EFCO Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1998

327 N.L.R.B. 372 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
EFCO Corporation and United Brotherhood of Car-
penters and Joiners of America, AFL–CIO and
Employee Benefit Committee, Employee Policy
Review Committee, Safety Committee, Em-
ployee Suggestion Screening Committee, Par-
ties-in-Interest. Case 17–CA–16911
December 31, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On March 7, 1995, Administrative Law Judge George
F. McInerny issued the attached decision. Thereafter, the
Respondent filed exceptions and a supporting brief and
the Parties-in-Interest filed exceptions.
The National Labor Relations Board has delegated 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, and conclusions only
to the extent consistent with this Decision and Order, and
to adopt the recommended Order as modified and set
forth in full below.
I. THE 8(A)(2) ALLEGATIONS
The issues presented are whether the Respondent’s
Employee Benefit Committee, Employee Policy Review
Committee, Safety Committee, and Employee Sugges-
tion Screening Committee are labor organizations and, if
so, whether the Respondent dominated or interfered with
their formation or administration or contributed financial
and other support to them, in violation of Section 8(a)(2)
and (1) of the Act. The judge found that all four commit-
tees were labor organizations and that the Respondent
unlawfully dominated or interfered with each of them.
We agree with the judge for the reasons set forth be-
low that the Employee Benefit Committee, the Policy
Review Committee, and the Safety Committee are labor
organizations unlawfully dominated by the Employer in
violation of Section 8(a)(2) and (1). While the Respon-
dent’s stated aim of involving employees in decision
making may be commendable, we find with regard to
these three committees that the particular means chosen
by the Respondent to achieve that end were unlawful.
Contrary to the judge, however, we find that the Respon-
dent did not violate Section 8(a)(2) and (1) with respect
to the Employee Suggestion Screening Committee, as we
find that it is not a labor organization. In forming and
operating this Committee, the Respondent chose a means
of obtaining employee input that did not impinge on the
employees’ rights under the Act.
A. Factual Background
The facts, as found by the judge or undisputed in the
record, follow. The Respondent manufactures aluminum
windows, door systems, curtain walls, and storefronts at
two plants in Monett, Missouri, with additional manufac-
turing and distribution facilities in Chicago, San Fran-
cisco, and Oklahoma City. Principal responsibility for
formulating company policy is vested in the Manage-
ment Committee, composed of the Respondent’s presi-
dent, Chris Fuldner, and its vice presidents. However, in
the 1980’s, the Respondent began implementing what it
termed a “Manufacturing Resources Planning” program,
which sought to attain higher levels of efficiency
through, inter alia, improvements in quality and inven-
tory control, implementation of a “just-in-time” produc-
tion system, and greater employee involvement. As part
of that program, the Respondent began a reappraisal of
its personnel practices that resulted in the establishment
of four employee committees at various times in 1992
and early 1993. According to Fuldner, these committees
were created, in part, to educate employees, to keep the
Management Committee informed, to assist management
in making policy and benefit decisions, and to increase
productivity by encouraging employee involvement in
decision making. Each of the committees met on the
Respondent’s premises during working time, and em-
ployees were paid for time spent on committee activities.
In each case, the Respondent selected the initial members
of the committees.
In 1993, after the committees were formed, the Re-
spondent became aware of union organizing activity
among its employees. On July 26, 1993, a representative
of the Union wrote a letter to Chris Fuldner stating that
the Union was attempting to organize the Respondent’s
employees, but the Union never filed a petition for an
election.
B. Formation and Operation of the Committees
1. The Employee Benefit Committee
Fuldner announced the creation of the Employee Bene-
fit Committee in a memorandum to employees dated
September 8, 1992. As he explained in the memorandum
and at the first committee meeting, the Committee’s pur-
pose and function was to evaluate existing employee
benefit plans and to make recommendations to the Man-
agement Committee to improve the plans. According to
the memorandum, the Benefit committee members were
to investigate plans, analyze costs, and solicit ideas and
comments from other employees.
The Respondent’s chief financial officer, Bret Baker,
selected 10 employees out of 20 volunteers to be mem-
bers of the Committee and tried to include representa-
tives from the various shifts and departments. At the
first meeting, Fuldner informed the Committee that it
was to choose “its own route,” but that it must first ad-
dress changes in the medical insurance plan and evaluate
the dental plan. The committee members, who included
at least one statutory supervisor, elected Mark Hardwick,
a nonsupervisory employee, as chairman and contact
with the Management Committee.
For the first few months, the Benefit Committee held
meetings nearly every week, but the meetings later ta-
327 NLRB No. 71
EFCO CORP. 351
pered off to about once a month. Baker and Mona
Workes, the Respondent’s personnel director, attended
almost every meeting. In June 1993, after a request from
the Committee, the Respondent’s comptroller, Don Kell-
hofer, began attending the meetings and acted as a liaison
between the Committee and Fuldner.
Although, according to Hardwick, the Committee did
not engage in “negotiations” or “give-and-take” with
management about the merits of committee proposals,
the Committee considered a wide range of matters, in-
cluding life insurance, a psychology program, employee-
of-the-month awards, sick pay, dental and prescription
eye care plans, flextime, “jeans” day, an employee credit
union, savings bond plans, cancer insurance, a cookout
and a party for employees, an employee seat on the board
of directors, and a Good Friday holiday, and made rec-
ommendations to management regarding these matters.
The Respondent’s management reviewed and accepted
the Benefit Committee’s proposals concerning a health
plan, dental plan, and an employee party, but rejected its
proposals for an employee credit union and a prescription
plan, among others.
The Committee also studied, developed, presented, and
recommended a long-term disability plan that manage-
ment considered and adopted. With respect to the dis-
ability plan, Baker took bids on various plans, suggested
a carrier to the Employee Benefit Committee and, after
the Committee approved the plan, presented the proposal
to management. According to the Employee Benefit
Committee’s minutes, the plan took effect December 1,
1993. Further, in a memorandum to the Respondent’s
executive committee dated March 25, 1994, Hardwick
proposed on behalf of the Benefit Committee that the
Respondent provide supplemental compensation to em-
ployees in the National Guard and military reserves
should they be called into active duty.
2. The Employee Policy Review Committee
In a January 15, 1993 memorandum to all employees,
Personnel Director Workes announced the formation of
the Policy Review Committee and asked for volunteers
to serve as its members. The memorandum stated that
the Committee’s purpose would be to help the Respon-
dent review and establish policies and to “gather com-
ments and ideas from employees regarding existing poli-
cies, or needs for implementation of new policies and
make specific recommendations to EFCO’s management
committee.”
From volunteers, the Respondent selected 13 employ-
ees to be members of the Policy Review Committee to
represent various areas of its operations. Its membership
later increased to 15 and, when positions became vacant,
the Committee circulated a memorandum on the Re-
spondent’s letterhead dated September 30, 1993, seeking
five volunteers to “represent all EFCO employees and
work with the management committee, reviewing exist-
ing policies and procedures and implementing new
ones.” Interested employees were invited to contact a
particular member of the Committee or the personnel
department. At the request of the Committee, Workes
attended the meetings and was listed as a committee
member in the minutes, but she did not vote.
Fuldner attended the Policy Review Committee’s first
meeting on February 9, 1993, and told the members that
their mission was to examine existing policies, review
them, and make recommendations to the Management
Committee concerning how policies should be changed,
but that the committee members should determine their
own methods, scope of inquiry, and areas of concerns.
Later, the Respondent’s Management Committee asked
the Committee to devise a no-smoking plan that would
conform with a new state law and address health con-
cerns. In response, the Committee solicited views from
employees, expanded management’s proposed no-
smoking ban to a wider no-tobacco policy, and published
its proposal in the Respondent’s newspaper. On June 1,
1993, after receiving the Committee’s proposal, the Re-
spondent promulgated the no-tobacco policy.1
The Policy Review Committee also considered and
developed a 4-day workweek proposal. It sought and
received input from employees and contacted other com-
panies with 4-day workweek programs and advanced its
proposal to the Management Committee, which agreed to
a limited trial of the program. The Committee also ad-
dressed other matters, including sick leave and personal
days, the dress code, overtime, holidays, vacations, work
hours, job bidding, and timeclocks, and raised other is-
sues on its own initiative. The Respondent adopted the
Committee’s proposed policies on sick leave and per-
sonal days.
3. The Safety Committee
On April 21, 1992, Plant Facilitator Mike Washik sent
a memorandum to EFCO employees announcing the
formation of the Safety Committee, composed of shop
and office employees. The memorandum explained that
the Committee was broadly charged with the duty of
handling “safety problems” and that committee members
were to set safety policies and find ways of enforcing
them. The memorandum further stated that the Respon-
dent was seeking volunteers but did not want more than
one member from any one department.
Washik selected 11 employees from the volunteers as
members of the Committee. At its first meeting on June
4, 1992, Washik informed members that the Committee’s
purpose was to involve employees in solving safety prob-
lems, meeting OSHA requirements, reviewing safety
rules, and receiving employees’ input in enforcing these

1 William Stegman, the Policy Review Committee chairman, whom
the judge credited, testified that the Management Committee adopted
the Policy Review Committee’s proposed policy with only minor
changes in wording.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
rules.2 Washik thereafter notified committee members of
the meetings, which were held monthly or bimonthly.
Washik set out issues to be addressed by the Safety
Committee in some of the meeting notices.
Washik directed the work of the Committee until Au-
gust 1993, when Lora Saffer was named safety director
and assumed his role with the Safety Committee. In a
memorandum to all employees dated September 3, 1993,
Saffer requested new volunteers for the Safety Commit-
tee and included herself in a list of committee members.
Saffer prepared and distributed the Committee’s agendas,
minutes, and memoranda to employees and committee
members until December 1993, when the committee
members elected a coordinator. Saffer abstained from
this vote but collected and counted the ballots. The Re-
spondent concedes that Washik is a statutory supervisor
and Saffer was stipulated to be an agent of the Respon-
dent.
The Safety Committee reviewed and addressed poli-
cies covering such matters as safety awards and incen-
tives,3 and the wearing of safety shoes and glasses. It
also addressed a wide range of problems including the
need to replace dirty and broken light fixtures, a lack of
fans in certain areas of the facility, the repair or replace-
ment of a miter saw, the need for additional ventilation,
meeting OSHA requirements, emergency planning in
case of natural disaster, and the need to correct a number
of safety hazards.
4. Employee Suggestion Screening Committee
In a memorandum to six employees dated December
28, 1992, the Respondent announced the creation of the
Employee Suggestion Screening Committee and their
selection as members. An outline of the employee sug-
gestion program and the Committee’s functions was at-
tached.
Under the new program, all employees were encour-
aged to submit suggestions and were informed that they
would be paid $5 for each “valid” suggestion, up to a
maximum of five suggestions. As set forth in the memo-
randum, the purpose of the Suggestion Screening Com-
mittee was to make recommendations about the screen-
ing plan, receive all suggestions, make recommendations

2 Washik’s handwritten minutes of the meeting state that the com-
mittee members were informed that the Respondent was seeking shoe
distributors who could service the employees and that it was consider-
ing reinstating payroll deductions for the shoes. The minutes further
state that “things . . . reported that needed [work]” included a written
injury prevention program, improved housekeeping, an incentive pro-
gram to improve safety, an emergency evacuation plan, and OSHA
approved containers for flammable material.
3 With respect to awards and incentives to employees, the June 17,
1993 minutes note that the Committee discussed safety incentives and
the “Safety Buck” program and that after the Committee reviewed all
the programs, a submission would be made to management. The
Committee’s October 11, 1993 minutes record that the Committee
again reviewed the Safety Buck program and that Safety Director Lora
Saffer was to establish criteria for “rewarding individual, departmental
and plant safety to present to Fuldner, along with the cost proposal.”
on especially good suggestions, reject “frivolous or oth-
erwise invalid” ones, and submit remaining suggestions
to the appropriate management group including the engi-
neering review board, manufacturing review board, or
the Management Committee.4 According to the memo-
randum, the Suggestion Screening Committee was also
charged with notifying the employees submitting the
suggestions within a week of action taken on their sug-
gestions and recommending the best suggestions to the
Management Committee based on criteria established by
management for “special recognition.” The Management
Committee retained authority to award any special rec-
ognition.
At the first meeting in December 1992, the Respondent
set the agenda and the Committee elected employee
Mark Kaiser as chairman.5 In a memorandum dated Janu-
ary 14, 1993, the Respondent notified all employees
about the formation of the Suggestion Screening Com-
mittee and solicited suggestions.6 The memorandum fur-
ther noted that two Management Committee members
would sit in on each committee meeting as advisors and
ensure that the Committee received necessary resources.
The Suggestion Screening Committee later selected its
own replacement members.
In practice, the Committee did not make decisions
about the implementation of suggestions but merely de-
cided which ones were not frivolous and forwarded them
to the relevant management group. The evidence re-
flects, contrary to the Respondent’s December 28, 1992
memorandum, that the Committee did not recommend
the “best” suggestions or, for that matter, any sugges-
tions, to management. In addition, the Management
Committee, not the employee committee, was given re-
sponsibility for following up with employees on the
status of their suggestions.
The Committee collected suggestions during two peri-
ods from mid-January through February 1993 and in Oc-
tober 1993. During the first period, 95 suggestions were
collected, 7 were rejected as unreasonable, 3 were re-
turned for classification, and 4 duplicated previous sug-
4 The memorandum also stated that the Suggestion Screening Com-
mittee was to determine whether a suggestion was “reasonable” but that
such a designation would not mean it would be accepted or imple-
mented. The suggestion form has a section for Screening Committee
members to mark the appropriate box noting that the suggestion is a
“reasonable proposal,” an “unreasonable proposal,” or that it was “pre-
viously suggested.”
5 Kaiser later became a statutory supervisor and remained as chair-
man of the Committee. The evidence does not reflect that any other
member of the Committee was a statutory supervisor, although the
senior vice president and the chief financial officer attended the first
meeting.
6 In that memorandum, the Respondent noted that it was “particu-
larly interested in ideas that reduce costs, improve processes (either
manufacturing or administrative) or eliminate inefficiencies [sic]
(things we now do that are not necessary, that are a duplication of
something we do elsewhere or activities that don’t add value to the
products and services that we deliver to our customers).”
EFCO CORP. 353
gestions.7 In the second period, 19 suggestions were
gathered and only 1 was rejected as unreasonable. Most
of the suggestions recommend specific improvements in
the production process.
C. Analysis
In determining whether an employer has violated Sec-
tion 8(a)(2) and (1) of the Act by interfering with, domi-
nating, or supporting an employee committee, the Board
engages in a two-step inquiry. The first step involves
examining whether the committee is a “labor organiza-
tion” as defined in Section 2(5) of the Act. If not, the
allegation is dismissed. If the committee meets Section
2(5)’s criteria for a labor organization, the second inquiry
is whether the Respondent has dominated or interfered
with the formation or administration of the committee.
Electromation, Inc., 309 NLRB 990 (1992), enfd. 35
F.3d 1148 (7th Cir. 1994).
1. The labor organization issue
Under the definition set forth in Section 2(5), a com-
mittee is a labor organization if (1) employees partici-
pate, (2) the organization exists, at least in part, for the
purposes of “dealing with” the employer, and (3) these
dealings concern “grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of
work.” As an initial matter, the facts recited above leave
no doubt that each Committee is an organization in
which employees participate.8
The primary question is whether the Committees exist
for the purpose, at least in part, of “dealing with” the
employer concerning the matters set forth in Section
2(5). The concept of “dealing with” essentially involves
a bilateral process, ordinarily entailing a pattern or prac-
tice by which a group of employees makes proposals to
management, and management responds to these propos-
als by acceptance or rejection by word or deed. E. I. du
Pont & Co., 311 NLRB 893, 894 (1993). In NLRB v.
Cabot Carbon Co., 360 U.S. 203, 210–211 (1959), the

7 One suggestion marked “unreasonable” was resubmitted with more
information and found “reasonable” and another so marked included
the comment that the suggestion should be resubmitted with more
detail. A third suggestion recommending classes was marked unrea-
sonable with the notation that the classes had already started.
8 The judge found, and we agree with respect to the Benefit Commit-
tee, the Safety Committee, and the Policy Review Committee, that
these committees acted in a representational capacity. Thus, the Re-
spondent sought to secure representation on the committees from all
sections and shifts and urged these committees to canvass employees
for their opinions regarding policy matters and the committees’ propos-
als. In light of our finding that these committees acted in a representa-
tional capacity, it is unnecessary to the disposition of this case to de-
termine whether an employee group could be found to constitute a
labor organization absent a finding that it acted as a representative of
other employees. See Electromation, supra, 309 NLRB at 994 fn. 20.
As noted below, we find that the Suggestion Screening Committee,
in contrast to the other committees, did not act in a representational
capacity. However, for the reasons described below, we also find that
it did not “deal with” the Respondent over Sec. 2(5) issues and that for
that reason it is not a labor organization.
Supreme Court held that the term “dealing with” in Sec-
tion 2(5) is broader than the term “collective bargaining”
and applies to situations outside the negotiation of collec-
tive-bargaining agreements.
The evidence reflects that the Respondent engaged in
“dealing with” the Employee Benefit Committee, the
Policy Review Committee, and the Safety Committee
with respect to subjects covered by Section 2(5), supra.
The Employee Benefit Committee evaluated existing
employee benefit plans, investigated alternative plans,
solicited ideas and comments from other employees, and
recommended to management how the plans could more
effectively meet employees’ needs.9 While the Em-
ployee Benefit Committee’s proceedings may not have
risen to the level of formality usually seen in collective
bargaining, it is well settled that such formal proceedings
are not necessary to a finding that an employer has dealt
with a committee. NLRB v. Cabot Carbon, supra; E. I.
du Pont, supra. It is undisputed that this Committee for-
mulated and presented numerous proposals to manage-
ment for its consideration, some of which management
adopted and others it rejected.10 As the court observed
in Electromation, Inc. v. NLRB,11 the employee commit-
tees in Cabot Carbon were found to deal with the em-
ployer because they “made proposals and requests re-
specting such matters as seniority . . . working schedules,
holidays, vacations, sick leave, . . . and improvement of
working facilities and conditions.” Thus, there can be no
doubt that the Respondent and the Employee Benefit
Committee dealt with each other over Section 2(5) sub-
jects.
Similarly, the Policy Review Committee solicited
comments and ideas from employees regarding existing
policies on a wide range of employment matters and the
need for implementation of new ones. Using feedback
from employees, the Policy Review Committee made
recommendations to management about such matters as a
no-tobacco policy and a 4-day workweek. The Respon-
dent also considered the Committee’s recommendations
concerning similar subjects, accepting some and reject-
ing others. Thus, the Respondent engaged in dealing
over Section 2(5) matters with the Policy Review Com-
mittee as well as the Employee Benefit Committee, both
9 The Respondent’s practices in this regard are distinguishable from
those in NLRB v. Peninsula General Hospital Medical Center, 36 F.3d
1262 (4th Cir. 1994), where the court found that an employer-formed
committee of nurses was not a labor organization. In Peninsula Gen-
eral, the employer also wished to involve employees in the updating
and improvement of benefit plans. While the employer there discussed
the benefits issues with the committee, a consultant reviewed the bene-
fits policy, and management itself surveyed the views of all the nurses
in order to set priorities for the upcoming budget year. Id. at 1267–
1268.
10 The court noted in Webcor Packaging, Inc. v. NLRB, 118 F.3d
1115, 1121 (6th Cir. 1996), cert. denied 118 S.Ct. 1035 (1998), that
such an arrangement constitutes “a paradigm case of dealing.”
11 35 F.3d 1148, 1160 (7th Cir. 1994), citing NLRB v. Cabot Carbon,
supra, 360 U.S. at 213.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
of which therefore constitute labor organizations as de-
fined in the Act.
A significant portion of the purposes and functions of
the Safety Committee, such as the reporting and correc-
tion of safety problems, would not contribute to a finding
that it is a labor organization. As the Board noted in du
Pont, supra,12 the Act does not prevent an employer from
“encouraging its employees to express their ideas and to
become more aware of safety problems in their work.”
Moreover, an employer’s delegation of safety duties,
such as the reporting of safety hazards, the imparting of
safety information or the planning of educational pro-
grams, by itself, does not constitute dealing. In the pre-
sent case, therefore, the Safety Committee’s reporting of
broken light bulbs and other more serious safety hazards
to management and informing it of the need to replace
broken pieces of equipment does not constitute “dealing
with” the employer over statutory terms and conditions
of employment.
However, the Respondent did not simply delegate
safety inspection or reporting duties to the Safety Com-
mittee. Rather, the Committee’s functions included re-
viewing safety rules and policies, developing safety in-
centive programs, and, most significantly, making pro-
posals to management about such policies and programs,
including proposals respecting employee compensation.13
NLRB v. Cabot Carbon, supra, 360 U.S. at 212. In short,
the Safety Committee was an integral part of a bilateral
process falling under the rubric of Section 2(5) and in-
volving employees and management with the purpose of
affecting safety issues. Accordingly, we find that the
Respondent engaged in “dealing with” the Safety Com-
mittee and that this committee thus is a labor organiza-
tion as defined in Section 2(5) of the Act.
In contrast, we find that the Respondent did not “deal
with” the Employee Suggestion Screening Committee.
Unlike the others, this committee did not formulate pro-
posals or present them to management. Rather, it re-
viewed and forwarded suggestions made by individual
employees to the appropriate management committee. In
short, the Respondent created an employee suggestion
program in which the Employee Suggestion Screening
Committee performed a clerical or ministerial function
which facilitated the Respondent’s consideration of sug-
gestions made by employees. In practice, it essentially
operated as a screening portion of an employee “sugges-
tion box” program.14 We support an interpretation of the

12 311 NLRB at 897.
13 See Simmons Industries, 321 NLRB 228, 254 (1996) (unlawful
safety committee not limited to identifying and reporting hazards);
Waste Management of Utah, 310 NLRB 883 (1993) (subject matter of
some of the committees, e.g., routing, productivity, and safety, might
under other circumstances place the purpose of the committee outside
the ambit of Sec. 8(a)(2)).
14 Moreover, because this Committee did not canvass employees but
only informed them as to the action taken on their suggestions, it did
not act as the employees’ representative.
Act which would not discourage such programs in their
various forms. See E. I. du Pont & Co., supra, 311
NLRB at 894; Electromation, supra, 309 NLRB at 995
fn. 21.
In theory, an employee committee could “deal with”
an employer by weeding out proposals it does not wish to
advance and recommending others that pertain to Section
2(5) matters, a process which would, in essence, put the
committee in the position of making proposals to man-
agement based on the suggestions of other employees.
However, the Employee Suggestion Screening Commit-
tee did not serve such a function, as neither in practice
nor in effect did it “recommend” or provide an opinion
about the adoption or modification of any suggestion.15
As noted above, the Committee deemed very few sug-
gestions unreasonable, and sent on the vast majority of
suggestions to management. Thus, as the Respondent
did not deal with the Committee, we find that the Em-
ployee Suggestion Screening Committee is not a labor
organization.16
In sum, we conclude that the evidence establishes that
the Employee Benefit Committee, the Policy Review
Committee, and the Safety Committee existed, at least in
part, for the purpose of making proposals to management
which would be considered and accepted or rejected, and
in fact that was the practice. We therefore find that the
element of “dealing with” is present with regard to these
three committees and that they are Section 2(5) labor
organizations. We further conclude that the Suggestion
Screening Committee is not a labor organization under
Section 2(5) and therefore its operation does not violate
Section 8(a)(2) of the Act.
2. The employer domination issue
A labor organization that is the creation of manage-
ment, whose structure and function are essentially deter-
mined by management, and whose continued existence
depends on the fiat of management, is one whose forma-
tion or administration is dominated under Section 8(a)(2)
of the Act. Electromation, supra, 309 NLRB at 995.17
15 Although the Respondent’s memorandum announcing the forma-
tion of this committee stated that its duties would include recommend-
ing the best suggestions to management, in practice it did not do so.
Thus, we determine the Committee’s purpose from its actual perform-
ance rather than only from the Respondent’s original written policy.
See Electromation, supra, 309 NLRB at 996 (“[p]urpose is a matter of
what the organization is set up to do, and that may be shown by what
the organization actually does”); Keeler Brass Co., 317 NLRB 1110,
1114 fn. 16 (1995) (even though stated policy was that grievance com-
mittee decisions were final, in practice they were not, and therefore the
respondent engaged in dealing with the committee).
16 We also note that the Respondent has used this program primarily
as a mechanism for employees to express their ideas about ways in
which production might be improved rather than to address Sec. 2(5)
matters.
17 See also Webcor Packaging, supra, 118 F.3d at 1123 (finding
committee to be dominated by employer where committee was estab-
lished by employer and employer had retained discretion over commit-
tee’s continued existence).
EFCO CORP. 355
The record establishes that each of these elements is pre-
sent with regard to the Policy Review Committee, the
Employee Benefits Committee, and the Safety Commit-
tee.
The Respondent concedes that it created all three
committees, announced their formation, and explained to
employees their goals and purposes, and held the com-
mittee meetings on its premises during working hours.
The record evidence also establishes that the Respondent
essentially determined the structure and function of the
committees, selected the initial members, and chose the
subjects they were to address. For example, the Respon-
dent informed employees that the Employee Benefit
Committee was to evaluate benefit plans, recommend
new plans, and solicit input from employees. The Re-
spondent chose the initial members from volunteers and
management officials attended committee meetings.
Although the Respondent told committee members that
the Benefit Committee was to choose its own route, it
explicitly directed them to address important benefit is-
sues presented in the medical insurance plan and the den-
tal plan.
The Respondent also directed the Policy Review
Committee to gather comments and ideas from employ-
ees and then review and recommend policies to man-
agement. The Respondent selected the initial members
of the Committee from volunteers and directed them to
devise a no-smoking policy. The Respondent charged
the Safety Committee with the duty of reviewing safety
rules, developing safety policies and incentives, and re-
ceiving employee input in enforcing safety rules. Man-
agement representatives played a major role in directing
the Safety Committee’s work, including preparing and
distributing its agendas, minutes, and memoranda.
Thus, we agree with the judge that the Respondent domi-
nated the Employee Benefit Committee, the Policy Re-
view Committee, and the Safety Committee in violation
of Section 8(a)(2) and (1) of the Act.18

18 We find no merit in the Respondent’s contention that it did not
violate Sec. 8(a)(2) because the committee members are managerial
employees by virtue of their committee work. We note, inter alia, that
authority over all corporate decision making is vested in the Manage-
ment Committee, and that even with regard to the particular limited
issues as to which it solicited proposals from the employee committees,
the Respondent retained the authority to decide whether to accept the
committees’ recommendations, reject them, or modify them. See St.
Thomas University, 298 NLRB 280, 286 (1990). For the reasons set
forth by the judge, we also find no merit in the Respondent’s argument
that its employees are excluded from the Act’s protections because, as
minority shareholders in the Respondent’s ESOP, they are its owners.
See Science Applications Corp., 309 NLRB 373 (1992) (rejecting em-
ployer’s claim that no collective-bargaining unit is appropriate because
employees are stockholders); S-B Printers, Inc., 227 NLRB 1274
(1977) (evidence does not support a finding that stock ownership gives
employees an effective voice in formulation and determination of pol-
icy). Finally, we agree with the judge’s rejection of the Respondent’s
argument that any interpretation of Sec. 2(5) and 8(a)(2) used as a basis
for finding its committees unlawful infringes upon the participant’s
First Amendment rights. See NLRB v. Cabot Carbon Co., 360 U.S. at
II. THE 8(A)(1) ALLEGATIONS
The Respondent excepts to the judge’s finding that it
violated Section 8(a)(1) by creating the impression of
surveillance. We find merit in this exception. On August
3, 1993, several employees met with a union representa-
tive outdoors in a city park at lunch. During the meeting,
Supervisor Randall Adams and employee Randy
McGlothlin drove by and, when they passed again some
time later, waved at the employees, one of whom waved
back. The judge credited Adams’ and McGlothlin’s tes-
timony that they had gone out to lunch and on the way
back noticed the employees, whom they knew, standing
in the park. He noted that there was no evidence that
Adams and McGlothlin knew the employees were union
activists or that they were engaged in a union meeting.
He also credited their testimony that they did not men-
tion having seen the employees in the park to anyone.
That afternoon, the Respondent’s president, Chris
Fuldner, approached employee Carol Baker, who had
been in the park, and stated that he had heard that she and
some others would like to talk to him and that, if she did,
his door was always open. Baker thanked Fuldner and
he left. Although the judge found that Fuldner knew
nothing about the meeting in park and had approached
Baker only because another employee had told him
Baker might wish to talk to him, he also found that it was
“reasonable and logical” for Baker to assume that Fuld-
ner had approached her because he had heard about the
meeting. He then concluded that even though there was
no actual link between the events in the park and Fuld-
ner’s approach to Baker, the Respondent had violated the
Act by creating the impression of surveillance. We dis-
agree. Regardless of the coincidental timing of Fuldner’s
approach to Baker, the Respondent in fact engaged in no
conduct that reasonably could have caused Baker to be-
lieve that her union activities were under surveillance.
Thus, we find that the General Counsel has failed to
demonstrate that the Respondent violated Section 8(a)(1)
in this regard, and we shall dismiss this allegation.19
We also find merit in the Respondent’s contention that
the judge erred in finding that it violated Section 8(a)(1)
by soliciting grievances and, accordingly, we shall dis-

218 (rejecting employer’s argument that finding employee committees
to be labor organizations prevents employees and employers from
discussing matters of mutual interest in violation of the First Amend-
ment).
19 The judge inadvertently omitted from his recommended Order and
notice provisions reflecting his findings that the Respondent violated
Sec. 8(a)(1) by threatening employees with the loss of Employee Stock
Ownership Plan (ESOP) in the event they became represented by a
union. The finding was based on the Respondent’s posting of a notice
consisting of an application to the Internal Revenue Service for ap-
proval of its ESOP which stated, without further explanation, that all
employees are eligible to participate under the plan except members of
a collective-bargaining group. We shall include appropriate provisions
in our Order and notice. We shall also include modifications in accor-
dance with our decision in Indian Hills Care Center, 321 NLRB 144
(1996), and Excel Container, Inc., 325 NLRB 17 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
miss that allegation. Employee Mike Williams, a union
committeeman, asked employee Steve Carpenter if he
wished to discuss problems with Fuldner. They went to
Fuldner with other employees and did so. There is no
evidence that Fuldner asked Williams to solicit griev-
ances or that Williams is a statutory supervisor or the
Respondent’s agent. In fact, Fuldner testified without
contradiction that he did not ask Williams to solicit
grievances and that he maintained an “open door” policy
as to employee concerns.
This is not the case of an employer initiating a new
policy or practice of soliciting grievances during a union
campaign. See Noah’s New York Bagels, 324 NLRB 266
(1997). There is no evidence here that the Respondent
initiated a new policy, or that any of its supervisors or
agents actually solicited grievances. Mast Advertising,
286 NLRB 955 (1987), on which the judge relies, is dis-
tinguishable. In Mast, employer representatives urged
employees to voice grievances and held unprecedented
meetings soliciting employee complaints. Compare Mast
Advertising & Publishing, 304 NLRB 819 (1991) (em-
ployees’ approaching employer with problems and dis-
cussing them is protected activity). Thus, an employer
does not unlawfully solicit grievances where, as here,
employees on their own accord approach management to
discuss problems, and a fortiori where, as here, the em-
ployer maintained a prior open door policy and there is
no evidence that any promises were made to the employ-
ees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, EFCO Corporation, Monett,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promulgating and enforcing an overly broad no-
solicitation rule prohibiting unauthorized solicitations of
employees, or unauthorized distribution of literature of
any kind on company premises at all times.
(b) Publishing and maintaining memoranda setting out
an overly broad interpretation of a no-solicitation rule
unlawfully limiting union activities to nonwork areas and
prohibiting union activities in work areas during non-
working time.
(c) Reprimanding an employee for passing out union
literature inside the plant under an overly broad no-
solicitation rule.
(d) Dominating, assisting, or otherwise supporting the
Employee Benefit Committee, the Employee Policy Re-
view Committee, and the Safety Committee.
(e) Threatening employees with loss of Employee
Stock Ownership Plan in the event they become repre-
sented by a union.
(f) Posting and maintaining a notice to employees con-
sisting of an application to the Internal Revenue Service
for approval of Employee Stock Ownership Plan stating,
without further explanation, that all employees are eligi-
ble to participate under the plan except members of a
collective-bargaining group.
(g) 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) Within 14 days from the date of this Order, remove
from the files of its employee, Dennis Wolf, any record
of a reprimand given him on July 27, 1993, concerning
violations of a no-solicitation rule, and within 3 days
thereafter notify the employee in writing that this has
been done and that the reprimand will not be used against
him in any way.
(b) Immediately disestablish and cease giving assis-
tance or any other support to the Employee Benefit
Committee, the Employee Policy Review Committee,
and the Safety Committee.
(c) Within 14 days after service by the Region, post at
its facilities in Monett, Missouri, copies of the attached
notice marked “Appendix.”20 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 20, 1993.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
20 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EFCO CORP. 357

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT promulgate or enforce an overly
broad no-solicitation rule prohibiting unauthorized solici-
tations of employees, or unauthorized distribution of lit-
erature of any kind on company premises at all times.
WE WILL NOT publish or maintain memoranda set-
ting out an overly broad interpretation of a no-solicitation
rule limiting union activities to nonwork areas and pro-
hibiting union activities in work areas during nonwork-
ing time.
WE WILL NOT reprimand an employee for passing
out union literature inside the plant under an overly
broad no-solicitation rule.
WE WILL NOT support, dominate, or assist the organi-
zations known as the Employee Benefit Committee, the
Employee Policy Review Committee, and the Safety Com-
mittee.
WE WILL NOT threaten employees with loss of Em-
ployee Stock Ownership Plan in the event they become
represented by a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from the file of Dennis Wolf a rep-
rimand he received on July 27, 1993, for distribution of
union literature.
WE WILL immediately disestablish and cease giving
any assistance and support to the Employee Benefit
Committee, the Employee Policy Review Committee,
and the Safety Committee.

EFCO CORPORATION

Stephen E. Wamser, Esq., for the General Counsel.
Ransom A. Ellis Jr., Esq., and Ransom A. Ellis III, Esq. (Ellis,
Ellis and Black), of Springfield, Missouri, for the Respon-
dent.
Jim Tudor, Representative, of Fort Smith, Arkansas, for the
Charging Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge.
Based on a charge filed on August 20, 1993, by United Broth-
erhood of Carpenters and Joiners of America (the Union),
which charge was amended on August 30, October 12, and
November 29, 1993, the Regional Director for the Seventeenth
Region of the National Labor Relations Board (the Regional
Director and the Board), issued a complaint on December 15,
1993, alleging that EFCO Corporation (the Company, or Re-
spondent), had violated certain provisions of the National Labor
Relations Act (the Act). The Respondent filed a timely answer
to the complaint, denying the commission of any unfair labor
practices.
Pursuant to notice contained in the complaint, and as post-
poned by orders of the Regional Director, a hearing was held
before me in Monett, Missouri on July 12, 13, and 14, 1994, at
which the parties except the four named Parties-in-interest, the
Employee Benefit Committee, the Employee Policy Review
Committee, the Safety Committee, and the Employee Screening
Committee, were represented, and all parties had the opportu-
nity to introduce testimony and documentary evidence, to ex-
amine and cross-examine witnesses, to offer motions, and to
argue orally. Following the close of the hearing the General
Counsel and the Respondent submitted briefs, which have been
carefully considered.
Based on the entire record, including my observations of the
witnesses, and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent maintains an office and manufacturing plant
in Monett, Missouri and in several other locations where it
engaged in the manufacture and sale of industrial and commer-
cial aluminum windows and related products. During a 12
month period ending November 30, 1993, the Respondent pur-
chased and received at its plant in Monett goods valued at over
$50,000 directly from points outside the State of Missouri. The
complaint alleges, the answer admits, and I find that the com-
pany is an employer engaged in commerce within the meaning
of Section (2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits that the Union and
the Committees are labor organizations within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
EFCO Corporation is a privately held company, incorporated
under the laws of the State of Missouri, with the majority
(around 75 percent) of the stock owned by the Fuldner. Terry
Fuldner is the chairman of the board of directors. His son,
Chris Fuldner, is president, and, from all of the evidence here,
seems to be the chief executive officer. John Fuldner, Chris’
brother, is employed by the Company and, along with his sister,
Fuldner serves on the Board of Directors.1
The Company was founded in 1953 in St. Louis by Terry
Fuldner with a partner, George Everly, hence the “E” and the
“F” in EFCO. In 1958, the Company moved to Monett, a small
city, population of about 6000 in the southwest corner of Mis-
souri. It now has two plants in Monett, referred to in the record
as the old plant and the new plant, with additional manufactur-
ing and distribution facilities in Chicago, San Francisco, and
Oklahoma City. Chris Fuldner, whose, testimony is the source
for this background information, estimated that the Company

1 Neither Terry Fuldner, nor John or Sandy, figure in the events
making up this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
now employs about 700 production employees, with an addi-
tional 200 or so in support and administrative positions.
The Company’s business is the manufacture of architectural
grade aluminum windows used in hospitals, schools, office
buildings, and high-rise apartments. The Company also makes
and sells curtain wall systems, storefronts, entry door systems,
automatic doors, automatic sliding doors, swinging doors, and
automatic balance doors. The manufacturing process is almost
all custom work, not standard. The Company buys aluminum
in billet form, then extrudes the shapes required, finishes and
glazes the product and, in some cases, even sends crews out to
install the product at the jobsite. In 1993, its gross sales were
about 87 to 88 million dollars.
During the times that the events in this case took place, the
Company was not unionized, but Chris Fuldner testified that
there had been a unit of shop employees represented by the
Carpenters’ Union which was recognized by and bargained
with the Company from around 1963 to 1971 or 1972, when the
Union was decertified. Between that time and the summer of
1993, there had been occasional rumors and reports of union
activity, but there was no noticeable union organizational activ-
ity until July 1993. On July 26, Jim Tudor, a representative of
the Union’s general president, wrote to Fuldner stating that the
Union was attempting to organize the Company’s employees.
The attempts to organize were not reported in this record, nor
were the Company’s plans, if any, to meet the Union’s organ-
izational efforts. There is no mention in the record here of the
filing of a petition for an election with the Regional Director.
There are, however, allegations in the complaint herein con-
cerning the existence of a no-solicitation rule, and several inci-
dents involving employees and supervisors. These will be dis-
cussed later in section IIIG of this Decision.
Apart from this momentary ripple on the placid surface of
the Company’s pond, Chris Fuldner explained in detail his
management philosophy and his actions taken in pursuance of
his philosophical and economic goals, including the formation
of the employee committees which are also at issue in this case.
From his personal experience, Chris Fuldner described his
return to Monett in 1977, from his job as a salesman for the
Company, to assist his father in management. Fuldner noted
that his father was working 16-hour days trying to manage all
aspects of the Company’s operations, without accomplishing as
much as he should have in any of these activities. Starting by
taking over the engineering department, Fuldner developed a
philosophy of delegating management responsibility wherever
possible, and pushing responsibility for decision making as low
through the administrative channels of the Company as effi-
ciency and productivity would allow. He himself used a man-
agement committee composed of company vice presidents as
the principal policymaking body, with almost total responsibil-
ity for management decisions.
Having described the relationship between the Company and
its employees during the union years from the 60’s to the early
70’s as “extremely adversarial” Folder testified that the rela-
tionship changed. He expressed his feeling that a business
could not succeed in today’s global economy, and even against
domestic competition, if management was fighting with its own
workers. The management at EFCO has tried to combat that
image. For example, Fuldner pointed out, EFCO was the first
employer in the area to set up an employee health insurance
plan. Thus, under Fuldner’s leadership, the Company set up an
employee profit-sharing plan in 1979 and, in 1982, an Em-
ployee Stock Ownership Plan (ESOP). Since 1992, about 25
percent of the Company stock has been transferred to the ESOP
account in a joint ESOP–profit-sharing plan.
James F. McLeod, an attorney who has represented the
Company since 1979, and is also a member of its Board of
Directors, testified that he drafted the ESOP for the Company.
Employees having a year of service with the Company are eli-
gible to participate in the ESOP–profit-sharing plan.2 The
ESOP–profit-sharing plan is a combination of two different
plans, both administered by a trustee, United Missouri Bank of
Kansas City, and is entirely funded by the Company. McLeod
testified that the bulk of the employer contributions go into the
ESOP fund, with the remainder to the profit-sharing plan. The
Plans are 100 percent vested after 7 years.
Under the ESOP portion of the funds, shares of common
stock in EFCO are purchased for the account of each employee.
Since the Company is privately held, there is no market for the
stock whereby its value can be ascertained. Therefore, the
value is appraised annually by an outside firm to determine the
stocks’ fair market value for that year.
Shares of stock purchased for the account of an employee are
held in the name of the Trustee, which has power to vote those
shares in its discretion, except that the beneficial owner-
employee may direct the Trustee to vote his individual shares in
matters such as corporate merger or consolidations, recapitali-
zation, reclassification, liquidation, dissolution, sale of substan-
tially all assets as other transactions as the Treasury (IRS) may
prescribe. In all other matters, the employee shareholder has no
voice in voting his shares.
The employee shareholder may sell his accumulated shares
back to the Company during certain periods at their fair market
value, but, if the employee wishes to sell at other times, he must
first offer the shares to the Company. The Company, in either
event, may pay for the shares over a period not exceeding 5
years. However, the ESOP is basically constructed as a retire-
ment plan, and the return to individuals who remain with the
Company through their working lives, assuming, of course, that
the Company thrives over the years, would provide substantial
benefits.3
But the goals that the Company envisioned as flowing from
the plans were not entirely accomplished. Fuldner stated that
he had hoped that employees would feel like the Company by
bringing them in as “partners” in the business cared about their
future as well as its own, and, that the employees would join
with management and help it in maintaining and even enhanc-
ing productivity. Fuldner expressed his disappointment that the
plans did not produce the results he expected, but, philosophi-
cally, he reasoned that it was a youthful work force, and that

2 The plan specifically excludes employees who are members of a
collective-bargaining unit and covered by an agreement which the
Secretary of Labor finds contains retirement benefits resulting from
good-faith bargaining between the employer and representatives of
employees. McLeod testified that this exception is allowed under the
Federal Employee Retirement Income Security Act of 1974 (ERISA) in
order to avoid double coverage of an ESOP and a negotiated pension
plan. (See below, sec. III(G)(8)).
3 In 1993, Fuldner testified, the Company contributed $880,000 to
the plans, most of which went to the ESOP, with about 900 employees
sharing in their benefit, each would have received nearly $1000. Com-
pounded over a 30-year work career, this would indeed be a real bene-
fit.
EFCO CORP. 359
young people just didn’t look enough ahead to appreciate the
benefits provided by the ESOP and the profit-sharing plan.
The Company did not abandon the ESOP and profit-sharing
plan, but rather turned to other programs to try to attain higher
levels of efficiency. Fuldner become interested in a manage-
ment rubric called Management Resource Planning II (MRP II).
This is executive shorthand for programs, including Just-in-
time (JIT) inventory control, and Total Quality Control (TQC),
an encyclopedic series of studies of all aspects of a business,
using techniques developed world-wide by the most efficient
and productive companies, and then applied to domestic situa-
tions. Fuldner was enthusiastic about this process and he insti-
tuted it at EFCO.
It is not necessary for purposes of this Decision to follow the
steps followed by the Company in each stage of the MRP II
program. Fuldner explained what was done, and the efforts
required of management people to even get to the point of im-
plementing the program. Suffice it to say, as Fuldner did at the
hearing, that some of the MRP II recommendations were fol-
lowed, and some were still in process, but that a “mechanism
for continuous improvement” had been instituted. The process
itself inevitably led to consideration of the human factor in the
equation. Since this is what we are interested in here, we must
first note Chris Fuldner’s explanation of the involvement in the
MRP II program, of employees, and his development of his
reasons for setting up the Committees which are named as Par-
ties-in-Interest.
B. The Establishment of the Committee
Fuldner testified that the MRP II program led to the devel-
opment of human or employee relations. He felt that employ-
ees on the shop floor, production workers, or janitors, could
become more self-directed in solving day-to-day problems, as
they arose, among themselves, without having to summon a
supervisor every time a problem came up. In the last few
months, he said, the Company has begun encouraging interde-
partmental exchanges of employees. Management needs em-
ployees to feel good about themselves and their jobs, and man-
agement should try to keep employees happy with their bene-
fits, and to appreciate these benefits.
One way to accomplish this last is for employees to “become
involved in every decision the Company makes. Employees
determine what the benefit plans are. They determine what the
compensation levels are going to be, or they have a vast say in
it. But they are also educated to the point where they know
where the Company’s finances are.”
In implementing this sort of collegial management concept,
Fuldner noted that it was hard, with so many employees to keep
everyone informed. Thus, it was decided to use a committee
concept, a smaller, workable, group of employees to tell man-
agement what they like or don’t like about existing benefits and
policies. Fuldner doesn’t want policies if those policies are
alienating people. If there is a problem, maybe they can find a
way to change it so it doesn’t alienate people. The same theory
applies to benefits, if the employees don’t appreciate the cur-
rent benefits, “what benefits would they appreciate?”
Summing up his reasons for creating the Committees, Fuld-
ner said he created them to assist management in making im-
portant policy and benefit decisions. He wanted the committee
member to “buy into it” and have them develop programs and
put them together themselves. He indicated that he trusted
these committee members to the extent that they would be hon-
est with the themselves and with him. They would not recom-
mend anything they didn’t like, or wouldn’t want to have.
Looking back from the date of his testimony on July 14,
1994, to the work for the Committees since early in 1993,
Fuldner reflected that if you tell the committee members
enough about how the business is working and where they are
going with it, they are smart enough, and have enough common
sense to come up with programs that aren’t going to be “bank-
busters,” or totally unrealistic. With a few exceptions, Fuldner
said, that is how it had worked out. Concluding, Fuldner de-
scribed the Committees as a tremendous growth tool for some
people, and a wealth of information coming to the management
group. “I really think it’s . . . something similar to this, pro-
vided the law doesn’t stand in its way, is going to be the thing
of the future.”
Fuldner’s testimony did not specifically identify the em-
ployee committees set up under his management concepts, but
he did mention benefits and policies, which would include two
of the four Committees. It would logically follow that both
employee safety, and the suggestions of individual employees
for improvement of conditions in their workplace would fit in
to Fuldner’s broad strategy for improvement of the Company.
Since there are four Committees named as Parties-in-Interest in
the complaint, I will consider the formation, membership, and
activities of all four in the following sections.
C. The Safety Committee
There had been a safety committee in existence at EFCO in
1988 and 1989, but it apparently lapsed into inactivity some-
time after June, 1989.4
Mike Washick, plant facilitator and an admitted supervisor,
testified that he was asked by former Vice President Scott
Beckwith to revive the Safety Committee (SC). Washick sent
out a memorandum to EFCO employees on April 21, 1992,
announcing the formation of a work force safety committee
“made up of people from the shop floor and office areas.” The
purpose of this committee was to be responsible for handling
safety problems. Washick explained in the memo that the peo-
ple on the SC would have the task of setting safety policies and
finding ways of enforcing those policies. The memo stated that
“we feel that if the people are able to be a part of the policy
setting group they will have a better understanding of why
things have to be done and why they need to be enforced.”
While this language sounds like some of Chris Fuldner’s ideas
noted above, Washick testified that he composed the memo and
that it was not reviewed by any other company official.
Washick also testified that he selected the 11 initial members
of the SC himself from volunteers who had contacted him. The
first meeting was held on June 4, 1992. Ten of the 11 members
were present. Washick outlined for them the purpose of the
SC, to get employees involved in solving safety problems, in
getting employees involved in helping meet OSHA (Occupa-
tional Safety and Health Administration) requirement, in re-
viewing safety rules, and in getting employees’ input in enforc-
ing these rules. David Harris, described as the maintenance
supervisor spoke to the group about OSHA requirements and
what maintenance was doing to correct some safety problems.
After a meeting held on July 2, Washick circulated minutes
describing a “new safety shoe policy” requiring all people who

4 This earlier committee was at first directed by Mona Workes, then
personnel director, later director of human resources. Later Safety
Director Allen Lusby sent out the notices of meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
spend 4 hours or more on the shop floor to wear safety shoes.
There was no indication in the minutes where the new policy
came from—was it from management or from the SC? How
was it arrived at. was there any discussion? It is difficult to
understand what went on at these early meetings, and whether
Washick was actually setting the agenda and directing the dis-
cussions at the meeting, or even bringing for discussions action
which had already been decided upon, or actually implemented
by management.5 Washick continued to direct the work of the
committee up to August 1993. At that time, Lora Saffer6 had
been named safety director for the Company, and she began to
prepare and distribute the agendas for meetings, minutes, and
memos to employees concerning the committee. Saffer contin-
ued in this position until December 2 1993, when one of the SC
members was elected coordinator by the membership. Lora
Saffer to the abstained from voting, but she did according to the
minutes of that meeting, called for and tabulated the ballots.
The SC, more than the Employee Benefits Committee, or the
Employee Policy Review Committee, considered a variety of
problems, or situations, some very minor, such as dirty or bro-
ken light fixtures, fans in shipping areas, repairs to a miter
saw,7 to policy matters such as a system of awards for safety
related achievement by employees,8 policies for the wearing of
safety glasses and safety shoes,9 emergency planning in case of
a natural disaster, tornado, fire or flood, safety training, and
others.
The SC needed new members from time to time and it seems
clear that after the original members were appointed by
Washick, their successors were appointed by the SC member-
ship without input from management. There is no evidence that
any of the members were, themselves, supervisor or managerial
employees. the Committee did discuss obtaining authority to
enforce its decisions. There was apparently, widespread disre-
gard, even ridicule, of the SC’s efforts to improve plant safety,
and a note of disillusionment by some members creeps into the
minutes. There is, however, no record those minutes that the
SC itself was ever granted authority to enforce, or punish viola-
tions of policies which it had recommended and which had
been adopted.
D. Employee Suggestion Screening Committee
The Employee Suggestion Screening Committee (ESSC)
was established in a memorandum dated December 28, 1992,
from Chris Fuldner to six employees, John Ballinger, John
Putzner, Chuck Dunn, Mark Porter, Mark Kaiser, and Richard
Van Vorst. The memorandum informed these employees that
an employee suggestion program was being instituted (by man-
agement) and that they had been selected (by management) to
serve on the Screening Committee.

5 See e.g. mention of a breathing apparatus required of employees in
the anodyzing department in the minutes of the August 13, 1992 meet-
ing (G.C. Exh. 10, p. 21).
6 Saffer was stipulated to be an agent of the Company with the title
of Safety Director of Safety Manager.
7 Some of these problems were reported as solved in the SC minutes,
some were reported progress of solution, and nothing was said or done
about others.
8 This was taken up by Washick with the Management Committee.
Washick brought up two plans submitted by outside consultants the
Management Committee sent the matter back for further study. The
idea apparently died after Washick was replaced as safety officer.
9 Both of these policies were adopted.
The December 28 memorandum instituted a suggestion pro-
gram open to all employees. Rank-and-file employees would
be paid $5 dollars for each valid suggestion, up to a maximum
of five, suggestions. Supervisors would not be paid for their
suggestions but would be given credit and recognition for their
submissions. The initial program would run for about 6 weeks,
from mid-January to the end of February 1993. It was contem-
plated that similar programs would follow.
The ESSC set up in this memorandum would have the re-
sponsibilities to review and make recommendations about the
plan itself; would receive all suggestions, review them and
summarily reject “frivolous or otherwise invalid” suggestions;
would submit suggestion, depending on the subject matter, to
an engineering review board, a manufacturing review board, or
to the Management Committee; would notify the employees
who submitted the suggestion of their action on the suggestion
within 1 week; would make recommendations to the Manage-
ment Committee on especially good suggestions, with the Man-
agement Committee having authority to make any decisions on
“special recognition;” and, generally to run the program effec-
tively, with maximum employee participation.
The ESSC was not responsible for making decisions an im-
plementation of suggestions, but merely had to decide which
suggestions deserved to be considered further by one of the
groups to which the suggestions were sent. Nor was the ESSC
responsible for following up on the progress of the suggestions
after they were referred. The Management Committee was
given responsibility for following up, and notifying the em-
ployees of progress, or lack of progress with their suggestions.
A memorandum dated January 14, 1993, was sent by Fuldner
to all employees, announcing the formation of the ESSC, solic-
iting suggestions from the employees, and concluding by in-
forming the employees that “[W]e are in the midst of a major
change in the way we operate EFCO. One of our major com-
pany-wide objectives for Fy 1993 is to establish effective em-
ployee involvement at all levels and in all areas of our business.
This is an important step in that process. Help us make it hap-
pen!”
There are no minutes in this record of the first meeting of the
ESSC on December 29, 1992, but Mark Kaiser, a salaried pro-
ject manager,10 was elected as chairman of the Committee at
that meeting. Kaiser testified that Senior Vice President Jack
Appel and Chief Financial Officer (CFO) Bret Baker attended
that first meeting.
Appel and Baker presented the ESSC members with an
agenda, told them that “we want you to cover,” the agenda
items and that they could discuss anything else in order to get
the program going. At this same meeting, a suggestion form
was devised by Kaiser, and adopted by the Committee. Kaiser
also worked up a tracking form which would be used to follow
up on suggestions. This form was to be submitted to the Man-
agement Committee by CFO Baker.
There are no minutes of a meeting held on January 4, 1993.11
No other minutes were made a part of the record, but the pro-
10 Kaiser was not a supervisor at that time, but he was promoted to
be a project manager/supervisor in the summer of 1993, and gained
supervisory status. He remained as chairman of the ESSC. From Kai-
ser’s testimony, I do not believe any of the other members except,
possibly, Van Vorst were supervisors or managers.
11 I would not at this point that the parties prepared, before the hear-
ing started, a number of documents drawn from the Company’s files,
and the files of the four Committees which are Parties-in-Interest here.
EFCO CORP. 361
gress of the ESSC was reported in memoranda from Mark Kai-
ser, dated January 13, and February 8 and 9, 1993.12
Kaiser testified that the primary purpose of the ESSC was to
determine if suggestions submitted were reasonable or not, then
the Committee forwarded those which seemed reasonable on to
other committees as set out in Fuldner’s December 28 memo-
randum. In the first group, submitted in January and February,
1993, there were 95 suggestions. Out of these, only seven were
rejected as unreasonable, three were returned for classification,
and four were duplicates of previous suggestions.13 In the sec-
ond go-around, in October, 1993, only 1 out of 19 suggestions
was found unreasonable. 14
Chris Fuldner noted in his January 14, 1993 memorandum to
all employees that “Two management committee members will
sit in on each screening committee meeting as advisors and to
make sure the committee gets the resources it needs.” How-
ever, Kaiser testified that Baker and Appel sat in on some of the
committee’s early meetings, but, later no one other than com-
mittee members were involved in meetings.
Suggestion boxes were placed by the Committee in four lo-
cations in the plant. Forms developed by the ESSC and printed
by the Company were placed on or near the boxes. All times
spent by committee members in gathering suggestions, meeting
to evaluate suggestions, and all other meetings, are performed
on company time, on company premises, and using materials
supplied by the Company.
E. The Employee Benefit Committee
The formation of an Employer Benefit Committee (EBC)
was announced in a memorandum for Chris Fuldner to all
EFCO employees dated September 8, 1992. Fuldner explained
to the employees that “we (management) are establishing an
Employee Benefit Committee to help us make EFCO employ-
ees benefit plans more effective in meeting the needs” of em-
ployees. The EBC was to get ideas and comments from em-
ployees, to contact other employers outside of EFCO, and to
make recommendations to the Management Committee. In this
initial memo, Fuldner listed two areas that the EBC “will ad-
dress,” first, changes in the Company’s medical insurance plan,
and, second, to evaluate an employee paid dental plan.
Human Resources Manager Mona Workes was asked by
Vice President and CFO Bret Baker to screen the people who
would volunteer for service on the EBC. Workes processed

These materials were collated, page-numbered, and submitted into
evidence as General Counsel’s exhibits. I appreciate the labor involved
in preparing these materials, and the considertion the parties have thus
shown for those who must read this record. The incidence of some
omissions or deletions was inevitable and these are, in my opinion, not
material nor harmful to a fully developed record.
12 Some 410 pages of exhibits (G.C. Exh. 12) were submitted as part
of the record. These consist of all of the suggestions received by the
ESSC up to the time of this hearing, together with notations of actions
taken on these suggestions.
13 Fifteen suggestions were deemed reasonable, but no $5 payments
were made. This may be because some of them were submitted by
supervisors who were ineligible for the $5 payments.
14 These figures are not important in evaluating the status of the
ESSC, but they do show a high level of interest, awareness and intelli-
gence on the part of the EFCO work force, and a lot of work by the
ESSC in screening their suggestions.
about 20 volunteers and forwarded their names to Baker, who
selected 10 people as members of the Committee.15
Mark Hardwick, a senior buyer in the purchasing depart-
ment, not alleged or shown to be a supervisor, was elected
Chairman of the EBC at its first meeting on October 1, 1992.
Sharon Privett, a production worker, was elected as recorder of
the meetings.
At this first meeting Chris Fuldner gave a talk to the mem-
bers of the Committee. He said that the Committee was to
choose “its own route,” He gave them two problems to look at
initially, group insurance and a dental plan. The purpose of the
committee was to suggest various benefits, to investigate plans,
analyze costs, talk to people in the various departments in the
plant and solicit opinions as to existing or new plans, and for-
ward recommendations to the management committee. The
memo stated that Bret Baker and Mona Workes would attend
committee meetings but they had no power over committee
activities, and did not have the right to vote on committee deci-
sions. The EBC was to look at benefits, see whether the bene-
fits were worthwhile, whether the Company would be better off
staying with existing benefits as they were, whether they should
be changed, and in what way those changes should be made.
Hardwick was the contact between the EBC and the Man-
agement Committee. He testified that he did not view himself
as an “advance” before the Management Committee, as he
described it, there were no negotiations, no “give and take”
about the merits or faults of any particular proposal. Hardwick
would “clarify” points in EBC proposals, and he did admit that
“everyone likes to think their idea is a good one.” This brief
description of Hardwick’s contacts with the management com-
mittee does not establish that he actually bargained about EBC
recommendations with management, but he certainly discussed,
clarified, and supplied information from EBC to the manage-
ment group.
For the first few months after the EBC was established the
Committee met on almost a weekly basis, later tapering off to
monthly meetings. Both Bert Baker and Mona Workes at-
tended almost all the meetings with Baker assuming a more
active role than Workes. Baker left the Company, in the spring
of 1993. Workers continued to attend meetings. In June 1993
the EBC, through Mark Hardwick, extended an invitation to
Comptroller Don Kellhofer to attend the Committee’s June 3,
meeting, Kellhofer was a frequent attendee from then on, act-
ing, according to the minutes of October 8, 1993, as a liaison
between Chris Fuldner and the EBC. Minutes for meetings up
to June 30, 1994, are included in the record here, albeit there
are a number of omissions and/or duplications.
The EBC met, as did all four committees involved here, on
company time and property. What supplies were needed, pen-
cils, notepads, and other housekeeping and stationery items
were supplied by the Company. As I have noted, Mona
Workes attended almost all of the meetings of the EBC, with
Bret Baker having taken a prominent role in the early days of
15 Baker attempted to get representation from a broad spectrum of
shifts and departments, but couldn’t cover all department because he
did not want too large a committee. The original 10 members included
Keith Ridenour, who was identified as a supervisor in the glass shop by
Mark Hardwick, the chairman of the EBC, and Judi Walker, executive
secretary to Chris Fuldner and his father, Board Chairman Terry Folder,
Kay Shelly, who later volunteered for the EBC, was the Company’s
issurance benefit clerk in the payroll department. There is no indication
in the record that she was a supervisor or a confidential employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
the Committee’s existence, and Don Kellhofer attending a
number of later meetings. Workes was called as a witness but
she was unable or unwilling to discuss the extent of manage-
ment participation (including her own) in committee delibera-
tions or decisions. Baker did take an achieve role at first, but
Workes and Kellhofer acted, as far as I can discern from the
record, only as persons providing resources to the Committee.16
Aside from the October 1 memorandum, there is no indication
that, once Baker left, management people had any influence
over EBC activities. However, Supervisor Keith Ridenour and
Executive Secretary Judi Walker continued to serve as mem-
bers.
After reviewing and making recommendations on the Com-
pany’s medical plan, and the dental plan, the EBC went on to
discuss and make recommendations in a number of the areas,
including a long-term disability program, life insurance, a psy-
chology program, employee-of-the-month awards, sick pay,17
eye care plans, flextime, “jeans” day, savings bond plans, and
cancer insurance. The Committee also expressed concern that
the needs of people working in the shop were not being prop-
erly addressed. There was a proposal for a cookout, and a “wa-
termelon feed” party for shop employees.
The record is not clear, but I think it can be said that some of
the EBC recommendation were adopted by the Management
Committee and implemented by management. These would
include the Company health plan, dental plan, long-term dis-
ability, and the watermelon feed. Others, according to Workes’
testimony, were still pending before the Management Commit-
tee at the time Workes testified on July 10, 1994, including the
cookout, a seat on the Board of Directors for an employee, and
a Good Friday holiday. Still others were rejected including a
proposal for employee credit union, and a prescription plan for
employees.
The EBC continued to function at least down to the time of
this hearing, the last set of minutes received in evidence here
was dated June 30, 1994.
F. The Employer Policy Review Committee
The Fourth and last of the Committees formed in accordance
with Chris Fuldner’s vision for the future of EFCO was more
broadly empowered, and more oriented directly toward man-
agement-type powers than the others. The Employee Policy
Review Committee (EPRC) was established in a memorandum
from Mona Workes, then Personnel Director, on January 15,
1993, to all EFCO employees. Using what sound like the
managerial “we,” Workes informed the employees that:

We are establishing an Employees Policy Committee to help
us review and establish company policies. The committee
will gather comments and ideas from employees regarding

16 One incident, reported in a memorandum from Hardwick to the
Executive Committee (Management Committee), dated October 1,
1993, showed that Hardwick asked members of the EBC questions
about insurance review, and the advisability of adding new members to
the EBC. Both Workes and Kellhofer were polled on these questions,
and the record shows Workes recorded as negative on the questions and
Kellhofer as affirmative. Neither Workes nor Hardwick, who were
asked about this, remembered anything about it. The vote turned out
affirmative, seven to four, and later, four new members were appointed
to the EBC in a memo from Mona Workes stating, in making the an-
nouncement, that “We are pleased to welcome” the newcomers.
17 This topic was later referred to the Employee Policy Review
Committee (q.v.).
existing policies, or needs for implementation of new policies
and make specific recommendations to EFCO’s management
committee.

This will be an on-going committee of fifteen employees, se-
lected to represent all areas of our operation.

Employees wishing to volunteer for service on this commit-
tee were asked to notify Workes, Lora Safer, or Vice President
Bret Baker.
William Jeffrey (B.J.) Stegman is a salaried production plan-
ner. He volunteered for service on the EPRC, was selected, and
was notified of his selection by Mona Workes. He was elected
cochairman of the EPRC along with Phil Short.18
The other members of the EPRC, except for Terry Postal-
wait, another supervisor in the old plant, were rank-and-file
employees, some hourly rated, and some salaried.
Stegman was a candid and reliable witness, although there is
really no dispute of act as to the origin, makeup, or activities of
the EPRC. Stegman testified that Chris Fuldner came to the
Committee’s first meeting. Fulder told the committee members
that they were appointed to examine standing policies, to re-
view those policies that needed review, and present their rec-
ommendations to the Management Committee. If they had a
policy they wanted implemented they had to take it to the Man-
agement Committee, but their scope, concerns, and methods
were left up to them.
As noted, the EPRC elected B.J. Stegman and Short as co-
chairman,19 and Lynn as salaried clerical employee in the con-
tract estimating department, as secretary.20 Stegman testified
that the Committee wanted Mona Workes to attend their meet-
ings. Many situations came up where committee member did
not know what current policy was and they could ask her to
help find out what it was. Workes also served as a resource
person in areas under discussion. Stegman stated that Workes
did not have a vote, and that she and Bret Baker were “guests”
at committee meetings.21
The first meeting of the EPRC was held on Febraury 9, 1993.
The committee was greeted with a memorandum dated Febru-
ary 5 from the Management Committee which began as fol-
lows:

We have decided that we must eliminate smoking in EFCO’s
facilitaties, considering the increasing health and legal issues22
in this area, and in response to employee suggestions and
comments.

The memo went on to say that management wanted the
EPRC in on the problem “from the beginning” and requested
that the EPRC have a draft plan to implement this decision
ready to present to the Management Committee at a meeting on
18 Short was an employee at EFCO’s storefront department in the old
plant in Monet. Short later was made a supervisor, but continued to
service as cochairman.
19 It is clear from the testimony and the documents in evidence that
when he was available, Stegman acted as chairman, and Short took
over only at times when Stegman was not available.
20 The secretary prepared agendas in advance of meetings, and re-
ported the minutes afterwards.
21 I note, however, that the minutes of meetings in evidence here
show that Workes was present at most meetings at least through August
1993, and that she was listed as a committee member in those minutes.
22 The “legal issues” involved probably are connected with possible
legal complications under the Missouri Clean Air Act, Missouri Stat-
utes 191.765 et seq.
EFCO CORP. 363
February 22. The EPRC went to work and obtained views of
employees, of EFCO’S regional offices, and from other com-
panies. Meetings were held on February 16 and 22. Discus-
sions concerned a ban on smokeless tobacco, nicotine patches,
incentives, designated smoking areas, and support groups. A
number of drafts of a policy were prepared, including some
with reasons for the policy, and some first stating the policy,
including a schedule of disciplinary actions for violating the
policy, up to and including termination. The final policy was
promulgated over Fuldner’s signature on June 1, 1993.
Before the smoking policy issue was finally finalized, the
committee began considering other issues, and their views and
actions on matters such as sick leave/personal days,23 dress
code, 4-day work week, overtime, holidays, vacations, work
hours, and timeclocks. The minutes report considerable discus-
sion on the nonsmoking policy and, the personal/sick leave
days, both of which eventuated in written company policies.
The 4-day week also engendered much discussion but it and the
other policies suggested or considered had not been converted
into final form at the time of this hearing. Mona Workes testi-
fied that as of July 12, 1994, policies on transfers, dress codes,
payroll records, overtime and one-half-day vacation selection
had not been acted on by management.
While Mona Workes was present at most EPRC meetings,
and described in the minutes as a member for most of the year-
and-a-half history of the Committee, it does not appear that
other management people attended meetings or participated in
discussions with the Committee about policies. Stegman and
Short did meet with the Management Committee from time to
time, and, while no one was asked the content of those meet-
ings, I can and do infer that the EPRC member and the man-
agement committee members did discuss the content of the
proposals EPRC had studied and was recommending for adop-
tion.
The EPRC, according to Stegman, chose its own new mem-
bers, and at one point set up standards for the replacement
members who didn’t keep up attendance, or were forced to
resign for other reasons. In October 1993, five new members
were appointed to fill vacancies on the committee. Stegman
testified that they received no input from management on the
makeup of the Committee. A memorandum dated September
30, 1993, would indicate that volunteers should express their
interest to Teri Fields, who was then a member of the EPRC.
Travis Clevenger, one of the five new members, testified, how-
ever, that he was informed by Mona Workes that he was se-
lected. A memo dated October 11, announcing the selection of
the five new members, was sent to all EFCO employees over
Works’ name.
This Committee’s work was continuing at the time of this
hearing, the minutes of the June 29 meeting were introduced
into evidence, and these minutes was an announcement that the
next meeting was to be held on July 13, 1994.

23 Both the EPRC and the Employee Benefits Committee had inde-
pendently started looking into this issue. The EBC felt the matter was
really a policy issue, and Mark Hardwick, the EBC Chairman, agreed
with Stegman to let EPRC handle it. This policy became effective on
August 1, 1993.
G. The 8(A)(1) Allegations
1. The no-solicitation rule
The complaint here alleges that the Company promulgated
and maintained an unlawful no-solicitation rule in an employee
handbook issued on February 20, 1993. The rule reads as fol-
lows:

Unauthorized solicitations of employees, or the unauthorized
distribution of literature of any kind on company premises is
strictly prohibited at all times. This prohibition applies both
to employees during working hours and to non-employees.
Any such incident should be reported to Personnel immedi-
ately.

In some instances the collection of money for presents, flow-
ers, parties, donations, or for cases of particular hardship can
be considered appropriate. All such approved solicitations
should be made during regularly scheduled rest and lunch pe-
riods.

This rule was alleged to be a violation of Section 8(a)(1) of
the Act in paragraphs 5(a) and 7 of the complaint. After receiv-
ing the notice from the Union that it was engaged in organiza-
tional activities at the plant, Chris Fuldner sent a memorandum
to all plant supervisors. This memo read, in part:

In-plant union sympathizers are allowed to do certain things,
but they are prohibited from certain activities. The following
is a guideline:
1. They may promote the union on break, lunchtime,
and off-hours in non-work areas only—i.e. lunchroom and
break areas and off premises.
2. They may hand out literature at the times and
places mentioned in No. 1.
3. They may not promote the union during working
hours.
4. They may not promote the union in work areas at
any time.” [Emphasis in original.]

In paragraphs 5(c) and 7, the complaint alleges that this
memo violated Section 8(a)(1) of the Act.
There were two instances mentioned in the complaint, one of
which arose out of the non-solicitation rule itself, and the other
from Fuldner’s July 28 memo.
In the first instance, the complaint in paragraph 5(b), alleges
that the rule was enforced selectively and disperately by prohib-
iting union solicitations and distributions, while permitting non-
union solicitations and distributions. On July 27, Dennis Wolf,
a small parts fabricator on the storefront line had passed out
copies of a union letter to employees in working areas of the
plant, up and down the aisles, at a time before his shift was
scheduled to begin that morning.24 In the afternoon Wolf was
approached by Plant Manager Donny Sorensen and Assistant
Plant Manager John Stricklin. Sorensen told Wolf to stop pass-
ing out the letters inside the plant. He told Wolf to take the
letters outside, and do it on his own time. Sorensen testified
that he was told that Wolf was passing out literature on working
time and that this was “bothering people.” He and Stricklin
went to see Wolf in Wolf’s work area and Sorensen told him
not to pass out literature on worktime and to restrict the distri-
bution of literature to the breakroom or outside the building.
24 There was no third shift working at that time in that part of the
plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
Stricklin testified substantially as Sorensen had, Wolf was to
pass out his literature on his own time while on break or at
lunch. Wolf did not argue with these orders, and henceforth
confined his union activities to areas outside the plant.
Travis Clevenger, a former bead saw operator, Carol Baker,
a fabricator, Joe Cain a debridge saw operator, Jesse Black, a
saw man, and Dennis Wolf, all employees on the first shift in
the old plant, were unanimous in their testimony that collec-
tions for people who were ill or in financial trouble were rou-
tinely conducted in the plant, or worktime as well as breaks or
lunch periods. These were also the usual things, baseball pools,
candy sales, Avon, Little League sales, farm product sales, all
routinely conducted in work areas without interference from
supervisors who were on the scene. Carol Baker added that
antiunion literature was distributed in working areas during
worktime.
Both Donny Sorensen and John Stricklin testified that they
have observed, or are told about such activities, they tell em-
ployees involved to stop, and confine such activities to break
time, lunchtime, or off the work floor. Stricklin did admit that
collections for people sick or in trouble occasionally were con-
ducted on worktime.
Travis Clevenger reported on another incident which hap-
pened about August 1, 1993. The complaint, in paragraph 5(d)
alleges that two persons named as agents of the Company in
paragraph 4(b) of the complaint, threatened employees with
discipline if they were seen (or heard, presumably) talking
about the union.
Clevenger testified that Rodney Johnson, who he described
as a lead man in his department, showed him Fuldner’s July
letter on union activity, and told Clevenger that “if he caught us
talking or soliciting for the union anywhere on Company prem-
ises that we would be wrote up.”
While there was no objection to this testimony as hearsay, I
noted that the Company has denied Rodney Johnson’s status as
its agent and no evidence was introduced on that issue by the
General Counsel.
2. Surveillance and impressions of surveillance
Paragraph 5(e) of the complaint alleged that Supervisor
Randy Adams engaged in surveillance of employees engaged in
union activities on August 3, 1993.
Dennis Wolf testified that he and several other EFCO em-
ployees met during their lunch hour, about noontime, on Au-
gust 3, in Monett City Park with Union Representatives Jim
Tudor and John Overman. The other employees were Carol
Baker, Joe Cain, and Charlie Riedle. The meeting was out-
doors on a hill near a small building known as the casino.
While the meeting was going on, Wolf stated that he saw a
pickup truck driven by the shipping supervisor for the old plant,
Randy Adams, go by near where the meeting was taking place.
Adams had with him a rank-and-file employee, Randy
McGlothlin. Two or 3 minutes later, the truck came back
around and the occupants waved at Wolf, who waved back.
Wolf’s testimony was corroborated by Carol Baker and Joe
Cain, who also testified that they saw Adams and McGlothlin
pass by twice while they were at the meeting in the park.
Randall Adams, the supervisor of shipping at the old plant,
supervises about 14 people on days and 8 at night. He testified
that like all day-shift employees, he goes to lunch from 12 noon
to 12:30. In the summer, he said, he likes to go up to the public
swimming pool in the Monnett City Park and park in a shady
sport by the pool, eat his lunch, and look at the girls. Randy
McGlothlin, formerly a shipper, at the time of the hearing a
lead man in the shipping department, testified that he went to
lunch twice a week with Randall Adams. When the weather
was good they would leave the plant, buy their lunch, and go up
to the pool in the park to watch the women and listen to Paul
Harvey on the radio. On August 3, McGlothlin said, they left
the plant at 12 noon, brought lunch at a Subway sandwich shop
between 12:03 and 12:10, then drove up to the park, arriving at
the pool about 12:15. They stayed at the pool for 10 minutes,
leaving at 12:25 to go back to the plant. On the way back
McGlothlin stated, he saw Carol Baker with Dennis Wolf and
two other people he didn’t know standing in a group. He
waved at Baker and she waved back. Adams asked who he was
waving at, McGlothlin told him, and Adams also waved.
This incident was alleged to be unlawful surveillance in
paragraph 5(e) of the complaint.
This incident might have passed unnoticed if it were not for
the fact that during the same afternoon, between 2 and 2:30,
Chris Fuldner came up to Carol Baker’s work station and said
that he had heard that she “and some others” would like to talk
to him. He told her that he just wanted her to know that if she
did, his door was always open. She thanked him, and he left.
Chris Fuldner testified that no one told him anything about
Adams and McGlothlin’s observation of people in the Monett
City Park on August 3 until much later. He did not know about
that incident when he approached Carol Baker at her work sta-
tion. He said that he stopped by to see her because an em-
ployee named Mike Williams had told him that Dennis Wolf
and Carol Baker would like to talk to him. He went to the old
plant on another matter and as he was leaving, he saw Baker
and said he understood she might want to talk to him, and if she
did, his door was always open. She thanked him and he left.
This last was alleged to have created an impression of sur-
veillance in paragraph 5(f) of the complaint.
3. Solicitation of grievances
There were two allegations in the complaint concerning so-
licitation of employee complaints and grievances. The first was
contained in paragraph 5(g) alleging solicitation of complaints
and grievances by William J. (B.J.) Stegman, on behalf of Chris
Fuldner. Dennis Wolf testified that Stegman asked him if he
wanted to serve on a grievance committee to be set up by Fuld-
ner. Wolf said he would serve only if he had a union represen-
tative present. The matter was then dropped. There was no
argument concerning it made in the General Counsel’s brief on
this issue.
The second incident was set out in paragraph 5(h), alleging
that Mike Williams solicited complaints and grievances on
behalf of Chris Fuldner.
Steve Carpenter, a lead man on the storefront line in the old
plant testified that Mike Williams, a worker “out on the line”
came up to him sometime around the end of August or first of
September just after they had started work on the second shift.
Williams asked Carpenter if he would be interested in going to
a meeting in Chris Fuldner’s office and discussing problems at
EFCO. Carpenter agreed and he, Mike Williams, another em-
ployee named Ronnie Williams, and a fourth employee. Car-
penter did not know, sat down with Fuldner in the latter’s of-
fice. Carpenter quoted Mike Williams as saying at the meeting
that he had invited Dennis Wolf, but Wolf said no because he
wanted a union representative present.
EFCO CORP. 365
The meeting itself started with the unknown employee ask-
ing about insurance, Carpenter talking about quality on the
storefront line, and problems with beads which mold glass in
the frames. Fuldner took notes, promising to look into the in-
surance matter and telling Carpenter that they were looking into
the problems he had raised. There was some general talk about
tools and quality problems in the storefront. According to Car-
penter the meeting lasted about 20 minutes to a half hour.
Fuldner testified that Mike Williams worked, not on the line,
but in receiving. He would receive rush packages or mail from
Federal Express, and, presumably, other companies, and would
bring these to the front office. While he was there he would
engage Fuldner in conversation. Williams identified himself to
Fuldner as a union committeeman, and during the union cam-
paign in the summer and fall of 1993, Fuldner admitted that
they talked about Williams’ reasons for wanting a union. These
conversations also concerned other matters, and according to
Fuldner, were still continuing at the time of this hearing. Fuld-
ner denied that he had ever asked Williams to solicit employee
complaints or to solicit individuals to form a grievance commit-
tee. Fuldner was not asked directly about the meeting de-
scribed by Carpenter. Mike Williams, who according to Fuld-
ner’s testimony was still employed by EFCO, was not called on
to testify.
4. Granting of transfers
Paragraph 5(i) of the complaint alleged that Chris Fuldner
granted job transfers to employees in order to induce them not
to aid or assist the Union, or to select it as their bargaining rep-
resentative.
Kathy Perriman, an employee of EFCO from July 1991 to
November 1993, testified that she was having problems with
her supervisor.25 She complained up the line, and, on August
25, found herself in Chris Fuldner’s office. She told him about
her problems and he replied that he didn’t want anyone to have
bad work experiences.
Fuldner said he would work on a transfer for Perriman. He
added that there were a lot of union people out there who be-
lieved that he didn’t care about employees and would like other
EFCO employees to believe differently. He said that they (the
Company) didn’t get this far by mistreating employees.
Fuldner called in Perriman’s supervisor and a transfer was
arranged for her.26 His testimony on this occurrence was not
materially different from Perriman’s.
H. Discussion and Conclusions
1. The no-solicitation rule
The General Counsel maintains that the no-solicitation rule
quoted above in section (G)(1) of this decision, violates Section
8(a)(1) of the Act, because it bans all solicitation or distribution
of literature “on company premises—at all times.” the mere
existence of such a broad rule, even if, as the General Counsel
points out, it is not enforced, carries with it the possibility of
enforcement against a statutory right to engage in union activi-
ties. Our Way, Inc., 268 NLRB 394 (1993). I believe that the
rule unreasonably tends to interfere with, restrain and coerce

25 The nature of these problems was not described here, and I do not
view that as important to the issue of the complaint allegation in para-
graph 5(i).
26 She worked a little over 2 months, then was terminated for failure
to call in to report her absence from work. This also has no bearing on
the issue involving her and Fuldner.
employees in the exercise of their rights under Section 7 of the
Act. Soltech, Inc., 306 NLRB 269 (1992).
The second paragraph of the no-solicitation rule authorizes
collection of money for certain specified purposes, provided
such collections are approved (by management). The author-
ized collections do not, in my opinion, alter my view that the
rule is invalid, and I so find. I, therefore, find that by promul-
gating and maintaining this rule, the Respondent has violated
Section 8(a)(1) of the Act.
2. Enforcement of the rule
The warning to Dennis Wolf by Plant Manager Sorensen on
July 27 is alleged as a separate violation of Section 8(a)(1).
The facts were substantially undisputed. Wolf was passing out
union literature in working areas inside the plant before the
start of the first shift. There were no employees actually work-
ing at that time. Later, Sorensen had heard from unnamed
sources that Wolf was passing out union literature inside the
plant, on working time. So Sorensen, accompanied by Assis-
tant Plant Manager John Stricklin, came up to Wolf at his work
station sometime before the afternoon break. There is no dis-
agreement that Sorensen began the conversation, not by asking
Wolf what he had done, but by telling him that he was not to
pass out “those letters you are passing out.” There is a differ-
ence between Wolf’s recollection of the extent of the prohibi-
tion, and Sorensen’s. The latter said he told Wolf to confine
the distribution to the breakroom, or outside the plant. Wolf
did not mention the breakroom but stated that Sorensen told
him not to pass out the literature “anymore, inside the plant—
take them outside, on your own time.”
Stricklin, the witness, gave a third version, saying that
Sorensen told Wolf to stop passing out the literature during
company time, to do it on his own or outside the Company.
Looking at these three statements, I note that the only ver-
sion which is consistent with the existing no-solicitation rule is
Wolf’s. The rule prohibits all solicitations “on company prem-
ises.” It would be unlikely for a plant manager, or an assistant,
to reprimand an employee and tell him he had to pass out litera-
ture on his own time, in the breakroom, a location most assur-
edly located on the Company’s premises. I, therefore, credit
Wolf’s version of what he was told. Since I have found the rule
invalid, I likewise find this reprimand, issued under the stric-
tures of that rule, to be an additional violation of Section
8(a)(1).27 See Our Way, Inc., supra.
3. The July 28 memorandum
In what may have been an effort at damage control after the
Wolf incident on July 27, Chris Fuldner issued a memorandum
on July 28 to all plant supervisors. The memo is set out at sec-
tion III (G)(1), above.
27 There was testimony by a number of employee witnesses attesting
to all manner of collections for sick employees, for an employee billed
while at work for needy employees, and the usual Little League, Avon,
Church and school related drives and collections, all conducted out in
the open, in the plant, with supervisor participation, and some con-
ducted at least in part on work time. Sorensen maintained that when-
ever he saw these things going on during worktime, he told the people
involved to stop. Stricklin said the same thing, but did admit that he
had seen collections for deceased or injured worker being conducted or
working time. I think both Sorensen and Stricklin were sincere, but in
a large plant these things will go on in the absence of vigorous and
constant enforcement by all levels of supervision. See Raytheon Co.,
277 NLRB 1528 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
Limiting the union activities to nonwork areas, the memo-
randum prohibits any union activities in work areas even on
nonworking time. There are no special circumstances justify-
ing such restrictions. Burger King Corp., 265 NLRB 1507
(1982). Therefore, this restriction is overly broad, and a further
violations of Section 8(a)(1) of the Act, Republic Aviation
Corp. v. NLRB., 324 U.S. 793 (1945).
4. The Clevenger incident
Since there was no evidence of the supervisory status of
Rodney Johnson, the person who allegedly threatened Travis
Clevenger, and no evidence that Johnson was acting as an agent
of the Company, even though I found Clevenger to be a credi-
ble witness, I cannot find that the statements by Johnson to
Clevenger are any more than remarks made by one employee to
another, and are not violative of the Act.
5. The Monett Park incident
There are only minor inconsistencies in the description of
this incident by witnesses called by the General Counsel and by
the Company. Moreover, all of the testimony seems to me to
express the best recollection of each of the witnesses, albeit
their memories differ slightly in whether Adams’ truck was
approaching from, or moving away from the group meeting
there in the park. The General Counsel’s witnesses agreed that
the truck was seen twice, and that the second time, the occu-
pants, who were known to the participants of the meeting,
waved to them and they waved back. I credit these facts, but I
also credit the testimony of Adams and McGlothlin that they
were just heading for lunch, then after eating their lunch, they
were proceeding back to the plant when they noticed the em-
ployees, whom they knew, standing in the park. I also credit
Adams and McGlothlin in their assertions that they did not
speak to anyone about what they saw. There is no indication
that they knew that Wolf and Baker were union activists, or that
what they saw was a union meeting in progress.
On the basis of these findings, I do not believe that the Gen-
eral Counsel has established by a preponderance of the credible
evidence that through the actions of Randall Adams, an admit-
ted supervisor, the Company has violated Section 8(a)(1) in this
situation.
The postscript to this incident, Chris Fuldner’s approach to
Carol Baker at her work station later that afternoon probably
gave rise, as I have mentioned earlier, to the allegation of sur-
veillance just discussed. There is no evidence that Randall
Adams, or Randy McGlothlin told anyone in management
about their observation of Carol Baker, and others, in the park.
Indeed, Fuldner testified that he got the idea of talking to Carol
Baker from Mike Williams, an employee in the receiving de-
partment, whose work required him frequently to go to the
President’s office. When Williams was there, according to
Fuldner’s testimony, they talked about the Union. At one point
Williams said he was a union committeeman, although there is
no corroboration of this claim, and around August 3, Fuldner
says, Williams told him that Wolf and Baker might like to talk
with him. Soon after that conversation Fuldner happened to be
in Baker’s work area, and he stopped to invite her to come and
see him to talk about problems.
Baker naturally assumed that Fuldner’s visit was prompted
by a report of the union meeting in the park that noontime.
This assumption is certainly reasonable and logical, even
though I have found that it did not happen that way. But there
was a union campaign going on, and Fuldner, by his own testi-
mony, would not have approached Baker if he had not been
advised by Williams, a self-described union committeeman,
that Baker and Dennis Wolf “might want to talk to” Fuldner. I
think an inference may be fairly drawn that Fuldner viewed
Williams’ remark as an invitation to meet with union support-
ers.28
Thus, even in the absence of a tie-in between the events the
park with Fuldner’s visit to Baker, the tie-in between the Wil-
liams identification of Baker along with Wolf, and Fuldner’s
followup on Williams’s suggestion would serve to justify
Baker’s fear that his union activities were under surveillance. I
find, in these circumstances, that Fuldner did create an impres-
sion of surveillance by inviting Baker to his office to discuss
whatever she wanted. This I find is an additional violation of
Section 8(a)(1). United Charter Service, 306 NLRB 150
(1992).
6. Solicitation of grievances
I have noted that there was no followup on the complaint al-
legation in paragraph 5(g) that B.J. Stegman had solicited
grievances from employees,29 but in another allegation, para-
graph 5(h), the matter of grievance solicitation developed more
fully. Steve Carpenter’s testimony that Mike Williams had
invited him and two other employees to Fuldner’s office where,
in Fuldner’s presence and with his participation, they discussed
grievances concerning employee benefits and working condi-
tions. This testimony was not disputed, and I credit it in its
entirety. I find, therefore, that at about the end of August or the
beginning of September 1993, three employees went to Fuld-
ner’s office, at Mike Williams’s invitation, and discussed
grievances. I find this to be another violation of Section 8(a)(1)
of the Act, Mast Advertising, 286 NLRB 955 (1987).
7. Grant of a job transfer
As I have described above, employee Kathy Perriman was
having problems with her supervisor. She appealed to Chris
Fuldner and he agreed to transfer her to another location. There
is no indication that the new position was in any way better or
more advantageous to Perriman than the one she left, other than
the fact that she was getting away from a supervisor who was,
for whatever reason, giving her problems. Now, in the course
of her interview with Fuldner, Perriman reported that he said to
her that there were a lot of “Union people out there who
beleived that he didn’t care about employees and these Union
people would like other EFCO employees to believe that, but
he did not want employees to have bad work experiences and
he implemented Perriman’s transfer in order to help her.
The General Counsel argues that this statement served to
couple Perriman’s transfer to abandoning support for the Un-
ion. I did not agree. I view Fuldner’s statement to Perriman as
arguing to her that the Union was unjustly accusing him of
neglecting his employees. I do not view this as a violation of
law. It merely was an expression of his own impression of
what he thought the Union felt, and a celebration of his own
generosity and open-handedness.

28 Fuldner certainly knew of Wolf’s activity on behalf of the Union
(see sec. III(G)(1), above), and the coupling of Baker’s name with
Wolf’s would lead to identification of Baker with the Union as well,
even if Folder had no other information on her position or activities.
29 I do not find any violation of Sec. 8(a)(1) in this incident.
EFCO CORP. 367
8. The ESOP announcement
Sometime in October 1993, according to the testimony of
Dennis Wolf, a notice as posted on a bulletin board in the old
plant consisting of an application to the Internal Revenue Ser-
vice for approval of an Employee Stock Option Plan (ESOP).
Among the features of the proposed plan was a statement of
which employees were to be eligible to participate in the plan:
“The employees eligible to participate under the plan are all
employees except members of a collective bargaining group.”
The Respondent does not disagree with paragraph 8(k) as
added to the complaint by amendment dated May 9, 1994, but
argues that there are mitigating circumstances.
These circumstances derive from Section 2.01 of the plan,
which reads as follows:

An employee is an excluded employee if he is a member of a
collective bargaining unit, unless the collective bargaining
agreement provides otherwise. An employee is a member of
a collective bargaining unit if he is included in a unit of em-
ployees covered by an agreement which the Secretary of labor
finds to be a collective bargaining agreement between em-
ployee representatives and one or more employers if there is
evidence that retirement benefits were the subject of good
faith bargaining between such employee representatives and
employer [sic.]. The term “employees representatives” does
not include an organization more than one-half of the mem-
bers of which are owners, officers or executives of an em-
ployers. [Emphasis added.]

The ESOP itself, as well as the notice complained of in para-
graph 5(k), were both prepared by James F. McLeod, an attor-
ney who has represented EFCO for some years. It is clear from
the wording of the notice, describing the excluded employees
as members of a “collective bargaining group,” that McLeod,
whose professional skills in drafting the ESOP itself are noth-
ing less than remarkable, is obviously not familiar with terms of
art used by labor law practitioners. In summarizing the status
of excluded employees, McLeod used the word “group instead
of “unit” which has a technical meaning quite different from
the word “group.” McLeod did not perhaps for reasons of
economy, go in to the rest of section 2.01 of the ESOP (which
looks like an excerpt from a statute or regulation) a complicated
delineation of employee eligibility which, generally, provides
for exclusion of persons specifically excluded by collective-
bargaining agreement or included in a unit of employees about
which there has been good-faith bargaining concerning retire-
ment benefits.30
After the issuance of the amendment to the complaint on
May 9, 1993, the Respondent issued another notice, on July 7,
1994, stating that the JRS had approved the plan an quoting
section 2.01 of the ESOP in full. Without admitting any error
in the original notice31 the 1994 notice rescinded the description
of excluded employees in the old notice and stated that it was
not the Company’s intention to suggest that employees would
be ineligible for coverage under the ESOP if they became
members of a union.

30 This description, like McLeod’s, is an oversimplification. Sec.
2.01 is strewn with legal beartraps, but the issue here is really the effect
of the posted notice, not the intent of McLeod, or the Respondent in its
preparation.
31 Which, according to the July 7, 1994 memo actually was posted
“around May 21, 1993.”
This memorandum seems clear enough, but the original no-
tice, presented to the employees, according to the Company’s
own representation in May, 1993, was an display at least until
October 1993, during the union campaign in the summer of that
year. Thus, its impact would not have been totally removed, or
recalled retroactively, by the publication of a correction just
before the opening of this hearing in July 1994. The error may
or may not have been inadvertent, but the impact on employees
by its display for over a year, constitutes a further violation of
Section 8(a)(1) of the Act, Lynn-Edwards Corp., 290 NLRB
202 (1988).
I. The 8(a)(2) Allegations
1. Position of the parties
The General Counsel argues, in his brief, based on the facts I
have summarized above in section III(B) through (F), that the
four committees set up by management; the Safety Committee
(SC), described in section III(C), the Employee Suggestion
Screening Committee (ESSC), described in section III(D); the
Employee Benefits Committee (EBC), described in section
III(E); and the Employee Policy Review Committee (EPRC),
described in section III(F), admit employees to participate and
exist, in whole or in part, to deal with the Company concerning
“grievances, labor disputes, wages, rates of pay, hours of em-
ployment or conditions of worth.”32 They thus qualify as labor
organizations within the meaning of Section 2(5) of the Act.
The General Counsel further maintains that the actions of the
Respondent EFCO created dominated the Committees similar
to the employer’s creation and domination33 of the committees
in Electromation, Inc., 309 NLRB 990 (1992),34 affd. 35 F.3d
1148 (7th Cir. 1994), in violation of Section 8(a)(2) of the Act.
The Respondent, on the other hand, makes a number of ar-
guments in opposition to the General Counsel. First, the Re-
spondents argue that its employees, because of their participa-
tion in the Company’s ESOP program, and the owners of some-
thing under 25 percent of the Company’s stock are thereby
owners of a substantial interesting the equity of the Company,
and are not eligible to be considered as members of a labor
organization; Second, that these employees by their participa-
tion in the Committees are managerial employees within the
meaning of the Act as interpreted by such cases as NLRB v.
Yeshiva University, 444 U.S. 672 (1980); Third, that the
Committees here are not labor organizations within the mean-
ing of the Act; that the Company did not dominate the commit-
tees; that the facts in this case clearly distinguish it from Elec-
tromation; and, finally, that any decision holding that Respon-
dent has violated Section 8(a)(2) in establishing and dominating
these committees is, itself, an unlawful infringement or the
Committee members’ and Respondent’s freedoms of speech,
assembly, and association under the United States Constitution.
2. The managerial employee argument.
This portion of the argument is based on the Company’s
view that the employee members of the Committees are persons
who represent “management interests by taking or recommend-
ing discretionary actions that effectively control or implement
employee policy.” NLRB v. Yeshiva, supra.
32 Sec. 2(5) of the Act, 29 U.S.C. 125(5).
33 See E. I. du Pont de Nemours & Co., 311 NLRB 893 (1993).
34 Referred to throughout the record in this case as “Electormation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
This argument, that employees serving on these committees
are managerial, is combined in the Company’s brief, with the
argument that because all of the employees of EFCO are par-
ticipants in the ESOP plan, owning, collectively, some 25 per-
cent of the Company’s common stock, they are owners of the
Company admitting that this 25-percent ownership is restricted
by the ESOP document itself (R. Exh. 17).
As to the first argument, I do not believe that there is any
valid analogy between the four committees in existence at
EFCO, and those considered by the Supreme Court in Ye-
shiva.35 In the latter case, standing committees, established by
the faculty and made up of faculty members functioned at de-
partmental, school, and University levels. All faculty members
participated in one or more standing committees. These com-
mittees were supplemented by ad hoc committees established,
again by the faculty, for special purposes such as the recom-
mendations for the selection of deans, the establishment or
discontinuance of university or school programs, and other
extraordinary matters.
These committees effectively determined what was going to
be taught at the university; who would teach in the various
courses of study; who would be admitted to the university and
to particular courses of study; what grades would be given to
students; who would be retained and who would be dismissed;
who would be hired to teach; what faculty members would be
retained, promoted or granted tenure; what grants would be
applied for; how these grants should be used; and, in some
instances, what schools or departments should be established,
maintained or discontinued, and what tuition should be charged
for attendance at the university.
In short, as they Court found in Yeshiva, the faculty effec-
tively and pervasively controlled the actual governance of the
university.
The situation at EFCO is quite different. The committees in
question here were established unilaterally by management.
The employees originally selected by management, as in Elec-
tromation, supra, from volunteers. These committee members,
originally 43 to 50 in number,36 were only a small proportion of
the total employee complement, and their participation was and
is confined to employee benefits, employee policies, employee
suggestions, and employee safety. The committees have abso-
lutely no say in what the Company produces; who will produce
it; how it will be marketed or advertised; what materials shall
be purchased; how these materials should be used; nor in any
other way these committees exercised any authority, or even
any concern, over fundamental questions concerning the man-
agement of the enterprise.
I find that these committees considered and made recom-
mendations only concerning matters of employee–employer
interest. Thus, the argument based on Yeshiva is not applicable
to the facts of this case.
In its argument that the existence of the ESOP at EFCO
makes the participants in the plan, in effect, owners of a sub-
stantial portion of the business, the Company admits that the
plan does not provide for employee participation in the election
of directors, or the “transaction of routine cooperate business at
shareholder meetings,” not to mention the day-to-day running

35 An in other cases considered by the Board and the courts under
Yeshiva principles laid down by the Supreme Court.
36 These numbers varied as members dropped out and new members
were added, but the numbers remained fairly constant.
of the Company. Nor does the individual participant have a
right to instruct the Trustee if the plant to vote in any way, ex-
cept with regard to certain major corporate issues such as
merger or consolidation, recapitalization, liquidation, dissolu-
sion, reclassification, sale of substantially all assets, or similar
transactions (R. Exh. 17, sec. 10.17).
The Company argues that the combination of the 25-percent
strength of the employees’ stock interest, albeit in limited areas
of corporate governance, combined with the policy making
powers of the committees, render all of the employees, as par-
ticipants in the ESOP, to be managerial employees.
The Board cases cited by the Company for this position are
all representation cases where the issue was whether employees
would or would not be eligible to vote in a Board-conducted
election. Sida of Hawaii, Inc., 191 NLRB 194 (1971); Brook-
ings Plywood Corp., 98 NLRB 794 (1952).
There are two basic problems I find with this argument. This
is not a representation case. There is no issue here of employ-
ees voting or not voting in an election. Moreover, the 25 per-
cent of the Company’s stock is owned by all of the participants
in the ESOP. The alleged managerial functions are exercised
by a small percentage of those participants. Therefore, I do not
believe the Company can pyramid one upon the other to vest
the 43 or so committee members with the whole weight of the
25-percent ownership.
Second, the Company’s claim that the 25-percent ownership
is sufficient to influence company policy (or at least to caution
management not to ignore it) demonstrates only a potential
influence. The Board has held that the power of stock owner-
ship must be more than potential. It must reflect actual control,
or an effective voice in the formulation and determination of
cooperate policy. These has been no showing that any such
actual control, or an effective voice in company policy has been
shown here.37 S–B Printers, 227 NLRB 1274, 1275 (1977);
Science Applications International Corp., 309 NLRB 373
(1992).
The Company’s argument on these issues must fail. I see no
connection between the activities of the committees here and
the criteria laid down by the Court in NLRB v. Bell Aerospace
Co., 416 U.S. 267 (1974).
3. Are the Committees labor organizations?
The Company argues in this section of its brief that the
Board was in error in finding the committees in Electromation
to be “labor organizations” within the meaning of Section 2(5)
of the Act. Further, the Company argues that in order to come
within the statutory definition of Section 2(5), the organization
in question it must have been authorized by other employees in
a unit to represent them.38
The Company’s position does not, in my opinion take into
account the several different types of entities included in the
Section 2(5) definition of a “labor organization,” and does not
currently interpret the legislative history of the Wagner Act
showing the interest of the frames of that law in this definition.
In affirming the Board’s decision in Electromation, the Cir-
cuit Court agreed that the “action committees would constitute
37 Even if either the ESOP participants, or the Committees here, had
any impact on any cooperate policies other than employee–employer
relations.
38 Citing United States v. Ryan, 350 U.S. 299 (1956) and Former
Board Devaney’s concurring opinion in Electromation. Neither the
Ryan case, nor Member Devaney’s concurrence are controlling here.
EFCO CORP. 369
labor organizations if: (1) the Electromation employees partici-
pated in the committees; (2) the committees existed, at least in
part, for the purposes of ‘dealing with’ the employer; and (3)
these dealings concerned ‘grievances, labor disputes, wage,
rates of pay, hours of employment or conditions of work.’”
Electromation, Inc. v. NLRB, 35 F.3d 1148 (7th Cir. 1994). A
narrow construction of Section 2(5), such as that urged on us
here by the Company, was rejected by the Court, citing the
Legislative History of the Wagner Act, S. Rep. No. 573, 74th
Cong., 1st Sess. 7 (1935), reprinted in 2 Leg. Hist. 2306
(LMRDA 1959, reprinted 1985). Under the Court’s interpreta-
tion of the Legislative History, a labor organization need not
have offices, a constitution, by-laws dues, or a treasury. Elec-
tromation Corp. v. NLRB, supra at 1159.
These committees in this case likewise had no constitutions
or by-laws, no dues, and no treasuries. Each of them did have a
statement of their duties and functions issued to them in the
cases of the EBC, the ESSC and the EPRC by letters establish-
ing them and outlining their duties.39 They had officers, in the
case of the ESSC, EBC, and the EPRC, elected by the member-
ship, in the case of the SC, Mike Washick, the plant coordinator
assumed the role of chairman.
In the cases of three of the Committees, EBC, EPRC, and
SC, the members were urged by Fuldner and Washick to talk to
other employees to obtain ideas and suggestions from other
employees in the plant.40
In the light of all the evidence here, I think it is clear that
these four committees are, each of them, labor organizations
within the meaning of Section 2(5). They each had employees
as members; they were established by the Company, in further-
ance of Chris Fuldner’s vision for a more productive, more
profitable, and a more satisfying place for employees to work.
In furtherance of these goals, Fuldner had set up the FSOP and
profit sharing plan, but seeing that those benefits were to far in
the future for most employees, he set up committees to look to
improvement of employment policies (EPRC); employee bene-
fits (EBC); employee safety (SC): and employee suggestions
(ESSC). All of these committees dealt with conditions of em-
ployment. All were directed to talk to employees in the shops
and offices to solicit, suggestions in one case, and ideas or pro-
posals by the other three. The proposals were then discussed
among committee members, then brought to the Management
Committee for approval. While there was no direct testimony
about bargaining, there is no question that there were discus-
sions about benefits, policies, suggestions and safety matters.
There were dealings about the proposals brought forward by the
committees, there were amendments suggested, and revisions
made, and several of the proposals eventually became company
policies.
I, therefore, find that these committees, labor organizations
within the meaning of Section 2(5) of the Act, have engaged in
dealing with their employer, even though they never actually
engaged in collective bargaining, or concluded a bargaining
agreement (other then agreement made on separate policies,

39 The letter establishing or rather reestablishing the SC gave a
statement of the Committee’s mission, but was signed by Mike
Washick rather than by Fuldner.
40 Mona Workes and Mike Washick also indicated that the selection
of members for the committees was, at lease in part, guided by a desire
to have as broad a membership from all parts of the operation as was
possible, given the limited number of members felt to be practical.
employee benefits, safety programs and suggestion. NLRB v.
Cabot Carbon Co., 360 U.S. 203 (1959).
4. Did the Company dominate the Committees
In this section of its brief, the Company argues that the case
law and the Legislative History of the Wagner Act require that,
in order to establish employer domination of a labor union,
there must be a showing of actual domination, and a showing
that the employer’s action subverted employee free choice,
citing Chicago, Rawhide Manufacturing Co. v. NLRB , 221
F.2d 165 (7th Cir. 1955).
In affirming the Board’s decision in Electromation the Sev-
enth Circuit distinguished its Chicago, Rawhide decision from
Electromation. In the former case the employee initiated the
first meeting with the employer, and proposed a procedure for
handling employee grievances. In addition, in Chicago Raw-
hide, the meetings of employees were held on company time,
but outside of the presence of management. Company repre-
sentatives did not determine the subject matters to be consid-
ered, or select the members of the committees, or exercise a
veto over what committee recommendations would be pre-
sented to management. (Electromation, 7th Cir., supra at 1168.)
In this case, as in Electromation, management unilaterally
established the committees, chose the initial membership, par-
ticipated is almost all of the meetings of the various commit-
tees, and chose in some instances the issues which committees
would consider.41
In the 7th Circuit’s decision in Electromation, the Court
pointed out that the distinction between support and domination
is applied only where the labor organization has “some reason-
able claim to being an independent entity composed of employ-
ees and distinct from management. In Electromation, unlike
Chicago Rawhide, the Court found that the initial creation, the
structure, and the administration was substantially under the
control of the company.
The same distinction may be made by in this case. The
committees were created and structured by the Company, and
administrated with the assistance in the cases of the EBC and
the EPRC, of Workes who attended most of their meetings, and
with respect to the SC, headed by Supervisor Mike Washick ,
and the ESSC under the chairmanship of Mark Kaiser, a super-
visor since the spring of 1993.
As the Board found in its Electromation decision, 309 NLRB
at 996–997:

Purpose is different from motive; and the “purpose” to which
the statute directs inquiry does not necessarily entail subjec-
tive hostility towards unions. Purpose is a matter of what the
organization is setup to do, and that may be shown by what
the organization actually does. If a purpose is to deal with an
employer concerning conditions of employment, the Section
2(5) definition has been met regardless of whether the em-
ployer has created it, or fostered it creation, In order to avoid
unionization, or whether employees view that organization as
equivalent to a union. [Emphasis added.]

On these facts, I find that the Company did in fact create,
structure, and dominate the four committees as alleged in para-
graph 6 (A), (B), (C) and (D) of the complaint.
41 The nonsmoking policy for the EPRC, suggestions for the ESSC,
safety policies for the SC, and choices among health benefit plans, and
a dental plan for the EBC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
5. Distinguishing this case from Electromation
The Company, noting in its brief that I had observed during
the course of the hearing that I “perceived certain similarities”
between this case and Electromation asks that I consider a
number of significant dissimilarities and distinctions between
the two cases.
There are several paragraphs in the brief in which the Com-
pany sets out what are viewed as distinctions and dissimilari-
ties. I will set these out as follows:
(a) The Company asserts that the committees in this case
were not formed in response to any employee discontent. Well,
they were formed, according to Chris Fuldner, in response to
what he felt was a failure of the employees to appreciate the
benefits he had provided them through the ESOP and profit
sharing. He wanted their closes participation in the employees
benefit process in order to increase their involvement with
company goals. In Electromation, the employee discontent
resulted from unilateral negative alterations to the benefit and
wage programs.
But, in Electromation there was no union campaign when the
committees were formed, or until some weeks after they were
in operation. Nor was there any atmosphere of hostility toward
the union by management. Indeed, I recommended that two
allegations of 8(a)(1) violations be dismissed, and my recom-
mendations were followed by the Board. The violation of Sec-
tion 8(a)(2) found in Electromation was the continued mainte-
nance of the committees, or a couple of them, after the union
demand for recognition.
(b) The Company argues that the purpose of the committees
was different here than in Electromation. I think that there may
be a distinction here, but of form, not of substance. The Elec-
tromation committees were set up a little differently, from
those involved here, but essentially the purposes were the same;
to draw the employee closer to an understanding of company
policies and lend their cooperation to overall company strategy
for its continued successful operation.
(c) To the argument that the committees at EFCO were non-
representational in nature, I respond that I disagree. All of the
committees here were urged by Chris Fuldner or Mike Washick
to contact other employees, to get their proposals and their
views to use in committee deliberations. Efforts were made in
several of the committees to secure representation from all
sections and shifts of the two Monett plants. There was, per-
haps (I am not entirely sure of this), no actual bargaining, but
there was give-and-take discussion and proposals were back
and forth.
The next paragraphs in this section of Respondent’s brief do
not concern my statements that there were similarities between
this case and Electromation, but rather are addressed to the
Board’s decision in the latter case, matters about which any
discussion by me would be inappropriate.
6. Constitutional argument
The Company maintains that any interpretations of Section
2(5) and 8(a)(2) of the Act, resulting in an invalidation of its
employee committees constitutes an unlawful infringement
upon the participant’s freedom of speech, assembly, and as-
sembly under the First Amendment to the United States Consti-
tution.
To this argument I can best reply by paraphrasing the 7th
Circuit’s opinion in the Electromation case, 35 F.3d 1148, 1162
fn. 2 (7th Cir. 1994):

With all due respect to the company, its actions in creating
and administrating the . . . committees can hardly be described
as the “expressing of any views, argument or opinion.” With-
out a doubt [EFCO’s] actions in this case went far beyond
mere encouragement of its employees to. arrange a collective
means of expression.

To follow up, the establishment and maintenance of these
committees here can hardly be described as an exercise of First
Amendment rights, and to hold that the strictures against the
formation of committees, found to be labor organizations under
Section 2(5) of the Act, and the domination of such committees
a violation of Section 8(a)(7) of the Act, constitute unconstitu-
tional restraints against free expression either by employees or
the employer, is manifestly inappropriate.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from, and that it take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that the Respondent immediately dises-
tablish and cease all support to the committees established by it
for purposes of studying employee benefits, employee policies,
employee suggestions, and safety.
CONCLUSIONS OF LAW
1. The Respondent, EFCO Corporation, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Employer Policy Review Committee is a labor or-
ganization within the meaning of Section 2(5) of the Act.
4. The Employee Benefit Committee is a labor organization
within the meaning of Section 2(5) of the Act.
5. The Employee Suggestion Screening Committee is a la-
bor organization within the meaning of Section 2(5) of the Act.
6, The Safety Committee is a labor organization within the
meaning of Section 2(5) of the Act.
7. The Respondent has engaged in unfair labor practices by
promulgating and maintaining an overly broad no-solicitation
rule; by warning an employer for as alleged violation of that
rule; by publishing a memorandum containing an overly broad
interpretation of the said no-solicitation; by giving an employee
the impression that the employee’s union activities were under
surveillance; and by soliciting grievances from its employees.
8. The Respondent has engaged in an unfair labor practice
by dominating and assisting the Employee Policy Review
Committee, the Employee Benefit Committee, the Employee
Suggestion Screening Committees and the Safety Committee
from February 28, 1993, to the present time.
9. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order is omitted from publication.]