Onan Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1987

285 N.L.R.B. 400 (N.L.R.B. 1987)

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