Utrad Corp.

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Utrad Corporation and International Union of Dis- trict 50, Allied and Technical Workers of the United States and Canada' and International Union of Electrical, Radio & Machine Workers, A F L- CIO. Cases 25-iCA-3408 and 25-CA-1897 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On April 29, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled consol- idated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the consolidated com- plaint. Thereafter, both Respondent and General Counsel filed limited exceptions, with briefs in support thereof, to the Trial Examiner's Decision. Respondent has also submitted a brief in answer to General Coun- sel's limited exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. We agree with the Trial Examiner's finding that Respondent's original no-solicitation rule published in the employee handbook constitutes too broad a proscription of employee union activity and is presum- tively violative of the Act. While we also agree with his finding that no violation may be based on the ,promulgation of the rule, under Section 10(b) of the Act, we find merit in the General Counsel's exception to the Trial Examiner's finding that the rule was not maintained in effect. The record indicates that the employee handbook containing the unlawful ' International Union of District 50, U M W A, amended its constitution and changed its name on April 9, 1970 rule was revised within the relevant period without change in this rule and that it was given to all new employees, including employees hired within the 10(b) period, without notice to them or to incumbent employees that Respondent did not intend to enforce the rule as written. In our opinion, both the republica- tion of the rule, and the failure to renounce it specifi- cally, constituted maintenance thereof which reason- ably tended to inhibit employees in the exercise of their Section 7 rights. Accordingly, we find that Respondent maintained an invalid no-solicitation rule in effect during the relevant period, in violation of Section 8(a)(1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Utrad Corporation, Huntington, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, with the following modification: 1. Renumber the present paragraph 1(d) as 1(e) and insert the following as paragraph 1(d): "(d) Maintaining in effect a broad no-solicitation rule which unduly tends to restrain or impede its employees in their organizational activities." 2. In the Appendix to the Trial Examiner's Recom- mended Order insert the following respective para- graphs after the second indented paragraph and as the final paragraph: WE WILL NOT prohibit our employees from soliciting on behalf of International Union of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, on company property during their nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any S Cone Mills Corporation, 174 NLRB No 151, Varo, Inc, 172 NLRB No 236 We note that Respondent has, subsequent to the issuance of the amended consolidated complaint, rescinded the unlawful no-solicita- tion rule by publishing a revised rule in the employee handbook Remedial action is, nevertheless, necessary in order to assure all employees that the offending rule has been rescinded , and to adequately publicize the revised rule See Casey Manufacturing Company, 167 NLRB 89,97 Chairman Miller would affirm the Trial Examiner's finding that the no-solicitation rule was not maintained in effect in violation of Sec 8(a)(i) Member Brown would not adopt the Trial Examiner's conclusion that the revised rule was presumptively valid See Campbell Soup Company, 170 NLRB No 167 (Member Brown dissenting in part), Exide Alkaline Battery Division ofESB, Inc, 177 NLRB No 99 185 NLRB No. 49 UTRAD CORP labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.' IT IS HEREBY FURTHER ORDERED that the com- plaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. This paragraph conforms the notice to the Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner- Cases 25-CA- 3408 and 25-CA-1897, proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard in Huntington, Indiana, on October 21 and 22, 1969,` and in Fort Wayne, Indiana, on February 10, 1970,2 with all parties participating except International Union of Electrical, Radio & Machine Work- ers, AFL-CIO, hereafter referred to as IUE, pursuant to notice on the complaint' issued on September 9 by the Regional Director for Region 25, alleging violations of Section 8(a)(1) and (2) by Utrad Corporation, hereafter referred to as the Company or Respondent. The amended consolidated complaint, as further amended on October 8, in substance, alleges that in January 1964 Respondent interrogated its employees in violation of Section 8(a)(1) of the Act, and has since assisted and dominated Utrad Employees Association, hereafter called Association, a labor organization of its employees in violation of Section 8(a)(2) of the Act, that about April 1, 1964, Respondent and IUE entered into a settlement agreement in Case 25- CA-1897, which was approved by the Regional Director, providing, inter aha, that Respondent would disestablish the Association as the bargaining representative of its employees and would not dominate or interfere with the formation or administration of any labor organization or otherwise interfere with, restrain, or coerce its employees in the exercise of their Section 7 rights; that since about November 26, 1968, Respondent has maintained in effect a rule prohibiting solicitation of union membership or sup- port, that despite its solicitation rule, Respondent refused District 50's request to reply to Respondent's campaign speeches to its employees on its time and property, that about May 5 Respondent kept the activities of District 50 under surveillance and gave the impression of doing so; that in June and July Respondent interrogated its employ- ees concerning their union activities, that in July Respondent All dates hereafter refer to the year 1969 unless otherwise noted The hearing was initially closed on October 22, and thereafter reopened pursuant to the Board 's Order of November 4, reversing the Trial Examin- er's exclusion of certain evidence pertaining to presettlement violations ' Based on charges filed on February 7 and March 25, 1964, by IUE in Case 25-CA-1897, and a charge filed on May 26 by International Union of District 50, U M W A , hereafter referred to as the Union or District 50 435 advised its employees that the plant would close if the Union prevailed; that since about January 1964 by the above acts and conduct, Respondent violated the terms of the aforedescribed settlement agreement, and that about September 9 the Regional Director vacated and set aside the said agreement. Respondent in its duly filed answer denied that the Association is a labor organization or that it engaged in any violative conduct or breach of its settlement agreement All parties appearing were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs Respondent and the General Counsel filed briefs which have been fully considered. On the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT I COMMERCE At all times material herein Respondent has been engaged in the manufacture, distribution, and sale of electronic transformers and related products at Huntington, Indiana. During the past 12 months, which period is representative of all times material herein, Respondent manufactured, sold, and shipped from its Huntington, Indiana, plant fin- ished products valued in excess of $50,000 to points outside the State of Indiana During the past year Respondent, in the course and conduct of its Huntington, Indiana, facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana. Respondent admits, and I find, that at all times material herein it has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and I find, that at all times material herein District 50 and IUE have been labor organizations within the meaning of Section 2(5) of the Act. I find further as indicated hereafter that at all times material herein the Association has been a labor organization within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES A Introduction and Contentions of the Parties The General Counsel contends that following the execu- tion and approval of the settlement agreement in April 1964 involving violations of Section 8(a)(1) and (2), Respondent has failed to comply with its terms and has engaged in additional violations of said section, thereby causing the Regional Director to withdraw his approval of the settlement agreement (which pursuant to Board policy thereby became a nullity), and to institute the within proceeding. Although no violation of Section 8(a)(1) and (2) may be predicated upon Respondent's conduct prior to the settlement agreement unless and until it is first determined and found that this section has been violated 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent subsequent to April 1964, I will, nevertheless, first treat with conduct prior to April 1964 as background shedding light upon and imparting meaning to Respondent's alleged postsettlement conduct Respondent contends that its conduct after the execution of the settlement agreement was not violative of the Act, and that the settlement was not breached but fully complied with B. Respondent's Presettlement Conduct The unrefuted testimony shows that about January 24, 1964, employee Dorma K. Bird joined the IUE organizing campaign which was then in progress at Respondent's plant and handbilled at the plant entrance. After passing out handbills, she and employee Marilyn Schieman put on union badges, entered the plant, and began working. That afternoon she, Kay Harris, Bob Brown, Marie Schie- man, and Marilyn Schieman, all of whom were employees campaigning for the IUE, were summoned by Plant Manager Carney to the office of President Kaufman There, they met with company officials, Kaufman, Carney, Sprinkle, and Clark. After Carney expressed shock and surprise to find the employees campaigning for the IUE because he had not realized that the situation in the plant was so bad as to call for a union, Kaufman asked the employees about their complaints and was advised that they included favoritism among the employees and low wages He, there- upon, suggested that the employees form a club and elect officers who could appoint grievance and social committees, that the grievance committee could take employee grievances every Friday to management and resolve them, and that they did not need a union and rather than pay union dues they could spend their money on club picnics and parties He then explained how they should go about having an election,' agreed to provide the ballots, suggested the name of "Utrad Employee Association" as the name of their organization, and requested them to remove their union badges and throw them in the trash can Three of the employees did so, but Marilyn Schieman and Dorma Bird removed their badges and kept them. Kaufman then used the intercom system in the plant to call all the employees to a meeting at which he stated that the employees campaigning for IUE really never wanted a union , that they just wanted better working conditions, that they had decided to organize a club, and that they would have grievance and social committees He also men- tioned that the Company had had trouble with a unionized California plant He did all the talking and never asked whether the employees were agreeable, and they just went along with him. A few days later upon punching out, the employees found ballots (prepared by Respondent) which they took home. The following day when Carney distributed pay- checks, Marie Schieman accompanied him with a ballot box into which the employees dropped their marked ballots ' Employees interested in running for office were told to hand in their names which would first be posted on the company bulletin board, and then placed on the ballots and were tallied by Dorma Bird and Marie Schleman ' Personnel Manager Sprinkle then told them to notify the winning candidates about their election and also to advise Bob Pinkerton, the president-elect, how to go about having meetings and to select the members of the grievance commit- tee. After so advising Pinkerton, Mrs Bird inquired of Mr Carney whether the Association grievance committee could hold their meetings on company time, otherwise they would encounter complications in arranging their car- pools for their rides home He assured her that all meetings would be held on company time and that they could take all the time they needed. Following his notification of election to the presidency, Pinkerton and Emiline Wright, the newly elected treasurer, were summoned by Sprinkle to the office of Mr Cramer, the plant accountant, where they were presented with a check for $500 from the Birch Vending Machine,' and were told they would be receiving similar checks quarterly for about $300 On February 4, 1964, Cramer asked Pinker- ton to sign a checking account card in the name of Utrad Employees Association, and was told that Mrs. Wright would also sign a similar card, and that they would thereafter sign Association checks' About February 3, 1964, the Association held a meeting of its officers in the fine wire room of the plant after working hours! On February 4, the Association officers met with Clark and Sprinkle and told them the Association wanted to set up bylaws, a constitution, and policies in order to function as an organization Clark replied that the Company already had certain policies which would be shown to them if they would meet with him the following Friday. On the following Friday the Association officers met in Clark's office with Clark, Sprinkle, and Carney and were shown a company policy book The contents of the book were then read paragraph by paragraph and discussed Certain changes were suggested by the Associa- tion officers and discussed These included requests for time-and-a-half wage rates on Saturdays when a holiday fell during the week, night premium pay to be paid during a 2-day temporary transfer to another job, and the dropping of job posting. Management agreed to these changes. Two or three months later, following the execution and approval of the settlement agreement, the Association officers received a new company policy book which included the changes requested at their prior meeting. All of the above matters relating to the Association took place on company time except where noted otherwise. Meanwhile on February 7 and March 25, 1964, IUE filed charges against Respondent for violating Section 8(a)(1) and (2) of the Act based upon its assistance in the formation The elected officers were Robert Pinkerton, president, Barbara Bow- man, vice president , Emiline Wright, treasurer, Biff Mullens, recording secretary, and Effert Hamilton, sergeant at arms The Company pursuant to its arrangement with Birch, a catering company, had been receiving a percentage of the receipts from vending machines which had been set up in the company cafeteria The payments received by the Association were used to fund the employees ' recreational and social activities, consisting of parties , bowling events, picnics, etc Permission had been obtained from Sprinkle to use the wire room whenever desired UTRAD CORP of the Association, dominating and interfering with its operations, and violative interrogation of its employees. Thereafter, pursuant to the settlement agreement Respond- ent agreed to disestablish the Association as the representa- tive of any of its employees for the purpose of dealing with the Association concerning grievances, wages, hours of employment, or other conditions of employment, and to stop dominating or interfering with the formation of any labor organization or assisting in its support, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights C. Respondent's Alleged Postsettlement Conduct 1. The alleged surveillance Respondent's plant is located in Huntington, Indiana. It fronts on Briant Street and has one gate at the south end leading from the parking lot to that street and another gate from the parking lot leading to State Street, which intersects Bnant Street about one block from the south end of the plant At the south end of the plant there is an overhead door with three windows, which is close to the Bnant Street gate and leads into the toolroom. Farther to the east a loading dock is located inside the plant from which one can see the State Street gate about a block away but not the Briant Street gate During the middle of May District 50 was engaged in an organizational drive at the plant and its representatives, Jake Haffner and Robert Davidson, were handbilling at the Briant Street gate and at the State Street gate, respectively. Employee Cynthia Garrison testified that on two occasions on one afternoon she saw Plant Superintendent Kenneth Kroge standing on the loading dock looking out toward the State Street gate where Davidson was handbilling. On each occa- sion Kroge was talking to employee Glen Curtis who works in that area. During the ordinary course of his work Kroge has occasion to make several trips daily to the loading dock and he testified that he was unaware of the handbilling when he approached the loading dock to check on incoming material. Employee Richard Deitch, a toolroom employee under the immediate supervision of Foreman Glen Dillon, testified that during May he observed Dillon looking out through the windows of the overhead door at the south end of the plant in the direction of the Briant Street gate for about half an hour while Haffner was handbilling, and that he commented, "Well, there's a man making his mon- ey." Dillon stated that he frequently in the course of his work has occasion to visit the area where he was observed by Deitch, and that on one of these occasions he noticed several people looking out of the window so he walked over to "break" it up and observed the handbilling for about 5 minutes. Haffner testified that while handbilling at the Briant Street gate in the early part of May he observed a man , whom he subsequently learned to be Maurice Clark, the company president, watching him from inside the overhead door at the south end of the plant for about 10 to 15 minutes. Clark denied observing the handbilling near the overhead door or dock to which he normally goes three or four times a day, but admitted 437 seeing the handbilling take place at the State Street gate on one occasion 2. The alleged violative interrogation and threat of reprisal Sometime in May, Foreman Dillon in a conversation with Richard Deitch in the toolroom inquired what were his views or thoughts about the Union Deitch responded that he could not talk to him on company time, and later told a fellow employee, Ralph Gordon, and his immedi- ate supervisor, Jackson, about this conversation. Dillon acknowledged talking to Deitch on many occasions, not specifically about the Union, but on various things. Employee Ralph Gordon testified that beginning in June his foreman, Dillon, talked to him on three or four occasions. In the first two conversations he asked Gordon what he thought about the Union and if they needed one. Gordon replied that he was a union man and supported the Union. In the third conversation, when again asked what he still thought about the Union, Gordon replied, "Well, I'll dust have to wait and tell you later after the election." On the day of the election, when faced with the same question by Dillon, Gordon reiterated his support for the Union, to which Dillon replied, "You'd better give it some serious thought because if the Union gets in the Company will close the place down, they wouldn't tolerate a union, they wouldn't have a union." Gordon refused to believe it and said so Dillon vehemently denied telling Gordon that the Company would close down the plant if the Union prevailed. Employee Cynthia Garrison testified that, about 2 weeks before the July 18 Board election, Foreman Lawson approached her work station and in a general shop talk he also asked why she wanted a union. She testified further that Production Manager Pinegor also approached her around that time and asked her the same question. She replied in each conversation that she had certain gripes against the Company. At the time of such conversation she wore clothing marked with prounion slogans. Neither Lawson nor Pinegor testified. 3. The no-solicitation rule Rule 21 of the general regulations of the Company's handbook which has been in existence for 5 years, provided- Employee soliciting will not be allowed unless approved by the personnel department. Employee Garrison, who was aware of the rule, neverthe- less actively and openly campaigned on behalf of District 50 during its organizational campaign and obtained over 100 authorization cards in the plant during nonworking time. Although observed by management in these activities, she was never reprimanded or told to stop. Employee Carolyn Dailey also engaged in such activities without any interference by management, despite its knowledge that these activities were carried on. During the week of October 13, the employees received revisions of the Company's handbook stating that the aforesaid rule read as follows: Employee soliciting during worktime will not be allowed. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The Union's request to address the employees at the plant In a letter of July 5 to the Company, the Union stated it had learned that the Company in campaign speeches to the employees in the plant had made certain statements concerning the Union, and requested equal time to address the employees under similar circumstances to deny the validity of these statements. By reply of July 8, the Company refused to grant the Union's request, and stated further that it had supplied the Union with a list of its employees and their home addresses where they could be contacted 5 Respondent's assistance to and domination of the Association In April or May the Association officers, including Presi- dent Kenneth Grimes,' decided to generate greater employee participation in the Association by having each department elect a representative who would convey the complaints and requests of their constituents to the Association, who in turn would bring them to the attention of management for its consideration and resolution. In implementing this plan, the foremen either directly or through department rank-and-file employees distributed slips of paper to each employee in the various departments with instructions to designate whom they wished to represent them for the purpose of referring their complaints and demands to the Association The names of the individuals receiving the most designations in each department were thereafter posted on the company bulletin board as the elected representative for their respective departments All the activities involved in the designation of department representatives took place during working time. Beginning in June, the Association officers met with Company President Clark" on four occasions in his office during working hours. The first meeting was held at the request of Emiline Wright, who had dust been elected presi- dent of the Association in May, to discuss recreational activities such as bingo, horseshoes, and volley ball for employees during the lunchtime." Clark approved of these activities provided they were supervised. He also agreed to the use of the cafeteria for Association meetings of its officers if it did not interfere with production. During the latter part of July, following the Board election on July 18, which the Union lost, three of the Association officers met again with Clark." He stated that the Board election results indicated there were about 100 dissatisfied employees who wanted company changes or improvements. In order to alleviate this situation , he requested that sugges- tions be collected from the employees by the Association representatives and passed on to management through the Association officers. He also told the Association that all ' Grimes was president for 1 year from May 1968, and has been a supervisor since sometime in 1967 ° Clark had been plant manager in 1964 According to Mrs Wright, the Association was the same organization which was formed in 1964 when she was the elected treasurer " Although Wright testified she was unable to recall who requested this meeting, I find that she was evasive in answering this and other questions , and that from the subject matter discussed, it appears highly probably that Clark called the meeting they could do would be to solicit the viewpoints of the employees and present them to the Company which would then consider them " The following day the Association officers met with the Association representatives in the cafeteria on company time. Mrs Wright told them that management realized from the election results that the employees wanted some changes and asked what changes they would like to have made in the company handbook, and to write them down on slips of paper and turn them in to her About a week later, the Association officers met again with the representatives in the cafeteria on compa- ny time About 50 slips of paper containing various sugges- tions for changes in the company handbook were turned in to Wright In the early part of August, the Association officers met with President Clark for the third time in his office on company time Personnel Manager Bill Pinegor and a Mr. Brown were also present. Mrs Wright was spokesman for the Association. At the suggestion of Clark they dis- cussed proposed changes in the handbook page by page Such changes included insurance eligibility after 30 days of employment rather than 90 days, disqualification for a raise after an absence of 3 unexcused days in a 90- day period prior to the next salaried increase rather than 3 days' absence, tardiness up to 6 minutes to be excused because of the train traffic around the plant, which frequent- ly blocked access thereto, emergency leave because of death in the family to include in-laws in addition to other listed relatives, wage review for increases every 6 months instead of a year, eligibility for holiday pay not to be impaired because of tardiness the day before or after a holiday, and eligibility for vacations after I year of employment instead of 1 year after July 1. They also discussed some matters which did not appear in the handbook, such as having a foreman distribute paychecks rather than leaving them in the timeclock, and the hiring of a nurse's aide to render first aid instead of a foreman Clark took notes during the discussion and reiterated that the suggestions would be considered by the Company but that he could not negotiate or bargain with the Association. Meanwhile on May 26, the Union filed charges upon which the General Counsel thereafter on September 9 issued the amended complaint herein, and notified the parties that the approval of the 1964 settlement agreement was withdrawn and the agreement set aside because of Respond- ent's failure to comply with it. Sometime during September the Company distributed several pages of revisions to the handbook to the employees These revisions included insurance changes, tardiness penal- ties, a change in eligibility for holiday pay in connection with the number of hours worked the day before and after the holiday, vacation after 1 year of employment, emergency leave for a death in the family extended to include in-laws, wage reviews to be made very 6 months after 1 year of service, and the number of unexcused absences to disqualify an employee for a rate increase " Yet, it also appears that at all times material herein, a suggestion box had been set up in the personnel office for complaints and suggestions UTRAD CORP at review time All of these revisions had been discussed in the meetings of the Association officers with Clark. IV. CONCLUSIONS A The Postsettlement Violations 1. The surveillance or impression of surveillance It appears, and I find, that supervisory personnel observed the handbilling by District 50 at the plant. It also appears that these supervisors were on company premises at places where their duties at times required their presence In these circumstances, I find that their observation of the handbilling from within the Company's premises did not constitute surveillance or the impression of surveillance within the meaning of Section 8(a)(1). Borden Cabinet Corp., 148 NLRB 996, 1001, R. & J. Underwear Co., Inc., 101 NLRB 299, fn 2; E. D Foods, Inc, d/b/a Deaktor's Foodland. 168 NLRB No 48. Furthermore, even assuming that an intent to engage in surveillance on its premises in the circumstances herein would be violative of the Act, I find that the General Counsel failed to establish by the preponderance of credible evidence that such intent can be imputed to the Respondent. See Roxanna of Texas, Inc., 98 NLRB 1151, 1162 I, therefore, conclude that the General Counsel failed to establish surveillance or the impression of surveillance within the meaning of Section 8(a)(1) 2 The violative interrogation and threat to close the plant The unrefuted evidence shows that three employees were interrogated as to what they thought about the Union Two of the three interrogators were foremen while the third one was the production manager . Two of the employees did not hesitate to express their support for the Union while the third one declined to discuss the subject on company time, but mentioned having had the conversation to a fellow employee. Based on the demeanor of Gordon in testifying and the plausibility of what was said , judged by his reply, I find that Dillon made the threat to Gordon that the Company would close the plant if the Union prevailed Respondent contends that neither the interrogations nor Gordon's threat, if made, was coercive, that the employees were unaffected , and that such isolated incidents would not warrant a finding of violation or remedial relief. Respondent also argues that a feeling of friendliness between the interrogators and the employees negated any intimidating impact . The fact that the parties may have been on friendly terms does not bar a finding, if, under all the circumstances, the inference of coercion is a reasonable one. See Daniel Construction Co. v N.L.R.B., 341 F 2d 805, 812 (CA. 4), enfg . 145 NLRB 1397, cert . denied 382 U S 831. Nor does the fact that a threat did not intimidate an employee preclude a finding of violation . As the Circuit Court of Appeals for the District of Columbia stated "the question is not whether an employee actually felt intimidated but whether the employer engaged in conduct which may reasonably be said to tend to interfere with the free exercise 439 of employee rights under the Act" Joy Silk Mills v. N.L.R.B, 185 F 2d 732, 743-744, cert . denied 341 U.S 914. See also N L R.B v. Flemingsburg Mfg Co, 300 F.2d 182, 184 (C.A. 6) As appears from its conduct during the 1964 IUE cam- paign , the Company was adamantly opposed to unionism That opposition was reinvigorated and surfaced again when District 50 appeared on the scene in 1969 While it counter- acted more astutely in some ways, i e,1lie L.ihlnc-audicn^c speeches, it also trangressed in other ways. Thus, Dillon's persistent questioning of Gordon and his apparent inability to convert him culminated in his threat that the plant would close if the Union prevailed Construed in the light of its presettlement violations , no doubt was left that with the advent of a new union campaign , Respondent was reacting in similar manner Even Production Manager Pine- gor, high in the supervisory hierarchy , participated in the interrogation . While it appears, as stressed by Respondent, that relatively few incidents of interrogation or threats were established, that fact loses much of its significance in view of Respondent's past history. Of significant impart is the fact that Respondent never gave assurance against reprisals during the interrogations . Furthermore, although not all interrogation of an employee concerning his union sympathies is a violation of the Act, it is clear that "What may ordinarily be a harmless inquiry is capable of becoming an unfair labor practice because of attendant circumstances." Jervis Corporation v. N.L.R.B., 387 F.2d 107, 111 (C A. 6) Based on the entire record , and viewed in the light of its manifest hostility to union organizing attempts, I conclude that Respondent engaged in coercive interrogation and threats in violation of Section 8(a)(1) of the Act. 3. The no-solicitation rule It appears, and I find, that the no-solicitation rule had been promulgated for about 5 years prior to the filing of the charge herein Although this rule is broad enough to be presumptively violative of the Act," its actual promul- gation occurred more than 6 months before the filing of the charge, and is, accordingly, barred by the 10(b) limita- tion. Mason & Hanger-Silas Mason Co., Inc., 167 NLRB No. 122. enfd on this point 405 F.2d 1 (C.A 5). It also appears that the employees openly campaigned on behalf of the Union and solicited a great number of authori- zation cards during nonworking time. Although they were observed by management in these activities, nothing was done to interfere with or circumscribe these activities. In view of the i.j, K of enforcement of the rule or the intent of Respondent to maintain it in effect, and based upon Respondent's revised and presumptively valid rule, which has been publicized in the Company's new handbook, I conclude that the rule was not maintained in effect in violation of Section 8(a)(l) 14 Stoddard-Quirk ManuJa, luring Co 138 N L R B 615 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The denial of the Union's request to address the employees in the plant It is uncontradicted that District 50 requested equal time to address the Company 's employees in the plant to refute certain statements in speeches allegedly made by Respondent during working hours concerning the Union Respondent refused the request and suggested that District 50 contact its employees at their homes , their names and addresses having been previously supplied by it. The General Counsel contends that in view of the unlawful solicitation rule, Respondent was obligated to give the Union equal time to reply to its antiunion captive-audience speeches. He cites Montgomery Ward & Co. v NL. R.B.,15 where it was held that an invalid solicitation rule, unlawful surveil- lance of union activity, and antiunion captive-audience speeches by the company "created a glaring imbalance in organizational communication" that justified the union's request to address the employees under the same circum- stances as the respondent had That case is clearly distin- guishable from the instant case where prounion employees had access to the employees and freely solicited them for the Union in the plant without any interference . 16 Under these circumstances the denial of the Union's request did not create so glaring an imbalance in organizational commu- nication which would warrant a finding of violation of Section 8(a)(1) 5 The assistance to, and domination of, the Association As related above, it appears that Respondent initiated, organized, and, for all practical purposes, controlled the Association at the time of the 1964 IUE organizing cam- paign There is no dispute as to the composition, structure, or functions of the Association. Its prime purpose and objective was to defeat the IUE by supplanting it with the Association." However, because of the 10(b) limitation, Respondent's role in the formation and control of the Association may be considered only as background and for the light it may shed in appraising the status of the Association and Respondent's conduct towards it within the 6-month period of the filing of the charge in the postsettlement case Since the Association's organization, its sole source of financial support has been the rebates received from the vending machine company pursuant to Respondent's arrangement with that company Also, since 1964 company supervisors, as well as rank-and-file employees, have been members of the Association and have served, at times, as its officers. Grimes was a supervisor prior to his election to the presidency of the Association in May 1968 and has since continued to be a supervisor It also appears that the employees never paid any dues to the Association; " 339 F 2d 889 (C A 6), enfg. 145 NLRB 846 16 Nor are there any findings herein of enforcement of an unlawful no-solicitation rule " Respondent in its supplemental brief does not question the illegality of the Association in 1964, and asserts that is why it entered into the settlement agreement that it had no means of financial support other than that received through the arrangement with the vending compa- ny," that its officers and representatives were paid for time spent conferring with the Employer and/or with each other, that the employees were paid for time spent conduct- ing Association elections; and that Respondent furnished the Association with space for meetings and supplies for its elections It is also undisputed that the Association officers met with management at the latter's request to suggest or recommend changes to dissipate the widespread employee dissatisfaction evidenced by the union vote at the Board-conducted election Thus, once more it appears that with the advent of another union's attempt to organize the employees and the open support accorded it by employ- ees, the Company was prompted to stimulate or revive dealing with the Association in order to overcome employee gripes. While it is true that most of the Association activities were social in nature, it also functioned again, as the result of District 50's organizational campaign, for the purpose of bringing employee grievances to the attention of the Company. As related above, the Association officers in their meetings with management reviewed company poli- cies and rules set forth in its handbook and proposed changes, including tardiness in reporting for work, insurance coverage, vacations, merit increases, holiday pay policies, and time off to employees to attend funerals of additional members of their families These proposals were for the most part acted on favorably by Respondent. Respondent contends that the Association functioning only as a social club without its aid or assistance does not qualify as a labor organization within the meaning of the definition set forth in Section 2(5) the Act.19 Respondent, in particular, points out that it never negotiated with respect to any Association proposals and specifically informed the Association that it would not engage in such negotiations but would simply entertain and consider any proposals made by the Association. In N.L.R.B. v Cabot Carbon Co. and Cabot Shops, Inc., 360 U.S 203, employee- elected committees met with management for the purpose of solving problems of mutual interests The committees made recommendations affecting employment conditions, which were either approved or rejected by management, and never attempted to negotiate collective-bargaining agree- ments.20 The Court held that the term "dealing with" in Section 2(5) of the Act was not to be read as synonymous with the more limited term "bargaining with" in construing the legislative intent, and that, in fact, Congress in enacting the bill had rejected the substitution of the term "bargaining with" for the term "dealing with." The Court concluded that employee committees, under whatever name called, that function similarly to those in that case were "labor " The rebates from that company now exceed $3,000 a year " The term labor organization is defined in that section as follows The term "labor organization" means any organization of kind, or any agency or employee representation committee or plan, in which employees participate and which exist 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 30 The committees had no membership requirements, collected no dues, and were assisted by plant clerks in conducting their election UTRAD CORP organizations" as defined in the Act. In rejecting employer's further contention that the employee committees were not "dealing with" the employer because they only made propos- als and requests which amounted to recommendations only and that the final decisions remained with the employer, the Court stated that this was true of all such "dealing," whether with an independent or a company dominated "labor organization," the principal distinction lying in the unfettered power of the former to insist upon its requests I accordingly conclude that the Association herein consti- tuted a "labor organization" within the meaning of Section 2(5) of the Act President Clark's statement to the Associa- tion officers that he could not negotiate with them but would merely consider their proposals did not detract from or nullify his dealings with the Association as a labor organization within the meaning of Section 2(5) of the Act Nor is it relevant that the Association primarily engaged in social activities, it suffices if it exists for the purpose in part of dealing with the Employer concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work 21 Respondent also contends that it neither assisted nor dominated the Association Section 8(a)(2) of the Act, in pertinent part, makes it an unfair labor practice for an employer "to dominate or interfere with the . adminis- tration of any labor organization or contribute financial or other support to it " As pointed out, supra, the employees pay no dues or assessments to the Association which has no means of financial support other than what Respondent furnishes to it by its arrangement with the vending machine company Respondent pays the officers of the Association not only for their time spent in conferring with management but also for time spent in conferring with each other and with Association department representatives, and for the time spent in conducting their elections. It also supplies the ballots and other paraphernalia to the Association for its elections, and furnishes the Association with space for its meetings in the plant I, therefore, conclude that Respond- ent furnished unlawful assistance and support to the Associa- tion within the meaning of, and in violation of, Section 8(a)(2) of the Act. See St. Joseph Lead Company, Zinc Smelting Division, 171 NLRB No 74. As indicated, supra, the Union vote at the Board-conduct- ed election caused Respondent to realize the serious inroad made by the Union, presumably because of widespread employee dissatisfaction. It, thereupon, decided to resort to the tactics so successfully used in 1964 against the IUE. This time it had only to call the Association into meetings and to listen to its suggestions to ameliorate employee gripes concerning working conditions. It, thereby, reincarnated or revived the Association as a "labor organiza- tion" for that purpose. However, the Company retained complete control or domination of the manner in which the Association functioned with regard to its suggestions Thus, it firmly impressed upon the Association that they were not negotiating any terms or conditions of employment, and that its suggestions would be considered and be either " See Pines ofAmerica, 178 NLRB No 58, where an employee committee which existed at least in part for the purpose of dealing with employee grievances was held to be a "labor organization " 441 approved or rejected. In the final analysis the Company convened and treated the Association as an advisory body for the limited purpose of combating unionism Its conduct was calculated to undermine support for the Union by soliciting and adjusting employee grievances while conduct- ing a campaign against unionization By expressing a willing- ness to receive and consider employee requests at a time when a union appeared to have gained a foothold "might well have indicated to the average employee that better conditions would be forthcoming, as in fact they were." NL.R.B. v. Yokell d/b/a Crescent Art Linen Co., 387 F.2d 751, 755 (C.A. 2). Such conduct not only interfered with the employees' exercise of their 'ection7 organizational rights, but also prevented or discouraged the employees from seeking representation elsewhere Considered in the light of its assistance to, and support of, the Association and its past practices in combating unionism , I conclude that Respondent dominated the Association i n its function- ing as a labor organization within the meaning of Section 8(a)(2) of the Act See N.L.R.B. v. Cabot Carbon Co. and Cabot Ship, Inc , supra, internationa Association of Machinists, Tool and Die Makers Lodge No 35 [Serrick Corp] v N.L R B., 311 US 72, 80, and N L.R B v. Oliver Machinery Corp, 210 F.2d 946, 947 (C A 6), enfg. 102 NLRB 822 B. The Presettlement Violations and the Settlement 4greemeni In the absence of any evidence to the contrary, I find that from the time it entered into the 1964 settlement agreement until the occurrence of the postsettlement viola- tions in 1969, Respondent complied with the terms and conditions of that agreement 22 It also appears that through- out that period the Association continued to function pre- sumably only as a social club The General Counsel contends that because of the Company's violations in 1969, the Regional Director was warranted in withdrawing his approv- al of the settlement agreement, and proceeding to an adjudi- cation of Respondent's alleged presettlement conduct It amply appears from the undisputed testimony that prior to the settlement agreement Respondent engaged in conduct violative of Section 8(a)(1) and (2). Nor does Respondent question that conclusion However, more than 5 years had elasped before it again engaged in violative conduct. The remoteness of those violations poses the question as to whether or not setting aside the settlement agreement in the circumstances herein would be appropriate or even warranted No Board guidelines or criteria have been cited as applicable in resolving this unusual and rare issue. Nor, in the case at bar do I find that a Board order based upon the postsettlement violations would be modified or changed in material manner by a further finding of presettle- ment violations I, therefore, conclude in the circumstances herein that it is not necessary to set aside the presettlement agreement and make findings of violations based on " Pinkerton also testified that until he left the Company in 1965, Respondent complied with the settlement agreement 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's presettlement conduct in order to properly RECOMMENDED ORDER 23 effectuate the policies of the Act V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act 2 At all times material herein, the Association and District 50 have been labor organizations within the meaning of Section 2(5) of the Act 3 By engaging in violative interrogation of and threats to employees, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act 4. At times material herein, Respondent has assisted, contributed support to and dominated the Association while functioning as a labor organization, within the meaning of and in violation of Section 8(a)(2) and (1) of the Act. 5. It is not necessary to set aside the 1964 settlement agreement or to adjudicate the alleged presettlement viola- tions in order to effectuate the policies of the Act 6 Allegations of the amended complaint as to which specific findings of violation have not been made have not been sustained by the preponderance of the evidence 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY It having been found that Respondent unlawfully interro- gated and threatened employees within the meaning of Section 8(a)(1) of the Act and also unlawfully dominated, assisted, and contributed support to the Association, I recommend that it cease and desist therefrom and take certain affirmative steps, including disestablishment of the Association insofar as it functioned as a labor organization, necessary to effectuate the policies of the Act. " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall , as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes Upon the foregoing findings of fact and conclusions of law and the entire record in the cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent Utrad Corporation, its officers, agents, successors , and assigns, shall: 1 Cease and desist from (a) Dominating or interfering with the administration of, or contributing financial or other support to, Utrad Employees Association as the representative of its employees with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work (b) Interrogating employees concerning their union activi- ties in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (c) Threatening its employees with the closing of the plant in the event they choose to be represented by a labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection 2. Take the following affirmative action which will effectu- ate the policies of the Act: (a) Withdraw and withhold recognition from and dises- tablish Utrad Employees Association as the representative of its employees for the purpose of dealing with it with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at its plant in Huntington , Indiana, copies of the attached notice marked "Appendix "2a Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's author- ized representative, shall 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. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 25 IT IS FURTHER RECOMMENDED that the amended com- plaint be dismissed insofar as it alleges violations of the Act not specifically found. " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals I c an Order of the National Labor Relations Board " " In the event that 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 Respondent has taken to comply herewith " UTRAD CORP APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT Interrogate our employees concerning their union activities in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with the closing of the plant in the event they choose to be represented by a labor organization WE WILL NOT dominate or interfere with the admin- istration of, or furnish financial or other support to, Utrad Employees Association for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment WE hereby withdraw all recognition from and dises- tablish Utrad Employees Association as the representa- 443 tive of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. Dated By UTRAD CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.