Onan Corp.

400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ona Corporation, a Division of Onan Corporation and The United Automobile, Aerospace and Ag- ricultural Implement Workers of America, UAW and Employee Action Committee, Party in Interest. Case 10-CA-19146 26 August 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 November 1983 Administrative Law Judge William N. Cates issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief and the General Counsel and the Charging Party filed briefs in support of the judge's decision and in opposition to the Respond- ent's exceptions. The International Association of Quality Circles (IAQC) and the Labor Education and Research Project (LERP) also filed amicus curiae briefs and the Respondent, the General Counsel, and the Charging Party filed reply briefs.1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order. We agree with the judge that the Respondent unlawfully created the Employee Action Commit- tee (EAC); that the EAC is a labor organization within the meaning of Section 2(5) of the Act; that the EAC is dominated by the Respondent; and that the EAC must be abolished to remedy the Re- spondent's conduct in violation of Section 8(a)(2) of the Act. The finding of domination within the meaning of Section 8(a)(2) is essential to the dises- tablishment remedy. NLRB v. Mine Workers Dis- trict 50, 255 U.S. 453, 458-459 (1958).3 i The IAQC also filed a request for oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties and amid curiae 2 The judge cited Ona Corp, JD-(ATL)-48-83, to support his findings that the Union began a membership campaign at the Huntsville plant shortly after the Board's 28 May 1982 bargaining order against the Re- spondent In adopting this finding, we note that the Board affirmed-the decision in that case in relevant part at 270 NLRB 373 (1984) 8 Our concurring colleague implicitly concedes that we must find the "domination" element of Sec 8(a)(2) in order to issue a disestablishment remedy. We see no reason for failing to decide the entire 8(a)(2) issue, which entails deciding whether the committee is a labor organization. Member Babson notes that in Middletown Hospital Assn., 282 NLRB 541 (1986), cited by our concurring colleague , it was unnecessary to find whether the professional relations conference group was a labor organi- zation within the meaning of Sec 2(5) as the complaint in that case did not allege that the formation of the group violated Sec 8(a)(2) He fur- ther notes that in ordering the Respondent to discontinue the group, the Board did so on the basis that the committee was established pursuant to an unlawfully promised benefit which violated Sec 8(a)(1). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ona Corpo- ration, a Division of Onan Corporation, Huntsville, Alabama, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. MEMBER JOHANSEN, concurring. I find it unnecessary to decide the Section 2(5) and Section 8(a)(2) issues in this case. I find that by creating the Employee Action Committee in an at- tempt to undermine the Union, the Respondent violated Section 8(a)(1) and, accordingly, should remedy its unfair labor practice and return to the, status quo ante by abolishing the Committee. Mid- dletown Hospital Assn., 282 NLRB 549 (1986). Be- cause the Committee is "employer dominated," its status as a "labor organization" vel non is irrele- vant for remedial purposes. Virginia L. Jordan, Esq., for the General Counsel. John J. Coleman Jr., Esq. and Braxton Schell Jr., Esq. (Bradley, Arant, Rose and White), of Birmingham, Ala- bama, for the Respondent. Richard H. Walston, Esq., on brief for the Respondent. James Fagan, Esq. (Standard, Fagan and Giolito), of At- lanta, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. The hearing in this case held July 29 1983,2 is based on a unfair labor practice charge filed by United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (Union), on April 11, and a complaint issued on May 10 and an amended complaint issued on June 13, on behald of the General Counsel of the Nation- al Labor Relations Board, by the Regional Director Region 10, alleging that Ona Corporation, a Division of Onan Corporation (Respondent), has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the National Labor Relations Act (Act). Respond- ent filed an answer both to the complaint and amended complaint denying the commission of the alleged unfair labor practices. On the entire record made in this proceeding, includ- ing my observation of each witness who testified, and after due consideration of briefs filed by the General Counsel, counsel for the Charging Party, and counsel for the Respondent, I make the following 2 All dates are 1983 unless otherwise indicated 285 NLRB No. 77 ONA CORP. 401 FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, an Alabama corpo- ration, maintained an office and place of business at Huntsville, Alabama,3 where it is engaged in the manu- facture of gasoline engines and generators. During the year preceding the issuance of the amended complaint and notice of hearing, Respondent in the course and con- duct of its business sold and shipped from its Huntsville, Alabama facility, goods valued in excess of $50,000 di- rectly to customers located outside the State of Alabama. It is admitted and I find that Respondent is and has been at all times material an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, it is admitted, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The essential issues presented for decision are general- ly summarized for purposes of discussion as follows: 1. Whether the Employee Action Committee of Ona Corporation, a Division of Onan Corporation, Hunts- ville, Alabama, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. If issue one is decided that the Employee Action Committee is a labor organization, did Respondent in violation of Section 8(a)(2) and (1) of the Act initiate, sponsor, form, assist, and dominate the Employee Action Committee. 3. Whether the Respondent, at a time when it had knowledge of an ongoing union campaign, solicited from its employees through its supervisors grievances concern- ing its employees' jobs and working conditions and promised to take action on those grievances. that stated that an organizing campaign had been con- ducted at the Respondent by the Union in the spring of 1979. On September 21, 1982 , the Union filed a petition in the United States Circuit Court of Appeals for the Dis- trict of Columbia Circuit for review of a portion of the Board's Order, 261 NLRB 1378 (1982) On October 1, 1982, the Respondent filed a petition in the Eleventh Cir- cuit Court of Appeals for review of the Board 's Order. On December 14, 1982, the Board filed a cross-applica- tion for enforcement of its Decision and Order . On Feb- ruary 1 , all petitions relating to the Board's decision (261 NLRB 1378) were transferred to the Eleventh Circuit Court of Appeals . The matter is currently pending deci- sion by the court.4 On June 30 Administrative Law Judge J. Pargen Rob- ertson issued a decision in Ona Corp., JD-(ATL)-48-83, involving the parties in which he found the Respondent had violated Section 8(a)(1) and (5) of the Act by refus- ing to bargain with the Union regarding the discharge of an employee and the grievance of another employee. Judge Robertson also found the Respondent had violated Section 8(a)(1) of the Act by maintaining in its files a document that identified one of its employees as a "union pusher." Judge Robertson's decision is currently pending before the Board . Judge Robertson noted Judge Evans' finding that the Union had conducted an organizing cam- paign in 1979 and Judge Robertson went on to state "Shortly after the Board 's Decision [261 NLRB 1378] issued on May 28 , 1982, a Union membership campaign was initiated." The Board in ordering the Respondent to bargain with the Union found the following appropriate bargaining unit: All production and maintenance employees em- ployed by Onan, A Division of Ona Corporation, at its Madison, Alabama, facility including all work leaders, quality control inspectors, and testing tech- nicians, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. B. Background The Respondent has a manufacturing facility near Huntsville, Alabama, and two other facilities located in Minneapolis, Minnesota, and San Diego , California. The Huntsville, Alabama location is the only facility directly involved in the instant case. The Board on May 28 , 1982, issued its Decision and Order in Ona Corp., 261 NLRB 1378 , involving the par- ties in the instant case and pertained to the Respondent's Huntsville, Alabama location . In the decision , the Board concluded that the Respondent had committed numerous violations of Section 8(a)(1) of the Act. The Board also ordered the Respondent to bargain with the Union and issued a broad remedial Order against the Respondent. In the Board's decision, it adopted without comment that portion of Administrative Law Judge Evan 's decision C. Facts The facts of the instant case are for the most part un- disputed. Respondent President and Chief Executive Officer Tony Johnson caused an employee attitude survey to be administered to all employees of Respondent at its three locations. The survey that was designed by the testing division of General Motors Corporation was conducted in June 1982 The survey was analyzed by General Motors and the results were then provided to the Re- spondent. The result indicated both strengths and weak- nesses that the Respondent had in its workplace and it reflected critical weaknesses in the quality of work life at 4 Other dates stipulated to be accurate and urged by the Union as sig- nificant were that on March 4 the Board filed its certified list of docu- ments and transcript with the Eleventh Circuit Court of Appeals On J Although the complaint alleges Madison, Alabama, it appears the Re- April 15, May 23, and June 1, the Respondent, Board, and Union, respec- spondent's facility is actually located in Huntsville , Alabama tively, filed their briefs with the court of appeals 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Respondent. The Respondent retained two consult- ing companies; namely, Peoples Management Corpora- tion, Chicago, Illinois, and Baker and Associates, Dallas, Texas, to assist it in the possibility of establishing some type of work life program. Respondent President Johnson made a decision in De- cember 1982 to install a quality of work life program at the Respondent's Huntsville, Alabama location. A like program was instituted corporatewide. The formal struc- turing of the program for Huntsville, Alabama, started in January. On March 7 all employees were given a memorandum dated March 4, in which the employees were informed for the first time that an Employee Action Committee was being created. The memorandum, which was signed by Director of Manufacturing D. W. Fore, read as fol- lows: In the past each of you have had the opportunity to express your concerns and opinions about our Employee Relations Policies, Practices, and Proce- dures. Such imput from you has, over the last few years, lead to substantial improvements in this area of our working environment. Even with these improvements, I am convinced that there is a great deal that can be done to further improve our current Employee Relations Policies, Practices, and Procedures. It is this belief that has lead to the introduction of our first Employee Action Committee. I want to encourage each of you to participate either through volunteering and serving the E A.C. or expressing your concerns and opinions to mem- bers of the E.A.C. In doing so, you have the oppor- tunity to be directly involved with the process of understanding and improving your working envi- ronment here at Onan Huntsville. [G.C. Exh. 2.] At this same time, the employees were given "Em- ployee Action Committee Volunteers Slips" (G.C. Exh. 3), which they were to complete and return to their su- pervisor if they desired to serve on the Employee Action Committee. Of the approximately 375 employees, 148 volunteered to serve on the Employee Action Commit- tee. Twelve of those volunteering were chosen to serve on the committee.5 The 12 were chosen by the advisory committee. The advisory committee consists of Employ- ee and Community Relations Manager Ronald E. Polk and Supervisors Chuck Sibley, Terry Cagle, Barry Swearingen, and Don Clark.6 The Employee Action Committee held its first meeting on March 10. The advisory committee also attended the meeting At the meeting Manager Polk explained to the Employee Action Committee members the functions and purposes of the Employee Action Committee. The Em- ployee Action Committee was also provided specific 5 The 12 employees were Charles Burrow, Steve Strantton, Ronald Lee, Mylon Metcalf, Brenda Brooks, Harold D Hill, James Blackburn, Darrell Champion, Johnnie O'Neal, Elliott McAnally, Judith Orr, and Ivan Nash 6 The parties stipulated that all members of the advisory committee were supervisors within the meaning of Sec 2(11) of the Act written guidelines No production and maintenance em- ployee or Employee Action Committee member had any input into the preparation of the guidelines. The manager prepared guidelines for the Employee Action Committee members were- 1. Advisory Committee will select members of the EAC. 2 Meeting should be as productive as possible. 3 Participation of all members is encouraged. 4. Meetings will be held each week, for one hour, on company time. a. Meetings at other times will be unpaid time. 5. Each committee will review no more than two PPP at any one time. 6. Committee must establish communication methods with the entire workforce. 7 Decisions of the committee will be of a con- sensus nature. 8. Decisions regarding policy, practice, and pro- cedure changes must be realistic from an operation viewpoint and legally acceptable. 9. Membership on the Committee is voluntary. 10. Committee members may or may not decide to replace other committee members who leave the committee 11. Committee cannot operate with less than 8 members. If committee members total less than 8 members, Advisory Committee may choose to place new members on the committee in such numbers to bring the committee back up to 12 members. 12 Committee members must have received proper training before being active in the committee meeting. 13. Committee must choose. a. Chairman, b. Vice Chairman, c. Recording Secretary. 14. Chairman, Vice Chairman, and Recording Secretary will serve on the subsequent committee, but they cannot be officers. [G.C. Exh. 5.] Pope instructed the Employee Action Committee members to get feedback from the production and main- tenance employees about which policies of the Respond- ent they wanted to have discussed with the aim of im- proving and changing those policies. Management has se- lected and prepared a list of six topics from which the Employee Action Committee could chose any two for discussion with management. The six policies that could be addressed were. (1) Breaktimes, (2) vacation adminis- tration-personal holiday, (3) floating holiday schedule, (4) telephone usage-personal calls, (5) shift preference, and (6) safety apparel (G.C. Exh. 6) After the initial meeting, the Employee Action Com- mittee met and continues to meet once a week on Re- spondent's time and in a room provided by the Respond- ent. Notebooks, pencils, and materials for use by the Em- ployee Action Committee members are provided by the Respondent as well as clerical assistance. The Employee Action Committee members were given training in inter- personal skills, how to interact and communicate with others, problem solving, and group dynamics by Re- spondent management personnel on Respondent's time ONA CORP utilizing Respondent's facilities. The Employee Action Committee in compliance with the Respondent's written guidelines (No. 3) chose officers for the committee.? The Respondent provided each of the Employee Action Committee members with a 3-by-1 inch badge that iden- tified them as an Employee Action Committee member. The Employee Action Committee members were al- lowed to obtain feedback from the production and main- tenance employees at regular employee meetings, by per- sonal contact with the employees during the day, and by way of polls conducted by the Employee Action Com- mittee. Pursuant to the oral instructions given the Employee Action Committee members on March 10 and in compli- ance with written guideline No. 5, the Employee Action Committee chose two of the six topics provided by the Respondent for discussion. The Employee Action Com- mittee chose vacation administration-personal holidays and floating holiday schedules as the two topics for dis- cussion. From these two topics, the Employee Action Committee first worked on personal/floating holiday policies. The Employee Action Committee prepared a poll (G.C. Exh. 11) that was given to the production and maintenance employees for them to express their desires with respect to the Respondent's floating holiday policy. The poll was conducted on April 18. The poll provided for the choice of selecting the Respondent's then-current method with respect to administering floating holidays or the employees could chose one of three new proposed methods or they could suggest a method themselves. The poll was conducted at a regularly scheduled weekly em- ployee meeting conducted by the Respondent. Of the 299 employees responding to the poll, 220 of them ex- pressed a desire to change the existing policy to one of converting the floating holiday to a personal holiday. After various meetings the Employee Action Committee presented in mid-May its proposal regarding holidays to the advisory committee and the plant management staff.8 Secretary Judith Orr made the presentation for the Employee Action Committee.9 All three groups (Em- ployee Action Committee, advisory committee , and plant staff committee) entered into a discussion regarding the Employee Action Committee's proposal. The discussion dealt with, among other things, clarifications regarding the proposal presented by the Employee Action Commit- tee. The proposal was not accepted at the mid-May meeting . The Employee Action Committee members were instructed to work on the policy and then schedule another meeting with management. The Employee Action Committee went back to the production and ' Johnnie O'Neal was selected chairman, Ivan Nash vice chairman, and Judith Orr secretary-treasurer s The plant management staff consisted of the top managers within each functional area of the plant The six managers were Director of Manufacturing Don Fore, Manager of Manufacturing Johnny Hawkins, Manager of Quality Assurance Jim Rennie, Manager of Technical Serv- ices Jerry Dacy, Manager of Accounting and EDP Bill Roberson, and Manager Polk As noted elsewhere in this decision Polk also served on the advisory committee All members of the plant management staff were stipulated to be supervisors within the meaning of Sec 2(11) of the Act 9 Manager Fore at the Employee Action Committee members' request had given the members a presentation on how to make a presentation 403 maintenance employees and thereafter held another meeting of the Employee Action Committee The Em- ployee Action Committee first recommended that the floating holiday could not be taken in conjunction with another holiday without a supervisor's permission Direc- tor of Manufacturing Fore did not view this as a prob- lem and wanted the policy to be such that it could be handled on a one-on-one relationship between the super- visor and employee A final policy regarding converting the floating holiday to a personal holiday was adopted on June 3, effective June 4. The adopted policy was read on Respondent time to 11 groupings of employees by 11 of the 12 Employee Action Committee members of the Employee Action Committee was absent on medical leave). The new policy stated that the employees could take their perrsonal holiday anytime they desired provid- ed they notified their immediate supervisor prior to or on the day of their personal holiday. During this same period, the Employee Action Com- mittee worked on a proposed policy for vacation sched- uling 10 As of the trial no policy with respect to vaca- tion scheduling had been adopted although the Employ- ee Action Committee has presented a proposal to the ad- visory committee and plant staff committee on July 19. The proposal they presented was discussed and questions were asked particularly about the proposed appeal proce- dure for employees denied the vacation schedule they sought. After the July 19, meeting the Employee Action Committee returned to the production and maintenance employees to discuss and clarify further their proposal. D. Positions of the Parties The General Counsel contends that the Employee Action Committee is a labor organization within the meaning of Section 2(5) of the Act in that it is an em- ployee representative committee that employees partici- pate in and exists at least in part for the purpose of deal- ing with the Respondent regarding working conditions. The General Counsel contends the Employee Action Committee "dealt with" the Respondent concerning working conditions such as to require a finding that it is a labor organization. The General Counsel contends the Employee Action Committee was far more than just a conduit for information from the employees to the Re- spondent. The General Counsel contends that the "deal- ing with" between the Employee Action Committee and the Respondent is demonstrated by the fact that propos- als were made to the Respondent through its advisory and management staffs, that those proposals were dis- cussed in terms of profitability, feasibility, and possibility and that reconsideration on the proposals was requested by the Respondent and made by the Employee Action Committee. The General Counsel further contends the evidence clearly demonstrates that not only was the Em- ployee Action Committee a labor organization within the meaning of the Act, but that it was initiated, sponsored, 10 Manager Polk gave a presentation to the employee action commit- tee on various methods of scheduling vacations Polk also provided the employee action committee a memorandum dated April 12. which per- tained to comments the first line supervisors had regarding the scheduling of vacations (G C Exh 9) 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formed, assisted, and dominated by the Respondent The General Counsel contends her position is supported by the fact that the Employee Action Committee was initi- ated by the Respondent through Fore's letter to the em- ployees and that the members of the Employee Action Committee were each chosen by the Respondent. The General Counsel also points out in support of her con- tentions that the subjects to be discussed and the guide- lines under which the Employee Action Committee could operate were established by the Respondent. She also contends her position that the organization was con- trolled by the Respondent is supported by the fact that the Employee Action Committee met on Respondent time in a location provided by the Respondent and the materials utilized by the Employee Action Committee were supplied by the Respondent. The General Counsel also contends that the Respondent misconstrues Federal law and policy when it advances its position that the Na- tional Productivity and Quality of Working Life Act of 1975, 15 U.S.C § 2401 et seq., somehow precludes a finding of any violation of the Act in the instant case. The General Counsel contends that the National Produc- tivity and Quality of Work Life Act encourages coopera- tion between labor and management with respect to the quality of working life for employees She contends Re- spondent cannot hide behind the National Productivity and Quality of Working Life Act to shield its violations of the National Labor Relations Act In addition to asserting a position similar to that of the General Counsel, the Union additionally asserts certain positions and contentions. The Union contends the Re- spondent established the Employee Action Committee for the purpose of undermining the employees' efforts to be represented by the Union. The Union contends that the timing of the decision to institute the program and the date of the program's implementation supports his position. The Union argues that the Board's Order to the Respondent to bargain dated May 28, 1982 (261 NLRB 1378), and the Respondent's decision in June 1982 to in- stitute a quality of work life survey at its Huntsville, Ala- bama facility were not merely coincidental, that the Re- spondent was reacting to the events that involved the Union. The Union contends the evidence demonstrates that the Respondent waited almost 10 months to March 1983 to announce the creation of its Employee Action Committee and that its announcement coincided with the date the Board filed its certified record with the Elev- enth Circuit Court of Appeals to commence the appeal process of the Board's Order to bargain. The Union argues the plan was put into effect in order to undercut the effectiveness of any order of the court of appeals. The Union argues such was done to erode its bargaining strength and destroy the efficacy of a court bargaining order. The Respondent contends the Employee Action Com- mittee is a vital part of a novel management communica- tive philosophy and as such was never intended to fall within the parameters of Section 8(a)(2) of the Act. Re- spondent contends that the Employee Action Committee is an inseparable part of its quality of work life program and differs significantly in scope, content, and objective from the antiunion philosophies of the 1930s out of which Section 8(a)(2) arose. The Respondent contends the Employee Action Committee constitutes only one facet of a quality of work life process, the purpose of which is to make the Respondent more competitive. Counsel for the Respondent contends there are three basic components of its quality of work life program; namely, (1) achievement of improvements in the work environment, (2) development of more economical ways to produce a product, and (3) a procedure whereby ben- efits flow to all concerned Respondent argues that the Employee Action Committee is a vital part of the first component described above. He contends that if employ- ees are dissatisfied with the Respondent's policies, prac- tice, and procedures that govern their work, they will not be looking for ways to do their job better or less ex- pensively. Therefore, Respondent contends the Employ- ee Action Committee is simply a component part of its efforts to improve the working environment of its em- ployees. Respondent argues that its efforts must be viewed not only in light of the National Labor Relations Act but also in light of the National Productivity and Quality of Working Life Act of 1975. Additionally, the Respondent contends the Employee Action Committee is not a labor organization within the meaning of the Act because it does not "deal" in any manner with management but rather serves purely in in- formational function through which the decisionmakers at the Respondent can ascertain the desires of their em- ployes regarding policies and practices that affect their work environment and satisfaction. Respondent further contends, assuming arguendo that the Employee Action Committee is a labor organization within the meaning of the Act, it is not a dominated organization in that it re- ceived no more than laudable cooperation from manage- ment. E. Analysis and Conclusions The complaint at paragraph 10 alleges Respondent ini- tiated, sponsored, assisted, and dominated the Employee Action Committee and has recognized and bargained with it as the exclusive representative of its employees. The General Counsel seeks to have the Employee Action Committee disestablished. Respondent as noted above contends the Employee Action Committee is not a labor organization within the meaning of the Act, and even if it is, it is not a dominated organization. I shall first consider whether the Employee Action Committee is a labor organization within the meaning of the Act and then address the issue of whether it is unlawfully domi- nated Section 2(5) of the Act defined a labor organization as follows: The term "labor organization" means any organiza- tion of any kind, or any agency or employee repre- sentation committee or plan, in which employees participate and which exist for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. ONA CORP. 405 It is apparent from the undisputed evidence in the instant case that the Employee Action Committee is an organi- zation with membership provisions, officers, and proce- dure for replacement of members who leave the commit- tee. The Employee Action Committee, by its guidelines, spells out what constitutes a quorum in order for it to conduct business and further states how often and how long each meeting of the committee will last. The guide- lines for the committee requires that its members have certain training prior to their functioning as members of the committee. The Employee Action Committee is made up solely of employees from the work force, all of which employees were encouraged to volunteer to par- ticipate on the Employee Action Committee. Therefore, there is no doubt but what the Employee Action Com- mittee is an organization in which employees participate. I am also persuaded that the Employee Action Com- mittee exists for the purpose, in part, of "dealing with" Respondent concerning "grievances, labor disputes, wages, rates of pay, hours of employment, and condi- tions of work." The statute has been broadly construed with respect to what constitutes "dealing with." NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). The Supreme Court held "nothing in [Sec. 2(5)] indicates that the broad term `dealing with' is to be read as synonymous with the more limited term `bargaining with."' In the in- stant case the necessary interchange was present between the parties to meet the "dealing with" requirement of the statue. See, e.g„ Alta Bates Hospital, 226 NLRB 485 (1976). Director of Manufacturing Fores letter initiating the Employee Action Committee stated it was for the purpose of improving the employees' working condi- tions. The first two issues chosen for consideration by the Employee Action Committee dealt with bargainable matters. In fact, the list of six issues for discussion with management that the Employee Action Committee was permitted to choose from were for the greater part mat- ters the Board considers mandatory subjects of bargain- ing. The necessary interchange between the parties is further demonstrated by the fact there were discussions between the Employee Action Committee, the advisory committee, and the plant staff committee about the vaca- tion scheduling proposal that the Employee Action Com- mittee made to management. The discussion touched on the "profitability" of part of the proposal and whether parts of the proposal would be "feasible or possible in terms of meeting the needs of the work force." Although no agreement was reached on the matter, the Employee Action Committee indicated they would clarify their proposal after obtaining feedback from the production and maintenance employees. There was, likewise, discus- sion between the three committees involving the subject of floating/personal holidays wih the plant management staff rejecting the first proposal of the Employee Action Committee. Thereafter, the Employee Action Committee revised its proposal and it was later accepted by the plant management staff and subsequently put in effect. In my opinion, it is clear that the Employee Action Com- mittee "dealt with" the Respondent regarding conditions of work. The fact that the Employee Action Committee was more than a communication conduit is demonstrated by the guidelines for the committee which stated that de- cisions of the committee regarding the policies, practices, and procedures of the Respondent must be "realistic from an operational viewpoint and legally acceptable." Based on the foregoing, I find that the Employee Action Committee is an organization in which employees par- ticipate and which exists, in part, for the purpose of deal- ing with Respondent concerning conditions of work and, as such, is a labor organization within the meaning of Section 2(5) of the Act. The cases Respondent would rely on for the proposi- tion that the Employee Action Committee is not a labor organization within the meaning of the Act are distin- guishable. Respondent would rely on NLRB v. Scott & Fetzer Co., 691 F.2d 288 (6th Cir. 1982). The court, in that case, found the committee established by the compa- ny was not a labor organization within the meaning of the Act. The court found the committee was part of that company's plan to determine employee attitude toward working conditions in an accurate and enlightened manner, for its own self-enlightenment and not a method by which to pursue a course of dealings. The court ac- knowledged that there was a fine line between communi- cation of ideas and a course of dealings. The court based its holding on a number of factors. Unlike the instant case, the court found there was no evidence of continu- ous interaction between the company and the committee other than the committee's stated purpose which was to allow employees to raise or complain about conditions of employment. Another factor the court relied on in arriv- ing at its decision was the continuous rotation of com- mittee members. In Streamway, no member could serve more than 3 months in any given calendar year. In the instant case, the members served until they had reviewed two issues. In practice, this had taken longer than a short 3-month period. In the instant case, the guidelines for the Employee Action Committee indicate the members were to serve for a significant amount of time inasmuch as the guidelines spelled out a procedure for the replacement of members if they left the committee for any reason. The court in Stream way considered the fact there was no an- tiunion animus in determining that the committee in that case was not a labor organization. In the instant case, there can be no doubt that Respondent strongly opposed the Union. A reading of the Board's decision (261 NLRB 1378 (1982)) makes that abundantly clear." Yet another factor the court relied on in arriving at its decision was the fact that no one-the employees of the committee or the union in that case-considered the committee to be a labor organization. It is clear that the Union in the in- stant case considers the Employee Action Committee to be a labor organization. Likewise, for example, the poll taken by the Employee Action Committee regarding holidays would reasonably lead the employees to consid- er that the Employee Action Committee truly represent- ed them before management. Finally, I note that even if the court's case was not distinguishable, which it clearly 11 In determining that Respondent harbored antiunion animus, I have not given weight to Administrative Law Judge J Pargen Robertson's de- cision finding that Respondent violated Sec 8(a)(5) of the Act, JD- (ATL)-48-83, June 30, 1983, inasmuch as it is an intermediate decision that is currently before the Board on appeal 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is, the Board's decision in Scott & Fetzer Co., 249 NLRB 396 (1980), which is controlling12 upheld the administra- tive law judge's findings that the committee was a labor organization within the meaning of the Act. Respondent would also rely on Northeastern University, 218 NLRB 247 (1975). That case involved the issue of whether the faculty senate at the University was a labor organization within the meaning of the Act. The func- tions of the faculty senate were: to act as a coordinating body to establish mutually satisfactory academic goals and standard for the various colleges and divisions, to be consulted on problems of faculty concerns including the creation of new colleges, campuses, and departments; to initiate consideration and recommendation on any matter of faculty concerns; to undertake legislative and advisory functions in connection with the work of the university as may be referred to it by the president and the board of trustees; and to provide communication between the administration and the university faculty. The Board found the senate faculty functioned as advisory commit- tees to the president as opposed to making bargaining type demands that a representative would normally make, whereas in the instant case the Employee Action Committee's actions far exceeded that of being advisors; it was, as noted elsewhere in this decision, dealing with Respondent in the true sense of a representative of the employees. Another case relied on by Respondent General Foods Corp., 231 NLRB 1232 (1977), is distinguishable from the instant case. The Board, in General Foods, adopted the administrative law judge's findings that the committees established by the respondent in that case did not consti- tute labor organizations with the meaning of the Act. Respondent in General Foods established teams divided according to job assignments. Each team acting by con- census of its members made job assignment to individual team members, assigned job rotations, and scheduled overtime among the team members. The teams held team meetings to discuss the objectives of each team. The re- spondent in General Foods hired a psychologist to im- prove internal communications among team members. The administrative law judge found the teams were "nothing more or less than work crews established by Respondent as administrative subdivisions of its entire employee complement." The administrative law judge also found "the teams exist and were created for the pur- pose of performing the various jobs that must be done in operating the Nutrition Center." 231 NLRB 1234. Unlike the case at bar, the committee in General Foods was made up of every nonsupervisory member of the work force at the center and there were no officers or spokes- persons for the group. Each person who spoke up at any of the meetings spoke on their own behalf and in their own individual capacity, whereas in the instant case the spokesperson, such as Secretary Judith Orr, in making her presentation to management on holidays, spoke on behalf of the production and maintenance employees. The administrative law judge in General Foods found the 12 It is the duty of an administrative law judge to "apply established Board precedent which the Supreme Court has not reversed " Iowa Beef Packers, 144 NLRB 615, 616 (1965) teams may have exercised some delegated managerial functions but they did not, as in the instant case, deal with the employer on a group basis. Other cases relied on by the Respondent in support of its contention that the Employee Action Committee is not a labor organization within the meaning of the Act are likewise distinguishable. In each of those cases, unlike the instant case, the committees were found not to have been dealing with their employer within the mean- ing of the Act For example, the committee in Mercy-Me- morial Hospital Corp., 231 NLRB 1108 (1977), was found to have functioned and was created "simply to give em- ployees a voice in resolving the grievances of their fellow employees at the third level of the grievance pro- cedure, not by representing to or discussing or negotiat- ing management but by itself deciding the validity of the employees complaints and the appropriateness of the dis- ciplinary action, if any imposed." 231 NLRB 1121. Like- wise, in John Ascuaga's Nugget, 230 NLRB 275 (1977), the committee therein was found to have performed an adjudicatory function only, and never, as in the instant case, recommended to management for consideration changes in any conditions of employment. The commit- tee in Fiber Materials, 228 NLRB 933 (1977), was estab- lished for the sole purpose of explaining the employer's fringe benefits package to the employees and it only functioned in that and no other capacity in the two meet- ings it held I am fully persuaded that the cases Respondent relied on to demonstrate that the Employee Action Committee is not a labor organization within the meaning of the Act are clearly distinguishable from the case at bar. Other ar- guments of Respondent that the Employee Action Com- mittee is not and was not a labor organization are reject- ed in that the evidence clearly demonstrates the Employ- ee Action Committee is a labor organization within the meaning of the Act. I reject Respondent's contention that this is a case in which a literal translation of Section 2(5) of the Act will frustrate the very purposes of the Act. There is nothing in the National Productivity and Quality of Working Life Act of 1975, 15 U.S C § 2401 et seq., that would dictate or even suggest any result dif- ferent from what I have arrived at herein. Quite to the contrary, the National Productivity and Quality of Working Life Act of 1975 suggests that a harmonious ap- proach to improving the quality of work life be brought about between labor and management. One of the con- gressional findings with respect to the National Produc- tivity and Quality of Working Life Act of 1975 is: The continued development of joint labor-manage- ment efforts to provide a healthy environment for collective bargaining can make a significant contri- bution to improved productivity and foster industri- al peace. [Sec. 2401(8))] I think there is little question that having found that the Employee Action Committee is a labor organization within the meaning of Section 2(5) of the Act that the committee is dominated by Respondent in violation of Section 8(a)(2) of the Act. Respondent conceived the idea for the Employee Action Committee, established ONA CORP. 407 and brought about its creation, and selected its members. The Employee Action Committee members are paid for their time while serving on the committee and the Re- spondent furnishes a place for the committee to meet as well as furnishing the supplies necessary for its oper- ation. The subject matters for discussion by the commit- tee were determined by Respondent. The Employee Action Committee has no independent existence outside the will of the Respondent. It is without question that Respondent, about March 7, initiated and formed and thereafter sponsored, assisted, and dominated the Em- ployee Action Committee in violation of Section 8(a)(2) and (1) of the Act, and I so find. Compare: Homemaker Shops, 261 NLRB 441, 442 (1982). The amended complaint at paragraph 9 alleges Re- spondent solicited grievances from its employees con- cerning their jobs and working conditions, and promised its employees that action would be taken regarding those grievances. The amended complaint also alleges that Re- spondent solicited grievances at a time when it had knowledge of the Union's ongoing campaign. It is undisputed that Respondent provided its employ- ees a memorandum on March 4, regarding the Employee Action Committee. The memorandum is set forth in full elsewhere in this decision. The General Counsel con- tends that Respondent through the memorandum solicit- ed grievances from its employees and promised that action would be taken on those grievances. A clear read- ing of the memorandum supports the General Counsel's position. The memorandum states a great deal can be done to improve the Respondent's employee policies, practices, and' procedures. The memorandum encourages each employee to express their concerns to the newly created Employee Action Committee and, in doing so, they would have an opportunity to be directly involved with improving their working environment. The evi- dence is clear that this took place at a time when the Union had an ongoing campaign. The Board's decision, 261 NLRB 1378 (1982), indicates a campaign was con- ducted at the Respondent's facility by the Union in the spring of 1979. As noted elsewhere in this decision, the Union commenced a membership campaign at the Re- spondent shortly after the Board issued its above-refer- enced decision. At the time of the memorandum, the Union was still actively pursuing its efforts with respect to representing Respondent's employees. Based on the foregoing, it is clear that Respondent so- licited its employees' grievances and promised it would take action on those grievances at a time when it had knowledge of the Union's ongoing campaign. Such con- duct on the part of Respondent violates Section 8(a)(1) of the Act and I so find. 13 See Conair Corp., 261 NLRB 1189, 1266-1267 (1982). CONCLUSIONS OF LAW 1. Ona Corporation, a Division of Onan Corporation is an employer engaged in commerce and operations affect- ing commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The Employee Action Committee of Ona Corpora- tion, a Division of Onan Corporation is a labor organiza- tion within the meaning of Section 2(5) of the Act. 4. By initiating, sponsoring, forming, assisting, and dominating the Employee Action Committee of Ona Corporation, A Division of Onan Corporation, Respond- ent has violated, and is violating, Section 8(a)(2) and (1) of the Act. 5. By soliciting through a memorandum grievances from its employees concerning their jobs and working conditions and promising its employees that action would be taken regarding those grievances at a time when Respondent had knowledge of the Union's ongoing campaign, Respondent had violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce wthin the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take necessary affirmative action to effectuate the policies of the Act. Having found that Respondent has illegally initiated, sponsored, formed, assisted, and dominated the Employ- ee Action ,Committee, I will recommend that Respond- ent permanently withdraw and withhold all recognition from and completely disestablish the Employee. Action Committee or any successor thereto as a bargaining rep- resentative of any it its employees. It is also recommend- ed that Respondent be ordered to post the attached notice to employees marked "Appendix" for 60 consecu- tive days in order that employees may be apprised of their rights under the Act and Respondent's obligation to remedy its unfair labor practices. On these findings of fact, and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondent, Ona Corporation, a Division of Onan Corporation, Huntsville, Alabama, its officers, agents, successors, and assigns, shall 13 I credit but do not view the testimony of employee Steven Stratton regarding comments made by Manager Polk on March 10, to constitute an additional[ solicitation of employee grievances with a promise to take action on the grievances Stratton stated Polk told the Employee Action Committee members on March 10 that they would be working on certain employee policies and in doing so they should obtain feedback from the work force I have, as noted elsewhere in this decision, found the com- mittee to be a labor organization dominated by Respondent, however, I do not view the comments of Polk to Stratton to be an additional inde- pendent violation of Sec. 8(a)(1) of the Act. I shall, therefore, recom- mend dismissal of that portion of paragraph 9 of the complaint that al- leges Respondent through Manager Polk solicited from its employees grievances concerning their jobs and working conditions and promised its employees that action would be taken on"those grievances 14 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from (a) Sponsoring, assisting, and dominating the Employ- ee Action Committee of Ona Corporation, a Division of Ona Corporation, or any other labor organization. (b) Recognizing the Employee Action Committee of Ona Corporation, a Division of Onan Corporation or any successor thereto as the representative of any of its em- ployees for the purpose of dealing with Respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (c) Soliciting grievances from its employees concern- ing their jobs and working conditions and promising its employees that action would be taken regarding those grievances at a time when it had knowledge of the Union's campaign. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from and completely disestablish the Employee Action Committee of Ona Corporation, a Division of Onan Corporation or any successor thereto as a representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (b) Post at its place of business in Huntsville, Alabama, copies of the attached notice marked "Appendix."15 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I S If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges Respondent violated the Act other than found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. The National Labor Relations Act gives you as employ- ees certain rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT sponsor, assist, or dominate the Em- ployee Action Committee of Ona Corporation, a Divi- sion of Onan Corporation, Huntsville, Alabama, or any other labor organization. WE WILL NOT solicit grievances from our employees and promise our employees that action will be taken on their grievance at a time when we have knowledge of a union campaign. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section 7 of the Act. WE WILL withdraw and withhold all recognition from and completely disestablish the Employee Action Com- mittee of Ona Corporation, a Division of Onan Corpora- tion, Huntsville, Alabama, or any successor thereto as the representative of any of our employees for the pur- pose of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or con- ditions of work. ONA CORPORATION, A DIVISION OF ONAN CORPORATION