Fairleigh Dickinson University

FAIRLEIGH DICKINSON UNIVERSITY Fairleigh Dickinson University and Jacqueline Sto- vail. Case 22-CA-8863 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 30, 1980, Administrative Law Judge Edwin H. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Re- spondent filed a brief in opposition to the General Counsel's exceptions. 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 only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent did not discriminate against employees by threatening them with reprisals and declaring them ineligible to serve on certain campus committees because he agreed with Respondent's contention that it had done no more than "disencumber itself of involvement with a dominated labor organiza- tion at a time when an organizing campaign by a 'legitimate' outside labor organization was in prog- ress." The General Counsel excepts to the Admin- istrative Law Judge's failure to find that, by its ac- tions, Respondent unlawfully discriminated against employees in violation of Section 8(a)(1) and (3) of the Act. For the reasons set forth below, we find merit in the General Counsel's exceptions. The Teaneck-Hackensack Supportive Staff Asso- ciation (Association) has been the representative body of Respondent's nonprofessional employees for more than 10 years. It represents 250-275 em- ployees, about 135 of whom paid dues of $1 per year. The Association was created by Respondent and represents the nonprofessional staff with re- spect to such matters as salaries, job security, phys- ical working conditions, and grievances. At an As- ' In the absence of exceptions we adopt pro forma the Administrative Law Judge's Order dismissing the complaint's allegation of unlawful in- terrogation. We note, however, that the Administrative Law Judge ap- plied a subjective test to the alleged interrogation. The test for interroga- tion is not subjective. "It is well settled that the test of interference, re- straint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may rea- sonably he said, tends to interfre with the free exercise of employee rights under the Act." American Freighrways Co., Inc., 124 NLRB 146, 147 (1959) sociation meeting in late September 1977, unioniza- tion was discussed and a committee was formed "to explore the possibility of obtaining representa- tion from an outside labor organization," including Local 153. In February 1978 Local 153 informed Dr. Bieber, the University's provost, that it repre- sented certain of Respondent's employees. The unionization committee continued to meet with Local 153 and on September 5, 1978, a letter was sent to the nonprofessional staff at the Rutherford and Madison campuses. The letter, which was signed by the "Teaneck/Hackensack Staff Associ- ation Fairleigh Dickinson University," enumerated the needs and concerns of the nonprofessional staff at the Teaneck-Hackensack campus. The letter re- quested the recipient to sign an enclosed authoriza- tion card for Local 153. A copy of the letter was obtained by University Provost Samuel Bieber. In response to the letter, Bieber summoned to his office Jacqueline Stovall, president of the Associ- ation, and four employee members of the Associ- ation. Referring to the Local 153 letter, Bieber in- formed the five employees that, because they were now in a "unionization posture," the Association could no longer send delegates to the University Senate, Campus Council, or Traffic Court. Bieber explained that he still wanted the nonprofessional staff to be represented on these university bodies and that he would convene the staff to arrange for their representation. Later, on September 11, 1978, Bieber sent a memo to Stovall. In the memo Bieber advised Stovall that, due to its issuance of the Local 153 organizing letter, the Association was "no longer recognized as representative of the non- exempt staff for purposes of Campus and Universi- ty Governance" and that it could no longer "con- vene meeting/functions, at anytime, on this campus or elsewhere on University premises." Further, the memo stated that the Association could no longer send representatives to the University Senate, or Council, and that elections for new representatives of the nonprofessional staff would soon be held. The memo also stated that the University recog- nized the rights of employees to engage in activi- ties on their own behalf, but did not recognize the use of "agencies of internal governance for activi- ties inappropriate to their charge." The Administrative Law Judge reasoned that the issue here was whether Respondent's conduct could reasonably be said to have a tendency to in- terfere with employee rights. The Administrative Law Judge found that Respondent took no action against employees, individually or as a group, other than in their Association capacity. Relying on his previous finding that the Association was a domi- nated labor organization, the Administrative Law 264 NLRB No. 98 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judge found that Respondent's conduct was aimed at preventing activity condemned by the Act, rather than at any protected activity. Thus, Re- spondent, by withdrawing its "recognition" of the Association, a dominated labor organization, was doing what the Act required. Further, reasoned the Administrative Law Judge, the withdrawal of the Association's privilege to send representatives to University governance bodies was also required by the Act. These bodies dealt with matters including salaries and allocations of benefits. The Administra- tive Law Judge stated that"[flor the Respondent to permit representatives of a dominated labor organi- zation to participate in such deliberations serves to aggravate a situation already injurious to employee rights . . . discontinuance of such practice could not, as a matter of law, be viewed as an unfair labor practice." In further support of his position, the Administrative Law Judge pointed to the fact that Respondent took steps to assure that the non- professional staff would have continued "represen- tation" on the University governance bodies. The Administrative Judge found, therefore, that Re- spondent did not violate Section 8(a)(1) or (3) of the Act. Contrary to the Administrative Law Judge, we do not find that Respondent took the actions it did in order to "disencumber itself of involvement with a dominated labor organization." Rather, we find that Respondent took the actions it did because its employees engaged in protected concerted activi- ties, activities which the Respondent sought to dis- courage by retaliating against the Association and its members. In reaching this conclusion we note the follow- ing facts: First, the Association had existed for more than 10 years at the time Respondent "dises- tablished" it. The Association's character did not change during that period. If it was a dominated labor organization now, it was also a dominated labor organization 10 years ago. Yet Respondent did nothing during that 10-year period to disestab- lish this "dominated labor organization." In fact, it was not until it appeared that the employees were seeking representation by an independent union that Respondent took any action. Further, though Respondent's correspondence was addressed to the Association, its actions were against employees. It was the employees who were seeking representation from an outside labor orga- nization and Respondent sought to reach the em- ployees through the Association. It was the em- ployees who lost their ability to be represented by individuals of their own choosing on campus gov- ernance bodies and lost their right to convene meetings and functions on University premises. Re- spondent attempted to provide a substitute organi- zation that would continue to provide the non- professional staff with representation by forming an ad hoc committee to deal with problems relating to salary, working conditions, etc., and selecting em- ployees to serve as delegates to campus governance bodies. Yet, if Respondent contends that the reason for its actions was to "disencumber itself" from a dominated labor organization, it did not do so by establishing at the same time a new "dominated labor organization" to take the place of the one that had displeased it by seeking out a union affili- ation. Further, this case does not present an issue of whether the Association is a dominated labor orga- nization. Rather, the issue before us is whether Re- spondent retaliated against its employees because of their concerted, protected activity. We find that Respondent may not exculpate itself for its viola- tions of the Act on the ground that its conduct was an attempt to "cure" an established pattern of con- duct violative of the Act. We find, therefore, that Respondent violated Section 8(a)(1) and (3) of the Act by threatening its employees with reprisals and discriminating against Stovall and other employees by declaring them in- eligible to serve on certain University governance bodies, and we shall order that Respondent cease and desist therefrom. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Fairleigh Dickinson University, Rutherford, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals for en- gaging in union activities on behalf of Local 153, Office and Professional Employees International Union, AFL-CIO, or any other union. (b) Discriminating against Jacqueline Stovall and other employees by declaring them ineligible to serve on committees of campus governance be- 2 Our dissenting colleague mistakenly treats this case as involving, simply, the disestablishment of a dominated union. Hov.ever, Respondent did not stop with the disestablishment of the Association but took other actions in response to the employees' union organizing activities that im- pacted directly on the employees. Thus, Respondent established or substi- tuted an organization in place of the Association by forming the ad hoc committee to carry out certain functions previously performed by the As- sociation. In addition, Respondent discriminated against employees by de- claring them ineligible to serve in certain positions Such retalitory ac- tions are established by the evidence credited by the Administrative Lasw Judge. They are not, contrary to our dissenting colleague, predicated on overturned credibility findings In sum. the case described by our dissent- ing colleague is not the case presented to us on this record. 726 FAIRLEIGH DICKINSON UNIVERSITY cause of their activities on behalf of Local 153, Office and Professional Employees International Union, AFL-CIO, or any other union. (c) In any like or related manner interfering with, restraining, or coercing our employees in the exercise of the rights guaranteed them under Sec- tion 7 of the National Labor Relations Act, as amended. 2. Take the following affiramtive action: (a) Post at its campus in Teaneck-Hackensack, New Jersey, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms pro- vided by the Regional Director for Region 22, after being duly signed by its 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 Re- spondent to ensure that copies of said notices are not altered, defaced, or covered by any other mate- rial. (b) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. MEMBER ZIMMERMAN, dissenting: This case presents the unusual situation of an em- ployer that assists and dominates an organization of its employees, and then is faced with an attempt by its employees to create a labor organization free from the employer's domination. My colleagues in the majority find that in disestablishing the organi- zation that the employer has impermissibly assisted and dominated, it commits a violation of the Act. I cannot join in such a folly. The Administrative Law Judge accurately and correctly analyzed the situation in his Decision dismissing the complaint. I would adopt that Decision. My colleagues suggest that, in disestablishing the Association, Respondent was acting against its em- ployees. But they do not point to a shred of evi- dence suggesting the illegal motive they impute to Respondent. In so doing, they reverse, sub silentio, the Administrative Law Judge's determination to credit Respondent's justification for its action in direct derogation of our oft-quoted rule that "It is the Board's established policy not to overrule an 3 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." administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the reso- lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951)." Here they cannot point to any evi- dence, no less a "clear preponderance," to support their thesis. Nor is there any evidence to support the majority's finding that Respondent, in acting against the Association, intended to act against its employees in retaliation for their seeking outside representation. Since I cannot join my colleagues in their speculations, I dissent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT threaten employees with re- prisals for engaging in union activities on behalf of Local 153, Office and Professional Employees International Union, AFL-CIO, or any other Union. WE WILL NOT discriminate against Jacque- line Stovall and other employees by declaring them ineligible to serve on campus governance committees because of their activities on behalf of Local 153, Office and Professional Employ- ees International Union, AFL-CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them under Section 7 of the National Labor Rela- tions Act, as amended. FAIRLEIGH DICKINSON UNIVERSITY DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge: The charge in this proceeding was filed on November 24, 1978, by Jacqueline Stovall, an individual, herein re- ferred to as Stovall. A hearing was conducted in Newark, New Jersey, on October 15 and 16. 1979, upon a complaint which had issued on January 30, 1979. It is alleged that Respondent engaged in various violations of Section 8(a)(1) and (3) of the Act by punishing its em- 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees for their having engaged in union activities on behalf of Local 153, Office and Professional Employees International Union, AFL-CIO, herein called Local 153. Specifically, the complaint alleges that Respondent threatened employees with reprisals, interrogated them with respect to their activities for Local 153, and dis- criminated against Stovall and others by declaring them ineligible to serve on certain committees maintained by Respondent. A determination of these issues turn's on whether or not Respondent violated the Act by with- drawing privileges from, and taking certain actions di- rected towards, the Teaneck/Hackensack Supportive Staff Association, herein called the Association. Respondent either admits, or does not seriously dis- pute, most of the facts necessary for resolution of the principal issue in this case, and substantial evidence con- sists of Respondent's documents. However, Respondent does deny that it violated the Act in any manner and de- fends actions on the grounds that they were not designed to interfere with employee activity for Local 153, but rather were necessary in order to divorce itself from fur- ther assisting the Association which it considered, albeit belatedly, an assisted or dominated labor organization. On the entire record, including my observation of the demeanor of the witness (only Stovall testified), and after due consideration of oral argument and briefs filed by the General Counsel and Respondent, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Respondent is an independent nonprofit university op- erating under a charter from the State of New Jersey. It maintains its main educational facilities in Rutherford, New Jersey, herein called the Rutherford campus and other campuses located in Madison, New Jersey, and Teaneck, New Jersey, referred to as the Teaneck/Hackensack campus. Respondent has annual gross revenues in excess of $1 million of which in excess of $50,000 is derived from sources located outside the State of New Jersey. Respondent admits, and I find, that it is an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, and Respondent admits, that Local 153 is a labor organization within the meaning of Section 2(5) of the Act. The complaint also alleges that the Association is a labor organization within the mean- ing of Section 2(5) of the Act. In its answer, Respondent denied this allegation. However, during the course of the hearing Respondent reluctantly acknowledged that the Association was a labor organization as defined in the Act, but asserted that it had been dominated by Re- spondent for some period of time. In its brief, Respond- ent removed all doubt regarding its position and conced- ed flatly that the Association had been an unlawfully dominated labor organization. The threshold issue in this case then is the status of the Association because such determination is pivotal to Respondent's defense and, as I view the case, to the General Counsel's allegations as well. The charge as filed by Stovall alleges, inter alia, that the Association was a dominated labor organization. On January 30, 1979, the same date that the complaint herein issued, the Regional Director for Region 22 approved Stovall's request to withdraw that allegation of the charge. Why Stovall, the president of the Association, chose that course of action is nowhere explained in this record, but considerable evidence (testimonial and docu- mentary) nonetheless was elicited on the matter.' The Association has existed for about 10 years on the Teaneck/Hackensack campus 2 as the representative body for approximately 250 to 275 nonprofessional em- ployees such as clerical and technical workers, of which number about 135 paid $1 a year in dues. While all were eligible to participate at meetings, only those who paid dues were allowed to vote, a procedure objected to by the University's provost, Samuel Bieber. 3 The Associ- ation was conceived and created by Respondent as a sanctioned organization functioning within the system of University governance. In that capacity it served to act as a liaison between the nonprofessional staff and Re- spondent with respect to matters of mutual concern such as salaries, job security, physical working conditions, and grievances. Officials of the Association met on a continu- ing basis with Respondent's representative, primarily the provost, to discuss specific problems in the foregoing areas and generally to air their respective positions re- garding terms and conditions of employment affecting the nonprofessional staff as a whole. The Association had an executive committee consist- ing of a president, vice president, secretary, recording secretary, full-time staff representative, a part-time repre- sentative, and the former president serving ex officio. Also serving ex officio on the executive committee, which according to Stovall was responsible for the Asso- ciation's day-to-day administration, was the University's provost (Bieber) who also was a member of the Associ- ation entitled to attend all meetings. Although the Association had a constitution and bylaws these were subject to approval by Respondent in the person of the provost who had not granted such ap- proval to the most recent version. It appears this may have been because of the requirement that voting rights had been limited to those who paid dues but the record is not clear in this regard. It is clear, however, that Bieber informed Stovall, who became president of the Association in the spring of 1977, of his displeasure con- cerning the dues matter. Respondent, acting through the provost, also had the power to control the very existence of the Association. Thus, he could suspend its ability to function by denying the use of University facilities such as meeting space, office supplies, and paid time to con- duct Association business. These services were vital to The General Counsel's position that the absence of an 8(a)(2) allega- tion in the complaint precludes consideration of the issue is without merit. 2 Parallel groups exist on the other campus, but their status is not in issue here. 3 An admitted supervisor at the highest level of management 728 FAIRLEIGH DICKINSON UNIVERSITY the Association which had no resources of its own aside from the small amount collected in dues.4 He also could suggest the order of business for discussion at Associ- ation meetings and could go so far as to convene meet- ings if he so desired. In addition, he had the supervisory staff encourage rank-and-file attendance at Association meetings. Further, Respondent permitted the employees to attend Association meetings during working time. Not only did Respondent retain and exercise the powers enumerated above, but the Association, through its most recent president, Stovall, fully recognized and acknowledged the provost's authorities in the areas spec- ified. This relationship graphically is illustrated by an episode involving Stovall and Bieber which occurred in late 1977. According to Stovall she had become annoyed at Bieber because he had discussed grievances with a member of the Association's grievance committee beyond what Stovall believed to be that person's scope of authority.5 As a result, on December 2, 1977, Stovall sent a memo to Bieber requesting that lines of communi- cation between them be formalized, and that the provost address all requests for meetings to her as president of the Association. Stovall testified that her memo had ab- solutely no relationship to any union activity and was in- tended only to achieve recognition of Stovall's authority as president. Bieber responded by a memo to Stovall recounting for her benefit the relationship of the Association to the Uni- versity. He reminded her that the Association was sanc- tioned by the University and had certain governance re- sponsibilities to fulfill. He noted that its existence was somewhat informal in that the provost's office always had encouraged staff participation and to that end had provided facilities and time for meetings. He took issue with Stovall's request for formalized communication which he viewed as a demand for some form of formal recognition. He further informed Stovall that his right to meet with any member of the Association, or of the non- professional staff, did not require prior approval from any individual or group. In sum, Bieber considered Sto- vall's memo as reflecting a desire to change the nature and purpose of the Association. In consequence, Bieber simply disbanded the Association and in the memo he told Stovall that the Association no longer would be per- mitted to hold meetings or functions at any time any- where on the campus premises, but he did invite further discussion about the matter. Stovall responded by memo dated January 25, 1978, in which she apologized for the use of the word "formal- ized" and explained that her intention was merely to keep open the channels of communications. She further told Bieber that as an ex officio member of the Associ- ation he always was "welcome to attend our meetings." Stovall followed that memo with another one on April 7, 1978, again reiterating her position that she had no intent to change the relationship of the Association to the Uni- versity. As a result of Stovall's explanations, Bieber on April 26, 1978, sent a letter to Stovall accepting her 4 How the dues were used is not clear but it appears the moneys may have gone for social purposes such as goods and welfare. 5 Although the specific grievance involved a problem of heat in an office, Stovall learned that other matters also had been discussed. clarification of the December 2, 1977, memo. Bieber re- instated the Association as the representative body for the nonprofessional staff at the Teaneck/Hackensack campus and he removed the constraints on the Associ- ation's activities which previously he had instituted. In addition to its role as a voice for the nonprofes- sional staff with respect to working conditions, the Asso- ciation also functioned directly in the University gover- nance by sending a representative to the University senate and two representatives each to the campus coun- cil and the traffic court. These latter two bodies dealt with problems arising on the Teaneck/Hackensack campus, while the senate, a universitywide body meeting about six times a year, dealt with basic policy questions regarding the direction of the entire University in mat- ters regarding curriculum and the use of its resources. The senate consists of 60 to 70 persons representing the faculty, the students, and the staff. The nonprofessional staff representative is the president of the Association, who at times relevant to this proceeding was Stovall. She also served as the senate secretary. Conclusions Regarding the Association The foregoing description of the Association's struc- ture and operations presents a classic example of a domi- nated labor organization. Respondent not only created the Association but also controlled its very existence, as witnessed by Bieber's actions in suspending its right to function as a University organization in response to the Association's violation of its charter which Respondent itself had promulgated. This action by the provost, the very individual charged by the General Counsel as being the architect of the unfair labor practices alleged in the complaint, demonstrates the involvement of Respondent, at its highest level, in the internal affairs and workings of the Association.a If that was not enough, it was the pro- vost who had the authority to influence the agenda of Association meetings which he could call and attend (general membership as well as executive board meet- ings), and then act as Respondent's representative in col- lective bargaining with the Association. Such conflict of interest long has been recognized as unlawful under the Act. Nassau and Suffolk Contractors' Association, Inc., and its Members, 118 NLRB 174 (1957). The total picture that emerges is one of complete dominance by Respondent over the Association. Thus, the Association was totally dependent upon Respondent for facilities, supplies, and meeting space. It had no finan- cial resources aside from an insignificant amount collect- ed in dues (a token dollar per year) from about half of the employees represented by it. All Association business was conducted on paid working time. The constitution and bylaws were subject to Respondent's approval. These conditions, under the other circumstances de- scribed above, lead to no other conclusion but that Re- spondent's financial and other support of the Association made it a dominated labor organization. Holland Manu- facturing Company, 129 NLRB 776, 784-785 (1960). The I As discussed below, it is Respondent's conduct in dissolving the As- sociation a second time that forms the basis for the violation alleged in the complaint. 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner in which "collective bargaining" was conducted, Respondent's inherent and unfettered power to define the scope and limits of such bargaining, the lack of a true collective-bargaining contract, Stovall's apology to Re- spondent for raising an issue concerning the internal af- fairs of the Association, all are factors which further es- tablish that the Association is the quintessence of a domi- nated labor organization. N.L.R.B. v. Cabot Carbon Company, 360 U.S. 203 (1959). In sum, I conclude that the Association had no inde- pendent existence and, if the appropriate charge had not been withdrawn and a complaint had issued, an 8(a)(2) violation would have been found. Northeastern University, 235 NLRB 858 (1978), where an 8(a)(2) domination vio- lation was found with respect to an employee organiza- tion in a university setting, the weekly staff cabinet, which existed in much the same manner as the Associ- ation. Accord: Stephens Institute, d/b/a Academy of Art College, 241 NLRB 454 (1979). III. ALLEGED UNFAIR LABOR PRACTICES A. Local 153's Organizing Campaign In the later part of September 1977, at an Association meeting, the question of unionization was discussed and a committee of 14 was formed to explore the possibility of obtaining representation by an outside labor organization. Thereafter, the committee considered a number of possi- bilities and met with officials of various unions including Local 153. In February 1978, Local 153 sent a letter to Bieber stating that it represented certain of Respondent's employees who, Respondent was warned, were engaged in statutorily protected activities. A copy of the letter was sent to the Association and was so noted thereon. The unionization committee continued meeting with Local 153 and, as part of the organizing campaign, a letter was sent to the nonprofessional staff at the Ruther- ford and Madison campuses on September 5, 1978. The letter listed the concerns of the nonprofessional staff at the Teaneck/Hackensack campus and enumerated certain areas where it was felt greater benefits could be had through unionization. It closed with a plea that the re- cipient sign a Local 153 authorization card which was enclosed with the letter. The letter was signed by the "Teaneck/Hackensack Staff Association Fairleigh Dick- inson University" but did not bear the name of any indi- vidual employee. Stovall testified that, although the unionization committee had prepared the letter, it was supposed to have been sent over the name of Local 153 whose personnel had done the actual mailing. According to Stovall, the use of the Association's name was an error. However, the letter was sent in an envelope bear- ing the return address of Local 153. A copy of that letter came into the hands of Bieber. On June 25, 1979, Local 153 filed a petition in Case 22-RC-7031 seeking an elec- tion in a universitywide unit of nonprofessional employ- ees. At the hearing on the petition, Local 29 of the Retail Workers intervened.7 7 Respondent's brief advises that an election was conducted on No- vember 16, 1979. B. Bieber's Reaction to the Local 153 Letter Shortly after receiving a copy of the September 1978 letter Bieber summoned to his office Stovall and the four employee members of the Association who were the del- egates to the traffic court and campus council. Bieber re- ferred to the aforesaid campaign letter for Local 153 and told the five employees that because the Association now was in a "unionization posture" they could no longer serve as delegates to the three University bodies. He also told Stovall that the Association's conduct in this regard was contrary to the earlier understanding reached be- tween them referring to Stovall's written assurances in January and April 1978 that the relationship between the University and Association would not be changed, and that she had broken her promises in this regard. Bieber also told the group that forthwith he was revoking the Association's privileges to send delegates to the three University institutions. However, he explained that he wanted the nonprofessional staff as such to have contin- ued representation and therefore he would convene the staff to arrange for such representation and to advise them of his action in declaring the Association delegates ineligible. Stovall's testimony (Bieber did not testify) indicates that the conversation was carried on mainly between Bieber and herself until the other employees present ex- pressed surprise and bewilderment at Bieber's references to the Local 153 letter which they obviously had not seen, and they asked to see it.8 Bieber's response was to exhibit the letter and envelope and state: "I don't know who wrote it. Do you know who wrote it? Your presi- dent knows who wrote it." Stovall brought the meeting to an end at that point by stating: "I did not come here to discuss that. I asked him if that's all he had to say to us. Was that the only issue? Was that the reason why?" (apparently referring to the Local 153 letter as the reason for the meeting). When Bieber replied yes, Stovall and the other members of the Association left the office. 9 Bieber followed this meeting with a memo to Stovall dated September 11, 1978, which substantially reiterated his comments at the aforesaid meeting. The memo stated that the Association, by issuing the Local 153 organizing letter, had taken a position contrary to Stovall's commit- ment of April 7, 1978, and contrary to the terms upon which the Association had been reinstated as the repre- sentative organization for the nonprofessional employees at that time. Bieber advised that as a consequence of that action the Association is "no longer recognized as repre- sentative of the non-exempt staff for purposes of Campus and University governance. The Association may not convene meeting/functions, at anytime, on this campus or elsewhere on University premises." He stated further that the delegates to the University senate and council selected by the Association no longer would be eligible to participate in those bodies, but that elections for new delegates from among the nonprofessional staff would be s Stovall testified that the unionization committee's decision to have the letter sent was not made known to the other members of fhe Associ- ation. D The foregoing is alleged as unlawfull interrogation. 730 FAIRLEIGH DICKINSON UNIVERSITY held shortly. The memo also stated that Respondent rec- ognized the rights of its employees to engage in activities on their own behalf but did not recognize the use of "agencies of internal governance for activities inappro- priate to their charge." On September 21, Bieber sent a copy of his September 11 memo to the entire nonprofes- sional staff at all three campuses. ' On September 27, 1978, Stovall appeared at an execu- tive board meeting of the University senate (as secretary to the senate she normally attended such meetings) held in the office of Dr. Pollack, the University president. Pollack referred to Bieber's September 21 memo and told her she was not eligible to participate in the meet- ing. At the suggestion of a Professor Kruse, president of the senate, however, Stovall was permitted to remain throughout the meeting as an observer. Because of her disqualification, Stovall absented herself from a senate meeting on October 4. In early October, Bieber conduct- ed a meeting with the nonprofessional staff at which the Association was voted out of existence as a University organization. However, Stovall and other employees (the exact number does not appear in the record) have contin- ued the form of the Association as a non-University or- ganization meeting off campus. Having taken measures to disband the Association and to sever its connection with the University, Respondent thereafter undertook action to form a substitute organiza- tion in order to provide continued representation by the nonprofessional staff on the University senate and its other committees. Between September 25 and the end of October 1978, a number of memos were sent by the pro- vost to the employees announcing the holding of meet- ings for the purpose of electing new representatives and to prepare an agenda for discussion. At the same Octo- ber meeting at which the Association was dissolved, a new group was formed which was designated the ad hoc committee. A meeting was held by that group with the provost on November 7, 1978, at which problems relat- ing to salary, working conditions, and job reclassifica- tions were discussed, apparently in much the same manner as the provost formerly had met with the Associ- ation. " According to Stovall, however, the ad hoc com- mittee never mushroomed into a full-blown organization in the same manner as the Association and no additional meetings were conducted. In addition to forming the ad hoc committee at the Oc- tober 1978 employee meeting, Respondent (Bieber) se- lected employees from the nonprofessional staff to serve as delegates to the senate, the traffic court, and the campus council. Although Stovall was not present she was chosen as the representative to the senate and indeed 'o The complaint alleges that by Bieber's comments at the meeting and by these two memos Respondent violated Sec. 8(aX)(l) by: threatening re- prisals for union activity; withdrawing recognition from the Association as the representative of the nonprofessional staff because of activities for Local 153; and prohibiting employees (the Association) from engaging in protected activities; i.e., conducting meetings at any time, anywhere on its premises. Sec. 8(aX3) of the Act is alleged to have been violated by barring the Association's representatives from further participation in the University senate and other of its committees. II Bieber, who by this time had assumed greater responsibilities within the University, attended along with his replacement as provost. Harriet Spagnoli. all of the individuals who had served as delegates to the other groups were requested to continue in the same ca- pacity. Stovall, as the senate secretary had custody of its records which she never was requested to relinquish. After missing the one senate meeting noted above, Sto- vail has continued to serve as the representative of the nonprofessional staff to the senate in exactly the same way as when she had served as a delegate from the As- sociation. Stovall has continued to attend all Senate meetings functioning in exactly the same manner as when she was an Association delegate. No employee, Stovall included, has suffered any change in any term or condi- tion of employment, other than as discussed herein, as a consequence of engaging in union activity. C. Anaylsis and Conclusions According to the General Counsel's theory of the case the issue to be decided simply is whether or not Re- spondent took certain reprisals and other retributive measures against its employees because they engaged in activities on behalf of Local 153. Respondent does not contest that it did indeed engage in cerrain conduct in response to its employees having sought representation by Local 153. However, it asserts that its conduct was aimed not at employee protected activities but only at the activities of the Association which had only an inci- dental effect upon employees.' 2 Respondent draws this distinction because, it argues, it was doing no more than disencumbering itself of involvement with a dominated labor organization at a time when an organizing cam- paign by a "legitimate" outside labor organization was in progress. In light of my conclusion above that the Asso- ciation more than qualified as a dominated labor organi- zation I find merit to Respondent's position. "It is well settled that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coer- cion succeeded or failed. The test is whether the employ- er engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." American Freightways Co., Inc., 124 NLRB 146, 147 (1959). Consequently, it is irrelevant in deciding the 8(a)(1) allegations (see fn. 10, supra) that Respondent acted in response to its employees' activities on behalf of Local 153. Rather, what requires examina- tion is whether the conduct engaged in can reasonably be said to have a tendency to interfere with employee rights. The gravamen of the complaint is directed toward, and the essence of the conduct involved is, Respondent's action in dissolving the Association, revoking its privi- leges to utilize University property and time for conduct- ing its meetings and other business, and withdrawing the privilege that the Association had of sending delegates to the various University committees involved in the gover- nance of the University. It is abundantly clear that Re- spondent took no action whatsoever against employees, 12 Respondent also defends on the grounds that the entire case is so trivial and frivolous as to compel dismissal for those reasons alone. As I am recommending dismissal for other reasons, it is unneccessary to reach that defense. 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individually or as a group, other than in their Associ- ation capacity and the General Counsel does not allege otherwise. 13 No doubt if the Association was not a dominated labor organization and its employee/members embarked upon an organizing campaign, Respondent's actions would have tended to interfere with such activi- ty. When Respondent's conduct is examined item by item it becomes apparent that what was curtailed was not ac- tivity protected by the Act but rather activity con- demned by the Act. For how could it be said that em- ployees are cloaked with Section 7 rights when their ac- tions are furthering the ends of a dominated labor organi- zation. It is alleged that Respondent violated the Act when it ceased recognition of the Association as representative of the nonprofessional staff. The General Counsel never fully explained what was meant by the word "recogni- tion" but certainly the record discloses that, while the Association had not been granted exclusive recognition as the collective-bargaining representative, at the very least it was dealt with as a representative for resolving labor relations matters and thus "recognized" for such purpose by any definition of that word. To withdraw that recognition I should think is required by, not pro- hibited by, the Act. To the extent that the Association also was involved in University governance, the withdrawal of recognition for that purpose fares no better. The University gover- nance is concerned with the management of the Univer- sity and deals with such matters as utilization of its re- sources, which perforce must include allocations for sala- ries and employee benefits. For Respondent to permit representatives of a dominated labor organization to par- ticipate in such deliberations serves to aggrevate a situa- tion already injurious to employee rights. No lengthy discourse is needed to conclude that discontinuance to such practice could not, as a matter of law, be viewed as an unfair labor practice. Moreover, any argument that employees were disadvantaged in this regard by dissolu- tion of the Association is not borne out by the record. Respondent, simultaneously with its conduct complained of, instituted procedures for continued representation of employees in the system of University governance. And if more proof is needed that Respondent was not en- gaged in hostile acts towards employees for their legiti- mate union activity we need look no further than the fact that Respondent selected Stovall and the other former Association delegates to continue in their respec- tive roles as employee representatives to the senate and other University committees. Accordingly, I conclude that Respondent's conduct in divesting itself of further support to, and involvement in, a dominated labor orga- n" The allegation of unlawful interrogation conceivably might be viewed differently and this will be considered below. The allegation of threats of reprisal, while not mentioning the Association by name in the complaint, is explained in the General Counsel's brief as stemming from Respondent's memos of September II and 21, 1987, and thus "by inform- ing its employees of the privileges lost by the Association and its repre- sentatives, Respondent impliedly threatened its employees with reprisals if they engaged in concerted protected activities." All other allegations of unlawful conduct refer to conduct directed specifically towards the Asso- ciation. nization is not, and cannot legally be, conduct which rea- sonably tends to interfere with statutory rights. It also is alleged that Respondent violated not only Section 8(a)(1) but also Section 8(a)(3) of the Act by de- claring the Association's representatives ineligible to serve on the senate and other committees. Having found above that such conduct did not violate Section 8(a)(1), a fortiori, it did not violate Section 8(a)(3) either where a more stringent standard of proof is required; namely proof of both discrimination and intent to discourage membership in any labor organization. Radio Officers' Union v. N.LR.B., 347 U.S. 17 (1954). Even assuming that removal from the senate and the other bodies was an act of prohibited discrimination, I find Respondent was motivated solely by the fact that Stovall and the others were delegates to these bodies by virtue of their Association membership and not by their activity for Local 153 or by any other activity protected by the Act. In view of this conclusion, I need not consider the issue of whether or not participation in the senate, concerned as it is with managerial matters, is a condition of employ- ment guaranteed to employees by the Act so that remov- al therefrom, even if motivated by union activity, can be said to be unlawful discrimination. Nor need it be decid- ed whether or not such removal, even if discriminatory, has such a slight adverse effect upon employee rights that it is not justified by substantial and legitimate rea- sons.14 Cf. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). A further allegation of the complaint is that Respond- ent imposed an unlawfully broad no-access, or no-solici- tation, rule upon its employees by banning the Associ- ation from further use of University time and property. Again, in light of my conclusion regarding the true nature of the Association, this allegation is without legal merit. If it had been Local 153, or employees generally, seeking to utilize University property for holding union- related meetings, then a tenable argument could be main- tained that the denial of these activities, under certain circumstances, would constitute a violation of the Act. This was the kind of situation dealt with in The Trustees of Columbia University in the City of New York, 225 NLRB 185 (1976), and Northeastern University, supra, cases mainly relied upon by the General Counsel for this allegation. Those cases are factually distinguishable and not dispositive of the issue here. In each of those cases employees, or a legitimate labor organization, sought the use of University property on a nondiscriminatory basis to engage in activity protected by the Act. So long as the Association existed in the form prescribed by Re- spondent it could not, by its very nature, engage in pro- "4 The Senate in this case appears to have functions comparable to a board of directors in a corporation. I know of no authority which re- quires that employees engaged in union organizing enjoy a right to ac- tively participate in deliberations of the board. Certainly a persuasive ar- gument can be made that the historical adversarial roles of labor and management dictate against such a finding as it would tend to weaken collective bargaining and might involve potential conflicts of interest. Al- though the professional staff participates in Respondent's senate, the record suggest that this is a result of, not a substitute for, collective bar- gaining between Respondent and the A.A.U.P., the recognized bargain- ing agent for the faculty. 732 FAIRLEIGH DICKINSON UNIVERSITY tected activity. This record demonstrates that the only group subject to Respondent's prohibition on use of its property was the Association at a time when it still was the creature of Respondent. Even if at the time of the ban the Association had taken on the coloration of a legitimate labor organization (which I find was not the case) then it no longer would have been the Association, and a claim that it had its privileges revoke would be logically unsupportable. For in such circumstance the Association would have become a new and different organization and as such would not have had or possessed the rights and privi- leges which Respondent thereafter withdrew. Simply put, the University, pursuant to its illegal control over the Association, did nothing more than demonstrate that degree of control by disbanding it entirely. In any event, the record does not support a claim that the Association was seeking to become a bona fide labor organization and thus by denying it University property for that pur- pose Respondent was interfering with protected rights. Stovall testified that it was the intent of the unionization committee that Local 153 become the substitute for the Association, not merely its affiliate. And although Sto- vall testified that the Association, although clearly in somewhat different form, continued to exist off campus, it did not intervene in the representation case. The con- clusion is inescapable that Respondent did not deny any of its facilities to any legitimate labor organization simply because no such organization asked for such privilege. On this record no one asked for access to University property but, rather, the Association alone had such privilege revoked. Indeed, if a violation in this regard exists the remedy to be imposed would be the height of folly. It would re- store, to a dominated organization, meeting privileges which Respondent's officials had an absolute right to attend in order that such organization discuss legitimate unionization. How putting the fox in the chicken coop helps the chickens is a puzzlement to say the least. Re- spondent's ability to monitor such meetings would per- petuate interference with employees rights, not eliminate it. In sum, as I have found that the Association was a dominated labor organization Respondent not only had the right to disband that group but also, in my view, if an appropriate complaint had issued, the Association's demise would have been dictated by the Board's process- es. Whether or not Respondent was motivated by late acquire conscience or acted on advice of counsel to divest itself of further legal risk, especially as Local 153 conceivably could have objected to the continued exist- ence of the Association, is irrelevant. All that matters is whether or not the actions taken were in violation of the Act. There remains for considerations the allegation of in- terrogation. The General Counsel urges that when Sto- vail and other Association members were summoned to Bieber's office an illegal and coercive interrogation oc- curred by Bieber, asking those assembled if they knew who wrote the Local 153/Association letter and direct- ing them to Stovall for an answer. Bieber's "question" was in response to the employees' expression of bewil- derment concerning the very existence of such a letter. The Board long has eschewed a per se approach in deter- mining when an interrogation which does not contain ex- pressed threats is an unfair labor practice in violation of Section 8(a)(1) of the Act. Blue Flash Express Inc., 109 NLRB 591 (1954). Rather, a case-by-case approach is re- sorted to and inquiry is conducted into such matters as the time, the place, the personnel involved, the informa- tion sought, whether the interrogation occurred in an at- mosphere free of other coercive conduct, whether it was isolated or systematic, and finally, in certain circum- stances, the reason or purpose behind the interrogation. Pacific Abrasive Supply Co., 182 NLRB 329 (1970). 5 Utilizing this approach to the alleged interrogation in the instant matter it is my conclusion that Respondent did not violate Section 8(a)(l) of the Act. The sole remark with which we are concerned is Bieber's "ques- tion" to the four employees concerning the identity of the author of the letter sent by Local 153 and the Asso- ciation to the nonprofessional staff. While it is true that this "question" occurred in Bieber's office, and he cer- tainly represents the highest level of management, the so- called question is not an interrogation at all, nor is it co- ercive in its nature, nor does it imply coercion under the circumstances in which it was uttered. It was not de- signed to elicit information from the employee because obviously they had none to give and it would not have led to the institution of reprisals against any employee. Bieber's statement was rhetorically uttered in response to the bewilderment expressed by the employees themselves concerning the letter in question. If Bieber had not known before the meeting that it was Stovall who was responsible for the letter, events at the meeting surely demonstrated that she was instrumental in its prepara- tion. She made this obvious by acting as the spokesper- son at the meeting, and by not protesting when Bieber accused her of having violated the earlier understanding betweeen the two of them by having written the letter. There is no doubt that both Bieber and Stovall were aware she was at least in part the author of the letter. Bieber's question then to the other employees, coupled with his remark that they should ask Stovall who had written the letter, was not so much an interrogation of them as it was the imparting of information to them to consult with Stovall concerning the letter. A clearer ex- ample of a rhetorical question could not exist, but even if it was not it certainly could not be construed as having a coercive effect on the employees under the circum- stances. At most it was a suggestion to them that they '5 Some courts apply a more stringent test than the Board and will not find coercive interrogation unless certain fairly severe standards are met See, e.g., Bourne v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964). The factors examined by the Bourne court include: (I) the background, i e, is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., did the interrogator appear to be seeking infor- mation on which to base taking action against individual employees? (3) The identity of the questioner, i e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g., was employee called from work to the xboss' office? Was there an atmosphere of unnatu- ral formality? (5) Truthfulness of the reply. Although the Board, unlike the court, does not require that all of these standards be met in order to conclude that the interrogation had a tendency to restrain and coerce em- ployees, nevertheless the Board does examine all of the circumstances and will not apply a per se rule. 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtain information from Stovall about the authorship of the letter a procedure that Stovall herself was much in favor of in light of her comment to Bieber that she was not there to discuss the matter and instead would consult with her colleagues. In addition, this single remark was not part of any pat- tern of illegal activity aimed at ascertaining the identity of the union leaders and was not part of a campaign of unlawful activity aimed at interfering with Section 7 rights. Although it was conducted in an office of man- agement, the atmosphere was not one charged with hos- tility and antiunion sentiment. Discussion while not friendly was certainly not hostile, at least on Bieber's part. Stovall and Bieber had dealt with one another for a number of years and Stovall certainly did not exhibit a sense of intimidation by Bieber's comments. In fact, Sto- vail showed her annoyance by terminating the meeting by telling Bieber she was not there to discuss such mat- ters. While it is true that the effectiveness of an interro- gation is not the test of its legality, the reaction of an employee to an interrogation is germane to the question of whether or not that interrogation was a coercive one. Thus, what really is at issue is a rhetorical question, asked informally of employees with whom Bieber was on relatively familiar terms and devoid of any real purpose. The employees themselves made no reply to the question and Stovall who was the center of the discussion exhibit- ed no fear whatsoever in immediately terminating the discussion. An isolated comment of this sort, under the circumstances described above, does not, in my judg- ment, tend to interfere with the free exercise of employ- ee rights. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 153, Office and Professional Employees Inter- national Union, AFL-CIO, and the Teaneck/Hackensack Supportive Staff Association are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 734