Graham Ford, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1975

218 N.L.R.B. 980 (N.L.R.B. 1975)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graham Ford, Inc. and International Union of
Operating Engineers, Local 589, AFL-CIO and
Employee Relations Committee, Party to the
Contract. Case 9-CA-8637
June 27, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 11, 1974, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and briefs in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
The Administrative Law Judge found, and we
agree, that by coercively interrogating and threaten-
ing employees about union membership and activi-
ties, by maintaining an unlawful no-solicitation rule,'
and by interfering with the administration of and
contributing support to the Employee Relations
Committee, in order to discourage union member-
ship and activities, the Respondent has interfered
with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
The Administrative Law Judge also found, and we
agree, that the Respondent's conduct does not
constitute domination of the Committee in violation
of Section 8(a)(2) of the Act. We find, however, that
the Respondent's interference with and contribution
of support to the Committee, found by the Adminis-
trative Law Judge to be in violation of Section 8(a)(1)
of the Act, is also violative of Section 8(a)(2).2
I Member Penello would fmd the rule banning solicitations and
collections of funds unlawful . In his opinion , a broad no-solicitation rule
providing for no-solicitation or the collection of funds on company property
at any time would not be violative of Sec. 8(a)(l) only if there was proof
beyond preadventure that all employees knew that it had nothing to do with
union activity or with the employees' activities on their own time. In such a
situation , he would not make an 8(a)(l) finding. Any less of a requirement
would constitute an unwarranted and unjustified circumscription and
infringement upon the Sec. 7 rights of the employees.
As Member Penello understands it, the record here, contrary to
Respondent's contention , does not establish that each employee was fully
218 NLRB No. 148
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Graham Ford, Inc., Colum-
bus, Ohio, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 589, AFL-CIO, and the Employee Relations
Committee are both labor organizations within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating and threatening
employees about union membership and activities in
order to discourage union membership and activities,
and by maintaining an unlawful no-solicitation rule,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By interfering with the administration of, and
contributing support to, the Employee Relations
Committee, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(2) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent
Graham Ford, Inc., Columbus, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
MEMBER KENNEDY, dissenting:
I do not agree with my colleagues' adoption of the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(1) by maintaining an unlawful
no-solicitation rule.
The rule in issue , which appears in a printed
booklet setting forth company policies as well as
terms and conditions of employment, states:
aware of the, extent of the rule's asserted application. Indeed, the only
testimony of employee knowledge is that ofa single employee-witness as to
his personal experience and rather vague statements of some management
personnel . Such a paucity of evidence is wholly inadequate upon which to
predicate a fording that Respondent's rule was not violative of the Act
Accordingly , Member Penello would find that the no-solicitation rule
violates Sec . 8(aXl).
2 Arden Furniture Industries of Pennsylvania, Inc., 164 NLRB 1163 (1967);
N.L.R.B. v. District 50, United Mine Workers of America [Bowman
Transportation, Inc.], 355 U.S. 453 (1958).
GRAHAM FORD, INC. 981
Solicitations and collections of funds other than
the United Appeal, which is a company commu-
nity project, will not be permitted on company
property at any time. Any exceptions must first be
approved by the Employee Relations Committee
and general manager.
The Administrative Law Judge found that the rule,
bantling solicitations and collection of funds on
company property at any time, is unlawfully broad
on its face and that, as no modification of it was ever
announced to the employees, such a rule is invalid.
The cases cited in support of this conclusion,
however, are inapposite, dealing with rules banning
all solicitations and/or distribution and thereby
clearly banning union solicitations or distributions.
Uncontradicted testimony establishes that the no-
solicitation rule was adopted long before the advent
of the union activities involved here, and that it was
promulgated because various employees had in the
past tried to solicit funds for "their own little special
pet projects." Further, employee testimony corrobo-
rates the Respondent's position that the rule had
nothing to do with union activity or with employees'
activities on their own time and that the employees
were aware of this. In this regard, the only employee
who testified concerning his understanding of the
rule, stated that he had, in fact, in this case discussed
the Union and solicited union authorization cards on
company property with absolutely no interference
from the Company.3
In such circumstances, the Board has held that, as
the rule was neither intended to apply, nor under-
stood by employees as applying, to union solicitation
or other union matters, the rule is not violative of
Section 8(a)(1).4 Accordingly, I would dismiss the
allegation of the complaint pertaining thereto.
3 [n my view, the rule is unambiguous , referring specifically to
solicitations offunds. When, as here, the.only testimony regarding such a
rule establishes that the rule was not intended to and , in fact, did not affect
union solicitations , the General Counsel has failed to meet his burden of
prooir, and the evidence will not support a finding either that the rule was
unlawfully ,broad or that it in any way inhibited employees in the exercise of
their Sec . 7 sights;
4 The Board so held in Ferguson -Lander Box Co., 151 NLRB 1615 ( 1965).
There, the employer's rule against "soliciting or collecting contributions at
any time without the approval of supervisor" was natfound to be violative
inasmuch as the rule was not intended to apply to union activities and was
directed only to soliciting for the purpose of collecting other types of
contributions, and the employees so understood the rule.
And in N.L.R.B. v. Mock Road Super Duper, Inc., 393 F.2d 432 (C.A. 6,
1968), the court reversed the Board 's finding that the employer 's rule against
"Selling and Soliciting" violated Sec. 8(axl). The rule therein stated: "For
your protection, soliciting in any form will not be permitted on store
premises. Raffles, pools, collections for any purpose, or the sale of tickets or
merchandise , either by employees or outsiders, may not be conducted
without the express permission of the store manager." The court noted that
the word "soliciting" was used in conjunction with the word "selling" and
held that "only by a strained and artificial interpretation can any reference
to a union solicitation be made . In the absence of any showing that an
application of the rule to prohibit union solicitation has been made or
contemplated it is held that the mere presence of the rule set forth above
... does not constitute a violation of Section 8(ax l) of the Act."
DECISION
STATEMENT OF THE CASE
ANNE F. ScHLEZINGER, Administrative Law Judge:
Upon a charge filed on July 11, 1974,1 by International
Union of Operating Engineers, Local 589, AFL-CIO,
referred to herein as the Charging Party or the Union, the
General Counsel, by the Regional Director for Region 9
(Cincinnati, Ohio), issued a complaint and notice of
hearing on August 30. The complaint alleges in substance
that Graham Ford, Inc., herein called the Respondent,
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
National Labor Relations Act by interrogating and
threatening employees, by maintaining an unlawful no-
solicitation rule, and by aiding, interfering with, and
dominating the Employee Relations Committee, in viola-
tion of Section 8(a)(1) and (2) of the Act. The Respondent,
in its answer duly filed, admits certain factual allegations
of the complaint, but denies the unfair labor practice
allegations.
Pursuant to notice, a hearing was held at Columbus,
Ohio, on October 15 and 16. All parties appeared at the
hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce
relevant evidence. At the close of the hearing, the parties
were afforded the opportunity to present closing argument.
Subsequent to the hearing, the General Counsel, the
Respondent, and the Charging Party, on or about
November 18, filed briefs, which have been fully consid-
ered.
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in
the sale and repair of automobiles and trucks at its
Columbus, Ohio, location, the only operation of the
Respondent herein involved. During the past 12 months,
which is a representative period, the Respondent had a
gross volume of sales in excess of $500,000. During the
same period, the Respondent had a direct inflow of goods
and products valued in excess of $50,000, which the
Respondent purchased and caused to be shipped to its
location at Columbus, Ohio, directly from points located
outside the State of Ohio. The complaint alleges, the
Respondent in its answer admits, and I find, that the
Respondent is, and at all times material herein has been,
an employer engaged in commerce and in operations
affecting commerce as defined in Section 2(2),(6), and (7)
of the Act.
i All dates hereinafter refer to 1974 unless otherwise indicated.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits , and I find, that International Union of Operating
Engineers, Local 589, AFL-CIO, and the Employee
Relations Committee , each is, and at all times material
herein has been , a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent purchased the Columbus operation in
about 1970. The Employee Relations Committee was
formed a few months later. Pursuant to a petition for an
election filed by the Union in Case 9-RC-10572, a hearing
was held on June 19. The Union's petition was dismissed
by the Regional Director, who found there was a contract
bar to an election. The contract in question, which is
discussed below, was signed by management officials of
the Respondent and by the employee members of the
Employee Relations Committee on August 1, 1973, is
effective by its terms until August 1, 1976, and contains a
60-day automatic renewal provision.
B. Interference, Restraint, and Coercion
The complaint alleges that the Respondent interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights by the conduct of Karg, a vice
president, and Dailey, the parts manager, in interrogating
employees about their interest in, sympathies for, and
activities on behalf of the Union, and of Karg in telling an
employee he should quit his job and go to a shop that had
or wanted a union, in order to discourage. union activities
at the Respondent's facility; by maintaining and enforcing
an unlawful no-solicitation rule; and by the conduct of
Karg, Webner, executive vice president and general
manager, Larch, the service manager, and Bonderant, the
truck manager, in rendering unlawful aid and interference
and dominating the Employee Relations Committee.
1. Interrogation and threats
The General Counsel called as witnesses several employ-
ees who testified about conversations in which Karg and
Dailey made remarks alleged to be unlawful. The Respon-
dent called Webner as its only witness.2 The Respondent
admitted the supervisory status of Webner, Karg, and
Larch, but disputed the supervisory status of Dailey and
Bonderant.
Cook, who had been employed by the Respondent and
its predecessor at the Columbus location as an automobile
mechanic for about 9 years, testified credibly, and without
contradiction, that he was called to Karg's office in the
latter part of May; that he was asked what he could tell
Karg about the Union, and replied he was not supposed to
tell Karg anything; that Karg asked how many cards they
had signed, and he replied he thought they had enough;
2 Counsel for the Respondent stated , in his closing remarks at the
hearing, that "I don't feel it's necessary to bring forward any evidence in
addition to Mr. Webner 's testimony for the simple reason that the charges
that Karg referred to a report that he had talked to
someone from the Union, which he denied; that Karg said
there was a contract which had been "drawn by a union
attorney"; and that Karg, before he told Cook to go back
to work, also "said that he wasn't really interested in the
union or about what the union activity - but if he had -
if any of his men wasn't living up to the contract he wanted
to know about it. And he wanted to know what the
problems was in the shop and I told him I felt it was
management."
Suain, who has been employed by the Respondent as a
truck mechanic for about 2 years, signed a union card in
May. He obtained and wore a union button and a watch
fob with a union insignia, and had a union sticker on his
toolbox. Suain testified credibly, and without contradic-
tion, that on about July 25 he accidentally damaged a
truck on which he was doing some work; that this was
reported to Karg; and that Karg, while criticizing the job
in question, in the presence of other mechanics, also "told
me that I .should take my union badge off and take the
union sticker off my tool box. And then he told the service
writer to get them damn things off the,men and get them
damn things off the men's tool boxes. . . . And he said he
didn't want the union at Graham Ford and that I should
leave Graham Ford if I wanted the union. I should leave
Graham Ford and go to a shop that wanted the union or
was union." 3 Suain also testified that he had never
previously been reprimanded about his work, and that,
while the employees used profanity frequently in the shop,
the first time he heard anyone in management use such
language was when Karg did so in the conversation
described above.
Sonner, who has been employed by the Respondent as a
parts man for more than 3 years, testified that in late June
he was called to the office of Dailey, the parts manager.
Sonner testified credibly, and without contradiction, that,
during the conversation in Dailey's office, Dailey "asked
me why I was trying to instigate a union. I told him that I
felt myself and the other employees felt that we needed to
revise some of the pay plans and also there was some
benefits which we deserved that we didn't feel we were
getting. Then Mr. Dailey asked me why myself that I was
the main instigator of it. And I told him that for the same
reason; and that is when he said well, we feel that we have
been more than fair with you and the other employees.
And he didn't believe that we needed a union." Sonner
testified further, on cross-examination by the Respondent,
that Dailey called him to the office apparently "To ask me
about the union . . . . There was nothing else that we
talked about at the time.... he asked me why that the
men felt that they wanted the union. And asked if there
was any problems, you know, asked my opinion of what
the problems were with the men that the men were trying
to get the union in or was wanting a union:'
Dailey's supervisory status was disputed by the Respon-
dent. The record shows that Dailey has an office, which
adjoins the office of his secretary and the industrial parts
sales office; that he does not wear a uniform and does not
have not been made out."
3 The evidence also shows that Larch ordered Cook in July to remove his
union button , but there is no allegation in the complaint as to this incident.
GRAHAM FORD, INC.
punch a time clock, as the mechanics do; that Sonner was
interviewed for his job by both Dailey and Karg; that
Dailey told Sonner he was hired, and instructed Sonner as
to his duties; that when men in the parts department make
mistakes, it is Dailey who directs them to correct their
mistakes; and that Sonner's requests for time off are made
to, and granted by, Dailey. I fmd, on the record as a whole,
that Dailey, the parts manager, responsibly directs the
work of the parts department employees, and is, as the
complaint alleges , a supervisor as defined in Section 2(11)
of the Act, and an agent of the Respondent acting on its
behalf within the meaning of Section 2(13) of the Act .4
Concluding Findings
I find, on the basis of credible and unrefuted testimony,
and on the record in its entirety, that (1) Karg called Cook
to the office and interrogated Cook about the union
campaign, about Cook's activities on behalf of the Union,
and, in this context, about the problems in the shop; (2)
Karg directed Suain to take off his union button and to
remove the union insignia from his toolbox, told the service
writer in the presence of Suain and other mechanics, with
reference to the union insignia, "to get them damn things
off the men and get them damn things off the men's tool
boxes," stated that he did not want the Union at the shop,
and said Suain should leave the Respondent's employ if he
wanted the Union "and go to a shop that wanted the union
or was union"; and (3) Dailey called Sonner to the office,
asked why Sonner was trying to instigate the Union, why
Sonner was the main instigator of it, why the men wanted
the Union, and what the problems were that caused the
men to try to organize, and said he felt the Respondent did
not need the Union as it had been more than fair with the
employees. I find further that the Respondent, by the
foregoing conduct, coercively interrogated employees
about union activities, and threatened that employees had
to leave their jobs if they wanted a union,5 in order to
discourage membership in and activities on behalf of the
Union, in violation of Section 8(a)(1) of the Act .6
2. The no-solicitation rule
The rule in issue reads as follows:
Solicitations and collections of funds other than the
United Appeal, which is a company community
project, will not be permitted on company property at
any time. Any exceptions must first be approved by the
Employee Relations Committee and general manager.
4 See South Shore Pontiac Co., Inc., 203 NLRB 928 (1973); Aircraft
Plating Company, Inc., 213 NLRB No. 88 (1974).
5 Counsel for the Respondent stated , in his closing remarks at the
hearing, that "in all candor , I am convinced by some of the evidence that it
appears that there might have been 8(a)(1) violations by lesser members of
management , but I can't tell until the record is presented because under the
circumstances it may be that there was , in fact, no threat or coercion, as set
forth in the Act."
8 See Triggs-Miner Corp., 180 NLRB 206 (1969); South Shore Pontiac
Co, Inc., supra; White Pine, Inc., 213 NLRB No. 77 (1974); Aircraft Plating
Company, Inc., supra; Styletek, Division ofPandel-Bradford Inc., 214 NLRB
No. 90 (1973).
983
The rule appears in a booklet that has a picture of the
Respondent's operation on the cover, and sets forth
company policies as well as ' terms and conditions of
employment. Webner drafted the original document, which
was discussed by management personnel with the employ-
ee members of the Employee Relations Committee. Some
changes in Webner's draft were made as a result of these
discussions, but the above rule appears as written by
Webner. The document was signed on August 1, 1973, by
six employees under the designation "The Employees
Relations Committee," 7 and by Webner, Karg, and Zidar,
the treasurer, for the Respondent. Thereafter the Respon-
dent added a few pages setting forth company policies, had
the booklet printed, and distributed the printed copies to
the employees.
Webner testified that the no-solicitation rule was
included, after discussion with the employee members of
the Committee, because, "With hundreds of employees it
got to the place where everybody was always coming
around trying to - with their own little special pet
projects.... And it had nothing to do with anything
other than the working hours." Webner also testified that
this rule was not intended to cover union or other activity
by employees on their own time, but, asked whether
employees were aware of this limitation on the applicabili-
ty of the rule, he replied "As far as I know they should be."
The rule, banning solicitations and collections of funds
on company property at any time, is unlawfully broad on
its face, and no modification of it was ever announced to
the employees. I find that such a rule, in the context of this
case, was invalid, even "where imposed by agreement
between employees and union." 8 Accordingly, I fmd that
the Respondent, by maintaining a rule prohibiting employ-
ees from solicitations and collections of funds "on
company property at any time," unless an exception to this
rule is first approved by the Committee and the general
manager of the Respondent, has further interfered with,
restrained, and coerced its employees in the exercise of
their Section 7 rights, in violation of Section 8(a)(1) of the
Act .9
3. The Committee
The complaint alleges that the Respondent "has ren-
dered and is rendering unlawful aid, interference- and is
dominating the Employee Relations Committee," in
violation of Section 8(aXl) and (2) of the Act, by certain
conduct of Karg, Webner, Larch, and Bonderant. The
complaint specifies conduct, occurring during the period
beginning January 11, by Karg in appointing an employee
to the Committee, announcing that it was time for a
7 The Committee is referred to in this document and in minutes of
committee meetings, which are prepared and maintained by company
officials, as Employee Relations Comnuttee , Employees Relations Commit-
tee, and Employee Relations and Safety Committee, and Webner in his
testimony inadvertently referred to it at times as "community relations
committee."
8 N.LR B. v. Mid-States Metal Products, Inc., 403 F.2d 702 (C.A. 5,
1968).
9 Republic Aviation Corp. v. N.LR.B., 324 U.S. 793, 801 (1945); N.LR.B.
v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974); N.LRB. v.
Mid-States Metal Products, Inc., supra, Riverside Industries, Inc., 208 NLRB
311 (1974).,
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee election, and actively participating in commit-
tee meetings ; by Webner in actively participating in
committee meetings; by Larch in distributing, collecting,
and counting the ballots of a committee election; and by
Bonderant in "actively participating in the counting of an
Employee Relations Committee election of representa-
tives." The General Counsel was permitted, over the
Respondent's objection, to present, as background evi-
dence, testimony with reference to events prior to the 10(b)
limitations period beginning on January 11.10
The Committee wass established about 3 months after the
Respondent acquired the Columbus operation in about
1970. Ray, who has been employed by the Respondent and
its predecessor for over 5 years, and was one of the
employee signatories to the Committee-management agree-
ment, testified that he was a member of the Committee for
about 3 years, and, that the Committee was designed to
bring about "better communications between supervisory
personnel and the mechanics, and the customers." Sonner,
who was a committee member for 1 year and an employee
signatory to the agreement, testified that "It is a committee
set up to bring together problems of management and
employees and try to work them out." During committee-
management discussions, reference was made by employ-
ees to the fact that employment rules had never been
reduced to writing. The Respondent drafted a document
containing provisions covering wages, hours, and condi-
tions of employment, discussed it, with the employee
members of the Committee, and made some changes based
on these discussions. The document, signed on August 1,
1973, by six employees for the Committee and by Webner,
Karg, and Zidar for the Respondent,, is effective by its
terms until August 1, 1976. Riser, who was a. car mechanic
of the Respondent for almost 4 years, a member of the
Committee for 2 years, and one of the employee signatories
to the committee-management agreement, testified that the
written document was signed, after being prepared by
management and discussed at committee meetings," be-
cause of numerous disputes in the shop about such matters
as starting and quitting times, vacations, and holidays.
After the document was signed, management added some
pages entitled "With a people perspective" setting forth
various company policies, without any discussion with the
Committee, had the booklets printed at company expense,
and distributed the booklets to the employees. The
employees had not been asked to ratify it. Some of the
employee witnesses testified they did not know it was a
contract and never heard it referred to as such until the
Board proceedings.
The General Counsel and the Respondent stipulated that
this document is a,contract, and the Regional Director
found it to be a contract bar in the representation
proceeding. The Charging Party, which is the' third union
to seek representation of the employees at this location,
argued that the document in question is not a contract. The
document was executed, prior to the 10(b) period, by
employees who had been elected to the Committee and by
management representatives, after some of the employees
had indicated th ey wanted certain employment practices
set forth in writing. It contains provisions relating to wages,
hours, and working conditions, and is, by its terms,
effective until August 1, 1976. I find, in all the relevant
circumstances, that the document is a contract.
It is shown by the record as a whole that, during the
10(b) period beginning-January 10, Webner, Karg, or other
management personnel attended all meetings of the
Committee, which are held monthly. The record also shows
that Webner, or another management representative when
he is not present, takes minutes at these meetings, writes up
the minutes listing those present in no particular order and
with no designation of management or employee status,
has copies of these minutes posted on the bulletin boards,
and maintains a file of these minutes, whereas the
Committee maintains no files or records of its own.
The employee members of the Committee are elected by
their respective departments, for terms of about a year,
although elections have been held not on a fixed annual
date but, generally, when management has announced that
elections were due to be held. The evidence shows that
management representatives have been present when
nominations of employee representatives were made, have
distributed and collected the ballots, and have announced
the election results. There is evidence that on one occasion
management suggested, and the employees agreed, that the
incumbents continue as employee representatives on the
Committee, and on one occasion, when an elected
representative was transferred' to a different department,
Karg requested that Cook serve in his place, and Cook,
who was the runner-up in that election, said he would be
glad to do so, and served for about 2 months.
The Committee has no constitution, bylaws, member-
ship, officers, or office. It collects no dues and has no
treasury. It holds no separate meetings as a committee or
with the employees it purportedly represents, although
employee members of the Committee sometimes discuss
shop problems with some of the employees in their
departments prior to the meetings with management.
Whatever expenses are incurred for such matters as
preparing minutes and keeping records are defrayed by the
Respondent, Management has at times changed the prices
paid to the men for certain work without negotiating such
changes with the Committee. In addition, the unit has been
changed since the contract was signed. Ray testified that
Karg stated at a meeting that the salesmen wished to be
represented on the Committee. Webner testified that the
committee members requested this. I credit Ray, whom:`I
found a more candid and reliable witness . In any event,
two representatives of the sales departments were elected
in 1974 and thereafter attended committee-management
meetings , although the contract describes the Committee
as "the elected , representative of all ; non-supervisory
employees working in the automobile service department,
body repair shop, truck service department and parts
department," and Webner testified that 'the Committee
represented the employees covered by the'contract.
It is apparent, and I find, from the credible and almost
wholly undisputed testimony, admissions made by Webner
in his testimony, the minutes of committee meetings which
are prepared by management, and the record as a whole,
that the Respondent has, during the 10(b) period, inter-
10 Local Lodge No. 1424, International Association of Machinists, AFL-
CIO [Bryan Manufacturing Co.] v. N.LR.B., 3§2 U.S. 411, 416 (1960).
GRAHAM FORD, INC. 985
feted with the administration of and contributed support to
the Committee, in violation of Section 8(a)(l) of the Act.
I do not find, however, that the evidence shows that the
Respondent has, within the 10(b) period, dominated the
Committee in violation of Section 8(a)(2) of the Act. While
management representatives announced when elections
were to be held and took part in conducting the elections,
the candidates were employees, were nominated by the
employees in their departments, and were elected by secret
ballot. Further, although the elections and the Committee's
meetings ' with management were conducted during work-
ing hours, the employees were not paid for the time thus
spent as the Respondent's mechanics are paid by thejobs
performed. The Committee collected no dues and had no
treasury, but there is no showing that the Respondent,
other than permitting such limited committee activity
during working hours and maintaining the committee
minutes, made any financial contributions to the Commit-
tee. It is undisputed that the Committee was a labor
organization. Moreover, it was the incumbent organiza-
tion, signatory to a contract with the Respondent that was
in effect during the period in question. Further, while the
General Counsel and the Charging Party contend that the
background evidence as to pre-10(b) events shows that the
Respondent's conduct within the 10(b) period was violative
of Section 8(aX2), the Supreme Court has held that the
events predating the 6-month limitations jperiod "may be
utilized to shed light on the true character of matters
occurring within the limitations period" only where
"occurrences within the six-months [sic] limitations period
in and of themselves may constitute . . . unfair labor
practices."" The evidence does not, in my opinion,
establish that the Respondent's conduct since January 11,
in all the relevant circumstances, constitutes domination of
the Committee in violation of Section 8(a)(2) of the Act.
In view of the findings above, however, with regard to
the Respondent's interference with the Committee's activi-
ties within the limitations period, I shall recommend, in the
Remedy section below, that the Respondent be ordered to
withdraw and withhold recognition from the Committee
until and unless it has been certified by the Board as the
exclusive collective-bargaining representative of the Re-
spondent's employees in it unit found appropriate.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities df the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1)
11 Local Lodge No. 1424, International Association of Machinists, AFL-
CIO [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 (1960);
Washington Manor, Inc., 211 NLRB 324 (1974).
12 N.L RB. v. District 50, United Mine Workers ofAmerica, 355 U.S. 453
(1958); Arden Furniture Industries, 164 NLRB 1163 (1967).
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
of the Act, I shall recommend that the Respondent be
ordered to cease and desist therefrom, and from infringing
in any like or related manner upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act. As I have found that
the Respondent has unlawfully interfered with the adminis-
tration of and contributed support to the Employee
Relations Committee, I shall recommend that it be ordered
to withdraw and withhold recognition from the Committee
as the bargaining agent of its employees until and unlless
the Committee has been certified by the Board as the
exclusive collective-bargaining representative of the Re-
spondent's employees in an appropriate unit.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Graham Ford, Inc., Columbus,
Ohio, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
589, AFL-CIO, and the Employee Relations Committee,
each is a labor organization within the meaning of Section
2(5) of the Act.
3. By coercively interrogating and threatening employ-
ees about union membership and activities, by maintaining
an unlawful no-solicitation rule, and by interfering with the
administration of and contributing support to the Employ-
ee Relations Committee, in order to discourage union
membership and activities, the Respondent has interfered
with, restrained, and. coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and has
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affectin commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of ]law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 13
The Respondent, Graham Ford, Inc., Columbus, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating and threatening employees
about union membership and activities, maintaining an
unlawful no-solicitation rule, and interfering with the
administration of and contributing support to the Employ-
ee Relations Committee, in order to discourage member-
ship in or activities on behalf of International Union of
Operating Engineers, Local 589, AFL-CIO, or any other
labor organization.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining, or coercing its -employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and withhold recognition from the Em-
ployee Relations Committee as the bargaining agent for its
employees until and unless it has been certified by the
Board as the exclusive collective-bargaining representative
of the Respondent's employees in an appropriate unit.
(b) Post at its facility in Columbus, Ohio, copies of the
attached notice marked "Appendix" 14 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any allegations not found herein to
constitute violations of the Act.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate or threaten our
employees, or maintain an unlawful no-solicitation
rule, or interfere with the administration of and
contribute support to the Employee Relations Commit-
tee, in order to discourage membership in or activities
on behalf of International Union of Operating Engi-
neers, Local 589, AFL-CIO, or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL withdraw and withhold recognition from
the Employee Relations Committee as the bargaining
agent of our employees until and unless it has been
certified by the National Labor Relations Board as the
exclusive collective-bargaining representative of our
employees in an appropriate unit.
GRAHAM FORD, INC.