On Jаnuary 21, 1985, a petition for certification was filed by the United Automobile, Aerospace and Agricultural Workers of America, AFL-CIO (the Union) to represent all production and maintenance employees employed by defendant Airstream, Inc., at three of its facilities in Jackson Center, Ohio. Within a month the Regional Director for Region 8 of the National Labor Relations Board (NLRB) approved a stipulation for a consent election to be held on March 15, 1985. The election was held as scheduled resulting in a vote against the union of 181 to 106. 1
The Union then filed a timely unfair labor practice charge against Airstream alleging violations of the National Labor Relations Act (the Act). The Union claimed that Airstream threatened employees with retaliation and improperly promised benefits if they voted against the Union. The Union also alleged that Airstream formed a labor organization and unlawfully dominated and supported that organization.
In response to the union charges the Regional Director issued a complaint, later amended at trial, alleging that Airstream violated Sections 8(a)(1) and (2) of the Act. After a hearing, the Administrative Law Judge (ALJ) recommended that Airstream be found in violation of both sections, and that the election be set aside and a new election held. Airstream filed exceptions, and the NLRB adopted all the AU's findings, but modified his rеcommended order. Airstream has filed a petition for review, and the Board has filed a cross-application for enforcement. Airstream manufactures and services recreational vehicles in Jackson Center. Approximately 310 employees were involved in Airstream’s election controversy in 1985.
*1293 Nine days after the Union filed its election petition, Airstream posted on plant bulletin boards and distributed to its employees a notice of its new “Awareness Program.” In order to keep employees “better informed,” Airstream advised that it was implementing a program consisting of periodic notices that would “contain information on subjects that affect you, your job, and the Company.” The Union contends that this procedure unlawfully granted a benefit to Airstream employees. The AU, however, found that the program amounted to nothing more than an employer propaganda device and as such did not constitute a violation of the Act.
Four days before the election, Airstream posted and also mailed to its employees a letter signed by Gerard LeTourneau, its president, stating reasons why the employees should not vote for the Union. It pointed out that the Union could not guarantee job security and described a loss of jobs at other plants where employees were represented by this Union. The letter also warned that, in the event the Union won the election, the employees’ wages could be decreased, their existing pension and profit-sharing plans could be lost, and they could be forced to strike against their will. The letter concluded with the words “VOTE NO” in large print.
In December of 1984, Airstream had announced that, effective January 1, 1985, it would terminate the then existing “sick/personal day program” and institute in its place an “absentee control policy” and an attendance incentive program. Under the prior sick/personal day program, the employees were entitled to three paid sick or personal days off each year without explanation. The new program provided instead for progressive discipline for excessive absenteeism and cash bonuses for perfect attendance. After the Union filed its election petition, however, Airstream began to retreat from its new absentee program, first to allow for excused medical absences and then finally scrapping the new program altogether. The bonus incentives for perfect attendance were left in place. Le-Toumeau testified that the new policy was abandoned as too cumbersome and difficult to administer. The AU found this testimony not to be credible because LeTourneau gave a different explanation to the employees, sаying he withdrew the policy in response to their “concerns” and “suggestions.” Also, the AU found the surrounding circumstances suspect because “the Company modified its approach to the attendance problem by withdrawing the discipline while continuing for the time being to hold out a benefit, the attendance bonus program.” The AU, therefore, concluded that the Company violated Section 8(a)(1) by granting a benefit and redressing employee grievances by withdrawing the disciplinary point system and restoring the previously existing three personal absence days.
A week before the Union petition notice Airstream annoyed many employees by installing at two plants timeclocks which had not previously been used, except at one facility, for several years. Soon after the Union filing, Airstream attempted to ameliorate employee discontent by increasing by three minutes the lunch break for those employees who wished to leave the plant without making use of a separate washup period. Previously, employees had a thirty-minute lunch period, preceded by a voluntary three-minute washup period. Only those employees who took advantage of the washup were given the three minutes. The AU and the Board deemed this increase to be an improper benefit and found that the Company’s stated reasons for the time change nоt credible and lacking any legitimate business justification. The AU therefore found the extension of the lunch break to be an unfair labor practice because it tended to discourage employee support for the Union.
Another Union objection concerned a new Airstream project known as the Argosy line. During January 1985, the Company began hiring employees for this project on the basis of “seniority, skill, and ability ... subject to qualifications needed.” Pri- or to January 28, permanently laid off employees who had previously worked for Airstream and then later returned were not allowed seniority credit for their prior em *1294 ployment. After January 30, however, Airstream altered its pоlicy by allowing employees seniority credit for purposes of bidding on Argosy line jobs. LeTourneau testified that he made this change because he decided that experienced, skilled employees for the new project were needed. The AU found this testimony not to be credible because LeTourneau’s testimony was different from the explanation he gave his employees, which was, again, that the change resulted from employee “concerns” and “suggestions.” The AU found it “incredible” that Airstream suddenly discovered a business need for this change in late January shortly after the Union filed its election petition, while the old policy was continued for a week after the Union petition was filed. The AU consequently found that Airstream expanded seniority rights in order to discourage employee support for the Union, another claimed violation of Section 8(a)(1).
The Union also contends that Airstream unlawfully instituted a program of lunches for employees celebrating their birthdays. LeTourneau initially testified that the Company decided in November 1984 to institute the program. He later testified that he did not decide on the program until mid-December 1984. The first such luncheon was not actually held until the last week of January 1985 because, according to LeTourneau, it was too difficult to schedule the first luncheon during the holidays. The AU once again rejected LеTourneau’s explanations and found that the Company initiated the birthday luncheon program after the Union filed its election petition as an added means of discouraging employee support for the Union.
Perhaps the most important element of the Union’s complaint was Airstream’s formation, in late February,, of the “President’s Advisory Council” (PAC). 2 For some time before the election campaign began, the Company had held “rap sessions” in which employees, on a rotating basis, attended monthly meetings in which LeTourneau would invite questions and suggestions. After notifying employees of the formation of the PAC, Airstream on March 1 summoned its employees by groups, on departmental lines, to vote for three choices for employee representatives on PAC. The Company posted the results of this selection process on plant bulletin boards. The first meeting of PAC representatives was scheduled only a few days before the scheduled election. LeTourneau discussed at this meeting the comparative merits of the attendance bonus program, which he preferred, and the personal sick day program. The representatives present, however, expressed a strong preference for the old policy of sick and personal days. LeTourneau agreed to review the matter but said he could not institute any changes until aftеr the election. LeTourneau also asked for suggestions to improve the work rules. LeTourneau testified that the first meeting was merely for organizational purposes, but the AU rejected this explanation and concluded that PAC was formed and actually began functioning before the Board-conducted election.
A PAC meeting took place again within a week after the election in dispute. After this meeting LeTourneau announced reinstatement of the personal sick day program as of April 1. Another PAC meeting took place on April 3 at which time the job bidding system was discussed. Airstream thereafter altered these practices in accord with suggestions of emplоyee representatives. The AU found, however, that Le-Toumeau did not discuss pay at these PAC meetings and that employee representatives were not permitted to intervene in employee-supervisor problems. LeTour-neau considered the PAC sessions to be an alternative to the former rap sessions, which he felt had been losing their effectiveness. In letters to employees during the election campaign period LeTourneau referred to PAC as “your voice in your Company,” and stated that the company was taking up the personal/sick day issue as its “first order of business.” In the Board proceedings PAC was listed as a “party in interest” together with Airstream because the AU determined that, in effect, *1295 it was formed as an illegal company dominated “union.”
Objections by the Union to the election results included the following: (1) Airstream’s promise of benefits to influence the outcome of the election; (2) the formation of a company committee (PAC) “to deal with management”; and, (3) Airstream’s predictions of strikes and loss of benefits in the event of a union victory.
1. PAC as an Illegal Organization
The AU found that “rap sessions” between Airstream management and labor had been taking place for some four years prior to the election campaign. At these meetings employees “were invited to ask questions and make suggestions.” (Emphasis added.) The ALJ found that the evidence did not indicate any actual changes in working conditions or any resolution of grievances as a result of these PAC sessions. He recognized, as did the General Counsel, that the purpose of these meetings was to maintain communications in a growing company and were not improper or unlawful per se under the NLRA.
The AU noted that in March the gatherings in the revised form of PAC meetings began to take place “on paid company time.” The former “rap sessions” were, however, also on paid time. The record does not indicate whether either the “rap sessions” or the PAC meetings were voluntary, involuntary, or merely encouraged by management. In any event, no change in the policy concerning voluntariness was indicated with respеct to PAC meetings. Employees by separate departments chose representatives or alternatives to attend PAC meetings for the first meeting on March 11 which the AU found had a “written agenda” that included “rules of conduct review” and “attendance bonus versus sick/personal days.” At this meeting, Le-Toumeau had the employee representatives draw lots for staggered initial terms and “listened to employee complaints about the rules.” Input was obtained on the attendance and leave policy, but no change was to be made pending the election. Ideas were sought for improving the work rules. The AU determined that this meeting was not merely an organizational meеting.
After the election a “ ‘recommended’ sick pay/personal day program” was distributed which the AU found to be a “revival of the former system,” subject to review by the employees. The program was implemented on April 1. The subject of the next meeting was the job bidding system, with which the AU noted “satisfaction in general,” taking into account the extension of seniority rights in bidding on Argosy line jobs. Other minor improvements were also suggested and months later implemented. The AU pointed out that several back pay adjustments and a change in the Christmas holiday period were made as a consequence of complaints at PAC meetings.
The AU observed that LeTourneau “restricted the structure and activities of PAC in order to assure that this pussycat would not turn into a tiger.” He noted that PAC had no purported officer structure, did not deal with pay issues, and did not generally involve itself in “problems between employees and their supervisors.” The AU also noted that LeTourneau, after investigating the possibility of an “advisory group,” informed the employees in February that he was ready to proceed with it but “could not do anything until after the Union election.” Names of PAC representatives were placed on Airstream bulletin boards.
A “labor organization” is defined by Section 2(5) of NLRA as:
any organization of any kind, or any agency or employee representation committee or plan, in which еmployees participate and which exists for the purpose, in whole or part, of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
Without disturbing any of the findings of the AU, it is clear that PAC did not involve itself in or purport to accomplish the settling of “grievances,” nor did it attempt to resolve “labor disputes” with individual employees before the election in question. The AU conceded that PAC did not “deal with” wages or rates of pay. The AU apparently found that discussions with rep *1296 resentatives at a March 11 meeting concerning personal/sick days and the attendance bonus program constituted dealing with employees over “hours of employment” or “conditions of work.” We must disagree.
As indicated by the AU, LeToumeau told Dennis Faulden that he could not discuss “survey results” on the attendance matter during the campaign and until after the election. At the March 11 meeting LeTourneau did listen to employee complaints about Airstream rules, but this was no different from the prior “rap sessions.” Airstream took no action during the course of the Union campaign either at a PAC meeting or as an announced consequence of such a meeting that could reasonably be construed to involve hours of employment, conditions of work, or the settling or handling of grievances or employee disputes. The basic function continued to be a means of communication between management and employees.
The leading case relied upon by the AU and the Board for their conclusion that PAC was a labor organization within the meaning of the Act is
N.L.R.B. v. Cabot Carbon Co.,
In
N.L.R.B. v. Streamway Division of Scott and Fetzer Co.,
In support of that rationale, Streamway adopted with approval this language of Judge John Minor Wisdom:
[A]n inflexible attitude of hostility toward employee committees defeats the Act. It erects an iron curtain between employer and employees, penetrable only by the bargaining agent of a certified union, if there is one, preventing the development of a decent, honest, constructive relationship between management and labor. The Act encourages *1297 collective bargaining, as it should, in accordance with national policy. The Act does not encourage compulsory membership in a labor organization. The effect of the Board’s policy here is to force employees to form a labor organization, regardless of the wishes of the employees in the particular plant, if there is so much as an intention by an employer to allow employees to confer with management on any matter that can be said to touch, however slightly, their “general welfare”. There is nothing in Cabot Carbon, or in the Labor Management Act, or in any other law that makes it wrong for an employer “to work together” with employees for the welfare of all.
N.L.R.B. v. Streamway Division,
It is only when management’s activities actually undermine the integrity of the employees’ freedom of choice and independence in dealing with their employer that such activities fall within the proscriptions of the Act.
See also Modern Plastics v. N.L.R.B.,
In a later decision,
Lawson Co. v. N.L.R.B.,
In
N.L.R.B. v. Associated Machines,
We believe that the circumstances of this case are closer to the
Streamway
than the
Lawson
model. Under the statutory language as discussed in
Cabot Carbon,
we are not persuaded that substantial evidence supported the conclusion reached by the AU and the Board that the PAC was a “labor organization” formed for the purpose of inducing “adherence of employees ... in the mistaken belief that it was truly representative and afforded an agency for collective bargaining.”
Federal-Mogul Corp. v. N.L.R.B.,
There is little if any evidence that Airstream made, or promised to make, during the pendency of the union campaign and *1298 before the election any significant change in working conditions, pay, or hours of employment. We find also no substantial evidence that the formation of PAC inhibited adversely the organizational campaign of the Union when only one meeting took place during the course of a nearly two-month campaign and when the participants at the meeting considered аnd discussed only rules of worker conduct and sick day-attendance proposals.
Lawson, in contrast, involved an employer that conducted unprecedented meetings with employees to urge that no union was needed and that they should retrieve their authorization cards. Lawson Company at the time told its managers to advise employees that stores would be closed if the union won the election. The employer implied that committee meetings with employees during the organizational campaign resulted in a number of new and improved policies, programs, and benefits including disciplinary appeals. In these and numerous other overt acts, Lawson Company disрlayed strong and persistent anti-union animus, employing devices very different in manner and degree from the activities with which Airstream is charged.
Having decided that the Act was not violated with respect to the PAC activities, at least to the extent that the election was not influenced by the formation of PAC, we pass to the other charges involved in this appeal. 3
2. Changing Established Working Conditions
In order for employer conduct to meet the test of Section 8(a)(1) of the Act, it must be proved that the employer engaged in “conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization.”
N.L.R.B. v. Exchange Parts Co.,
Because these actions allegedly took place during the organization campaign and before the election, we will assume that Airstream acted in these respects with an improper motive of influencing the election.
See N.L.R.B. v. State Plating & Finishing Co.,
Airstream contends that it announced the birthday lunch program in 1984 before any notice of the union election campaign. The AU confirmed that the Company decided in late 1984 to institute such a program but thаt it was not actually implemented until January 1985. Nevertheless, the AU found that because of the delay and inconsistent explanations, “the Company initiated the birthday program after the Union filed its election petition.” We are unsure about the AU’s finding that Airstream initiated this program during the campaign “as a means of discouraging employee sup *1299 port for the Union.” The AU mentioned that employees whose birthdays occurred in December 1984 might be offended by their omission, but it is difficult to understand why this delay would then be intended to discourage union support. We find little basis in the facts to draw the adverse inference against the employer in light of a program announced in 1984 and to be instituted in the future.
The purported three minute increase in the lunch break and the modified employee attendance policy were also found to lack valid purposes. The AU found that these policy changes were undertaken “in order to mollify employee discontent over the installation of time clocks” and measures to increase employee attendance. If taken to mollify employee discontent, these modifications arguably constituted a benefit, albeit a minor one, to Airstream employees. We doubt that these factors, standing alone, were sufficient to influence the election.
We attach no significance whatsoever to the repositioning of timecard racks to ease congestion at the recently installed time clocks. The AU described the reinstallation of time clocks in two of Airstream’s plants as rubbing salt into the employees’ wounds after the announcement of a new policy designed to counter a longstanding problem in employee attendance. Although Mr. LeToumeau cited purported business reasons for this policy — e.g., to improve attendance — and its partial abandonment during the union campaign, the AU determined that “the Company modified its carrot and stick approach to the attendance problém by withdrawing the stick (the disciplinary point system) while continuing ... to hold out the carrot (the аttendance bonus program).” The AU found little credibility in the reasons offered by LeToumeau and determined that Airstream’s justification for the resultant employee benefit was unpersuasive. Again, we find that this decision had an adequate basis, but, once again, express uncertainty as to whether this action was a sufficient ground to set aside the election.
With respect to the Board’s determination that a change in seniority policy in late January 1985 violated the Act, we find ourselves in disagreement with the AU. A careful reading of the testimony relating to this policy indicates that it was limited to the Argosy line and that the company’s action cannot reasonably be inferred to be intended tо influence the election. The AU was correct in noting that “seniority is only one factor in the Company’s job bidding system.” There is no dispute that hiring of skilled production people was to commence on this “innovative product” in January of 1985. An exception was made to recognize the prior experience and skill of laid-off employees in the Argosy bidding process. That this change may have been due in part to employee “concerns” does not make it anti-union action. The reason given by the AU for his finding against Airstream was that the new policy “did not result in any business benefit to itself.” We find no basis for such a conclusion or for the conclusion that this change in policy, under аll the circumstances, extended to all job bidding prior to the election. We reject, therefore, this finding of an unfair labor practice with respect to the Argosy project.
8. Campaign Communications and Use of Bulletin Board
We find the communications made by Airstream to its employees, such as the announcement of the “Awareness program,” to be an acceptable expression by Airstream of its legitimate concerns and opposition to the designation of the Union as a bargaining representative. The election contest was, indeed, a hard fought one in which Airstream advised the employees of factors mitigating against certification of the Union which it felt deserved attention, we find that Airstream’s communicating opposition to the union efforts to organize, taken as a whole, did not unlawfully interfere with, restrain, or coerce employees in the exercise of their rights.
The AU conceded that a company policy required management approval to use the bulletin board in the main plant. As noted by the AU, it was used primarily for “com *1300 pany business, but sometimes was also used, with management’s approval, for “social” or “public interest” purposes. Consistent with Airstream’s written policy, company supervisors regularly removed “unapproved notices” from the board, including union literature while the campaign was in progress. No evidence indicated that any union representative requested permission to post union literature on the main plant bulletin board, and an Airstream official, Carman, testified that “he probably would have approved such a notice for posting” if requested. The Board concluded that removal of such union notices was discriminatory, displayed “animus against the union,” and thus violated Section 8(a)(1) of the Act. The AU concluded that this conduct interfered with the election because Airstream “tolerated the unauthorized use of a bulletin board by PAC.” 4
We find no indication in the record that PAC did not receive approval for posting notices. Witness Armstrong testified that he posted PAC notices in his department on a board used for blueprints and “sort of took it over.” Armstrong testified that to his knowledge the bulletin boards in other departments were not used for PAC notices.
We conclude that PAC was not a competing company-dominated labor organization in competition with the Union. We believe the Board’s finding of discriminatory animus on the part of Airstream against the Union by reason of bulletin board policy or conduct must therefore be remanded for further consideration in light of these circumstances and in light of the obvious difference between unauthorized use of a main plant bulletin board, and appropriation, approved or unapproved, of a department bulletin board for PAC notices. Therefore, we decline to enforce the Board’s order that PAC be disbanded, and we set aside the conclusion that the initiation and operation of PAC before the election and up to the time of the contest thereof was an unfair labor practice.
We affirm several of the Board s conclusions that certain activity relating to the extension of lunch breaks and modification of the Company’s attendance policies may have or did constitute unfair labor practices. We remand for further consideration, however, as to whether these violations, relatively minor in their nature compared to the other charges made in this case, are sufficient to mandate a new election.
We also remand for further consideration of whether the use of a bulletin board by PAC in one department was discriminatory and displayed anti-union animus because unauthorized union material was removed from the bulletin board in the main plant during the union campaign. If deemed violative of the Act, the Board or the AU should set out its reasons for such a conclusion; this factor may be considered together with the lunch break and attendance policy change in determining the validity of the election.
Notes
. The number of challenged ballots was insufficient to affect the results, and the Union Bled objections to the conduct of the election.
. Approximately two-thirds of the Board’s brief dealt with this issue.
. In
N.L.R.B. v. H & H Plastics Mfg. Co.,
. The AU conceded that different bulletin boards were involved in the alleged actions of taking down union literature and "tolerating" PAC notices.