Belber Manufacturing Corp.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make James E. Hayes, Martha A . Hayes, and Vera L. Watring whole for any loss of pay suffered as a result of the discrimination against them. WEBER SHOE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti- more 1-7000, Extension 2732, if they have any questions concerning this notice or compliance with its provisions. Belber Manufacturing Corporation and International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO. Case No. 5-CA-2181. March 17, 1964 DECISION AND ORDER On October 12, 1962, Trial Examiner Thomas N. Kessel issued an Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report which, in the opinion of the Board, raised issues which could best be resolved after a' supplemental hearing. Ac- cordingly, on January 14, 1963, the Board remanded this proceeding to the above-named Trial Examiner for issuance of 'a Supplemental Intermediate Report. On May 21, 1963, the above-named Trial Ex- aminer issued his attached Supplemental Intermediate Report, re- affirming his findings and conclusions, as set forth in the Intermediate Report issued October 12, 1962, and recommending that the Board order the Respondent to comply with the recommendations set forth in the initial report for action to remedy its unfair labor practices found therein. Thereafter, Respondent filed exceptions to the Sup- plemental Intermediate Report and a supporting brief.' Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to'a three-member panel [Mem- bers Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial' error was committed. The rulings are hereby affirmed. The Board has considered the Supple- 1 In its brief, Respondent moved to include in the record a letter dated March 12, 1963, from the Board's Associate Executive Secretary to the Charging Party's attorney. Re- spondent's motion is hereby granted and the above -described letter is hereby incorporated into the official record of this case. 146 NLRB No. 38. BELBER MANUFACTURING CORPORATION 359 mental Intermediate Report, the exceptions thereto, the supporting brief, and the entire record 2 in the case, and adopts the findings, con- clusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner,' as set out in the Intermediate Report darted October 12, 1962, as its Order. 2 We reject the Respondent's contention that the Trial Examiner sustained the setting aside of the first election on a ground other than that initially relied on by the Board, and that Respondent has thereby been denied due process . The issue now, as in the first instance, is whether the August 1961 wage increases were timed to interfere with the election . We now find, as we did then , that they were, and that the granting of those pay raises interfered with the election . The fact that as an indication of intent we initially gave weight to the element of retroactivity, and it now appears that the wage increases were not retroactive , does not change the grounds for our finding nor militate against the validity of our conclusion . Respondent having been given full opportunity to present its evidence , we likewise find no merit in Respondent 's contention that it was denied due process because the hearing was held in the unfair labor practice case rather than the representation case. See N.L.R.B. v. Poinsett Lumber & Manufacturing Com- pany, 221 F. 2d 121 (C.A. 4). 3 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Belber Manufacturing Corporation , Its officers, agents , successors, and assigns, shall: INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed May 29, 1962, by International Leather Goods, Plastic & Novelty Workers' Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region issued his complaint dated July 5, 1962, against Belber Manufacturing Corporation, herein called the Company, alleging that the Company has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5)and (1) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Company's answer to the complaint denies the allegations of statutory violations therein. Copies of the complaint, the charge, and is notice of hearing were duly served upon the parties. Pursuant to notice, a hearing was held before Trial Examiner Thomas N. Kessel at Philadelphia, Pennsylvania, on August 7, 1962. All parties were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. Upon the entire record in the case, and from observation Of the witnesses, I make the following: FINDINGS OF FACT 1. PERTINENT COMMERCE FACTS The complaint alleges and the answer admits that the Company is a Delaware corporation with its principal place of business at Smyrna , Delaware, where it is en- gaged in the manufacture of luggage ; that in the course of its business operations dur- ing the 12-month period preceding issuance of the complaint the Company shipped goods valued in excess of $50,000 to points outside the State of Delaware. The answer admits and I find from the foregoing facts that the Company is engaged in commerce within the meaning of the Act and that exercise of the Board's jurisdic- tion over its operations in this case will effectuate the purposes of the. Act. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Company. - III. THE UNFAIR' LABOR PRACTICES At issue is the Company's admitted refusal to honor the Union's certificate as ex- clusive collective-bargaining representative of the Company's employees and to bargain with it for these employees. The General Counsel maintains that the Com- pany's refusal is violative of Section 8(a) (5) of the Act. The Company contends that its refusal was legally justified because the election which led to the Union's certification was not lawfully ordered and that the resultant certificate is therefore a nullity. Pursuant to a Decision and Direction of Election in Case No. 5-RC-3538 issued on August 8, 1961 , by the Regional Director for the Fifth Region, a representation election was held on September 1, 1961 , among the Company 's employees in an appropriate unit consisting of all production land maintenance employees including shipping and receiving employees and truckdrivers at the Company's Smyrna, Delaware, plant, excluding office clerical employees , watchmen, guards, and super- visors as defined in the Act.' The tally of ballots issued after the election showed that of 258 eligible voters 151 voted against the Union and only 95 for it. There- after the Union filed timely objections to conduct by the Company which as- sertedly affected the results of the election. Among its various objections only one is here pertinent. That objection, No. 2, states: The Employer, with the intention of improperly influencing the outcome of the election, did, during the period following the issuance of the Direction of Election, grant a. number of individual workers increases so as to put economic pressure upon them and thus secure a vote which was not free and untrammeled. On November 24, 1961, the Acting Regional Director for the Fifth Region issued his Supplemental Decision and Certification of Results of Election in which, after investigation, he found none of the Union's objections to be meritorious and over- ruled them all. In disposing of objection No. 2, he stated, after reciting the relevant evidence, There has been no showing that the increases were conditioned upon the out- come of the election; no evidence to show that the increases were granted other than in the normal course of business or in order to affect the results of the election; or that the effective date came at a time substantially different from that which had been the employer's customary time to grant employee benefits. Under all the circumstances, the undersigned concludes that the increases were not intended, or reasonably calculated, to interfere with the election. On December 13, 1961, the Union filed with the Board a request for review of the Region's dismissal of its objections. On April 11, 1962, the Board issued its De- cision on Review and Direction of Second Election. The Board, referring to objection No. 2, stated in its decision: The record indicates that over the past several years the Employer has granted periodic wage increases to groups of its employees. One of these increases usually occurs about August of each year. During August 1961, the Employer reviewed its employees' production and service records in order to determine to whom it would grant wage increases, and, recognizing that some of its employees were earning below the new minimum wage, it then determined to grant wage increases to 62 of its 273 employees, 36 of whom had been at or below the minimum wage. The other increases were either merited or made for the purpose of maintaining established wage differentials which would be upset by the increases to the minimum wage. The new minimum wage law did not become effective until September 3, 1961. However, on August 30, 1961, just 2 days before the election held on September 1, 1961, the employer granted the wage increases retroactive to August 21, 1961. The wage increases were reflected in the employees' pay which they received on August 30, 1961. The Regional Director found that such payments were made in the normal course of business, and were thereby privileged. We do not agree, as in our opinion, there is no sufficient showing that the increases were made retroactive for rea- sons other than the pendency of the election. Accordingly, the Board finds I The unit description was later amended as hereinafter set forth BELBER MANUFACTURING CORPORATION 361 that the granting of the retroactive wage increases, under the circumstances, was calculated to and did, interfere with the instant election. We shall, therefore, overrule the decision of the Regional Director, and hereby set the election aside, and direct a second election. On May 9, 1962, a second election was conducted among the employees in the appropriate unit. The tally of ballots this time showed that of 279 eligible voters 130 voted for the Union, 110 against it, and 14 ballots were challenged. On May 16, 1962, the Company filed objections to the election which were returned by the Regional Director with a covering letter dated May 17, 1962, stating that the objections had not been-timely filed, the last day for filing having been May 16. On May 18, 1962, the Regional Director certified the Union as the collective- bargaining representative of the Company's employees in the aforestated appropriate unit. On May 22, 1962, the Company sent a letter to the Board's Executive Secretary protesting the Regional Director's dismissal of its untimely objections and requesting appropriate action by the Board to correct the Regional Director's action. The Board's Associate Executive Secretary replied by letter dated May 24, 1962, noting that the Regional Director's action 'was consistent with the Board's Rules and Regula- tions as well as the Board's legal precedents. The request for corrective action was denied. Thereupon the Company filed with the Regional Director a petition for revocation and/or amendment of certification. The request for revocation was denied. The certificate issued to the Union was amended in accord with the Com- pany's request to include an additional group of employees at the Company's Wil- mington, Delaware, subwarehouse. Thus, as stipulated at the hearing, the Union is now certified as representative of the following appropriate unit: All employees, including production and maintenance employees , including shipping and receiving employees and truckdrivers , employed at the Employer's Smyrna, Delaware, plant, and all shipping and receiving employees temporarily assigned to the employer's Wilmington, Delaware, subwarehouse plant, and ex- cluding office clerical employees , guards, and supervisors as defined in the Act. In substance the Company attacks the Union's certificate on the grounds that the Board erroneously set aside the result of the first election. The Company argues that the record before the Board on the exceptions to the Regional Direc- tor's dismissal of the Union's objections provided no warrant for the Board's find- ing and conclusion in its Decision on Review and Direction of Second Election that the wage increases granted employees by the Company on August 30, 1961, were made retroactive to August 21, 1961. The Company vigorously insists that the record in this case made during its investigative stages contains no evidence what- ever that the wage increases were- retroactive or were intended to influence the votes of employees in the first election. The Company moreover asserts that the retroactivity factor was not even- raised by the Union's objections and definitely was not a subject of the Regional Director's investigation. The Company further maintains that if the Board had been concerned during its review of the record that the wage increases had been made retroactive to influence the results of the election it should in fairness to the Company and to preserve its right to due proc- ess have remanded the case to the Regional Director for additional investigation or ordered a hearing on the question with opportunity to the Company to estab- lish the fact regarding this question. Had the Company been afforded this oppor- tunity, the argument continues, it would have demonstrated to' the Board's satis- faction that the wage increases were neither retroactive nor intended to influence the votes of its employees. At the hearing in this case the Company sought to introduce evidence relative to the wage increases and the investigation of the case by the Regional Director but was denied such opportunity on the ground that the proffered evidence was not relevant to any litigable issue in the case. The evidence was accepted for the record only by offer of proof and by the inclusion of documents as rejected exhibits. In rejecting the foregoing evidence I was mindful of the attempt by the Company ,to litigate a question concerning which the Board had already ruled, in its Decision on Review and Direction of Second Election. Although the Company offered evidence to show that the facts recited by the Regional Director in his supplemental decision and certification of results of election and relied upon by the Board in its decision were not wholly accurate, the Company concedes that the corrections would have ho special significance in this proceeding. Thus, as I perceived the issue before me at the hearing the Company was not offering what might be regarded as newly discovered evidence which could vitally have affected the Board's decision had this evidence been considered by it, but was seeking to enlarge upon 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or explain the evidence on which the Regional Director and then the Board had relied in making their respective determinations. In effect, as I see it, the Com- pany is challenging the construction placed by the Board on the Regional Direc- tor's recital of facts in his decision. From my consideration of the Regional Director's decision and the Board's decision I perceive no validity to the Company's contention that the Board relied on facts not disclosed by the record in reaching its result. I am satisfied that a plain reading of the Regional Director's decision permits the Board's factual con- clusion concerning the mechanical retroactivity of the wage increases. It is not for me to differ with the reasonableness of the Board's construction of these facts or the conclusion drawn therefrom that the retroactivity of the wage increases affected the results of the election. Nor, as the Board's agent in this proceeding, was it permissible for me to, permit litigation of this determination by the Board. Apart from the Company's defenses implicit in these nonlitigable areas there is no other justification asserted by it for its admitted refusal to honor the Union's certificate and to bargain with it. Accordingly,. I find that by its refusal to bargain collec- tively with the Union for the employees in the appropriate unit with respect to terms and conditions of employment the Company has violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Company had engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the act. It has been found that the Company has refused and still refuses to bar- gain collectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be recommended that the Company bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Belber Manufacturing Corporation is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees, including production and maintenance employees, including shipping and receiving employees and truckdrivers, employed by Belber Manu- facturing Corporation at its Smyrna, Delaware, plant, and all shipping and receiv- ing employees temporarily assigned to Belber Manufacturing Corporation's Wil- mington, Delaware, subwarehouse plant, and excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On May 9, 1962, and at all times hereafter, the Union was and now is the representative of a majority of the Company's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on May 14, 1962, and thereafter to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Company has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within ,the meaning of Section 2(6) and (7) of the Act. BELBER MANUFACTURING CORPORATION 363 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding I recommend that the Respondent, Belber Manufacturing Corporation, Smyrna, Delaware, its officers, agents, suc- cessors, and assigns, shall: _- . 1. Cease and desist from refusing to bargain collectively with International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) On request, bargain collectively with International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, as the exclusive representative of the em- ployees in the appropriate unit and embody any understanding reached in a signed contract. (b) Post at its place of business in Smyrna , Delaware, and at its subwarehouse at Wilmington, Delaware, the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Fifth Region , shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon -receipt thereof, .and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Com- pany to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifth Region , in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply therewith.3 2 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of receipt of this Order, what steps the Company has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with International Leather goods, Plastics & Novelty Workers' Union, AFL-CIO, as the exclusive bar- gaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract . The appropriate unit is: All employees, including production and maintenance employees, in- cluding shipping and receiving employees and truckdrivers at our Smyrna, Delaware, plant, and all shipping and receiving employees temporarily assigned to our Wilmington, Delaware, subwarehouse plant, and ex- cluding office clerical employees, guards, and supervisors as defined in the Act. BELBER MANUFACTURING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced , or covered by any other material. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. Plaza 2-8460, Extension 2104, if they have any question concerning this notice or compliance with its provisions. SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE On October 12, 1962, I issued an Intermediate Report in this proceeding finding that the Respondent, in violation of Section 8(a) (5) and (1) of the Act, had refused to honor the Union's exclusive bargaining certificate and to bargain with the Union as the representative of its employees . Upon consideration of the Respondent's exceptions to these findings and conclusions the Board, on January 14, 1963, ordered the record reopened and directed that a further hearing be held before a Trial Examiner. The precise terms of the Board's order will hereinafter be set out at length. Pursuant to the foregoing order a hearing was held on March 14 , 1963, at Dover, Delaware, before Trial Examiner Thomas N. Kessel with all parties represented by counsel. Full opportunity was granted all parties to present evidence relevant to the matters stated in the Board's order. Provision was made for receipt after the close of the hearing of various exhibits for which exhibit numbers were assigned pro- visionally. Included were Respondent's Exhibits Nos. 15 and 16 and Trial Ex- aminer's Exhibit No. 1. All these exhibits have been physically received and have been incorporated in the record of exhibits in the case.' Briefs have been received from the Charging Party and the Respondent and have been carefully considered. Upon the entire record in the case, and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE ISSUE PRESENTED BY THE BOARD 'S ORDER REMANDING THE CASE FOR HEARING As detailed in the Intermediate Report issued by me in this case, the Regional Director for the Fifth Region, pursuant to his Decision and Direction of Election in Case No. 5-RC-3538, issued August 8, 1961, on September 1, 1961, conducted a representation election in a unit of the Company's production and maintenance em- ployees in which the Union failed to receive a majority of the eligible votes cast. Thereafter the Union filed several objections to conduct by the Company which assertedly affected the results of the election. Objection No. 2, the only one here pertinent, stated The Employer, with the intention of improperly influencing the outcome of the election, did, during the period following the issuance of the Direction of Election, grant a number of individual workers increases so as to put economic pressure upon them and thus secure a vote which was not free and untrammelled. On November 24, 1961, the Acting Regional Director for the Fifth Region issued his decision finding none of the Union's objections meritorious and overruled them all. 1 Trial Examiner's Exhibit No. 1 purportedly contains a summary from payrolls pre- pared by the Company of all employees who, during the payroll period ending August 18, 1961, received an increase in pay rates and who had also received a pay increase in May 1961. The exhibit also lists the names of all employees whose rates were increased in the pay period ending August 18, 1961, as well as their old and new rates. The same information is supplied for the pay periods ending August 25 and September 1, 1961. Copies of the exhibit were sent by the Company to the General Counsel and the Union. The General Counsel has interposed no objection to the receipt of the exhibit. The Union requests the receipt in evidence of the exhibit "if only to prove it is palpably false or that Raises (a witness for the Company) committed perjury." I had suggested the submission of the exhibit by the Company after the close of the hearing and had advised I would re- ceive it in evidence provided the parties stipulated its acceptability. I do not have such stipulations Accordingly I have made my own analysis of the Company's August 1961 payroll records In evidence Although,I have found variations between the data contained in the foregoing exhibit and the payroll records, the Company's summary is substantially in 'accord with these records. I am therefore receiving the exhibit in evidence limited to the summarization therein of the wage increases to employees in August 1961. I shall in this report specifically advert to the variations between the Company's summary and the facts revealed by my own analysis of the pertinent payroll records in evidence. BELBER MANUFACTURING CORPORATION 365 The Union thereupon excepted to the Board which on April 11, 1962, issued its Decision on Review and Direction of Second Election finding merit in objection No. 2. The decision of the Acting Regional Director was ordered set aside and a second election was directed. That election, conducted on May 9, 1962, was won by the Union which was certified on May 18, 1962, as the exclusive bargaining rep- resentative of the Company's employees in the appropriate unit. The Company thereafter refused to bargain with the Union for these employees claiming that the Board had erroneously set aside the results of the first election and that the second election was consequently illegal and a nullity. There followed the complaint in this case by the General Counsel with a resultant hearing before me, the issuance of my Intermediate Report finding the Company's statutory violation, the Company's exceptions to that report,,and, finally, the Board's order remanding the case to me for further hearing. In its April 11, 1962, decision setting aside the first election and ordering a second, the Board, finding merit in objection No. 2, had stated concerning it: The record indicates that over the past several years the Employer has granted periodic wage increases to groups of its employees. One of these increases usually occurs about August of each year. During August 1961, the Employer reviewed its employees' production and service records in order to determine to whom it would grant wage increases, and, recognizing that some of its em- ployees were earning below the new minimum wage, it then determined to grant wage increases to 62 of its 273 employees,. 36 of whom had been at or below the minimum wage. The other increases were either merited or made for the purposes of maintaining established wage differentials which would be upset by the increases to the minimum wage. The new minimum wage law did not become effective until September 3, 1961. However, on August 30, 1961, just 2 days before the election held on September 1, 1961, the Employer granted the wage increases retroactive to August 21, 1961. The wage increases were reflected in the employees' pay which they received on August 30, 1961. The Regional Director found that such payments were made in the normal course of business, and were thereby privileged. We do not agree, as in our opinion, there is no sufficient 'showing that the increases were made retroactive for rea- sons other than the pendency of the election. Accordingly, the Board finds that the granting of the retroactive wage increases, under the circumstances, was calculated to and did interfere with the instant election. We shall, therefore, overrule the decision of the Regional Director, and hereby set the election aside, and direct a second election. At the hearing first held before me on August 7, 1962, the Company sought to introduce evidence concerning the grant of the foregoing wage increases, but was not permitted to do so on the ground that it was thereby seeking to relitigate the question which the Board had passed upon in its consideration of the Union's request for review of the Acting Regional Director's findings. The Company excepted to this exclusion of evidence and the rejection by me of its offer of proof at the hearing. The Board in its January 14, 1963, order reopening record and remanding proceed- ing stated concerning my rulings that it: Has duly considered the Respondent's exceptions to the Intermediate Report, Respondent's offer of proof, the complaint and answer herein, and the entire record in the case, and finds that litigable issues are presented which should be resolved after a hearing before a Trial Examiner. Accordingly, the Board ordered: That the record in the above-entitled proceeding be reopened and that a further hearing be held before a Trial Examiner for the purpose of receiving evidence on the Respondent's practices in granting pay increases, including evidence relating to the particular circumstances surrounding the pay increases granted in August 1961, and the reasons the Respondent accelerated the new minimum wage rates before the September 3, 1961, effective date for the new Minimum Wage Law. The Board further ordered, upon conclusion of the supplemental hearing, the Trial Examiner to prepare and serve upon the parties a Supplemental Intermediate Report containing findings of fact upon the evidence received pursuant to the provisions of the order, and that, following the service of such report upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties were unrestricted in their opportunity at the hearing to present evidence relevant to the questions framed by the Board's order, namely, the Com- pany's practices in granting pay increases, the particular circumstances pertaining to .the Company's August 1961 pay increases, and the Company's reasons for ac- celerating the Federal minimum wage rates scheduled to become effective on Sep- tember 3, 1961. The Company maintained that the Board's order was too broad and that only evidence relating to the alleged retroactive grant of pay increases could permissibly be litigated at this stage' of the case. The Company argued at the hearing and more elaborately in its brief that the breadth of the inquiry ordered by the Board contravened its own procedures for, in effect, the Board now seeks in this unfair labor practice proceeding to conduct an inqury which by its rules and regulations should at an earlier time have been conducted in the representation proceeding in Case No. 5-RC-3538. What the Board is now attempting to do, says the Company, is to correct its error in the representation proceeding committed when it overruled the acting Regional Director's dismissal of the Union's objections to the first election and ordered a second election without a hearing to determine the facts concerning which inquiry is now sought. The only allowable course open to the Board, according to the Company, is dismissal of the instant complaint, reopening of Case No. 5-RC-3538, rescission of its Decision on Review and Di- rection of Second Election, nullification of the election held pursuant thereto, and revocation of the Union's certificate. The Company concludes that the Board's fail- ure to do otherwise and its present broad inquiry as stated in its order remanding the case to me is a denial of procedural due process. The Company further claims it has been denied due process on the ground that it has been prejudiced in the presentation of evidence because in the period from the date of the investigation of the Union's objections to the time of the reopened hearing before me evidence which was formerly available was without its fault lost or destroyed and cannot now be produced. Finally, the Company objects to the Board's order directing me to make findings of fact and conclusions on the ground that the Board's Trial Examiners are traditionally "precluded from making factual or legal findings at variance with those already made by the Board on the same subject matter." The assertion is that I would be inhibited from making findings and conclusions differ- ent from ,those previously made by the Board when it set aside the first election. For the aforestated reasons the Company moves in its brief for dismissal of the complaint. That motion is, denied. As to the insistence that the Board did not pursue its present inquiry through channels provided for in its regulations governing representation cases, I emphasize that the Company in this unfair labor practice proceeding has received the fullest opportunity to present evidence in its behalf and to have its evidence considered under the protection of the very same principles applicable in a representation case. It has been accorded without reserva- tion the same full hearing it would have received in Case No. 5-RC-3538 had the Board on April 11, 1962, remanded the case to the Regional Director for this purpose. That the Company received a hearing under one procedure rather than another is not essential to a determination of the validity of the hearing. What matters is that the Company has been afforded a full hearing as that term was described by the Supreme Court in Morgan v. United States, 298 U.S. 468. As to the Company's claimed disadvantage resulting from the passage of time, I was unable to obtain from Company's counsel at the reopened hearing any, convincing statement that he was unable to present evidence once in existence which was now unavailable and either lost or destroyed without the 'Company's fault. As to the contention that I may be inhibited by the Board's proscriptions in other cases against making findings and conclusions contrary to those previously made by the Board, it should be apparent to Counsel, as it is to me, that the Board's instructions in its remand order direct me to make findings and conclusions based exclusively on the record of the reopened hearing and contain no limiting language to suggest that I am not privileged to depart from prior Board determinations in this case. I have construed the Board's order to mean that I am to make findings and con- clusions based solely on the evidence received at the hearing without regard to other findings and conclusions previously made by the Board or Regional Director. II. THE FACTS SURROUNDING THE AUGUST 1961 WAGE INCREASES As noted, the Regional Director ordered the first election in Case No. 5-RC-3538 on August 8, 1961, and the election was held on September 1, 1961. Concededly, the Company granted wage increases between these dates. The Board found in its decision setting aside the results of the election that the wage increases had been granted "just two days before the election held on September 1." The Com- BELBER MANUFACTURING CORPORATION 367 pany claims this finding is erroneous and has presented evidence to show that the increases were granted at an earlier time. The Board also found that the Com- pany had made the increases retroactive to August 21, 1961, and that the increases were reflected in the pay received by the employees on August 30, 1961.- The Company claims the Board is also mistaken as to the these dates and the implica- tion of the term retroactive as it appears in its decision. The Company has presented evidence supporting this position. I turn to the evidence concerning these matters disclosed at the reopened hearing. ' Louis Polatnick testified that he had been the manager of the Company's Smyrna, Delaware, plant since March 1, 1960. He related that customarily the Company grants increases to its plant employees in July or August of each year. Increases have been granted in other months, he acknowledged, but only "in certain special isolated cases." The reason why this action is taken in July and August, he ex- plained, is that this is the time of 'year when the Company's officials have the opportunity to analyze the wage structure and to obtain recommendations from foremen on an average or overall basis. He claimed this had been the situation before he came with the Company and implied he continued this practice. The record shows that while increases were granted employees in July or August in the years from 1958 through 1961, increases were also granted in other months. For example, wages were raised in October 1959 and 1960, in April 1960, and in May 1961. The Regional Director's supplemental decision in Case No. 5-RC- 3538 lists data showing the Company's grants of merit increases to employees from 1958 through 1961. Except for the August 1961 statistics concerning which evidence was given in the hearing before me, the parties do not contest the accuracy of the information furnished by the Company to the Regional Director relative to the Company's past grants of wage increases. These increases are listed in the following tabulation: Number Number Date Raises of em- Date Raises of em- ployees ployees August 1958------------------- 98 105 July 1960 --------------------- 11 • 141 July 1959--------------------- 48 120 August 1960 ------------------ 36 206 October 1959------------------ 45 149 October 1960 ------------------ 10 * 206 April 1960-------------------- 98 141 May 1961 --------------------- 74 248 `Approximate. Questioned about the sizeable number of employees who received wage in- creases in months other than July and August, Polatnick conceded they were not isolated cases. He could not explain the 45 increases -in October 1959 because this occurred before he came to the Company. He excused his inability to ex- plain the 98 increases in April 1960 on the ground that he had not been involved in this action because of his unfamiliarity at the time with the employees. By October 1960 he admittedly was "getting familiar" with plant personnel, but claimed no recollection of the 10 wage increases granted then. He assertedly could not remember the grant of 74 wage increases in May 1961, although he acknowledged that these increases were necessarily brought to his attention as plant manager and there had to be consultation with him before they were effectuated. Polatnick recalled that in early July 1961 he instructed his assistant, James Wes- sel, to prepare a list of merit increases for plant employees and to process them as in the past. He maintained that one reason for such action at that time was that the new Federal Minimum Wage Law was to become effective on September 3, 1961, and there were some employees whose wages were below the $1.15 hourly minimum who were to be raised to that level. At the same time it was the Com- pany's desire to bring other employees with longer service who were at or above the statutory minimum to higher levels in order to maintain a balanced wage scale throughout the plant. Wessel compiled a list and presented it to Polatnick at the end of the month or in the first week of August. The latter then sent it to the Company's executive offices in New York City, and this may have been done as late as August 7 or 8. Engel, the Company's vice president in charge of produc- tion, approved the recommended list and the increases were then made effective. According to Polatnick the employees who received increases first learned about them when they received their paychecks on August 23, 1961. T44-670--65-vol. 146-25 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Polatnick and Harry Reises , the Company's accounting manager, testified that the payweek for the Company's plant employees runs from Saturday morning to Friday night. Each Friday night the timecards for the week just ended are sent to the Company's New York offices where the payroll is prepared . The checks are then forwarded to the Smyrna plant and are distributed on the following Wednesday. Polatnick related that the wage increases granted in August 1961 were reflected in the paychecks distributed Wednesday , August 23 , and that the employees were paid, at the increased rate starting with the beginning of the weekly pay period ending August 18 . Reises testified that the timecards for those em- ployees who received increases contained a notation that their increases were granted on August 17, 1961. He further testified that consistent with the Company's practice at the Smyrna plant as well as at its other plant in New York City,2 when- ever employees receive wage increases their new rates are paid from the first day of the week in which they become effective. The Company's payroll records in evidence reveal that during the weekly pay period ending August 18, 1961 , 61 employees received increases of 5 or 10 cents in their hourly rates and that the increased rates were effective from the start of this pay period on August 12. Practically speaking, the first working day of that pay period was on Monday, August 14, the increased rates should be regarded as effective from that date.3 The payroll records further show that two employees received 5-cent hourly increases during the pay period ending August 25 which started Monday, August 21 . According to the aforementioned company witnesses these increases were reflected in the paychecks received by employees on August 30. Of the 61 who received increases in the period ending August 18 there were merely 13 whose hourly rates had been below the $1 . 15 Federal minimum rate which was to become effective on September 3, .1961 . Of these, nine were increased from $1.10 to $1.15 per hour, two were increased from $1.10 to $1.20, and two .were increased from $1.05 to 1 . 10. The other 48 who received increases were already either at the $1 .15 rate or above it. One of the two employees whose rates were increased during the pay period ending August 25 was raised from $1 .05 to $1.15. The other was raised from $1.25 to $1.30. Analysis of the Company's payrolls in evidence also shows the following: in the pay period ending August 18 in which rates for 11 employees were raised to or above the new Federal minimum of $1.15, there were 91 additional employees whose rates were less than $1.15 per hour and who did not receive increases. As noted, there were two other employees whose rates were increased in this period from $1.05 to $1 . 10. - The payroll for the period ending August 25 shows only one change in the hourly rates of these 93 employees .4 III. FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS The foregoing evidence satisfies me that the Acting Regional Director in his supplemental decision erroneously found that the Company's August 1961 increases "became effective on August 21, 1961, for the pay week beginning on that date, and "This other plant owned by the Company operates under the name Mado Manufacturing Company. "The Company lists in Trial Examiner's Exhibit No. 1 the names of 65 employees who received such increases in the stated period. I have been unable to find the names of four of these listed employees on the Company's August 11 or 18 payrolls . These employees are Doris Gallagher, Marie Gray, Frances Gaines, and Lois Vosburgh. The Company fur- ther lists Austin Gonce as having received a 5-cent hourly increase during the week end- ing August 18. His name does not appear on the August 11 payroll . It cannot, therefore, be found that his rate was increased as noted on the Company 's summary. The summary further lists Glenna Dutton as having received a 5-cent hourly increase during the pay period ending September 1. The payrolls for that period , and for August 25, however, show no increase for her, whereas the August 18 payroll does show a 5-cent hourly in- crease. Accordingly, I find she received her increase from $1.15 to $1.20 per hour during the pay period ending August 18 4 The rate for Theresa Nagyski was increased from $1.05 to $1.15 per hour. There were additional changes in the payroll for the period ending August 25. The names of 10 of the 93 employees below the $1.15 rate on August 1 18 do not appear on the August 25 pay- roll. Presumably they quit or were otherwise terminated . At the same time 17 new names appear of employees who were presumably hired during this pay period . All these latter employees were paid at rates ranging from $1 to $1.10 per hour. Thus the payroll for the period ending August 25 lists 99 employees whose rates were below the new Federal minimum of $1 15 to become effective September 3, 1961. BELBER MANUFACTURING CORPORATION 369 [that] the increases were reflected in the employees' pay which they received on Wednesday, August 30, 1961." There is in evidence the affidavit of Polatnick's assistant, the aforementioned James Wessel, obtained by the Region's field examiner on November 16, 1961, in the course of the investigation of the Union's objections to the September 1, 1961, election by the Regional Office. In his affidavit Wessel had stated that the increases became effective August 21 for the payweek beginning that date and were, reflected in the pay received' by employees on August 30. Evidently the Regional Director's findings were based on Wessel's affidavit which is clearly inconsistent with the payroll records in evidence. His affidavit must yield to these incontrovertible records. Moreover, the Union's campaign circular dated August 28 refers to the 5-cent increases passed out by the Company to cushion the shock of. the mandatory increases which were to become effective on September 3 by operation of the Federal minimum wage law. I find that the increases were granted on August 17 as related by Reises from his inspection of the employee timecards and were made effective from the beginning of the 'weekly pay period ending August 18, 1961. I further find that the emplyoees received the pay at their higher rates on August 23, 1961. Having relied in its Decision on Review and Direction of Second Election on the foregoing findings of the Acting Regional Director the Board was likewise in error. Moreover, the Board erroneously found that the Company had "granted" the wage increases on August 30, 1961. As stated the increases were granted on August 17, 1961. In overruling the Acting Regional Director's decision finding no merit to the Union's objection No. 2, the Board appears to have been influenced by its finding that the wage increases it believed were granted on August 30, 1961, were made "retroactive" to August 21, 1961. The Board seems to have been persuaded that such retroactivity was regarded by the employees as a payment to induce their votes against the Union especially in view of the finding that these retroactive payments were received by the employees just 2 days before the September 1 election. As I have indicated, the Board relied on erroneous data. Its emphasis on the "retro- activity" of the increases was therefore misplaced. True, the Company granted the increases on August 17 and made them effective from the first working day of the pay period, August 14, 1961. There is, however, nothing abnormal about such practice in any employment relationship. Moreover, as I find from credited testi- mony, it had been the Company's practice to make wage increases granted in a given pay period effective from the first day of that period. Were the Board's preoccupation with retroactivity all there were to this case, I would, in agreement with the Company, find no merit to the Union's objection No. 2. Settlement of this point in favor of the Company does not, however, end the problem. I must still determine, on the basis of the entire record, whether the Company's grant of the August 1961 wage increases was conduct calculated to and which did interfere with the results of the September 1, 1961, election, as found by the Board, and whether the Board correctly set that election aside and directed a second election. For the reasons hereinafter stated I find that the Company's conduct did invalidate the September 1 election and that the Board in setting that election aside and directing a new election reached the right result. The Board has clearly stated that the grant of a wage increase by an employer during the pendency of a representation election is not per se a ground for setting aside the election. In so declaring in United Screw & Bolt Corporation, 91 NLRB 916, 919, the Board added that such action by an employer will be carefully scruti- nized to determine its likely effect upon the freedom of choice of the voting employ- ees. If in the circumstances of the case the Board finds that the granting of the wage increase was intended or was reasonably calculated to interfere with the free choice of employees the election will be set aside. In Bata Shoe Company, Inc., 116 NLRB 1239, the Board noted that while the grant of employee benefits immediately preced- ing an election is not per se a ground for setting aside such election, it will do so absent a showing that the timing of the grant or its announcement was governed by factors other than the pendency of the election. The employer's failure to make such showing provides ground for the Board's holding that the granting of benefits at that particular time was calculated to interfere with the employees in their choice of a bargaining representative. In Glosser Bros., Inc., 120 NLRB 965, the Board expressly placed the burden upon the employer to make such showing in the case. Upon consideration of all the circumstances in this case I am satisfied that the Company has. failed to meet its burden of showing that the August 1961 wage in- creases were not timed or governed by factors other than the pendency of the 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 1, 1961, election. I am convinced that the wage increases were rea- sonably calculated to interfere with the free choice of the employees voting in that election and that the election was therefore correctly set aside by the Board. Polatnick's testimony on the crucial question of the timing of the August increases is so wanting in candor that I am constrained to reject it. I regard as wholly un- believable his claim not to rermember the wage increases granted employees in October 1960 and in May 1961. On its face this testimony is so implausible as to invite total disbelief. By his own concession no increases were granted without his knowledge. I might have been persuaded that he had forgotten the 10 increases of October 1960. I cannot accept his assertion also to have forgotten the 74 increases of May 1961. Furthermore, I believe he was deliberately misleading in his testimony that wage increases were customarily given to employees in months other than July or August only "in certain special isolated cases." It was after Polatnick became entangled in this patently incorrect assertion and realized that the record was com- pletely at odds with this testimony that he fell back on his claims of forgetfulness about the substantial increases granted in months other than July and August. I am satisfied that Polatnick was attempting to create the false impression that the August 1961 increases were granted because it was the Company's practice to grant such increases only in July or August of each year. It is evident from the record of past increases that the Company did, since 1958, grant increases annually to employees in July or August or in both these months in the same year as in 1960. But it is also apparent that from 1959 more increases were granted annually in other months than during July and August. Thus, the pattern of annual in other summer increases was not so clearly established by 1961 that it might be said the employees could reasonably expect them to come in that season rather than during some other part of the year. Certainly, there was not such a clearly defined pattern that the Company's employees could with no explanation whatever reasonably determine that the August 1961 increases, paid to them un- announced 1 week before a representation election, was not for the purpose of win- ning their favor in the election, especially where these increases had been preceded by an even greater number of increases just 3 months or so earlier. In these circum- stances the employees had adequate reason for belief that the Company was by this action attempting to influence their vote in the election. Had the Company not sought to influence the votes of its employees it could easily have avoided this result. If, as Polatnick testified, the August 1961 increases were motivated by the imminence of the new Federal minimum level, the Company could have announced to the employees that this was the explanation for its action. It said nothing. Furthermore, the action could have been postponed until after the election. No compelling reason was shown why the Company accelerated the raising on August 17 of 11 employees whose rates were below the Federal minimum to become effective on September 3, while at the same time it did not raise to this minimum the other 91 employees who were below that level and in- creased the rates for 2 employees to a point still below the Federal minimum. The Regional Director appears to have accepted as valid the claim by Wessel in his affidavit that only those below the $1.15 rate who had worked longer than the Company's probationary period were raised to the $1.15 level on August 17. Polatnick gave no such explanation and there is no other proof in the record to satisfy me that the 91 employees who failed to receive rate increases on August 17 along with the others were probationers. Neither Wessel nor Polatnick gave any explanation for the increase on August 17 of two employees to a rate which was still below the new Federal minimum level. But whether the foregoing 91 employees were probationers or not is inconsequential. The Company was compelled to raise these employees to the $1.15 level on September 3 and, assuming the reliability of Polatnick's claim of intent to maintain a balanced scale throughout the plant, there would thereafter have had to be a much broader readjustment of the Company's wage scale to maintain the desired balance. Accordingly, the Company's explana- tion for its accelerated action on August 17 for a few employees simply does not make sense. I find Polatnick's explanation for the acceleration of the Federal minimum wage for some and the consequent balancing of rates for many others implausible and reject it as untrue. I am certain that the Company's employees who did not even have the benefit of this false, explanation had no idea that the Company was motivated by such considerations rather than its desire to persuade them to reject the Union in the pending election. Because I find that the Company by its conduct in granting the August 1961 increases immediately before the September 1961 representation election among its ECLIPSE MOTOR LINES, INC. 371 employees interfered with their freedom of choice in that election, I conclude that the Board correctly set aside the results of that election and ordered a second election. Accordingly, I reaffirm my findings and conclusions set forth in the Intermediate Report issued on October 12, 1962, in this proceeding and recommend to the Board that it order the Company to comply with the recommendations in that report for action to remedy its unfair labor practices found therein. Eclipse Motor Lines, Inc. and General Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 697, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases Nos. 8-CA-3148 and 8-RC-4932. March 17, 1964 DECISION AND ORDER On November 15, 1963, Trial Examiner John C. Fischer issued his Trial Examiner's Decision in the above-entitled proceedings, find- ing that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Decision. Thereafter, the Charging Union filed exceptions to the Decision and a supporting brief, and the Re- spondent filed a brief opposing the Union's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. The Charging Union excepts to the Trial Examiner's credibility findings, which findings, as stated by the Trial Examiner, constitute the controlling factor in the resolution of this case. We note at the outset the Trial Examiner's basic finding that, "The demeanor of the witnesses on the stand left no doubt in the mind of the Trial Examiner that Respondent's witnesses were telling the truth." It is thus apparent that the Trial Examiner's credibility findings were based in large part on his observation of the witnesses. It is our policy to attach great weight to such credibility findings; and we do not overrule such findings, except where the clear pre- ponderance of all the relevant evidence convinces us that the Trial 146 NLRB No. 42.