Electromation, Incorporated v. National Labor Relations Board

Brian J. Martin, Barnes & Thornburg, Indianapolis, IN (argued), Kathleen K. Brickley, Barnes & Thornburg, South Bend, IN, for Electromation, Inc.

Aileen A. Armstrong, Linda J. Dreeben (argued), N.L.R.B. Appellate Court, Enforcement Litigation, Washington, DC, Rik Lineback and William T. Little, N.L.R.B., Indianapolis, IN, for N.L.R.B.

Gary S. Witlen, Intern. Broth. of Teamsters, Washington, DC (argued), for Teamsters, Chauffeurs and Helpers Local Union 364 and Intern. Broth. of Teamsters.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Jan S. Amundson, Nat. Ass'n of Mfrs., Washington, DC, for Nat. Ass'n of Mfrs., amicus curiae.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Stephen A. Bokat, Mona C. Zeiberg, National Chamber Litigation Center, Washington, DC, for Chamber of Commerce of U.S., amicus curiae.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for American Iron and Steel Institute, amicus curiae and Coalition of Management for Positive Employment, Training and Educ., amicus curiae.

Robert E. Williams, Daniel V. Yager, Jeffrey C. McGuiness, McGuiness & Williams, Washington, DC, for Labor Policy Ass'n, amicus curiae American Soc. for Quality Control, amicus curiae, Development Dimensions, amicus curiae, Quality & Productivity Management Ass'n, amicus curiae, American Productivity & Quality Center, amicus curiae and Arthur D. Little, Inc., amicus curiae.

Howard Lesnick, University of Pennsylvania School of Law, Philadelphia, PA, Lewis L. Maltby, American Civil Liberties Union Foundation, New York City, for American Civil Liberties Union Foundation, amicus curiae.

Mary E. Leary, Pittsburgh, PA, Ellis Boal, Detroit, MI, for Labor Notes, amicus curiae and United Electrical, Radio and Mach. Workers of America, amicus curiae.

Laurence Gold, Washington, DC, Marsha S. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, for American Federation of Labor and Congress of Indust. Organizations, amicus curiae.

Before CUMMINGS and FLAUM, Circuit Judges, and WILL, District Judge.*

WILL, District Judge.

In this appeal, we consider a petition to set aside and a cross-petition to enforce an order of the National Labor Relations Board (the "NLRB" or "Board"), which found that the petitioner employer, Electromation, Inc. (the "company"), violated Section 8(a)(2) and (1) of the National Labor Relations Act (the "Act") through its establishment and administration of "action committees" consisting of employees and management. Believing that this case potentially raised the rather novel and important issue whether modern "employee involvement" or "employee participation" organizations are unlawful under Section 8(a)(2) and (1) of the Act, numerous amici have filed supporting and opposing briefs in this appeal.1 The International Brotherhood of Teamsters and Teamsters Local Union 364, as intervening respondents, also filed a brief in support of the Board. As explained below, we find it unnecessary to address this much broader issue and, for the reasons stated, simply order that the Board's order in this case be enforced.

Electromation manufactures at its plant in Elkhart, Indiana, small electrical and electronic components and related products, such as seat belt restraint solenoids, solenoids for outboard engines and chainsaws, switches and harnesses, primarily for the automobile industry and for power equipment manufacturers. At the time of the events which gave rise to this suit, Electromation's approximately 200 employees, most of whom were women, were not represented by any labor organization. To minimize the financial losses it was experiencing at the time, the company in late 1988 decided to cut expenses by revising its employee attendance policy and replacing the 1989 scheduled wage increases with lump sum payments based on the length of each employee's service at the company. Electromation informed its employees of these changes at the 1988 employee Christmas party.

In January 1989, the company received a handwritten request signed by 68 employees expressing their dissatisfaction with and requesting reconsideration of the revised attendance bonus/wage policy. After meeting with the company's supervisors, the company President, John Howard, decided to meet directly with employees to discuss their concerns. Accordingly, on January 11, 1989, the company met with eight employees--three randomly selected high-seniority employees, three randomly selected low-seniority employees, and two additional employees who had requested that they be included--to discuss a number of matters, including wages, bonuses, incentive pay, tardiness, attendance programs, and bereavement and sick leave policy, all normal collective bargaining issues.

Following this meeting, Howard met again with the supervisors and concluded that management had "possibly made a mistake in judgment in December in deciding what we ought to do." Because Howard concluded that "it was very unlikely that further unilateral management action to resolve these problems was going to come anywhere near making everybody happy ... [and] that the better course of action would be to involve the employees in coming up with solutions to these issues," the company determined that "action committees" would be an appropriate way to involve employees in the process. Accordingly, on January 18, 1989, the company met again with the same eight employees and Howard explained that the management had distilled the employees' complaints, which had addressed approximately 20-25 areas of concern, into five categories and proposed the creation of action committees to "meet and try to come up with ways to resolve these problems; and that if they came up with solutions that ... we believed were within budget concerns and they generally felt would be acceptable to the employees, that we would implement these suggestions or proposals."

The employees at the January 18 meeting initially reacted negatively to the concept of action committees. The employees did not want more meetings or committees; rather, they wanted solutions to the numerous problems they had identified. Howard then explained to them that because "the business was in trouble financially ... we couldn't just put things back the way they were ... we don't have better ideas at this point than to sit down and work with you on them." According to Howard, as the meeting progressed, the employees "began to understand that [the action committees proposal] was far better than leaving things as they were, and we weren't going to just unilaterally make changes. And so they accepted it." At the employees' suggestion, Howard agreed that, rather than having a random selection of employee committee members, sign-up sheets for each action committee would be posted.

On the next day, the company posted a memorandum to all employees announcing the formation of the following five action committees: (1) Absenteeism/Infractions; (2) No Smoking Policy; (3) Communication Network; (4) Pay Progression for Premium Positions; and (5) Attendance Bonus Program. See Ex. GC2. Sign-up sheets were also posted at this time. See Exs. GC3A-3F. Each committee was to consist of up to six employees and one or two members of management, as well as the company's Employee Benefits Manager, Loretta Dickey, who was in charge of the coordination of all the committees. Apparently, Dickey's role was primarily to facilitate the discussions between the company and its employees. Although the sign-up sheets also stated the goals of each action committee, no employees were involved in the drafting of any aspect of the memorandum or the statement of subjects that the committees were to consider.

The company also unilaterally decided that two employees who had signed up for more than one committee would be limited to participation on only one committee. The first employee, Barb Church, signed up for four committees and was chosen for only one--the Communication Network Committee. The second employee, Gayle Barker, signed up for three committees and was chosen for only one--the Attendance Bonus Program Committee. As it turned out, there were no long waiting lines to sign up for the committees, and some who did sign up later crossed out their names.

Shortly thereafter, the company posted a memorandum announcing the members of each committee and dates of the initial committee meetings. See Ex. GC4. Six employees signed up for the Absenteeism/Infractions Committee, three signed up for the No Smoking Policy Committee, five signed up for the Pay Progression for Premium Positions Committee, five signed up for the Communication Network Committee, and six signed up for the Attendance Bonus Program Committee. Although the memorandum announcing the creation of the action committees declared that membership on each committee would be determined by the volunteer group for that committee, Dickey apparently made the final determination of which employees would participate on each committee. Five employees were eventually chosen to serve on each committee. The employees were not given an opportunity to vote on Dickey's selection of employee committee members. Each committee also included at least one supervisor or manager in addition to Dickey.

The No Smoking Policy Committee was never organized and apparently held no meetings. In late January and early February 1989, each of the other action committees began to meet. All committee meetings took place on company premises, generally on a weekly basis in a company conference room. Each committee elected a secretary to take notes. The company paid employees for their time spent in committee meetings and provided all necessary materials and supplies, such as files, pencils, paper, and telephones. According to Dickey, management expected that the employee members of the committees would "kind of talk back and forth" with the other employees in the plant because "anyone [who] wanted to know what was going on, they [could] go to these people." In order to keep other employees posted on the progress of the action committee work, at least one update memorandum was posted which described the activities of the action committees. See Ex. GC5. The update memorandum was drafted by management without consultation with the employee members of each committee.

During the Attendance Bonus Committee's first meeting, Dickey and Electromation's Controller, Dan Mazur, solicited employee ideas regarding a good employee attendance award program. Their goal was to develop an attendance program which would be both affordable to the company and satisfactory to the employees. Through the discussions, the committee developed a proposal, which was declared by Mazur to be too costly and was not pursued further for that reason. Because the first proposal had been rejected, the committee developed a second proposal, which was deemed fiscally sound by Mazur. However, due to the intervening demand for union recognition, the second proposal was never presented to Howard and no responsive action by the company was ever taken.

On February 13, 1989, the International Brotherhood of Teamsters, Local Union No. 1049 (the "union") demanded recognition from the company. Until then, the company was unaware that any organizing efforts had occurred at the plant. In late February, Howard informed Dickey of the union's demand for recognition. Upon the advice of counsel, Dickey announced at the next meeting of each committee that, due to the union demand, the company could no longer participate in the committees, but that the employee members could continue to meet if they so desired.

The Absenteeism/Infraction and the Communication Network Committees continued to meet. The Pay Progression Committee disbanded. The Attendance Bonus Committee decided to write up its second proposal and then to disband. Finally, on March 15, 1989, Howard formally announced to the employees that "due to the Union's campaign, the Company would be unable to participate in the [committee] meetings and could not continue to work with the committees until after the [union] election." The union election took place on March 31, 1989; the employees voted 95 to 82 against union representation. On April 24, 1989, a regional director of the Board issued a complaint alleging that Electromation had violated the Act.

As they are described above, the facts in this case are largely undisputed. On this evidence, the ALJ concluded that the Electromation action committees constituted labor organizations within the meaning of Section 2(5) of the Act. He noted that employees, supervisors, and managerial personnel served as committee members and that their discussions concerned conditions of employment. Because he found that the company had organized the committees, created their nature and structure, and determined their functions, the ALJ further held that the company had dominated and assisted the committees in violation of Section 8(a)(2). In support of this determination, the ALJ observed that, although management did not dominate the discussions, the committee meetings occurred on company property, the supplies and materials were provided by management, and the employee members were paid for their time spent on committee work. The ALJ found no merit to the allegations that the company had threatened and interrogated employees in violation of Section 8(a)(1).

The company appealed this decision to the Board, which scheduled oral argument because the case raised important Section 8(a)(2) and (1) issues. In its exceptions and brief, the company contended that the action committees were not labor organizations within the meaning of the Act and that they did not interfere with employee free choice. The company argued that no proposal from any action committee was ever implemented, that the committees were formed in the absence of any company knowledge of union activity, and that the committees followed a company tradition of employer-employee meetings.

The Board issued its final Decision and Order on December 17, 1992. See Electromation, Inc., 309 N.L.R.B. 990 (1992). The Board also found that the action committees constituted labor organizations within the meaning of Section 2(5) of the Act, and that the company had dominated and assisted them within the meaning of Section 8(a)(2) and (1). Specifically, the Board determined that the only purpose of the committees, which were created in direct response to employee disaffection concerning changes in conditions of employment, was to deal with those conditions through a bilateral process involving both employees and management in an attempt to reach bilateral solutions on the basis of employee-initiated proposals. Id. at 997.

The Board also concluded that the employee committee members acted in a representational capacity within the meaning of the Act. Id. Noting that (1) the employer initiated the idea to create the committees, (2) the employer unilaterally drafted the written purposes and goals statements of the committees, (3) the employer unilaterally determined how many members would compose each committee and that an employee could serve on only one committee at a time, and (4) the employer appointed management representatives to the committees to facilitate the discussions, the Board found that the company had violated Section 8(a)(2) and (1) of the Act by dominating the formation and administration of, and contributing financial and other support to, the action committees. Id. at 998. In support of its findings, the Board also noted that the employer permitted the employees to conduct committee activities on paid time within a structure wholly designed by the employer.

The Board concluded on this evidence that the committees were the creation of the employer and that the impetus for their continued existence rested solely with Electromation. The Board agreed with the ALJ that the company did not effectively disestablish the committees upon receipt of the union's bargaining demand. Id. The Board found that the purpose of the action committees was not to enable management and employees to cooperate to improve quality or efficiency, but rather to create in employees the impression that their disagreements with management had been resolved bilaterally, where in fact the employer had imposed on its employees a unilateral form of bargaining in violation of Sections 8(a)(2) and (1). Id. Chairman Stephens and Members Devaney and Oviatt joined in the Board's majority opinion. Member Raudabaugh also concurred in the finding of a violation of Section 8(a)(2) with a somewhat different analysis.

Member Devaney also wrote a concurring opinion to point out that the action committees at issue did not constitute a genuine employee participation program, and that, despite the holding in this case, legislative history, judicial precedent, and Board precedent provide significant latitude to employers seeking to involve employees in the workplace. Id. at 999. He concluded that Section 8(a)(2) does not create obstacles for employers wishing to implement legitimate employee involvement programs, as long as those programs do not impair the right of employees to their free choice of a bargaining representative. Id. Member Devaney emphasized that the employer's establishment of the committees in this case was illegal domination and support of a labor organization in violation of Section 8(a)(2) primarily because these committees placed the employer on both sides of the bargaining table to discuss the terms and conditions of employment, thus giving employees the illusion of a bargaining representative without the reality of one. Id. at 1003.

Member Oviatt noted in his concurrence that the critical question under Section 8(a)(2) is whether the entity is created with any purpose to deal with grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, as set forth in the Section 2(5) definition of labor organization. Id. at 1004. Because the action committees' purpose was to address and find solutions for issues related to absenteeism, pay progression, attendance bonuses, and no smoking policies, he found a clear violation of Section 8(a)(2). Recognizing the critical importance of the ability of management and employees to engage in cooperative endeavors to improve production methods and product quality, he emphasized that the Board's decision should not be read as a condemnation of employee/management cooperative programs and other employee participation committees, which are permissible under Section 8(a)(2). Id. at 1004-5.

Member Raudabaugh wrote a concurrence in which he agreed with the majority's conclusion that the company had violated Section 8(a)(2) of the Act, but disagreed with the analysis. In his concurrence, he specifically addressed the broader issue whether Section 8(a)(2) should be reinterpreted in light of the growing national importance of employee participation programs. He first agreed with the majority that, in light of clear Supreme Court precedent, the action committees are labor organizations within the meaning of Section 2(5). After an extensive discussion of the legislative history of Section 8(a)(2), including the impact of the passage of the Taft-Hartley Act of 1947, id. at 1006-12, he concluded that existing Supreme Court precedent does not foreclose a fresh interpretation of Section 8(a)(2) and further suggested that the legality of employee participation programs under that section should turn on consideration of the following factors, no one of which would be dispositive in any given case: (1) the extent of the employer's involvement in the structure and operation of the committees; (2) whether the employees, from an objective standpoint, reasonably perceive the employee participation program as a substitute for full collective bargaining through a traditional union; (3) whether employees have been assured of their Section 7 right to choose to be represented by a traditional union under a system of full collective bargaining; and (4) the employer's motives in establishing the employee participation program. Applying these four factors to this case, he found that the employer's conduct in establishing the action committees was violative of Section 8(a)(2). Id. at 1013. In reaching his conclusion, Member Raudabaugh observed that the employer completely dictated the structure and operation of the committees as a mechanism to respond to employee grievances and that the employee committee members were reasonably perceived as representatives by their fellow employees.

The Board's order requires the company to: (1) cease and desist from dominating, assisting, or otherwise supporting the action committees and in any like manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights; (2) disestablish the action committees; and (3) post an appropriate notice. Id. at 998. Electromation has filed a petition to set aside this order. The Board and union have cross-petitioned for enforcement of the order.

We have jurisdiction to consider the parties' petitions under 29 U.S.C. Sec. 160(e) and (f). Central Transport Inc. v. NLRB, 997 F.2d 1180, 1184 (7th Cir.1993); NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992). However, our role in reviewing Board decisions is sharply limited. We must uphold the Board's determinations if its factual findings are supported by substantial evidence and its legal conclusions have a reasonable basis in the law. NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1471 (7th Cir.1992).

The Board's findings of fact are conclusive if they are supported by substantial evidence on the record as a whole, even if this Court would have reached different conclusions had the matter been before it de novo. NLRB v. Shelby Memorial Hosp. Ass'n, 1 F.3d 550, 554 (7th Cir.1993); Livingston Pipe & Tube, Inc. v. NLRB, 987 F.2d 422, 426 (7th Cir.1993). See also United States Marine Corp. v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the Board's determination. Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.1989) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488, 71 S.Ct. 456, 459, 465, 95 L.Ed. 456 (1951)).

We must also consider whether the Board's construction of the Act is reasonable in light of its language and purposes, as determined by controlling decisions of the Supreme Court. Local 1384, United Auto., Aerospace and Agric. Implement Workers of America, UAW v. NLRB, 756 F.2d 482, 492 (7th Cir.1985) (appellate court's enforcement of Board decision "reflects only a determination by the court of appeals that the rule is rational and consistent with the Act, not that it is the uniquely correct rule"); International Ass'n of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO, Local No. 111 v. NLRB, 946 F.2d 1264, 1267 (7th Cir.1991) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)) (where Board's interpretation of the Act is not "precluded by statutory language or clear congressional intent, we must honor it if not 'arbitrary, capricious, or manifestly contrary to the statute' "). See also Shelby Memorial Hosp., 1 F.3d at 554 (citation omitted) ("we must uphold the Board's legal conclusions unless they are irrational or inconsistent with the National Labor Relations Act.").

In reaching our determination in this case, we recall the Supreme Court's observation in Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-01, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978) (citation omitted): "[i]t is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy.... 'The function of striking [the balance between conflicting legitimate interests] to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' " See also Local No. 111, 946 F.2d at 1267 (citing NLRB v. Manitowoc Eng'g Co., 909 F.2d 963, 971 n. 10 (7th Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991)) ("[o]ur standard of review is deferential in recognition of Congress' delegation to the NLRB of primary responsibility for national labor policy").

As several amici have pointed out, in an effort to succeed in an increasingly competitive global marketplace, many United States companies have developed employee involvement structures which encourage employee participation in the design of workplace policies and procedures to improve the efficiency and effectiveness of the corporate organization and to create a workplace environment which is satisfactory to employees. See, e.g., Br. Amici Curiae of Labor Policy Association, American Society for Quality Control, Development Dimensions, Quality & Productivity Management Association, American Productivity & Quality Center, and Arthur D. Little, Inc. at 2 ("Br. Amici Curiae of Labor Policy Association"); Br. Amici Curiae of National Association of Manufacturers, Chamber of Commerce of the United States of America, American Iron and Steel Institute, and Coalition of Management for Positive Employment, Training and Education at 1-2 ("Br. Amici Curiae of National Association of Manufacturers"). See also Note, Labor-Management Cooperation After Electromation: Implications for Workplace Diversity, 107 Harv.L.Rev. 678, 678-84 (1994); Paul Weiler & Guy Mundlak, Symposium: Economic Competitiveness and the Law: New Directions for the Law of the Workplace, 102 Yale L.J. 1907 (1993). These employee participation programs are premised on management's recognition that employees are capable of contributing far more to their companies than the mere performance of tasks assigned to them by the management.

We recognize the growing importance of such employee involvement organizations. In fact, we applaud the application of such employee participation structures in appropriate situations. Because the Board found no basis to conclude that the purposes of the action committees were limited to achieving increased productivity, quality, or efficiency, or that they were designed to function solely as communication devices to promote generally the interests of quality or efficiency, it did not reach the question of whether employer-initiated programs that exist for such purposes, as described by amici, may constitute labor organizations which violate Section 8(a)(2) and (1). 309 N.L.R.B. at 997 n. 28.

In its amicus brief, the Labor Policy Association faults the Board for issuing a limited decision rather than considering the broader issue of the applicability of Section 8(a)(2) and (1) to the so-called employee incentive or representation structures, based on the changing industrial realities of an increasingly global economy. In view of the wide variety of programs presented and described in the various amicus briefs filed before the Board and this Court, the Board reasonably and properly declined to attempt to issue an opinion addressing all possible employee involvement programs. Rather, exercising its discretion to construe the Act in light of the legislative history, applicable Supreme Court precedent, and the underlying policies of the Act, the Board found that the company's actions here fell within the statutory proscriptions and did not implicate changing industrial realities that might be relevant to construction of the statute in other circumstances.

The Board did not, as certain amici argue, refuse to take into account changing industrial realities because it applied a particular construction of the Act to the facts here as dictated by legislative history and Supreme Court precedent. Instead, it simply observed that it does not have latitude to change a particular construction of the statute based on changing industrial realities where congressional intent to the contrary is absolutely clear, or where the Supreme Court has decreed that a particular reading of the statute is required, or both. Nor was it necessary to do so in this case.

There are some serious policy arguments that suggest that today's evolving industrial environment may require reconsideration of Section 8(a)(2) of the Act, or at least its interpretation and application to certain modern employee organizations. However, this case fails to provide the proper forum for such re-analysis and re-interpretation. In any event, any substantial changes should more properly be considered by Congress. See, e.g., H.R. 1529 (Representative Steven Gunderson, R-WI) ("Teamwork for Employees and Management Act," a bill to amend the Act to allow labor management cooperative efforts that improve economic competitiveness in the United States to continue to thrive, and for other purposes) and S. 669 (Senator Nancy Kassenbaum, R-KS) (same), 103d Cong., 1st Sess. (1993). Given the facts of the case before us, it would be inappropriate to address the applicability of Section 8(a)(2) to some of the quite different employee organizations described in the various amicus briefs. We emphasize that our reasoning and ruling in this case is limited to the action committees which are at issue here. It is clear that a finding of a Section 8(a)(2) and (1) violation in this case does not foreclose the lawful use of legitimate employee participation organizations, especially those which are independent, which do not function in a representational capacity, and which focus solely on increasing company productivity, efficiency, and quality control, in appropriate settings. We agree with amici that the loss of these programs would not only be injurious to United States companies' ability to compete globally, but also that it would deprive employees of valuable mechanisms by which they can assist in the formation of a healthy and productive work environment. It is clear that today, in many cases, the interests of the employer and employee are not mutually exclusive. Having identified the narrow scope of our decision, we move on to consider the Electromation action committees.

An allegation that Electromation has violated Section 8(a)(2) and (1) of the Act raises two distinct issues: first, whether the action committees in this case constituted "labor organizations" within the meaning of Section 2(5); and second, whether the employer dominated, influenced, or interfered with the formation or administration of the organization or contributed financial or other support to it, in violation of Section 8(a)(2) and (1) of the Act. Each issue will be examined in turn.

A. The Action Committees Constituted Labor Organizations

Section 2(5) of the Act defines a labor organization as:

any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

29 U.S.C. Sec. 152(5). Under this statutory definition, the action committees would constitute labor organizations if: (1) the Electromation employees participated in the committees; (2) the committees existed, at least in part, for the purpose of "dealing with" the employer; and (3) these dealings concerned "grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."

In reaching its decision in this case, the Board also noted that "if the organization has as a purpose the representation of employees, it meets the statutory definition of 'employee representation committee or plan' under Section 2(5) and will constitute a labor organization if it also meets the criteria of employee participation and dealing with conditions of work or other statutory subjects." 309 N.L.R.B. at 994 (footnote omitted). Because the Board found that the employee members of the action committees had acted in a representational capacity, it did not decide whether an employee group could ever be found to constitute a labor organization in the absence of a finding that it acted as a representative of the other employees. Although concurring Member Devaney concluded that such a finding would be essential to a determination that a group is a labor organization within the meaning of Section 2(5), see 309 N.L.R.B. at 999-1003, we need not reach this issue.

With respect to the first factor, there is no question that the Electromation employees participated in the action committees. Turning to the second factor, which is the most seriously contested on appeal, the Board found that the activities of the action committees constituted "dealing with" the employer. In this appeal, the company primarily argues that the Board erred in finding that Section 8(a)(2) was violated. However, as an alternative ground for setting aside part of the Board's order, the company contends that there is not substantial evidence to support the finding that at least three of the action committees--the Absenteeism/Infractions Committee, the Communication Network Committee, and the Pay Progression for Premium Positions Committee--existed for the purpose of "dealing with" Electromation. Interestingly, the company concedes on appeal that there is enough evidence to support a finding that the fourth committee--the Attendance Bonus Program Committee--existed for the purpose of dealing with the company. Br. of Petitioner at 42 n. 18. The company argues that the other three action committees existed only as simple communication devices not engaged in collective bargaining of any sort, so they are not labor organizations under the statutory definition.

Although the company admits that one action committee constituted a labor organization, it argues that each committee must be considered separately under Section 2(5). Given the facts surrounding the formation and administration of all the action committees in this case, we cannot treat each committee separately. First, in their formation and administration, the individual committees were constituted as part of a single entity or program. They were initially conceived as an integrated employer response to deal with growing employee dissatisfaction. It was not until later that individual committee subject areas were identified and categorized by management. Also, a single management representative, Loretta Dickey, was assigned the responsibility for coordinating all action committee activities. The interrelatedness of these committees is further demonstrated by the company's determination that an employee could serve on only one committee at a time.

The company in fact posted only a single announcement identifying the members of each committee. Without consulting each committee individually, Dickey drafted a single statement summarizing the contemplated activities of all the committees. We agree with the Board that the action committees can be differentiated only in the specific subject matter with which each dealt. Each committee had an identical relationship to the company: the purpose, structure, and administration of each committee was essentially the same.

We note, in addition, that even if the committees are considered individually, there exists substantial evidence that each was formed and existed for the purpose of "dealing with" the company. It is in fact the shared similarities among the committee structures which compels unitary treatment of them for the purposes of the issues raised in this appeal.

The company argues in favor of a narrow construction of "labor organization" under the Act. However, as the Board noted, Congress phrased the statutory definition of labor organizations "very broadly." See S.Rep. No. 573, 74th Cong., 1st Sess. 7 (1935), reprinted in 2 NLRB, Legislative History of the National Labor Relations Act, 1935 at 2306 (1959, reprinted 1985) (hereinafter "NLRA Leg. Hist."). This Court has interpreted this definition very broadly as well. For example, relying on congressional intent, we have previously held that a labor organization need not have officers, a constitution, bylaws, dues, or a treasury in order to fit the statutory definition. Pacemaker Corp. v. NLRB, 260 F.2d 880, 883 (7th Cir.1958) ("The fact that there were no formal organization, by-laws, officers or dues is immaterial in determining whether it is a labor organization."); Indiana Metal Prod. Corp. v. NLRB, 202 F.2d 613, 620-21 (7th Cir.1953) (fact that employee committee had no formal organization does not prevent it from falling under the definition of labor organization).

We have previously noted that the broad construction of labor organization applies not only with regard to the "absence of formal organization, [but also to] the type of interchange between parties which may be deemed 'dealing' " with