Rupp Industries, Inc.

RUPP INDUSTRIES, INC. 385 Rupp Industries, Inc. andInternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. -Cases 8-CA--8082, 8-CA-8170, and 8-RC-9239 April 11,, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 13, 1974, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and con- clusions of the Administrative Law Judge and to adopt his recommended Order. Our colleague disagrees with our affirmance of the Administrative Law Judge's findings that Respondent (1) violated Section 8(a)(1) by granting wage increases to three female welders, (2) violated Section 8(a)(2) by its conduct in the establishment and operation of the Rupp Employees' Committee, and (3) violated Section 8(a)(1) by requesting an employee to poll other em- ployees as to their willingness to meet with manage- ment to discuss grievances, and by requesting two other employees to discuss employment problems with man- agement. 1. We believe the Administrative Law Judge's con- clusion that Respondent intended to influence their attitude toward the Union by granting the three female welders pay raises and backpay is well supported by the authorities upon which he relies and the evidence which underlies his findings. These findings effectively refute the rationale of the dissent that the increases were given by a new management in response to re- peated protests to correct an inequitable prior policy of paying lower wages to women welders than to men and that no reference was made to the union campaign in granting the increases. i The Rupp Employees' Committee was permitted to intervene as a party of interest. 2 ,Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. No significance, of course, can be attached to the Employer's failure expressly to relate the wage in- creases to the organizational campaign. As the Su- preme Court observed in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 410 (1964), "the absence of conditions or threats pertaining to the particular bene- fits conferred" is not "of controlling significance." The mere grant of benefits during the pendency of an elec- tion petition raises a presumption of impropriety unless satisfactorily explained by the employer. No such ex- planation can be found in the present record. The pay raises were granted not to correct inadvertent depar- tures from an existing company practice, as was the case of three other employees with respect to whom the Administrative Law Judge declined to find violations. On the contrary, they resulted in the abandonment of an established policy of a lower pay scale for female welders. Moreover, the timing of the change supports the conclusion that it was designed to influence the election. The danger of improper employer influence "inherent in well-timed increases in benefits" was also noted by the Supreme Court in N.L.R.B. v. Exchange Parts Company, supra at 409. The new management assumed control in April 1973. The women welders were rehired in June 1973. Following their reinstate- ment, they protested the pay differential which had been a cause of complaint since 1970. No action was taken on their grievance, however, until after the Union filed a petition for election in October 1973. In mid- October they were advised that the-pay discrimination would be corrected and on October 29 they received the rate increases and backpay. The Company inactive on their complaints for 4 months, combined with the quick response following shortly upon the filing of the election petition, clearly supports the Administrative Law Judge's conclusion that the benefits were con- ferred to influence the election results.' 2. The Administrative Law Judge's finding of a vio- lation of Section 8(a)(2) in the establishment of the Rupp Employees' Committee is also supported by the record. In mid-October Respondent's owner and prin- cipal stockholder (Hrudka) and its president (Focht- man) called and presided at a series of meetings of the various departments of employees in the plant confer- ence room. At each of these meetings, after some dis- cussion of employee problems and grievances, the com- pany officials suggested that the employees select two representatives from each department to form the com- mittee to meet with management for the purpose of working out grievances and problems. Immediately fol- lowing these meetings the committee of about 12 em- 3 Nothing in the record supports the suggestion of the dissent that the action was taken to comply with Government policy or explains why the suggested policy was not implemented when the employees were rehired in June rather than after the filing of an election petition in October. 217 NLRB No. 65 386 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees were selected and met the following day with the company officials. At this meeting, working condi- tions were discussed, some complaints were immedi- ately resolved, and others were postponed for future consideration. Respondent's active role in the establish- ment of the committee, together with its support, recognition, and grant of benefits, clearly, constitutes a violation of Section 8(a)(2). Compare N.L.R.B. v. Grand Foundries, Inc., 362 F.2d 702 (C.A. 8, 1966). 3. Against this background of attempting to under- mine the union organization campaign by fostering es- tablishment of a company-dominated negotiation com- mittee, granting unlawful pay raises to some employees, the coercive interrogation of others, the im- plied threat of reprisal against an employee for passing out union cards, and the express threat to close the plant before letting the Union in, Respondent's (1) sol- - iciting an employee to poll his fellow employees to ascertain their willingness to meet directly with top management to discuss their grievances, and (2) re- questing two other employees to discuss employee problems directly with Respondent's owner and princi- pal stockholder constituted further efforts to bypass the Union and discourage organization in violation of Sec- tion 8(a)(1) as found by the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Rupp Industries, Inc., Mansfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in 'the said recommended Order. MEMBER KENNEDY, dissenting: It seems anachronistic that under present conditions this Board would penalize an employer for attempting to place women on an equal economic footing with their male counterparts, an act apparently taken by the Employer in compliance with a Government policy. Accordingly, I would not adopt the Administrative Law Judge's finding that this Employer violated Sec- tion 8(a)(1) by this conduct. Employees Virgie Lewis, Sandra Lawrence, and Louise Ball were reinstated about June 1973 as welders following a period of unemployment. Their wages at the time of their reinstatement were below those of men doing comparable work. On October 29, after repeated complaints to supervisors that their rate of pay was below that to which they were entitled, they received wage increases from the new management which brought their pay rates to the level received by men performing similar work, together with backpay to the date of their reinstatement. The Administrative Law Judge found that by in- creasing the hourly wage of the three female workers the Respondent had deviated from its past policy of paying female workers on a lower wage scale than their male counterparts. He also found the timeliness of the raises, i.e.,, after the filing of the petition and com- mencement of the election campaign, was designed to induce them to vote against the Union. I would find, contrary to my colleagues, no violation of Section 8(a)(1) of the Act in the granting of these wage increases. The increases to these women em- ployees were made only after repeated protests by the women. No reference to the Union or the organiza- tional campaign was made in granting the increases. New management had recently taken over operation of Respondent and was attempting to correct inequities. The payment of lower wages to women for work identi- cal with that performed by men was not only inequita- ble, it was also probably unlawful.' The court of ap- peals in Wilkinson Mfg. Co. v. N.L.R.B., 456 F.2d 298, 303 (C.A. 8, 1972), stated that "an employer may in- crease wages or other benefits during an organizational campaign if its action is without any purpose of imping- ing upon the employees' freedom of choice in selecting or rejecting the Union." In my view, the record lacks substantial evidence to support the contention that the Respondent had an unlawful purpose in granting these increases and I would, therefore, dismiss that 8(a)(1) allegation. ' Furthermore, the evidence does not establish, in my judgment, a violation of Section 8(a)(2) of the Act. In mid-October 1973 owner Hrudka and President Focht- man called and presided at departmental meetings of employees. The stated purpose of these meetings was to enable employees to air their complaints. During the course of these meetings the subject of an employee grievance committee arose; one had been in existence under former management. The record is unclear as to who initiated the discussion of the committee. How- ever, Hrudka or Fochtman, after brief preliminary dis- cussion, suggested that each department select repre- sentatives to form a committee. Thereafter, certain employees volunteered or were elected in the various departments to form the committee. Respondent did not participate in the selection of committee members. The next day a committee consisting of 12 representa- tives met with Hrudka and Fochtman. The topics dis- cussed included aisle safety, additional coffee, and wages. In response to the salary inquiry the Respond- ent stated that it was powerless to act because of the Union's petition. The following week the Respondent's attorney met with the committee and informed the members that .due to established guidelines of the Na- ^ The Equal Pay Act of 1963, 29 U S C. § 206(d)(1). RUPP INDUSTRIES, INC. 387 tional Labor Relations Board future meetings would have to be ruled out. Contrary to my colleagues, I do not agree that Re- spondent either dominated or unlawfully assisted the committee. The selection of the committeemen was en- tirely in the hands of the employees. No member of management was either present or participated in the voting for committee members. No supervisor was a member of the committee. Nor did Respondent render any tangible assistance to the committee. As to the Administrative Law Judge's reliance on Respondent's potential control of the committee because of the Re- spondent's power to transfer employees, the Board stated in Duquesne University of the Holy Ghost, 198 NLRB 891 (1972): [W]here, as here, the structure of the Committee and the method of selecting representatives rests solely with the employees, and there is nothing in the record to indicate any means by which the selection is subject to employer approval or con- trol, we find no basis for concluding that Respond- ent violated the Act merely because it retains the power, which every employer has, to transfer em- ployees from one area of its operations to another. Accordingly, I would dismiss the 8(a)(2) allegation. As I would dismiss the foregoing complaint allega- tions, I would also overrule the objections to the elec- tion based on the same conduct. DECISION STATEMENT OF THE CASE the purpose of a hearing before an Administrative Law Judge. Certain of the election objections in issue are coextensive with allegations in the consolidated complaint. - On July 16, and 17, 1974, a hearing in this consolidated proceeding was held before me in Mansfield, Ohio, in which all parties participated and were afforded full opportunity to present relevant evidence. A brief filed by Respondent and a "letter-brief' by the Union have been duly considered.' Upon the entire record in the case,' and from my obser- vation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION Respondent, at its principal place of business in Mansfield, Ohio, is engaged in the manufacture and sale of mmibikes and snowmobiles. Annually, it ships products valued in excess of $50,000 directly to points outside the State of Ohio. Respond- ent admits, and I find, that it is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and I fmd, that International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union or UAW, is a labor organization within the meaning of the Act. Notwithstanding Respondent 's denial, I fmd that The Rupp Employees Committee, herein called the Committee, is also a labor organization within the definition of Section 2(5). Upon the facts more fully described infra, it is sufficiently shown that this body is an "organization" or "agency" or "employee representation committee . . . in which em- ployees participate and which exists for the purpose, in whole or in part, of dealing with [Respondent] concerning grievances."4 BENJAMIN B. LIPTON, Administrative Law Judge: Cases 8-CA-8082 and 8170 involve a consolidated complaint by the General Counsel' alleging that Respondent engaged in certain independent acts of coercion, and that it dominated, assisted, supported, and interfered with the administration of The Rupp Employees Committee, in violation of Section 8(a)(1) and (2) of the Act. In Case 8-RC-9239, pursuant to a Decision and Direction of Election by the Regional Direc- tor, an election was conducted on December 14, 1973, in an appropriate unit consisting of production and maintenance employees of Respondent's Mansfield, Ohio, plant. At the election, of 220 eligible voters, 165 cast ballots, of which 45 were for the Union, 49 were against the Union, and 71 were challenged. Timely objections were filed by the Union. On March 7, 1974, the Regional Director issued his formal re- port on the objections and challenges. All the challenges were sustained except one, not affecting the election results. All the objections were overruled, except Objections 2, 11, 12, and a portion of 6. As to the latter objections, the Regional Director found substantial and material issues of fact and ordered consolidation of the complaint and representation cases for i The Union's charges in 8-CA-8082 and 8170 were filed, respectively, on December 21, 1973, and February 11, 1974. III THE UNFAIR LABOR PRACTICES A. Introduction; Advent of Union In April 1973,5 Respondent was taken over by Joseph Hrudka, as the new owner and principal stockholder. New top officers were installed, including Edmond Fochtman, as president, and James Radovic, as vice president of adminis- tration. In mid-August, an organizing campaign by the Union was commenced at the plant. On October 1, the Union 2 Absence of a brief from General Counsel is particularly noted: 3 During the hearing, an informal agreement was reached resolving the issues in Case 8-CA-8259, which involved alleged violations of Sec. 8(a)(3) and (1) relating to conduct, including the discharges of Anna Imhoff, Billy Fields, and Edward Baker, which postdated the Board election. On August 22, 1974, upon notice of compliance with the settlement terms, I issued an order granting motions to dismiss that complaint and severing Case 8-CA-8259 from this proceeding 4 Respondent's arguments, for example, that the Committee has no con- stitution or bylaws, is without officers or "formalities of any kind," and was not engaged in, or established for the purpose of, collective bargaining-have essentially been answered and rejected in cases, e.g., NL.R.B. v. Cabot Carbon Company, etc 360 U.S 203, 213 (1959), Walter Process Equipment, Inc, 163 NLRB 6I5, 616 (1967). 5 All dates hereafter are in 1973, unless otherwise specified. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed a certification petition and,- as earlier described, the election was held on December 14. - B. Evidence and Findings 1. Since the end of August, Richard Jeffrey had been active within the plant in distributing and collecting authorization cards. He testified that, early in September, he was ap- proached in the plant by his supervisor, James B. Williams. Williams said that someone had reported him "up front" for passing out union cards, and told him "to take it easy." In the conversation, he indicated to Williams that he thought it was Supervisor Ralph Watson who turned him in. Williams denied that such a conversation occurred. He further testified that he and other foremen were cautioned by Vice President Radovic early in October "not to even talk about" or "get involved" in the union activity, and that he followed this "caution."6 I credit Jeffrey. General Counsel contends that, in effect, Williams warned Jeffrey of reprisal because of his card-passing activity. View- ing the entire context of the conversation, it appears and I infer that Williams made it a special point to seek out Jeffrey and remonstrate with him that he was reported to manage- ment as having engaged in passing union cards, and then admonished him "to take it easy." In these circumstances, Williams' remark "to take it easy" cannot be construed as ambiguous or without significant effect. Rather, I find suffi- cient support to sustain the allegation that it was coercive, violating Section 8(a)(1). 2. In mid-September, about 10-14 days after the incident in the above paragraph, Jeffrey was approached by Focht- man, president, and Fred Wagenhal, vice president of pro- duction. Jeffrey testified, in substance, that they asked him if he would go around the plant and ascertain from the em- ployees whether they would be willing to meet in the confer- ence room with top management, without their supervisors present, to discuss their grievances, gripes, and complaints. After making certain inquiries, Jeffrey informed Fochtman and Wagenhal that the employees' reaction to the proposal was negative. In his testimony, Fochtman verified that he and Wagenhal' did speak at such time with Jeffrey, who `seemed to be kind of a spokesman." Explaining the background, Fochtman volunteered that Hrudka "felt" that the employees did not know the new management or its "plans." And that there were many "rumors" that the Company was going to stop making snowmobiles and sell the plant. Thus, he and Wagenhal "offered" to Jeffrey that if the employees had any questions concerning the plans of management, of if they had any problem, "all they had to do was ask." It was Jeffrey who brought up the subject of employee problems; he (Fochtman) did not request that Jeffrey speak to other employees; and he "never heard" of a union until Respondent received notice of the petition in October. I am disposed not to credit Focht- man's account, which was equivocal and self-contradictory, to the extent that it conflicts with that of Jeffrey. My finding 6 Radovic testified that the Union first came to his attention when he received a copy of the election petition in the mail on October 4 However, he indicated that, "a couple of days" before receiving such notice, he in- structed the foremen not to engage in conversations with employees or union officials regarding the Union. ' Wagenhal did not testify. is that, in fact, Respondent was then aware of the union campaign, which had been under way for at least one month, and specifically, Supervisor Williams knew in early Septem- ber that Jeffrey was soliciting authorization cards. Upon such evidence, and from the entire record, it is a compelling infer- ence that Respondent's purpose at this time in approaching Jeffrey, whom it considered a "spokesman," was an attempt to dissuade employees from seeking union representation by inviting them to deal directly with Respondent regarding their problems and grievances. It was also a manifestation of Respondent's general design, in fact of the union drive, to form a bargaining relationship with a committee or spokes- man for the employees, as described infra. As I find, Respon- dent's conduct carried the clear implication that benefits would ensure from such dealing and that the effect of in- fluencing employees to reject the Union, thereby violating Section 8(a)(l) as alleged.' 3. Anna Imhoff was a leading activist in the union cam- paign. She had spoken to practically all employees in the plant concerning the Union, as well as to Supervisors Dennis Geary and Charles Barker.9 On the day following Respon- dent's general meetings with the employees in mid-October, discussed below, Imhoff was approached by her foreman, Geary, and asked if she "would go in and talk to Joe" (Hrudka). She replied that she did not know Hrudka and he did not know her-why should she go in and what would they talk about? Geary replied that "they" ( i.e., management) figured she was "the only one that would have the guts" to tell Hrudka what the employees wanted. And he suggested that she tell Hrudka what was on her mind, what her prob- lems were, and what she wanted; he was quite sure -Hrudka would see that she got anything she wanted. Imhoff declined the request as a waste of time. Similarly, on an unspecified date in mid-October, Billy Fields, was requested by Geary, his foreman, to go in and talk to Hrudka, to tell Hrudka the employees' problems and see if he could get them settled. Fields refused, stating that he was "with the company" in the last union drive but "was with the union in this one all the way." I find that the foregoing largely uncontroverted evidence further demonstrates Respondent's purpose of thwarting the Union in its campaign by seeking, with clearly implied prom- ises of benefit, to bargain directly with the employees. The alleged violation of Section 8(a)(1) is amply supported.10 4. During one day in mid-October, Respondent called the employees by groups of various departments to meetings in the plant conference room with Hrudka and Fochtman. Six witnesses for the General Counsel gave testimony as to the discussions at the meeting each attended." Of those who at- tended the meetings, only Fochtman testified for Respondent 8 See, e.g, Reliance Electric Company, etc., 191 NLRB 44, 46 (1971), enfd. 457 F 2d 503 (C.A 6, 1972), Eugene Yokell and Bernard Yokell, Copartners, d/b/a Crescent Art Linen Co., and Betsy Ross Needlework, Inc, 158 NLRB 447, 448 (1966), enfd 387 F 2d 751 (C.A. 2, 1967), and cf. F.C.E Papers, Inc, A Division of the Mead Corporation, 211 NLRB 657 (1974) 9 Though involved in several issues, Geary and Barker did not testify. 10 Supra, fn. 8. 11 The number of such meetings held is unclear As estimated by each witness, the size of the groups ranged from 30 to 60 people (of some 220 employees in the plant), and the meeting each described took place at different times during the shift from 7 to 3:30 p.m. RUPP INDUSTRIES, INC. 389 on the subject, in a cursory fashion, stating general conclu- sions, without effective refutation of General Counsel's evi- dence. Pertaining to the issues raised, I accept the mutually corroborative testimony of General Counsel's witnesses, in essence as follows: Hrudka stated that when he took over the Company, it was bankrupt and the door was padlocked; and he did the em- ployees a favor by saving their jobs. He did not have to keep those jobs for the employees if they did not want them. He did not need outsiders to run the business. The employees had no right to bring in a union without giving the new manage- ment sufficient time to show what it could do. Before he would let the Union in he would close the doors.12 He asked the employees what their complaints were that they wanted a union; he should be able to resolve their problems instead of having a union do it for them. At one meeting, Fochtman asked the foremen to leave so that they would not influence the employees in expressing their problems. One employee complained of foremen "grabbing and pushing people around," and Hrudka replied that "foremen could be re- placed." Another employee indicated he had not received overtime pay when she worked on a Saturday after returning from vacation the same week. Then and there, Hrudka ap- proved the overtime payment. Answering a question, Hrudka indicated there would be no layoffs in the foreseeable future. A few other complaints were voiced, and replies were given by Hrudka of Fochtman, e.g., that management would check into the particular matter. One request was that Respondent provide safety gloves to protect the hands of employees en- gaged in machining work. Such gloves were supplied in November. Toward the end of each meeting, the subject was raised concerning the existence of an employee "gripe committee" under the prior ownership of the plant.13 Certain of the wit- nesses testified that Hrudka or Fochtman asked the em- ployees to explain how such a committee had operated. The employees described that the previous committee, consisting of "somebody from each department," met with the person- - nel manager and thereafter the plant manager would attempt to work out the problems, and that-"They don't have them any more, and the personnel manager didn't have time to take care of it.1114 Then it was specifically "suggested" by Hrudka or Fochtman that the employees pick two represen- tatives from each department for the purpose of establishing an employee committee to meet with management in order to work out grievances and problems. Immediately following 12 Fochtman denied that Hrudka made any mention of closing down the plant 13 The committee then was informally called the "Communications Panel." 14 It must be assumed that information as to the operation of the prior employee committee was peculiarly known or available to Respondent, certainly through its foremen and its files, without having to question the employees Vice President Radovic testified that Hrudka's visit to the plant at this time "was extremely rare for him " On arrival, Hrudka first spoke with a group from management. Radovic "may even have brought up that people" had come to him asking, in effect, why management no longer met with an employee committee as it previously did, and Radovic "felt" it was his obligation "to get them going." Later that day, the general meetings with employees were convened, without the presence of Radovic. Respondent's argument in its brief that the principal purpose of the meetings was to introduce Hrudka to the employees is patently at variance with the evi- dence these meetings, certain employees volunteered or were chosen or elected in the various departments to form the committee. On the next day, the committee, comprising about 12 em- ployees, met with Hrudka and Fochtman. The latter's secre- tary was present to take notes. Hrudka asked what their problems were. A complaint was presented that employees working on the same job were receiving different and unequal rates of pay. The response then given was that the Company could not do anything about it at this time because of the Union's petition. However, as treated in subsection 7, below, Respondent awarded increased rate adjustments and retroac- tive raises to six employees in late October and early Novem- ber, prior to the scheduled election. As a safety factor, the employees requested, and Fochtman promised, that the aisles would be "straightened up." Also, for example, it was com- plained that the coffee machine was inadequate to accommo- date the employees during their breaktime. On the following day, Respondent instituted the service of dispensing coffee on the cafeteria line in addition to the coffee machine. As to other matters raised, Fochtman said he would get back to the committee with answers. About one week later, Attorney Chattman alone met with the same committee representa- tives. He stated that Respondent could no longer have meet- ings with the committee, or make promises or grant any benefits, "because this was forbidden by the labor relations board." Thereafter, no further meetings with the committee were held. "The Rupp Employees Committee" is named in this pro- ceeding as "Party of Interest," and service of the complaint was made by registered mail upon certain members of the committee under such name. While it is indicated that the committee had not taken for itself any name, it suffices for the legal purposes herein to identify it, in a manner which is fairly descriptive, as "The Rupp Employees Committee." It was testified that this committee had no constitution, bylaws, officers, or designated spokesmen. Nevertheless, it had form and structure as a body with putative authority to speak for the general plant employees. Under the complaint allegations, it is immaterial that a similar employee "gripe" committee existed under the prior management. The legality of that earlier committee is not in issue; indeed it had been completely inoperative long before the new management assumed control of the plant in April 1973. As already shown, it was only when Respondent became aware in early September of the Union's, organizing campaign that it commenced overtures to employees in an effort to mollify their supposed problems and remove their desire for unionization. In mid-October, after the Union's petition was filed and a question of representation was pend- ing, Respondent intensified this strategy by calling the em- ployees into general meetings, as above described. In these circumstances, regardless of the experience of the previous management, it was plainly improper for Respondent to cause the formation of, support and recognize an employee grievance committee, to promise and grant benefits, and gen- erally to deal with it, as it did. Attorney Chattman realized the seriousness of Respondent's conduct when he subse- quently told the committee, in effect, that the existing ar- rangement for such meetings with management was imper- missible under the law. Thereafter, all further meetings and committee activity abruptly came to a halt. The evidence 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, in the context of coercively antiunion statements to assembled employees, Respondent "suggested" that they es- tablish the committee, or resurrect such a prior committee long since abandoned,15 for the purpose of dealing with Re- spondent concerning matters affecting their wages and work- ing conditions; that thereupon such a committee was promptly formed; that at least one meeting was held with Respondent during which certain requests on behalf of the employees were then or later granted, and others were taken under advisement; and that, upon a simple instruction from Respondent's attorney, the committee ceased to function-amply attest that the committee had no viable in- dependence. Rather, it existed at the whim and was a creature of Respondent to serve its purposes of undermining the cur- rent driver for union representation. Furthermore, it is im- plicit that Respondent could control the composition of the committee by exercising its power to transfer, promote, or lay off the representatives chosen by the employees. All the ele- ments are present for a full finding of Respondent's domina- tion and control of the committee, nothwithstanding the brevity of its active existence and the limited nature of its dealings (e.g., grievances) with Respondent. Even though it appears that Respondent had no further meetings with the committee since late October, the alleged violation is not thereby rendered moot or "neutralized," as Respondent con- tends. In furtherance of the Act's policies, and effectively to disabuse the employees, the specific remedy of disestablish- ment is necessary to prevent Respondent's reactivation of the same committee, or an alter ego, under similar circumstances. 16 Accordingly, it is found that Respondent has dominated, assisted, supported and otherwise interfered with the operation and administration of the committee, in violation of Section 8(a)(2).17 5. As above shown, during the general meetings in mid- October, Hrudka told the employees he would close the doors before he would let the Union in. This threat, clearly convey- ing Respondent's union animus, constituted a violation of Section 8(a)(1). 6. Clayton Lawhorn testified that, around the beginning of October, he was questioned by his foreman, Gene Sweval, as to how he felt about the Union, and he answered that he "could work with it or without it." Examined by Respondent as to whether he remembered this specific conversation oc- curring on October 3 (the date alleged in the complaint), Sweval stated he did not." Lawhorn is credited. 15 Even if the idea had initially been broached by one or more (unnamed) employees, as Fochtman testified, the result herein would be unchanged, as the committee was formed under the aegis of Respondent. See, e g , N.LR.B. v Grand Foundries, Inc., 362 F.2d 702 (C A 8, 1966), enfg in part 151 NLRB 1170 (1965); Whirlpool Corporation, etc., 126 NLRB 1117 (1960). 16 As the Committee has already been rendered dormant, the disestabhsh- ment remedy will not entail any serious disruption. Indeed, on a lesser 8(a)(2) finding short of domination, the unusual order limited to cessation of recognition and interference would appear plainly inappropriate to the circumstances. 17 E.g, Fire Alert Co., 182 NLRB 910 (1970), Pines ofAmenca, Inc., 178 NLRB 378 (1969), Huberta Coa4 Inc, 168 NLRB 122 (1967); Hydraulic Accessories Company, 165 NLRB 864 (1967). And cf Irving Air Chute Co , Inc., etc., 149 NLRB 627, 628, 641 (1964), where the committee never actually functioned and recognition was never granted 18 Sweval also testified he had no knowledge of instructions from higher management prior to the election with respect to his responsibility regarding union activity. Edward Baker testified to three instances in which he was questioned regarding the Union by Darrell Baker, Respon- dent's purchasing manager and an admitted supervisor. On December 7, the conversation took place in the purchasing office, with Keith Mowery present. Darrell Baker asked him how the Union seemed to be doing. He replied that it- seemed to be going fairly well and had no doubts it would be voted in. In the discussion which ensued, both men strongly as- serted opposing views and then entered into a wager of $200 on the outcome of the election. The use of the wager is raised only in the Union's objection to the election, which is sepa- rately considered infra. On December 14, while Edward Baker was on his way to the polling place to vote in the election, he was called aside to speak to Darrell Baker in the area of the "raw material receiving dock."19 He testified: Darrell said, "Ed what has the union promised you?" I said, "They haven't promised anything." He said, "Any more money or work conditions or anything like that?" I said, "No, they can't do this. It's up to the people in the bargaining element to do it." He said, "Well, you seem kind of intelligent about .what you just said.... Why do you need a union_here? ... This place doesn't need a union, it could kill it." I said, "The people around here aren't stupid, they know the financial circumstances around the company, what they can or can't ask for." He said, "Why you want a union?" I said, "Darrell, I already made up my mind, . . . I know what I want and you are not going to change my mind." At this time, he called me, "Stupid" ... . About the end of December, Darrell Baker spoke to him again near the inspection cage of the machine shop. Mowery was not present. He was asked "how the union was going." I said, "As far as I know it was still up in the air He said, "Well, what are you going to do if the union doesn't get in?" I said, "Well, I really don't know. Under the working conditions and circumstances, I would probably look for a job elsewhere." At this time, he told me, "Well, why don't you go some place where they have a union already." I told him that I was going to stay and find out if they might have one here... . Darrell Baker gave his version of the wager incident on December 7, indicating that he intervened in a discussion between Edward Baker and Mowery concerning the-union election and that he made the initial offer of the bet which was accepted by Edward Baker. Other than the wager, he re- sponded with denials that he had conversations on the spe- cific occasions described above, or any conversation, with Edward Baker regarding the latter's "union activity or union posture." However, he stated on cross-examination initially that, prior to December 7, Edward Baker told him or gave 19 On cross-examination, he was asked-"Was anyone else around when you had this conversation" He answered, "Yes, sir, Mr Mowery." RUPP INDUSTRIES, INC. him some indication that he favored the Union, and then, equivocally, he explained that his information was based on the "known fact" of Edward Baker's prounlon stance. Mow- ery is a purchasing agent under Darrell Baker's supervision. Conflicting with Darrell Baker, he testified that it was Ed- ward Baker who first offered to make the best of the election outcome. Other than the conversation on December 7, he could not remember being a witness to any discussion in the month of December during which Darrell Baker questioned Edward Baker about his union activity. Viewing the sum of the testimony, I find more persuasive and creditable the de- tailed conversations related by Edward Baker. Accordingly, I conclude as to the above-described conver- sation between Lawhorn and Sweval and the three separate conversations between Edward and Darrell Baker '211 that each of these interrogations had a clear tendency of coercion in violation of Section 8(a)(1), particularly as they occurred in the context of other unfair labor practices, without any showing of legitimate purpose or assurances given the em- ployees against reprisal.21 7. The complaint alleges that, while the Union's election petition was pending, Respondent granted several employees retroactive wage increases to discourage their union activi- ties. In support, detailed testimony was adduced by General Counsel concerning raises given to six specific employees. It is recalled that the new management assumed control in April 1973. About June 1973, Virgie Lewis, Sandra Lawrence, and Louise Ball were reinstated in the welding department, each having worked in this department during previous periods. Upon their return, they received the hourly rate of $3.82. On October 29, after repeated complaints to supervisors that their rate was below that to which they were entitled, they received certain rate increases and various amounts of back- pay to the date of their reinstatement. All three received retroactive pay at the rate of $4.08, and at the same time Lewis was raised to $4.22, which was the top rate for welders. These rates conformed with Respondent's normal practice of granting the welders "automatic" increases of 10 cents at 60-day intervals until the top of the scale was reached. Ball testified that, ever since they went into the welding depart- ment in 1970, these female employees frequently complained to management, e.g., Supervisor Geary, that their hourly rate was not the same as that being paid to the men. Following their reinstatement about June 1973, they again made com- plaints to Geary that their pay rate was below the appropriate scale as paid to the rest of the welders. Geary said he would "check into it." In mid-October, after speaking to Geary, they were called into the office of Supervisor Baker. Baker told them, "we have been treating you girls sort of nasty in welding," and "are going to give you backpay and your raise."22 On October 29, about a week later, they received 20 Although the complaint alleges the interrogations which took place prior to the election on December 14, the incident involving the Bakers at the end of December is properly included in these findings as having been fully litigated on the same subject matters. 21 E.g., BlueFlash Express, Inc., 109 NLRB 501 (1954); Johnnie'sPoultry Co., 146 NLRB 770 (1964). 22 Vice President Radovic testified that, in late October, Lewis, Ball, and Lawrence came to him and reported that Baker had made a mistake in their rate of pay. Radovic investigated and found the previous mistake, and also that their "normal- progression increase at the 60-day interval" had been 391 the backpay and rate increases, as earlier indicated. David Berger was transferred to the fabrication depart- ment sometime prior to October 1973. When transferred, he was entitled to an increase of 10 cents for an "automatic" raise, and to 8 cents by reason of a classification change, all of which he failed to receive. Three months after his transfer, he complained to Supervisor Sweval. One or two weeks later, about mid-November, he received only the 10-cent raise. After an additional period, he complained to Baker. Two or three weeks later, before the election of December 14, he received the 8-cent raise with retroactive pay to the date of his transfer. Edna Stevens was employed in the assembly department. She was entitled to an "automatic" increase of 10 cents in October which was not reflected, when due, in her paycheck on October 21. She spoke to Supervisors Watson and Baker and the following week she received the raise with appropri- ate backpay. Clarence Smith was reinstated from layoff to the "Go-Joe line" as repairman in June 1973. He failed to receive an additional 10 cents per hour to which he was entitled in such classification. He spoke to his group leader about the matter but no action was taken. One month later, he was transferred to the "snow sport line" also as repairman. On several occa- sions, he approached his foreman, Watson concerning the deficiency in his rate, and was told he "would get it." About November 15, he was transferred "back to the Welding de- partment." He then raised the same question with Supervisor Geary, Geary asked him to bring in his payroll data and he would take it up with "Personnel." Shortly thereafter, Smith was called in to "Personnel," and computations were made by a clerical employee. the following week, about December 1, he received the 10-cent increase retroactively.23 The validity of wage increases or other benefits during the pendency of a representation petition turns upon whether they are granted "for the purpose of inducing employees to vote against the union."24 Under "settled Board policy, a grant or promise of benefits during the -critical preelection period will be considered unlawful unless the employer comes forward with an explanation, other than the pending election, for the timing" of such action .21 Here, there are present the elements that Respondent was generally soliciting employee grievances and complaints in an effort to undercut the union campaign; that in the mid-Octo- ber meetings it received the specific complaint that employees performing the same work were being paid unequal wage rates; that at one of these meetings, the deficiency in Boggs' overtime pay was immediately remedied upon the complaint; and that in the cases of all six employees described above, their rate increases and pay adjustments were effected during "neglected" for these employees He then authorized the necessary correc- tions The consistent testimony of the three employees involved was that they ultimately spoke only to Baker, not Redovic. 23 On his return to the welding department, Smith was accorded the top scale of $4.22, which appears to encompass a total raise of 30 cents from his previous rate. It was not shown or argued by General Counsel that, by giving Smith the top welding rate, Respondent varied from its standard practices. 24 Tonkawa Refining Co, 175 NLRB 619 (1969), citing N.L.R.B v Exchange Parts Co., 375 U.S. 405, and Russell-Newman, Mfg, Co., Inc. v. N.L.R.B., 370 F.2d 980 (C A. 5, 1966). 25 The Singer Company, 199 NLRB 1195 (1972). 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the preelection period in late October and mid-November. As to-Burger and Stephens, with some doubt I am inclined to find as sufficiently valid Respondent's explanation that the small discrepencies in their pay rates were due to inadvert- ence or clerical oversight and were corrected with reasonable promptness following notice by the employee. I consider that these were routine payroll adjustments, involving no question of entitlement, which are normally expected by employees to be made in due course, as they were here, and which had no significant bearing on the election.26 In Smith's case, the same considerations obtain, with a serious reservation as to whether, after the earlier delays in June and July, the immedi- ate action taken by Supervisor Geary,27 when he was ap- proached by Smith in November 15, was motivated by the imminence of the scheduled election. Again with doubt, I resolve this reservation in favor of Respondent,28 particu- larly in view of the frequency of Smith's transfers and Super- visor Watson's assurance to him in July that he "would get" the rate adjustment. However, regarding Lewis, Lawrence, and Ball, I find the violation. It is 'apparent from the tes- timony, and unmet in the defense, that in retroactively raising their hourly rates, on October 29, Respondent affected a change from its preexisting practice of paying female welders on a lower scale than their male counterparts in the depart- ment. Furthermore, in light of their long and repeated com- plaints concerning the inequity in their pay rates, the em- ployees were reasonably led to believe that the eventual action taken by Respondent was designed (like other conduct al- ready shown) to induce them to vote against the Union.29 IV THE REPRESENTATION PROCEEDING Insofar as the violative findings above related to Respon- dent's conduct occurring after the filing of the Union's peti- tion on October 1, the evidence is amply sufficient to warrant that the election be set aside on the basis of the Union's objections.30 In any case, I find without merit the future ob- jections 11 and 12, which are not embraced in the complaint. Objection 11 concerns the wager between Darrell and Ed- ward Baker in their conversation of December 7, as pre- viously described. In its "letter-brief," the Union contends only that Darrell Baker's conduct amounted to coercive in- terrogation, which indeed was found in the entire context. In the particular circumstances, the wager incident per se war- rants no independent violation." Regarding objection 12, I consider as entirely too vague the testimony of Robert Dougherty that, while in the plant to collect his final pay- check on the election date, he was purportedly stopped from proceeding to the polling place to vote by an unidentified "voice" which stated, "You are no longer employed here." Moreover, there were 70 terminated employees, in the same category as Dougherty, who were not prevented from voting and the challenges to their ballots were sustained. 26 See Price Candy Company, 172 NLRB 2229 (1968) 27 As contrasted with the long periods of this inaction in the cases of Lewis, Lawrence, and Ball. - 28 In any case, the result herein would be the same 29 NL R.B. v Exchange Parts Co., 375 U S. 405 (1964). 30 Le , Objection 2 and the third portion of 6, as reflected in the Regional Director's report of March 7, 1974. 31 See Personal Products Corporation, 116 NLRB 393, 398 (1956). V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE - The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As discussed in section III, subsection 4, it is recommended, upon the finding of 8(a)(2) domination, that Respondent be ordered to disestablish "The Rupp Employees Committee." CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and The Rupp Employees Committee are each labor organizations within the meaning of Section 2(5) of the Act. 3. By dominating, assisting, supporting, and interfering with the operation and administration of The Rupp Em- ployees Committee, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By-the foregoing, and by other independent acts and conduct interfering with, restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. By engaging in certain of the aforesaid unfair labor practices, Respondent has interfered with the representation election held on December 14, 1973. Upon the above findings of fact, conclusions of law, and the entire record in the cases, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER32 Respondent, Rupp Industries, Inc., Mansfield, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities and sentiments; threatening employees with reprisal for engaging in union activities; or threatening plant closure in the event that a union is selected as bargaining representative. 32 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. RUPP INDUSTRIES, INC. 393 (b) Soliciting grievances from employees with the express or implied promise to remedy such grievances. (c) Promising or granting wage increases, or other benefits, or remedying any grievances, as an inducement to employees to reject the UAW,'or any other labor organization, in a representation election or in a union campaign. (d) Dominating, supporting, assisting, or interfering with the operation and administration of The Rupp Employees Committee, or any plant committee or labor organization of its employees. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act. 2, Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Withdraw and withhold recognition from, and com- pletely disestablish The Rupp Employees Committee, or any alter ego thereof, as the representative of any of its employees for the purpose of collective bargaining with Respondent concerning wages, hours, or other conditions of employment, provided that each action shall not be construed to require that Respondent vary any wages, seniority, or other rights or substantive terms of existing working conditions. (b) Post at its plant and facility in Mansfield, Ohio, copies of the attached notice marked "Appendix."33 Copies of said notice on forms to be provided by the Regional Director for Region 8, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained for 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, -what steps Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the election conducted on December 14, 1973, be set aside; and the Case 8-RC-9239 be severed from this proceeding and remanded to the Regional Director for appropriate disposition. 33 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice; and we intend to carry out the order of the Board and abide by the following: WE WILL NOT dominate, support, assist, or otherwise interfere with the operation and adminsitration of The Rupp Employees Committee , or any other plant com- mittee or labor organization of our employees. WE WILL NOT question you concerning your union ac- tivities or sentiments in a manner which would coerce you regarding your rights under the Act. WE WILL NOT threaten you with punishment or -re- prisal for engaging in union or other activities protected under the Act. WE WILL NOT threaten to close down the plant in the event that our employees select a union as their lawful bargaining representative. WE WILL NOT solicit you to tell us your grievances and directly or indirectly promise to remedy such grievances, and WE WILL NOT promise or grant wage raises, or other benefits, or remedy and grievances, in order to induce you to reject the UAW, or any other union, in a repre- sentation election or in a union campaign. WE WILL NOT in any similar manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed employees in the National Labor Relations Act which are as follows: To engage in self-organization To form, join, or help a union To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL withdraw all recognition from and com- pletely disestablish The Rupp Employees Committee, or any substitute plant committee of employees , as the rep- resentative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, hours, or other conditions of employment. How- ever, we will not interpret this action as requiring us to vary our wages, seniority, or other rights, benefits, or other substantive terms of your existing working condi- tions. Rupp INDUSTRIES, INC