Airstream, Inc.

220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Airstream, Inc. and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW) and Presi- dent's Advisory Council (PAC), Party in Inter- est. Cases 8-CA-18263 and 8-RC-13163 March 25, 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION,, BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On February 26, 1986, Administrative Law Judge Marvin Roth issued the attached decision. The Respondent and the Charging Party Union filed exceptions and supporting briefs. The Union filed a brief in opposition to the Respondent's ex- ceptions and the Respondent filed cross-exceptions and a brief in response to the Union's exceptions.' 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 conclusions3 and to adopt the recommended Order as modified and set forth in full below.4 1 Because the Respondent filed exceptions to the judge's decision, it could not thereafter properly file cross-exceptions. In this regard, Sec 102 46(e) of the Board's Rules and Regulations restricts the filing of cross-exceptions to parties who have not previously filed exceptions Ac- cordingly, we shall strike the Respondent's proffered cross-exceptions We have, however, considered the arguments raised in the Respondent's accompanymg brief insofar as it constitutes a reply brief to the Union's exceptions The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Qr. 1951). We have carefully examined the record and find no basis for reversing the findings 3 Member Babson agrees with the judge's conclusions that the Re- spondent's letters to employees of March 11 and 12, 1985, violated Sec 8(a)(1) of the Act and constituted objectionable conduct only to the extent that both letters referred to the President's Advisory Council, which was found to have been unlawfully formed, dominated, and assist- ed by the Respondent, and that the March 12 letter threatened employees with losses of benefits Member Babson considers it unnecessary to pass on the judge's finding of additional violations and objectionable conduct based on these letters, including specifically the finding that the Respond- ent threatened employees with loss of jobs in the event of a strike be- cause such additional findings are essentially cumulative and would not materially affect the Order 4 The judge included in his recommended Order a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order In the circumstances of this case, we find it unnecessary to in- clude such a clause, and we shall modify the judge's recommended Order in this respect See Cherokee Marine Terminal, 287 NLRB No 53 (Jan. 28, 1988) We shall also modify the recommended Order to conform it to ORDER The National Labor Relations Board orders that the Respondent, Airstream, Inc., Jackson Center, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promising, announcing, or granting briefs or other improvements in terms and conditions of em- ployment, or redressing grievances, to discourage support for International Union, United Automo- bile, Aerospace and Agricultural Implement Work- ers of America (UAW), or any other labor organi- zation; provided, however, that nothing shall be construed as requiring Respondent to vary or aban- don any economic benefit or any term or condition of employment that it has heretofore established. (b) Forming, dominating, administering, or con- tributing fmancial or other support to President's Advisory Council (PAC) or any other labor orga- nization. (c) Threatening employees that it will not bar- gain in good faith, or that strikes will inevitably result, or that they will lose wages or benefits if they designate or select UAW, or any other labor organization, as their bargaining representative. (d) Threatening employees with permanent loss of jobs or other reprisals if they engage in a lawful strike. (e) Discriminatorily prohibiting the posting or exhibition of union literature on its bulletin boards or discriminatorily requiring employees to obtain permission before posting such literature. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw all recognition from and complete- ly disestablish the President's Advisory Council, and refrain from recognizing PAC or any successor thereto as the representative of any of its employ- ees for the purpose of dealing with the Respondent concerning wages, grievances, rates of pay, or other conditions of employment. (b) Post at its Jackson Center, Ohio plant copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director Tor Region 8, after being signed by the 8(a)(1) violation found with regard to the Respondent's discriminato- ry removal of union literature from its bulletin boards. 5 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" 288 NLRB No. 28 AIRSTREAM, INC. 221 the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent 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 Respondent has taken to comply. IT IS FURTHER ORDERED that the election con- ducted on March 15, 1985, in Case 8-RC-13163 be set aside and that this case be remanded to the Re- gional Director for Region 8 for the purpose of scheduling and conducting a second election at such time as he deems the circumstances permit a free choice of the issue of representation. 'Direction of Second Election omitted from pub- lication.] APPENI3IX 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 ordered us to post and abide by this notice. WE WILL NOT promise, announce, or grant bene- fits or improvements in terms and conditions of employment, or remedy grievances, to discourage support for International Union, United Automo- bile, Aerospace and Agricultural Implement Work- ers of America (UAW), or any other labor organi- zation; provided, however, that nothing requires us to vary or abandon any economic benefit or im- proved term or condition of employment that we have heretofore established. WE WILL NOT form, dominate, administer, or contribute financial or other support to President's Advisory Council or any other labor organization. WE WILL NOT threaten you that we will not bar- gain in good faith, or that strikes will inevitably result, or that you will lose wages or benefits if you choose the UAW or any other labor organiza- tion as your bargaining representative. WE WILL NOT threaten you with permanent loss of jobs or other reprisals if you engage in a lawful strike. WE WILL NOT discriminatorily prohibit the post- ing or exhibition of union literature on our bulletin boards or discriminatorily require employees to obtain permission before posting such literature. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw all recognition from, and completely disestablish PAC, and refrain from rec- ognizing PAC or any successor thereof as repre- sentative of any of our employees for the purpose of dealing with us concerning wages, grievances, rates of pay, or other conditions of employment. AIRSTREAM, INC. Frank D. Motil, Esq. and Jeffrey Sigel, Esq., for the Gen- eral Counsel. Roger B. Jacobs, Esq., of New York, New York, for the Respondent Employer. Joan Torzewski, Esq. and S'piros Cocoves, Esq., of Toledo, Ohio, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consolidated cases were heard at Lima, Ohio, on 6, 7, and 8 November 1985. 1 The charge in Case 8-CA-18263 was filed on 13 May by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the Union). The complaint, which issued on 27 June and was amended at the hear- ing, alleges that Airstream, Inc. (Respondent or the Company) violated Section 8(a)(1) and (2) of the Nation- al Labor Relations Act. The gravamen of the complaint is that the Company allegedly unlawfully interrogated and threatened employees with reprisal; promised, grant- ed, and withheld benefits in order to discourage support for the Union; and unlawfully formed, dominated, and assisted an employee grievance organization known as the President's Advisory Council (PAC). 2 The Compa- ny's answer denies commission of the alleged unfair labor practices. Pursuant to a stipulation for certification upon consent election approved by the Regional Director for Region 8 on 19 February in Case 8-RC-13163, the petition having been filed on 21 January, an election by secret ballot was conducted on 15 March among the employees of the Company in an appropriate bargaining unit. 3 The tally of ballots showed that of approximately 310 eligible voters, 299 cast ballots, of which 106 cast ballots for and 181 against the Union. There were 2 void ballots and 12 challenged ballots, which were insufficient in number to 1 All dates refer to 1985 unless otherwise indicated. 2 Par 6(C) of the complaint, alleging that the Company unlawfully dis- tributed "Vote No" buttons to its employees, was dismissed on motion of the Company, at the close of the General Counsel's direct case, and the corresponding Union Objection 4 was overruled 3 The unit consists of All production and maintenance employees employed by the Compa- ny at its three facilities in Jackson Center, Ohio, excluding all office clerical, professional employees, guards and supervisors as defined in the Act 222 DECISIONS OF THE NATIONAL-LABOR RELATIONS BOARD effect the results of the election. On 22 April the Region- al Director issued an order directing hearing on all ob- jections. The objections alleged that the Company: (1) promised benefits in order to influence the election out- come, (2) confiscated union literature, (3) made procom- pany campaign insignia available to employees, thereby forcing them to make known their preferences, (4) formed an employee committee to deal with manage- ment, (5) interrogated employees as to their union sym- pathies, (6) created the impression of loss of benefits and bargaining from zero, (7) "conducted a campaign of fear- strikes loss of benefits," and (unnumbered "catch-all" ob- jection) by the above and other related conduct, de- stroyed the necessary laboratory conditions for holding a fair election. By order dated 27 June, the Regional Di- rector consolidated the unfair labor practice and the rep- resentation cases for the purposes of hearing, ruling, and decision by an administrative law judge. All parties were afforded full opportunity to partici- pate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel, the Union, and the Company each filed briefs. On the entire record in this case, 4 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs submitted by the parties, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, a Nevada corporation, is engaged in the manufacture and nonretail sale and distribution of recreational vehicles at its Jackson Center, Ohio plant, which is the only facility involved in this case. 5 In the operation of its business, the Company annually ships products valued in excess of $50,000 directly from its Jackson Center facility to points outside of Ohio. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. The complaint alleges and the answer denies that PAC is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS TO THE ELECTION A. An Overview of the Allegations: The Company's Notices to its Employees On 30 January, 9 days after the Union filed its election petition, the Company posted on plant bulletin boards 4 Errors in the transcript have been noted and corrected 5 The stipulation for certification upon consent election referred to the Company's "three facilities" in Jackson Center In fact, the Company op- erates one facility which includes, in addition to an administrative build- ing, four production buildings the main recreation vehicle plant, which includes assembly lmes; the service building, which includes a retail oper- ation; a third building, which includes a finishing operation, and Hens- chen Industnal, located about a mile from the other buildings, which is primarily a weld shop. and distributed to its employees a notice identified as "Bulletin No. 1" of the Company's new "Awareness Program." This bulletin, which was signed by Company President Gerard LeToumeau, told the employees that in order to keep them "better informed," the Company was implementing an "awareness program," consisting of periodic bulletins that would "contain information on subjects that affect you, your job and the Company." The text of bulletin 1 read as follows: As I have discussed during our meetings over the past few weeks, the new procedures and programs have been implemented for the following reasons: 1. To obtain factual, unbiased attendance records. 2. To identify individuals who have attendance problems, so that we may help them. 3. To eliminate possible favoritism. 4. To improve productivity. Some of you have indicated your concerns over these procedures and programs and have made sug- gestions to me. As I've done in the past, I've lis- tened. Confirming what I have already told you, the following changes are made: 1. The card racks will be repositioned to elimi- nate congestion so as to speed up the process. 2. For those employees who go out to lunch, they may punch out as soon as the wash up buzzer is sounded (11:27 a.m.). 3. The point system has been suspended. 4. Effective Monday, January 28th, for Job Bid- ding purposes ONLY, current employees with prior Airstream and Argosy employment will receive credit on their seniority. On 11 March, 4 days before the election, the Company posted and mailed to its employees a letter signed by President LeTourneau setting forth reasons why the em- ployees should vote against the Union. The letter was di- vided into four sections, headed respectively "job securi- ty," "wages and benefits," "your vote," and "strikes." The first section asserted that the Union could not guar- antee job security and described loss of jobs at other plants where employees were represented by the Union. The second section, which is particularly pertinent to certain allegations of the complaint and union objections, read in pertinent part as follows: 1. CAN THE UNION GIVE US OUR 3 SICK DAYS BACK? NO! Only the Company can give—The Union takes your money. The President's Advisory Council is considering this issue as its first order of business. WHAT HAPPENS TO OUR WAGES AND BENEFITS IF A UNION WINS AN ELEC- TION? When bargaining begins—it begins at zero. The fmal package of wages and benefits may be lower than the package in effect prior to the election. [Emphasis in original.] The fourth section, which is pertinent to certain union objections, reads as follows: AIRSTREAM, INC. 223 1. HOW LONG COULD THE COMPANY TAKE A STRIKE? Sincerely longer than we would like our employ- ees to be without income or benefits. 2. HOW LONG WOULD EMPLOYEES BE WITHOUT PAY IN A STRIKE? The Company would not pay you anything during a strike and you would not get unemploy- ment insurance. 3. COULD AN EMPLOYEE LOSE HIS JOB IF HE GOES ON STRIKE? Yes! The law permits a company to permanently replace employees who strike. 4. IF THE UNION VOTES TO STRIKE DOES THE COMPANY THEN HAVE TO GIVE IN TO UNION DEMANDS? NO! The law does not require a company to agree to any demand made by a union. WHAT COULD I LOSE IF I HAD A UNION? A LOT! You could be required to take a pay cut of nearly 10% of your wages. That's exactly what happened to 119,000 union members in 1984, some of whom were U.A.W. members. (See en- closed Wall Street Journal story). Most present benefit plans apply only to Non- Union employees. Therefore, your present Profit Sharing, group insurance, and bonus plan could ter- minate. You could lose all the nice things the Compa- ny does for you voluntarily. Your free coffee, sports and recreation activities, Christmas bonus, turkeys and hams, etc. You would lose the right and freedom to indi- vidually deal with us directly about your prob- lems.- You would also lose part of your earnings. Union dues are about $200 annually. Also, the Union can charge fines and assessments. You could be forced to STRIKE against your wishes. In a strike called by the Union, your pay- check would cease and you do not get unemploy- ment insurance. Strikers' wives are hurt the most during a strike, savings are used up, and vaca- tions could be lost. (See "A Striker's Wife Speaks Her Mind About the Cost of Strikes") Stack what you have against what you can lose. Believe us, we have nothing to give a Union that we haven't given to you. In brief, we don't know of any RV or related company in the entire U.S. that has better wages, better benefits and better working conditions than Airstream and Henschen. This is the last time I will be able to write to you before the election on Friday, March 15th. I have listened, we have listened, you have certainly been heard, loud and clear. This is very apparent with the President's Advisory Council (PAC), your voice, in your Company. You have nothing to lose and everything to gain by voting NO. VOTE NO II! [Emphasis in original.] These three notices are highly significant to the merits of the present case. They form the basis or constitute an important part of the evidence concerning several allega- tions of unfair labor practice or otherwise objectionable conduct. They also contain admissions that are not only significant, but in some respects are virtually dispositive of the merits of the case. Indeed, much of the testimony presented by the Company was directed at contradicting the damaging admissions contained in those documents. B. Announcements and Grant of Benefits Prior to the Formation of PA C As indicated in bulletin I, President LeTourneau re- ferred to the fact that the Company had recently institut- ed "new procedures and programs" concerning employ- ee attendance. Prior to December 1984 the employees were entitled to 3 paid sick or personal days off each year, which they could use as they wished. However, the Company was not satisfied with employee attend- ance. LeTourneau testified that the Company always had an attendance problem and, in particular, that there was high absenteeism in January and February because em- ployees tended to use their personal days as soon as pos- sible. In December 1984 the Company announced that effective as of January 1 it would terminate the sick/- personal day program and substitute instead an absentee control policy and an attendance incentive program. The control policy provided for progressive discipline, culmi- nating in discharge, for excessive absenteeism and tardi- ness. The incentive program provided for cash bonuses for perfect attendance. As testified by employee Larry Hittepole, the employees were upset over the loss of their 3 personal days, and were not ameliorated by the substitution of the incentive program. Even LeTourneau admitted that in this semirural area, where many employ- ees engaged in side activities like farming and hunting, there was an obvious preference to take an occasional day off. Nevertheless, on 14 January the Company in effect rubbed salt into the employees' wounds by install- ing timeclocks, which had not been used, except at Hens- chen Industrial, for some 8 years. One week later the Union filed its election petition, and 9 days thereafter, as indicated, the Company announced that it was suspend- ing the "point system," i.e., the absentee control policy, and in addition was repositioning the timecard racks and permitting employees to leave the plant for lunch as soon as the washup buzzer was sounded. LeTourneau had considerable difficulty in placing the time of his retreat from the Company's new attendance and absenteeism programs. As an adverse witness for the General Counsel, LeTourneau testified that he initially modified the control policy to allow for excused medical reasons, and subsequently in late December (i.e., before the policy had even gone into effect), suspended the policy. At another point, LeTourneau testified that he and Board Chairman Thompson announced the changes described in bulletin 1 at a shopwide meeting for em- 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees on 25 February. However, in a position letter to the Board's Regional Office, company counsel stated that on 28 January the Company modified the policy to allow for excused medical absences, and on 30 January (the date of bulletin 1) totally suspended the policy. 6 As a company witness, LeTourneau belatedly admitted that he suspended the disciplinary point system, but not the attendance bonus program, pursuant to bulletin 1. Le- Tourneau's professed reason for this change was no more credible than his initial testimony concerning the date of the change. LeTourneau testified in sum that he termi- nated the disciplinary point system because that system and the attendance bonus program became cumbersome and difficult to administer. The first problem with this explanation is that it is contrary to what LeTourneau told the employees. As indicated, LeTourneau told the employees in his bulletin 1 that he was suspending the disciplinary point system as well as making other changes indicated in the bulletin, in response to the em- ployees' expressed "concerns" and "suggestions." Second, LeTourneau's testimony fails to explain why he suspended the disciplinary point system while retaining the attendance bonus program, although both were os- tensibly cumbersome and difficult to administer. (As will be discussed, the Company at a later date, using PAC as its instrumentality, scrapped the bonus program and re- stored the program of 3 personal days after determining through PAC that the employees preferred such a change). Suffice it to say, at this point, that the Compa- ny's action of 30 January belies the testimony of LeTour- neau that he declined to implement restoration of the 3 personal days because of the pending election. It is evi- dent from the 30 January bulletin that the Company had no reservations about changing working conditions if it believed that such changes would improve its position in the pending election. Here, the Company modified its carrot and stick approach to the attendance problem by withdrawing the stick (the disciplinary point system) while continuing for the time being to hold out the carrot (the attendance bonus program). I find in light of the timing, manner and circumstances of the Company's action, the Company's admissions and demonstrably false reason given for its action, and the Company's overall course of action including the manner in which it re- stored the 3 personal days, that the Company suspended its disciplinary point system, thereby granting a benefit and redressing employee grievances, in order to discour- age employee support for the Union. The Company thereby violated Section 8(a)(1) of the Act and interfered with the conduct of the election. See generally NLRB v. Exchange Parts Co., 375 U.S. 405,409-410 (1964); NLRB v. Pandel-Bradford, Inc., 520 F.2d 279-282 (1st air. 1975). Concerning item 2 of bulletin 1 (punchout time), Le- Tourneau offered no explanation for the timing of this change, nor did he offer any explanation of the reason for the change other than as a benefit to the employees. LeTourneau testified that the Company repositioned the card racks (item 1 of bulletin 1) in order to reduce con- 6 The Company's position letter and the statements contained therein may properly be considered as admissions by the Company. Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969). gestion around the timeclocks. (The General Counsel and the Union do not contend that the Company thereby acted unlawfully.) However, LeTourneau offered no comparable explanation for item 2. That change affected a practice that predated the installation of timeclocks. Prior to 30 January the employees had a 30-minute lunch period, commencing at 11:30 am., which was preceded by a 3-minute washup period. However, those employees who wished to leave the plant during their lunch period could not do so until 11:30 a.m., even if they did not Wish to wash up before leaving. However, pursuant to the change announced in bulletin 1, they could leave at 11:27 a.m. The Company contends (Br. 58) that it could not have violated the Act because the employees re- ceived no benefit from this change. I do not agree. The net effect of this change was to increase by 3 minutes the lunchbreak for those employees who wished to leave the plant without making use of a separate washup period. The Company thereby granted a benefit to its employ- ees. In light of the timing of this change, the Company's professed reason for this and other changes as stated in bulletin 1, and the absence of any business explanation for this change, credible or otherwise, I find that the Company extended its employees' lunch period in order to discourage einployee support for the Union, and thereby violated Section 8(a)(1) of the Act and interfered with the conduct of the election. Indeed, it is evident from these factors that the Company took this action in order to mollify employee discontent over the installa- tion of timeclocks and other measures designed to tight- en-up on employee attendance. Item 4 of bulletin 1 concerned in part a new project known as the Argosy line, consisting of the prOduction of an economy version of the Company's recreational ve- hicle. This project was under development and study for about a year and a half. In January the Company began hiring employees for the Argosy project. Company em- ployees were invited to bid for jobs on Argosy. Under the Company's job bidding system, selection is made "in accordance with seniority, skill and ability," but the final decision is "subject to the qualifications needed." Prior to 28 January, employees who previously worked for the Company, were permanently laid off, and then returned to the Company did not accumulate or retain seniority based on their prior employment. Thus employee Lonnie Ott, who began working for the Company in 1975, worked until 1978, including work on a line known as Argosy (which was not the same product as the new Argosy), was laid off, and returned to work in 1980 as a new employee, could not accumulate seniority based on his pre-1980 employment for job bidding or any other purpose. However, as a result of the 30 January an- nouncement, Ott and other employees similarly situated could use their prior employment toward seniority for job bidding purposes. President LeTourneau testified that he made this change in the job bidding policy because he wanted experienced, skilled employees for the Argosy project and because he feared that if only new employ- ees were hired for the project, they might all be subject to layoff at some future time. I find that this explanation is not credible either as to the reason for or the timing of AIRSTREAM, INC. 225 the change. First, as with other testimony by LeTour- neau, his explanation conflicts with what he told the em- ployees, namely, that these and other changes were made in response to the employees expressed "concerns" and "suggestions." Second, as indicated, seniority is only one factor in the Company's job bidding system. If the Com- pany wanted employees with experience on the prior Argosy line, it could have selected such employees on the basis of demonstrated skill and ability, even if such experience did not count for seniority purposes. Third, the Company did not give itself any assurance against layoff of experienced, skilled employees because seniority, was expanded for job bidding purposes only, i.e., and not for purposes of layoff and recall to work. In sum, the Company gave certain employees a benefit that did not result in any business benefit to itself. Fourth, the change' was not limited to the Argosy project, but extended to all job bidding. Fifth, I find it incredible that the Compa- ny suddenly discovered a business need for this change in late January, shortly after the Union filed its election petition, notwithstanding that it had been studying and developing the Argosy project for 1-1/2 years and had already begun hiring employees for the project. In light of the foregoing factors, and the Company's overall course of conduct, which has been and will be discussed, I find that the Company announced and granted expand- ed seniority rights in order to discourage employee sup- port for the Union. The Company thereby violated Sec- tion 8(a)(1) and interfered with the conduct of the elec. tion.7 The Union contends (Br. 21-22) that the Company un- lawfully instituted a program of birthday luncheons for its employees. Under this program, the Company spon- sored monthly catered luncheons for employees celebrat- ing their birthdays during the month. President LeTour- neau initially testified that the Company decided in No- vember 1984 that it would institute this program. Le- Tourneau even claimed (as did the Company in its posi- tion letter) that the employees were informed of this pro- gram at a meeting in November 1984. However, Le- Tourneau subsequently testified that he decided on the program in mid-December 1984. LeTourneau admitted that the Company did not actually commence holding such luncheons until the last week of January, after the Union filed its election petition. According to LeTour- neau, the Company did not hold luncheons in December because he wanted to put the program on an annual basis. He also offered another, inconsistent explanation, namely, that it was difficult to schedule a luncheon in December because of the holidays. Neither assertion would explain why the Company would wait until the last week in January to hold the first luncheon. Assum- ing that LeTourneau announced the program in Novem- ber, it is probable that LeTourneau would have honored the December celebrants either before or shortly after 7 The complaint alleges that the Company, "through PAC," granted the benefits announced in bulletin 1. In fact, PAC did not exist as of 30 January. As will be discussed, the Company later granted benefits, using PAC as its instrumentality The Company's actions were unlawfully mo- tivated and therefore unlawful whether or not granted through PAC. Therefore the General Counsel has proven the allegations of par 7(D) of the complaint, the holiday period. Indeed December would seem to be a natural time for such a festive event. If LeTourneau announced the program in November and then waited over 2 months to hold the first luncheon, he would be offending those employees whose birthdays fell during December. I do not credit any of the various explana- tions offered by LeTourneau. I find that the Company initiated the birthday luncheon program after the Union filed its election petition, as a means of discouraging em- ployee support for the Union. The Company thereby violated Section 8(a)(1) of the Act and interfered with the conduct of the election. The Union also contends (Br. 22-23) that the Company unlawfully granted a bene- fit to the employees when it announced its "Awareness Program." I do not agree. So far as indicated by the present record, the awareness program amounted to nothing more than an employer propaganda device. I find that the awareness program constituted an exercise of employer opinion, and was unlawful only to the extent that the employer used its bulletins to convey dis- criminatory promises of benefit or threats of reprisal, or otherwise as a means of engaging in unlawful conduct. C. Formation and Conduct of PAC and Alleged Announcement and Grant of Benefits Through PAC Prior to the election campaign the Company had a practice known as "rap sessions?' The Company sum- moned its employees on a rotating basis in groups of about 20 employees to periodic meetings that were con- ducted once or twice each month. In 1980, when the practice began, employees could expect to be summoned to these meetings about once in 9 months. By 1985, be- cause of the Company's expansion, employees could expect to be summoned about once in 2 years. The em- ployees were not given advance notice as to when they would attend. LeTourneau presided at the meetings. The employees present were invited to ask questions and make suggestions. The evidence fails to indicate whether the Company made any changes in working conditions or resolved any grievances as a result of these meetings. LeTourneau testified in sum that the Company used these meetings to maintain communication between the Company and its hourly rated employees. The General Counsel does not contend that the practice of rap ses- sions was unlawful. In late February the Company notified its employees, through written notices distributed by foremen, that the Company was forming a "President's Advisory Council" (PAC). About I March the Company summoned its em- ployees in groups, organized along departmental lines as defined by LeTourneau, to a series of meetings that were conducted by LeTourneau.s He told the employees that B Employee Ott testified that when summoned by General Foreman Tom Edwards, he told Edwards that he was not Interested in PAC be- cause he wanted the Union, but that Edwards answered that it was a paid company meeting and he had to attend Edwards testified that Ott did not object to attending the meetings. However, the evidence fails to indi- cate that the Company told the employees that their attendance was vol- untary. Therefore, as the meetings were conducted on paid company time, the employees could reasonably assume that they were required to attend. Therefore, I also find it unnecessary to resolve what, if anything, was said between Ott and Edwards. 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they would be choosing representatives for an advisory council. LeTourneau's secretary distributed and collected ballots. LeTourneau instructed the employees to desig- nate, in order, three choices. The secretary tallied the ballots in accordance with a point system devised by Le- Tourneau (giving 10, 5, and 1 points for first, second, and third choice, respectively), and LeTourneau an- nounced the results. The employee with the highest vote was designated as representative of his group, and the next highest was designated as alternate, who would serve if the elected representative declined or was unable to serve. The Company also posted the results of the elections on plant bulletin boards. LeTourneau scheduled the first meeting of PAC representatives for 11 March, 4 days before the scheduled Board-conducted election. A few days before the 11 March meeting, LeTourneau dis- tributed a written agenda to the representatives, with an attached copy of the Company's rules of conduct for em- ployees. The agenda included both procedural and sub- stantive matters, including "Rules of Conduct Review" and "Attendance Bonus vs. Sick Pay/Personal." At the 11 March meeting the representatives, at LeTourneau's instruction, drew lots for staggered initial terms of 6, 4, and 2 months. (Thereafter representatives would be chosen for 6-month terms.) LeTourneau proposed a schedule for future meetings, reviewed the Company's rules of conduct, and listened to employee complaints about the rules. LeTourneau then opened discussion on the matter of attendance bonus versus sick pay/personal. He explained the attendance bonus and expressed the Company's preference for that program. However, the representatives, by their comments, indicated that the employees preferred the former 3 personal day policy. LeTourneau told the representatives that the Company would review the matter, but could not make any changes before the Board election. He asked them to survey the employees in their respective groups as to their views on the matter in order to obtain "employee input for that decision." He also asked for suggestions on improvements in the work rules. Employee Russell Arm- strong, who was the PAC representative for his group, testified that after the 11 March meeting he polled the employees in his group on the matter of attendance bonus versus sick pay/personal. As indicated, the Com- pany, by letter dated 11 March, informed its employees that PAC "is considering this issue as its first order of business." The 11 March meeting, which was typical, lasted about 1-1/2 hours. The representatives attended these meetings and conducted their other PAC activities on company time, for which they were paid. In view of the foregoing findings, which Are based on the testimony of employee witnesses (principally Armstrong), the ad- missions of LeTourneau in his testimony, and company documents, i.e., campaign literature and minutes of PAC meetings, I do not credit LeTourneau's initial testimony that PAC first came into existence in late March, or his subsequent assertion that the 11 March meeting was simply for organizational purposes and that PAC did not officially meet until after the Board-conducted election. Rather, as indicated, I find that PAC was formed and commenced functioning before that election. PAC next met on 19 March. On 21 March LeTour- neau distributed a "recommended" sick pay/personal day program that was in effect a revival of the former system used by the Company prior to January 1985. LeTour- neau requested that the representatives review the pro- posed program and return their comments for review by LeToumeau and Board Chairman Thompson on 26 March. At the next PAC meeting on 27 March, LeTour- neau informed the representatives that the Company was reinstituting the sick/personal day program effective as of 1 April. LeTourneau also told them that employees Who qualified for an attendance bonus for the first quar- ter of 1985 would receive their bonus. Having disposed Of that problem, LeToumeau moved on to deal with an- other area of possible employee discontent. By memo dated 28 March, which was distributed to the PAC rep- resentatives with an attached copy of the Company's job bidding system, LeTourneau asked the representatives to review that system for discussion at the next PAC meet- ing on 3 April. At that meeting the representatives ex- - pressed satisfaction in general with the bidding system. (As indicated, the Company previously extended seniori- ty rights for job bidding purposes based on prior Air- stream and Argosy employment, although that change was not expressly written into the job bidding system.) However, the representatives, and particularly Arm- strong, questioned a practice that was not specifically covered by the written system. If an employee success- fully bid for and was awarded a job, but was terminated after completing the 60-day probationary period, the Company did not repost the job, but instead awarded it to the next qualified bidder. The representatives argued that in such cases the job should be reposted. LeTour- neau and Director of Personnel Don Voss, who was also present during this discussion, agreed that a change was warranted. However, when the Company subsequently failed to repost a job in such circumstances, Armstrong complained about the matter, and LeTourneau placed his complaint on the PAC agenda (meeting of 22 August). Thereafter the job in question was reposted and awarded to another employee. This matter, and the matter of at- tendance bonus versus sick pay/personal were not the only instances in which the Company changed its per- sonal practices or redressed grievances through PAC. In June or July Armstrong complained to LeTourneau that three employees who successfully bid for jobs had not received the higher rate of pay for those jobs. As a result of Armstrong's complaint the Company gave backpay to the employees. The representatives also indicated their preference that a paid holiday in July be replaced with a paid day off in December, in order to extend the Christ- mas-New Year vacation period. LeTourneau agreed that this would be done commencing in 1986. LeTourneau also attempted to resolve grievances concerning compa- ny policy or personnel actions without changing the Company's position, e.g., by explaining or attempting to justify the Company's position, or by looking into the problem and concludmg that no change was warranted. However, LeTourneau also restricted the structure and activities of PAC in order to assure that this pussycat would not turn into a tiger. LeTourneau did not provide AIRSTREAM, INC. 227 , for a chairman or other officers, thereby leaving PAC leaderless. He also tried to limit the areas of discussion by refusing to discuss pay raises and by telling the repre- sentatives that they could not intervene in problems be- tween employees and their supervisors. However, by re- solving other grievances through PAC, the Company in effect insulated itself from further grievances over such matters. Thus, for example, if in the future an employee or employees complained about the loss of the attend- ance bonus, LeTourneau would be in a position to assert that the employees had no cause to complain because the employees, through their chosen representatives, agreed to substitute the personal/sick pay day program. • LeTourneau testified in sum that PAC was simply an alternative to the former rap sessions. According to Le- Tourneau, he found that with the Company's growth, the rap sessions were losing their effectiveness as a com- munication device between management and the hourly rated employees. Therefore, in November 1984 he ar- ranged for an outside consultant to conduct a survey among the employees to determine the effectiveness of the rap session program. As a result LeTourneau con- firmed what he suspected, namely, that the program was losing its effectiveness as a communication device. Therefore he instructed then Personnel Manager Peter LeDuke to come up with alternatives. In November, 1984 LeTourneau and LeDuke learned of a PAC-type program at another firm. In December 1984 he began to work out the details of such an "advisory group." In' February he informed the employees that he was ready to put together such a group, but that "I could not do anything until after the Union election." , As discussed, PAC was in fact organized and corn- , menced functioning before the election. LeTourneau gave away the game concerning his chronology of the emergence of PAC when he testified about a conversa- tion he had with employee Dennis Faulder. LeTourneau testified as follows: A. The first meeting with Denny Faukler occurred on the mezzanine where, after one of the group meet- ings where we were discussing the survey results if you will, then I called all the, about 20 employees together to view the results, and he came out and told me that he was having difficulty with Mr. Carman and Mr. Koenig about becoming a group leader, I believe. It was during the union campaign, and I informed Mr. Faulder that I could not discuss that with him at this time, and that after the Union vote, either way, that I would, then,—you know, I could then consid- er his complaint with Mr. Carman and Mr. Kenny Koenig. . . Q. And do you have a time reference other than it was before the election? March 1 to March 15. Is that— A. Excuse me. The early part of March, yes. [Em- phasis added.] In sum, according to LeToumeau's own admission, the alleged survey (assuming that it took place at all) oc- curred after the Union filed its election petition. More- over, LeTourneau's assertion that PAC was nothing more than a communication device, comparable to the rap sessions, was contradicted by the Company's own representations to its employees. Thus, in its 11 and 12 March letters, the Company held out PAC as the em- ployees' representatives, i.e., "your voice, in your Com- pany," and that PAC could negotiate with management concerning working conditions and employee grievances, specifically, restoration of the sick/personal days, which PAC was "considering. . . as its first order of business." The Company encouraged and assisted the PAC repre- sentatives to function as the elected representatives of their respective groups. Thus the Company posted the names of PAC representatives on its bulletin boards. Le- Tourneau asked the representatives to survey the em- ployees in their respective groups concerning the matter of attendance bonus vs. sick pay/personal. Representa- tive Armstrong testified that LeTourneau instructed the PAC members with regard to employee complaints that they should instruct the employees to speak first to their supervisor and, if the matter was not resolved in this manner, the representative should present the problem either directly to LeTourneau or at a PAC meeting. Nonrepresentative employees were not invited to attend the meetings. Armstrong further testified that employees in his group routinely came to him with questions, com- plaints, and comments, and that he sometimes took time out from his work to answer them. Armstrong also testi- fied that, acting on his own initiative, and without ob- taining company permission, he took over a bulletin board and used it to post agendas and other notices con- cerning PAC. Significantly, management did not object to this practice, although the Company has a policy that prohibits posting of items on its bulletin board without permission of the employee's supervisor or the personnel department. (This matter will be discussed further in connection with Union Objection 3.) The Company does not dispute that it formed and dominated, and has continued to dominate and support, PAC. Rather, the Company contends (Br. 63) that the al- legations of the complaint pertaining to PAC should be dismissed because PAC is not a labor organization within the meaning of the Act. The Company argues (Br. 66) that PAC "was little more than regularized gripe ses- sions." The difficulty with the Company's position is that, for the reasons discussed above, its position runs contrary to the evidence, including the Company's own assertions to its employees. Section 2(5) of the Act de- fines the term "labor organization" as: any organization of any kind, or any agency or em- ployee representation committee or plan, in which employees participate and which exists for the pur- pose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. In NLRB v. Cabot Carbon Co., 360 U.S. 203, 211 (1959), the Supreme Court held that the "broad term dealing with," in Section 2(5), should not be "read as synony- mous with the more limited term bargaining with." 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Therefore the Supreme Court held in that case that the Board could properly find that the employer unlawfully dominated certain employee committees, notwithstanding that the committees, although presenting grievances and making "proposals and requests," did not seek to negoti- ate contracts with the employer. In the present case, PAC falls within the statutory def- inition of a labor organization. PAC was and is a struc- tured organization through which the Company's em- ployees elect representatives who purport to act on behalf of their electorate. The Company purported to deal with them as representatives and encouraged and as- sisted them to act in a representative capacity. The PAC representatives presented grievances, either at PAC meetings or directly to President LeTourneau, and sub- mitted "proposals and requests" to the Company. The Company in turn met and conferred with the PAC rep- resentatives concerning such matters, attempted to reach an understanding or agreement concerning matters in dis- pute, and sometimes charged its personnel policies and practices after consultation with PAC. Therefore PAC is a labor organization, comparable to the employee com- mittees that were recently held to be labor organizations in Lawson Co. v. NLRB, 753 F.2d 471 (6th Cir. 1985); Texas Bus Lines, 277 NLRB 626 (1985); and Hunter Douglas, Inc., 277 NLRB 1179 (1985). Indeed in Lawson, the court of appeals distinguished its earlier decision in NLRB v. Scott & Fetzer Corp., 691 F.2d 288 (6th Cir. 1982), heavily relied on by the Company (Br. 69), using language that is squarely applicable to the facts of the present case. In Lawson the court held as follows (753 F.2d at 477): Streamway merely held that the particular employee committee under consideration was not a labor or- ganization as defined by the Act. The employees in Streamway communicated with management on an individual rather than representative basis; the em- ployer did not exhibit an anti-union animus; the committee was formed well before any union orga- nizational drive began; and there was only one iso- lated incident of the company granting a benefit after consultation with the committee. . . . In contrast to the employee committee in Stream- way, Lawson's Sales Assistant Committee was estab- lished at the height a a union organizational cam- paign and was representational in nature. Further, the record establishes that Lawson exhibited an anti-union animus and that recommendations by the committee were quickly adopted by the Company. In short, Lawson may not take advantage of the narrow holding in Streamway. In the present case, as in Lawson, but unlike Streamway, PAC was representational in nature and established at the height of a union organizational campaign, in the context of strong and outspoken employer animus toward the Union, and the Company granted benefits after consultation with PAC, including the crucial matter of restoration of the personal/sick day program.9 I further find that the Company formed by President LeTourneau, dominated, and otherwise unlawfully assist- ed PAC to function as a labor organization. The Compa- ny thereby violated Section 8(a)(2) and (1) of the Act and interfered with the conduct of the election. ° Le- Tourneau conducted the elections for PAC representa- tives and subsequent PAC meetings and established the procedures for both, as well as the form and structure of PAC. Elections, PAC meetings, and other PAC activi- ties were conducted on working time, for which the em- ployees were paid. Here, as with the employee commit- tee in Lawson, the Company formed PAC in direct re- sponse to the Union's organizational campaign, PAC held no meetings apart from its discussions with manage- ment, PAC formed no coherent program or plan of action, and PAC was directed to discuss only those sub- jects that LeTourneau deemed appropriate. The meetings were held on company premises and the employee repre- sentatives were paid for their time. Discussion proceeded according to an agenda prepared by management. The employees did not take minutes, and communications concerning PAC's work were written and circulated by management. (753 F.2d at 477-478.) In Lawson, the court further held that: The ultimate question with respect to unlawful domination or interference is whether the employer has been able to "induce adherence of employees to the [labor organization] in the mistaken belief that it was truly representative and afforded an agency for collective bargaining. . . . An employer dominates a labor organization if employer cooperation with the employee committee "inhibit[s] self-organization and free collective bargaining." In the present case, the Company engaged in just such a course of conduct. One need look no further than the Company's 11 March campaign letter, in which the Company emphasized the theme that the Union could not restore the 3 personal days, that only the Company could do so, and that PAC was considering this issue as its first order of business. In sum, the Company made clear its ultimatum that the employees could get back their 3 personal days only if they rejected the Union and accepted PAC as their representative. I further find that by its 11 March letter, the Company promised restora- tion of the personal/sick day program if the employees expressed a preference for such through PAC, in order 9 The Company's reliance on Clare Hospital, 273 NLRB 1755 (1985), is also misplaced In C/are, there was no "employee representation commit- tee or plan" The "Communications Task Force" in that case consisted of two supervisors who were unquestionably acting on behalf of manage- ment. There was no contention that that task force was a labor organiza- tion. Rather the issue presented in that case was whether creation of the task force constituted a grant of a benefit during an election campaign, or was simply a continuation of a pnor employer practice 1 ° The complaint alleges that the Company engaged in such activity through LeTourneau and Chairman Thompson The General Counsel presented only minimal evidence concerning Thompson's involvement with PAC However, it is undisputed that LeToumeau was pnncipally and continuously involved with PAC AIRSTREAM, INC. 229 to discourage support for the Union. Therefore, and to this extent, the allegations of paragraph 6A of the com- plaint have been sustained by the evidence. Thereby the Company also unlawfully interfered with the election. I do not agree with the Union's contention (Br. 24) that the establishment of PAC was itself the grant of a bene- fit. The establishment of a company-dominated labor or- ganization is not a benefit, but an impediment to genuine self-organization. However, the Company did act unlaw- fully to the extent that it used PAC as a means of ex- pressly or impliedly promising benefits in order to dis- courage support for the Union. D. Additional Union Objections Based on Company Campaign Literature and Speeches The Union contends (Br. 33-39) that the Company, through its campaign literature and speeches, made un- lawful statements or otherwise interfered with the ,con- duct of the election. I have already found that the 11 March letter conveyed an unlawful promise to restore the personal/sick day program through PAC. I further find that the 11 March letter contains several unlawful threats. First, the Company coupled its promise with the categorical assertion that the Union could not restore the personal/sick day program because "only the Company can give." The plain implication is that the Company would not bargain in good faith with the Union concern- ing this or any other matter if the Union won the elec- tion. At no point in the 11 March letter did the Compa- ny state or even imply that it would bargain in good faith with the Union. Rather the letter suggests that the employees might lose wages and benefits (but does not suggest they might gain anything) if the Union won the election. This suggestion is followed by a recitation of the purported consequences of a strike, including asser- tions that "the law permits a company to permanently replace employees who strike," and "the law does not require a company to agree to any demand made by a union." Notwithstanding this latter assertion, the Compa- ny states in this same letter that $15-$20 per month "will be deducted from your paycheck to pay for the Union" [emphasis added], although any such deduction would have to be negotiated through collective bargaining In sum, and particularly when viewed in the context of the Company's assertions regarding the personal/sick day program, the plain implication of the letter is that the Company would negotiate (if at all) only downward, that it would not negotiate with the Union concerning improved wages and benefits, and that if the employees selected the Union and wanted improved wages, benefits, and other working conditions, they would have no alter- native but to go on strike. The Company thereby unlaw- fully threatened the employees that if they selected the Union as their representative, the Company would refuse to bargain in good faith, and the employees would be forced to go on strike. The Company repeated this same theme in its followup letter of 12 March, in which the Company said nothing about negotiations or bargaining. Rather, the Company asserted that as a direct conse- quence of unionization, i.e., "if I had a union," the em- ployees could, among other consequences, take a 10-per- cent pay cut and "lose all the nice things the Company does for you voluntarily" and "would" also lose part of their earnings. These assertions were again coupled with a description of the consequences of a strike, followed by assertions that "We have nothing to give a Union that we haven't given to you," and that "You have nothing to lose and everything to gain by voting NO." Here again, the plain implication is that if the employees se- lected the Union as their representative, the Company would not negotiate in good faith with the Union con- cerning improved wages and working conditions, but would only negotiate downwards or retaliate by unilater- ally reducing wages or eliminating benefits, and that the employees would be forced to strike. See Naum Bros., 240 NLRB 311, 317 (1979), enfd. 637 F.2d 589, 592 (6th Cir. 1981). In the context of the Company's unlawful threats that it would not bargain in good faith with the Union, I find that the Company's erroneous assertion that "the law permits a company to permanently replace employees who strike," constituted an unlawful threat to permanently replace striking employees, regardless of whether they struck in protest of the Company's unlaw- ful refusal to bargain or other unfair labor practice. American Medical Insurance Co., 224 NLRB 1321 fn. 2, 1329 (1976). Therefore, and to the extent indicated above, I find that Union Objections 7 and 8 have been sustained by the evidence. Employee Lonnie Ott testified that on 14 March at 3:15 p.m., Board Chairman Thompson delivered an an- tiunion speech to employees assembled at the main plant. Thompson, in his testimony, disputed certain testimony by Ott concerning the contents of that speech, but he did not dispute Ott's testimony that he made such a speech. The election was conducted the following day (15 March) from 2 to 3:30 p.m. The Union contends (Br. 34- 35) that the Company violated the Board's Peerless Ply- wood rule, 11 by making an election speech on company time to a mass assembly of employees within 24 hours before the scheduled time for conducting the election. The Union made out a prima facie case that the Compa- ny violated the rule. However, I find that this matter was not fully or fairly litigated. The Union never specifi- cally objected to the election on this basis and did not raise its contention until it filed its posthearing brief. Therefore, the Company was not put on timely notice of the Union's contention, and did not have an adequate op- portunity to state its position or present evidence ad- dressed to that contention. The Board's Rules (Sec. 102.69) require the objecting party "to pinpoint its alle- gations of misconduct with reasonable clarity." Atlantic Mills Servicing Corp., 120 NLRB 1284, 1287 (1958). The Union's "catch-all" objection is not adequate for this pur- pose. Emerson Electric Co., 247 NLRB 1365, 1388 (1980), enfd. 649 F.2d 589 (8th Cir. 1981). Therefore I am reject- ing this contention. "Peerless Plywood Co., 107 NLRB 427, 429 (1953) 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. Alleged Unlawful Threats, Promises, Interrogation, Solicitation, and Interference Involving Individual Employees 1. Dennis Faulder Dennis Faulder began working for the Company in 1968. In December 1980 Faulder transferred from the fixup department to the sewing department. The Compa- ny made Faulder an upholstery cutter, and abouf 2 years later promoted him to sewing room attendant and gave him a pay increase. Faulder, the only male employee in the sewing department, performed a variety of tasks in addition to cutting. He considered himself a group leader, although the Company did not. (There was no group leader in the sewing department.) Faulder was not so classified, and he did not receive a group leader's rate of pay. Faulder's additional tasks were of a routine or clerical nature, and he was not called on to take a leader- ship role in the department. However, he repeatedly re- quested a promotion to group leader. In 1983 Faulder made a written request for a promotion. The Company's records indicate that Company Vice President for Pro- duction James Carman denied the promotion on the ground that Faulder did not have the responsibilities of a group leader. Faulder testified that in 1984 Carman told him that "when I get good and ready I'll make you a leadman." Faulder testified that he also spoke to Presi- dent LeTourneau, who said he would speak to Carman, but that he could not recall whether LeTourneau got back to him. Faulder testified that he did not participate openly or actively in the union campaign. He testified that in Feb- ruary Carman summoned him to his office and spoke to him as follows: Carman asked who was informing the Union about what was going on, and who was passing out cards. He asked Faulder to write down the names and put the list on his desk. He also asked how the sewing room employees felt about the Union and how they would vote. Faulder testified that he did nothing about Carman's requests. However, he failed to testify as to what he told Carman and, specifically, whether he promised to comply with those requests. Faulder testified that Carman repeated his requests on subsequent occa- sions, the last time being about 2 weeks before the elec- tion. He testified that on these occasions he simply an- swered that he did not know, and also said that he would vote against the Union. Faulder testified that also about 2 weeks before the election LeTourneau told him that he would be getting his "leadman's (i.e., group lead- er's) pay and everything that goes with it." Faulder testi- fied that about 2 weeks after the election Carman told him that he would let him know as soon as he could get with LeTourneau, but that General Foreman Kenneth Koenig, Faulder's immediate supervisor, told him Carman (Faulder) that he "would receive leadman's pay when the first Argosys went on the line." However, Faulder was subsequently summoned to LeTourneau's office, where LeTourneau, Carman, and Koenig were present. Faulder testified m sum that they told him they could not make him a leadman because of his prior trou- ble with the law and because of his present health prob- lems (which will be discussed further). Faulder testified that a few weeks later he told Carman that if he could not be a leadman he wanted to transfer out of the sewing department. Carman told him that he would lose money if he went back to fixup, whereupon Faulder said he would remain. However, according to Faulder, 2 days later he was transferred back to fixup against his will, at a reduction in pay. Faulder further testified that shortly before the present hearing he asked Carman why Carman was bringing up his past, whereupon Carman answered "We're going to burn you." LeTourneau, Carman, and Koenig were each present- ed as company witnesses concerning the Faulder allega- tions. As indicated, LeTourneau testified concerning a conversation with Faulder in early March. LeTourneau testified in sum that Faulder complained about his unsuc- cessful efforts to become a group leader. LeTourneau told him that he could not then discuss the matter, but that after the election he would talk to Carman and Koenig. About 17 March LeTourneau, Carman, and Koenig met with Faulder. LeTourneau testified that he told Faulder that, in the circumstances, he could not see Faulder as a group leader in the sewing room. LeTour- neau listed those circumstances as (1) Faulder's present mental and physical problems, (2) his past criminal record, and (3) the fact that he was currently being sued for child support by an unwed mother who was not his wife. The evidence concerning these circumstances is un- disputed. In 1980 Faulder was convicted of child abuse, the case having involved his own child, and his convic- tion was a matter of common knowledge at the plant. LeTourneau testified that because of this fact, he felt that the women in the sewing room would not accept Faulder in a leadership position. As for Faulder's present condition, he testified that in early 1985 he was suffering from nervous spells and heart palpitations, and was under the care of a psychiatrist who concluded he was suffering from stress. In early 1985 Faulder was absent 18 days from work because of illness, and went several times to the plant nurse. LeTourneau testified that Faulder answered that he understood, and that he (Le- Tourneau) never promised Faulder a group leader posi- tion or pay increase. Carman and Koenig substantially corroborated LeTourneau's testimony concerning their meeting with Faulder. Carman further testified that after the meeting Faulder requested a transfer to fixup because his doctor said that his present job was causing stress. Carman answered that this would mean a cut in pay, but Faulder still requested a transfer. Carman agreed, and transferred Faulder. Carman testified that he never sum- moned Faulder to his office to discuss the Union, or questioned him about the Union, or made threats or promises. Carman testified that on one occasion when Foreman Koenig was present, Faulder came to his office and said that he had been to a union meeting the previ- ous night and would tell them who was trying to orga- nize. The supervisors said nothing and Faulder left. Koenig substantially corroborated Carman's testimony concerning this incident, and also corroborated Carman's testimony concerning the circumstances of Faulder's return to fixup. Carman further testified concerning the alleged prehearing conversation, that Faulder said the 1 AIRSTREAM, INC. 231 Company's lawyer told his lawyer that the Company would bring up Faulder's past. Carman answered that he could not comment on that. Koenig testified that prior to March 1985 he told Faulder that he would consider him for leadman, but that he would have -to control his temper. (Faulder, in his testimony, initially denied but subsequently admitted that Koenig told him he had to control his temper.) I am not persuaded that Fauldees uncorroborated ver- sion of the events is any more credible than that of the three supervisors. Carman was not cross-examined, Koenig was asked only one question on cross-examina- tion, and I have no reason to question their credibility. LeTourneau was not cross-examined about the allega- tions involving Faulder. As indicated, I have reason to question LeTourneau's credibility in other areas. I am not persuaded, however, that LeTourneau's lack of credibility on other issues extends to his testimony con- cerning Faulder. Neither version of the events is inher- ently incredible. It is 'possible that the Company looked on Faulder, with his background and frustrated desire for a promotion, as a corruptible person who might be willing to exchange information about union activities in exchange for a promotion. Conversely, it is also plausible that a person like Faulder might offer information about the Union in the hope of obtaining the long-sought pro- motion. I also have some reservations concerning aspects of Faulder's version. As discussed, Faulder failed to testi- fy about what he told Carman when Carman allegedly asked for information about employee union activities and attitudes. Therefore his version of this alleged impor- tant conversation is incomplete. Faulder's testimony con- cerning his transfer to fixup also seems implausible. It is undisputed that when Faulder asked to transfer into fixup, Carman told him that this would mean a cut in pay. This would indicate that Carman (who had inter- vened on his behalf to save his job when he was convict- ed in 1980) was trying to discourage his transfer. There- fore it seems unlikely that Carman would suddenly change positions and transfer him against his will. The General Counsel and the Union have the burden of prov- ing the pertinent allegations. I find they have failed to meet that burden. Therefore, I am recommending that paragraphs 6(B) and (D) of the complaint (alleged inter- rogation, solicitation of information, and promise and withholding of benefits) be dismissed, and that the Union's objections be overruled insofar as they pertain to those matters." 2. Larry Hittepole Larry Hittepole worked for the Company as a carpet installer. General Foreman Koenig was his immediate su- pervisor. Hittepole testified that he was actively and openly prounion during the campaign, and the Company was aware of this fact. He testified that about a week before the election he asked for and was given an oppor- tunity to meet privately with Board Chairman Thomp- " The Union, but not the General Counsel, alleges that the Company violated Sec 8(a)(4) of the Act by threatening -Faulder in connection with the present hearing As I have not credited Faulder's version of this conversation, I find no merit m this allegation. son in President LeTourneau's office. According to Hit- tepole, Thompson began by asking if he had any com- plaints. Hittepole answered that "the wages and benefits were a factor in this," whereupon Thompson answered that the Company was above the average in this area. He asked what Hittepole thought of the 3 sick days policy. Hittepole answered that at first it did not bother him, but it did after he thought about it. According to Hittepole, Thompson replied that if the employees voted out the Union they would get back their sick days. He expressed concern about the Union, saying "I beg of you, go back there and tell everybody to vote no," and "give us one more chance," and "Larry, I need people like you to come back with the Company." Hittepole further testi- fied that in mid-May, shortly before a scheduled 21 May hearing on the Union's objections to the election," he was summoned to an office where he met with Vice President for Operations Rex Miner and Director of Per- sonnel Don Voss. They told Hittepole that his attitude was bad and had to be changed. Hittepole answered that he always tried to do his best, whereupon the supervisors replied that they meant his attitude toward the Union, adding that they had to forget the past and start all over. They accused Hittepole of harassing several employees and, specifically, of pushing one Barb Dudgeon. Accord- ing to Hittepole, they said they could do something, or use it against him, because they had proof that Hittepole would have to change his ways, and that Hittepole had been pointed out as a "troublemaker." Hittepole testified that he did not push Dudgeon. In his investigatory affi- davit, Hittepole stated that the supervisors said that if he "testified for the Union at the hearing," they had evi- dence that he pushed an employee in the shop. However, Hittepole testified that he did not recall them saying any- thing about testimony or a hearing. In fact, Hittepole, Miner, and Voss each testified that at the time of their meeting they were unaware of any scheduled hearing. Hittepole further admitted that several weeks before this meeting, Voss and Koenig gave him a warning for not wearing safety glasses, and that in the process Voss told him he had an attitude problem and should change his ways. Hittepole testified that in this earlier conversation Voss also said that they should "try to go forward from here and forget the past." Hittepole further testified that he had several run-ins with Foreman Koenig, concerning Koenig's accusations that he was harassing other em- ployees, specifically Dudgeon and Neil Oakley. Chairman Thompson testified that in March Hittepole asked to see him, and they met in Thompson's office. Hittepole said that the Company should act on the basis of seniority, that Vice President Carman was "a good man," but that there was a lot of harassment of union employees and backstabbing. Thompson asked for an ex- ample, and Hittepole referred to a scuffle between him- self and Neil Oakley. Hittepole said that "if you want to get rid of the Union, give us our three sick days back." Thompson testified that he asked Hittepole for "his thoughts and suggestions generally," but that he did not 13 The hearing was canceled after the Union filed its unfair labor prac- tice charge 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ask him to get rid of the Union, or promise to restore the 3 sick days or beg or plead with Hittepole or any other employee to vote no. Foreman Koenig testified that Hit- tepole had a history of attitude problems, including fail- ure to perform a work assignment and aggressive behav- ior toward other employees. In April Koenig gave Hitte- pole a warning slip for not wearing safety glasses. Hitte- pole complained to the personnel office that Koenig was picking on him and, as indicated, Hittepole met with Koenig and Personnel Director Voss about the matter. Koenig and' Voss testified in sum that they had a long discussion of Hittepole's contentions, as a result of which Hittepole expressed satisfaction that Koenig did not single him out for discriminatory treatment. Voss testi- fied that with regard to Hittepole's various accusations, he asked Hittepole that they "put these things behind us." Voss and Miner testified in sum that the May meet- ing concerned a report that Hittepole struck employee Dudgeon. They testified in sum that Hittepole denied striking Dudgeon, but explained that an argument ensued when Dudgeon and another employee told him that they wanted their union cards back. They denied that they made any threats or imposed any discipline. Voss testi- fied that nothing was said about a hearing. However, Miner testified that Hittepole said he was no longer union, and would not testify at the hearing even if he were subpoenaed. (As indicated, all three participants testified that they were unaware of the scheduled hear- ing.) Regarding the conversation between Thompson and Hittepole (alleged promise to restore the 3 personal/sick day program), I am not persuaded that Hittepole's ver- sion of the conversation is more credible than that of Thompson. Neither version is inherently incredible. Thompson was not cross-examined. As will be discussed, I have problems with Hittepole's credibility, stemming from the allegation involving Miner and Voss." There- fore, I find that the General Counsel has not proven this allegation (although as found, paragraph 6(A) of the complaint has been sustained by other evidence). I fur- ther find that the General Counsel has failed to prove the allegations of paragraph 6(E) of the complaint (threat of reprisal if Hittepole testified for the Union at the hear- ing on objections). In light of the testimony of all three participants in the May conversation that they were un- aware of the scheduled hearing, and Hittepole's belated admission (contrary to his affidavit) that the hearing was not even mentioned in this conversation, there is no fac- tual basis for this allegation. In this regard, Hittepole's affidavit demonstrates a tendency on his part to embel- lish the facts. Also, in light of these facts, I do not credit 14 I do not agree with the Company's contention that Hittepole con- tradicted his affidavit when he testified concerning the Thompson con- versation. Hittepole stated in his affidavit that Thompson called him in and asked what the problem was. However, Hittepole explained that Thompson returned his call, Le , he did not claim in his affidavit that Thompson initiated the conversation. Hittepole also stated in his affidavit that he "got the impression" that Thompson wanted him to tell every- body about the 3 sick days. However, Hittepole never testified that Thompson expressly told him to say this Rather, the implication is war- ranted from Hittepole's version of what Thompson told him. As will be discussed, Hittepole did contradict his affidavit when he testified about the conversation with Miner and Voss. the uncorroborated testimony of Miner that Hittepole mentioned the hearing. Rather I credit Voss' testimony concerning the meeting. In light of the testimony of the company witnesses and Hittepole's admissions in his tes- timony, it was not unusual for the Company to discuss Hittepole's attitude, and this appears to be another such instance.15 3. Lonnie Ott Employee Lonnie Ott was presented as a union wit- ness in support of the Union's objections to the election. Ott testified in sum that he was an active union adherent who distributed union cards and literature. He testified that about 1 February then General Foreman Jack Oakley told him that Vice President Carman knew he was passing out union cards and, if Ott was not careful, they would "dismiss" him. Ott testified that he went to Carman's office and complained that if Carman "wanted to know a specific thing I was doing, he should ask me, not send some of his peons up to harass me." Ott testi- fied that he could not recall Carman's answer. Oakley, in his testimony, denied the alleged conversation. Carman, in his testimony, denied ever asking Oakley to speak to Ott. Carman testified that Ott came to his office and complained that he did not appreciate Carman sending one of his "peons" (unidentified) to threaten him with discharge for pushing union cards on company time. Carman testified that he assured Ott that he did no such thing. Carman and Oakley were not cross-examined. In light of Ott's professed inability to remember Carman's answer, his version of their conversation is incomplete. Ott's version of his conversation is not more credible than the denials of Oakley and Carman. Therefore, I fmd this objection without merit. Ott also testified that in February he posted a union sticker on his locker and that his immediate supervisor, General Foreman Tom Edwards, told him that the locker was company property and he had to take down the sticker. Ott answered that the locker was his, and that other employees displayed items on their lockers. Ott testified that Edwards answered that he would tear down the sticker and that if he wanted he could go through the locker and take out anything that he wanted. Ott then took down the sticker. Edwards testified that he never threatened to tear down the sticker or go through Ott's locker, and that he did not know where Ott's locker was located or that Ott had a sticker on his locker. Edwards was not cross-examined. I am not per- suaded that Ott's version is any more credible than Ed- wards' denials. As the Union failed to prove that this in- cident occurred, I find it unnecessary to determine whether Edwards' statements would be unlawful if the incident had occurred. 15 General Foreman Koenig testified that on other occasions he and President LeTourneau warned Hittepole about pressuring or harassing other employees. LeTourneau also testified concerning such warnings. Neither the General Counsel nor the Union contends that the Company thereby acted unlawfully Moreover, the circumstances of these conver- sations and of the alleged pressure and harassment were not fully litigat- ed. AIRSTREAM, INC. 233 Ott further testified that in late February and early M[arch union literature was posted on a plant bulletin board, and that he saw then General Foreman Oakley tear down such literature and throw it in a trash can. Ott reposted the literature. Oakley, in his testimony, did not deny Ott's version of the incident. Oakley testified that he had removed items from the bulletin board, including union literature, because posting of such material had not been approved by management. The bulletin board in question is located in the main plant. The board is used for company business, but is also used by employees to post notices of a nonbusiness nature, e.g., sale notices, an- nouncements of social or other events, and a congress- man's newsletter or other items of public interest. Presi- dent LeTourneau testified that under longstanding com- pany policy, employees must have company permission to post nonbusiness items on plant bulletin boards. In the main plant, permission must be obtained from Vice Presi- dent Carman or, in his absence, from General Foreman Koenig. Permission is granted by initialing the notice. Carman and Oakley corroborated LeTourneau's testimo- ny concerning company policy. All three supervisors tes- tified that they have removed unapproved notices, and LeTourneau testified that he has so instructed company supervisors. The Company's rules of conduct prohibit "Unauthorized posting of items on company bulletin board without permission of your supervisor or person- nel department." Carman testified that neither the Union nor any individual asked him for permission to post a notice, but that he probably would have approved such notice for posting. Ott admitted that he was aware of the Company's policy, but that he has seen unapproved no- tices on the bulletin boards. The Company contends (Br. 76-78) that the Company's policy, and the failure of the Union or prounion employees to adhere to that policy by requesting permission to post union literature, precludes any finding that Oakley acted unlawfully by removing and discarding union literature. The difficulty with this argument is that the evidence in this case indicates the Company did not consistently apply its rule. As dis- cussed, PAC Representative Russell Armstrong testified that acting on his own initiative, he "confiscated" a plant bulletin board and used it to post PAC literature. Arm- strong did not request or obtain company permission to do this, but the Company did not remove the literature. Plainly, such sustained and extensive unauthorized use of a billboard would have come to the attention of supervi- sory personnel. In sum, the Company tolerated the unau- thorized use of a bulletin board by PAC, its dominated labor organization, while removing literature posted by or for UAW, the petitioning union in the election pro- ceeding." In these circumstances, the inference is war- ranted, and I so find, that the Company discriminatorily removed and discarded union literature from its bulletin board because of its animus against the Union. The Com- pany thereby violated Section 8(a)(1) of the Act. NLRB v. Challenge-Cook Bros., 374 F.2d 147, 153 (6th Cir. 56 The bulletin board used by Armstrong was not the same as that from which foreman Oakley removed union literature. However, Presi- dent LeTourneau made clear tn his testimony that the Company's policy applied to all plant bulletin boards. 1967). Communication is an important factor in any elec- tion campaign. I find that by such unlawful conduct the Company interfered with the election. Therefore and to this extent I find that Union Objection 3, alleging that the Company removed and confiscated union literature from employee bulletin boards, has been sustained by the evidence. 1 7 CONCLUSIONS OF LAW I. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and PAC are each labor organizations within the meaning of Section 2(5) of the Act. 3. By establishing, dominating, assisting, and support- ing PAC, the Company has been and is violating Section 8(a)(2) of the Act. 4. By interfering with, restraining, and coercing is em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, the Company has engaged, and is en- gaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Union Objections 1, 2, 3, 5, 7, 8, and the "catch-all" objection have been sustained by the evidence to the extent found above, and the Company thereby interfered with the Board election held on 15 March 1985. Union Objections 4 and 6 are without merit. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (2) of the Act, I shall recom- mend that it be required to cease and desist therefrom and from like or related conduct, and to post appropriate notices. I shall further recommend that the Company be ordered to withdraw all recognition from, and to com- pletely disestablish PAC and refrain from recognizing it, or any successor thereto, as a representative of any of the Company's employees for the purpose of dealing with the Company concerning wages, grievances, rates of pay, or other conditions of employment. Lawson Co., 267 NLRB 463 (1983), enfd. 753 F.2d 471 (6th Cir. 1985); Hunter Douglas, Inc., supra, 277 NLRB 1179. The General Counsel has requested that the recommended re- medial order include a visitatorial clause, authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure, so that it will be able to monitor com- pliance with the Board's order, as enforced by the court of appeals. On consideration of the General Counsel's brief, I find that inclusion of such a clause would effectu- ate the policies of the Act and that such a remedy is warranted. Therefore, I am including the proposed visi- tatorial clause in the recommended Order. As the Com- pany unlawfully interfered with the conduct of the elec- tion on 15 March 1985, I shall recommend that the elec- 17 Objection 3 also alleges that the Company removed and confiscated union literature from lunchroom tables. No evidence was presented in support of this assertion. Therefore I am recommending that this aspect of the objection be overruled. 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion be set aside and that a new election be directed at such time as the Regional Director deems appropriate. [Recommended Order omitted from publication.]