Merrill Transport Co.

MERRILL TRANSPORT CO., ETC. 1089 hired approximately 58 percent of the estimated total complement of rental representatives and 50 percent of the estimated total com- plement of car hikers at the three Metropolitan Washington area locations, and the Employer expected to have its full complement in both units at the end of February 1963. As it thus apears that there will be a substantially full complement of the employees in both units when the elections directed herein take place, we see no reason for de- parting from our usual policy of directing an immediate election." [Text of Direction of Elections omitted from publication.] 18 Cf. General Electric Company, 118 NLRB 456, 460; Hussmann Refrigerator Company, 125 NLRB 621. Paul E. Merrill d/b/a Merrill Transport Co. and Commercial Leasing, Inc., and Paul E. Merrill and Cook & Company, Inc., and Paul E. Merrill and Truck Drivers, Warehousemen and Helpers Local Union No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Cases Nos. 1-CA-3800, 1-CA-3845-2, and 1-CA-3845-3. Apr=il 3, 1963 DECISION AND ORDER On November 26, 1962, Trial Examiner James T. Barker issued his Intermediate Report in the above-entitled proceeding finding that Respondents Commercial Leasing, Inc., and Paul E. Merrill and Re- spondent Cook & Company, Inc., and Paul E. Merrill had engaged in and were engaging in certain unfair labor practices and recommend- ing that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that Respondent Merrill Transport Co. had not engaged in the alleged unfair labor practices and recommended that the complaint be dismissed insofar as it alleges unfair labor practices by Respondent Merrill Transport Co., individually. Thereafter, the Respondents and the General Counsel filed exceptions to the Inter- mediate Report and briefs in support of their exceptions. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 141 NLRB No. 97 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on May 7, 1962, by Truck Drivers, Warehousemen and Helpers Local Union No. 340 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union, the Regional Director of the National Labor Relations Board for the First Region on June 21, 1962, issued a complaint against Paul E. Merrill d/b/a Merrill Transport Co., here- inafter referred to as Respondent Merrill, alleging violations of Section 8(a)(1) and Section 8(a)(2) of the National Labor Relations Act, hereinafter called the Act. Thereafter, pursuant to separate charges filed by said Union on June 20, 1962, against Commercial Leasing, Inc., and Paul E. Merrill, and Cook & Company, Inc., and Paul E. Merrill, hereinafter respectively called Respondent Commercial and Respondent Cook, the Acting Regional Director of the National Labor Relations Board for the First Region on July 13, 1962, issued an order consolidating cases, amended consolidated complaint and further notice of hearing, alleging violations of Section 8(a) (1) and Section 8(a) (2) by the respective Respondents Merrill, Com- mercial, and Cook. In their duly filed answer Respondents admitted certain allega- tions of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiner James T. Barker at Portland, Maine, on August 20 and 21, 1962. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The parties waived oral argument and in lieu thereof filed briefs. Upon consideration of the entire record and briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Respondent Merrill is a sole proprietorship engaged in the transportation of petro- leum products, with its principal office and place of business at Portland, Maine. Merrill annually ships petroleum products valued in excess of $50,000 from its Port- land, Maine, plant to purchasers outside the State of Maine. Upon these admitted facts I find Respondent Merrill is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' Respondent Commercial is a Maine corporation with principal offices and places of business at Portland, Maine, and Portsmouth, New Hampshire, and is engaged at said places of business in the leasing and maintenance of transportation equipment. During the calendar year 1961, Commercial received proceeds totaling $365,000 from the lease of tractors and trailers to C. H. Sprague and Sons, hereinafter called Sprague, which Company has its principal office at Boston, Massachusetts, and maintains at Portsmouth, New Hampshire, a terminal where trucks leased from Commercial are stored and obtain oil. During the first 6 months of 1962 Com- mercial's proceeds from the lease of tractors and trailers to Sprague totaled ap- proximately one-half of the 1961 proceeds derived from the same purpose and source. Upon these facts I find Commercial is engaged in commerce within the meaning of Section 2(6) and (7) of the Act .2 Respondent Cook is a Maine corporation with its principal office and place of business at Portland, Maine, where it is engaged in the processing of ready mixed cement and crushed rock. During the calendar year 1961, Cook made purchases from Dragon Cement Company, Division of American Marietta Company, totaling $224,000, and during the first 6 months of 1962, purchases by Cook from said Com- pany totaled approximately $112,000. The headquarters of Dragon Cement Com- pany are situated in Thomaston, Maine, but payments for purchases made are mailed directly to the Baltimore, Maryland, headquarters of American Marietta Company. The Board in 1958 asserted jurisdiction over American Marietta Company .3 In 1 Siemons Mailing Service, 122 NLRB 81. 2 Siemons Mailing Service, supra. 8 121 NLRB 912. MERRILL TRANSPORT CO., ETC. 1091 the circumstances, I find Cook is engaged in commerce within the meaning of the Act? Moreover, I conclude and find that Respondents Merrill, Commercial, and Cook constitute a single, integrated employer, and as such are engaged in commerce within the meaning of the Act. Thus, Paul Merrill who is the sole proprietor of Respondent Merrill is president and controlling stockholder of Commercial and Cook. Merrill, his wife Virginia, and Robert F. Preti comprise the board of directors of both Com- mericial and Cook and are the sole stockholders. The officers of the two corpora- tions are identical. The principal office of Merrill is located at the same address as that of Commercial where both Respondents keep books and records. The principal office of Cook is located 2 miles away, but also in Portland. Paul Merrill directs labor relations for each of the three Respondents. Accordingly, I find that Respond- ents together constitute a single, integrated employer, and as their purchases an- nually exceed $50,000, they are engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act .5 II. THE LABOR ORGANIZATIONS INVOLVED Truck Drivers, Warehousemen and Helpers Local Union No. 340 a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, is stipulated by the parties to be a labor organization within the meaning of Section 2 (5) of the Act and I so find. Organizations known as business panels admittedly have existed at times past at each of the Respondents' plants. Their present existence at Respondent Merrill and whether each or any of them constitute labor organizations within the meaning of the Act is in dispute and is hereinafter determined. III. THE ALLEGED UNFAIR LABOR PRACTICES The evidence relating to this aspect of the proceeding is virtually undisputed. Issue is joined, rather, over the conclusions to be drawn from the record testimony and documentary evidence introduced at the hearing. The complaint alleges that Respondents initiated, formed, and sponsored business panels in each of their respective plants, described above, and, at times pertinent, have dominated and as- sisted them by contributing to their support and interfering with their administration. Respondents deny these allegations, and contend that none of the business panels were, or are, labor organizations within the meaning of Section 2(5) of the Act. Moreover, in this regard, each Respondent points out that all panel meetings have been suspended during the pendency of the instant proceeding. Further, Respondent Merrill disputes the existence of its business panel as an active, functioning entity during the 6 months' period preceding the filing of the charge pertinent to it, and asserts that the complaint against it is barred by Section 10(b) of the Act. Respond- ent Commercial contends, in effect, that the complaint against it is defective because the business panel that has existed and functioned at the Portsmouth, New Hampshire, terminal of Commercial and Sprague is not a panel of Commercial but is, in fact, a panel of Sprague, a nonparty to this proceeding.6 A. Purpose and organization of the business panels 1. General The business panels are comprised of employee representatives who meet periodi- cally with a representative of management-most often President Merrill-and dis- cuss a wide range of topics. President Merrill defined a business panel as follows: A business panel is a similarity to a board of directors where a group of men sit down and discuss with the president of the company the company's problems, where they can improve them, where it can make changes, where it can obtain better business; where you have customer relations, well, possibly suggestions come from those people as to who see and who to call on and what the back- ground of the reasons for the call is, why we're not obtaining business in certain 4 Michael Benevento and John Benevento d/b/a M. Benevento Sand 5 Gravel Co., 138 NLRB 110; Siemens Mailing Service, supra. 6A M. Andrews Company of Oregon, et al o 112 NLRB 626, enfd. 236 P 2d 44 (C.A 9) ; Thomas S. San Giacomo, Inc, et al., 130 NLRB 1588 and cases cited therein at page 1593. 6 This panel Is hereinafter referred to as the Portsmouth panel. 708-006-64-vol. 141-70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD areas, why we have certain problems with machinery that need to be corrected, and suggestions with respect to the operation. It is admitted by President Merrill that the range of permissible topics for con- sideration at Respondent's panel meetings is a broad, inclusive one., President Merrill asserts, however, that the subject of wages is a sole and exclusive prerogative of man- agement and is one avowedly beyond the pale of panel deliberations, a matter which the General Counsel disputes. On the other hand, President Merrill concedes that working conditions are discussed "once a year," but asserts that such discussions by the panels at Merrill and Cook as do take place, are limited strictly to those matters which have a direct bearing upon the profit sharing of the employees under existing profit-sharing plans. As a representative of management, President Merrill attends substantially all of the panel meetings of each Respondent, receives and answers questions posed by the panel members, and participates in the discussions of the panel. When present, Presi- dent Merrill makes notes of the proceedings and from these notes subsequently causes to be prepared on company stationery in typewritten form, in either the Portland office of Merrill or of Cook, a report of the meeting, which is placed on the appropriate com- pany bulletin board without submission to other panel members for final approval.? Individuals in managerial and/or supervisory positions have served as representatives on the panel of Respondents Merrill and Cook, and a Sprague superintendent has served on the Portsmouth panel.8 Panel meetings are held at the respective company offices after working hours. Until 1962, meetings had been conducted on the basis of six per year, but projections for 1962 called for only three meetings to be held. Meetings are held during specific months pursuant to an annual schedule decided upon in advance by existing panel members, but the specific day of the meeting is contingent upon the availability of President Merrill and other panel members. Special meetings may be called at the request of any panel member. Each panel representative re- ceives $10 a month (formerly $5) over and above his normal pay. None of the panels has a constitution, bylaws, initiation fees, dues, or treasury. B. Origin of the business panels 1. Merrill Transport Co. Respondent Merrill has two business panels. One represents the employess at its Portland and Augusta terminals and the other represents the employees at the Bangor, Maine, terminal. The parties agree that the function of both is identical. The Merrill business panels had their genesis in the early 1950's evolving from a safety meeting attended by Merrill employees and supervision held with representa- tives of Merrill's insurance company.9 It was suggested by the insurance representa- tive that monthly safety meetings be held. At the conclusion of the meeting em- ployees suggested to President Merrill that meetings to be held as suggested by the insurance agent not be limited to discussions of safety alone but include consideration of "other items." President Merrill was receptive to these suggestions and as the safety meetings progressed they were expanded to encompass, broadly and generically speak- ing, a variety of operational and employee problems. The resultant panels have met and functioned over the years with one panel member representing "inside" employees and an unspecified number of panel members representing the employee drivers and 7In President Merrill' s absence a panel member who is also a member of management is responsible for taking the notes from which reports are prepared This eventuality appears never to have occurred at Cook but at Merrill, Kenneth Wilson, President Merrill's assistant, has performed this task for his superior At Portsmouth, Sprague Superintended Bell and Assistant Superintendent Thurston have similarly acted for President Merrill. 8 At Merrill, Kenneth Wilson, assistant manager, has served as a panel member as has James Martin, Merrill office manager. Lauris Small, Cook general superintendent, has also been a representative on the Cook panel. David Bell, Sprague superintendent, has served as a representative on the Portsmouth panel. 9The statutory limitation period prescribed by Section 10(b) of the Act runs as to Merrill from November 7, 1961, and as to Respondents Cook and Commercial from December 20, 1961. Although I am precluded by Section 10(b) of the Act from basing findings of unfair labor practices on events occurring prior to the dates specified, that section does not preclude use of such evidence as background shedding light on the char- acter of the business panels and the Respondent's separate conduct after the dates stated. Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et at. (Bryan Manufacturing Co.) v. N L R B., 362 U.S. 411 ; Axelson Manufacturing Company, 88 NLRB 761, 766 ; Sharples Chemicals, Inc, 100 NLRB 20, 30, enfd. 209 F. 2d 645 (CA. 6). MERRILL TRANSPORT CO., ETC. 1093 other departmental employees . To qualify to serve on the Merrill panel an individual must have been a full-time employee for at least 1 year prior to his selection . Selec- tion of successors or of new panel members is accomplished by drawing lots. The term of service of a panel member is 1 year. 2. Commercial leasing Commercial has its principal operation at Portsmouth , New Hampshire, where it has three employees. Sprague, as stated, is a separate corporate entity bearing no legal affinity to Commercial, so far as the record reveals, save that of lessor of Commercial equipment. As found above, Sprague maintains terminal service in Portsmouth for equipment leased from Commercial. In the mid-1950's, President Merrill was contacted by the superintendent of Sprague who asked him to meet with Sprague employees to discuss certain operational problems relating to equipment . The meet- ing was subsequently held at Commercial's garage in Portsmouth, attended by drivers and a mechanic in the employ of Sprague as well as by Commercial 's then sole em- ployee at Portsmuoth .10 At the meeting several matters were discussed , including problems, relating to the operation and proper service of equipment. The employees, knowing of the Merrill business panels, expressed their desired for additional meetings in the future . From these suggestions the Portsmouth panel evolved , and at the time of the hearing, it had five panel members representing Sprague employees and one representing the three employees of Respondent Commercial. Employee Blackistone is the panel representative for the Commercial employees at Portsmouth. Soon after being employed by Commercial in November 1960, Blackistone was told by Sprague Superintendent Bell to serve on the panel and he has done so continuously since. 3. Cook & Company In the middle 1950's, President Merrill received a request from the employees at the Scarborough facility of Cook to meet with them to discuss means of improving adverse dust conditions that existed in the Scarborough hatching plant. A meeting was held later the same day in the Scarborough plant yard attended by President Merrill, the local Cook superintendent , and 18 or 20 of Cook's then complement of some 25 employees. The dust problem was fully discussed and an employee, aware of the Merrill business panels, asked President Merrill to explain the operation of the Merrill panels, which he did. One or two of the employees suggested the formation of a similar organization at Cook for the purpose of discussing operational problems then extant. The idea was supported by other employees. President Merrill informed the employees that they would have to arrange for the organization and staffing of the panel . Soon thereafter, the Cook business panel came into existence . As with the Merrill and Portsmouth panels , the precise manner in which the initial panel members were selected is not explicated in the record. But the panel has continued in existence and in 1961 and times pertinent in 1962, it was comprised of three employee representatives , two of whom represented the mixer drivers and one represented the quarry employees . The representative of the "inside " personnel is Lauris Small, superintendent of Cook . Panel members serve for 1 year and their selection appears to be accomplished by drawing lots. If a designated panel member is unable to attend a given meeting, a substitute is selected. C. Operations of the business panels 1. Merrill Transport Co. a. Operations prior to November 7, 1961 Reports of Merrill panel meetings held prior to November 7, 1961, introduced at the hearing by the General Counsel established conclusively that in addition to purely operational problems, matters relating to wages, grievances , hours of employment, and conditions of work were considered by the panel. At panel meetings of Merrill the following topics embraced within those categories were discussed: (1) the terms of the 1961-62 wage agreement between Merrill and each of its hourly paid employees; 11 (2) a management proposed educational fund with suggestions offered io At the time of the meeting Commercial had only one employee at the Portsmouth installation, although at the time of the hearing it employed three employees at that location "Respondent vigorously contends that all wage determinations are made by manage- ment unilaterally and are final ; and that these wage discussions were explanatory only as to effect and application . The General Counsel, on the other hand, contends that em- 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and decisions made with respect to the handling of loans thereunder ; (3) the charging of employees for personal use of company equipment ; (4) a policy of assured 5 o'clock quitting time for drivers 1 night per week , upon request; (5) seniority of em- ployees Bouchey and Pinkham; (6) consideration of the accident of employee Wynn previously ruled chargeable by management with respect to his bonus participation; (7) extra pay for long trips; (8) working conditions, paid vacation time, hours, and duties of the tireman; (9) refusal by employees to take certain trips and perform certain duties and types of work; ( 10) vacations for new employees and for three employees who had had extensive absence from work during the winter months because of illness; (11) 5-day workweek for terminal men and mechanics, with reference to need for a work force on Saturday mornings ; ( 12) a training program for new employees in the handling of equipment and commodities and in the loading, handling, and delivery of commodities; (13) safety lights on equipment; (14) Sat- urdays off for drivers during the summer months; (15) summer unionalls for garage- men and drivers ; and (16 ) early notice to new hires failing to qualify as drivers. b. Operations after November 7, 1961 Only one meeting of a Merrill business panel has been held during the period since November 7, 1961. It was held by the Portland business panel on May 14, 1962, in the Portland office of President Merrill. It occurred according to the un- disputed testimony of employee Colleen Pratt during working hours and was attended by employee members of the panel only. President Merrill was not in attendance. The meeting was called by Pratt, a bookkeeper, who was at the time of the hearing the Portland panel representative of the "inside" employees. Upon receipt by the panel of a communication from the Board's Regional Office concerning the instant charge, Pratt sought instructions on "what to do about the [Regions] letter" from President Merrill who had received a similar letter Merrill advised her that if the panel members "wanted to do anything about the letter that [they] would have to call a meeting [themselves]." The panel members met and Pratt read to them the Region's communication . The panel members were unanimous in their opinion that the activities of the panel were unrelated to "labor relations" and that the charges should be denied. Later the same day, Pratt prepared during working hours a typewritten letter response to the Region to which she affixed her signature. 2. Commercial Leasing, Inc. a. Operations prior to December 20, 1961 The General Counsel introduced reports of a Portsmouth panel meeting held on May 11 , 1961 , whereat, in addition to operational problems, discussion was held concerning the seniority position of employee Paul Bell and the effect upon his seniority of a prolonged leave of absence . Also at the meeting an employee panel member raised the matter of sick leave, vacation, and health insurance coverage for regular winter employees. This matter was considered by the panel with agree- ment to discuss aspects of the problem in conjunction with the next wage agreement. b. Operations after December 20, 1961 The General Counsel introduced panel meeting reports for February 8, 1962, and June 21, 1962. At the February meeting the following matters pertaining to hours of employment and conditions of work were discussed: (1) employee lockers; (2) after-hour employee access to gas pumps installed and intended for their personal use; and (3) the revision of working hours of Commercial employees to facilitate immediate availability of equipment to Sprague drivers. At the June meeting, in addition to other topics relating to operational matters, the availability of drivers for Saturday work was discussed by the panel. 3. Cook & Company a. Operations prior to December 20, 1961 The General Counsel introduced reports of Cook panel meetings held on Feb- ruary 6, June 23, and August 3, 1961. The June 23 meeting appears to have been ployee discussions with management through the device of the panels is not only invited but encouraged ( General Counsel 's Exhibit No. 3), and demonstrate that in intended pur- MERRILL TRANSPORT CO., ETC. 1095 devoted to a consideration of various operational problems. At the February 6 panel meeting, however, in addition to discussing problems of an operational nature, a clarification of sick-pay provisions was sought and agreement was reached as to the provision's applicability. The August 3 meeting included management instruc- tions concerning the use of available safety precautions and equipment and, addi- tionally, the necessity of derrick repairs to avert casualties to personnel was con- sidered. Further, testimony of President Merrill reveals that at the panel meeting held on August 20, 1961, the working conditions provisions of the annual wage agreement for hourly employees was discussed; specifically in regards to an addi- tional holiday for employees, health insurance coverage for employees and the profit- sharing plan. The employees' request for a holiday in addition to those specified in the working agreement was rejected by President Merrill. The optional nature of the health insurance plan and the extent of employee participation in the profit-sharing plan was clarified by President Merrill. b. Operations after December 20, 1961 The report of the meeting of May 25, 1962, reveals that the following subjects relat- ing to hours of employment and working conditions of employees were considered by the panel: (1) interpretation of sick-pay provisions of the wage agreement; (2) the lack of a planned program for Saturdays off during the summer, with agreement to formulate one; and (3) allowable coffee stops for drivers and the limitations thereto. Conclusions Section 8(a) (2) of the Act provides: (1) It shall be an unfair labor practice for an employer- ( * * * * (2) To dominate or interfere with the formation of administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; Section 2 (5) of the Act provides: 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. The actual functioning of each of the panels as described through reports of their respective meetings demonstrates that each panel has existed for the purpose of dis- cussing with employers grievances, hours of employment, and conditions of work.12 It is of no consequence so far as the panels' status as labor organizations is concerned that final - decisions on matters considered by the panels at all times resided with President Merrill.13 It is enough, as the record amply establishes, that employees were encouraged to present "gripes" to management through the auspices of their panel representative, that the panels admittedly exist as forums for the expression of em- ployee views, information, and suggestions to management on an exeedingly diverse range of matter relating to their conditions of work and hours of employment, and that management of each Respondent company instituted changes in working condi- tions or hours of employment after panel consideration of problems relating thereto.14 Further, it is significant that at Merrill and Commercial seniority, and, at Merrill, pose and actual practice panel deliberations encompass wage discussions . In this con- nection see footnote 12, infra. In the circumstances , I deem it unnecessary to decide whether the panel activities encompassed the discussion of wages, as such , or whether they exist, in part, for that purpose. is See N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc , 360 U.S. 203; Sharpies Chemicals, Inc., 100 NLRB 20, 30-31. is At Merrill , the summer uniform or unionall adjustment ; at Cook , the promulgation of established schedule for employee Saturday's off and of a strict rule relating to coffee stops ; at Commercial the transfer of employee lockers from the old to new terminal, the after-hours availability for employee personal use of gasoline pump facilities, and the re- vision of employee working hours to facilitate availability of equipment leased to Sprague 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the profit-sharing status of employees were treated essentially as grievances, proper for panel deliberation.15 The United States Supreme Court in N.L.R.B. v. Cabot Carbon Company and Cabot Shops Inc., supra, found that the term "dealing with" as contained in Section 2(5) of the Act is not synonymous with but is broader than the term "bargain with." The Court further concluded and found that in making proposals and requests con- cerning a variety of subjects including seniority, working schedules, holidays, vacations, wage corrections, and improvements of working facilities, some of which proposals and requests were acted upon by the employer, the employee committees therein were dealing with the employer even though the said proposals and requests amounted only to recommendations, and the final decisions remained with the employer. Sub- sequently, the Board in Thompson Ramo Wooldridge, Inc. (Dage Television Division) 132 NLRB 993 16 answered in the affirmative the question of whether the mere ex- pression of views and the conveying of information by an employee association to an employer, unaccompanied by recommendations constituted "dealing" with manage- ment with the meaning of Section 2(5) of the Act.17 Further, in the Thompson Ramo Wooldridge case, finding that the employer had received through the employee committee a grievance which it investigated, the Board concluded that "management recognized that the presentation of individual grievances fall within the scope of the Association's responsibilities." It must follow, certainly, in view of these precedents and the panels' demonstrated activities that in the absence of distinguishing factors, the business panels of each Respondent are labor organizations within the meaning of Section 2(5) of the Act.is But Respondents Merrill and Cook would distinguish precedent on the ground that discussions and deliberations of their panels did not, in the normal sense and accepted legal effect constitute "dealing," as defined in the statute. This is so, claims Respondents, because each and every topic considered by the respective panels had a "price tag" connotation and related directly to the company profits in which their respective employees individually had a vital and active interest in view of their participation in the profit-sharing plans extant at each company. The contention continues, that on this premise any discussion of hours of employment or conditions of work that may have occurred, related to matters of individual rather than collec- tive interest and were singularly distinguishable from discussions between manage- ment and employee representatives when no profit-sharing economic factor is in- herent, N.L R.B. v. Associated Machines, Inc., 219 F. 2d 433, the case cited in support of this proposition by Respondents is, in my opinion, not apposite or con- trolling, for the evidence shows that the respective panels dealt with management concerning hours of employment and conditions of work which were matter of collection rather than individual interest and application.19 The contention here advanced by Respondents is but a different facet of the defense interposed in the Thompson Ramo Wooldridge case, and there rejected by the Board and Trial Examiner. Here, as there, excessive reliance is placed upon the "transcendency of word over act." 20 Subjects actually discussed by the panels were matters en- compassed within the definition of Section 2(5) of the Act. Accordingly, I reject the contentions of Respondents and find that the business panels of the respective Respondents are labor organizations within the meaning of Section 2(5) of the Act. Domination or Assistance Because of the limitations imposed by Section 10(b) of the Act, as stated above, a violation of Section 8(a)(2) herein must be predicated upon conduct of the respective Respondents occurring not more than 6 months before the filing and serv ice of the respective charges, and unless illegal conduct is independently established within that period, events cognizable above as background may not support an 36 Although not advanced through a formalized grievance procedure, the profit-sharing issue as to Merrill employee Wynn and the seniority question as to Merrill employees Bouchey and Pinkham were in fact, if not in form , grievance issues , which received panel consideration resulting in management resolution . This is likewise true of the Portsmouth panel's discussion of the seniority of employee David Bell. 16 Enforced 305 F. 2d 807 (C.A. 7). 17 The DeVilbiss Company, 102 NLRB 1317 , cited by the Respondent, is factually dis- tinguishable, involving as it does a "gripe" committee having the potential attributes of a labor organization but never having regularly functioned. is See also Indiana Metal Products Corporation v. N.L R.B ., 202 F. 2d 613 ( C.A. 7) NLRB v Standard Coil Products Co., Inc, 224 F. 2d 465 (C.A. 1). 10 See N L R B. v Standard Coil Products Co., Inc., 224 F. 2d 465, 467-468. 20132 NLRB 993, 1006. MERRILL TRANSPORT CO., ETC. 1097 unfair labor practice.21 And this is so even though, in the absence of the Section 10(b) limitation, the employer's total course of conduct may have warranted finding a violation of the Act.22 Merrill Transport Co. The General Counsel must rely in support of the alleged domination or assistance of the Merrill panels during the limitation period upon the evidence relating to the May 14, 1962, meeting of the Portland panel in which President Merrill did not personally participate. Although I reject Respondent Merrill's contention that its panels have been disbanded and have not existed within the statutory limitation period,23 the penels''mere existence without more, will not support a finding of a violation. Viewed in a light most favorable to the General Counsel the evidence shows that without President Merrill's participation, the employee panel members met on com- pany time and in President Merrill's office to discuss the instant charges and accom- panying correspondence that had been served upon the panel by the Board's Regional Office. The meeting was held pursuant to President Merrill's suggestion proffered as a result of Pratt's inquiry as to the proper course of action to be taken. The letter response to the Region decided upon at the meeting was prepared on com- pany time, stationery and equipment by an employee panel member. Although this evidence reflects a continuation into the limitation period of the influence of President Merrill upon the activities of the panel and manifests his propensity to overtly aid the panel in conducting its affairs, this evidence, in my opinion, falls short of the substantiality required to support a finding of domination or assistance during the 10(b) period. I shall therefore recommend that the complaint be dis- missed insofar as it alleges unfair labor practices by Respondent Merrill, individually.24 Respondents Cook and Commercial It is, of course, recognized that Cook and Commercial are separate and distinct Respondents in this proceeding, and that the sufficiency, or lack thereof, of the evidence adduced in support of the allegations of the complaint pertaining to each Respondent must be independently measured and separately resolved. This has been done. But with due allowances for difference of detail which delineate contrasts of form and not of substance, the conclusions to be drawn from the evidence as to the merits of the charge against each of them (Cook and Commercial) are identical and are treated together for purposes of clarity and conciseness 25 2i Local Lodge No. 1424, International Association of Machinists, AFL-CIO; et al (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411; Armco Drainage & Metal Products, Inc., etc., 106 NLRB 725. ^2 See Armco Drainage & Metal Products, Inc., supra, at 731. 21 Merrill's assertion concerning the nonexistence of its business panels during the 10(b) period is without merit Although the last meeting of the Portland panel attended by President Merrill was held on September 28, 1961, some 7i months before the filing of the pertinent charge herein, the employee panel members of the Portland panel met to- gether on May 14, 1962, In President Merrill's office to discuss the instant charge Further, and significantly, there is no evidence, that the business panels have been dis- solved Rather, the evidence affirmatively shows that President Merrill did no more than inform the panels upon receipt of the charges served upon him in May 1962, that he could not "participate any further until the matter [raised by the charge] was clarified " However, no action was taken to disband the panels at Merrill. In the circumstances, I conclude and find that the business panels at Merrill have existed and were viable- although essentially quiescent-within 6 months of the filing and service of the pertinent charge against Respondent Merrill. 24 Universal Oil Products Company, 108 NLRB 68; Armco Drainage 4 Metal Products, Inc, supra; Tennessee Knitting Mills, Inc., 88 NLRB 1103; of Mt Clemens Metal Prod- ucts Company, 126 NLRB 1297, enfd. as modified 2'87 F, 2d 790 (C A. 6). See also NLRB v. Brown Company, 160 F. 2d 449 (C.A. 1). 25 By way of defense to the complaint Respondent Commercial contends that the com- plaint's allegations relating to it must be dismissed because the alleged panel of Com- mercial is, in fact, a panel of Sprague, an employer not joined as a party in the instant proceeding. Basic to Commercial's contention is the admitted fact that five of the six employee members of the Portsmouth panel are Sprague employees and only one member is a Commercial' employee. Additionally, Commercial contends that the relationship of it with its single employee panel ' member is consonant with the proviso to Section 9(a) of 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence adduced by the General Counsel is sufficient to establish tha since December 20, 1961, within the 6-month limitation period, Respondent Cook and Re- spondent Commercial have, as a continuation in kind of their respective conduct in the prelimitation period, contributed financial and other unlawful support to their respective business panels, in violations of Section 8(a)(2) of the Act, thereby interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed by Section 8(a)( I) of the Act. They have done so by paying their respective employee panel members for time spent outside of working hours in attendance at regular panel meetings with management, furnishing company property as the situs of panel meetings, and by preparing by use of company manpower and on company time, equipment and stationery typewritten reports or minutes of the respective panel meetings 26 Similar support was given by Respondent Cook in the preparation of its panel's June 28, 1962, correspondence to the Board's Regional Di- rector wherein the panel denied the charges giving rise to the instant proceeding. There remains however the question whether Respondents have dominated and interfered with the administration of their respective business panels after Decem- ber 20, 1961. Each case of domination must turn on the totality of its own facts measured by precedent-established indicia of domination.27 Absent here is evidence that the proposal for the formation of either panel came overtly from management; with only a hint that an atmosphere or circumstance in form of the "dust grievance meeting" at Cook and the "equipment operation" meeting at Commercial may have been created by management to serve as a subtle. cloak for alleged spontaneous employee organizational efforts. But beyond this hint is evidence clear on the record of President Merrill's receptiveness to the idea of meetings patterned after those of the Merrill panels. Armed with knowledge of the workings of the Merrill panels, the employees both at Cook and Portsmouth were left to their own devices to organize, in form, structure, and substance, an entity to carry out their expressed desires for a forum and instrument for frequent meetings with management. The entity that emerged was one, structurally and functionally, strikingly similar to the Merrill organization; and bearing the identical identifying designation. Void in the record is evidence of actual management in- trusion into the formation of the panel or selection of its original members. How- ever, the panels received ready acceptance by President Merrill, who did not question, so far as the record reveals, whether the panels had been endorsed by a majority of the employees. Moreover, the organizations that were formed and have functioned on into the Section 10(b) limitation period are ones without a written constitution. bylaws, dues, fees, treasury, or any form of self-financing. They are organizations which hold no general meetings of employees for the formulation of employee demands or the achievement of employee consensus on matters discussed or to be discussed at panel meetings. They are organizations wherein the employees appear to have had no opportunity or free voice to express their preference, for or against, the continuation of the panel form of representation, and where, even in the selection of their panel representatives, the employees are denied any real voice and must acquiesce in the representation of the employee or supervisor whose name is drawn by lot in a ritual conducted by incumbent panel members at panel meetings held on company property and attended by members of Respondents' management. The the Act. This defense must be rejected for the realities are that the Portsmouth panel is, as I have found, a labor organization with which President Merrill deals concerning matters of interrelated and common interest to employees. To the extent that employees of Commercial are represented on the Portsmouth panel by a Commercial employee panel member, the Portsmouth panel is pro tanto a panel of Commercial. Because Sprague is not a party to the instant proceeding no determination of Sprague's legal rights or lia- bilities may be made. However, Sprague's nonparty status does not in any way serve to defeat or Impede the application of the Board's remedial powers against Respondent Commercial, a party to the proceeding. Moreover, in the circumstances here present, Respondent's contention concerning the applicability of Section 9(a) is similarly without merit in view of the business panel's demonstrated purpose and function of dealing with management concerning matters of collective employee interests rather than individual interests N.L R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U S 203, 214-218; cf. Bonnaz`Hand 'Embroiderers, etc, Local 66, International Ladles' Garment Workers' Union, AFL v. N L R B., 230 F. 2d 47 (C A.D C.), setting aside 111 NLRB 82 Shultz v N L.R B , 284 F. 2d 254 (C A.D.C ), cited by Respondent 24 Cook : the panel meeting of May 25, 1962; Commercial • the panel meetings of Febru- ary 8 and June 21, 1962 r+ See Ben Carson Manufacturing Co., 112 NLRB 323, 348; see also Adhesive Products Corporation, 117 NLRB 265, 267; enfd. as modified 281 F. 2d 89 ( C.A. 2). MERRILL TRANSPORT CO., ETC. 1099 organizations are ones which have had, over the years, and, specifically, during the 10(b) limitation period, as coequal panel representatives, members of management who have attended and participated in panel deliberations 28 The panels have not achieved nor are they accorded the full status of collective-bargaimng representatives, for their role is essentially consultatory, augmented by their function as agents for employee suggestions, grievances and complaints. The panels have never negotiated collective-bargaining contracts and the respective Respondents retain to themselves ultimate, unfettered authority to unconditionally decide all matters discussed relating to wages, grievances, hours of work, and conditions of employment. Indeed the panels' subservience to the respective Respondents has been additionally magnified by the intrusion of management into a position on both sides of the bargaining table by virtue of the status of managerial personnel as panel representatives. In sum, the business panels of the respective Respondents, Commercial and Cook, that have existed and functioned during the statutory 10(b) period, dealing with the respective managements on matters relating to hours of employment, conditions, of work, and employment benefits, which matters have received management resolu- tion, are organizations which lack the characteristics of labor organizations capable of representing employees independent of management,29 as inure from an independent treasury and source of income, an established constitution and bylaws to govern and guide its administration and activities, provisions for regular employee meetings conducing to the orderly and independent conduct of interunion affairs, and meeting facilities available independent of employee magnanimity. Indeed, the ability of President Merrill to virtually bring. the functioning of the respective panels to standstill by his unilateral decision not to meet with the panels during the pendency of the instance proceedings is persuasive proof that the panels lack independent status. Further, the panel organizations are organizations whose employee representatives during the 10(b) period continued to receive compensation for time spent after working hours for their meetings with management, and such payments, in the circumstances, have been regarded as an aspect of contro130 Moreover, they are organizations which during the 10(b) period continued to be encumbered with the inherent defect in their capacity to engage in free, arm's-length collective bargaining with management by virtue of the presence of managerial personnel as panel repre- sentatives3i In the circumstances, I am convinced that Respondents, Cook and Commercial, have by their separate conduct during the statutory limitation period commencing December 20, 1961, demonstrated that their respective business panels lack independent status and I conclude and find that Respondents have dominated the administration of their respective business panels, thereby violating Section 8(a)(1) and 8(a)(2) of the Act.32 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondents 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found,that Respondents Merrill, Commercial, and Cook constitute a single, integrated employer within the meaning of the Act, they are jointly and severally responsible for the commission of the unfair labor practices found herein and it will be recommended that each shall be jointly and severally responsible for At Cook, Superintendent Small has served as a panel representative during the 10(b) period and Sprague's superintendent, Bell, has served on the Sprague panel The fact that Bell has managerial status with an employer not a party to this proceeding does not, in the circumstances of this proceeding, after the ultimate impact or effect of manage- rial participation In the affairs of the business panel. 21 See Beiser Aviation Corporation, 135 NLRB 399. 30 N.L R.B v. H. E. Fletcher Co , 108 F 2d 459, 465 (C.A. 1) ii See Geiser Aviation Corporation, supra; Ben Carson Manufacturing Co., et al., 112 NLRB 323, 343. n See Han-Dee Spring A Mfg. Co., Inc., 132 NLRB 1542; Beiser Aviation Corporation, supra; Prince Macaroni Manufacturing Co, 138 NLRB 979; Thompson Ramo Wooldridge, Inc. (Dage TV Div.), supra; cf. Coppus Engineering Corporation v N.L.R B , 240 F. 2d 564 (CA. 1), setting aside 115 NLRB 1387. 1100 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD remedying the unfair labor practices 33 In the circumstances of this proceeding, how- ever, including the findings that Respondent Merrill has not independently engaged in any unfair labor practices, but nonetheless, in view of the official and proprietary relationship of Paul E. Merrill to each of the Respondents and his participation in the unfair labor practices found, the responsibility of Respondent Merrill for remedy- ing the unfair labor practices herein may be best effectuated by issuance of a broad cease and desist order and by requiring Respondent Merrill to post notices in ac- cordance with paragraph 2(c) of the Recommendations. It having also been found that Respondents have engaged in unfair labor practices in violation of Section 8 (a) (1) and (2) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondents have assisted and supported as well as dominated and interfered with, the administration of the business panel of Respondent Cook, it will be recommended that they be required to cease and desist from such conduct and to withhold recognition from, and to disestablish, said business panel. It having further been found that the Portsmouth business panel is pro tanto a business panel of Respondent Commercial, and it having also been found that Re- spondents have pro tanto assisted and supported as well as dominated and interfered with the administration of said business panel, it will be recommended that they be required to cease and desist from such conduct and to withhold recognition therefrom. As the Portsmouth panel is partially comprised of employees of an employer not a party to this proceeding whose legal rights and liabilities have not been determined, disestablishment is not deemed an appropriate remedy. However, in the circum- stances, the remedial actions herein recommended are deemed sufficient to remedy the unfair labor practices found to have been committed,. and to effectuate the pur- poses of the Act. As the findings of interference, restraint, and coercion are derived from the Section 8(a)(2) violation, it will be recommended that Respondents cease and desist from engaging in like or related conduct interfering with the representation of their respective employees. 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. Respondents Merrill, Commercial, and Cook are each separately engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents Merrill, Commercial, and Cook constitute a single, integrated em- ployer within the meaning of Section 2(2) of the Act, and, as such, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The business panels of each Respondent are labor organizations within the mean- ing of Section 2(5) of the Act. 4. By assisting and dominating and interfering in the administration of the business panels of Respondents Commercial and Cook, respectively, Respondents have engaged in and are engaging in unfair labor practices within. tlic-meaning of Section 8(a) (2) of the Act. 5. By such conduct Respondents have interfered with, restrained, and coerced the employees of Respondents Commercial and Cook, respectively, in the exercise of rights guaranteed in Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent Merrill has not since on or about November 7, 1961, as alleged in the consolidated complaint, assisted, dominated, or contributed to the support of or interfered with the administration of its business panels. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Paul E. Merrill, d/b/a Merrill Trans- 83 A M. Andrews Company of Oregon, • et al., 112 NLRB,, 626,' enfd. 236 F '2d -44 (CA 9) ; Butler Knitting Mills, Inc., 127 NLRB 68, 80; Minnesota Manufacturing Com- pany, Inc, 132 NLRB 1398. MERRILL TRANSPORT CO., ETC. 1101 port Co., Commercial Leasing, Inc., and Paul E. Merrill and Cook & Company, Inc, and Paul E. Merrill, their respective officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Dominating and interfering with the administration of the respective business panels of Respondent Commercial and Respondent Cook, or any other business panel or other labor organization, and assisting or contributing support to said business panels or any other business panel, or other labor organization. (b) In any like or related manner interfering with the representation of their re- spective employees. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from and completely disestablish the business panel of Respondent Cook, or any successor thereto, as the representatives of Respondent Cook's employees for the purpose of dealing with Respondent Cook concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other terms or conditions of employment. (b) Withdraw and withhold all recognition from the business panel of Respondent Commercial or any successor thereto, as the representative of Respondent Com- mercial's employees for the purpose of dealing with Respondent Commercial concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or any other terms or conditions of employment. (c) Respondent Commercial shall post at its Portsmouth, New Hampshire, terminal and its Portland, Maine, office, Respondent Cook at its Portland, Maine, place of business ; and Respondent Merrill at its Portland, Maine, office and its Portland, Augusta, and Bangor, Maine, terminals, copies of the notices attached hereto and marked, respectively, "Appendix A" and "Appendix B." 34 Copies of said notices, to be furnished by the Regional Director of the First Region, shall, after being duly signed by representatives of the respective Respondents, be posted by the respective Respond- ents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered , defaced, or covered by any other material (d) Notify the Regional Director for the First Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith 35 "If these recommendations are adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order 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 will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order" ac If these recommendations are adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the First Region, In writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT dominate and interfere with the administration of the Business Panel of Commercial Leasing, Inc., or assist or contribute financial or other support to said Business Panel, or any other business panel, or any other labor organization. WE WILL NOT in any like or related manner interfere with the representation of our employees. WE hereby withdraw recognition from the Business Panel of Commercial Leasing, Inc., as the representative of any of our employees for the purpose of dealing with Commercial Leasing, Inc., concerning grievances, labor dis- putes, wages, or rates of pay, hours of employment, or other terms or conditions of employment. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT recognize the aforesaid Business Panel or any successor thereto for any of the foregoing purposes. COMMERCIAL LEASING, INC., AND PAUL E. MERRILL, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) COOK & COMPANY, INC., Employer. Dated ------------------- By------------------------------------------- (Representative ) ( Title) PAUL E. MERRILL D/B/A MERRILL TRANSPORT Co., Employer. Dated------------------- By-=----------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 24 School Street, Boston 8, Massachusetts, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT dominate and interfere with the administration of the Business Panel of Cook & Company, Inc., or assist or contribute financial or other sup- port to said Business Panel, or any other business panel, or any other labor or- ganization. WE WILL NOT in any like or related manner interfere with the representation of our employees. WE hereby disestablish and withdraw recognition from the Business Panel of Cook & Company, Inc., as the representative of any of our employees for the purpose of dealing with Cook & Company, Inc., concerning grievances, labor disputes , wages, or rates of pay, hours of employment, or other terms or conditions of employment. WE WILL NOT recognize the aforesaid Business Panel or any successor thereto for any of the foregoing purposes. COOK & COMPANY, INC., AND PAUL E. MERRILL, Employer. Dated------------------- By------------------------------------------- (Representative ) Title) COMMERCIAL LEASING, INC., Employer. Dated---------- --------- By------------------------------------------ (Representative (Title) PAUL E. MERRILL D/B/A MERRILL TRANSPORT Co., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston 8, Massachusetts, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions.