Clapper's Manufacturing, Inc.

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clapper's Manufacturing, Inc. and United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO Clapper's Manufacturing, Inc. and United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO and Clapper's Employees Committee, Party in Interest Clapper's Manufacturing, Inc. and United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO. Cases 6-CA-4423, 6-CA-4655, and 6-RC-4801. October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 11, 1970, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that these allegations of the consolidated complaint be dismissed. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the second election held on June 20, 1969, in Case 6-RC-4801 and recommended that the election be set aside.' Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. The General Counsel filed limited cross-exceptions with a supporting brief. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and cross-excep- tions, briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions,3 and recom- mendations of the Trial Examiner, as modified herein. The Trial Examiner found that Respondent's President Clapper, during certain question and answer periods following speeches to the employees, clearly conveyed the impression that a strike was inevitable if the employees voted for the Union, and that by these remarks concerning strikes Clapper coerced the employees in violation of Section 8(a)(1) of the Act. For the reasons expressed by the Trial Examiner, we agree with this finding. However, as we have found that certain of Clapper's remarks were coercive, we find it unnecessary to determine and we do not pass upon whether other remarks concerning job classifications and the future of existing employee benefits were also violative of Section 8(a)(1). The Trial Examiner found that Milton Sines, a supervisor, during a conversation with employee Thelma Sines in October 1968 had said nothing coercive to her. In so finding, the Trial Examiner relied on a conversation in October 1968 that Milton Sines had with Thelma Sines and coemployees, Jane Werner and Ruth Tempia. The Trial Examiner found that Milton Sines' version as to what was discussed, as supported by the testimony of employees Werner and Tempia, was the more exact, and that Thelma Sines misinterpreted what was discussed, probably because of the atmosphere that was then prevalent in the plant. We find merit in the General Counsel's cross- exception to the Trial Examiner's reliance on this conversation and his failure to consider another conversation in October 1968 between Milton Sines and Thelma Sines. Thelma Sines testified that in October 1968, when she asked Milton Sines what she was supposed to do when she ran out of work, he replied that if the Union came in that she would be out of work altogether as Building No. 2 would be closed down, and that anybody else pushing for the Union would be the first to go when Building No. 2 would be closed down. Thelma Sines further testified that there were no witnesses to this conversation. Milton Sines testified that he had two conversations 1 This election was held pursuant to an Agreement for Consent Election. Accordingly, the Trial Examiner recommended that Case 6-RC-4801 be severed and transferred to the Regional Director for Region 6 for further processing with the recommendation that he set aside the second election. 2 The Respondent has excepted to certain of the Trial Examiner's credibility resolutions. After a careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to a clear preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing those findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 363 (C.A. 3). 3 Although at page 13 of his Decision, the Trial Examiner concluded that statements by Dale Clapper in the early part of October 1968 to employees Herman and Thelma Sines constituted threats, and also, individual questioning by Walter Lenhart, Respondent's general manager, of employees Patricia Ross and Roger Wahl on June 20, 1969 , constituted unlawful interrogations, he inadvertently failed to specifically find that all of the aforesaid conduct constituted Section 8(a)(1) violations. Accordingly, we find that by the aforesaid conduct the Respondent committed violations of Section 8(axl) of the Act. 186 NLRB No. 52 CLAPPER'S MANUFACTURING 325 with Thelma Sines, one while employees Werner and Tempia were present, and one alone with Thelma Sines, and that during the latter conversation he discussed the possibility that Building No. 2 would be shut down if it became necessary, since it was the least profitable. Although during the conversation where employees Werner and Tempia were present, accord- ing to Milton Sines, there was no discussion as to the shutting down of Building No. 2, there was no contradiction by Milton Sines to that part of Thelma Sines' testimony that he had stated that anybody else pushing for the Union would be the first to go when Building No. 2 would be closed down. On the basis of the above, we agree with the General Counsel that the Trial Examiner failed to consider the conversation in October 1968, where only Milton Sines and Thelma Sines were present. In so agreeing, we rely on Milton Sines' admission that there was such a conversation between them, his admission that the possibility of closing down Building No. 2 was discussed, and that such a closing down, in essence, was made about the same time by Dale Clapper to employees Herman and Thelma Sines under circum- stances which we have found herein to have constitut- ed threats in violation of Section 8(a)(1) of the Act. Moreover, we deem significant the failure of Milton Sines to contradict that part of Thelma Sines' testimony, supra, that anybody else pushing for the Union would be the first to go when Building No. 2 would be closed down. In these circumstances, we conclude that Milton Sines made the remarks as alleged by Thelma Sines and that they were threats to impose economic retribution on active Union sup- porters. Accordingly, we find that by such conduct the Respondent violated Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Substitute the following conclusion of law for the Trial Examiner's third conclusion of law: By threatening employees with reprisals if they selected the Union as their bargaining representative, by interrogating employees as to their union sympa- thies and activities and the union sympathies of other employees, by making implied promises of benefit to employees, by creating the impression among em- ployees that Respondent was engaged in the surveil- lance of their union activities, and by stating to employees that the selection of the Union as their bargaining representative would inevitably lead to a strike, Respondent has engaged in and is engaging in unfair labor practices within the meaning 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 Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Clapper's Manufacturing, Inc., Meyersdale, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order, as so modified: 1. Delete the phrase "Interrogating employees concerning their union activities and their sympathies toward the Union" in paragraph 1(a), and substitute therefor the phrase "Interrogating employees con- cerning their own or other employees' umon activities or union sympathies, stating to employees that the selection of a union as their bargaining representative will inevitably lead to a strike". 2. Delete the first paragraph in the body of the Notice and substitute therefor the paragraph "WE WILL NOT question any employees about their own or other employees' union activities or sympathies." 3. Insert as the second paragraph in the body of the Notice "WE WILL NOT tell our employees that the selection of a union as their bargaining representa- tive will inevitably lead to a strike." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D . FRIEDMAN, Trial Examiner : Upon a charge, first amended charge and second amended charge filed by United Brotherhood of Carpenters And Joiners of Amen- ca, Carpenters District Council of Western Pennsylvania, AFL-CIO, herein called the Union, on November 26, 1968, January 13, 1969, and February 20, 1969 , respectively, and upon a charge and a first amended charge filed by the Union on July 8, 1969 and October 7, 1969, respectively, the Regional Director for Region 6 of the National Labor Relations Board, herein called the Board, issued an Order of Consolidation, a consolidated complaint and notice of hearing on December 29, 1969, on behalf of the General Counsel of the Board against Clapper's Manufacturing, Inc., herein called the Respondent or the Company, alleging violations of Section 8(a)(1) and (2) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. Thereafter, on December 31, 1969 , the Regional Director for Region 6 issued his Report on Objections filed by the Union in Case 6-RC-4801 in which he found that the objections raised substantial and material issues involving substantially the same issues involved in Cases 6 -CA-4423 and 6-CA-4655. Accordingly, on the same day, December 31, 1969, the said Regional Director issued an order further consolidating all of these aforementioned cases for hearing and determination by a Trial Examiner. In its duly filed answer to the aforementioned consolidat- ed complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing on the consolidated cases 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was held before me at Somerset, Pennsylvania, on March 3 through 6, 1970. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation, is engaged at Meyersdale, Pennsylvania, in the manufacture and sale of plastic laminated furniture tops and panels. During the 12-month period immediately preceding the issuance of the consolidated complaint herein, a representative period, Respondent received goods and materials of a value in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania for use at its Meyersdale, Pennsylvania, facility. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted, and I find, that United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. As hereinafter discussed, I find and conclude that Clapper's Employees Committee or Group Conference, as hereinafter variously called, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues In the spring of 1968 the Union began an organizational drive among the Respondent's production and mainte- nance employees. Thereafter, the Respondent commenced a campaign to counteract the Union's drive. The Union and the Respondent both waged vigorous and aggressive campaigns marked by claims and counterclaims made in various written communications to the Respondent's employees and by speeches made by the Respondent's President Dale Clapper. Thus, in the spring of 1968 while the Union circulated a number of pieces of campaign literature, Clapper read a speech to all his employees in which he emphasized the Respondent's vigorous opposition to the unionization of his employees. On September 10, 1968 the Union filed a petition with the Board for an election among the aforesaid employees. Thereafter on September 26, November 18 and November 20, 1968, Clapper addressed various groups of employees from prepared manuscripts. In the meantime, on October 8, 1968, the Respondent and Union entered into a consent election agreement. Pursuant to this agreement an election was held on November 22, 1968. As stated above, both before and after this consent agreement and up to the time of election, the Union literally deluged the employees with campaign literature while Clapper made the three speeches above noted. In the election held November 22, 1968, the Union was defeated. The tally of ballots shows that 86 votes were cast against the Union, 57 votes for the Union while 8 ballots were challenged. Thereafter, on November 26, 1968 the Union filed objections to the election. At the same time, the Union also filed the first charges in Case 6-CA-4423. On March 18, 1969, pursuant to a stipulation entered into by the parties, the Regional Director for Region 6 set aside the election and ordered a new one to be held on June 20, 1969 under the terms of the original consent election agreement. Thereafter the Union and the Employer again entered upon vigorous campaigns in which the Union distributed a quantity of campaign material and the Respondent also issued antiunion letters to his employees in the latter part of June 1969 before the second election. After the first election was set aside and the second election set, the Respondent through President Clapper helped form what is herein referred to as the Employees Committee or the Group Conference. In addition, on June 19, 1969, the day before the second election, Clapper addressed his employees with the aid of a written text. After his speech, which was given to all of the employees except the employees in the night shift in one building, a question and answer period followed. As scheduled, on June 20, 1969 a rerun election was held. The Union again was defeated, 67 votes being cast against the Union, 56 votes for the Union, and 9 ballots being challenged. The Union filed objections to the rerun election and these objections were consolidated for hearing with the two unfair labor practice cases which are the subject of this proceeding. The Union and the General Counsel allege generally, and the complaint asserts, that the conduct of the Respondent's president and other supervisory personnel during the campaign prior to the first and second elections constitute, in the main, the basis for the charges and objections filed in this proceeding.' More specifically, the complaint herein alleges, in substance, that the Respondent, through Clapper and other company supervisors and officials, unlawfully interrogated employees concerning their union activities, created the impression of surveillance of employees union activities, threatened reprisals and closing of part of the plant in the event of union success and made promises of benefit to induce employees to reject the Union. The complaint further alleges that the Respondent unlawfully formed, assisted, and dominated The Group Conference of Employees Committee in violation of Section 8(a)(2) of the Act. The Respondent's answer admits the jurisdictional allegations of the complaint but denies each and every allegation concerning the alleged violative conduct of the r The objections however, which are being considered here are only those which were filed subsequent to the second election on June 20, 1969. CLAPPER'S MANUFACTURING Respondent. With regard to the allegation of assistance and domination, the answer also alleges that the so called Group Conference was not a labor organization within the meaning of the Act. Thus, broadly, the issues framed by the pleadings are: 1. Did the Respondent interfere with, coerce, or threaten its employees in the manner set forth above, in violation of Section 8(a)(1) of the Act? 2. Did the Respondent form, assist, and dominate the employees' organization known as The Employees Com- mittee or Group Conference? 3. As is usual in cases of this type basically underlying all of the foregoing issues are primary issues of credibility of the various witnesses. B. Interference, Coercion, and Restraint 1. Individual incidents Heretofore, I have alluded to the vigorous manner in which the Union and the Respondent pressed their respective campaigns. Much that was said and much of the written material circulated by each of the parties was purely factual, but a certain quantity was accusatory and at times acrimonious. Each party accused the other of lack of candidness and, indeed, of outright misrepresentation. To say that feelings ran high would be an understatement. It was in this atmosphere, marked by the hurling of verbal brickbats, that the employees of the Respondent were made aware of the Union's and Respondent's strong feelings toward one another. And it was in this atmosphere that the events, below described, occurred. Sometime early in October 1968, President Dale Clapper had a conversation with employee Herman Sines at the railroad tracks bordering the plant. Before this conversa- tion, Clapper had had a conversation with Thelma Sines, the wife of Herman Sines, who was also an employee of Respondent. During this earlier conversation the problem of seniority had come up and Mrs. Sines was concerned, as she was one of the newer employees. Clapper attempted to explain to her what would happen if the Union came in and job classification and strict seniority were instituted. After Clapper had spoken to Mrs. Sines and had left her, he noticed that Herman Sines was at the latter's pickup truck. He went over to Sines and asked the latter, among other things, what Sines thought "about this union business." Sines answered that he thought the Union was a good thing inasmuch as wages were rather low. Then the conversation turned to the time that Herman Sines had been a supervisor. After that the conversation again turned to the question of classification and seniority. Clapper attempted to show Sines, who by this time was accompa- nied by his wife, that classification might work to the detriment of Mrs. Sines who had only been an employee of the Respondent for a short period of time. He also attempted to show how super seniority could affect 2 All of the above are from credited portions of the testimony of Clapper and Herman and Thelma Sines Clapper admitted, in effect, that he asked Sines what the latter thought about the Union. In Clapper's words he asked Sines "the usual questions concerning Union or no Union" However, Clapper denied that he told Sines that building 2 would be closed down in the event the Union were successful . I was much impressed 327 employees who had been in the Respondent's employ for a longer period of time. Clapper explained that with super seniority the person with super seniority who had been in the employ of the Respondent only as long as Mrs. Sines could outrank Mr. Sines who had been in the employ of the Respondent for 3 or 4 years. However, during the conversation and during this discussion of classification and seniority Clapper asked Sines what the Union could give the latter that Clapper could not. Clapper said that all the Union could do would be to get them 3 cents an hour to cover the dues. Then he stated that if the Union were to come into the plant it meant that the Sines would be the first ones out. This was so because plant number 2 where Sines and his wife worked would be closed down inasmuch as Clapper was not making enough money on that operation to keep it going should the Union come in.2 Evidently, during the campaign, there was much discussion among the employees concerning classification and possible layoffs, especially in building number 2 of the Respondent's plant, which building performed special work and not general production work as was performed in other buildings of the Respondent's plant. Evidently, also, the operation of building number 2 was the least profitable of all of the Respondent's operations. During the month of October, 1968 work in building 2 was rather slow. According to Thelma Sines, she had run out of work and had asked her supervisor, Milton Sines, her brother-in-law, what she was supposed to do. In answer, according to Thelma Sines, Milton Sines replied that if the Union came in, Thelma Sines would be out of work altogether because building 2 would be closed down. According to this witness, Milton Sines also said that anybody else that was "pushing for the Union" would be the first to go when building 2 would be closed down. Milton Sines testified, in substance, that at that particular time work was rather slow in building number 2. Accordingly, when employees Jane Werner and Ruth Tempia requested time off he gave them time off and was glad to do so in order to save the Respondent money. However, these two ladies and Thelma Sines evidently had some sort of misunderstanding regarding this time off and in order to clear the matter up Sines called all three of them together and discussed the situation with them. He explained that he had sent no one home for lack of work and that he had no intention of doing so. According to Milton Sines he said that if it did come to the point where he had to send somebody home, however, that it would be Thelma Sines because of the fact that she was the newest employee and the other employees had seniority over her. Milton Sines' version of this conversation is supported by the testimony of both Jane Werner and Ruth Tempia. I find and conclude that the version of Milton Sines, Jane Werner, and Ruth Tempia is the more exact and that Thelma Sines misinterpreted what Milton Sines had said with the manner in which Sines and his wife testified Additionally, I note that Sines is no longer working for the Respondent and his testimony, therefore, would, in my opinion, be more objective than that of Clapper who was very much concerned with the outcome of the proceeding Accordingly, I credit those portions of Sines' testimony which are in conflict with the testimony of Clapper 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD due, probably, to the atmosphere that was then prevalent in the plant.3 Accordingly, I do not find that in this conversation Milton Sines said anything coercive to Thelma Sines. Ex-employee Joseph Faidley testified that on November 18, 1968, following a speech by Clapper in building number 1, Faidley asked Clapper whether the latter would invite the Union into the plant and have a panel discussion in front of the employees to let the employees hear both sides of the story. Clapper did not answer. On November 20, after Clapper gave another speech to the employees, Faidley again asked Clapper the same question. According to Faidley, Clapper answered "don't ask me why, but if the Union came in I might lose my job due to my union activities." Clapper, in testifying, could not remember whether employee Faidley asked him why the Union could not come into the plant to have a panel discussion. However, Clapper denied completely that he told Faidley that the latter could lose his job if the Union came in because of Faidley's union activity. Faidley, in his testimony and on cross-examination stated first that only his supervisor was present when he asked Clapper the question regarding the panel discussion. However, on further pressure by Respondent 's counsel Faidley stated that all of the employees were present. Yet, not a single employee testified in corroboration of Faidley's testimony in this respect. A statement to the effect that an employee could lose his job because of his union activities would certainly have made an impression on the employees present. However, none came forward to state that such a threat was made. Under all of the circumstances and upon my observation of Faidley and Clapper in this particular instance, I find and conclude that the statement was not made and that Clapper did not threaten Faidley with loss of his job because of Faidley's union activity. All of the foregoing events occurred before the first election held in November, 1968. The incidents or alleged incidents which follow are alleged to have occurred prior to the second election which was held June 20, 1969. On the night of June 19, 1969 Clapper engaged employee Alfred Murray in a conversation. Clapper asked Alfred Murray how the latter thought the election was going to go and Murray answered that he did not know. Then Clapper asked Murray about a couple of other employees and how they were going to vote. Murray again answered that he did not know. Clapper mentioned specific names of individuals in this conversation whose union sympathies he sought to find out. Then Clapper asked if Murray would talk to some of these employees and Murray answered that he could not talk to any of them. Clapper, in testifying, admitted that he asked Murray concerning "questions concerning the union or no union." Clapper also admitted that he asked Murray how the latter thought several other employees felt about the union. He testified that Murray stated that he could not tell Clapper. Thus, I find and conclude, that on the night before the election in June, 1969, Clapper inquired of Murray as to the latter's union sympathies and the union sympathies of other employees. I further find that he also asked Alfred Murray to talk to some of the employees on behalf of the Respondent. Employee Morris Murray testified in the same vein as did Alfred Murray. He stated that the night before the election on the night shift in building number I Clapper asked him how he was going to vote. Murray replied that he had not made up his mind. Then, according to Morris Murray, Clapper asked the latter how he thought a fellow employee, Gill Mason, was going to vote. Clapper denied in testifying that he had had any conversation whatsoever with Morris Murray on the night alleged. Respondent then introduced into evidence business records, which I accept and credit, to the effect that Morris Murray did not work on the night shift on the night in question and also that employee Gill Mason had left his job with the Respondent 2 months before the date in question. Accordingly, and from my observation of both Morris Murray and Dale Clapper in this instance, I find and conclude that Clapper did not interrogate Morris Murray as alleged. I am further strengthened in this conviction by the forthright manner in which Clapper admitted interro- gating employee Alfred Murray. On the day of the election, former employee Patricia Ross was approached by general manager Walter Lennart. This occurred on the top floor of building number 1. Ross had not as yet voted. Lenhart asked Ross for the latter's support in the election and then asked Ross how the latter's sister- in-law, Billie Jean Bowers, was doing. It seems that Bowers had recently been transferred from the glue gun in building number 1 to a job in building number 3. Ross told Lenhart that Ross' sister-in-law did not like her work in building number 3, that the lacquer thinner, with which Bowers worked, made her sick. Lenhart then told Ross that if the election went right Lenhart would see what he could do about bringing Bowers back to building number 1 in her former job. Then Lenhart asked Ross if there was anyone else in the plant that Ross thought Lenhart should talk to. He further asked Ross how the latter thought the election was going to go? General Manager Lenhart also on the morning of the election of June 20, 1969, engaged employee Roger Wahl in a conversation before the latter voted. Lenhart informed Wahl that Lenhart would be going around to the various buildings in order to get information from other employees as to how they felt their buildings were going to vote. Then Lennart asked Wahl how Wahl felt building number 5 was going to go. Wahl answered that he thought it was going to go for Clapper.5 2. The speeches It is undisputed that Clapper gave three speeches to the employees concerning the Union. Each time he gave the speeches he proceeded in somewhat the same manner. As heretofore alluded to, the Respondent's plant consists of six 3 To the extent that I credit a witness only in part, I do so upon the 4 From the uncontroverted credited testimony of Ross. Lenhart did not evidentiary rule that it is not uncommon "to believe some and not all of a testify. I make no inference one way or the other with regard to Lenhart's witnesses' testimony." N.LR.B. v. Universal Camera Corp., 179 F.2d 749, failure to testify. 754 (C.A. 2). 1 From the uncontroverted credited testimony of Roger Wahl. CLAPPER'S MANUFACTURING 329 buildings, the first five of which are involved in production, the sixth being devoted to administration and other offices. In each speechmaking instance, Clapper gave the talks first in building number 3 where he spoke to the employees normally working in that building and in building numbers 4 and 5. He followed this by speeches in building number 2 then in building 1 on the day shift and night shift respectively.6 The complaint alleges and the General Counsel contends that at some or all of these speeches Clapper made coercive statements violative of the Act. The nature of the alleged remarks can be divided into three categories: (1) that if the Union came into the plant, the employees would lose some of the benefits they presently enjoyed, (2) that if the Union came in employees would be assigned job classifications making it difficult, if not impossible, to shift employees from job to job, as is done at present, and employees would be sent home and lose time in the event that there was no work for their particular classifications, and (3) if the Union came in strikes would be inevitable. Some of the witnesses presented by counsel for the General Counsel testified that these alleged coercive statements were made during the speeches, and further testified that, at least as to the September 26 and the November 18, 1968 speeches, the speeches were not read by Clapper.? The Respondent's witnesses uniformly testified that Clapper read all the speeches from prepared texts. Additionally, some of General Counsel's witnesses testified that Clapper in his speeches said that he was reading the speeches because "he did not want to get in trouble with the law," 8 or that "he would not be in trouble." 9 On the basis of all of the testimony in this regard, I find and conclude that Clapper read each speech to each group he addressed. Careful examination of the written text from which the speeches were delivered reveals that although the speeches informed the employees in no uncertain terms that Clapper was unalterably opposed to the Union and related unfortunate experiences that had befallen employees in other plants that had been unionized, especially in relation to strikes and the duties of unionized employees to support such strikes, the speeches contained no prediction that such a fate would inevitably befall the employees of Respon- dent's plant in the event the union were to be successful in the forthcoming election. Without setting forth at length the content of these written texts, suffice it to say that the material contained therein constitutes free speech and, as such, is protected by the provisions of Section 8(c) of the Act. It is further undisputed that following most of the talks questions were presented to Clapper regarding various aspects of what might occur if the employees were to select the Union to represent them. It was, therefore, out of these questions and Clapper's answers thereto that the issues of possible coercion arose. As early as the September 26, 1968 speech employees asked about possible job classifications. The question was asked time and again at the end of the speeches. General Counsel's witnesses testified, in effect, that Clapper answered these questions to the effect that if the Union came in there would be job classification and it would be difficult to shift employees from job to job and that if there was no work in any classification the employees involved would be sent home. There is no dispute that at the time of the Union campaign it was the established custom of the Respondent to shift employees around from job to job and building to building in the event that there was no work in the job assigned to them. No one had ever been sent home for lack of work. In contrast to the testimony of General Counsel's witnesses, Clapper, himself, and the employees who were called as witnesses by the Respondent, all testified that Clapper's answers to the questions regarding job classifica- tions were always the same. They testified uniformly that Clapper stated, in effect, that if the Union were to be successful, and the Union were to insist upon, and get in negotiations, job classifications, then, and in that event, it would be difficult for Clapper to shift the employees around; that in the event there was no work in a classification the employees in that classification might be sent home. Thus, in the version given by the Respondent's witnesses and by Clapper there was no prediction that there would definitely be job classifications and that job classifications would result in employees being sent home. Therefore, there was no definite prediction, according to Respondent's witnesses, that there would be an inevitable change in working conditions with regard to shifting of employees from job to job in the event the Union came in. The second question that was asked at the completion of Clapper's talks to the employees was, broadly put, "would we lose all the benefits and have to start all over again when they negotiate a contract." Again, as in the case of the first question asked and answered, the witnesses for the General Counsel and Respondent gave diverse testimony. General- ly, witnesses called by the General Counsel testified that Clapper's answers contained an outright prediction that if the Union came in they would lose some or all of their benefits. Witness Leydig testified that Clapper stated "if the Union got in the employees would lose some or all of their holidays." Another witness, Baughman, testified that on November 18 Clapper said "if the Union got in negotia- tions would start off from zero and we would lose some or all of the benefits." Others just testified that Clapper said "negotiations would have to start at zero." 10 With regard to the June 19, 1969 speech General Counsel's witness Arnold testified Clapper answered "they would have to start all over again." Witness Wahl testified in like manner, as did witness Mishler. On the other hand, Clapper denied that he ever stated to any of the employees that if the Union got in they would lose some or all of their holidays or other benefits. He admitted that at the September 26 and November 18 speeches the question of holidays did come up. He refused to admit however and he emphatically denied that he told the employees that they would lose some or all of their holidays at these meetings. Clapper testified the only thing 6 Evidently building number 1 is the only building which utilized a night 8 Witness Leydig. shift. 8 Witness Florence Arnold. 7 Witnesses Hoover and Baughman . 10 Hoover, Faidley. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he ever told the employees when the question of holidays was brought up was that bargaining starts from scratch or zero and that everything must be negotiated from that point. With regard to the June 19, 1969 speech, Clapper testified that when someone asked if the employees would lose their benefits if the Union came in, he started to reply that bargaining starts from zero but then he turned the answer to the question over to Attorney William Tait, who accompanied Clapper when he made his talks to the employees in the various buildings. According to both Clapper and Tait, Tait then told the employees that everything is bargainable, it just does not mean that "you start with what you have now. When the Union comes in you negotiate upwards." Tait further stated to the employees, according to Tait, that "it doesn't mean that they start at the bottom and go up, the proposals may start lower than they were." In fact, Tait pointed out an illustration of another company where in an initial contract certain benefits were less than the employees had before the Union organization. Most of the Respondent's other witnesses testified in a like manner, stating that Clapper started to answer by saying that negotiations started from scratch when he turned the answer to the question over to Tait. They testified to the same effect as did Tait. The General Counsel argues that the Respondent's witnesses should not be credited because they merely parrotted what Clapper testified. However, I note a marked similarity in the testimony of all of the General Counsel's witnesses as well. On the other hand, I was impressed with the manner in which Attorney Tait testified and was convinced of his sincerity. I therefore conclude, that at least as to the June 19, 1969 speech the answer of Clapper was not confined to merely that bargaining would start from zero or scratch nor was it a prediction that the employees would lose their benefits, but rather, it was an explanation by Clapper and then by Tait to the effect that bargaining does start from scratch, that all matters are bargainable. Furthermore, it is possible upon the unionization of a plant for the first contract to provide for less by way of benefits than employees were receiving before the advent of the Union. With regard to the September 26 and November 18 meetings, I find and conclude that although Respondent's witnesses could not pinpoint the exact meeting at which Clapper gave his answers, that in each case he was careful to explain that he was not making a direct prediction that the employees would lose their benefits but rather that it was possible since negotiations start at scratch or zero that the employees could lose some of their holidays. Again, I am convinced that Clapper, after carefully reading the speech that was prepared for him, would not make a prediction of this nature which would in any way be detrimental to the protected nature of the speech. Therefore, I find and conclude that at none of the speeches did Clapper make a prediction that if the Union came in the employees would lose some or all of their benefits. The first time that the matter of strikes arose was at the speech given by Clapper to his employees on November 18, 1968. According to witness Baughman, at the end of that speech, evidently in answer to a question, Clapper wished the employees a Merry Christmas and a Happy New Year and said that if the Union got in there would be a strike. Baughman insisted that Clapper did not say that if they could not arrive at an agreement this could possibly mean that they would go out on strike. Baughman insists that Clapper said that if the Union did get in they would go out on strike. General Counsel witness Hoover testified in a like manner with regard to the November 18 speech. According to witness Faidley, Clapper said that if the Union came in the employees would be on strike over Christmas and that would be a good time for him to do his inventory. In his testimony, Clapper admitted that he wished everybody a Merry Christmas and a Happy New Year at that time. But, according to Clapper, he referred back to a paper which was distributed by the Union to the effect that proposals for the contract, if the Union should win, would be quickly pursued and that the contract would be rushed through rapidly. Clapper testified that he explained to the employees that he could not agree to anything this quickly if it were not for the good of the Company or the employees. Then Clapper testified "that if the Union was going to do it this fast he would like to take this opportunity because he may not be able to see all the employees and he would like to wish them a Merry Christmas and a Happy New Year." Significantly, none of the other Respondent witnesses testified as to this matter with regard to the November 18 meeting. With regard to the June 19 meeting, General Counsel witness Roger Wahl testified that at the question and answer period in building number 3 one of the ladies present asked Clapper if the Union came in would there be a strike. Clapper answered by stating, according to Wahl, "there would be a strike and they would have to walk picketlines to keep their jobs." Wahl insisted that when Clapper spoke of a possible strike he said there would be a strike if the Union came in and did not state that if they sat down to negotiate and they could not come to agreement there might be a strike. Witness Mishler testified that Clapper stated that the employees would have to strike whether they wanted to or not. Clapper, on the other hand, denied that in building number 3 on that date there was a question asked that if the Union came in would there be a strike. Significantly, again, none of the Respondent's witnesses, aside from Clapper, testified as to the matter of strikes with regard to the June 19 meeting. Although in the cases of the other questions asked and answered, I have generally credited Clapper and the Respondent's witnesses as having a more accurate recollec- tion of what occurred at the meetings with regard to those matters than did the witnesses presented by the General Counsel, I do not find the same to be true with regard to the matter of strikes and the answers to questions asked in relation thereto at the November 16 and June 19 meetings. This is so because in the case of questions regarding classification and loss of benefits, I have concluded that the General Counsel's witnesses misconstrued the answers of Clapper and did not carry away with them from the meetings an exact memory of what occurred, but merely related, on the witness stand, their impression of what occurred. However, in the case of the questions at the November 18 and June 19 meetings with regard to strikes, CLAPPER'S MANUFACTURING 331 no witness presented by the Respondent with the exception of Clapper testified as to the matter of strikes. With regard to the November 18 meeting I find and conclude that Clapper's testimony is not as reliable as that of the General Counsel's witnesses and do not accept his explanation of what he said at that meeting . With regard to the June 19 meeting, again there were no witnesses presented by the Respondent to substantiate Clapper 's denial that a question about strikes was asked at that meeting . Significantly, Attorney Tait, who was present at that meeting , did not testify as to the strike matter . I therefore find that with regard to both the November 18 meeting and the June 19 meeting, the question was asked to the effect of whether there would be a strike if the Union came in and that Clapper's answer was, simply put, that there would be a strike if the Union came in. 3. Conclusions as to interference, coercion, and restraint President Clapper's telling Herman Sines in the early part of October that if the Union came in they (Mr. and Mrs. Sines) would be the first ones to go, intimating that building number 2 in which they worked would be shut down, conveyed to the employees the futility of selecting the Union as their bargaining representative and also constitut- ed direct threats of economic retaliation if the employees selected the Union as their bargaining representative." Upon the same occasion Clapper questioned Herman Sines with regard to how Sines felt about the Union. This constituted unlawful questioning of an employer regarding the latter's personal feelings concerning the Union. Such interrogation is violative of Section 8(a)(1) of the Act and I so find.i2 Similarly, Clapper's admitted interrogation of Alfred Murray on June 19, 1969, the evening before the rerun election, with regard to how Murray's fellow employees felt about the Union and with regard to how Murray felt the election was going was, in view of its timing, a clear violation of Section 8(a)(1) of the Act.13 Additionally, general manager Lenhart's questioning of employee Wahl on June 20, 1969, the day of the election, with regard to how building number 5 was going to go in the election and Lenhart's further questioning of employee Ross regarding how Ross felt the election would come out, in view of Respondent's other unfair labor practices and the timing, constituted unlawful interrogation. 14 I further find that Lenhart's statement to Wahl that Lenhart was going to question other employees as to how they felt their buildings were going to vote in the election was an additional violation of Section 8(a)(1) of the Act as it tended to give Wahl the impression that Lenhart was engaged in the continued surveillance of the union activities and sympathies of other employees. There remains one other individual incident which I find constituted a violation of the Act. Sometime before the rerun election, Lenhart asked employee Ross about the latter's sister-in-law and if the sister-in-law was happy about her transfer to a position in another building. When told by Ross that the sister-in-law was unhappy, Lenhart told Ross that if the election went right , he would see what he could do about bunging the sister-in-law back to her former job on the glue gun. In effect , Lenhart promised Ross to take affirmative action on the transfer of Ross' sister-in-law provided the Union was defeated in the election. This constituted an implied promise of benefit prior to the election and constitutes a violation of Section 8(a)(1) of the Act. Next for evaluation are the questions and answers put to and responded to by President Clapper at the speeches given by him on September 26 and November 18, 1968, and June 19, 1969. I have heretofore found that the substance of Clapper's answer with regard to the question of job classification is that Clapper stated to the employees that if the Union came in and succeeded in obtaining , through negotiations, job classification, Respondent would have a difficult time moving the employees from job to job, as it had done in the past, and that in the event that work did run out in a specific classification the employee in that classification might have to be sent home and lose working time. As hereinabove further found, this did not constitute a firm prediction that if the Union came in there would be job classification and employees would be sent home if there was no work for their particular classifications. I find and conclude that , as the Board has held in the past, truthfully informing employees of the possible conse- quences of a rigid job classification system whereby the employer might have to send some employees home rather than shift them to available work is no more than a prediction of possible consequences and, hence, is protect- ed by Section 8(c) of the Act.'5 A like conclusion is reached with regard to the discussion following questions concerning the future of the employees' benefits. I have heretofore found that Clapper did not make any flat prediction that if the Union were to come in the employees would lose their benefits . Rather, I have found credible the testimony of Clapper and Attorney Tait to the effect that they told the employees that all matters were bargainable, that benefits, as were other matters, were bargainable and started from scratch or zero; and that as a result these matters could go up or down and that the employees could come out, after negotiations with the Union, with either greater or less benefits than they enjoyed at the present time. The Board has held that it will not restrict the rights of parties to inform employees of the advantages or disadvantages of Unions as long as such information is given to the employees in a noncoercive manner. The Board has stated that an employer did not interfere with an election by telling employees : "The Union could not guarantee that existing employees' benefits could continue under a union contract and that bargaining starts from scratch." In that representation case the Board held that the pertinent issues of existing benefits , future benefits, strikes and so forth , and the requirement of good faith bargaining were fully brought to the attention of the 11 Marsellus Vault & Sales, Inc, 170 NLRB No. 99 12 Sunbeam Plastics Corporation, 144 NLRB 1010. 13 Thomas Engine Corporation and Upshur Engine Co, Inc, d/b/a Tomadur, Inc, 179 NLRB No 165 14 Wendt-Sono Company, 138 NLRB 855 15 Murphy Body Works, Inc, 174 NLRB No. 126. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees by the respective electioneering of both the Employer and the Petitioner.'6 Again, an employer was held not to have violated Section 8(a)(1) of the Act when it told employees on two occasions that bargaining would start "from scratch" or "with a clean sheet of paper" if the Union came in. It is interesting to note that this statement was made in response to a question from employees.17 I therefore find and conclude that in President Clapper's telling the employees that all benefits were bargainable and that bargaining on such benefits would have to start from scratch and could go either up or down was a statement of opinion only, was not a flat prediction, and therefore was not violative and was, in fact, protected by Section 8(c) of the Act. An opposite conclusion is reached with regard to Clapper's answers to the employees when questions were put to him regarding the possibility of strikes if the Union came in. The first time this question arose was at the November 18, 1968 speech. An examination of the text of the written speech made by Clapper reveals repeated references to the fact that employees at unionized plants were required to go on strike, that such strikes lasted lengthy periods of time and that strikers lost wages and were not permitted to collect unemployment compensation. Additionally, I have heretofore credited General Counsel's witnesses' testimony establishing that during the question and answer period Clapper, in wishing his employees a happy holiday stated that if the Union came in there would be a strike, or words to that effect. The text of the June 19, 1969 speech reveals similar references and, after the speech, Clapper, in response to questions put to him, stated that if the Union came in there would be a strike and that the employees would have to walk the picket line in order to keep their jobs. Clapper's remarks as to the adverse effect of these strikes, as well as his statement that there would be a strike if the Union were selected as the bargaining representative, were clearly coercive in nature and violative of Section 8(a)(1) of the Act. These statements by Clapper unquestionably conveyed the impression to the employees present that a strike was inevitable if the employees voted for the Union. The Board has consistently held that similar comlhents which emphasize the inevitability of strikes are violative of Section 8(a)(1) of the Act.18 I therefore find and conclude that in his remarks concerning strikes Clapper coerced his employees in violation of Section 8(a)(1) of the Act. C. The Group Conference or Employees Committee 1. The formation and composition Although there is some conflict in the testimony of the various witnesses as to the exact manner in which some of the members of the Committee or Group Conference were chosen, there was general agreement, and admission by President Clapper, as to how the Committee came into being. Clapper testified, without contradiction, that in the 16 Trent Tube Co., 147 NLRB 538-540. Although the cited case involved a representation proceeding rather than an unfair labor practice proceeding, the principle applied would be the same. 17 See Nutrena Mills, Division of Cargill, Inc., 172 NLRB No. 24 at p. 5 of the Trial Examiner's Decision. See also Playskool Manufacturing Co., 172 spring of 1969 he decided to try to form a Group Conference, also herein called The Committee. The reason for this, according to Clapper, was twofold. In the first place, the plant had grown from its former single building to the extent that it now occupied 6 buildings. Thus, communication with the employees had become very difficult. Clapper felt that good communication between the employees and the President of the Respondent would be a good thing under these circumstances. The second reason for the formation of The Group Conference or Committee was because Clapper was faced with serious production problems. He was behind in his schedule in production and he needed the help of his employees. Accordingly, in April of 1969, Clapper went with General Manager Lenhart to the various buildings to form The Committee. The first building visited was number 3 where Clapper and Lenhart met with the employees of buildings 3, 4, and 5. Clapper explained the purpose of the meeting and told the employees that he wanted to form The Committee or Group Conference, as he called it, so that the employees could relate their troubles regarding working conditions to the members of The Committee, who in turn would convey them to management. The employees seemed to receive the suggestion favorably according to Clapper, and he thereupon suggested that there be two committee men from each building; one from each floor. It is over the question as to whether Clapper was present during the nomination of the representatives from building 3 that there is a divergence in the versions testified to by witnesses called by the General Counsel and witnesses called by the Respondent. According to General Counsel witnesses Arnold and Mishler, after the purpose of the committee was explained Lenhart requested nominations for members of the committee. Both Arnold and Mishler testified that when employee Regina Wagner was nominat- ed to represent the main floor in building 3, Clapper immediately closed the nominations by stating that was enough. No other nominations for the main floor were made. Lenhart immediately thereafter asked whether there were any nominations for the basement of building number 3 and someone suggested Gary Boyce. Thereupon Clapper again closed the nominations without giving the employees another opportunity to nominate any other employees. Thereafter Lenhart requested a nomination for building number 4 and the name of Bob Weimer was put forth. Clapper immediately closed the nomination after Weimer's name was presented. After the nominations were closed, Lenhart stated that those nominated would be representa- tives for the various buildings. According to the testimony of witnesses presented by the Respondent, (Clapper, Regina Wagner, and Gary Boyce) someone at the meeting in building number 3 suggested the name of I. Fikes and as soon as his name was placed in nomination Clapper told the employees that they should make their selections after he left. According to these witnesses Clapper and Lenhart then left and the nomina- NLRB No. 177 where the employer distributed a letter to the employees which contained a statement to the effect that all benefits, including those presently in effect, were bargainable and could be traded up or down. 1s Kawneer Co., 164 NLRB 983, enfd. as modified, 413 F.2d 191 (C.A. 6); Glazer Steel Corporation, 163 NLRB 7. CLAPPER'S MANUFACTURING 333 tions proceeded and the employees were elected to the Committee from building numbers 3 and 4. I find and conclude that the testimony of the witnesses for the General Counsel, Arnold and Mishler, is the more accurate version of what occurred. In the first instance, I was very impressed with the forthright manner in which Arnold, especially, testified with regard to the formation of the Union. She impressed me as having total recall. In crediting Arnold I have taken into consideration the fact that she did not mention that Clapper was present or closed the nominations in her pretrial affidavit. However, she was completely upheld in this part of her testimony by employee Mishler whose testimony also impressed me. A second reason for crediting Arnold and Mishler is the fact that the General Counsel's witnesses, aside from Clapper, were both committee members who acted on the Commit- tee. Accordingly, I find and conclude that Clapper did close the nominations as soon as the first names were mentioned for the committee members. However, I cannot tell from the testimony presented in the record whether these people were necessarily the first choice for the Committee of Clapper. Nominations and election for representatives from the other buildings were made without Clapper's presence although at his suggestion and the balloting for the Committee members was by secret ballot.19 Thus, it was generally in this manner that the representatives from the various buildings were chosen. It is undisputed that during the nominations and the election of the various representatives from the various buildings supervisors were present. It is further undisputed that Hutchinson, the individual elected to represent building number 4 was transferred to building number 3 and lost her status as the representative of building 4. In her testimony she could not state who took her place. However, employee Thomas of building 2 testified without contradiction that a few months after the Committee formation meeting, he was informed by foreman Milton Sines that Thomas was to be one of his building's representatives in the Committee as he had been next highest in number of votes in the election. According to Thomas, whose testimony was not controverted, Sines explained that Thomas' appointment to the Committee was necessitated by the transfer to another building of Mary Glessner, who had previously been representing the building. It is additionally undisputed that The Committee had no offices, charter, constitution or bylaws, or any means of financial support. No dues or any assessments of any nature were required of the employees. Although Commit- tee meetings were held regularly approximately once a month, the Committee members never called the meetings, which were always called by management. Nor did the Committee members ever conduct meetings among them- selves nor did they ever meet with the employees. 2. The function of the committee The Committee met with Clapper and Lenhart or, at times, Lenhart alone, approximately once each month. The Committee members, the representatives from each building, were informed of the time and place of the meetings by their various foremen. Meetings were held during working hours and the representatives received their regular hourly wages while attending the meetings. Minutes of what transpired at the meetings between the Committee members and management members were prepared by either Clapper or Lenhart or both, printed up by the Respondent, and distributed to the employees together with the employees' paychecks. Although it is agreed by various witnesses that the word "grievance" never came up at any of the meetings of The Committee, it is undisputed that working conditions were discussed and that the complaints regarding these were brought to the attention of management through members of The Committee. Clapper admitted, in testifying, that at the various meetings Committee members brought up complaints concerning the condition of restrooms, ventila- tion, the necessity for various types of tools and equipment, and the installation of water coolers and coke and coffee machines. Copies of the monthly report issued by management and distributed with the paychecks confirm these matters. Although Clapper made no direct promises to correct any of these items, he did say that he would take the matters into consideration, would look into them, and, in cases where it was possible, would call in various contractors to check to see if the matters could be taken care of. Moreover, at one of the meetings, the problem of whether to hire additional personnel or work overtime to increase production was discussed. Clapper admitted that they reached agreement which provided that if additional work hours were needed the employees would be willing to work overtime. Among the items discussed was inadequate lighting. Respondent took specific action to remedy lighting defects. Tools were purchased upon request of the members of the Committee. Committee member Bush testified that a number of the complaints that he passed on to management as a Committee member at the meetings were originally passed on to him by various employees on his floor in the building in which he worked. 3. Conclusions as to the committee As noted above, The Committee was a rather amorphous organization, having no charter, constitution, bylaws, or any other written or unwritten organizational form. Moreover it charged no dues, made no assessments and, in fact, had no financial support other than what was given it by the Respondent. However, although The Committee lacked formal organization, this fact does not rule out the possibility that The Committee functioned as a labor organization. Section 2(5) of the Act defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plant, in which employees participate and which exists for the purpose, whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 19 From the testimony of Fred Thomas, Ruth Tempia, Jane Werner, Earl Weller, and Arnold Hoover. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear, and President Clapper admitted in testifying, that one of the purposes for the formation of The Committee was to discuss employee complaints concerning working conditions. He further admitted, and the minutes circulated by the Respondent confirm, that Committee members brought to the meetings complaints about the poor conditions in the restrooms, inadequate ventilation and lighting, and the need for certain types of tools and equipment in order to perform work. The employees, through The Committee, requested the installation of coke and other vending machines and of water coolers. The minutes introduced into evidence reveal that in certain instances, Respondent through Clapper, acted favorably with regard to these requests and complaints. Also, an agreement was reached with the Committee with regard to overtime work and discussions were held at Committee meetings regarding the elimination of the night shift in building number 1. Paraphrasing the statutory definition of labor organiza- tion, it is clear from the foregoing that The Committee, or Group Conference, constituted a committee or plan in which employees, the representatives, participated and which existed for the purpose, either in whole or in part, of dealing with employer grievances, hours of employment, and conditions of work. Although it is true The Committee did not bargain with the Respondent in the usual concept of collective bargaining and the proposals made by The Committee possibly amounted only to recommendations, the fact remains that The Committee dealt with the Respondent concerning employees' complaints. This demonstrates that The Committee was a labor organization within the meaning of the Act, and I so find.20 It is abundantly clear and undisputed that the proposal and impetus for the formation of The Committee came from the Respondent's President Clapper at meetings held with the employees in the various buildings during the month of April 1969. Clapper suggested, without any assistance from any of the employees, the form and structure of The Committee. He informed the employees that the representatives of The Committee would be chosen from each floor of each building. He gave the employees no alternative to this suggestion. Beside dictating the form and structure of The Committee, Clapper alone established that the purpose of the organization was to meet with management in order to discuss employee complaints relating to working conditions. Additionally, no secret election was held among the employees to determine whether a majority of them wished to have this form of representation. The only balloting or selection was for the members of the various floors of the various buildings to serve on The Committee. And even there, in the instance of building number 3, Clapper closed the nominations when the employees had nominated but one individual from each floor. Additionally, The Committee was so constructed by Clapper as to enable him to control the membership of The 20 See N.L.R.B. v. Cabot Carbon Co., Inc., 360 U.S. 203; Jansen Electronics Manufacturing, Inc., 153 NLRB 1555; Holland Manufacturing Company, 129 NLRB 776, enfd. 292 F.2d 870 (C.A. 3). 21 Holland Manufacturing Company, 129 NLRB 776, 785. 22 Holland Manufacturing Company, supra; N.L.R.B. v. H. E. Fletcher Committee by exercising managerial discretion to transfer, promote, or discharge employee representatives. This is illustrated by the instance when Glessner, the elected representative of building 2 was transferred to another building and employee Thomas was informed by foreman Sines that Thomas was to be the new representative of building number 2. The mere existence of such power, whether exercised or not, the Board has repeatedly held, places the employer in a dominant position over the organization.21 Moreover, The Committee has no existence independent of the Respondent. As stated above, it has no resources financially other than that which is contributed by the Respondent. There are no dues, no membership require- ments, no constitution, no bylaws, and no charter. Additionally, the employee representatives receive wages for time spent working in their conferences with manage- ment and such payments under these circumstances have long been regarded as "an aspect of control." 22 Additional- ly, the conferences with management were held on Company time and property and the minutes of these conferences were prepared, printed, and distributed by Respondent. The very existence and functioning of The Committee has been made possible by management's furnishing them the place on its property to hold meetings, affording The Committee what facilities are needed and by paying Committee members for their time spent in performing their functions. These factors have generally been regarded as an aspect of control 23 I find and conclude that because the Respondent initiated The Committee, dictated its form and structure, controlled its composition, and, furthermore, assisted its members by paying them for the time spent in performing their function that the Respondent dominates and assists The Committee, or Group Conference, in such a manner as to constitute a violation of Section 8(a)(2) of the Act.24 IV. THE OBJECTIONS TO THE ELECTION As heretofore related, on June 26, 1969 objections to the conduct of the second election were filed by the Union, the Petitioner in the representation case . The objections, in general, allege that the Respondent formed and assisted a plant committee ; that on the night of June 19, 1969 the Respondent questioned the employees on the night shift as to their intention toward and their affiliation with the Union within the 24 hours time prior to the election; the Company stated to employees that there would be a strike as there was in the Coleman plant , a plant nearby the Company's premises. Also the objections allege there were many misstatements ; the Respondent stated at meetings that the employees would lose some of their benefits if they voted for the Union. As heretofore set forth , the Respondent has been found to have violated Section 8(a)(1) by interrogating the employees as to their union sympathies, by stating that there would inevitably be strikes against the Respondent if Co., 108 F.2d 459-465 (C.A. 1). 23 Holland Manufacturing Company, supra. 24 Holland Manufacturing Company, supra; Tuscarora Plastics, 167 NLRB No. 154 ; Grafton Boat Co., Inc., 173 NLRB 150. CLAPPER'S MANUFACTURING the Union came in and that the employees would have to participate therein. It has been further found that the Respondent formed, assisted and dominated The Commit- tee or Group Conference, this being a violation of Section 8(a)(2) of the Act. The Board has held that such conduct as has heretofore been found to be violative of Section 8(a)(1) and (2) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election.25 On this basis, therefore, there is sufficient reason to set aside the results of the election. Accordingly, I shall recommend that the second representation election heretofore held in Case 6-RC-4801 be set aside. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of the Respondent as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below designed to effectuate the policies of the Act. One of the more basic rights conferred upon employees by Section 7 of the Act is the right to freely, without coercion or restraint from the employer, express their choice in a Board conducted election designed to determine the wishes of the employees with respect to collective-bargaining representative. Since it has been found that Respondent interfered with this right, an Order commensurate with the violations found designed to assure Respondent's employees the opportunity to fully express their rights guaranteed them by Section 7 of the Act is appropriate. It having been found that the Respondent by threats, interrogation, and promises of benefits interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom. It having been found that the Respondent has dominated and interfered with the formation and administration of The Employees' Committee or Group Conference and has contributed support thereto, it is recommended that the Respondent cease and desist from such conduct and that it withdraw recognition from and completely disestablish The Employee's Committee or Group Conference as the representative of any of the Respondent's employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 335 1. The Respondent, Clapper's Manufacturing Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsyl- vania, AFL-CIO and Clapper's Employees' Committee or Group Conference, are labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By dominating and interfering with the formation and administration of the Clapper's Employees' Committee or Group Conference, and contributing support thereto, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that Clapper's Manufacturing Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and their sympathies toward the Union, threaten- ing employees with reprisals if the Union is selected by the employees to become their bargaining representative, creating the impression of surveillance of union activities and sympathies, and promising the employees benefits if they abandon their adherence to the Union. (b) Dominating or interfering with the administration of Clapper's Employees Committee or Group Conference or with the formation or administration of any other labor organization of its employees, and contributing support to Clapper's Employees Committee or Group Conference or to any other labor organization of its employees. (c) Recognizing, or in any manner dealing with Clapper's Employees Committee or Group Conference, or any reorganization or successor thereof, as a representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. (d) In any other manner interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Withdraw all recognition from Clapper's Employees Committee or Group Conference as a representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, 25 Playskool Manufacturing Company, 140 NLRB 1417-1419. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, hours of employment, or other conditions of work and completely disestablish Clapper's Employees Committee or Group Conference as such representative. (b) Post at its plant in Meyersdale, Pennsylvania, copies of the notice attached to the intermediate report and marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 6, shall, after having been duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (c) Notify the Regional Director for Region 6 in writing, within 20 days from the date of the Trial Examiner's Decision, as to what steps the Respondent has taken to comply herewith.27 It is further ordered that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges violations of Section 8(a)(1) of the Act other than those found herein, and, IT IS FURTHER ORDERED that Case 6-RC-4801 be, and it hereby is, severed and transferred to the Regional Director for Region 6 for further processing with the recommenda- tion that the said Regional Director set aside the second election heretofore held in that case. 26 In the event no exceptions are filed as provided by Section 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 Section 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 . 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 Enforcing an Order of the National Labor Relations Board." 27 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 6, in writing, within 10 days from the date of this Order as to what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question any employees about their union activities or their attitude toward or sympathy with the Union. WE WILL NOT make any threats to our employees in the event that any union is successful in organizing our employees or wins any election held for the purpose of determining the bargaining representative of our employees. WE WILL NOT make promises to our employees of better working conditions and work assignments and so forth in order to get them to disaffiliate or disassociate themselves from any labor organization. WE WILL NOT create the impression that we are spying upon our employees' union or concerted activities. WE WILL NOT dominate or interfere with the administration of Clapper's Employees' Committee or Group Conference, or with the formation or adminis- tration of any other labor organization of our employees, nor will we contribute support to The Committee or to any other labor organization of our employees. WE WILL NOT recognize or in any manner deal with The Clapper's Employees' Committee or Group Conference or any reorganization or successor thereof, as a representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, or any other labor organization, to bargain collectively through represent- atives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL withdraw all recognition from Clapper's Employees Committee or Group Conference as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of work, and completely disestablish the Committee as such representative. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, or any other labor organization. Dated By CLAPPER'S MANUFACTURING, INC. (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, 1536 Federal Building, 1000 Liberty Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.