General Electric Company

GENERAL ELECTRIC COMPANY General Electric Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Cases 1 1-CA-8813 and 11- RC-4781 September 30, 1982 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On December 5, 1980, Administrative Law Judge William A. Gershuny issued the attached Decision in this proceeding. Thereafter, the Re- spondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order, as modified.' i. We agree with the Administrative Law Judge that the interrogation of employees Hill and Gill by Supervisors Carrington and Piper and the inter- rogation of employee Glenn by Supervisor Acosta constituted violations of Section 8(a)(l). In adopt- ing these findings, however, we do not accept the Administrative Law Judge's conclusion that the in- terrogation was unlawful only because it was ac- companied by promises or threats. See the Board's view expressed in PPG Industries, Inc., Lexington Plant, Fiber Glass Division, 251 NLRB 1146 (1980).2 For this reason we reject his finding that other instances of interrogation which were unac- companied by promises or threats were lawful, and accordingly we find additional 8(a)(1) violations based on Supervisor Byham's interrogation of em- ployee Glenn and Supervisor Davis' interrogation of employee Hill. 3 I The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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 Prod- ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See also Edgcomb Metals Co.. One of the Williams Companies, 254 NLRB 1085 (1981) 3 We disagree with the Administrative Law Judge's appraisal of the comments made by Manufacturing Engineer Bozony to employee Meekins, but we do not pass upon whether they constitute an unfair labor practice in view of the limited evidence that they are attributable to the Respondent. 264 NLRB No. 126 2. We do not accept the Administrative Law Judge's decision to overrule the objection to the election based upon the conduct of Building Man- ager Petrides in mid-November 1979. We consider Petrides' questioning of employees as to whether they had particular problems, and what some of their problems were, to amount to solicitation of grievances, and to constitute interference with the election. The solicitation carried an inference that the employer implicitly promised to remedy prob- lems brought to its attention.4 The evidence here does not rebut that inference. 3. We agree with the Administrative Law Judge that the election of December 7, 1979, should be set aside. However, we base our conclusion upon conduct in addition to that upon which he relied. The Administrative Law Judge relied only upon the threat of loss of direct communication with management, and viewed other preelection unfair labor practices as isolated and having a minimal impact on the election. We find, to the contrary, that the instances of interrogation by several super- visors, and the prohibition by Supervisor Combs of distribution of literature on the parking lot, that oc- curred during the crucial preelection period, also interfered with the election. Accordingly, we set aside the election upon the basis of the threat of loss of direct communication with management, the interrogation, threats and promises of Supervisors Carrington, Piper, Acosta, and Byham, the no-dis- tribution rule of Supervisor Combs, and the objec- tionable conduct of Building Manager Petrides in soliciting grievances. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, General Electric Company, Durham, North Caroli- na, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following before paragraph 2: "2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:" 2. Designate paragraph 2 as "(a)." 3. Insert the following as paragraph 2(b): See Idaho Falls Consolidated Hospitals. Inc., 257 NLRB 1045 (1981); Sanitas Cura. Inc.. d/b/a Parkview Acres Convalescent Center. 255 NLRB 1164 (1981); Cutting, Incorporated, 255 NLRB 534 (1981); Raleys Inc., 236 NLRB 971 (1978) Member Jenkins finds the solicitation of grievances objectionable on the views set forth in his dissenting opinion in Uarco Incorporated. 216 NLRB 1 (1974). 953 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(b) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." IT IS FURTHER ORDERED that the election held in Case 1l-RC-4781 be set aside, and that said case be remanded to the Regional Director for Region 11 to conduct a second election when he deems the circumstances permit the free choice of a bargain- ing representative in accordance with the Board's Direction of Second Election set out below. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge: These consolidated cases were heard on June 25-27, July 29-30, and August 19-21, 1980, in Durham, North Caro- lina, on complaint issued January 30, 1980, alleging a number of violations of Section 8(a)(1) of the Act. Re- spondent's answer denies any violation. Pursuant to Board order dated June 24, 1980, this pro- ceeding was consolidated with the hearing on Petition- er's objections to an election held on December 6, 1979. Of the three objections which are not coterminous with violations alleged in the complaint, two relate to alleged solicitations of grievances and the third involves an al- leged threat of more onerous working conditions. The complaint alleges no 8(a)(3) violations and no bar- gaining order under N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), is sought. Upon the entire record, including observation of wit- ness demeanor,' I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent, engaged in the manufacture of, inter alia, generators, with interstate shipments of goods in excess of $50,000 annually, is an employer within the meaning of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of the Act. On July 21, 1980, during the course of the hearing, the Board acting on the General Counsel's special appeal, reversed my ruling of June 27, 1980, which had the effect of permitting counsel for Respondent to dis- close the testimony of the General Counsel's witnesses to those company officials and supervisors for whose actions the General Counsel sought to impose liability on Respondent. Respondent's pretrial motion for a bill of particulars had been denied and the affected officials and supervisors, along with all other witnesses, had been excluded from the courtroom at the request of counsel for the General Counsel. In accordance with the Board's Order, appropriate instructions not to divulge such testimony were given to counsel on July 29. One violation, involving Teasley, was considered in making credibility findings. III. THE UNFAIR LABOR PRACTICES A. Background On September 9, 1979, the Union launched an open campaign seeking to represent all production and mainte- nance employees at Respondent's Durham, North Caroli- na, generator facility. Prounion buttons and clothing were worn at the plant and literature was openly distrib- uted both inside and outside the plant. A petition was filed by the Union on September 25, 1979; an election was consented to by stipulation approved on October 19, 1979; and an election was held on December 6, 1979. Of the 365 eligible voters in the unit, 119 yes votes and 227 no votes were cast. To the extent possible, the allegations of the complaint will be considered in the order in which they are plead- ed. Where a single incident is alleged as a violation in more than one paragraph of the complaint, it will be considered but once, in connection with a discussion of the earliest allegation. Petitioner's objections will be con- sidered last. B. The Carringion/Piper Interrogation and Promise In support of allegations in paragraphs 8(a) and (j) of the amended complaint, employees Charles Hill and Gill testified that, during the week before the December 4 election, Supervisors Carrington and Piper asked them why they wanted a union and further asked them to give Plant Manager DiFronzo another chance to straighten out problems at the plant, adding that "if he could not straighten them out within a year's time that the Union would be welcome." Neither Carrington nor Piper was called to testify. Measured against clear Board precedent, this conversa- tion is violative of Section 8(a)(1) of the Act. Employer interrogation is, of course, not unlawful per se. The test necessarily is an ad hoc one-whether under all the circumstances the interrogation reasonably tends to restrain or interfere with employees in their exercise of Section 7 rights. Generally, to be unlawful, interroga- tion must be associated with express or implied threats or promises or form part of an overall pattern tending to re- strain or coerce employees with regard to their protected activities. Questions such as, "why do you want a union," in and of themselves, are permissible employer inquiries, even when addressed to an employee whose sympathies are unknown. Coupled, as here, with a not-too-subtle prom- ise of better working conditions, the exchange takes on a coercive character which clearly tends to interfere with the employees' freedom of choice. C. The Teasley Interrogations In support of allegations in paragraph 8(a) of the amended complaint, employee Barnes testified that, on two separate occasions in mid-November and early De- cember, Supervisor Teasley asked him and employee Jerry Davis how they "felt about the Union" and how he was going to vote. Each time Barnes testified, he re- fused to respond. These remarks were made in the course of discussions Barnes was having with Teasley 954 GENERAL ELECTRIC COMPANY and others concerning job bidding and a rumored differ- ential in hourly rates between Respondent's Durham and Hickory plants. Teasley was a particularly credible witness, frank to admit his close personal relationship and continuing dia- logue with employees concerning a principal topic of discussion at the plant for an extended period of time. His testimony was concise, clear, and convincing. In contrast, that of Barnes was vague and inconsistent to a disturbing degree with statements given to the Board and with admissions made on cross-examination. I find that no interrogation occurred as alleged as to the inclinations of employees Barnes and Jerry Davis. Of course, there is no suggestion by counsel that discussions of job bidding or comparative hourly rates, under the circumstances present here, were violative of the Act. D. The Byham Interrogation and Threat In support of paragraph 8(a) of the amended com- plaint, employee Glenn testified that in October 1979 Su- pervisor Byham asked him why he wanted a union and told him that the Company had been good to him and that it was not against the law for him to talk with Byham about it on company time. Fellow employee Downey, who was present, corroborated the fact of a conversation, but could not recall its content or date. Byham, a particularly candid and convincing w'itness, who became a supervisor on October 1, 1979, admitted discussing Glenn's feelings about the Union with him both before and after becoming a supervisor. In support of allegations in paragraph 8(d) of the amended complaint, Glenn also testified that, in late Oc- tober, Byham said to him that "if the Union came in that things would tighten up, things would get tough." Em- ployee Allen, who participated in the conversation, placed the date of the conversation as late November and corroborated Glenn's testimony as to Byham's state- ment. Allen added that, according to Byham, "the reason that it would be rougher was that we would not have that one-on-one relationship with the Supervisor and the hourly employees that we had at the present time." Byham admitted probably saying that, "there might be some changes." The first conversation between Byham and Glenn in- volved no unlawful conduct. Unaccompanied by threat or promise, it was simply one facet of a continuing dia- logue between friends. Moreover, viewed objectively, the Byham statement was noncoercive. Tested subjec- tively, the remark was so innocuous that employee Downey had no recollection of its content. However, the late October conversation constituted an unlawful threat. Contrary to Respondent's contention, the words amounted to more than simply a statement of "a fact of industrial life," i.e., that grievances would be controlled by the Union. Indeed, the words suggest loss of the all-important supervisor/employee relationship not only under step 1 of a contractual grievance procedure, but also under the Company's open-door policy which applies to questions, ideas, and other forms of industrial communication. See infra. E. The Davis Interrogations Paragraph 8(a) of the amended complaint alleges two unlawful interrogations by Supervisor Bill Davis. The first, testified to by employee Norman Davis, oc- curred in September, after commencement of the cam- paign but prior to filing of the petition. N. Davis, a known union adherent wearing union pins and hat and a former shop steward on another job, testified that Super- visor Davis mentioned to him the rumor of union activi- ty and asked whether he thought a union would help him. N. Davis replied in the affirmative and the conver- sation ended. Bill Davis, also a former shop steward on another job, admitted discussing with N. Davis their prior union ex- periences but denied having the specific conversation tes- tified to by N. Davis. I am unable to credit the testimony of N. Davis in this respect. Throughout, his testimony was extremely vague and he appeared to lack candor when fixing a date for this conversation. Accordingly, no violation is estab- lished. The second incident was testified to by employee Charles Hill: In late September Supervisor Davis asked Hill what he thought of the union meeting which Hill had attended and why Hill wanted a union and wanted to pay dues. Supervisor Davis, a longtime friend of Hill but not Hill's supervisor, testified that Hill told him about a union meeting Hill had attended and that he asked, "how did it go?" He admitted having several conversations with Hill about unions, some in response to questions by Hill. He fixed the Hill conversation as occurring a couple of weeks after certain drag races which counsel represented as having occurred on August 17-19, 1979. This would place the event prior to the filing of the peti- tion. Hill, in his testimony in support of an allegation in paragraph 8(e) of the amended complaint, infra, estab- lished himself as a witness lacking in credibility. That finding also must affect his credibility here. Nevertheless, Davis admitted asking how the union meeting went, after having been told of the meeting by Hill. Without more, this inquiry is not unlawful. There is no suggestion that it was coercive or threatening and the conclusion is com- pelling that it was nothing more than idle conversation between two ballfield and beer hall friends. No violation is established. F. The Acosta Interrogation, Promise, and Solicitation In support of allegations in paragraphs 8(a), (i), and 0) of the amended complaint, employee Glenn testified that on November 21, 1979, Supervisor Acosta (who worked on another shift) called Glenn away from his work sta- tion to inquire as to the reasons for Glenn's strong prounion feelings; to say that he could not believe that Glenn was pushing so hard; and to ask Glenn to give Plant Manager DiFronzo "another chance" and to vote no. Glenn also testified that Acosta, who had hired Glenn originally, then said: 955 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . and when you vote no, I want [you] to [come] up to me and put your arm around me, and say Abe, we're even .... Acosta was not called to testify. As indicated earlier, questions as to why an employee wants a union are permissible except where, as here, the inquiry is coupled with a promise of improved working conditions and a not too subtle reminder that Glenn had an obligation to Acosta. In addition to constituting an unlawful solicitation of vote information, the "arm around me" conversation takes on the character of an implied threat to Glenn's job security if Glenn does not suitably demonstrate his appreciation to Acosta for having given him his job. And, finally, as discussed earli- er in this Decision, the "give Pete another chance" plea is an impermissible promise, violative of the Act. G. The Bozony Interrogation In support of allegations in paragraph 8(a) of the amended complaint, employee Cynthia Meekins testified that, on two occasions in early December, Manufactur- ing Engineer Bozony asked if she were "serious" about the two rather large union buttons she was wearing, adding that the Company would bend over backwards to help black employees such as herself and that she should think it over before voting. Bozony and Meekins are both employed in the Company's administrative offices, come into frequent contact with one another, but seldom exchange words. Bozony admitted having the conversations with Meekins. On the first occasion, the 4- to 5-inch button worn by Meekins struck him as rather funny and that, as he was later reminded by his manager, he said, "are you seri- ous?" On the second, he testified that Meekins came to his desk asking if he were surprised she was wearing the button; that, when she asked why he was surprised, he replied, I don't think the Union can do any more for you than you can do for yourself. According to Bozony, she told him she would get a dis- patcher's job if the Union won the election and told him that he did not like her because she wore a union button, to which he replied that he would like her better if she were not wearing it. At issue also is the status of Bozony, a salaried manu- facturing engineer with no traditional supervisory func- tions. His function is to plan for and coordinate with contractors and plant personnel the installation of plant machinery. He attends management meetings, assists in resolving maintenance problems, and, with others, en- sures compliance with equipment safety procedures. However, because his conversations with Meekins are not violative of the Act, it is unnecessary to reach this issue. Bozony's version of the two events is the more credi- ble. Not only was he convincing as a witness, his ac- count of the conversation was supported by the fact that he would have had no reason to know of Meekins' ex- pectations with respect to the dispatcher position unless she had told him at the time. Admittedly, the two rarely exchanged greetings prior to the union button incident. The first Bozony remark was reflexive only, express- ing surprise at the size of the button which he thought funny. The second conversation, as testified to by Bozony, was initiated by Meekins who sought him out and his remarks, made in a rather fatherly manner, were responsive to her inquiry. No violation is established. H. The Brinkley Removal of Prounion Sign Paragraph 8(cl of the amended complaint alleges an unlawful interference with union activities. In mid-No- vember, several weeks prior to the election, employee Freeman printed a prounion sign (approximately 1 by 2 feet) on the back of a discarded safety poster and taped it to his rolling toolbox, which was kept in his work area. Supervisor Brinkley, whose testimony I credit, inquired as to where Freeman obtained the safety poster and tape. Satisfied that the poster had in fact been discarded, Brinkley suggested that Freeman remove the sign and lock it up for fear that someone would take it the follow- ing day, Saturday, in Freeman's absence. Freeman agreed. On Monday, Freeman reaffixed the sign to his toolbox and, admittedly, nothing was said or done by Brinkley thereafter. Admittedly also, Freeman and other employees had prounion stickers on their toolboxes during the entire campaign without question or objection by any supervi- sor. Supervisor Brinkley's actions in this respect do not constitute a violation of the Act. I. The Kennedy Threat In connection with allegations in paragraph 8(d) of the amended complaint, employee Charles Hill testified that, in late November, Supervisor Kennedy told him and fellow employee Harris, Since we had our IUE hats on that we had to watch our breaks and not take but ten minutes, just watch ourselves because they were watching. According to Hill, Kennedy did not say who "they" were, but Hill, on cross-examination, admitted having prior discussions with Kennedy about the length of breaks. Harris was not called to testify. Supervisor Kennedy admitted cautioning Hill and others to hold their breaks to 10 minutes because others were watching. He explained that electricians, by the very nature of their work, do not take their breaks with other employees at the regularly scheduled times. Thus, he testified, other employees would get the impression that electricians were "goofing off" if lengthy breaks were taken at odd hours during the shift. Any reference to "they," Kennedy testified, was to fellow employees and not to management personnel. Hill's testimony on direct was less than candid about the nature and extent of the conversation and it was not until cross-examina- 956 GENERAL ELECTRIC COMPANY tion that it became known that the breaks taken by elec- tricians had been a topic of concern for some time. No violation is established. J. The Parker Threats In connection with allegations in paragraph 8(d) of the amended conplaint, employee Mason testified as to two separate statements by Supervisor Parker alleged to con- stitute threats of more onerous working conditions. The first, according to Mason, occurred during a meeting of employees called by the Company. Parker, who held a piece of paper from which he appeared to be reading, said "if the Union came that his attitude would change . . .and that he would no longer be able to go to bat for the employees." The second, on December 3, occurred at Mason's work station, with Parker saying that "the people that supported the Union openly that they would receive some pressure from their peers, if the IUE lost." Fellow employee Howard corroborated a portion of Mason's testimony concerning the first statement, but contradicted him as to when the statement was made. Supervisor Parker testified that he read a speech to his employees and, during a question-and-answer period which followed, stated that each employee would con- tinue to work for him regardless of his vote; that he did not care how an employee voted; that. in response to a question (probably from Mason) about "going to bat" for employees, the relationship between a supervisor and an hourly employee would be different in the event of a union victory in the sense that grievances would be han- dled under IUE contract procedures; and that both union supporters and antiunion employees would be receiving pressure during the campaign from their peers. The last remark was occasioned by the fact that, early in the campaign, both Howard and Mason had indicated they felt pressured by their fellow employees. I credit Supervisor Parker's version of the statements. He was sincere and his testimony straightforward and convincing. On the other hand, Mason continuously sparred with counsel and his responses clearly were eva- sive. No violations are established. K. The Restriction of Hill In support of paragraph 8(e) of the amended com- plaint, senior electrician Charles Hill testified that, at some time in late September, Supervisor Kennedy re- stricted his work assignments to building 2 for I week because, in Kennedy's words, "personnel felt that [Hill] was an organizer and it was best to keep me in that building." Kennedy denied having restricted Hill in the assign- ment of work or having made such a statement. It is undisputed that Hill, as the ablest electrician on the shift, was assigned the most troublesome maintenance jobs and performed approximately 75 percent of his work in building 1. His testimony as to a 1-week restric- tion to building 2, however, is completely refuted not only by Kennedy's convincing testimony, but also by an analysis of work orders for the months of September and October. These summaries, which I find to be reasonably accurate for purposes of demonstrating patterns of Hill's assignments, reflect that Hill performed work in building I on all but I day during that 2-month period. Hill's testimony in connection with this incident is to- tally lacking in credibility for yet another reason-it is self-contradictory. While having testified briefly on direct examination as to a conversation with Kennedy concerning the reason for his "restriction," Hill, on ex- tended cross-examination, admitted having no such con- versation: Q. You don't recall any conversation as to being assigned to that building for that period of time and the reasons for it? A. No, sir. Having found that Hill was not restricted as alleged, I conclude that no violation has been established. L. The Nichols Threat In connection with the allegations of paragraph 8(f) of the amended complaint, employee Charles Hill testified that, in early October, he and employee Marshall asked Supervisor Nichols why certain individuals from Taiwan had been in the plant the week before. According to Hill, Nichols responded, . . . that with the Union coming in that GE could have these people build our units and move our plant from Durham, if the Union was voted in. Nichols admitted generally having such a conversa- tion, but testified that employees Gill, Hill, and Marshall asked if the Company could move the plant, to which he replied the Company could move it with or without the Union. He also testified that the Chinese delegation was at the plant to inspect generators being built by Respond- ent for them. As indicated earlier, Hill's testimony throughout is found to be lacking in credibility. Marshall did not testify and Gill, who did, was not asked to corroborate Hill's story. I accept Nichols' version and find no threat in the Nichols statement. With Respondent in the business of building generators for foreign customers and with for- eign representatives frequently at the plant for progress inspections, it strains credulity when experienced em- ployees testify that they question the reason behind the presence of foreigners at the plant. No violation is established. M. The Combs No-Distribution Rule Paragraph 8(g) of the amended complaint alleges the unlawful promulgation of a no-solicitation rule. At some time prior to 2:50 p.m. on October 5, employees Glenn, Perry, and Freeman were observed by company security guards distributing union hats in parking lot 2. They were asked by the guards to leave and refused. Personnel Director Combs and Plant Relations Manager Hill ar- rived at the lot at 2:50 p.m. and Combs advised the em- ployees they had no business on company property 40 minutes before the start of the shift; that they were thus considered to be nonemployees; and that a sign posted at the gate prohibited distribution by nonemployees on 957 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company property. Freeman protested, stating that the Company's weekly publication "Headliner" assured em- ployees they could solicit during nonworking hours in nonworking areas. The employees then left and resumed the distribution of hats outside the plant gate. No disciplinary action was taken against any of the employees. It is customary for employees to arrive early for the start of their shift and to congregate either in the parking lots or in the breakroom. There is no evidence that such a practice was either prohibited or discouraged by Re- spondent. Two of the three employees were scheduled to work the second shift that day; the third had completed his shift at 7:30 a.m. Moreover, employees are permitted to park in either parking lot I or 2. Normally, employees like Freeman, Glenn, and Perry, who work in building 2, park in lot 2. There is some credible, albeit vague, evidence of the sale of raffle tickets, scout cookies, and the like on com- pany property by employees. It is not clear whether this activity was engaged in during working hours or with the knowledge of management. In any event, Respond- ent did discipline a supervisor in 1976 for soliciting for a United Fund Campaign during working hours and for conducting a meeting after working hours in the parking lot. Of significance, also, are several facts: One, Freeman admitted that he distributed union material in the parking lots after October 5 and was not prohibited from doing so by Respondent. Two, Glenn admitted that Respond- ent never prohibited the distribution of union material in the breakroom or outside the plant gate. Three, the park- ing lot incident was the only such incident involving an alleged interference with employee distribution for union material. Four, no employee ever was disciplined for dis- tribution of union material during the 3-month campaign. The issue presented, then, is whether a violation is es- tablished where there has occurred early in the campaign a single, momentary interference with employee rights to distribute union literature in nonworking areas during nonworking hours, where that incident has had no de- monstrable chilling effect on the subsequent distribution of literature on company property, where there is no evi- dence that other employees even were aware of the inci- dent, and where no disciplinary action was taken by the Company at any time durig the campaign. I conclude that Respondent did violate Section 8(a)(1) by Combs' oral promulgation and enforcement, on Octo- ber 5, of a nondistribution rule which was contrary to es- tablished company policy, despite the fact that Respond- ent never thereafter enforced the rule. Combs interfered, albeit momentarily, with the rights of union adherents to disseminate identifying material to other employees in a nonworking area and during their nonworking hours. The employees had been assured of such a right by Re- spondent and Combs unilaterally and discriminatorily al- tered that right as to the activities of the three employees on October 5. His actions, which must be judged as of the time of their occurrence for this purpose and not through hindsight, carried with them the threat not only of discipline but also of future enforcement. That neither discipline nor further enforcement of Combs' "rule" oc- curred does not insulate Respondent from liability under Section 8(a)(l) of the Act. N. Loss of Direct Communication With Management Paragraph 8(h) of the amended complaint alleges that, on a number of occasions during the fall of 1979, Plant Manager DiFronzo and other management representa- tives informed employees they would lose direct commu- nication with management in the event the Union were certified. A considerable amount of time and testimony was de- voted to this issue at the hearing. Because the substance of the evidence is largely repetitive and undisputed with only an issue of law remaining, testimony of the many witnesses on this point will not be recounted in detail. What is undisputed is that employees were told that, if the Union won the election and were certified, Respond- ent could no longer apply its "Open Door Policy," but rather would be bound by the grievance-arbitration pro- cedure of the national IUE agreement. Employees were told that, except for the informal first step of the IUE procedure, control of the grievance rests with the Union; that once step I is completed, the Union thereafter is able to drop the grievance or pursue it regardless of the desires of the grievant; and that employees would lose their right under the Company's grievance procedure to pursue their grievances on a one-on-one basis with the plant manager. The Company's grievance procedure is a four-step procedure initiating at the supervisory level and culmi- nating at the plant manager level. The prosecution of the grievance is controlled throughout by the employee. The Company's explanation of the IUE grievance pro- cedure was accurate. Step I provides for the informal discussion of problems between the employee and super- visor, with or without a union representative. Step 2 pro- vides for the filing of a written grievance by a designat- ed union official and Step 3 and Step 4 (arbitration) are invoked only by a union official. While nothing prevents the attendance of the grievant at any step, absolute con- trol of the grievance rests with the Union. Nevertheless, while Respondent correctly stated that, in the event of certification, the Company's grievance procedure necessarily would give way to the IUE proce- dure which embodied the customary concept of union control over the prosecution of grievances, it left the em- ployees with the clear impression that employees also would lose use of the Company's "Open Door Policy." This policy, described in the employee handbook, affords an avenue of communication separate and apart from the prosecution of grievances. Indeed, it is treated separately in the handbook. It encompasses employee "questions, ideas, and any complaints you may have." It provides for communication through roundtable meetings, state-of- business meetings, and surveys and affords an opportuni- ty to discuss problems and concerns directly with the plant manager or any manager at any time. Throughout the hearing, witnesses-and frequently counsel themselves-used the terms "grievance proce- dure" and "open door policy" interchangeably even when discussing grievance handling. Only DiFronzo was 958 GENERAL ELECTRIC COMPANY careful to articulate the difference ("in matters relating to the union contract"). Even then his distinction was bound to go unnoticed by rank-and-file employees who were exposed throughout the campaign to the explana- tions of less articulate company representatives. And even then his distinction may not be entirely accurate, in light of the open-door policy's application to "any com- plaints." The resulting confusion, apparently unintention- al on the part of Respondent, nevertheless implied, un- lawfully, that its employees would lose all direct con- munication with supervisors and other management rep- resentatives if they selected the Union as their bargaining representative. The fact is that the IUE grievance-arbi- tration procedure would not automatically supplant-en- tirely, that is-the Company's present open-door policy permitting and encouraging direct communication be- tween management and individual employees. These statements-that selection of the Union would mean loss of direct communication with management on subjects not encompassed by the IUE grievance proce- dure-constitute both an unlawful threat under Section 8(a)(1) of the Act and an objectionable misrepresentation of Section 9(a) rights. Robbins & Myers, Inc., 241 NLRB 102 (1979). O. The DiFronzo Promises of Benefits Paragraph 8(j) of the amended complaint alleges that, on separate occasions in November and early December 1979, Plant Manager DiFronzo promised Respondent's employees improved working conditions or benefits if they rejected the Union. The first occurred in early November during a depart- ment meeting conducted by Superintendent Parker and attended by DiFronzo. In response to an employee ques- tion concerning an alleged denial of a job to a senior qualified bidding employee, DiFronzo stated that, if it were determined that the employee were wrongfully denied the job, he had the power to create a job for that employee if the position had already been filled. Di- Fronzo admitted giving essentially that response to what he characterized as a hypothetical question-"that a po- tential remedy would be to move the grieved employee to a job that he had been denied" and to create a new position if it were already filled. DiFronzo's statement does not, either as a matter of fact or law, constitute a promise of benefits in exchange for a favorable election day vote. The statement was a fair management response to an employee question concerning a hypothetical grievance over jobbidding. There is nothing in this record to indicate that DiFronzo's response marks a de- parture from prior company policy. The second incident occurred during a November 29 meeting of department employees. According to the tes- timony of Glenn, DiFronzo asked the employees to "give him another chance to work things out." The wit- ness was particularly vague in his testimony and unable to recall anything else about the remarks of DiFronzo. Closely related to this incident is the third occurrence, a December 4 department meeting of employees at which DiFronzo spoke. Employee Glenn testified only that DiFronzo spoke about abandonment of the Compa- ny's "Open-Door Policy" in event of a union certifica- tion. Employee Mason testified that DiFronzo asked for another chance to improve employee-management rela- tions and that DiFronzo spoke from a podium. Mason, however, was unable to recall whether DiFronzo was reading from notes. Employee Allen testified that Di- Fronzo pleaded with the employees to vote no in the election; that DiFronzo said he would try to resolve em- ployee problems; that DiFronzo said he was going to read a prepared statement; that he did not recall if Di- Fronzo was in fact reading from a prepared text; and that it was a long speech, but he "caught" only a few things from it. Employee Howard remembered only Di- Fronzo's request that he be given "another chance," but testified that DiFronzo had index cards in his hand at the time. And, finally, employees Hill and Freeman testified that DiFronzo read from a prepared text. DiFronzo, whose clear and convincing testimony I credit rather than the vague and contradictory testimony of those employees who attended the meeting but appar- ently did not listen to the speech, testified that he gave two speeches to assembled employees shortly prior to the election. The first speech was delivered to all em- ployees in several sessions in late November (referred to in this part as "second occurrence"), by way of introduc- ing another official who was to address the employees about the Union's national agreement. The speech, read essentially verbatim, contains no request that the employ- ees give DiFronzo another chance 2 and DiFronzo denied making any such statement in the question-and- answer period that followed. The second speech (re- ferred to herein as "third occurrence") was delivered to all employees on December 4 in several sessions. The speech, delivered verbatim on advice of counsel, contains no statement requesting another chance to improve rela- tions,3 but does conclude with "I ask you then to please, please vote no." The violations alleged in paragraph 8(j) of the amend- ed complaint are not established. P. The Von Cannon Threat One of the three objections raised by Petitioner in- volves an incident which occurred in November 1979 during the course of a department meeting conducted by Supervisor Von Cannon. As testified to by employee Druhl, another employee asked Von Cannon whether, under the Union's national contract, an employee who ran out of work during the shift would be sent home. Von Cannon replied in the affirmative. The current IUE contract provides for reporting pay in the event work is not available and for "every effort" to be made by the Company before sending an employee home. Of course, there is no way of knowing what pro- visions would be contained in the contract which might ultimately be applicable. Accordingly, under the circum- 2 There is no allegation that the speech contains any offending state- ment and, indeed, the speech was offered by Respondent during its case. It is interesting to note that the speech was written and intended for de- livery by Employee Relations Manager Combs, whose sudden illness forced DiFronzo to deliver the speech. It is unlikely that Combs would have asked the employees to give him another chance. 3 Again, there is no allegation that the speech as written contained of- fending language 959 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances here, Von Cannon's reply does not constitute a threat or statement of more onerous working conditions in the event the Union were certified. The objection is overruled. Q. The Petrides Solicitation Another of the objections concerns the alleged solici- tation of grievances during the course of a department meeting conducted by Building Manager Petrides in mid- November 1979. According to the testimony of employ- ee Freeman, Petrides asked the employees if they had "any particular problems" and "wanted to know what were some of our particular problems." Several employ- ee complaints were then voiced. Petrides did not testify. An employer inquiry as to employee complaints is im- permissible during an organizational campaign only where accompanied by promises, express or implied, to remedy them. No such evidence was offered and, like the Regional Director, I overrule the objection. R. The Bagley Solicitation The last of the objections involves an alleged solicita- tion of grievances during a department meeting conduct- ed by Bagley, a management representative. According to the testimony of employee Freeman, Bagley explained the Company's present "open-door" grievance procedure which permits an employee to take a grievance initially to a supervisor and eventually to the plant manager. Bagley did not testify. This explanation of the Company's grievance proce- dure, considered even in the broad context of Respond- ent's conduct during the organizational drive, does not, as a matter of fact, constitute a solicitation of grievances and does not, as a matter of law, amount to unlawful conduct. The objection is overruled. I conclude that each of the unfair labor practices found herein affects commerce within the meaning of Section 2(6) and (7) of the Act. IV. EFFECT OF CONDUCT UPON THE El.ECTION Board precedent is now clear that, except for isolated violations having a de minimis impact, conduct violative of Section 8(a)(1) of the Act necessarily interferes with the conduct of a free election, Dal-Tex Optical Co., 137 NLRB 1782 (1962). Here, all but one violation fairly can be characterized as isolated and having no demonstrable impact on the election save a minimal one. The Carrington/Piper inci- dent involved two first-line supervisors and two bargain- ing unit employes. Byham likewise was a low-level su- pervisor and that incident, occurring more than 1 month prior to the election, similarly involved only 2 of the 365 bargaining unit employees. The Acosta incident, 2 weeks before the election, involved a personal matter between this low-level supervisor and a single employee. And, as noted earlier, the parking lot incident involved only three employees, occurred early in the campaign, was isolated, and had no effect whatever on subsequent wide- spread distribution of union literature and material on company property by those and other employees. One violation, however-that involving loss of direct communication with management under Respondent's open-door policy-was pervasive. It was directed, re- peatedly, to the entire bargaining unit by top manage- ment representatives. While employee testimony tended to belittle its importance and effectiveness on the plant floor, the open-door policy clearly is viewed by Re- spondent as a key right among the bundle of rights ex- tended to its employees at the Durham plant. There is a high degree of likelihood that this unlawful threat did in fact interfere with the employees' freedom of choice in the December 6, 1979, election. In any event, it is clear as a matter of law that it would reason- ably tend to impact itself on the result of that election, lopsided as it was. Accordingly, the December 6. 1979, election must be set aside and a new one directed. V. THE REMEIY Having concluded that Respondent has violated Sec- tion 8(a)(1) of the Act, Respondent shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having further concluded that the election of Decem- ber 6, 1979, must be set aside, Case II -RC-4781 shall be remanded to the Regional Director for the conduct of a new election. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, General Electric Company, Durham, North Carolina, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union sentiments. (b) Promising employees improved working conditions if they rejected the Union as their bargaining representa- tive. (c) Threatening employees with more onerous work- ing conditions in the event the Union becomes their bar- gaining representative. (d) Soliciting employees to inform how they voted. (e) Promulgating an oral no-distribution rule prohibit- ing employees from solicitation and distribution of union literature and material in nonwork areas during non- working hours, contrary to existing written policy. (f) Threatening employees with the loss of direct com- munication with management in matters not subject to the grievance-arbitration provisions of the IUE-GE na- tional contract, in the event the Union becomes their bargaining representative. 4 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 find- ings, 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 960 GENERAL ELECTRIC COMPANY (g) Interfering with, restraining, or coercing employees in the exercise of their Section 7 rights in any like or re- lated manner. 2. Post at its Durham, North Carolina, location copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by other material. IT IS FURTHER ORDERED AND DIRECTED that the De- cember 6, 1979, election be, and the same hereby is, set aside and that Case 1l-RC-4781 be, and the same hereby is, remanded to the Regional Director for Region I I to conduct a new election at such time as he deems that cir- cumstances will permit employees to exercise their free choice regarding selection of a bargaining representative. 5 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPI OYE:S POSTED BY ORDI-R OF THL NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, it has been found that we violated the National Labor Relations Act in the following re- spects and we have been ordered to post this notice. WE WIt1 NOT interrogate employees about their union sentiments. WE Wit I. NOT promise employees improved working conditions if they reject the Union as their bargaining representative. WE WILL Nor threaten employees with more onerous working conditions in the event the Union becomes their bargaining representative. WE WILL NOT solicit employees to inform how they vote. WE WILL NOT promulgate an oral no-distribution rule prohibiting employees from soliciting and dis- tributing union literature and material in nonwork areas during nonworking hours, contrary to existing written policy. WE WiI.t NOT threaten employees with the loss of direct communication with management in mat- ters not subject to the grievance-arbitration provi- sions of the IUE-GE national contract, in the event the Union becomes their bargaining representative. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their Section 7 rights in any like or related manner. GENERAL El ECTRIC COMPANY 961