Walton Manufacturing Co.

WALTON MANUFACTURING COMPANY 697 Walton Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO. Case No. 10-CA-4093. Feb- ruary 18, 1960 DECISION AND ORDER On September 16, 1959, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He found further that it was unnecessary to decide whether the Respondent had engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions. 1. The Trial Examiner found, and we agree, that Respondent vio- lated Section 8 (a) (1) of the Act by promulgating a no-solicitation rule applicable to its employees, which was not limited to their work- ing time. In its brief, Respondent contends that this finding represents an erroneous interpretation and application of the law with respect to no-solicitation rules, as laid down by the Supreme Court of the United States in the Republic Aviation, Babcock ct Wilcox, and Nutone cases.' We disagree. Thus, as we' interpret these decisions of the Supreme Court, they establish the following rules of law with respect to employer no-solicitation rules : 1. No-solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature on company property by employees during their nonworking time are presumptively an unreasonable impediment to self-organization, and are therefore pre- sumptively invalid both as to their promulgation and enforcement; however, such rules may be validated by evidence that special circum- stances make the rule necessary in order to maintain production or discipline.2 'Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.R.B. v. The Babcock & Wilcom Company, 351 U S. 105; N.L.R B. v. United Steelworkers of America, CIO, Peti- tioner (Nutone, Inc., Intervenor), 357 U.S. 357. 2 Republic Aviation Corporation v. N.L R.B., supra, where the Supreme Court stated that "'We perceive no error in the Board's adoption of this presumption." See also N.L.R.B. v. The Babcock & Wilcom Company, supra, where the Supreme Court reaffirmed 126 NLRB No. 93. Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. No-solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose; 3 and are presumptively valid as to their enforcement, in the absence of evidence that the rule was unfairly applied.' 3. No-solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature by nonemployee union organizers at any time on the employer's property are presumptively valid, in the absence of a showing that the union cannot reasonably reach the employees with its message in any other way, or a showing that the employer's notice discriminates against the union by allowing other solicitation or distribution.5 In the instant case, the rule promulgated by Respondent prohibited its employees from ". . solicitation of . . . memberships . . . or circulation of . . . circulars and handbills" on company property, and provided for "immediate discipline, including discharge" for violation of the rule. Although the rule does not specifically state that the pro- this rule by stating that "no restriction may be placed on the employees' right to discuss self-organization among themselves [during nonworking time], unless the employer can demonstrate that a restriction is necessary to maintain production or discipline Republic Aviation Corporation v. N L.R B., 324 U. S. 793, 1803 " 8 Republic Aviation Corporation v N.L R B., supra, footnote 10. It N L R B. v. United Steelworkers of America, CIO, Petitioner (Na tone, Inc, Inter- venor), supra. In the Nutone case, the Supreme Court also indicated that the following factors are relevant in determining whether "a valid rule has been fairly applied" : (1) The employees must request the employer to make an exception to the rule for pro- union solicitation , even though the employer is engaging in antiunion solicitation and in effect violating the rule himself, because if the employer voluntarily offers the use of his facilities and the time of his employees for proun'ion solicitation he subjects himself to a possible charge of violation of Section 8(a) (2) of the Act; (2) because such a rule is presumptively valid both as to promulgation and enforcement , the union involved has to show that enforcement of the rule is an "unreasonable impediment" to organization In that it cannot effectively carry its message to the employees in any other way. It should be noted, however, as stated by the Supreme Court itself, that the only issue in that case was whether there was unlawful enforcement of an otherwise valid no-solicitation rule appli- cable to employees' working time ; and there 'is no indication that the Court was dealing with or changing the rule it laid down in Republic Aviation, and reaffirmed in Babcock & Wilcox, with respect to a nonworking time no-solicitation rule. 5 N.L.R B. v. The Babcock & Wilcox Company, supra, where the Supreme Court held that "an employer may validly post his property against non-employee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the em- ployer's notice does not discriminate against the union by allowing other distribution." In so holding, the Court set forth the following rationale and rules : "Here the Board failed to make a distinction between rules of law applicable to employees and those 'applicable to non-employees The distinction is one of substance . No restriction may be placed on the employees' right to discuss self-organization among themselves , unless the employer can demonstrate that a restriction is necessary to maintain production or disci- pline. Republic Aviation Corp. v N.L.R.B , 324 U. S 793, 803. But no such obligation is owed nonemployee organizers . Their access to company property is governed by a dif- ferent consideration . The right of self-organization depends in some measure on the ability of employees lo learn the advantages of self-organization from others Conse- quently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property . No such conditions are shown in these records." WALTON MANUFACTURING COMPANY 699 hibition applies to the solicitation of union memberships or the dis- tribution of union literature, it must be construed as having such application, in view of its all-inclusive prohibition of "solicitation" and "circulating," and its implied description of union solicitation and distribution of union literature. Moreover, as the rule does not purport in any way to limit the prohibition to working time, it must be construed as also applying to the employees' nonworking time. Accordingly, we have here a no-solicitation and no-distribution rule applicable to employees during their nonworking time, which rule is presumptively invalid, in the absence of evidence that special cir- cumstances make the rule necessary in order to maintain production or discipline. As Respondent introduced no evidence to show such spe- cial circumstances, the rule is invalid.6 We find, therefore, in agree- ment with the Trial Examiner, that Respondent's promulgation of the rule was a violation of Section 8(a) (1). 4. The Trial Examiner found, and we agree, that Respondent's simultaneous announcement of a management-employee committee for "safety, sanitation, and advisory matters," was also a violation of Section 8 (a) (1) of the Act. Respondent contends that this announcement was not a violation of the Act, because : (1) It was only an announcement of a desire to create such a committee in the future; (2) the purpose of the com- mittee was simply to "improve safety, sanitation, and cleanliness for the general welfare of the employees and the Company"; (3) as there was no majority representative in the plant, Respondent was free to enter into individual contracts with its employees that such a "safety" committee be established; and (4) in order to prove a violation of the Act, the General Counsel had to show that the committee was estab- lished and existing. With respect to contention (1), we note that the announcement states that "There will be a joint Management-Employee Committee for safety, sanitation, and advisory matters which will meet at least once monthly," that "The purpose of this committee shall be to work together" for certain purposes, that "The employee membership of this committee shall consist" of certain employees, and that "The representative from each department shall serve" a certain term "and will then be succeeded" by another employee. [Emphasis supplied.] In view of this positive and mandatory language of the announcement, it is evident, contrary to Respondent's contention, that the announce- ment represented not merely an expression of a "desire" to create the committee described, but in the language of the announcement itself 0 Indeed, Respondent does not even contend that there were such special circumstances. In view of the fact that such a rule is presumptively invalid, and Respondent intro- duced no evidence to rebut such presumption , we find no merit in Respondent's contention that the General Counsel has not sustained his burden of proof to show that the rule was invalid. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such committee "will" be created and meet at certain intervals, and "shall" have certain purposes, representatives, and terms of office for such representatives. As to Respondent's testimony that the committee had not yet been appointed and had not met, we note that the charge in this case attacking the legality of such a committee was filed only a few weeks after the announcement, and that this may well have been the factor which postponed the actual appointment and operation of the committee. It remains clear, however, that the an- nouncement represented a fixed intention on the part of Respondent to set up such a committee which would be the only method of col- ,lective bargaining available to the employees, and as found below this was the vice of the announcement. As to contention (2), we find, as the Trial Examiner did, that because the committee was "to work together to improve," among other things, "the general welfare of the employees and the Company," and so far as appears conditions of employment were the only matters of common interest between management and the employees, and because the part of Respondent's April 1959 notice to the employees dealing with the committee appears in the middle of a "Magna Charta" of employment covering everything usually set out in a collective- bargaining agreement, the committee was intended to deal with con- ditions of employment and was so understood by the employees, despite the absence of any explicit reference to wages, hours,, or other conditions of employment. With respect to contention (3), it is true that in the absence of a majority representative Respondent was free to deal directly with its employes and to unilaterally establish their conditions of employ- ment.7 This does not mean, however, that Respondent was free to deprive the employees of their rights under Section •7 of the Act to self-organization and to bargain collectively through representatives of their own choosing, if the employees chose to exercise such rights at any time. Accordingly, when Respondent in its April 1959 notice to the employees made it mandatory, and in effect a condition of .employment, that any collective bargaining that there might be must follow certain procedures, with Respondent deciding who should be the spokesmen for the employees, when and how they should meet, and with Respondent paying the employee representatives for time so devoted, Respondent interfered with such Section 7 rights, in violation of Section 8 (a) (1) of the Act 8 As indicated by the Trial Examiner, there may be merit to conten- tion (4) to the extent that the absence of proof that the committee was actually established or came into existence may preclude a finding that Respondent violated Section 8(a) (2) of the Act. However, the 7 J. I. Case Company v. N L.R.B ., 321 U.S. 332. 8 See N L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203. WALTON MANUFACTURING COMPANY 7O1 absence of such proof does not preclude or in any way affect our find- ing above that Respondent violated Section 8 (a) (1) by imposing a, committee of its own creation upon its employees as their collective- bargaining representative for any collective bargaining which they might wish to engage in, and thereby interfering with their rights to self-organization and to bargain through representatives of their own choosing.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Walton Manufac- turing Company, Loganville, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from promulgating or enforcing a rule prohibit- ing employees from soliciting membership in, or circulating circulars and handbills on behalf of, any organization on company property, and imposing upon employees, as a condition of employment, a requirement that collective bargaining must proceed on the basis of a labor organization sponsored, formed, or assisted by the Respondent, or in any like or related manner interfering with, restraining, or coer- cing employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection ; or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Distribute to each employee in its Loganville, Georgia, plant, excluding all supervisory personnel, a written notice, over the name of the Respondent and signed by its representative, advising them that the rule prohibiting employees from soliciting membership in, or circulating handbills on behalf of, any organization on company prop- erty, as contained in part V of the notice distributed by Respondent to employees on April 1, 1959, is rescinded, and also that any collective 9 Cf Molded Faber Glass Body Company, 119 NLRB 380, cited by Respondent, where the Board held that it was not a violation of the Act for an employer to merely urge his employees to use the services of a safety committee. As pointed out by the Trial Examiner , it is unnecessary to decide in this case whether Respondent's conduct with respect to the committee was also a violation of Section 8(a) (2), because the remedy would be no different in effect from the appropriate remedy for the Section 8 ( a) (1) violation found. Accordingly , and also because there is no exception to the Trial Examiner's failure to find a violation of Section 8(a) (2), we do not pass upon that issue 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining they may choose to engage in will not proceed on the basis of the committee described in part II of that notice, that employee participation in that committee is not a condition of employ- ment, and that the employees are free to engage in collective bargain- ing through any union of their own choosing, and post a copy of said notice upon the plant bulletin board or boards. (b) Post in the Respondent's plant in Loganville, Georgia, copies of the notice aittached hereto marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representa- tives, be posted by the Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed to the extent that it alleges that the Respondent violated Sec- tion 8 (a) (2) of the Act. 10 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 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT promulgate or enforce a rule prohibiting our employees from soliciting membership in, or circulating circulars and handbills on behalf of, any organization on company property. WE WILL NOT impose upon our employees, as a condition of em- ployment, a requirement that collective bargaining must proceed on the basis of a labor organization to be sponsored, formed, or assisted by the Company. WE WILL NOT in any like or related manner interfere with, re- strain, 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 collectively through representa- tives of their own choosing, and to engage in other concerted WALTON MANUFACTURING COMPANY 703 activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. WALTON MANUFACTURING COMPANY, I'mployer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Atlanta, Georgia, on August 13, 1959, before the duly designated Trial Examiner. The complaint alleges unlawful conduct by Walton Manufacturing Company, herein called the Respondent, in viola- tion of Section 8(a)(1) and (2) of the Act, all of which the Respondent denies in its answer. All parties were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence, to present oral argument, and thereafter to file briefs. Briefs were received from the General Counsel, the Charging Party, and the Respondent and have been considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Walton Manufacturing Company is a Georgia corporation engaged in the manu- facture of men's clothing, and at all times material herein has maintained its princi- pal office and place of business in Loganville, Georgia. During the past 12 months, which period is representative of all times material herein, Respondent sold and shipped from its plant in Loganville, Georgia, directly to points located outside the State of Georgia, goods and materials valued at more than $50,000. 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 in this proceeding. II. THE UNFAIR LABOR PRACTICES The charge and complaint in this case rest entirely upon an extended written notice which the Respondent distributed to all its employees on April 1, 1959, in which, among other things, it informed them of certain company rules of conduct for the employees and of procedures to be followed by them in their dealings with the Company. The General Counsel called no witnesses, but rested his case upon a stipulation of facts, signed by all parties. Apart from the formal requirements in support of the case, such as service of pleadings and jurisdictional facts, the evidence sustaining the unfair labor practice allegations is limited to the written notice distributed by the Company. The document expressly prohibits solicitation activities by the employees, alleged to be in violation of Section 8(a)(1) of the Act, and explains a joint committee on safety, sanitation, and advisory matters, alleged to establish an unlawfully assisted and dominated labor organization in violation of Section 8(a) (2). 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The notice is a mimeographed writing containing nine pages. It starts with a declaration of policy: "These pages contains [sic] some of the principal policies and rules which have been established for the purpose of maintaining good employee relations, promoting the general welfare of the employees and the Company, and encouraging orderly and efficient operations." There follow five parts: I. Hours, wages and general provisions; II. Joint committee on safety, sanitation, and advisory matters; III. Grievance procedure; IV. General working conditions; and V. Regula- tions. Part II, which is under attack by the complaint as the conduct of the Respondent which ". . . initiated, sponsored, formed, assisted and dominated the aforesaid Joint Management Employee committee for the purpose of dealing with it as a labor organization," reads, in its entirety, as follows: PART II JOINT COMMITTEE ON SAFETY, SANITATION AND ADVISORY MATTERS (1) There will be a Joint Management-Employee Committee for safety, sanitation and advisory matters which will meet at least once monthly. The purpose of this committee shall be to work together to improve safety of opera- tions, sanitation and cleanliness of the premises, and the general welfare of the employees and the Company. (2) The employee membership of this committee shall 'consist of one representative from each of the departments (or sections) listed below: 1. Cutting and shipping departments 2. Pressing department 3. Assembly section 4. Sleeve and lining sections 5. Pocket, fronts, and finishing sections 6. Office (3) The representative from each department shall serve a two months term and will then be succeeded by the next member of their department, in order of seniority sequence. Thus, each employee will ultimately have an opportunity to serve from time to time. (4) Employee committeemen shall cooperate with the management repre- sentative on the committee in planning the program and agendas of meetings and in obtaining maximum attendance by committee members. (5) The meetings of the committee will be held outside of regular working hours whenever possible, however, for time spent attending the regular monthly meetings of the committee, the committee members will be compen- sated at their regular straight time hourly rate. In addition, the General Counsel attacks two sections of part V of the company notice. Section A-What Every Good Employee Should Know-(3), reads: Carrying on Outside Business-conducting outside business on company property without obtaining permission from your department head is prohibited. This includes solicitations of money or memberships, selling lottery chances or any other items, and the posting or circulating of advertisements, circulars and handbills. Section C-Things to Avoid-group II(g), reads: Commission of any of the following acts shall furnish cause for immediate discipline, including discharge: Conducting outside business on company property without the Company's permission, including solicitations of money or memberships, the sale of lottery chances or any other item, and the posting or circulating of advertisements, circulars or handbills. After stipulating that the notice in question was distributed to all employees on April 1, 1959, the Respondent called one witness, Morris Sharff, a management representative active in the day-to-day operations of the plant and who participates in the formulation and implementation of the Respondent's labor relations policy. It was he who prepared and distributed the notice. He testified credibly and with- out contradiction, that the notice was also posted on the plant bulletin board, that the employees were never told that any of its contents had been withdrawn or cancelled, and that the Respondent never withdrew the directive language of part II, channelling concerted activities through a committee selected and paid by the Company. Sharff also said that the committee contemplated in part II never mate- WALTON MANUFACTURING COMPANY 705 rialized, that there never were any conferences between the Company and any rep- resentatives of the employees pursuant to part II, and that no such committee ever met. Of course, as the General Counsel's affirmative case rests entirely upon the stipulation, there is no evidence that any employees were ever advised that because of their relative seniority in any department they automatically had become members of such a committee. Sharff's final testimony, relative to the prohibition against solicitation on company premises, was that there had been no occasion to enforce the rule against any attempts by the employees to organize a union. It is a long-established principle of Board law, consistently sustained by the courts, that a flat rule prohibiting employees from soliciting membership in any organization on company property on their own time unlawfully interferes with the rights of employees to engage in concerted activities and therefore constitutes an unfair labor practice in violation of the statute.' The unequivocal rule announced in section A(3) of the company notice here involved prohibits ". . solicitations of . . memberships" on company property, and expressly provides for discipline "includ- ing discharge" against violators. As the proscription is not limited to working time, and as no affirmative showing was made of special circumstances which could justify the breath of the prohibition, it was unlawful on its face.2 Accordingly, I find, that by promulgating this rule in its April 1, 1959, notice to the employees the Respondent violated Section 8 (a) (1) of the Act. With respect to part II of the notice, the General Counsel contends that its purpose was to establish an organization of employees to deal with the Respondent in matters relating to conditions of employment and that it in fact brought such a labor organ- ization into being. While conceding, as he must, that there is no affirmative proof showing that the committe contemplated by the language of part TI ever met or functioned in any way, or even that the identity of its members ever became known to the employees, he argues that that portion of the language providing for the method of designating the employee representatives suffices to support a finding that the committee indeed existed. The language does say that committee members should be selected "in order of seniority sequence" in each department. With this as the basic theory of this part of the case, the complaint alleges a violation of Section 8(a)(2), which makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organiza- tion or contribute financial or other support to it . . The General Counsel expressly requested an order directing disestablishment of the committee as an un- lawful labor organization in being The complaint also alleges, of course, that the imposition by the Respondent of such a committee upon the employees violated Section 8 (a) (1) of the statute. Deferring, for the moment, the question whether the Respondent did form, assist, and dominate a labor organization, there would appear presented the threshold question whether the committee described in part II was a labor organization within the intendment of Section 8(a) (2). It is called "Joint Committee on Safety, Sanita- tion and Advisory Matters." It was clearly to represent and speak on behalf of all the employees and to consist of representatives from each department. Further, it was not only literally initiated and sponsored by the Respondent, but was also to act at least in part, during working hours with Respondent paying the committee members for their time. The committee was "to work together"-necessarily mean- ing employee and employer representatives acting jointly-"to improve," among other things, "the general welfare of the employees. . Although there is no explicit reference in part II to wages, hours, or conditions of employment, I am satisfied, and I find, that the committee was intended by the Respondent to concern itself with such matters, and was so understood by the employees .3 The entire notice is entitled- "Employment Policies and Rules for Employees," and it covers, in the minutest details, all those aspects and terms of employment regularly set out in a collective-bargaining agreement. Precise hours of work, rest periods, equitable distribution of overtime assignments , premium pay, holidays, vacation benefits, seniority specifications, and individual grievance procedures are some of the itemizations appearing in the notice. It also sets out minute regulations for such things as use of telephones for personal calls, physical examinations, acci- dents, and absences for pregnancy. One page lists 20 separate offenses which could s Republic Aviation Corporation v. N L B B, 324 U S 798 2May Department Stores Company, et at., 59 NLRB 976, enfd. 154 F. 2d 533 (C.A. 8). cert denied 329 U S 725 8 General Shoe Corporation (Safety Committee), 90 NLRB 1330, 1854, enfd. 192 F. 2d 504 (C A. 6), cert. denied 343 U.S. 904. 54461-G0-vol 126 46 51 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be committed by employees, and specifies possible disciplinary action for each. Part II, the employee committee representation plan, appears on page 5, in the very middle of this Magna Charta of employment. The notice was tantamount to an individual contract of employment. It follows that when part II provided for collective action to handle "advisory matters" and "general welfare of employees" this part of the notice, like all the others, referred to such matters as also pertained to conditions of employment. There is no indica- tion, on this record, that the employees had any other interests in common with the Company. All that appears as that they were the employees and the Respondent the employer. As the Respondent never took steps to implement the rule of employment provid- ing for this joint committee, it is not possible to look to later developments for explanation of any ambiguity that might appear in the phrases "advisory matters" and "general welfare of employees." Nor can the Respondent's offer to prove, at the hearing, that its unpublished intentions concerning the committee was to treat with matters not related to terms and conditions of employment, now serve to clothe those phrases with a restricted meaning in the minds of the employes. All they knew was what their employer told them in writing, and all that is to be appraised here is the reasonably foreseeable effect upon the employees of the Respondent's acts. Advised, as an integral part of the regulations governing their employment, that this was to be the method for dealing collectively with the company, they must necessarily have viewed the practice as but another aspect of their jobs. In the absence of a majority representative, entitled under the statute to exclusive representative status as the spokesman for all the employees in matters relating to terms and conditions of employment, an employer is free to deal directly with the employees and to establish, as he sees fit, the precise terms which shall govern their continued employment.4 In substance, this is precisely what the Respondent did when it distributed the April 1, 1959, notice. By continuing on the job or by entering upon it thereafter, each employee agreed to abide by these unilaterally established specified conditions. It is equally clear, however, that whether or not the employees have chosen to be represented by a union, an employer is not free to impose such conditions of employment upon them as contravene the provisions of the statute or necessarily tend to deprive them of the self-organizational rights guaranteed by Section 7 of the Act. There is no need for citation of authority to say he could not lawfully condi- tion employment outright upon union membership. Similarly, and again without need to belabor the point, if the Respondent here had added a 21st possible employee dereliction-joining a union-as cause for discipline or discharge, the unfair labor practice finding would be automatic. Indeed, such a "rule" would be indistinguish- able from a direct threat to discharge any union member. Likewise, if one of the rules, or conditions of employment imposed by an employer, is that there shall be no collective bargaining, with discipline in store for any employee who attempted to engage in it, the rule would be unlawful. If mere announcement that the employer will not recognize or bargain with any union coerces the employees in their freedom to join unions and to engage in the collective bargaining envisaged by the Act, certainly requiring employees to agree in advance to refrain, as a condition of employment, coerces them nonetheless 5 Here, in the April 1 notice, the Respondent made it a condition of employment that collective negotiations between the Company and the employees, if there were to be any, should follow the procedures set up in part II, with the Company deciding who should be the spokesman for the employees at any given time, when and how they should meet, and with the Company paying the employee representatives for time so devoted. Such collective bargaining has very recently been held to be no collective bargaining at all.6 By so circumscribing the employees' privilege to decide for themselves what collective-bargaining agents they may choose, the Respondent in effect compelled them to surrender their statutory right to engage in true and free collective bargaining, to accept company imposed spokesmen, and ul- timately, to remove any thought of true union activity from their plans-all this as a condition of employment. That the Respondent called this arrangement a "rule" instead of a "condition of employment" is but a play of words. I hold that by distributing part II of its April 1, 1959, notice entitled "Rules for Employees," the Respondent infringed upon the employees' statutory freedom to en- 4 J I Case Company v. N L.R B, 321 U S 332, 337 5 Adhesive Products Corp , 117 NLRB 265 , remanded on other grounds 25 '8 F. 2d 403 (C A 2) 0 N LR B v Cabot Carbon Company , et al , 360 U S. 203 WALTON MANUFACTURING COMPANY 707 gage in union or concerted activity guaranteed by Section 7 of the Act, and thereby coerced ,them in violation of Section 8(a)(1), as alleged in the complaint. To undo the coercive effect of distribution of part II of the April 1959 notice, re- quires that the Respondent now make clear to all the employees that it is no longer a "rule" of employment that collective bargaining in the plant must be carried out in that fashion. The damage having been done by individual distribution of a written notice, effective corrective results can only be achieved by redistribution of a written notice, again to each individual employee, advising them that collective bargaining will not proceed on that basis, that participation in the contemplated activities of that committee or any committee like it is not a condition of employ- ment, and that the employees are free to engage in collective bargaining, if they so choose, through any union of their own choice. The Respondent will also be re- quired to post a notice to the same effect on the plant bulletin board or boards. I shall also recommend that the Respondent be enjoined from hereafter imposing this committee, or any like labor organization upon its employees as a condition of employment. As stated above, the complaint further alleges, and the General Counsel requested that an additional unfair labor practice finding be made, that by that same act of distributing part II of the notice, the Respondent also violated Section 8(a)(2) of the Act. Ordinarily, where particular conduct of a respondent is held unlawful under one of the specified proscriptions of the statute, little or no purpose is served by a further conclusion that as a matter of law the conduct also contravenes another section. And the Board on many occasions has for that very reason declared it unnecessary to decide, in a particular case, whether the act in question could be called unlawful on additional grounds. Particularly is this so when the remedial action in either event would be the same.? I consider the situation presented here as such a case. In arguing that distribu- tion of the notice was tantamount to forming , assisting, and dominating a labor organization, to a sufficient extent to constitute a violation of Section 8(a) (2), the General Counsel concedes that a preliminary factual finding essential to such a conclusion is that the labor organization, or committee, did come into existence. He would have it that announcement by an employer that a committee or organization exists is all that is required to prove its existence. The fact that no committee ever met, that no employees were ever designated by anyone by name, that no meetings or actions of any kind ever took place to implement the announcement of the Com- pany, he considers of no significance. I seriously doubt that the total evidence in this case could support the factual finding necessary to an 8(a) (2) violation conclusion, that the committee ever really existed. It could as well, or more persuasively, be argued that all that happened thus far is that the Respondent promised such a group would be created, insisted em- ployees must in the future participate in it, and set up only the potential for a labor organization. I cannot ignore either the fact that no action was ever taken pursuant to the announcement, or the plain language of the statute, which defines a labor organization, in part, as ". . . an employee representation committee . in which employees participate and which exists. .. ." 8 [Emphasis supplied.] More important, even assuming the General Counsel were correct on this point, and the Board were to require the Respondent to "disestablish" the committee de- scribed in the company notice, the net effect of the remedial action required of the Respondent would be no different than that which is appropriate and required in consequence of the unfair labor practice finding already made. There is no sub- stantial difference between a notice which assures the employees that the part II rule is canceled, and one which says that the committee is disestablished. Either way, its potential or real existence is removed. Accordingly, I make no finding that the Respondent violated Section 8(a)(2) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and sub- 7 Better Monkey Grip Company, 115 NLRB 1170, enfd. 243 F. 2d 836 (C.A. 5), cert. denied 355 U S. 864; John Hancock Mutual Life Insurance Company, 92 NLRB 122, enfd 191 F 2d 483. 8 Section 2(5) of the Act reads as follows, "The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing 'with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Walton Manufacturing Company is an employer within the meaning of Section 2(2) of the Act. 2. By promulgating a rule prohibiting employees from soliciting membership in any organization on company property, and by imposing upon employees , as a con- dition of employment , a requirement that collective bargaining must proceed on the basis of a labor organization to be sponsored, formed, or assisted by the Company, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and has thereby committed unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. I Local 35, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the U.S. & Canada, AFL-CIO and Richard E. Buettner. Case No. 14-CC-133- February 18, 1960 DECISION AND ORDER On October 6, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. Pursuant to Section 3(b) of the Act, the Board has delegated its power in connection with this proceeding to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made 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 Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. THE REMEDY Respondent excepts to the Trial Examiner's recommended order as too broad in that it directs the Respondent to cease and desist from inducement of work stoppages not only by the employees of Buettner, the secondary employer directly involved, but also by the employees 126 NLRB No. 90.