Leslie Metal Arts Co., Inc.

LESLIE METAL ARTS COMPANY 137 Leslie Metal Arts Company, Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW) and Employee Communication Committee. Cases 7-CA-8368,7-RC-10230, and 7-RM-832 November 10, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 26, 1971, Trial Examiner Herbert Silber- man issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged 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 Exam- iner further found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended dismissal of those allegations. In addition, the Trial Examiner found merit in certain objections to the election in Cases 7-RC-10230 and 7-RM-832 and recommend- ed that that election be set aside. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions 2 and to adopt his recommended Order, as herein modified. Our only disagreement with the Trial Examiner goes to the following: 1. The Trial Examiner found that Respondent, by using the profits from the food vending machines in its Plant 5 to give its employees a potluck dinner, violated Section 8(a)(l) of the Act and engaged in objectionable preelection conduct. Although Respondent held this dinner shortly before the December 3, 1970, election, its decision to hold it predated the Union's organizing activities at Respondent's Plant 5, and similar dinners were held at Respondent's Plants 1 and 4. We are therefore unable to conclude that Respondent's actions regard- ing this dinner at Plant 5 were motivated by unlawful considerations. Moreover, unlike the Trial Examiner, we do not consider this incident to be objectionable preelection conduct. 2. The Trial Examiner also found that Respondent violated Section of the Act and engaged in objectiona- ble preelection conduct by announcing a wage review on November 13, 1970. In support of this conclusion the Trial Examiner found that in 1968 and 1969 Respondent announced its plans regarding wage reviews in January, while in 1970, this announcement was made 3 weeks prior, to the December 3 election. We view this announcement as being nothing more than a report to Respondent's employees that Res- pondent had been engaging in its annual fall review of wages but that due to complicating factors (a strike involving one of Respondent's major customers) completion of the review had been delayed. We also note that in years preceding 1968, wage review announcements were made at approximately the same time as the one involved herein. We therefore conclude that this 1970 announce- ment did not constitute a promise of a wage increase and amounted to nothing more than permissible preelection propaganda. 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 below and hereby orders that'the Respondent, Leslie Metal Arts Company, Inc., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Delete paragraph 1(e) and substitute therefor the following: "(e) Promising or granting employees benefits or improvements in their conditions of work to dissuade or discourage them from joining or assisting the above-named Union or any other labor organiza- tion." 2. Substitute the attached notice for the notice attached to the Trial Examiner's Decision. IT IS FURTHER ORDERED that the election conducted in Cases 7-RC-10230 and 7-RM-832 on December 3, 1970, be, and it hereby is, set aside, and that the petitions filed therein be, and they hereby are, dismissed. I The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 We do not adopt the Trial Examiner's "good-faith doubt" test in finding a violation of Section 8(a)(5) inasmuch as such test has been abandoned. See N.L.R.B v Gissel Packing Company, Inc., 395 U.S. 575. We do, however, affirm the Gissel bargaining order recommended by the Trial Examiner. 194 NLRB No. 20 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT dominate or interfere with the administration of the Employee Communication Committee at our plant 5 or with the formation or administration of any other labor organization of our employees and we will not contribute support to the Committee or to any other labor organiza- tion of our employees. WE WILL NOT give effect to any agreement we may have with the Employee Communication Committee at our plant 5. WE HAVE withdrawn all recognition from the Employee Communication Committee as the representative of any of our employees at our plant 5 and we have completely disestablished such Committee as the representative of any of our employees at plant 5. WE WILL, upon request, bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as exclusive representative of all employees in the unit described below, with respect to wages, hours, and other working conditions and, if an understanding is reached, embody it in a signed contract. The appropriate unit is: All production and maintenance employ- ees employed at our Plant No. 5 located at 3065 Breton Road, Grand Rapids, Michigan; but excluding all office clerical employees, guards and supervisors as defined by the Act. WE WILL NOT threaten employees with unfavor- able changes in their conditions of work or other reprisals if they should support or assist the above- named Union or any other labor organization. WE WILL NOT promise or grant employees benefits or improvements in their conditions of work to dissuade or discourage them from joining or assisting the above-named Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, 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. LESLIE METAL ARTS COMPANY, INC. (Employer) Dated By (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, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION AND REPORT AND RECOMMENDATIONS AS TO OBJECTIONS TO AN ELECTION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner : This consolidated proceeding was heard at Grand Rapids, Michigan, on May 18 and 19, 1971. Following the close of the hearing briefs were submitted on behalf of the parties. THE PLEADINGS The complaint in Case 7-CA-8368, dated March 26, 1971, alleging that Leslie Metal Arts Company, Inc., herein referred to as the Employer or the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aXl), (2), and (5) of the National Labor Relations Act, as amended, is based upon a charge filed on December 10, 1970, and an amended charge filed on February 5, 1971, by International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (UAW), herein called the Union. In substance, the complaint, as amended at the hearing, alleges that: (1) Since September 30, 1970, the Respondent has established, has contributed financial and other support to, has maintained control over, and has dominated a labor organization of its employees at its plant 5, located at 3065 Breton Road in Grand Rapids, Michigan , known as the Employee Communication Committee, herein called the Committee, and has engaged in collective bargaining with the Committee. (2) Since October 19, 1970, the Union has represented a majority of the employees working at Respondent's plant 5 in the unit hereinafter described and since that date the Union has requested and the Respondent has refused to recognize and to bargain with the Union as the exclusive collective-bargaining representative of such employees. (3) By the foregoing and other conduct described in the complaint Respondent has interferred with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is further alleged that LESLIE METAL ARTS COMPANY 139 sheet permitting the Union to forward their names to the Company as inpiant organizers for the Union. The next day the complained of conduct was engaged in by Respondent for the purpose of undermining the majority status of the Union and served to prevent the employees in the described appropriate unit "from freely registering their choice as to representation and the possibility of the conduct of uncoerced election." Respondent interposed an answer generally denying that it has engaged in the alleged unfair labor practices. With respect to the representation proceeding: A petition requesting certification of representatives was filed by the Union in Case 7-RC-10230 on October 29, 1970, and a petition requesting a determination of representation was filed by the Employer in Case 7-RM-832 on October 23, 1970. Thereafter, the parties entered into a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director of the Board on November 10, 1970. Pursuant thereto, an election by secret ballot was held on December 3, 1970, among the employees in the following unit: All production and maintenance employees employed by the Employer at Plant No. 5 located at 3065 Breton Road, Grand Rapids, Michigan; but excluding all office clerical employees, guards and supervisors as defined by the Act. The tally of ballots shows that of approximately 73 eligible voters, 28 cast votes for the Union and 34 cast votes against the Union. On December 9, 1970, the Union filed timely objections to conduct affecting the results of the election. The Regional Director on March 26, 1971, issued his report thereon in which he found that the objections parallel in substantial part the allegations set forth in the complaint in Case 7-CA-8368, and that the determination of the objections depends upon the resolution of material questions of fact. Accordingly, the Regional Director on the same date issued an order directing that the three cases named in the caption hereof be consolidated for the purpose of hearing, ruling, and decision and that thereafter Cases 7-RC-10230 and 7-RM-832 be transferred to and continued before the Board. Upon the entire record in the cases and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Michigan corporation, is engaged in the manufacture, sale, and distribution of dies, plastic automo- tive parts, and related products. It maintains and operates several manufacturing facilities in the State of Michigan including its plant 5 located at 3065 Breton Road, Grand Rapids, Michigan, which is the only facility involved in this proceeding. During the calendar year 1970, which period is representative of its business operations, the Company purchased and caused to be transported and delivered to its plant 5 directly from points located outside the State of I James Johnson and Albert Gibson, who were called as witnesses for Respondent, testified that after the October 15 union meeting they together with Jerry Cramer spoke with Schultze about the authorization cards. According to Johnson, "Mr. Schultze told us these cards were not a vote. They were to entitle us to have a vote in the shop." Gibson testified that Michigan goods and materials valued in excess of $50,000, and manufactured, sold, and shipped from its plant 5 products valued in excess of $500,000 of which products valued in excess of $50,000 were shipped directly to points located outside the State of Michigan. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The Union and the Committee are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Company operates several plants in the Grand Rapids area. The facility involved here is plant 5, which began operations in March 1968 and which employs approximately 80 to 90 persons. The Company's executive offices are located at its largest facility, plant 1, which employs 250 persons. The Union has made several attempts to organize plant 1. Its most recent effort began in February 1970 and has continued during most of the time pertinent to this case. As an ancillary development to its activities at plant 1 the Union organized plant 5. On August 29, 1970, four employees (Alexander Duck, Janice Edsall, Shery Wilson, and Hazel De Roo) who work at plant 5 invited themselves to a meeting called by the Union for the employees of plant 1. At the close of the meeting the four spoke with the Union's International representative, Walter C. Schultze, about organizing plant 5. Schultze informed them that the Union was concentrating its efforts on plant 1 and would defer organization of plant 5 to a later date. Nevertheless, the four signed union authorization cards at that meeting. About October 13 or 14, 1970, two plant 5 employees, Alexander Duck and Albert Gibson, separately telephoned Schultze suggesting that the Union should then begin an organizational drive at plant 5. After Schultze spoke to the other plant 5 employees whom he had met on August 29, he scheduled a meeting for Thursday evening, October 15, 1970. Notice of the meeting was passed by word of mouth. About 15 to 20 plant 5 employees attended on October 15. Schultze chaired the meeting. Among other things, he informed the audience as to the purpose and the meaning of the authorization cards. He told them that the cards "stood for exactly what it said on there" and that its purpose was to indicate that the signer wanted the Union to represent him. He also told the audience that after 60 percent of the employees had signed authorization cards he would notify the Company that the Union had a majority, he would ask for recognition, and would offer to submit the cards to an impartial third party to check against the Company's payroll; but if the Company refused, then he would use the authorization cards to -demonstrate the Union's proof of interest to the NLRB.1 Authorization cards were signed at that meeting. In addition, a number of employees signed a Schultze said to the three employees that the cards were "to show the company we wanted an election held and the card itself would not bring the union in." Schultze denied that he told any employees that the purpose of the authorization cards was to get an election. I credit Schultze. Furthermore, the language of the card is clear and unambiguous and there (Continued) 140 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD sheet permitting the Union to forward their names to the Company as inplant organizers for the Union. The next day additional authorization cards were given to Sherry Wilson for distribution to employees. Wilson also undertook to return the signed cards to the Union. A total of 47 cards were signed by plant 5 employees between August 29 and October 30, 1970.2 On October 16 the Union wrote to the Company two letters listing therein the names of 23 plant 5 employees who were acting as members of the Union's organizing committee. Thereafter, on October 19 the Union wrote to the Company advising that a majority of its production and maintenance employees at plant 5 had designated the Union as their representative, that it stood ready to prove its majority "by submitting signed authorization cards," and that it desired to enter into collective-bargaining negotiations with the Company. As of said date, there were 72 employees in the appropriate collective-bargaining unit of whom 41 had signed union authorization cards. On October 22 the Company wrote to the Union declining its recognition request. Promptly thereafter the Company, on October 23, filed a representation petition with the Board which was followed by a similar petition filed by the Union on October 29. The parties subsequently entered into a Stipulation for Certification Upon Consent Election pursuant to which an election was held on December 3, 1970, which the Union lost. Establishment of the Committee There is no substantial dispute concerning Respondent's attitude towards the organization of its plant 5 employees or its responsibility for the establishment of the Committee. The testimony of Donald B. Huizenga, Respondent's personnel director since October 1967,3 is for the most part uncontradicted. Huizenga testified that he learned of the organizing campaign at plant 5 on October 16 when Eldon Ringler, the office manager at plant 5, informed him by telephone that girls had been observed soliciting and signing union authorization cards in the plant. The same day he caused the following notice to be posted on the bulletin board in the plant: OCTOBER 16, 1970 is no basis for either Johnson or Gibson to have been misled as to the purpose or the meaning of the authorization cards 2 The 47 authorization cards introduced in evidence are identical. One side reads as follows: TO: ALL EMPLOYEES We understand that union authorization cards are being circulated in the plant. Some of you have apparently been asked to sign one of these little cards. We want you to be aware that these "harmless little cards" are not really harmless. Regardless of what you might be told about "just signing up with the rest" or "only getting an election", when you sign one of these cards, you are actually authorizing the Union to represent you without knowing the facts and what you may be getting into. This makes it clear these cards are not so harmless. We don't believe that most of our employees want a union nor do any of them need one. REMEMBER: The best rule to follow is DON'T SIGN A UNION CARD UNLESS YOU KNOW THE FACTS AND WANT A UNION. According to Huizenga the decision to establish the Employee Communication Committee at plant 5 antedated the Union's organizational drive at that facility. Huizenga testified that a similar committee had been created by the Company at plant 1 in February 1968. The impetus for its establishment, according to Huizenga, was that employees at plant 1 requested the Company to organize some formal channel of communication between themselves and management after the Union had lost a Board-conducted election in December 1967.4 The Employee Communica- tion Committee which the Company had established at plant 1 was used as the model for the Committee which the Company later established at plant 5. The operating procedure, referred to below, for the Committee at plant 5 is a copy of the operating procedure for the Employee Communication Committee at plant 1. Huizenga explained that when the Employee Communi- cation Committee was established at plant I it was not then extended to other company plants because, among other reasons, the other plants were smaller and management at the individual plants was able to hold regular departmental meetings with their employees. However, on August 21, 1970, Company President Leslie Tassell instructed Huizen- ga to establish an employee communication committee for plant 4,5 which was done in September 1970 and also to establish such committee for plant 5 as soon thereafter as he was able. Huizenga testified that plant 4, which is larger than plant 5 and which began operations in 1966, was to receive the committee first because "we felt there was a greater need there" arising from dissatisfaction on the part of the employees at that plant with their foreman and with the plant manager, both of whom were later replaced. , This card will be used to secure recognition and collective bargaining for the purpose of negotia- ting wages , hours , and working conditions. YOU HAVE THE RIGHT UNDER FEDERAL LAW TO ORGANIZE AND JOIN A UNION By joining the UAW, you have the support of one of the world's largest Unions. For further information contact: KENNETH W. ROBINSON, DIRECTOR Region 1-D, UAW Box H , Grand Rapids , Mich. 49501 Telephone 949--4100 The other side reads as follows: AUTHORISATION TO UAW Date 19 authorize UAW to I, represent me in collec- Print Name tive bargaining. Address-No. Street City Phone No. Class of Work Hourly Rate Clock No. Dept. No. Shift Employed By Company Address Signature of Employee 3 Huizenga acts as personnel director for all five of the Company's plants. He maintains his office in plant I. 4 The Union also lost an election at plant I in 1966 5 Plant 4 is located close to plant 5. LESLIE METAL ARTS COMPANY In late September 1970 the Company began to take steps toward the creation of the Employee Communication Committee at plant 5. The following notice was posted on the plant's bulletin board: SEPTEMBER 30, 1970 TO: ALL PRODUCTION UNIT EMPLOYEES, PLANT NO.5 SUBJECT: EMPLOYEE COMMUNICATION COM- MITTEE We are pleased to report that, through the combined efforts of our employees and management at Plant No. 5, it has now grown to the size where we believe that a new method of communication between employees and management will be helpful to everybody. This is to announce that we are in the process of establishing an Employee Communication Committee and wish to report that most of the arrangements have been completed. During the week of October 5th through 9th, we will be holding a meeting with each department of all shifts for the purpose of reviewing and discussing the proposed operating procedure. A copy of the proposed procedure will be posted for your review. We urge you to keep up your fine effort. As stated in the notice, departmental meetings were held between October 5 and 9. Janice Edsall described what occurred at the meeting of the assembly department which was held on October 6. Present were Huizenga, Tassell, and Plant Manager Harold Wind. Huizenga did most of the talking. He said that the meeting was called to discuss the Employee Communication Committee and described its purpose as being to work out problems between the employees and the Company, to have better employee communications, and to permit employees to bring problems to their representatives who in turn would raise such problems at the meetings and attempts would be made to solve them. Also Huizenga stated that the Committee would represent the employees in disciplinary matters, and that a committee representative would be present whenever an employee is given a reprimand. Huizenga also described the procedure under which the Committee would operate. Among other things, he said that the members of the Committee would be selected automatically on a seniority basis. Edsall objected, stating that the employees would rather elect their representatives than have the representa- tives appointed. Tassell responded that he did not see why the established procedure should be changed but neverthe- less the change suggested could be made. No decision regarding the appointment or election of representatives to the Committee was made at that meeting. However, the Company ultimately acceded to the election request. On October 15 the following notice was posted in plant 5: TO: ALL PRODUCTION UNIT EMPLOYEES, PLANT #5 SUBJECT: EMPLOYEE COMMITTEE During our recent discussions of the proposed Committee Procedure, we received many good sugges- tions. We want to thank you for your interest and 141 participation. We have already begun to work on them and some changes have been made. Several employees indicated a strong desire to select their own department representatives. The company indicated at the time that it felt the proposed method of selecting from the seniority list would work better but also stated the Procedure could be made flexible. We are desirous of getting the Committee established without further delay. Therefore, the company is agreeable to allow the employees to indicate their preference in this matter on a tally slip. The tally slips will be distributed Thursday, October 15th. Please drop your tally in the box at the Timekeeper's Office. The following have been selected to count the tallies: Mrs. Janice Edsall, Mrs. Barbara LaPema, Mr. Al Duck and Mr. Al Ringler. Thank you for your cooperation. As announced a vote was taken to determine whether the employees preferred the representatives to be chosen by appointment or by election. The ballots were distributed by Office Manager Eldon Ringler, and were counted in the Company's conference room in the presence of Ringler who helped with the count. A majority was in favor of the election of the representatives. Employees who stayed after their normal shift hours to help with the count were paid for their time. Despite the fact that the next day, October 16, the Company learned of the organizational activities at its plant 5 and within a few days thereafter received the Union's letter of October 19 demanding recognition, and despite the further fact that before the month ended both the Company and the Union had filed representation petitions with the Board and the Company and the Union later entered into a Stipulation for Certification Upon Consent Election, nevertheless, the Company continued with the implementation of its plan for the establishment of the Committee at plant 5. On November 10 the following notice was posted: TO: ALL EMPLOYEES, PLANT # 5 SUBJECT: EMPLOYEE COMMUNICATION COM- MITTEE We have revised our Employee Committee Proce- dure and are now ready to set up the first meeting of the department representatives. A copy of the revised procedure has been posted for your information. Based on the current department employment level, we propose that department representatives be selected from the following: 1st Shift 2d Shift DEPT. No. of Reps No . of Reps Assembly 1 Die Cast 1 Plastics 1 Tool Room 1 Shipping Inspection 1 Maintenance l PLEASE NOTE: All employees must have at least 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD six (6) months seniority to be eligible to serve. Your Foreman will conduct the first election within your department with the help of two other employees that he will select as tellers. We suggest that an employee receive a majority of the votes to be elected representa- tive. Record will be maintained of the results and the new representatives will meet with management Friday, November 13, at 3:00 PM in the Conference Room. In the morning of November 11, Mrs. Edsall telephoned International Representative Schultze. She informed him about the Committee and asked if she should stand for election. Schultze replied in the affirmative. Schultze then telephoned Huizenga and told Huizenga that the Commit- tee was illegal and threatened to file a charge if the Company continued with its plan to establish such a committee. Huizenga replied that he would take the matter under advisement. While the Company did not respond to Schultze directly, on November 13 it posted the following notice: TO: ALL EMPLOYEES, PLANT # 5 As you know we set up an Employee Communication Procedure several weeks ago. We asked you to decide how you wanted it to work. You made that decision by majority vote. The first meeting for this new procedure is set for today, November 13. We thought you should know that the UAW organizer called us this week and tried to tell us we could not have that meeting. He threatened to file unfair labor practice charges if we went ahead with it. For some reason, he doesn't want us to meet with you. We are going to have that meeting regardless of Mr. Organizer's threats. We have every right to talk with you and you have every right to talk with us. The whole purpose of the Communication Procedure is to give all of us- management and employees-the chance to sit down together and listen to each other. Ask yourselves these questions. Why does Mr. Organizer tell you not to talk to us? Why does he try to prevent us from talking to you? Is he afraid that you might discover that you don't need him? The election of departmental representatives was con- ducted on November 11 by the departmental foremen. Thereafter, the names of the persons elected as representa- tives were posted on a bulletin board. The first committee meeting was held on November 13 and additional meetings were held monthly thereafter. Although the representatives have been paid for the time they spent at the meetings, employees have not been required to pay any dues to support the Committee's operations. The minutes of the committee meetings were prepared by Huizenga. At the first committee meeting copies of the operating procedure for the Employee Communication Committee were passed out to the representatives and thereafter a copy of the operating procedure was posted in the plant. Janice Edsall who was elected first chairman of the Committee testified that during the 6 months she served on the Committee all meetings of the Committee were held in 6 Thus, the Company has imposed the requirements that employees must have at least 6 months' seniority to be eligible to serve on the Committee, that the representatives shall be selected only from among employees of the Company, that the size of the Committee will be determined by the number of operating departments and the number of the Company's conference room and there was never any meeting, of the Committee without representatives of management being in attendance. That the Committee is a labor organization within the meaning of the Act is not in dispute-Respondent's answer admits such allegation. Also, Respondent acknowledges that it is responsible for the establishment and the organization of the Committee and for the definition of its functions. The Company's printed "Employee Handbook" for plant 5, which was distributed on November 5, 1970, contains the specific statement that "we have established the Employee Communication Committee." The handbook contains the following description of the establishment, organization, and function of the Committee: Your Company desires to promote and maintain harmonious working relationships among employees as well as between employees and management. To this end we have established the Employee Communication Committee. Its purpose is to improve the communica- tions between employees and the Company; for identifying problems of mutual interest; for transmit- ting suggestions from employees for changes in policies and procedures that are consistent, fair and equitable to employees as well as the Company; and to insure that employees are properly represented in the exercise of disciplinary action, such as written reprimands, discipli- nary layoffs and discharges. The organization of the Committee, method of selecting members, eligibility to serve on the Commit- tee, term of service, functions of the department representative, and all other procedures governing the operation of this Committee are in the Committee Operating Procedure. The Committee elects its own Chairman. Minutes will be maintained of each meeting, and posted to the bulletin board. So far as the record shows the Committee has been organized and functions as described in the Employee Handbook and in accordance with a typewritten manual promulgated by the Company and entitled, "Employee Communication Committee Operating Procedure," except only for the selection of the representatives of the Committee-the Company having acceded to its employ- ees' request that the representatives shall be elected instead of appointed. Even in this area the Company's dictates have determined the size of the Committee, the basis for selection to membership on the Committee, and the conditions governing eligibility to serve on the Committee .6 The first meeting of the Committee was held on November 13, 1970. The Company was represented by Huizenga, Ringler, and Wind. The minutes of the meeting, which were prepared by Huizenga, reflect the following: It was announced that the purpose of this meeting is to discuss some of the problems that employees are having within their departments and to answer questions. This meeting is not for the purpose of bargaining anything with the employees since this would be unlawful under the present circumstances. However, we recognize the shifts for each department and that the representatives shall be elected on a departmental basis by shift and only from among employees working on the particular shift Thus, a representative whose shift is changed or who is transferred from one department to another would automatically lose his status as representative. LESLIE METAL ARTS COMPANY 143 need for discussion of problems and are going to discuss the same. Regarding the quoted portion of the minutes Janice Edsall testified without contradiction that the following occurred: Huizenga said "[s Jomething about receiving a call from Mr. Organizer, and I said you mean Walt, and he said yes, threatening him with unfair labor charges if they went ahead with the meeting, but he said there was nothing to prevent them from meeting with us to discuss things, as long as they didn't do anything about it." The disclaimer by the Company that the November 13 meeting was for the purpose of bargaining with the Committee is inconsistent with what in fact transpired. The minutes reflect discussion of many subjects. Thus, a complaint was made that production rates were not shown on the production cards that hang on the presses.? The employee representatives were promised that this would be done and the rates were posted about 1 week before the election. The Company promised to investigate a suggestion for the installation of a coin changer in the lunchroom .8 Also consideration was. given to a complaint that the overhead lights in the assembly department were inadequate. Wind advised the meeting that approval for additional lights had been received. New lights were installed in the assembly department 2 days before the election.9 The following excerpt from the minutes of the December 10, 1970, committee meeting reflects the changes effected by the Company as a result of the complaints registered and the discussions had at the meeting of November 13, 1970. RESPONSE TO INCOMPLETE ITEMS FROM PRIOR MEETING (11-13-70). Number in parenthesis refers to Item of November meeting. (IC) Indicates Item Complete. 1. (3) Posting production rates-Die Cast-Completed. per E. Ringler. (IC) 2. (4) Coin changer. Installed. (IC). 3. (5) Trim Press # 3-Repairs made, repeat mechanism will be installed as soon as factory sends installation instructions. per R. Herrick. 4. (6A) Difference in rate between Trim Press Operator and PackerAll Trim Press Operators who are required to pack or machine will be paid the Dept. average of the Trim Press Operators for that day, effective 12-7-70. per H. Wind. (IC). 5. (7A) Die Cast machine shut down. Proper credit for down time. CO. ADVISED Foreman given authorization to OK time on card as marked by Timekeeper. per H. Wind. (IC). 6. (7B) Die Cast-Production rates on Trim Press. Will establish temporary rates on jobs running bad and also on machining if tied in with Trim Press rate until problem is corrected. per H. Wind. (IC). 7 There had been a practice of posting such production rates which was abandoned some time prior to November 13, 1971. 8 According to Huizenga, Respondent had already discussed the subject with the Company that furnishes the vending machines. 9 Edsall testified that a complaint employees had made on October 6 and also at earlier departmental meetings that they should be permitted to 7. (8) Posting production rates-Plastics-Com- pleted. per E. Ringler. (IC). 8. (9) Company will continue to furnish necessary gloves and aprons. Procedure to be set up through crib. Plastics Dept. Foreman may be permitted to hand out gloves when assigningjob. per R. Herrick. 9. (10) Stools-On 11-25-70 counted 36-30 em- ployees on job. Will buy more if needed. Employees report several stools being used for piling stock. CO ADVISED Maintenance will build stands for stock. per H. Wind. 10. (11) Vending Machines-Canteen service con- tacted and told need more variety, keep machines filled, repair immediately and Company has 2nd and 3rd shift employees that need service. per D. Huizenga. Employ- ee request sandwich machine and heating oven. 11. (13) Exhaust Pan-Two fans have been ordered and will be delivered in approximately two weeks. Will install upon delivery. per H. Wind. 12. (14) Overhead lights-Assembly Dept. Have installed 3-8' lights and moved old lights to other locations in plant. Will check to make certain all lights ordered are in and check for need of additional lights. per H. Wind. 13. (15) Assembly Dept. (2nd)-Need Material Handler cooperation. CO. ADVISED reviewed with Foreman and have hired additional man. per H. Wind. (IC). 14. (16) Assembly rate complaint re: Maverick ash box. CO. ADVISED met with Tool Room and assigned men to make machine repairs where needed and they were instructed to keep same maintained. Also, check to see that front panels will be made properly. per H. Wind. Production rate was time studied and found to be OK and operators can make rate if equipment is maintained. per B. Van Til. 15. (18A) Plastics Dept.-Quality Control Stand- ard. CO. ADVISED all Foremen advised as to Quality Control standards. Also, Inspector will be instructed to report to Foreman if there are rejects and Foreman will instruct operators. Inspector will not be permitted to stop operator but must go through Foreman. per R. Herrick. 16. (18B) Plastics Dept. needs cleaning equipment. CO. ADVISED procedure set up through crib and additional supplies will be ordered as needed. per R. Herrick. 17. (19) Tool Room needs Maintenance items available after hours. Keys given to Tool Room Foreman. per R. Herrick. (IC). 18. (20) Tool Room Machinist Job definition now being reviewed. Not yet complete. per H. Wind. 19. (22) Tool Room needs bench with hoist. All parts ordered including hoist. per H. Wind. 20. (23) Crib man hired effective 12-7-70. per E. Ringler. (IC). wear tennis shoes rather than hard-soled shoes in the assembly department was finally granted at the November 13 meeting. The minutes do not reflect this According to Hwzenga, at the meeting of the assembly department on October 6 Company President Tassell told the women that they could wear tenors-type shoes so long as the soles were five-eighths of an inch thick 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 21. (26B) Employees walking around with coffee. Foreman and employee advised. per R. Herrick. (IC). Further Acts of Interference, Restraint, and Coercion The complaint alleges that on November 13, 1970, the Respondent announced benefits and improvements in the condition of employment at the committee meeting described above in order "to dissuade its employees from joining, aiding or assisting the Union, and to dissuade a majority of the employees in the unit . . . from designating the Union as their exclusive agent for the purposes of collective bargaining with the Respondent." It further alleges that Respondent, implemented and granted the benefits and changes in conditions of work announced at the November 13 meeting for the same purpose. These allegations of the complaint are readily supported not only by reasonable inferences that can be drawn from the circumstances relating to the establishment of the Committee10 but also from the Company's bulletin which was posted on November 13, 1970. With reference to the committee meeting scheduled for that day it states, "Why does Mr. Organizer tell you not to talk to us? Why does he try to prevent us from talking to you? Is he afraid that you might discover that you don't need him?" The unmistaka- ble import of this notice is that the Company was undertaking to establish the Committee as a substitute for union representation. Additional benefits of the same character were promised or given to the employees in the period before the election. Thus, about Thanksgiving Day the Company used the profits from the food vending machines to give its employees a potluck dinner. According to Huizenga the decision to do this was reached in September. However, even if this were true the timing was singularly inappropri- ate in the light of the pending election. Another benefit promised the employees and one of a more substantial and meaningful nature was the possibility of a wage increase. On November 13, 1970, the Company posted the following notice: TO ALL EMPLOYEES: We have been conducting our annual fall review of wage rates and costs, looking ahead to a general wage increase. 10 Although Huizenga testified that the Company had decided to establish the Committee before it had learned of any organizational activity at plant 5, the purpose of the Committee was the same as at plant 1; namely, to provide the employees with a company-sponsored organization to deal with management so that they would have no desire to obtain other representation When the decision was made to establish the Committee at plant 5 the Union was actively organizing nearby plant I and it may fairly be inferred that the Committee at plant 5 was established as a countermeasure to possible future organizational activity at that facility. Furthermore, the Company proceeded with the implementation of its plan to establish the Committee even after it learned about the organizational drive at plant 5 11 Respondent contends that the Company "typically announced pay adjustments" each year However, for 1969, the announcement was dated January 21, 1970; for 1968, the announcement was dated January 10, 1969. (Announcements for earlier years would not have applied to plant 5 which didn't begin operations until March 1968.) Whereas in the prior 2 years the wage review announcement was made in early January, in 1970 it was made on November 13-3 days after the Regional Director approved the Stipulation for Certification Upon Consent Election and 3 weeks before The past three months have been unprofitable due to slow start-up problems, new tooling changes, and a more competitive market-along with loss of sales due to the GM-UAW strike. However, with the cooperation of everyone to minimize the mishandling of parts causing high scrap factors, and an honest effort toward productivity, we feel confident that when General Motors is back in full production we will complete our normal wage review. In accordance therewith pay raises were granted in January 1971.11 Prior to the election, Company President Tassell spoke to the employees at departmental meetings in an effort to persuade them to vote against the Union. Janice Edsall testified as to the speech made by Tassell to the employees of the assembly department between 3:15 and 3:30 on the day before Thanksgiving. According to Edsall, among other things, Tassell said: "[H]e didn't think we needed a union there.... He didn't know why we wanted a union because the union had a rigid set of rules to follow and he didn't think we wanted that. He made the statement when the union came in, the pigs would take over, the plant gets real dirty and something about owning a company, Castle Hardware, and when the union came in it went to the pigs and he sold it...." 12 The speech contains a loosely veiled threat that should the Union win the election the plant rules governing employee behavior would become more rigid which the employees would not like and that there would be a deterioration in plant maintenance which might give rise to the possibility of its sale.13 Conclusions We have in this case a resuscitation of a type of unfair labor practice which,, although once widespread, in the last 2 decades generally has fallen into disuse. "Around the turn of the century some employers became aware of a shrewd alternative to repression and violence as the means of frustrating employee attempts at self-organization for the purpose of collective bargaining. This was the company union. First the employer formed a union to his liking and then recognized this creature of his own making. Thus, in effect, he sat on both sides of the bargaining table; and at the December 3 election. Such timing served-and undoubtedly was intended to accomplish such object-to impress upon the employees what the Company had informed them in another bulletin posted the'same day; namely, that they "don't need" an independent representative. Also it was an artful suggestion to the employees that the results of wage review might depend - upon the outcome of the election . Contrary to Respondent, the selection of a mid-November date to announce the wage review was not justified by past practice. If the practice of the preceding 2 years had been followed the announcement would not have been made until after the election. 12 In general, Edsall's version of what transpired at the meeting was corroborated by Alice Willingham. 13 Alexander Duck testified about a conversation with Plant Supenntendent_Harold Wind which the complaint alleges constituted unlawful interrogation. Although Wind did not testify at the hearing, Duck was uncertain as to when the alleged conversation took place and his testimony in regard thereto on direct examination was substantially inconsistent with the affidavit which he furnished 'to the Board during its pretrail investigation of the case . In these circumstances, I do not find the allegation of interrogation has been proved. LESLIE METAL ARTS COMPANY 145 the same time he foreclosed the possibility of a genuine representative coming to the fore. " 14 Even before enact- ment of the National Labor Relations Act the Supreme Court "had recognized that the maintenance of a `company union,' dominated by the employer, may be a ready and effective means of obstructing self-organization of employ- ees and their choice of their, own representatives for the purpose of collective bargaining." 15 Company dominated unions "serve as a means of thwarting the policy of collective bargaining by enabling the employer to induce adherence of employees [thereto] in the mistaken belief that it was truly representative and afforded an agency for collective bargaining, and thus to prevent self-organization. ... " is Because company unions had been deemed a primary or attendant cause of industrial disputes in a large number of instances, Section 8(2) was enacted to eliminate such practices. "[T]he prohibition was aimed at employers who had created subjugated unions to minimize the threat of organization by an outside union...." 17 The organization, recognition, and dealing with the Committee by Respondent constitute a classic violation of Section 8(a)(2). The thrust of such violation is "to prevent self-organization." " It is not surprising therefore that the Union's card majority as of October 19, 1970, was dissipated by the time the election was held on December 3. In that interim the Company established its Employee Communication Committee and through the Committee provided the employees with a substantial number of unprovements in their conditions of work. In addition, to ensure that the employees would understand that it is the Company to whom they should look for further benefits and that they don't "need" the Union, the Company announced a wage review and authorized a potluck dinner. Although this case is generally free of the more common forms of encroachment upon employees' self-organization- al rights-except for Tassell's speech to the assembly department-nevertheless, the unfair labor practices found are of such pervasive nature that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight...." 18 Accordingly, a bargaining order is required to remedy effectively the Company's conduct. I further find that the Company's conduct in implement- ing its plan for the establishment of the Committee after it had received the Union's demand for recognition, the granting of the improvements in the employees' conditions of work, described above, and the promises of additional benefits, including the announcement of the wage review, in the context of Respondent's opposition to the Union, demonstrates that the Company's rejection of the Union's recognition demand was not based upon any good-faith doubt of the Union's majority claim. Respondent's conduct also demonstrates an attitude antithetical to the collective- 14 Gregory and Katz, Labor Law (1948), p 599. See Report of the House Committee on Labor, H.R. 1147, 74th Cong., 1st Sess. 3(1935). 15 N.L.R B v. Pennsylvania Greyhound Lines, Inc., 303 U S. 261, 266. 16 N.L R.P. v Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271. 17 The Developing Labor Law (BNA 1971), p. 137. 18 N.L.R.B. v Gissel Packing Company, Inc., 395 U.S. 575, 614. In N L.R B v Drives, Inc., 440 F.2d 354, 367 (C.A 7), cited by Respondent, the court enforced the Board's bargaining order despite its dictum to the effect that the "cease and desist order disestablishing the Advisory Board bargaining objectives of the Act. Accordingly, I further find that the Company has violated Section 8(a)(5) and also, by reason thereof and by the other unlawful conduct found above, it has violated Section 8(a)(1) of the Act. IV. THE REPRESENTATION PROCEEDINGS For the purpose of determining the objections to the election only conduct occurring after the date on which the election petitions were filed may be considered.19 Almost all the Company's incriminatory conduct, found above, occurred after such date. It is no defense that the Company's unlawful program was conceived prior to the cutoff date. The Committee was not formally organized until after the cutoff date and only thereafter did it begin to function. Also, the benefits promised or given to the employees, described above, which in the circumstances I have found to be unlawful20 were given in the period between the filing of the representation petitions and the election. Likewise, in the same period Company President Tassell made the threat to the employees in the assembly department which I also have found unlawful. I find that the Company's conduct, described above, had a coercive impact on its employees at plant 5 and tended to prevent them from making a rational election decision. Accordingly, I recommend that the election which was conducted among the employees of plant 5 on December 3, 1970, in the unit described above, be set aside. , V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent established, dealt with, and dominated the Employee Communication Committee at its plant 5, I shall recommend that it withhold and withdraw all recognition from the Committee and com- pletely disestablish the Committee as the representative of any of its employees. I shall also recommend that Respondent cease giving effect to any agreement between itself and the Employee Communication Committee. However, nothing herein shall be construed as requiring the would eliminate any likelihood that Respondent 's violation of §8(a)(2) would preclude the holding of a fair rerun." Furthermore, I do not believe the Board has accepted this dictum. 19 Goodyear Tire and Rubber Company, 138 NLRB 453. It is immaterial to the result in this case whether October 23, when the Company filed its petition, or October 29, when the Union filed its petition, is used as the cutoff date. 20 See N L.R B v Exchange Parts Co., 375 U.S. 405, 409. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company to rescind, vary, or abandon any wages, rates of pay, hours of employment, or other conditions of employment now applicable to its employees or as preventing the Company's employees from asserting any rights in relation to their terms and conditions of employment which they may now have. Having found that the Respondent unlawfully has refused to bargain collectively with the Union, I shall recommend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other conditions of employment for the employees in the appropriate unit described below and, if an understanding is reached, embody such understanding in a signed agreement. Respondent's unlawful activities, particularly its estab- lishment and its domination of the Employee Communica- tion Committee, go to the very heart of the Act and indicate a purpose to defeat self-organization of its employees. The unfair labor practices committed by Respondent are potentially related to other unfair labor practices pros- cribed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the recommended Order herein is coexten- sive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By establishing, dealing with, and dominating the Employee Communication Committee at its plant 5, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 2. At all times since October 19, 1970, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), has been the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act of the employees in the following described unit: All production and maintenance employees employed by the Employer at Plant No. 5 located at 3065 Breton Road, Grand Rapids, Michigan; but excluding all office clerical employees, guards and supervisors as defined by the Act. 3. Since October 22, 1970, by failing and refusing to recognize the Union as such exclusive collective-bargaining representative and by failing and refusing to bargain in good faith with the Union with respect to rates of pay, hours of employment, and other terms and conditions of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 4. By threatening employees that if they should select 21 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, and recommended Order herein shall, as provided in the Union as their collective-bargaining representative in a pending election conducted by the Board they will be subject to more unfavorable conditions of employment, Respondent has restrained and coerced employees in the exercise of the rights guaranteed in Section 7. 5. By promising and also by granting employees a wage increase and other benefits and improvements in their conditions of work to dissuade them from joining or assisting the Union or voting for the Union in the pending Board-conducted election, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. 6. By the foregoing conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 21 ORDER Respondent, Leslie Metal Arts Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the administration of the Employee Communication Committee at its-plant 5 or with, the formation or administration of any other labor organization of its employees and contributing support to the Committee or to any other labor organization of its employees. (b) Giving effect to any agreement between itself and the Employee Communication Committee. (c) Refusing to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at Plant No. 5 located at 3065 Breton Road, Grand Rapids, Michigan; but excluding all office clerical employees, guards and supervisors as defined by the Act. (d) Threatening employees that more rigid rules will be established or that other conditions of their employment would be changed to their disadvantage if they should select a labor organization (not dominated by the Company) as their collective-bargaining representative. (e) Promising or granting employees wage increases or other benefits or improvements in their conditions of work to dissuade or discourage them from joining or assisting the above-named Union or any other labor organization (not dominated by the Company). (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union or any other labor organization, to bargain 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. LESLIE METAL ARTS COMPANY collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Immediately withdraw all recognition from the Employee Communication Committee as the representative of its employees at plant 5 for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the Committee as such representative. (b) Upon request, bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody it in a signed contract. (c) Post at its plant 5 in Grand Rapids, Michigan, copies of the attached notice marked "Appendix." 22 Copies of 22 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." 147 said notice, on forms provided by the Regional Director for Region 7, after being duly signed • by the -Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.23 IT IS FURTHER RECOMMENDED that the objections to the conduct affecting the results of the election in the representation cases numbered above be sustained and that the election held on December 3, 1970, be set aside. In view of my findings that employee sentiment already expressed through authorization cards would be better protected by a bargaining order than by a rerun election, it is also recommended that the petitions in the above-numbered representation proceedings be dismissed. 23 In the event that this recommended Order is adopted by the Board after exceptions' have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."