United States Railway Equipment Co.

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Railway Equipment Company and Brotherhood of Railway Carmen of America, AFL-CIO and The Safety Committee. Cases 25-CA-2868 and 25-RC-3470 June 28, 1968 DECISION , ORDER , AND DIRECTION OF SECOND RUNOFF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 20, 1968 , Trial Examiner John M. Dyer issued his Decision in the above -entitled proceeding , finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices 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 cer- tain other unfair labor practices alleged in the com- plaint and recommended the dismissal of such al- legations . The Trial Examiner further recom- mended that a National Labor Relations Board- conducted runoff election held on August 8, 1967, in Case 25-RC-3470 be set aside and that a new runoff election be ordered . Thereafter, the Respon- dent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions , and recommenda- tions only to the extent consistent herewith. A. Interference, Restraint , and Coercion 1. The Trial Examiner found , and we agree, that Respondent violated Section 8(a)(1) of the Act by curtailing the amount of cleanup and tool storage time enjoyed by employees prior to the election conducted by the Board on May 23 , 1967. The General Counsel excepts to the Trial Examiner's failure to find additional 8(a)(I) violations based upon Respondent 's imposition of other employment restrictions as an aftermath of the May election. For the reasons set forth below , we find merit in the General Counsel 's exceptions. The record shows that Respondent 's plant has been unorganized since Respondent commenced operations at Washington , Indiana, in January 1966. Early in that year, the Brotherhood of Rail- way Carmen of America , AFL-CIO, herein called Carmen , failed to receive a majority in a Board- conducted election . Subsequently , in May 1967, an election was conducted on a petition filed by the Steelworkers in Case 25-C-3470, with the Carmen and Teamsters also appearing on the ballot. The results of that election were inconclusive and showed that a runoff election would be necessary. Although a majority of the voters indicated a desire for representation by one union or another , no sin- gle union received a majority . Carmen received the most, but not a majority of the votes, with "neither union" being the next highest choice. At all times prior to the May 1967 election, un- contradicted evidence shows that Respondent's plant rules and practices were very liberal. There was no rule restricting solicitation , distribution of union literature , or employee use of company bul- letin boards for announcing meetings. Employees received their paychecks during the middle of the day, and Respondent tolerated the men standing around comparing paychecks . In many instances employees would leave the plant and not return until the afternoon . Several employees testified that prior to the May election they regularly took 10- to 15-minute breaks in the morning and that several employees took afternoon breaks.' After the May election wherein a large number of employees ex- pressed the desire for union representation, Respondent, in addition to reducing the amount of cleanup time , which the Trial Examiner found to violate Section 8(a)(I), instituted the following changes : ( I ) Respondent established a system by which the employees were paid by a paymaster after the shift ended rather than at midworkday, (2) instead of being permitted to continue taking their morning breaks as before, the employees were required by Respondent to take such breaks at stag- gered intervals, ( 3) instead of being permitted to rely on their own timepieces for determining when breaks began and ended , the employees were required to respond to a warning device which signaled the beginning and end of breaks , and (4) Respondent announced the prohibition of after- noon breaks. Regarding these changes , Respondent argues that they were necessary because of a need ' Although afternoon breaks were not authorized , Respondent was aware of such practice Supervisors were instructed to speak to offending employees, but Respondent had not formulated a plantw,de rule against this practice 172 NLRB No. 51 U.S. RAILWAY EQUIPMENT COMPANY 709 for discipline and to end the confusion created by the permissive manner in which Respondent ran its plant. In reversing the Trial Examiner, it is our opinion that these changes were not founded upon con- siderations of efficiency, but in retaliation for the employees having cast a majority of ballots in favor of union representation at the May 1967 election. As has been stated, prior to that election the plant was operated in a relaxed atmosphere, with many of the usual restrictions upon employee conduct nonexistent. That Respondent was angered about the large number of votes cast in favor of union representation is revealed by Plant Superintendent Meredith's own testimony. Thus Meredith testified that after the election he told employee Roach, "I didn't think a hell-uv-a lot of it," and further that "I was very disappointed that I know the Company was disappointed .... Because we felt or I felt that we would get the majority of the votes rather than being in second place." In the same conversation, Meredith asked Roach "why didn't he give us a vote of confidence." Roach's reply was "Hell, John, you know I've always been a Carmen." The forego- ing strongly suggests that Meredith viewed the elec- tion as a personal contest between the Company and collective bargaining, rather than an opportuni- ty for employees to choose between a particular union and no union at all. In our opinion, these ex- pressions of dissatisfaction with the outcome of the election, considered against the relaxed approach to conduct in the plant that had prevailed previ- ously, refute Respondent's assertion that the, changes, made shortly after the election, were motivated by considerations of efficiency . It is un- disputed that Respondent was long aware of and had tolerated the conditions affected by the changes . At the same time no plausible explanation exists, other than the election results, for Respon- dent to have timed the changes to the period im- mediately following the election tally's disclosure of the extent to which its employees favored collective bargaining . Indeed, the timing and nature of the changes strongly suggest, and we find, that Respon- dent, with knowledge that a runoff election was necessary in the future, made the changes as an ex- pression of dissatisfaction with the proorganization sentiment manifested by its employees in the May election. In these circumstances, and as we are per- suaded that Respondent invoked more stringent work rules in reprisal for its employees' support of collective bargaining, we find that Respondent thereby violated Section 8(a)(1) of the Act.' 2. We also find merit in the General Counsel's exceptions to the failure of the Trial xaminer to find that Respondent violated Section 8(a)(1) by assigning employee Berry to more arduous work. Berry was a leading advocate of the Carmen. His activities on behalf of that Union were a matter of common knowledge. Before the May election and prior to his campaigning for the Carmen, Berry worked as a welder. Shortly after the election he was switched to driving rivets. Uncontradicted evidence establishes that this job was harder and physically more tiring than welding. Respondent of- fered no explanation as to the reasons for Berry's assignment to the more arduous rivet driving job. In this connection, although the Trial Examiner makes reference to the transfer having occurred after an economic layoff, there is no showing that the layoff contributed to or in any way justified Respondent's treatment of Berry. Considering the transfer in light of other unlawful conduct on Respondent's part during the period immediately after the May elec- tion , we are satisfied and find that the change in Berry's working conditions was motivated by anti- union considerations and that Respondent thereby violated Section 8(a)( I) of the Act.' 3. Finally, we find, contrary to the Trial Ex- aminer , that Meredith's August 7 reference to in- surance in a speech to employees exceeded per- missible limits of expression since it constituted a promise of a benefit calculated to influence the out- come of the runoff election. While the record shows employees had heard from various sources that Meredith had sought to have Vice President Smoter improve the existing insurance program, in his preelection speech at the same time that he was displaying hostility toward the Union, Meredith stated that Smoter was then in the process of ac- tually looking into better insurance programs. Against the background of other unlawful unfair labor practices, we find the timing of the announce- ment regarding insurance was calculated to inter- fere with employee free choice as it tended to sug- gest that "the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. "4 Accordingly, we find the conduct violative of Section 8(a)(1) of the Act. B. Assistance and Support of the Committee The complaint alleged that Respondent violated Section 8(a)(2) and (I) of the Act by supporting, dominating, and assisting the formation of the 2 Alaska Glass and Millwork, Inc, 167 NLRB 785, Western Aluminum, 144 NLRB 1191,1195 s The Everue Door Corp, 171 NLRB No 8 Member Fanning, while agreeing with the majority in all other respects , would, in agreement with the Trial Examiner , find the evidence insufficient to establish that Respon- dent's transfer of Roy Berry was unlawful Accordingly, he dissents from that portion of the Decision 4 NLRB v Exchange Parts Co , 375 U S 405 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Safety Committee The Trial Examiner recom- mended dismissal of this allegation on ground that the evidence failed to support it. While agreeing with the Trial Examiner's recommendation regard- ing dominations , we find merit in the General Coun- sel's exceptions to the Trial Examiner 's failure to find unlawful support and assistance for the follow- ing reasons. In January 1966 Respondent posted and has maintained on its bulletin board a document termed " Agreement" which dealt with wages, hours, and other terms and conditions of employ- ment . One of its provisions reads in relevant part: Accordingly , representatives of the Company and the five elected representatives of the em- ployees shall meet monthly , or oftener if neces- sary , at the request of either and mutual con- venience of both for the purpose of appraising the problems that may have arisen and to exchange ideas for the betterment and more efficient operation of this Washington , Indiana, plant. The Agreement was characterized by Assistant Plant Superintendent Wildman as "a proposal to the men for them to act on if they so desire." Shortly before the August runoff election em- ployee Charles Withdrow, who had supported the Steelworkers in the May election , began campaig- ning against the Carmen . The thrust of his cam- paign was that if the Carmen were defeated, the employees would be at a great advantage by form- ing their own committee to bargain with the Com- pany , since the Company preferred bargaining with employee representatives unaffiliated with "out- side " unions. Thereafter , on two occasions on Au- gust 4 and 7, Withrow was permitted by the Com- pany to use company office space to meet with other employees and devise strategy for his anti- Carmen campaign . Meanwhile , approximately six other employees had openly used company paint for stenciling the words "Vote No " on about 100 of the company hats worn by employees . Withdrow and another employee , Sidell , did not work during the last 2 days preceding the election , but spent the entire time going from place to place throughout the plant and campaigning against the Carmen. On August 7, 1967, the day before the election, Meredith made a speech to the employees in which he alluded to the Agreement by stating the Com- pany was working on improved hospitalization. The basic theme of the speech was that the existing benefits had been obtained without the intrusion of "outsiders." In obvious reference to the provisions in the Agreement pertaining to meetings between management representatives , Respondent stated "No outside organization should be permitted to split us!" Subsequent to the runoff election at which the Carmen failed to obtain a majority of the ballots cast, Withdrow posted on the company bulletin board a notice calling for a meeting for formation of a grievance committee . At the meeting the em- ployees selected five representatives and decided to call themselves a safety, rather than grievance, committee . After the first meeting Meredith told employee Myers he thought the idea of a safety committee was a good one. Thereafter, Withrow called a second meeting of the Safety Committee in September for the purpose of discussing such labor conditions as: (1) a 10- cent raise ; ( 2) better insurance ; ( 3) an additional paid holiday ; (4) an additional week 's vacation with pay; and ( 5) a grievance procedure. Withrow also was able to get Respondent to promise to fur- nish employees with four pairs of gloves per year as called for by the Agreement . Additionally, a broken door which had remained unrepaired since the summer of 1966 was repaired shortly after the Committee began its meetings. On the basis of the foregoing we agree with the Trial Examiner that the Committee is a labor or- ganization within the meaning of Section 2(5) of the Act. As the record discloses a close and con- tinuing connection between the Vote No Commit- tee and the Safety Committee, we further find that they constituted a single labor organization. Thus, the facts compel the conclusion that the Vote No Committee was the predecessor of the Safety Com- mittee and was established for the sole purpose of carrying on a preelection antiunion campaign which, if successful , would result in the develop- ment of the Safety Committee as the employee representative . We note the same employee, Withrow, who established the Vote No Committee, also was the moving force behind the Safety Com- mittee. There clearly was no line of fracture be- tween the two committees since the Safety Committee came into existence immediately after the defeat of the Union as promised by Withrow and the Vote No Committee. The record shows also that the promises made by Withrow during the Vote No campaign echoed basi- cally what was stated in the Agreement; i.e., Respondent would meet with the five employee representatives to discuss conditions of employ- ment at the plant , many of which were enumerated in the Agreement. It is clear that Respondent was aware of the promises being made by Withrow, since Withrow and another employee campaigned openly and notoriously throughout plant areas regularly patrolled by management personnel. Thus, Respondent 's permitting the Vote No Com- mittee to use company facilities freely for meetings, company property for painting Vote No on the hats U.S. RAILWAY EQUIPMENT COMPANY 711 furnished by the Company on company time, and the open wearing of the Vote No signs on such hats on company time, amply demonstrate company knowledge and support of the Committee's activi- ties. Furthermore, in contrast to Respondent's sin- gling out Roy Berry5 for campaigning on the job and unlawfully imposing stringent working condi- tions, Respondent allowed Withrow and Sidell to devote two full workdays to campaign activities in order that an outside union be defeated The only inference to be drawn from what Respondent ac- tually permitted and what it stated as its work poli- cies is that Respondent was aware of and ratified Withrow's activities, thereby creating among the employees the impression that Withrow had its ap- proval for such promises and that an inside union (the idea already having been planted by Respon- dent's Agreement) would obtain concessions which the Carmen would be unable to obtain. Respond- ent's support of the Committee is further demon- strated by the speech given by Respondent on the night before the election. Its thrust was not so much a plea to vote for no representation, but rather, was against "outsiders," thereby indirectly indicating that the kind of organization promised by Withrow (and suggested by Respondent's Agreement) would be aceptable to Respondent after defeat of the Carmen. We find on these facts that by promising to recognize employee representatives for purposes of collective bargaining, Respondent _planted in the minds of its employees the idea of forming a com- pany assisted bargaining committee. Further, by im- plying that it would deal favorably with such a com- mittee, and by allowing Withrow and the Vote No group special privileges and use of its facilities for their campaign while engaging in an unlawful course of conduct with respect to "outside unions," espondent has rendered aid and assistance to the formation of the Grievance-Safety Committee in violation of Section 8(a)(2) and (1) of the Act.6 REMEDY Having found that Respondent has engaged in certain unfair labor practices in addition to that found by the Trial Examiner, we shall order it to cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Since we find these violations necessarily interfered with the results of the runoff election in Case 25-RC-3470, conducted on August 8, 1967, we shall also order that the election be set aside and that a new one be scheduled. ADDITIONAL CONCLUSIONS OF LAW 5. The Grievance-Safety Committee is a labor or- ganization within the meaning of Section 2(5) of the Act. 6. By discriminatorily penalizing its employees by: (1) changing the time for distribution of paychecks; (2) changing the time of morning breaks; (3) using whistles and other devices to warn employees when break periods begin and end; (4) eliminating an afternoon break previously taken by its employees all in reprisal for union ac- tivity; and (5) discriminatorily changing Roy Berry to a more onerous job because he cam- paigned for the Carmen's union, Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 7. By suggesting to employees that they form an inside union and by rendering support and assistance to the Grievance-Safety Committee, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, United States Railway Equipment Company, Washington, Indiana, its officers, agents, succes- sors , and assigns, shall: 1. Cease and desist from: (a) Effectuating changes in employee working conditions where a purpose thereof is to retaliate against its employees for supporting a labor or- ganization or otherwise to restrain or coerce them in the exercise of rights guaranteed to them by Sec- tion 7 of the Act. (b) Discriminating against its employees by as- signing them to more difficult and physically tiring jobs because of their activities on behalf of the Union. (c) Promising its employees they will be granted benefits if they vote against the Union. (d) Assisting and contributing to the support of, or interfering with the administration of, the Safety Committee provided, however, that nothing in this ' Despite the absence of formal restriction on organizational activity, at a safety meeting prior to the May election , Berry was warned by Foreman Pickett, "No more campaigning on the job - 'Regency Electronics , Inc, 169 NLRB 223, Yankee Distributors, 152 NLRB 1018 See also Tuscarora Plastics Co , 167 NLRB 1059 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order shall require Respondent to vary or abandon any wage, hour, seniority, or other substantive benefit which it has established for its employees because of the Agreement or Committee or to prejudice the assertion by its employees of any rights they may have derived as a result of the ex- istence of the Agreement and the Committee; and provided further that nothing herein shall be con- strued as prohibiting its employees themselves from forming, joining, or assisting any labor organization. (e) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Roy Berry reinstatement to the job he had prior to the May election. (b) Post at its Washington, Indiana, plant copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the runoff election conducted at the Respondent's plant on August 8, 1967, be, and it hereby is, set aside. [Direction of Second Runoff Election8 omitted from publication.] 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words " a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " " An election eligibility list , containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 25 within 7 days after the date of issuance of the Notice of Second Runoff Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in ex- traordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB 1236. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner: United States Railway Equipment Company, a wholly owned sub- sidiary of Evans Product Company, herein called the Company or Respondent, was charged by Brotherhood of Railway Carmen of America, AFL-CIO, herein called the Carmen, with violating Section 8(a)(2) of the Act by forming and dominating a safety committee (the Safety Commit- tee in the caption above), and Section 8(a)(1) by promising its employees benefits to forgo a union and by placing restrictions on its employees when they indicated a preference for a union. On March 23, 1967,' the petition in Case 25-RC-3470 was filed for the Washington, Indiana, unit of Respondent's employees by the United Steelworkers of America, AFL-CIO, herein called the Steelworkers. The Carmen and Local 144, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, intervened and an election was held May 23, pursuant to a stipulation for cer- tification upon consent election. After disposition of the determinative challenged ballots by agree- ment of the parties, the resulting tally showed that the Carmen received the most but not a majority of the votes, and a runoff election was held August 8, to determine whether the employees wanted the Carmen or no union. Of the approximate 189 eligi- ble voters, 73 voted for the Carmen, 96 against, and the 7 challenged ballots were not determina- tive. After investigation of the Carmen's objections to the runoff election, the Regional Director deter- mined that objectionable conduct uncovered during the investigation, which was to be alleged as unfair labor practices in the instant complaint, may have affected the election and determined that an evidentiary hearing on the conduct would best resolve the issues and so consolidated the represen- tation case with the instant unfair labor practice case. Basically this case is concerned with whether Respondent committed several alleged instances of 8(a)(1) violations, whether it sponsored, dominated, or is liable for the conduct of the Safety Committee, and thirdly whether the campaign of the "Vote No" group, which culminated in the or- ganization of the Safety Committee, prevented the holding of a free and fair election. Respondent admitted the requisite commerce facts and that it was engaged in interstate com- ' Unless specifically stated otherwise all events occurred in 1967 U.S. RAILWAY EQUIPMENT COMPANY 713 merce but denied that it violated the National Labor Relations Act in any way. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held November 27 and 28. Briefs from Respondent, the General Counsel, and the Carmen have been received and considered. Upon the entire record in this case, including my evaluation of the reliability of the witnesses, based both on the evidence received and my observation of their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR OGANIZATIONS INVOLVED Respondent, an Illinois corporation, is a wholly owned subsidiary of Evans Product Company and has plants in Blue Island, Illinois, Plymouth, Michigan, and the single plant in issue in this proceeding, at Washington, Indiana, where it is en- gaged in repairing railway cars. During the previous year, Respondent shipped from its Washington, In- diana, plant, directly to points outside the State of Indiana, its products valued in excess of $50,000 and during the same period at its Washington, Indi- ana, plant, received goods and materials valued in excess of $50,000, directly from points outside the State of Indiana. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Carmen is a labor organization within the meaning of Section 2(5) of the Act. The status of the Safety Committee is in dispute and will be discussed infra. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Facts When the B & 0 Railroad ceased its operations in Washington, Indiana, it leased a part of its facili- ty to Respondent, beginning January 1, 1966. Most of the buildings had been erected around 1889 and according to Respondent were in very poor shape when it took over the property. During its regular operations Respondent repaired the buildings on a "catch-as-catch-can" basis when regular work was slack and gradually improved the working and rest facilities. Respondent hired a few employees before beginning operations, and had about a dozen em- ployees by the end of January 1966. The work force climbed to about 185 by January 1967 and fluctuated to about 200 during the summer of 1967. In December 1965, the Washington, Indiana, Chamber of Commerce invited Respondent's then executive vice president, E. J. England, and present vice president, John Smoter, to a luncheon meeting at which they met the local people and were questioned as to their operations, plans for em- ployee payment and benefits, etc. There was an ap- parent interest in determining whether Respon- dent's operations would replace or be better than the defunct B & 0 operations, whose employees had been represented by the Carmen. Smoter, who was then the assistant to Vice Pre- sident E. J. England, testified that after this meet- ing, England with some assistance from him, prepared what was termed the "Agreement" (G.C. Exh. 2) which sets forth the wage rates, classifica- tions, seniority, vacations, and other provisions re- garding employment for the employees at the Washington plant. Although termed "Agreement," it was not negotiated with any person or group and was signed only by England. Smoter stated he felt that England in preparing this Agreement drew heavily from the contract between the Steelworkers and Respondent for the 300 employees at Respon- dent's Blue Island, Illinois , plant. The Agreement was sent to Plant Superintendent Meredith who posted it on the plant bulletin boards around Janu- ary 6, 1966. Section 2 of article II of the Agreement2 contains a reference to elected representatives of the employees and meetings of such representatives with management. This paragraph is the principal source of the 8(a)(2) allegations, being the point on which General Counsel bases his allegation of a continuing violation (complaint paragraphs 6(a) and (d)) of Section 8(a)(2) commencing December 28, 1966. It is General Counsel's theory that this paragraph was an invitation by manage- ment to deal with a management-dominated or- ganization. There is no evidence, and not even a contention, that any action was taken by any em- ployees pursuant to this Agreement or that any representatives were elected or any committees formed from the date of posting until August 1967, some 19 months later. Several months after Respondent started its operations, the Carmen waged an organizational campaign and after filing a petition lost the NLRB election held in early 1966. It is undisputed that until after the May 23, 1967, election, Respondent had neither a no-solicitation or a no-distribution rule, and all parties were free to and did utilize Respondent's premises in carrying on their organizational activities, distributing and Section 2 of article 11 of the Agreement reads as follows Accordingly, representatives of the Company and the five elected representatives of the employees shall meet monthly, or oftener if necessary, at the request of either and mutual convenience of both for the purpose of appraising the problems that may have arisen and to exchange ideas for the betterment and more efficient operation of this Washington , Indiana Plant. Though the remaining sections deal with wages , hours of work, over- time , vacations , seniority , safety, tools, and other terms of employ- ment, there is no other mention made of the elected representatives, whether they are to form a committee or how they are to be elected 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussing Union literature, and using the company bulletin boards it announcing their meetings. Respondent contends that such freedom was per- mitted on through the runoff campaign including the August 8 election. General Counsel alleges that Roy Berry, apparently a principal proponent of the Carmen, was restricted by his foreman from cam- paigning in the plant during the runoff campaign, while Respondent permitted those who opposed the Union to campaign freely throughout the plant. It is undisputed that prior to the May election, employees' paychecks were distributed to them by their supervisors when they were received from the Plymouth, Michigan, facility which prepared them. After the May election Respondent established a system where employees were paid by a paymaster after the shift ended at 3:30 p.m. General Counsel alleges that this and other changes noted hereafter were effected to punish the employees for giving more votes to the unions than to Respondent, while Respondent maintains that the changes were based on sound personnel practices and business reasons. Among the other changes effected shortly after the May election was the staggering of morning break periods by departments and signaling the start and end of the periods with whistles and other warning devices rather than by employees relying on clocks as they had previously. Before this change all employees took the same break period. The 10-minute "clean up and tool storage" time (3:20-3:30 p.m.) was cut to 5 minutes (3:25-3:30 p.m. ).3 General Counsel alleges that Respondent discriminatorily eliminated an afternoon break period (in addition to the cleanup time) while Respondent claims that it never had an authorized afternoon break. (See fn. 3, supra.) Charles Withrow,4 who apparently was the prin- cipal employee proponent of the Steelworkers up to the May election, testified that from May until Au- gust he continued to oppose the Carmen and would deprecate them whenever he had a chance while talking to fellow employees. He said he maintained a limited anti-Carmen campaign until a few days before the August 8 election, when he became very concerned that the Carmen might win the election, and decided to see what could be done to stop the Carmen. On Friday, August 4, Withrow asked Assistant Plant Superintendent John Wildman for permission to use a vacant room in the old B & 0 office building to hold a meeting during the morn- ing break. Wildman passed the request to Plant Su- perintendent Meredith who approved Withrow's use of the room. Wildman notified Withrow, who asked fellow employees to pass the word to others that all who were interested in defeating the Car- men to come to a break period meeting. Approxi- mately six employees attended the 10- to 20-minute meeting and agreed to run a Vote No campaign re- lying on speaking to fellow employees and stencil- ing "Vote No" on the hard hats (plastic or alu- minum helmets apparently necessarily worn by all employees) of all who were willing as an eyecatching way of promoting their campaign. After this meeting stencils were prepared and three or four employees, using company paint, stenciled "Vote No" on approximately 100 hard hats between then and the election. Withrow testified that the group may have been 5 minutes or so late getting back from the break after each of the two meetings but that his foreman said nothing to him about it. On Monday, August 7, Withrow again asked permission of Wildman to use a vacant office and was granted permission. The meeting, which lasted 10 to 20 minutes, was attended by about the same group who estimated and discussed the results of their campaign. Most of Respondent's employees, including Withrow and his fellow campaigner Sidell, work on an incentive or piece-rate basis. Withrow testified that he exceeded the production goals in his job of repairing car doors from the first day he started work and following a procedure apparently allowed by Respondent, kept a "kitty," i.e., did not turn in all his production tickets but kept some to be turned in later, where for instance he wanted to be off and still receive pay. On the 2 working days prior to the election, Withrow and Sidell drew on their "kitties" and spent practically the whole time campaigning throughout the plant. In urging employees to vote no, Withrow promised that if the Carmen were defeated, a com- mittee , which would not include him, would be formed to bargain with the Company on behalf of the men. He urged that the committee would have an excellent bargaining position since the Company was opposed to unions and would rather deal with a committee and would have to grant them conces- sions, knowing that the men would turn around and bring a union in later if favorable concessions weren't granted. He testified he did not want the employees to feel that the Company was sponsoring him in this campaign and so he promised he would not be on the committee when it was set up. Withrow, who testified that he was familiar with union affairs and election procedures, having been in the Steelworkers for 16 to 20 years, testified he waited until after he felt the period for filing objec- tions to the election was over before he called a meeting to organize the committee as he had promised. Not having heard of the filing of objec- tions he posted a notice on the plant bulletin boards announcing an August 17 meeting at the Moose Lodge to form a grievance committee. Withrow ex- plained, "I had the impression of forming a Union 3 The Agreement (G C Exh 2) provided only for a 10-minute break period during the first 4 hours of the shift and a 5-minute tool-storage period at the end of the shift There is no dispute however that Respondent for some considerable time had permitted its employees a 10-minute tool- storage and cleaning period at the end of the shift ' Withrow testified he sustained a skull fracture after giving an affidavit to Board investigators and that his memory was better when he gave the af- fidavit than it was at the hearing Accordingly , where his testimony as to dates and times disagrees with that of other witnesses or his affidavit, I will not rely on his present recollection U.S. RAILWAY EQUIPMENT COMPANY of our own to represent us with the Company. And as previously stated, my position was our bargaining position would be 10 times better with a Union standing on the outside and wanting in and the Company not wanting them.... So that's what I campaigned on was that. Then I also had promised in the campaign I would be no part of that commit- tee, that the people themselves would run that com- mittee, they would elect whoever was on it and do whatever was done, they would be the ones that would make the final decisions, all the decisions. That was my promise." He stated he decided to call the committee a grievance committee with no knowledge of any legal consequences and said that to his knowledge there had not been a grievance committee prior to that time. The Moose Hall meeting was attended by ap- proximately the same men who had supported the Vote No campaign. They decided they did not need a grievance committee but felt the need for a safety committee and decided to call it that. They picked temporary safety representatives for five of the six plant areas, and these individuals were to try to get employees in their areas interested in a permanent safety committee. Even though he was not a member of the Safety Committee, Withrow called a meeting at the YMCA in September so that the employees would keep up their interest. Attendance was about the same except that Roy Berry, who said his foreman had designated him as safety man in his area, saw the notice and attended the meeting. The minutes of the previous Moose Hall meeting were read and the group proceeded to discuss the benefits they felt the Company should grant and the proposals they thought should be made to management, in- cluding proposals for wage increases, better in- surance, and vacation benefits. Withrow and em- ployee Combs told the men they felt the Committee had a very good bargaining position, since the Company did not want a union and would rather bargain with them and keep the union on the out- side, knowing they would have to grant concessions or the men would bring a union into the plant. Dur- ing the meeting Berry was asked to act as the tem- porary safety man from his then unrepresented area and agreed to do so. An employee raised the question of how many pairs of welders gloves ,Respondent was supposed to issue . Withrow told the group he had the same problem previously and a fellow worker reminded him that the Agreement said Respondent would issue four pairs. Withrow, who had been refused a fourth pair by the supply room, checked the Agreement, and asked Plant Su- perintendent Meredith about the discrepancy. Meredith, after checking the Agreement, said it was correct and left Withrow with the impression the supply room practice would be changed. Roy Berry testified that in May he was assigned permanently to the harder work of driving rivets in boxcars, where before he riveted occasionally and welded or placed sole plates most of the time. 715 Testimony was given by one employee that "buck- ing" rivets was more onerous work than weld- ing, however no corroborative testimony was of- fered as to driving rivets. Bucking rivets with a bucking bar is usually done by a helper assisting the rivet driver unless the piece is small or so arranged that the rivet driver can buck his own rivets. There is a paucity of evidence as to what work tasks Berry was expected to do. Respondent did not seek to deny that the tasks assigned him were more ardu- ous than welding. However the fact that Berry was among a number of employees who were reassigned to other work tasks after 50-some employees were laid off for economic reasons, and the absence of any independent evidence demonstrating that the move was discriminatorily motivated (the Roach- Meredith conversation will be considered infra) negates any inference that the Berry move was dis- criminatory. B. Allegations and Contentions Complaint allegations 5(b) and (c) relate to a post-May election conversation between Plant Su- perintendent Meredith and employee Bernard Roach, a member of the Carmen, who was active in its organizational and electoral campaign. Roach testified that on Friday after the election Meredith spoke to him at work saying he was speaking to Meredith as a Carmen supporter and hoped they were satisfied about the election. Roach said Meredith continued that they were going to live harder and he was going to set a few new rules that would be abided by, such as cutting out the after- noon breaks, shortening the morning breaks, in- stalling a horn or warning system to start and stop the breaks, that he was going to distribute pay after 3:30 p.m., and that Roy Berry was going to do every job he put him on or he was going to get rid of him. According to Roach, Meredith added that he didn't know if he was going to pay the em- ployees for Memorial Day or not and asked him why they needed a union. On cross-examination Roach testified that some employees took after- noon breaks but he did not remember whether his foreman, in later announcing the changes, said anything about eliminating afternoon break periods. Later Roach said his foreman announced there would be no more afternoon breaks. Meredith testified that around May 26 he con- versed with Roach in the work area. He asked Roach how things were coming, and Roach asked what he thought about the election. Meredith replied that he didn't think a hell of a lot about it. When Roach asked why, Meredith replied that he and the Company were disappointed in the results, because they felt they should have received a majority of the votes rather than being in second place. To his question why Roach didn't give them a vote of confidence, Roach replied he had always been a Carmen, and Meredith said he had been a Carmen too. Meredith stated that was the end of 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conversation and denied making any statements about Berry , changes in breaks , etc., or that the employees would live harder. Several of General Counsel 's witnesses con- tradicted Roach by stating that there was no after- noon break and that any employees who took one did so at their peril. Meredith testified that after- noon breaks had never been allowed but that some employees snuck breaks and he had instructed the supervisors to tell the men not to do it . The parties stipulated that the Company did not penalize em- ployees for taking an afternoon break or taking more time than the scheduled morning break. Ap- parently because the employees worked on an in- centive pay system or piecework, Respondent fol- lowed rather lax standards in employee practices as long as the employees produced. The contentions in complaint paragraphs 5(b) and (c ) are interwoven with the allegations of para- graph 5 (e) which , General Counsel stated, con- sisted of Respondent's institution of detrimental changes to the employees including changing the method of paying employees, reducing the after- noon cleanup time, elimination of the afternoon break, more onerous work for Roy Berry, and the use of a whistle or warning devices to determine morning breaks instead of employees using a clock. Respondent's witnesses testified that when em- ployees were paid by their supervisors during the day, a number of them would stand around com- paring paychecks and talking about their rates, etc., and that some would leave the plant at noontime and might not come back for the afternoon. Ac- cording to Respondent , the milling around and con- sequent confusion caused a lot of lost time, and generally impaired plant discipline necessitating foremen getting on the men about getting back to work. So it established a system of paying the men after work hours. General Counsel replied that the number of em- ployees had not increased appreciably between early 1967 and May when the change was put into effect and contended that the change was made to penalize the employees for giving the Carmen more votes than Respondent. However, some of General Counsel's witnesses testified that the distribution of pay during worktime produced a somewhat chaotic condition in the plant, as described by Respondent, and added that the condition had worsened somewhat since early 1967 . Apparently no specific reason for the change was announced to the em- ployees other than the alleged conversation between Meredith and Roach. Several of General Counsel's witnesses testified that the men took morning breaks of 10 to 15 minutes but this practice was changed after the May election by the installation of horns or other warning systems to start and stop the break period of 8 to 10 minutes. Meredith testified that in April he heard com- plaints from employees that with all employees tak- ing the same 10-minute break the cafeteria and the soft drink machines were overcrowded and it might take most of the breaktime just to buy a soft drink. Because of this congestion Meredith instructed his assistant to formulate , with the supervisors, a system of staggered breaks so the employees would have time to get their refreshments without difficul- ty and return to work without overstaying the breaktime . This system, with various warning devices to signal the breaks, was installed in May after the election. Meredith also testified that in April and May during the height of the election campaigning a number of employees took 10 to 20 minutes more than the established break period. The General Counsel apparently relied solely on employee Roach 's testimony to the effect that Respondent eliminated recognized afternoon break periods in May 1967. None of the other employees who testified either for General Counsel or for Respondent acknowledged that there were recog- nized afternoon breaks but conceded as did Respondent that some employees took afternoon breaks . On the basis of the overwhelming evidence I cannot find that Respondent eliminated a recog- nized prerogative of its employees. The change of work for Roy Berry was discussed supra. It should be noted that no change in pay or work hours was involved , and on the basis of the scanty evidence regarding this change , I cannot find it was discriminatorily motivated. Prior to the May election employees had been al- lbwed a cleanup and tool-storage period at the end of the shift from 3:20 to 3 :30 p.m. (As noted above the Agreement provided a 5-minute tool-storage period at the end of the shift.) Meredith stated that during the election campaign in April and May, some of the men started to clean up as early as 3 o'- clock and because of the flagrant nature of the ex- cesses, he decided to clamp down on the men by cutting the cleanup time in half. He therefore had the foreman announce that the tool-storage and cleanup period would run from 3:25 to 3 :30 p.m. To establish a discriminatory motive (other than the timing) for all of the changes except cutting the cleanup period, one would have to rely on Roach's testimony. Respondent's explanations for the change of the pay time, the establishment of new hours for morning breaks, the shift of jobs for Roy Berry, and the fact that there were no afternoon breaks to be eliminated, all appear frank and reasonable from the totality of the evidence. It is only if Roach is to be believed that a finding could be made that the changes were made to punish the employees because of their union proclivities. The sole exception to this seems to be the cutting of the afternoon cleanup time . From Meredith 's testimony regarding his conversation with Roach and why he cut the afternoon cleanup time, it seems he was rather unhappy with the election results and this single change was done as a return blow to the men for not giving him and the Company a vote of con- fidence. I do not believe Bernard Roach testified U.S. RAILWAY EQUIPMENT COMPANY 717 truthfully regarding his conversation with Meredith. This conclusion is based on several things. I do not believe Meredith would have said he was going to eliminate afternoon breaks when Respondent did not have such breaks and General Counsel's wit- nesses testified that no such breaks were ever al- lowed. Roach with no provocation became cantan- kerous when the representative of the safety com- mittee questioned him. Meredith appeared to me to be a candid witness who sought to give his best recollection. His candor was notable in his state- ment as to why he cut the cleanup time. After ob- serving Meredith, I cannot imagine him disgorging to Roach plans to punish employees. Such a gran- diose venting of his spleen would be completely out of character and with no purpose. I cannot believe Roach's neat little package of discriminatory pur- pose for all the changes when they have a rational explanation which comports with objective facts and the testimony of other General Counsel and Respondent witnesses. I find and conclude that Meredith did not make the statements testified to by Roach and ac- cordingly that complaint paragraphs 5(b) and (c) (allegations of Meredith interrogating and threaten- ing Roach) have not been proven. I further find that the changes alleged in paragraph 5(e), with the exception of the curtailing of cleanup and tool- storage time, were for legitimate business reasons and were not initiated by Respondent in retaliation for the employees exhibiting a preference for unionization . I find and conclude that Meredith's curtailment of the cleanup and tool-storage time was not based on legitimate business reasons, since the 10-minute period had apparently been allowed since Respondent started operations and conclude that Meredith, miffed at the employees, cut the time to punish them for not giving himself and Respondent a "vote of confidence," and as such this change of the employees' working conditions violated Section 8(a)(1). Regarding complaint paragraph 5(d), General Counsel offered employee Tom Gibson who testified that in the 10-minute speech Meredith made to the employees on August 7 he said the Company was working on better insurance, and didn't see why a union was needed, since the em- ployees got all their benefits without it. Meredith continued that if the Union had been in the plant when Respondent took over, it might not have been able to hire the older employees. Gibson admitted he had heard Meredith over the previous 6 to 8 months say they were trying to improve the in- surance program and that this promise was somewhat of a joke in the plant. General Counsel witness Carl Orender remem- bered that in the August 7 speech Meredith said the Company was trying to get them better insurance, and Orender said he had not heard such a state- ment before. Meredith also said that the employees were to get an 8-cent raise in January 1968, that this raise was provided in the posted Agreement. Meredith testified that in his August 7 speech he first announced funeral arrangements for an em- ployee killed in an accident. He then said Vice Pre- sident Smoter was looking into better insurance for the employees and they didn't feel the employees should pay union dues and fees for what they al- ready had.5 He continued that he had heard rumors that the Company would move out if the Union came in, but there was no truth to this rumor, and he had never been so advised by any of his superi- ors. He asked for a vote of confidence in the Com- pany stating that they paid the best wages in the area and did not understand how a union which was against piecework could represent these employees who were working on an incentive pay basis. Meredith admitted they had misunderstandings but said they were trying to work them out and then in- formed them of the positions on the ballot and asked them to vote no. In comparing the various versions of the speech and the letter written by Vice President Smoter which contains similar statements , I conclude that there were no violations of Section 8(a)(1) in this speech, nor can I find that the background of the case would provide for such an interpretation. It seems clear that the employees had heard from various sources that Respondent had instituted an insurance program at an early stage and that Meredith was continually after Vice President Smoter to improve it. The wage increase referred to was specified in the Agreement which had been posted on the bulletin board since January 1966. The four subdivisions of complaint paragraph 6 allege that Respondent maintained since December 28, 1966, an agreement covering wages, hours, and other terms and conditions of employment in which it offered to recognize and bargain with a labor or- ganization or committee and that since August 1967, it promoted, dominated, and contributed to the support of the Safety Committee by allowing it to conduct meetings and union business and solicit membership on Respondent's premises during worktime. As noted, supra, there is no dispute that the Company has had the "Agreement" on the plant bulletin board since January 1966. The date of December 28, 1966, alleged by General Counsel, is the earliest date he could allege as violative, not prohibited by Section 10(b) of the Act, on the theory that the maintenance of this agreement (in particular article II, section 2, footnote 2, supra) on the bulletin boards constituted an open invitation to the employees to form an 8(a)(2) union and was in and of itself violative of Section 8(a)(2) and (1). s Meredith refreshed his recollection of his speech from a letter concern- ing it that he wrote to Respondent 's counsel shortly after he gave the un- prepared speech 71 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In essence, General Counsel's case rests on Withrow's receiving permission from management on two days to use a vacant room during break periods; holding anti-Carmen meetings which ex- ceeded the authorized time for breaks and the par- ticipants not being reprimanded; employees Withrow and Sidell unhindered by management campaigning freely in the plant for 1-1/2 to 2 days before the August 8 election, and not performing their regular work but drawing on their "kitties," in contrast to a campaign restriction placed on Roy Berry; that the campaign consisted of urging rejec- tion of the Carmen on the promise that an "inside" union would be formed which Respondent would recognize and grant concessions; and that Respon- dent permitted the use of Company time and materials for the Vote No paintings on the hard hats. Berry testified that apparently in May his foreman held a safety meeting at which safety in the shop was discussed and the meeting closed by Foreman Pickett looking at Berry and saying "No more campaigning on the job." Berry did not testify whether he campaigned after that on Company time or his own time, although he testified that be- fore the May election he campaigned mostly at noontime and engaged in conversations while work- ing. There was no testimony that other supporters of the Carmen were restricted in campaigning, and there is evidence that Carmen literature was dis- tributed in the company lunchroom prior to the August election. One employee asked an employee painting hard hats to paint "Vote Yes" on his hat, and was told he would if he had a stencil. Respondent claims it had never restricted sol- icitation or distribution and that all employees were free to solicit and campaign on company time and premises and in fact quite a number did so. The Company admits that its discipline was lax to the extent that the parties stipulated employees were never docked for returning late from breaks. Respondent asked its employees to obey its rules and apparently other than making such a request did not discipline employees for infractions. Most of the witnesses acknowledged this free atmosphere. Against this permissive background the most that can be stated is that the Company apparently knew of the Vote No campaign from seeing the hard hats and apparently was happy that such a campaign ex- isted. It had no objection to the painting of the hard hats and there was testimony that employees painted their hats to suit their fancy. Meredith ad- mitted he would not have been happy to see Vote Yes on the hats but said he would not have inter- fered in either direction, and management did not inject itself other than by Meredith's speech and Vice President Smoter's letter. The statement made to the group and Berry by his foreman would have prohibited all types of cam- paigning, but Respondent permitted the campaign- ing to continue. Perhaps Berry's supervisor un- dertook more than he was authorized, but the Car- men did not stop their in-plant campaigning. Looking at the total picture, I do not believe either the Carmen supporters or any of the em- ployees were unnecessarily restricted by Respon- dent from carrying on their election campaigns. The fact that the Company was happy about the Vote No activities does not mean it sponsored them. I cannot consider that the equivocal wording in article II, section 2 of the Agreement, particularly with no other references to the representatives in the Agreement, amounted to an invitation for em- ployees to start an 8(a)(2) union, which in and of itself would violate Section 8(a)(2) and (1). No provisions for the initiation of such a group were made either in the Agreement nor in any other way by management. The evidence cited by General Counsel does have an aura about it particularly where employees are helping to defeat the union as Respondent apparently desired, but knowledge and enjoyment are not equivalent to sponsorship and promotion. The Vote No committee was not a labor organization as such when it operated prior to the election, but again it had an aura of such since its existence was based on the promise that if its ob- jective were obtained, a labor organization would be created to deal with the Employer. Thus it acted as a prospective parent and used the promise of its progeny to gain approval of its marriage. The permissive manner in which Respondent operated the plant robs General Counsel's evidence of the meaning it would have if placed against the background of a stringent operation. The use of a vacant room during a break period for a meeting having an undisclosed purpose has no connotation of partisanship or support, particularly where there is no contrasting evidence that Carmen supporters sought and were denied use of company space. The stipulation that employees were never disciplined for returning late from breaks forbids any inference of partial treatment. The painting of hard hats was allowed by Respondent prior to this campaign with no restrictions by Respondent since employees were allowed to paint any designs they wished on their hard hats even though the hats were company property allotted to the employees for their use. The preponderance of the evidence is that Respondent allowed the employees to freely cam- paign without restriction. Although there is an aura of company gleefulness occasioned by the "Vote No" campaign, I do not find that General Counsel's evidence preponderates that Respondent dominated, supported, or initiated a labor organiza- tion.6 I therefore find that General Counsel has not 6 General Counsel suggested that Respondent made various repairs to its etc , while Meredith stated repairs were made to the facilities when work physical plant as a result of complaints by Withrow or the Safety Commit- was slack on a "catch-as-catch -can" basis tee after the August election Both Withrow and Meredith denied there was t cannot credit surmise in the face of explicit corroborated testimony to any contact between them in regard to complaints about lighting, heating, the contrary U.S. RAILWAY EQUIPMENT COMPANY 719 proven that the Safety Committee or the Vote No group was sponsored or dominated by Respondent in violation of Section 8(a)(2) or (1) of the Act. This is not to say that the runoff election con- ducted under these circumstances permitted em- ployees to exercise a free and fair choice. That sub- ject will be considered infra. III. OBJECTIONS TO THE ELECTION Although I have not found that Respondent en- gaged in conduct violative of Section 8(a)(2) and found only one instance of an 8(a)(1) violation, I feel that the conduct engaged in prohibited a free and fair choice as between the Carmen and no union. In the May election the employees had a choice between three unions or no union. In the runoff election the employees were to have a choice between the Carmen or no union. The actions of the Vote No group and in particular the promises of Withrow (and perhaps Sidell) gave the em- ployees a third choice which consisted of Vote No and if the Carmen are beaten we will organize a committee which will negotiate with Respondent from a favorable bargaining position since it does not wish to bargain with an "outside" union and would grant concessions to an "inside" committee to exclude an "outside" union. The Vote No campaign appears to have been a success since about 80 to 100 of the hard hats (of a total of about 200 employees) had Vote No sten- ciled on them. It is impossible to say whether this was because of the promise of an "inside" union or because the employees were opposed to the Car- men. I do not know whether Withrow organized this campaign because he wanted an independent "in- side" union, did not like the Carmen, or wanted to defeat the Carmen so that the Steelworkers might have an opportunity to organize the plant and have an NLRB election in a year.' I conclude and find that whatever Withrow's pur- pose was, the results of his campaign prohibited a free choice by the employees as between the Car- men and no union. In Ore-Ida Foods, Inc., 160 NLRB 1396, the Board found that a union, which sought to organize a company on a piecemeal basis, sent a misleading and inaccurate letter at the last minute to two groups of employees, while it was on the ballot for only one group of employees. The Board said the letters were distributed to employees in the second group for the avowed purpose of defeating the second union so that the first union could have a subsequent chance to represent the second group. The Board found that the misrepresentations in the letter improperly affected the election results in the second group and set aside the election despite the fact that the employer was completely without blame. It was noted, supra, that there is an aura of com- pany delight in the situation, although I have found Respondent has not violated Section 8(a)(2). Fol- lowing the reasoning of the Ore-Ida case, I find and conclude that a free and fair election could not have been held due to the Vote No campaign and the representations of the Vote No group, and ac- cordingly I recommend that the August 8 runoff election be set aside and a new runoff election be held in circumstances where it is clear to the em- ployees that their choice is solely between the Car- men and no union and at a time when the effects of the 8(a)(1) violation I have found are sufficiently mitigated. Because of the peculiar nature of the Vote No group and the resultant Safety Committee, and so the employees may understand what their choice is, I am providing that in the notice to be posted by Respondent (attached hereto as Appendix) [Ap- pendix omitted from publication.] and in order to disabuse any of the employees of the idea that Respondent might conceivably unlawfully negotiate with the Grievance Committee-Safety Committee, Respondent will inform its employees that it will not do so. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice which I found Respon- dent committed, as set forth in section II, above, occurring in connection with Respondent's opera- tions as described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent penalized its em- ployees by cutting their "cleanup and tool-storage" time in half because they had expressed a preference for unionization, I recommend that Respondent cease and desist therefrom and rein- state the 10-minute period it had theretofore al- lowed its employees, and I further recommend that Respondent be ordered not to infringe upon its em- ployees rights by violating the Act in the same or a similar manner. On the basis of the foregoing findings and the en- tire record I make the following: ' In "America's Forgotten Labor ORganization ," Arthur B Shostak spoke of attempts by international unions to take over independent unions, noting that it is usually done by a raid "Typically an international union representative seeks to build a core of influential followers within an inde- pendent in hopes that these individuals can command a majority vote for affiliation in a forth coming NLRB representation contest " It is possible that Withrow was thinking of using this "inside " committee , an organiza- tion owing its existence to him, as a continuing organized group to switch at an appropriate time to the Steelworkers while holding the Carmen out 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. United States Railway Equipment Company, a wholly owned subsidiary of Evans Product Com- pany, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Brotherhood of Railway Carmen of America, AFL.-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily penalizing its employees by cutting 5 minutes from their "cleanup and tool- storage" time because they had expressed a preference for unionization, Respondent violated Sections 8(a)(1) and 2(6) and (7) of the Act. 4. The Grievance Committee-Safety Committee was the result of an attempt by individual em- ployees to defeat the Carmen, by promising em- ployees such an organization would negotiate with the Employer if the Carmen were defeated in the runoff election and that such negotiations would be profitable since the Employer did not want an "out- side" union. The Grievance Committee-Safety Committee was a labor organization in conception but not in fact at the time of the runoff election. [Recommended Order omitted from publication.]