a supervisor within the meaning of the Act. But in any event, such a finding, which would be at best a very tenuous one, would not change the ultimate result, or even appreciably strengthen the basis for the above conclusion. THE 'MUL• TI-COLOR COMPANY 465- by, the : kespondent , 65 and-'to the arguments of the"Respondent `ba'sed . thereon.., -I have also considered the recent ' decision ' of the Fifth. Circuit in !Cabot Carbon;66 which issued after the briefs were filed- in the instant matter and -which appears to afford more support for the Respondent 's general position on the labor organi- zation issue than either of the cases which the Respondent has cited . However, as the , Fifth Circuit states . toward the close of its decision . in Cabot Carbon, in "almost every, case . -where the [labor organization ] question , has been raised the court has held that an employee committee or council or association is a labor organization." - The decision .thereupon cites, in its footnote 9, three : cases "decided prior, to the Labor-Management Act of 1947," and five cases "to the same effect" decided later. Of these five . later cases, two are cases, in which I served as the, Trial Examiner and found ' that the organization involved was a labor organization - which . the respective.. employers ,- had dominated and, which therefore should be disestablished. , -In both of those cases, findings which ' are here material were adopted in decisions of the Board . which _were thereafter enforced in respect to . the 8 (a)(2) issues, respectively, by the First Circuit in its Standard Coil Products decision,fi7 and by the Seventh Circuit in its decision, in Indiana Metal Products.68 ,Among the numerous cases cited throughout-their briefs by, the General Counsel and the Union , the Union cites Indiana Metal Products once, and the Union and the. General Counsel each cite Standard Coil Products twice. I In my opinion, both of these decisions , involving , cases ..the details of which , are quite familiar to me,., afford , clear and ample precedent, substantially in line . with the preponderance of other decisional precedents of the Board and the courts , for 'holding that the Grievance Committee is a dominated labor organization within the meaning of the Act. Moreover, it is my considered judgment that discerning and detailed comparison of all of the facts in the instant matter, with those pertaining in the decisions in Coppus Engineering . and in Associated Machines, reveals that those cases both are distinguishable on their facts from the case at bar in various mate - rial respects . But in any event, the legal issue as to what constitutes a- labor organization is ' clearly the type of broad legal issue with respect to which the ' Board, in its above -,quoted decision in Insurance Agents',69 asserts that it is "the Trial Examiner's duty to apply established Board precedent which the Board or the Supreme Court has not reversed." Hence, even if, contrary to ' the ' actual sitdatiori , I believed that the facts of this case justified other disposition than has - been made, because of the circuit court decisions cited by the Respondent 'in Coppus Engineering and Associated Machines, or the recent Fifth Circuit decision in Cabot Carbon.70 I would obviously be required to follow what I am fully satis- fied 'is ' unambiguous and controlling Board ` precedent; as exemplified by the Stand- ' and 'Coil decision,- which was upheld so far as here material by the First Circuit, with respect to which certiorari was denied, and - in which case the core. of the defense was that what was involved was not a labor organization but rather "a legitimate medium of communication with its employees." 71 ' , In view of all of 'the foregoing, I conclude ' and find that by its conduct with respect to the Grievance Committee, the Respondent, beginning shortly after December 6, 1956,72 has assisted , dominated, and interfered with the formation and administration of said committee, and has contributed support to it , thereby vio- lating Section 8(a)(2) and ( 1) of the Act. -' V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section IV, B, above, occurring in connection with the operations of the Respondent described in section I, above, 15 See footnote 44. 88 Cabot Carbon Company and Cabot Shops, Inc. v. N.L.R.B., 256 F. 2d 281. 87 See N.L.R.B. v. Standard Coil Products Co., Inc., 224 F. 2d 465 (C.A. 1), enfg. as mod., 110 NLRB 412, cert. denied, 350 U.S. 902. 88 See Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613 (C.A. 7), enfg. as mod., 100 NLRB 1040. See footnote 16 and the text at that point. It should be noted that the decision of the Board in this case, 117 NLRB 1633, which was reversed by the decision of the Fifth Circuit, is cited three times by the General Counsel in his brief ; this holds true also of the Board's decision in Coppus Engineering Corporation, 115 NLRB 1387, reversed by the First Circuit. 71 See 110 NLRB 412 at 420. 72 My finding of violation is not based upon the unsuccessful attempt of supervisors to sell the committee idea to the employees at the December 6 meeting. 505395-59-vol. 122-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 obstnict- ing commerce and the free flow of commerce. VI. THE REMEDY It has been found that the Respondent has assisted, dominated, and interfered with the formation and administration of the Grievance Committee and has con- tributed support to said labor organization. It will therefore be recommended that the Respondent cease and desist from all interference with, assistance to, domination of, or support to the Grievance Committee, and further that Respond- ent disestablish said committee as the representative of its employees for the pur- pose of dealing with its concerning grievances, labor disputes, wages, hours of employment, or other conditions of employment, and that the Respondent refrain from recognizing the Grievance Committee, or any of its component parts, in- cluding the Appeal Board, or any successor thereto, for any of the foregoing purposes. After having given the matter painstaking, consideration,. I . am : not ., convinced that the conduct of the Respondent which has been established by the record herein has been such as to demonstrate a propensity for the commission of unfair labor practices warranting a so-called broad order. Hence I am limiting my rec- ommended order herein to any like or related conduct.73 On the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Multi-Color Company, the Respondent herein, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers Local Union No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and the "Grievance Com- mittee," are labor organizations within the meaning of Section 2(5) of the Act. 3. By assisting, dominating, and interfering with the formation and administra- tion of the "Grievance Committee" and by contributing support to it, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in any unfair labor practices by interroga- tion of its employees with respect to union membership and activities, or by deal- ing with the Grievance Committee for employees in classifications which the Union has represented. [Recommendations omitted from publication.] 73 There are several factors indicating the appropriateness of a limited rather than a broad order. Foremost is the lack of any background of unfair labor practices or anti- union attitude, particularly in view of the decision of the Sixth Circuit denying enforce- ment of the Board's decision in the former complaint case, and the failure of the record in the instant matter to establish illegal interrogation. On the contrary, just before the formation of the Grievance Committee, both Fuchs and O'Leary had informed Swinyar that the Union should be brought back if the employees wanted it. Further, while the discontent stimulated by Dfier's separation undoubtedly was companywide, and there apparently was some discussion about joining the Union among employees who had not previously been included in the unit which it had represented, it is not certain what the Respondent knew of this wider interest in the Union, and the evidence is that the only actual signing up in the Union was by those in the unit. In addition, it seems to me that the Respondent's exclusion from the Grievance Committee of the classifications repre- sented by the Union not only indicates, as the General Counsel contends, the Respondent's control of said committee and its intention that it function in substantial respects as a labor organization, but also demonstrates that the Respondent was not creating the Grievance Committee, or seeking to utilize it, to preclude the Union from representing employees in its established unit. NELSON NAME PLATE COMPANY 467 APPENDIX ` NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 WILL NOT assist, dominate, contribute support to , or interfere with, the formation or administration of any labor organization of our employees, or otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE hereby disestablish the Grievance Committee, including its component part, the Appeal Board, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective •'bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act. THE MULTI-COLOR COMPANY 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. Nelson Name Plate Company, Petitioner and Metal Trades Council of Southern California and its affiliated Local and International Unions, AFL-CIO. Case No. 21-RM-511. De- cember 16, 1958 DECISION AND ORDER Upon a petition duly filed, a hearing was held before Max Stein- feld, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act for the following reasons: The Union moved to dismiss the petition on the ground, among others, that it was not timely filed. The Union and the Employer 122 NLRB No. 66.