The Chardon Telephone Co.

THE CHARDON TELEPHONE COMPANY 529 The Chardon Telephone Company and Communications Workers of America, AFL-CIO The Chardon Telephone Company and Communications Workers of America, AFL-CIO. Cases Nos. 8-CA-2643, 8-CA-2664, and 8-RC-4476. October 25, 1962 DECISION AND ORDER On May 29, Trial Examiner James V. Constantine issued his Inter- mediate 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, and recommending further that the election held on November 24, 1961, in Case No. 8-RC-4476 be set aside and that a new election be conducted, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Charging Party filed a statement and a brief in support of the Intermediate Report. Pursuant to provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the heating 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 proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications.' As set forth in the Intermediate Report, the Regional Director for the Eighth Region had ordered that the consolidated complaint issued in Cases Nos. 8-CA-2643 and 8-CA-2664 be consolidated with objections filed in Case No. 8-RC-4476 for the purposes of hearing. The objections relate to an election held on November 24, 1961, pur- suant to all "Agreement for Consent Election." Pursuant to the Regional Director's order, the Trial Examiner made credibility reso- lutions, findings of fact, and recommendations with regard to the representation case. Under the Board rules applicable to an "Agree- ment for Consent Election," questions relating to such elections are to be determined by the Regional Director and not the Board.2 1 The Trial Examiner found that the "small group meetings" of the employees held by Respondent did not "amount to an unfair labor practice ." As no exceptions were filed to this finding, we adopt it pro forma 2 The Board Rules and Regulations, Series 8, as amended , Section 102 62 (a). 139 NLRB No. 27. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, we shall sever the representation case from the complaint cases herein, and shall remand the representation case to the Regional Director for such action as he may deem appropriate. In view of this disposition, we do not pass upon the Trial Examiner's findings and recommendations that the Respondent engaged in objectionable interference with the election, which warrants setting it aside. Ac- cordingly, we limit our Decision and Order herein to only the two complaint cases. ORDER The Board adopts as its Order the Trial Examiner's Recommended Order with respect to the complaint cases with the following modification : In the notice, the penultimate paragraph is changed to read : "This notice must remain posted for 60 consecutive days from the date of posting, ..." instead of stating: "60 days from the date hereof." IT IS ORDERED that Case No. 8-RC-4476 be, and it hereby is, severed from the consolidated complaint in Cases Nos. 8-CA-2643 and 8-CA-2664, and that Case No. 8-RC-4476 be remanded to the Re- gional Director for the Eighth region for such action as he deems appropriate. INTERMEDIATE REPORT, RECOMMENDED ORDER, AND REPORT ON OBJECTIONS STATEMENT OF THE CASES In Cases Nos. 8-CA-2643 and 8-CA-2664, charges were filed on December 1, 1961 ,1 and January 8, 1962, respectively, against The Chardon Telephone Company, herein called Respondent or the Company, by Communications Workers of America, AFL-CIO. Upon such charges , the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued his consolidated complaint on January 17, 1962, in substance alleging the commission of unfair labor practices by Respondent in violation of Section 8 (a) (1) and (2), and affecting commerce as defined in Section 2(6) and (7), of the National Labor Relations Act, herein called the Act. Respondent has answered denying the alleged unfair labor practices but admitting certain facts. In Case No. 8-RC-4476, Communications Workers of America, AFL-CIO, herein called the Union or the Petitioner, on or about October 11 filed with the Board a petition for certification of representatives for the Company 's employees in a specified unit at Chardon, Ohio. On November 24, a consent election was conducted by the Board pursuant to an agreement between the parties executed on November 14. The Union lost the election . On December 1, the Petitioner filed objections to the conduct of the election . The Regional Director issued a report on objections , dated January 5, 1962, directing a hearing , in material part, on "Petitioner's Objection No. 3 and related objections concerning the change in the overtime pay plan, the promise to pay for the cost of tuition and books , and the granting of other benefits prior to the time of the election . Said Regional Director also ordered that the consolidated complaint case be consolidated with the objections in the representation case for purposes of hearing, and further ordered that the "Trial Examiner will resolve the issues raised by the Petitioning Union's Objection No. 3 and related objections . . . and will include in his Intermediate Report and Recommended Order a report thereon , containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Regional Director as to the disposition of the said objections." 1 Unless otherwise noted, all events herein occurred in 1961. THE CHARDON TELEPHONE COMPANY 531 Pursuant to due notice, a hearing was held before Trial Examiner James V. Con- stantine on the consolidated case at Chardon, Ohio, on April 2, 3, 4, and 5, 1962. All parties were represented at and participated in the hearing, and were granted the right to present evidence, to examine and cross-examine witnesses, to file briefs, and to offer oral argument. At the hearing I denied Respondent's motion to dismiss. Briefs have been received from the General Counsel, the Union, and Respondent. Upon the entire record in the consolidated case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation, is engaged at Chardon, Ohio, in the business of providing telephone service to customers in the State of Ohio. Annually it receives gross income in excess of $100,000 for its telephone service, and in excess of $25,000 for toll call service to points outside the State of Ohio. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction over Respond- ent's operations. II. THE LABOR ORGANIZATIONS INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent disputes that The Committee of Employee Representatives, herein called the Committee, is a labor organization within the meaning of said Section 2(5). For the reasons set out below, I find that such Committee is a labor organi- zation comprehended by said Section 2(5). III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE CONDUCT OF THE ELECTION In the unfair labor practice cases (Cases Nos. 8-CA-2643 and 8-CA-2664) the issues litigated are whether Respondent (1) engaged in conduct prohibited by Section 8(a)(1) of the Act, such as promises or grant of benefits and rewards, and (2) violated Section 8(a)(2) of the Act by dominating, interfering with, assisting, and contributing to the support of the Committee. The issue in the representation case (Case No. 8-RC-4476) is whether during the period between November 14 (the date on which the agreement for consent election was executed) and 24 (the date of the election), Respondent granted or promised benefits and rewards for the purpose of discouraging membership or interest in the Union. Although evidence has been received on all issues, only those events which occurred between November 14 and 24 have been considered in the representation case, except as otherwise expressly noted. The issues were vigorously and at times bitterly contested. Resolution of many of them depended upon determination of questions of credibility. Findings made herein are based upon credible evidence where credibility was an issue, although I have not always set out the conflicting evidence in such instances. In general, I have accepted the testimony of employee Wilma Cope as credible, and that of the other witnesses only to the extent that it is consistent with the findings made herein. It follows that I have accepted some and rejected some of the testimony of all witnesses other than Wilma Cope.2 A. Promises or grants of benefit and rewards Before the advent of the Union, Respondent held but two employee meetings in 1961. However, after the Union petitioned for an election on October 11, Theodore Case, Respondent's president and general manager and a supervisor as defined by Sec- tion 2(5) of the Act, started calling regular and frequent assemblies of employees. These were conducted over a period beginning the week after the petition was filed until the week of following the election. These meetings were held once or twice 2 On one issue, as hereinafter recited, Cope testified that eight names were on a bulletin board as representatives on the Committee Other witnesses stated that although eight names appeared, only three were those of the Committee and five were those of the nomi- nating group While Cope's version varies in a minor degree (since the issue did not involve the number, but rather the manner of selecting the Committee), I find that Cope was mistaken and accept the testimony of the other witness thereon. But in all other respects I credit her testimony. 672010-63-vol. 139-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a week, and were presided over by Case. Generally, a group of three separate meetings in any particular day was held: One for the male employees, and two for the female employees. There was some testimony that two meetings were necessary for the latter so that some female employees would remain on duty at all times. The same subjects were generally discussed at the meetings held on a particular day and were stressed by repetition at subsequent meetings held on other days. All meetings were held during working hours in the basement of Respondent's premises at Chardon. No employee lost any compensation by attending such meetings; in fact, some employees (if they claimed it) were paid overtime rates for attending beyond their working hours if the meeting continued beyond closing time.3 At one of these gatherings attended by employee Cope about a week before the election, Case explained that overtime could be paid in two ways-either for all work over 40 hours in a week or for all -work exceeding 8 hours in a day-and that Respondent had been paying on the former basis. Case then remarked that Re- spondent would pay overtime for all work over 8 hours a day. Upon inquiry from Peggy Duffy, the accounting supervisor who was present, Case stated that the new method of computing overtime would begin the "next Monday." This method had not previously been in effect; any testimony to the contrary is not credited. At this meeting Case also said, according to employees Cope, that any employee could get more education, regardless of whether it pertained to his job, at company expense (for tuition and books, but not transportation), if such employee presented evidence of passing grades. However, Case added that the Company was not bound to pay for such instruction but would do so "at its own decision." Cope further testi- fied that prior to this the Company had paid only for training of employees when related to their jobs. Employees Haase and Zell, who attended a similar meeting for males only, testi- fied that Case restricted his education offer to such schooling which was beneficial to the Company or to the employee in his line of work. Haase added that prior thereto schooling of this limited type had been available at company expense only for persons in certain jobs and then only if they were found qualified. He was one of those who so benefited. Evidence introduced in the record shows that the Com- pany in the past had sent employees to school to obtain specialized instruction con- cerning their jobs, but this was quite rare. At these meetings, Case discussed the Union. Among other things he said that if the Union got into the plant it would be hard to get it out and that union members would have to take orders "from another place . .. outside" (as testified by employee Cope). He also told the employees that they could work out their prob- lems among themselves without having an outside union, the Petitioner, to represent them (as testified to by employees Haase and Keith Orzen). At some meetings, especially those held for the male employees, Case mentioned that the Company at its expense would supply small handtools, at least for the "first issuance," and said that they would be replaced at company expense except when they were negligently lost or damaged. Prior to this employees were required to supply such tools themselves. The testimony of employee Haines in the main does not contradict this conclusion. To the extent that it does I do not credit it, since other employees testified that they paid for their own handtools. Moreover, it is unlikely that Case would have mentioned the subject if the employees knew about it. Moreover, the Company's document entitled "Benefits and Wage Schedules- October 1, 1961," which was distributed to employees, omits reference to company supplied handtools. This is cogent evidence that such tools were not provided at company expense prior to October 1, 1961. On the other hand, the Company's document entitled "Benefits of the Chardon Telephone Company January 1962," which was passed out to employees in December 1961, contains a statement that such tools will be furnished "on a no cost basis for the first time." Another subject brought by President Case to the attention of employees at these meetings concerned callout time, i.e., the time during which an employee was called to work before or after his or her regular working hours. Up to this time, an employee was compensated only for actual time worked on callouts, and he received overtime rates for the callout time spent in excess of 40 hours a week. President Case announced, however, that employees would henceforth be guaranteed a mini- mum of 2 hours' callout pay, so that an employee actually working less than 2 hours on callout would be paid for 2 hours. President Case at these meetings also discussed hospitalization or Blue Cross insurance. Although the Company's employees enjoyed hospitalization benefits 'The Union argues that such overtime payments violated Section 8(a)(1) of the Act and also taint the election. This contention is without merit since the Company neither initiated nor promised such additional compensation. THE CHARDON TELEPHONE COMPANY 533 under a program sponsored by it, the cost thereof was borne entirely by the em- ployees. Case mentioned that the Company was planning to adopt the Mid-Conti- nent system (Respondent is a wholly owned subsidiary of Mid-Continent) whereby Respondent would contribute a percentage of the hospitalization insurance piemiums, and that Mid-Continent was "working on" benefits to employees of the Company. One employee who testified (Patricia Neylon) also stated that Case observed it was possible to extend benefits to employees who had been employed less than a year, although until then such employees were not entitled to subscribe to the Company's hospitalization program. President Case had difficulty in recalling whether he uttered the foregoing remarks attributed to him at these employee meetings. In fact he testified that "I can't answer yes or no" whether he made some of the statements, that "possibly I could have" mentioned some of them, and that "whatever the employees testified to" that he said "is true." He did make some categorical replies to questions, but they did not in all instances contradict the testimony of employees as recited above. I credit only his testimony consistent with the findings herein. Accordingly, I find that President Case made the statements narrated above at the meetings called by him and held in the period extending from after October 11 to prior to the election on November 24. B. The Committee 1. Formation and domination of, interference with, and assistance to the Committee Two more meetings of employees were held following the election, which the Union lost. Like those which preceded the election, these meetings actually con- sisted of two groups of three separate meetings: one group of three on one day and another group of three on another day; each day's meetings included one for male employees and two for female employees. They were held in the basement on com- pany time, and without loss of pay to employees. The first group of three separate meetings was held shortly after the election and the second group a few days there- after. Case presided at these meetings The first group of two separate meetings of female employees was held on the Monday after the election. At the meeting attended by employee Wilma Cope, President Case thanked the employees for their support in rejecting the Union at the election and also commented that he had not realized that the employees had so many troubles and problems. He then said that he had been thinking about an "em- ployees' committee" and that it would help, but did not elaborate further on it. At another meeting attended on the same day by employee Patricia Neylon, President Case stated that he "would like to form some sort of employees' committee or group to discuss problems that went on in different departments and things." Another group of two separate meetings of female employees was held later during this same week. At the one attended by employee Cope, President Case went into details of the employees' committee. At this meeting, Case remarked that he thought the Committee should be composed of a representative from each department; that such representative would present an employee's grievance to Case and then report the outcome to the employee. About 2 days after this meeting, employee Cope saw the names of the members of the employees' Committee written in chalk on a black- board in the Company's basement. So written on the blackboard were the names of Joe Zell, Tom Hejduk, Keith Orzen, Karen Orzen, Wanda Seevers, Pat Neylon, and Wilma Burdick, and the words "employees' committee." From the time of holding this second group of female meetings and the time when Cope saw the names on the blackboard, no meetings were held to discuss the method of choosing representatives. At the second group of two separate meetings for female employees following the election attended by employees Neylon and Keck, President Case notified those pres- ent that the Committee had been organized and was in existence. This was not the same meeting at which Cope was present. Case told the employees that the Com- mittee was composed of a member from each of the Company's departments. Prior to this meeting, Keck had been told by Romano, her supervisor,4 that there would be an employees' committee, and that the employees in her department would have to pick a representative. At the first separate meeting held for male employees after the election President Case asked if those present desired a committee to represent them to iron out any difficulties employees may have with management. Upon receiving an affirmative reply, Case immediately appointed five male employees to select and form this com- *I find that Romano is a supervisor within the meaning of Section 2(11) of the Act Accordingly, the motion of Respondent to strike the testimony of employees testifying as to conversations with Romano is denied. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee. These five, herein called the nominating group, were Joe Zell, Tom Hejduk, Chuck Neely, George Blair, and Keith Orzen . They were directed by Case to select or appoint a committee as a "representative between the employees and the employer." That evening the nominating group met at the home of Keith Orzen , where, after some discussion , they picked three persons to compose the Committee . The names of those so appointed-Tom Hejduk, Joe Zell, and Wilma Burdick-were posted on the bulletin board the next morning with a notation that they had been selected to constitute the Committee, and that "If there are any objections to the following names, please see the following five." There were then listed the names of the five who made up the nominating group. The foregoing findings are based on the testimony of employees Zell and Keith Orzen, which I credit to this extent, and of employee Cope, which I credit except for a slight discrepancy hereinafter recounted . Employee Haase's testimony , insofar as it implies that Case did not appoint the nominating group, is not credited. As mentioned above, I am of the opinion that employee Cope is mistaken as to the number composing the Committee ; and, insofar as her testimony conflicts with the foregoing finding thereon , I am unable to accept it . While President Case denied that he appointed the nominating group, this branch of his testimony is not credited by me for two reasons : ( 1) Case's memory was quite faulty at the hearing on this and other issues , so that I cannot rely on his recollection of the events in- volved-in fact, he often remarked at the hearing that because he could not remember, whatever the employees quoted him as saying is true; and (2) both Orzen and Zell were not only decidedly favorable to the Company , but in addi- tion Orzen, a witness for the General Counsel , discussed his testimony with coun- sel for the Respondent before testifying at the hearing, while Zell was appointed a working foreman in January 1962, and also was elected chairman of the Committee Neither Orzen nor Zell was inclined while testifying to say anything derogatory of their employer . Hence I credit them in this regard . I do not, however, credit the testimony of Zell and others that the idea of an employee committee had been discussed at his home a year earlier This was an afterthought on Zell's part after he had been recalled by the General Counsel. In fact he first testified on recall that "mainly" he was the one who heard of the idea from himself a year earlier; and only after it appeared that this reply was ludicrous did he volunteer that he discussed it with other employees. At the meeting of male employees at which Case appointed the nominating group, he also assured those present that he would do his utmost to make his preelection discussion of benefits come true . Some results were attained by his efforts, for employee Keck testified that , at a "meeting" held about 2 weeks before the hearing herein, Case notified employees that the Company would pay one -half of the premium on hospitalization insurance . Committee minutes of February 15, 1962, show that such payment was scheduled to be made on the February 1962 premiums. Although the Committee started out with three members, it was soon enlarged to include two additional members, namely, employees Karen Orzen and Patricia Neylon. Orzen became a member after her supervisor, Beverly Romano, "asked [her] if [she] would like to be on it" and Orzen replied affirmatively . Neylon be- came a member when Peggy Duffy , her supervisor,5 in the presence of Neylon and a couple of other employees , asked if anyone was interested in becoming a representative for her department . Duffy also added that "Mr . Case was thinking of having a committee," that he wanted to have a committee, and that it would be concerned with all "problems and things " in each department . Thereupon, Neylon's name was picked "literally out of a hat" which contained her and other names placed therein. Minutes of the Committee 's meetings were kept by President Case until it selected a secretary-Karen Orzen Thereafter Karen Orzen kept the minutes . The Com- mittee held its meetings on company time in President Case's office , with Case in attendance for the first 2 or 3 meetings . He sometimes presided Nevertheless, Committee minutes for the meeting of March 1, 1962 , recite that "Mr Hardy ra supervisor ] will be present at all future Employee Committee meetings but will not voice any opinion on the matters discussed ." Committee members were com- pensated for working time lost in attending such meetings. G I find that Dully is a supervisor within the meaning of Section 2(11) of the Act In any event I find that the conversation between Duffy and Neylon is admissible either as a verbal act or as a narrative statement contemporaneous with Neylon's selection to the Committee Accordingly, Respondent's motion to strike this conversation is denied THE CHARDON TELEPHONE COMPANY 535 Later the Committee was enlarged further by having an elected representative from each department. The first election of representatives occurred about 3 weeks before the hearing herein. It was held on Respondent's premises during working hours without loss of pay to the employees participating in it. Minutes of the Com- mittee narrate that Working Foreman Joe Zell was elected its chairman and Karen Orzen its secretary on February 28, 1962. C. Whether the Committee is a labor organization At first both the Committee and the nominating group (some employees were on both the Committee and the nominating group) met with Case in his office during working hours. At the first Committee meeting, which was called by Case, those present discussed such subjects as tools and hospitalization. At this or the next meeting, Case and the Committee "looked at" a collective-bargaining contract in effect at another telephone company. Case also called the second Committee meet- ing which, like the first, was held in his office during working hours and was at- tended by both the Committee and the nominating group. Employees attending these two meetings suffered no loss of pay during such time. Minutes of the Committee reveal that it took up at its agendas such matters as grievances, "three month trial periods" of employees, Blue Cross and Blue Shield, transfers to other departments, "more recognition" for installers who made sales, safety belts for company vehicles, revisions in a pamphlet captioned "Benefits of the Chardon Telephone Company" (which pamphlet contained the Company's policy on seniority, hours of work, paid holidays, overtime, job classifications, rates of pay, and other conditions of employment), termination of employment, lunch hours, benefits "with regard to extensions and color telephones," men's lockers, and on-the-job training. The record is barren of evidence that the Committee has levied initiation fees, collected dues, has a treasury or treasurer, or has bylaws. Nor is there evidence that it engages in genuine collective bargaining. The documents in evidence relating to Respondent's notification to its employees of the Company's benefits indicate that Respondent notifies employees how and when they will vote on representatives to the Committee. Some of this evidence is condensed in the succeeding three paragraphs. Beginning in October, Respondent started to distribute written material to its employees. This was an innovation. A document entitled "Benefits to The Chardon Telephone Company, January 1962" (which was circulated to employees in the middle of December 1961) states, among other things, that: a Holiday work, other than on Sundays, will be paid for at double time. b. Christmas Eve and Sunday work will be paid for at time and a half. c. Callout time between 5 p in and 8 a in. shall be paid at time and a half, with a minimum of 2 hours' pay assured in cases where less than 2 hours are worked during this period. d Overtime will be paid for all work in excess of 8 hours in 1 day or 40 hours a week, "whichever is greater." e. Employees who "enter" correspondence courses or night school, and whose courses are approved by the Company's general manager, will be reimbursed by the Company for the tuition and book expenses incurred if a passing grade is obtained. f. "All tools, gloves, rain suits and hats will be stocked and issued to the em- ployees on a no cost basis for the first time." g. "The Employee Committee consists of six employees representing each of the following departments: Plant 3; Commercial 1; Accounting 1; Traffic 1. The com- mittee will meet at 10:30 a in. on the third Thursday of each month. On this day a luncheon will be scheduled and in attendance will be the above committee plus all operating department heads." On or about February 13, 1962, Respondent distributed to its employees a revision of the above document. Among other things, it substantially reiterated the items numbered a to g above. It also stated that: The Employee Committee will consist of three members from the Plant Department. There will be an election each year the first week of January or when a vacancy occurs. Voting will be for three members; one present member, one new member, and one either present or new member. * The Commercial Department will choose a representative for the Employee Committee once every six months. In the month of January and again in July on the first Monday in the month. The Commercial Department will choose the renresentative on a closed ballot election and the person with the most votes will represent the department for a six month period. The Supervisor will 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also be included on the voting at which time four or more employees are under her supervision. At that time the voting will only be done by the Service Representatives. The Traffic Department will elect a representative for the Employee Com- imuttee once a year. The election will take place in the month of February. The Accounting Department will elect a representative for the Employee Committee once every six months. In the month of January and again in July on the first Monday in the month. The Accounting Department will elect the representative on a closed ballot election and the person with the most votes will represent the department for a six month period. The supervisor will not participate in the election. The above document was further revised on or about February 23, 1962, by the substitution of a new page 8A. This substitution eliminated from the paragraph above identified by an asterisk (*) the words "The supervisor [in the commercial department] will also be included in the voting until at which time four or more employees are under her supervision. At that time the voting will only be done by the Service Representatives." No evidence was received that the provisions of the above documents relating to the Committee were adopted by the employees or their representative. I find that the Company formulated them and then imposed them upon the employees with the acquiescence of the Committee. Concluding Findings in the Consolidated Complaint Cases 6 At one or more of the employee meetings more fully described above, Respondent's President Case expressed opposition to the Union and sought to induce or persuade Respondent's employees to refrain from joining in or selecting it as their bargaining representative. This does not amount to interference, restraint, or coercion. See Section 8(c) of the Act. However, Respondent made promises of or granted benefits or rewards to its employees prior to the election for the purpose of discouraging interest or membership in, activity on behalf of, or representation by the Union. These promises consisted of the following: 'r a. President Case stated that thereafter the Company would supply small or handtools to employees at least once, and would replace such tools when necessary unless they were damaged or lost by the employee's fault or neglect. It was neither the practice nor the policy of Respondent prior thereto to supply such tools. b. President Case promulgated a new overtime plan whereby employees would be paid overtime rates for all hours worked in excess of 8 hours a day. Preceding this announcement, Respondent paid overtime only for work above 40 hours a week. c. Respondent adopted a policy or practice of compensating for at least 2 hours any employee called out to work before or after regular working hours Before this an employee so called out was paid only for actual time worked. d. Two distinct statements were made regarding company payments for the furthering of education. To the group of female employees which included Wilma Cope, Respondent offered, in its discretion, to reimburse employees for any tuition and books (but not transportation) which they incurred in obtaining schooling, regardless of whether or not it related to the employee's job. To another group of female employees and to the group of male employees Respondent offered, in its discretion, to compensate employees for such tuition and books if the courses pursued would aid the employee in the performance of his job or benefit the e In its brief Respondent requests that the charges should be dismissed for various rea- sons But the charges act solely to generate the complaint Only the complaint frames the Issuer: and only the complaint may be upheld or dismissed Indiana & Michigan Electric (onu>anq , 318 IT S 9 17-18 See Section 10 (b) and (c) of the Act Accordingly, this request is denied Treating the request as a motion to dismiss the complaint, it is disposed of in accordance with the findings, conclusions, and recommendations made herein 7 There is evidence that at one meeting following the election of November 24, President Case discussed employee stock purchase plans Since the evidence thereon is quite meager, I find that the record does not establish that such discussion rose to the magnitude of a promise or reasonable expectation There is also evidence that pay raises were granted pursuant to progression wage schedules. I find that such raises were not grants of bene- fits forbidden by Section 8(a) (1). THE CHARDON TELEPHONE COMPANY 537 Company. In both instances, repayment of expenses was conditioned upon proof of passing the courses pursued. In neither of these situations had Respondent in the past adopted or made known any policy or practice of paying for such school- ing; Respondent's only previous policy or practice was to select an employee con- sidered qualified and send him or her to school for specialized job training. This latter occurred quite infrequently. Notwithstanding that Respondent did not obligate itself to make such payments, but reserved the right to pay in its discretion, I find that the offers amounted to promises of benefits or reward. Manifestly, Respondent held out an "incentive of anticipated benefit" (Cf. Commissioner v. Duberstein, 363 U.S. 278, 285), and I so find. This is so because, when considered in the environment of other uncondi- tional benefits described at these meetings, employees with confidence could look for reimbursement of expenses incurred upon submitting evidence of satisfactory completion of courses. e. Respondent in effect promised to contribute to employees' hospitalization premiums.8 Although the language used did not categorically assure such pay- ment, nevertheless it was capable of conveying the impression that Respondent would pay some of the premium, and I find that it was intended to carry that implication. It is significant that Respondent did carry out this promise by paying one-half of the premiums beginning in February 1962. Accordingly, I find that Respondent promised some and granted other benefits or rewards to its employees for the purpose of discouraging their union activities, sym- pathies, membership, and affiliation.9 I find that the Committee is a labor organization comprehended by Section 2(5) of the Act. In this connection it suffices to point out that employees participate in the Committee, that it represents the employees, and that it exists for the purpose of dealing with the Company concerning grievances, wages, rates of pay, hours of em- ployment, and conditions of work. N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203; Pacemaker Corporation, 120 NLRB 987, enfd. 260 F. 2d 880 (C.A. 7). The Committee, I further find, was conceived, formed, sponsored, and promoted by President Case. I do not credit employee Haase's testimony that the Committee was the product of employee sentiment, nor the testimony of Working Foreman Zell that the idea of an employee's committee was discussed at his home about a year before the election, nor the testimony of Case that employees discussed the idea of a committee with him for some time before it was organized. Finally, I find that, since its inception, Respondent has dominated, assisted, and contributed to the support of the Committee, and interfered with its administration. Chicago Rawhide Manufacturing Company, 221 F. 2d 165 (C.A. 7), relied on by Respondent, is distinguishable. Accordingly, I find that the above conduct violates Section 8(a)(1) and (2) of the Act. D. Report on objections As noted above, I have found that Respondent, between the time beginning shortly after October 11 and until shortly prior to November 24, made grants and promises of benefits and rewards to its employees. I find that such promises and grants were made in order to wean employees from union activities, sympathies, membership, and affiliation, and to frustrate the Union in its preelection organizational campaign. I further find that such conduct interfered with the employees' freedom of choice in the selection of a bargaining representative. In making these findings I have disregarded all evidence concerning events occurring subsequent to November 24 (the date of the election) except that I have taken into consideration two documents in evidence. The first is a document entitled "Benefits of the Chardon Telephone Company January 1962." This document, which I find was distributed in December 1961, is so closely connected to the events of November that it may not be dis- regarded as too remote. It contains statements that the Company will pay for 'Case also talked about hospitalization for new employees with less than a year's service. I find that this talk did not amount to a promise 9 The Charging Party contends that the small group meetings are sufficient in them- selves, under the doctrine of Peoples Drug Stores, Inc. and Peoples Service Drug Stores, 119 NLRB 634, to cause the election to be set aside. In my opinion that case is dis- tinguishable. Hence I do not find that the small group meetings either amount to an unfair labor practice or afford a basis for setting aside the election. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) correspondence courses or night school "not only with regard to the field of telephony but other relative subjects" approved by the general manager, and (2) all tools, gloves, rain suits, rain hats, and their replacements when broken or damaged in use." The second is a notation in minutes of the Committee for February 15, 1962, that the Company, beginning February 1962, will contribute one-half the hospitalization premium. Since under The Ideal Electric and Manufacturing Company doctrine (134 NLRB 1275) the critical period starts on November 14 and ends on November 24, the question is whether any of the foregoing acts were committed in that time. Testi- mony pinpoints the policy regarding free issuance of tools as having been promul- gated at a meeting held a short time before the election. I find that this announce- ment was made during the critical period. Testimony pertaining to the other promises of benefits or rewards does not specify the date of the meeting; but, under the circumstances, including the fact that President Case held meetings so frequently and repeated his sentiments at many of them, it is reasonable to infer that statements regarding the other grants or promises of benefits or rewards were uttered during the critical period. Accordingly, I will recommend that the election held on November 24 be set aside and that the representation proceeding be further processed by conducting another election.'° Such election is to be held when the Regional Director deems the effects of the promises and grants of benefits or rewards to have been dissipated and a free vote on a bargaining representative may be had. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor prac- tices prohibited by Section 8(a)(1) and (2) of the Act, it will be recommended that it cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. Respondent's activities impede or hinder the self-organization of its employees in a manner which has demonstrated a disregard for the purposes of the Act; and Respondent has openly manifested its hostility to such self-organization at various times in the past. Hence the remedy adopted should be commensurate with the violations found so that employees will be able to enjoy the legislative objectives enacted in Section 7 of the Act. It follows that an order adapted to assure Respondent's employees of their rights as guaranteed in said Section 7 is appropriate. Nothing in these recommendations shall be construed to require that Respondent vary or abandon any existing term or condition of employment other than those related to union membership or activities. 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. Communications Workers of America, AFL-CIO, and the Committee are labor organizations within the meaning of Sections 2(5) and 8(a) of the Act. 2. Respondent is engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By engaging in the conduct set forth in section III, B and C, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 4. By the foregoing conduct and by the conduct set forth in section III. A, above, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5 Between November 14 and 24 Respondent engaged in conduct interefering with its employees' freedom of choice in selecting a bargaining representative. ", This result is consonant with United Screw & Bolt Corp , 91 NLRB 916, upon which Respondent relies THE CHARDON TELEPHONE COMPANY 539 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, The Chardon Telephone Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising employees free tuition and books, hospitalization benefits, or other economic benefits or rewards in order to discourage their union activities, sympathies, membership, and affiliation. (b) Granting employees free tools, increased wages on overtime and callout time, or other benefits or rewards, in order to discourage their union activities, sympathies, membership, and affiliation. Nothing herein shall be construed to require that Respondent vary or abandon any existing term or condition of employment other than those related to union membership or activities. (c) Initiating, forming, sponsoring, promoting, or recognizing the Committee or any successor thereto, or any other labor organization, or assisting, dominating, contributing to the support of, or interfering with the administration of the Com- mittee, or any successor thereto, or any other labor organization of its employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right 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 designed to effectuate the policies of the Act: (a) Withdraw and withhold permanently all recognition from, and completely disestablish, the Committee, or any successor thereto, as the representative of its employees for the purpose, in whole or in part, of dealing with or discussing griev- ances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (b) Post at its premises at Chardon, Ohio, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by a duly authorized representa- tive of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Eighth Region, in writing, within 20 days from the receipt of this intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith 12 It is further recommended that unless the Respondent shall within the prescribed period notify the said Regional Director that it will comply, the Board issue an order requiring the Respondent to take the aforesaid action. RECOMMENDED ORDER IN THE REPRESENTATION CASE Upon the basis of the applicable findings of facts and conclusions of law, and upon that part of the entire record pertinent to the disposition of the objections in Case No. 8-RC-4476, it is recommended that the election held on November 24, 1961, be set aside and that the Regional Director conduct another election at such time as he deems circumstances permit a free choice of a bargaining representative. 11 If the Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall he further amended by substituting the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order" 'Z If this Recommended Order is adopted by the Board, this provision shall be modified to read • "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT recognize The Committee of Employee Representatives or any successor thereto, and withdraw permanently recognition from it; and we hereby disestablish it as the representative of any of our employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. WE WILL NOT initiate, form, sponsor, or promote The Committee of Em- ployee Representatives, or any successor thereto, or any other labor organiza- tion, or assist, dominate, contribute to the support of, or interfere with the administration of, said committee, or any successor thereto, or any other labor organization. WE WILL NOT promise to our employees contributions to hospitalization premiums, free tools, free tuition and books, hospitalization benefits, or other economic benefits or rewards in order to discourage their union activities, sympathies, membership, and affiliation. WE WILL NOT grant our employees free tools, increased wages on overtime ,and callout time, or other economic benefits or rewards, in order to discourage their union activities, sympathies, membership, and affiliation. WE WILL NOT change or vary existing terms or conditions of employment except for reasons not related to union membership or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor or- ganizations, or join or assist Communications Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from engaging in all such activities as guaranteed in Section 7 of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Communications Workers of America, AFL-CIO, or any other labor organization. THE CHARDON TELEPHONE 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. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone Number, Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Metal Blast, Inc. and John Lee Thompson. Case No. 8-CA-2716. October 26, 1962 DECISION AND ORDER On July 20,1962, Trial Examiner Eugene E. Dixon issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report and a supporting brief. 139 NLRB No. 31.