The Paymaster Corp.

THE PAYMASTER CORP The Paymaster Corporation and United Steelworkers of America, AFL-CIO. Case 13-CA-7559. June 14,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 16, 1967, Trial Examiner Leo F. Lightner issued his Decision in the above- entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, The Paymaster Corporation, Chicago, Ilinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner : This proceeding was heard before me in Chicago, Illinois, on December 13, 1966, on the complaint of the General Counsel, as amended , and the answer, as amended, of The Paymaster Corporation, herein called the Respondent.' The complaint alleges violations of Sections 8(a)(1) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. ' The charge herein was filed on August 12, 1966 The complaint was issued on October 21, 1966, and amended at the opening of the hearing herein 381 During the hearing I reserved rulings on several motions including Respondent's motions to dismiss the complaint, and portions thereof. These motions are disposed of in accordance with the Findings and Conclusions herein set forth. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation , maintaining its principal office and place of business at Chicago, Illinois, where it is engaged in the manufacture of checkwriting machines . During the calendar year immediately preceding the issuance of the complaint , a representative period, Respondent shipped goods valued in excess of $250,000 to points outside the State of Illinois . During the same period Respondent purchased goods valued in excess of $50,000 from points outside the State of Illinois. The complaint alleges, the answer admits, and I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) by: (1) the conduct of President Hirschberg, on July 22, 1966, allegedly constituting (a) interrogation of employees, (b) demanding that employees present union authorization cards to him, (c) threatening employees with legal action, law suits, and other reprisals, (d) accusing employees of giving false testimony in a previous Board proceeding, or (e) threatening employees with loss of employment; or by (2) Respondent's announcing and placing into effect improved working conditions and wage raises, in the form of (a) a pension plan, (b) an improved hospitalization plan, (c) a suggestion award program, (d) additional holidays, (e) payment of benefits for military reserve duty, and (f) a wage increase, all while objections to an election were pending before the Board. Respondent, by answer, denies the commission of any unfair labor practices. B. Supervisory Personnel and Agent It is undisputed that T. B. Hirschberg, Jr., president of Respondent, is an agent within the meaning of Section 2(13) and a supervisor within the meaning of Section 2(11) of the Act. 165 NLRB No. 33 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Background and Sequence of Events The Union commenced an organizing effort at Respondent's plant on August 24, 1965. On October 26, 1965, the Union filed a charge alleging conduct violative of Section 8(a)(1), Case 13-CA-7219. On November 16, 1965, the Union filed a petition for election, Case 13-RC-10757. On December 15, 1965, the Regional Director issued a complaint, which was withdrawn on December 17, upon the Regional Director's approval of an informal settlement agreement which, inter alia, provided for the posting of a notice. On January 31, 1966, the parties executed a stipulation for certification upon consent election. On February 21, 1966, the Regional Director notified the parties that he had withdrawn his approval of settlement and issued a new complaint. On March 2, 1966, an election was held, in which the Union was unsuccessful. The Union filed timely exceptions to conduct affecting the election, and on March 28 the Regional Director issued his report on objections , resulting in a consolidation of the cases. Thereafter, in April 1966, a hearing was held before a Trial Examiner. On December 15, 1966, after the record in the hearing herein was closed, the Board issued its Decision in the prior case.' The Board found that Respondent had interfered with, restrained, and coerced its employees in violation of the provisions of Section 8(a)(1), in certain particulars, and to remedy these unfair labor practices, the Board ordered Respondent to cease and desist from the following conduct: (a) granting or promising wage increases, a pension or profit-sharing plan, improved hospitalization benefits, a new system for determining and handling employees' grievances, in order to interfere with the employees' choice of a bargaining representative, or as an inducement to reject and refrain from activities in support of the Union; (b) keeping under surveillance, or creating the impression of surveillance, the activities of its employees in support of the Union; (c) interrogating its employees in a manner violative of the Act; (d) threatening plant closure, withdrawal of a cafeteria, or parking lot privileges, if the Union were successful; (e) threatening employees with discharge or with physical violence because of their support of the Union; (f) requiring an employee, Munizza, to publicly read, to assembled employees , an antiunion statement ; and (g) posting notices which modify, alter, or detract from notices posted pursuant to an order of, or agreement with, the Board. The Board, finding that a broad, rather than the customary narrow, remedial order was necessary, in view of the variety of violations found, and the fact that the remedial action provided for in the withdrawn settlement agreement had been found to be ineffective, ordered Respondent to cease and desist from in any other manner interfering with, restraining, or coercing employees in the exercise of rights granted in Section 7 of the Act. The Board further ordered that the notice, which it ordered posted, should be signed personally by President Hirschberg, and vacated the election of March 2, 1966, remanding to the Regional Director the matter of conducting a new election "when he 2 I have taken official notice of the Board's Decision in the case, identified and reported at 162 NLRB 123 3 The Board , in the prior case, denied a motion to reopen and consolidate, requested by General Counsel, asserting that the remand would delay , rather than effectuate , the prompt enforcement of the Order it issued deems that circumstances permit the free choice of a bargaining representative." It is thus patent that the events herein occurred between the time of the hearing and the time the Board's Decision in the preceding case,3 and while some of the matters complained of herein, as constituting unfair labor practices, were being litigated. D. Interference, Restraint, and Coercion 1. The events of July 22, 1966 It is undisputed that Friday, July 22, 1966, was the last day of work at Respondent's plant preceding a closedown for a vacation period. At approximately 2:30 p.m., a number of employees, estimated as between 30 and 40," were in the locker room preparing to leave when President Hirschberg entered and engaged Freeman in a conversation. The conduct of Respondent alleged, in paragraph VI of the complaint, to be violative of the provisions of Section 8(a)(1) of the Act, are premised entirely on the remarks of President Hirschberg at that time. The evidence as to what was said is in dispute and is next considered. Eugene A. Freeman, who has been employed by Respondent for 8 years as a welder, credibly asserted that, while he was engaged in removing items from his locker, Hirschberg entered the room and walked to a point a few feet from where Freeman was standing. Hirschberg advised Freeman that Hirschberg had heard that Freeman was distributing union authorization cards and inquired how long he was going to continue to do this. Freeman responded, "til as long as the United States Government permitted me to this right." Freeman asserted that Hirschberg responded by using a profane word and saying, "This to me and to the United States, the Government, and then, too he said the same word to the Steelworkers Union and to the Labor Board." Hirschberg then demanded that Freeman give him a copy of the authorization card which Freeman had been distributing. When Freeman advised Hirschberg that he was out of cards, Hirschberg asserted a desire to search Freeman. Thereupon, Freeman inquired if Hirschberg had a search warrant, advising Hirschberg that he could not search him Hirschberg became angry and advised Freeman, "If you continue to do this, I will murder you. I mean legally, not physically." Hirschberg then advised Freeman that Freeman had lied while appearing as a witness in the Board hearing, inferentially the preceding case, and that Hirschberg intended to sue Freeman and prove that he had prevaricated. Hirschberg then advised Freeman that Freeman was not an honest man, called him an S.O.B.,S then inquired, "why don't you hit me?" Freeman responded, "Violence is not my way." Hirschberg then stated, "Well, if you can't fight, you'd better get some brains." Hirschberg started to leave, returned, and advised Freeman, "While you're on your vacation you'd better look for another job." Freeman inquired, "Is that a threat?" Hirschberg then asserted, "If you want to advance yourself, your wife and your family, you'd better find some place else to work." Hirschberg ' The estimate of Freeman was 30 to 40, the estimate of Mumzea was 35 to 40, the estimate of Hirschberg was 11 to 13, while Morse gave no estimate I do not credit the estimate of Hirschberg 5 Hirschberg actually used the elongated rather than the abbreviated form THE PAYMASTER CORP. concluded the conversation by advising Freeman that he would be watching him 6 Richard Munizza, who has been employed by Respondent for approximately 3 years as a material handler, corroborated the statements of Freeman, except Munizza did not recite Hirschberg's invitation to Freeman to engage in an altercation, or Freeman's recitation of Hirschberg's reference to the asserted ancestry of Freeman.7 Freeman and Munizza acknowledged that they were among the group actively engaged in the effort to organize Respondent's employees That Respondent was well aware of these activities is adequately demonstrated by the undisputed testimony of these two relative to a meeting of the employees at the behest of Hirschberg, which occurred on January 5, 1966. On that date Hirschberg instructed Munizza to read an antiunion speech which Hirschberg had prepared, at the conclusion of which Munizza volunteered, to the assembled employees in the presence of Hirschberg, "Sign up, this is a lot of balogna." Hirschberg then instructed Freeman to deliver a speech as to why Freeman thought the employees needed a union, which Freeman did. At the conclusion of Freeman's speech, Hirschberg referred to the union employees who were acting as organizers as "nuts."" In arriving at my credibility findings I have considered the demeanor of the witnesses, their candor or lack thereof, the interest of each in the outcome of the litigation, and particularly the penchant of Hirschberg to be evasive and argumentative. Concluding Findings During the hearing Respondent sought to develop, through General Counsel's witnesses, "that Mr. Hirsch- berg sometimes tends to make somewhat outlandish statements." The Respondent also urged during the hearing that there is a distinction between a statement made to an active union leader and a statement made to employees who are totally unfamilar with their rights. Respondent, in its brief, would characterize Hirschberg's initial inquiry of Freeman as to how long Freeman was going to continue his efforts to organize employees, as "an expression of exasperation with respect to Mr. Freeman's persistent efforts to organize Respondent's employees." 6 1 find of no consequence Freeman's assertion that, during this exchange , Hirschberg invited a timekeeper named Hollars to come over and listen to the conversation Hollars did not appear as a witness ' Hirschberg did not dispute the fact of his confrontation of Freeman , or the presence of Munizza and other employees Hirschberg varied his opening remarks to Freeman , initially asserting that lie stated , " I understand you are passing out some kind of cards," then asserting that he stated, "I understand you have been passing some kind of union literature or cards Could you please give me ones" Hirschberg asserted that Freeman responded, "I don't have anymore cards " Hirschberg asserted that lie then stated, "It is very peculiar that you have cards to pass out all the time but not when I ask you for one," to which Freeman made the same response. Hirschberg recited that nothing else was said, then recalled that he had stated, "It's been officially posted on the plant in a notice which all employees knows [sic] the plant is closed at 2 30 and I would like you to be sure that you leave at 2 30." Hirschberg acknowledged using the profanity recited by Freeman but denied making any comment about the Board or the Union Upon prompting by his counsel, Hirschberg then recalled that he did state to Freeman "If you are not happy working here, why don't you go and get another job with some other company, it is 383 Respondent urges that such an inquiry is protected under Section 8(c). 1 disagree. In the Blue Flash case" the Board held that interrogation of an employee , as to union membership, activities , and desires , is not per se unlawful . The Board, in that case, found legitimate reason for inquiry, which was conducted with appropriate safeguards . The Board held that the test is whether , under all the circumstances, interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. In the Johnnie's Poultry case "' the Board stated: The purposes which the Board and courts have held legitimate (permitting interrogation) are of two types: Verification of a union's claim of majority status, to determine whether recognition should be extended-and the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for the trial of the case . The Board further stated: In allowing an employer the privilege of ascertaining the necessary facts from employees in these given circumstances , the Board and courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Thus, the employer must communicate to the employee the purpose of the questioning , and assure him that no reprisal will take place , and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters , eliciting information concerning an employee's subjective state of mind , or otherwise interfering with the statutory rights of the employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. Prior to the Blue Flash case all interrogation was held to be per se unlawful . As stated in the Decision in the Johnnie's Poultry case, that holding has been modified to permit legitimate inquiry , where legitimate inquiry is essential and proper safeguards are established. The incident herein is far from isolated , and, as the Supreme Court has stated, in the Bryan case, supra, where easy to get a job with any company nowadays All you got to do is walk in." Freeman denied that Hirschberg had prefaced his invitation to Freeman to find another job with the words , "If you aren't happy here " Munizza was self-contradictory in first asserting he did not remember any reference, by Hirschberg, to Freeman's liking his job , then he asserted the remark was so prefaced While I credit Freeman's version of what was said, I find the existence or absence of the preface of no consequence Hirschberg acknowledged that Freeman had not made any statement indicating his pleasure or displeasure with his working conditions. To the extent the testimony of Hirschberg is at variance with that of Freeman and Munizza , I credit the latter two s While the events of January 5, 1966, are beyond the Section 10(b) period, the charge herein having been filed on August 12, 1966, the Supreme Court has stated that earlier events may be utilized to shed light on the true character of matters occurring within the limitations period Local Lodge No 1424 IAM, AFL-CIO v N L R B [Bryan Manufacturing Co ], 362 U.S 411 Accordingly, my ruling striking portions of this testimony, developed by Respondent on cross -examination , as neither relevant or material, is vacated 0 Blue Flash Express, Inc ,109 N L R B 591 10 Johnnie's Poultry Co ,146 NLRB 770,775 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurrences within the 6-month limitation period in and of themselves may constitute, as a substantive matter, unfair labor practices, earlier events may be utilized to shed light on the true character of matters occurring within the limitation period, and for that purpose Section 10(b) ordinarily does not bar such evidentiary use of anterior events. No claim of legitimate purpose for inquiry has been advanced herein, rather Respondent has relied upon denial of the use of specific language. I have found the denials untenable, not only on the basis of demeanor but also by reason of the unconvincing nature of the assertions of Hirschberg. The background record is replete with instances of employer hostility to union organization, from which it is reasonable to infer union animus. Absent requisite safeguards or purpose, I find that the interrogation complained of was coercive, not only of Freeman but also the other employees who were witnesses, and thus, constituted interference, restraint, and coercion, and was violative of the provisions of Section 8(a)(1) of the Act. In so finding I incorporate Hirschberg's demand that Freeman surrender a copy of the union authorization card he was circulating, which in the last analysis is also a form of interrogation concerning union activities. Respondent would isolate the "request" from the balance of the conversation and setting. Thus cast, Respondent urges that the request was made of a known, outspoken, and strong proponent of unionization and was thus not coercive. General Counsel correctly casts this event in the light of the entire conversation, including the use of invective, the presence of numerous other employees, whom it may be assumed reacted to Hirschberg's abuse of a fellow employee, his threat to search Freeman, and his advice that he would keep Freeman under observation. The last observation can reasonably be inferred to relate to Freeman's union activities. Relative to the allegations of paragraph VI (c) and (d) of the complaint, i.e., threatening employees with legal action for having given testimony in a Board proceeding, and accusing employees of giving false testimony, Respondent asserts in the alternative that it was "an irrational outburst" having no tendency to interfere with Freeman's Section 7 rights, and that General Counsel did not establish such a threat by a preponderance of the evidence. Respondent's concept of "preponderance" apparently turns on the failure of Munizza to corroborate the assertions of Freeman in toto. I find no merit in this contention. Respondent concedes, and the record reveals, that Munizza did corroborate Freeman's assertion that Hirschberg accused Freeman of having committed perjury at the Board hearing.'' Respondent urges that an accusation that an employee committed perjury is synonymous with "name calling," citing cases where the Board found "name calling" was not violative of the Act. Respondent urges that the accusations of Hirschberg, on July 22, were within the "I find of no consequence the failure of the Trial Examiner, in the prior case, to find an outburst by Hirschberg against Munizza in January violative of Section 8(a)(1). In this connection , it is to be noted that the Board found it unnecessary to pass upon General Counsel's exceptions to the failure of the Trial Examiner to find other alleged conduct violative of this section, for the reason that it would be "merely cumulative." i2 Citing- Certain-Teed Products Corporation, 147 NLRB 1517, 1520; The Duplan Corporation (Forsyth Division), 139 NLRB 1028,1034 General Counsel, to place emphasis on the reasonable privileges provided under Section 8(c). I do not agree. General Counsel correctly urges that Hirschberg's accusations reasonably tend to inhibit the Board's ability to secure vindication of employee rights protected by the Act, and that employer interference with the Board's statutory processes constitutes a violation of Section 8(a)(1) is Accordingly, I find that Hirschberg's statements to Freeman, before an audience of 30 to 40 employees, constituted a threat of reprisal for Freeman's having given testimony in the previous Board proceeding, and his undocumented accusation that Freeman had given false testimony, were, in each instance, conduct constituting interference, restraint, and coercion, and accordingly violative of the proscriptions of Section 8(a)(1) of the Act. General Counsel urges that Hirschberg's advice to Freeman, "If you want to advance yourself, your wife and your family, you better find some place else to work," coupled with Hirschberg's admission that Freeman had said nothing during the conversation to cause Hirschberg to think Freeman was not happy in his job, requires a conclusion that these comments patently communicate a threat of discharge to Freeman for having (1) distributed union literature and (2) given testimony under the Act. Much of Respondent's argument, that this conduct was not violative of the Act, is hinged on Respondent's assertion that Hirschberg prefaced his statement with the observation, "if Freeman did not like his job." Respondent would thus assert that Hirschberg's statement was a mere expression of a "view" or "opinion," if the employee was dissatisfied. The statement of Hirschberg cannot be taken from context or removed from the dialogue which occurred between him and Freeman in the presence of numerous employees. It must be viewed as stated by the court in the Nabors case.13 When statements such as these are made by one who is a part of the company management, and who has the power to change prophecies into realities, such statements, whether couched in language of probability or certainity, tend to impede and coerce employees in their right of self-organization, and therefore constitute unfair labor practices. In the Fort Smith case," the Board reaffirmed earlier holdings that the primary question is whether the statements were inherently coercive in their nature. There can be little doubt that what Hirschberg sought to convey was a not too subtle suggestion that if Freeman wished to improve the economic welfare of himself and his dependents, he should look elsewhere for employment, that Respondent would limit such opportunities. There is not a scintilla of evidence that Respondent was in any manner, or for any reason, displeased with Freeman's work product, or work effort, or competency. Ergo, Freeman's union activities, and his appearance as a witness in a Board proceeding, were the cause of Hirschberg's undisguised ire. It is well established that a consequences of such conduct, correctly asserts that a subpena can require the attendance of a witness but cannot require a witness' ability to recall To illustrate, General Counsel calls attention to the testimony herein of James Morse. Obviously called by Respondent to corroborate the testimony of Hirschberg, Morse asserted that while he was present, he did not hear what was said on July 22 's N.L R B v W C Nabors Co , 196 F 2d 272, 276 (C A 5) Fort Smith Broadcasting Co., 146 NLRB 759, enforcement denied 341 F.2d 874 (C A. 8) THE PAYMASTER CORP. threat of ecomonic retaliation constitutes interference, restraint, and coercion. The Board has stated: If Respondent did not wish the employees to be concerned with these possibilities there was no need to raise them in the first place. Having sounded the alarm, Respondent cannot so easily avoid the effect of its words. Brownwood Manufacturing Company, 149 NLRB 921. Accordingly, for the reasons stated, I find that Hirschberg's statement constituted intimidation and coercion, and contained an implied threat that Freeman's future employment relationship would be adversely affected by reason of Freeman's having engaged in protected activities, and having given testimony in a Board proceeding, and was thus violative of the provisions of Section 8(a)(1) of the Act. 2. Institution of benefits It is undisputed that, by letters of July 15 and August 25, 1966, over the signature of President Hirschberg, Respondent advised its employees that it would institute and place in effect both new and improved working conditions and did so. In the letter of July 15, Respondent advised the employees that: they would learn the details of a promised pension plan, after return from their vacation, which commenced July 22; that Respondent would commence paying 100 percent of the cost of the individual employee's hospitalization plan, as distinguished from 75 percent formerly paid; that compensation for a suggestion box, for meritorious suggestions, would be reinstituted; that a raise in wages, of an amount to be determined, would be effective as of August 8, 1966; that the Friday after Thanksgiving and half a day on Good Friday would be added as paid holidays; that employees who were Armed Forces reservists would be paid the difference between their regular pay and their reserve-duty pay, during the 2 weeks' reserve-training period. The letter of August 25 announced that: the pension plan was being placed in effect as of August 8, 1966; the improvement in the individuals' hospitalization plan had been placed into effect (as of August 1); the installation of a suggestion award program providing $25 for each accepted suggestion would be placed in effect within 2 to 6 weeks; the additional day and one-half holiday, Friday after Thanksgiving and one-half day on Good Friday, were formally declared additional paid holidays; the provision for reserve-training differential, limited to 2-week periods per year, was placed in effect; a wage increase of 10 cents per hour for incentive employees, and 15 cents per hour for hourly employees, was effective retroactively from August 8, 1966. The explanations, of Respondent's witnesses, as to the reasons for the adoption of the enumerated improvements is next considered. 15 I find it important to note that no surveys were presented by Respondent, to substantiate the assertions of Gross and Respondent's other witnesses. Gross did not know what percentage of the participating companies engaged in collective bargaining Gross, who recommended several innovations, made no representation relative to the extent to which any of the fringe benefits , instituted by Respondent in August 1966, constituted a prevailing practice in the metal trade industry No pattern of Respondent having followed such a trade practice in the past is asserted 111 find it unnecessary to evaluate the assertion of Gross that in interviewing applicants for employment, almost a 100 percent of the applicants questioned him relative to the hospitalization plan 385 Robert Gross, personnel director of the Respondent for 7-1/2 years, related that in the spring of 1966, April and May, he began working on a program to provide improved benefits for the employees. Vice President Deanstack was in charge of production, and was Gross' immediate superior until his demise, in August 1965, when he was succeeded by George Williams. Gross asserted that some of the reference material which he customarily examined, and to which he referred in May 1966, were the surveys of the National Metal Trades Association, inferentially a compilation of fringe benefits and wages in existence in an unspecified number of the alleged 200 companies who participated in such surveys.15 Gross asserted he made a number of recommendations to Williams, inferentially in May 1966, but did not recommend all of the improvements Respondent subsequently put into effect. Gross recommended the Respondent improve the contribution it was making to the cost of hospitalization insurance, to 100 percent of the cost of individual plans. Gross explained the literature from the Tool and Dye Institute, and the surveys from the National Metal Trades Association indicated this was becoming more and more popular as a fringe benefit.16 The history of Respondent's insurance program was'set fdrth by Gross. Prior to March 30, 1960, the employees paid the total cost of a Blue Cross, Blue Shield program. At that time, because of an increase in cost, Respondent changed to an insurance program of the Tool and Dye Institute, of which the Respondent was a member, and Respondent started paying 50 percent of the cost, to the extent it covered the individual employees, as distinguished from a family plan. In 1961 the Company assumed 75 percent of the cost of the individual plans. Gross asserted that Respondent previously had granted 6-1/2 paid holidays, which were not identified. Gross related that the office employees had previously been given "time off" on Good Friday and that he recommended that all employees should be given a half day on Good Friday. Gross also asserted that in 1965 Respondent had given the employees the Friday after Thanksgiving as a holiday and he thought it best to add this as an additional paid holiday.17 Gross related that he recommended the provision for supplementary military-reserve duty pay. Gross explained that two of the employees inquired if this benefit could be incorporated in Respondent's policy. Gross asserted that, as a result of this inquiry, he ascertained from Bob Crane of the National Metal Trades, otherwise unidentified, that this benefit was becoming more and more popular, assertedly by reason of a greater number leaving the military service and being required to perform such reserve duty. Gross asserted that he did recommend a wage increase, on the basis that the National Metal Trades survey and over 50 percent indicated their insurance was paid in full by their prior employers. The record is silent as to how many of the new employees, if any, had been previously employed in the metal trade industry. Gross asserted that , in the first half of 1966, Respondent was hiring additional personnel , having started with a normal complement of about 172 and having approximately 208 at the time of his testimony , in December 1966. 171 find it unnecessary to evaluate Gross' assertion that applicants for employment also inquired about Respondent's holiday program. I also find it unnecessary to evaluate Gross' assertion that many prospective employees felt that Respondent was low in lh'e number of paid holidays and so indicated to him. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicated that there had been a wage increase every year. Gross asserted that initially Respondent's supervisors were considering all the way from a 5- to a 10-cent-per- hour raise. Gross related that in early June 1966, he met with Williams, Hirschberg, and three supervisors, Cervak, Vetrovack, and Cesar. Thereafter, about July 1, at a meeting with those named and others,'s according to Gross, the discussion was in terms of a 7-cent-per-hour increase to incentive employees and a 10-cent-per-hour raise to hourly workers, which Gross described as being the same increase they had granted in the previous 2 years, i.e., September 1965 and August 1964. No increase was granted in 1963. According to Gross, there was a further meeting prior to the start of vacations, on July 22, at which time it was decided to wait, "everybody was supposed to give it their utmost thought," and a final decision was deferred until after the return from vacation.iy Gross asserted there was a further meeting of the supervisors, about August 20, at which time Williams suggested following something between a 6 and 9 percent increase. Gross asserted that it was finally determined to place into effect a 5.7 percent increase amounting to 10 cents per hour for incentive employees, and 15 cents per hour for hourly employees. W. M. Williams is a member of Respondent's board of directors, also acts as an advisor in undefined areas, and was a vice president in charge of engineering development until 1961, at which time he inferentially ceased his active daily participation in Respondent's operation, by reason of illness.211 Williams asserted that he was in charge of manufacturing at Respondent's plant, prior to its removal to its present location, in 1956. Williams related that prior to 1956 and thereafter until 1961, Respondent had a suggestion box system and anyone who turned in a suggestion of any kind received $1. If the suggestion had merit, awards ranging from $5 to $25 were granted. I find it reasonable to infer that on an unspecified date between 1961 and 1966 the suggestion awards were discontinued. The recitation of Gross, relative to the institution of awards for suggestions, in September 1966, I find vague and confusing. Gross was self-contradictory in asserting that he was not present when the suggestion system was discussed, and later asserting that all the new benefits were discussed at the June meeting, and all were agreed upon at that time, except the matter of wages.21 Gross also asserted that while the formal plan was installed in August or September 1966, the plan they formerly had was reinstated in January or February 1966, "but we did not have any forms to fill out or anything like that until August or September."22 18 Gross enumerated Jorgen, Reynolds, and Gold, inferentially part of management 10 Gross explained that they were all supposed to read "any article they can," and that lie personally read Business News, Newsweek, and anything else he could get his hands on 20 George Williams, described by Gross as the successor to Deanstack , did not appear as a witness 21 Gross also asserted that Hirschberg instructed him to get information on a formal suggestion plan, prior to the vacation period in July, whereupon he contacted the Morton Suggestion System and obtained "the whole package " 22Gross asserted the informal plan was the result of a suggestion made by an employee to Hirschberg that the suggestion system be reinstated 23 While I find it unnecessary to resolve the credibility of Mages, he asserted the deferring was "approximately 6 months" later and also that it was "in late 1964 " Mages was also inaccurate in relating that Hirschberg was over burdened because the Company had lost its sales manager, V J Walters, that W. M. Williams related that in 1960, as the result of a conversation he had with Hirschberg, he was authorized to obtain information relative to the cost of a pension plan. Subsequently, in the same year it was determined that such an undertaking was too costly and, it can reasonably be inferred, the matter was dropped. Bernard W. Mages is a member of the board of directors and attorney for Respondent. Mages, who is engaged in the practice of law, has represented Respondent since 1934. Mages related that about January 1964, he had a discussion with Hirschberg relative to the desirability of instituting either a pension plan, a profit-sharing plan, or an insurance plan, the latter including a cash-surrender value as an option at retirement. Subsequently, Mages asserted, Hirschberg was overly burdened with company affairs and deferred any conclusion as to which plan should be adopted.'' Mages asserted that in the late spring or early summer of 1965 a pension plan had been decided upon, but they were advised by labor counsel, " that in view of the activities of the Steelworkers Union" they should not grant any benefits at that time as it would be construed as an unfair labor practice.24 Mages asserted that after the election in March 1966, they were advised by labor counsel that it would be proper for them to reconsider and put a pension plan into effect and in May 1966, he revived the matter with Hirschberg. Gross acknowledged that in the preceding 5 years the Company had never placed into effect a package of fringe benefits, or any benefits other than wage increases and the improvement in the insurance program. Asked if he were saying that a bulk or a substantial number of the companies in 'the metal trades business had placed in effect the hospitalization plan, the additional 1-1/2 day holiday, and the military reserve pay, Gross asserted, "That, or it was a growing benefit, it was showing a trend of becoming much more popular."2i Gross acknowledged that he was not saying these benefits were placed in effect at other companies in 1966. Contentions of the Parties and Concluding Findings Respondent asserts the granting of the benefits described was not violative of the provisions of Section 8(a)(1). Respondent concedes the benefits were granted after the hearing in the preceding case and before the Trial Examiner issued his Decision. Respondent advances a variety of reasons why its conduct should not be found to be violative of the Act. They are considered seriatim. Respondent urges that at the time the improved benefits were announced , in August 1966 , Respondent could not Dean Stack had suffered a heart attack , and Williams "took ill, and went more or less into semiretirement " Williams' testimony was that he had retired in 1961 , and did not indicate any modification of his activity as a member of the board of directors and as an advisor thereafter 24 It is noted that the union activity did not commence until August 24, 1965 Mages also asserted that the discontinuance of activity relative to a "plan" was in the summer of 1965 Mages appears to have been self-contradictory in asserting that he continued , thereafter , to discuss the alternative profit-sharing plan and insurance plan with Hirschberg. Thereafter , Mages asserted that they had ruled out an insurance plan or profit -sharing plan "almost at the inception of my discussions with Mr Hirschberg, early in 1964 " 25 Asked if it had been the past practice of the Respondent to issue announcements of improvements in working conditions, Gross first asserted, "We never did it," and later asserted, "Normally it is done at the bulletin board or letter or speech " THE PAYMASTER CORP. 387 have known what recommendation the Trial Examiner would make relative to setting aside the election, and that the granting of benefits during the pendency of objections is not per se an unfair labor practice.26 The cases cited are inapposite, and I findfit unnecessary to consider the per se doctrine. Respondent asserts that General Counsel introduced no evidence of improper motivation. In view of the ruling of the Supreme Court in the Bryan case, supra, and the background herein, considered infra, I find no merit in Respondent's assertion that there is no showing of improper motivation.27 Respondent urges that the fact that the Board has held that Respondent committed unfair labor practices prior to the election does not establish that Respondent announced improved benefits "for the purpose of discouraging employee union activities or support of membership of the Union." Respondent describes the unfair labor practices, found by the Board, in 162 NLRB 123, as "trivial violations." I am unable to agree with the characterization, particularly in view of the Board's adoption of a somewhat unusual remedy, i.e., the issuance of a board order "to undo the effect of the massive and deliberate unfair labor practices committed by Respondent in its successful efforts to frustrate organization by its employees," and the unusual requirement that President Hrschberg personally be required to sign the notice as the principal provocateur. Respondent also urges that it had established a business purpose for the improved benefits, that the pension plan had been under consideration prior to the union organizing efforts, and that the suggestion program was de minimus. Respondent relies on the testimony of Gross that Respondent needed a substantial number of additional employees. The short answer is that Gross did not seek to establish, or represent, that the benefits granted were a prevailing practice in the industry. To the extent it might be inferred that Gross sought to establish the package was essential to attract needed employees, in view of the evidence, particularly the testimony of Mages that Hirschberg was, in effect, fulfilling a preelection undertaking, I would find such an inference untenable. General Counsel urges that in the preceding case the Board found the announcement of a wage increase on October 15, 1965, not September as related by Gross, the promise of a pension plan or profit-sharing plan, and improved hospitalization benefits in September and October 1965, were made in order to interfere with the Union's organizing campaign. The Board also found that after the election, while the objections to the election were pending, on March 29, 1966, Hirschberg's promise that a pension plan was forthcoming was violative of the proscriptions of Section 8(a)(1). General Counsel correctly urges, from the testimony of Respondent's witness Gross, personnel manager, that it is patent and undisputed that the Company had not placed a package of benefits in effect, simultaneously, in the period of 5 years. In the Northwest Engineering case28 the Board, in reversing a Trial Examiner's finding that the granting of a bonus was consistent with established company practice, and was granted after the representation election was held, said: These additional benefits were granted to employees while objections to the May 8 representation election were still pending and unresolved and the possibility that the Board would direct a second election was indeed real. Moreover, the Respondent does not show that the granting of these benefits was governed by factors other than the election. Upon consideration of the entire. record in these cases, we conclude that these benefits were granted as a reward to employees for having rejected the Union and as a further inducement to employees to vote against the Union should the opportunity again arise. As such, the bonus and vacation pay increases constitute further interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. In the Ralph Printing case 29 the Board found: An election under Board auspices to determine a majority bargaining representative does not consist solely of the physical balloting of the employees in the appropriate unit. Necessarily, the vote of the employees and the validity of the election itself must await the Board's post election investigation of objections properly filed with respect to the conduct of the election. In the instant case the Petitioner filed its objections on January 12, 1965, in compliance with the Board's Rules and Regulations. At the time, therefore, when the Employer announced that benefits would be distributed to the employees, the election of January 6 was clearly subject to invalidation if the objections were meritorious. We must therefore view the precipitous haste of the Employer's promise of improvements to its employees immediately after a bare majority had cast physical ballots against the Union as an attempt to gain their support and to assure a continued majority against the union representation in the event a second election was directed by the Board.:10 26 Citing: Champion Pneumatic Machinery Co., 152 NLRB 300, 306-307; General Industries Electronics Company, 152 NLRB 1029, 1042. 27 1n citing N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, Respondent limited its excerpt to: We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not "interfere with" the protected right to organize. Thereafter, at 409-410, the Court observed: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. The danger may be diminished if, as in this case, the benefits are conferred permanently and unconditionally. But the absence of conditions or threats pertaining to the particular benefits conferred would be of controlling significance only if it could be presumed that no question of additional benefits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is tenable. 28 Northwest Engineering Company, 148 NLRB 1136,1145. 29 Ralph Printing & Lithographing Co., 158 NLRB 1353, fn. 3. 20 See also Ambox, Incorporated, 146 NLRB 1520, 1521, in which the Board found the granting of a 10-cent-per-hour wage increase, with knowledge that the Union's objections to the election were still pending undetermined and that there was a possibility that a second election would be directed, was a violation of the Act. The Board held: This announcement, we find, when considered in the light of Respondent's earlier unlawful conduct, was calculated to influence its employees' choice of a bargaining representative in the event of 'a second election. While the court denied enforcement of this particular finding, N.L.R.B. v. Ambox, Inc., 357 F.2d 138 (C.A. 5), with all due respect to the court, I am constrained to adhere to Board Decisions. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the preceding case, 162 NLRB 123, the Board adopted findings that the grant of a wage increase in October 1965, and a promise of a pension or profit-sharing plan and improved hospitalization benefits in September and October 1965, were made in order to interfere with the Union's organizing campaign, and were violative of Section8(a)(1). The Board also adopted findings that on January 28, 1966, in a conversation with Marian Grathouse, Hirschberg advised her that he had given the employees a raise "which the Union did not want them to have," and was working on a pension plan, and that after the election was decided one way or the other, "if the Union was defeated," the employees would receive everything he had promised them in 3 to 6 months. This conduct was found violative of the Act. The Board adopted findings that on March 29, 1966, while the objections to the election were pending, at an employees' meeting, Hirschberg exhibited a purported check in the amount of $50,000, which he said was a deposit toward the pension plan which, like other promises, would be forthcoming. This conduct was found to be violative of the Act. The institution of the suggestion box system in January 1966, coupled with the fact that only President Hirschberg had the key to the boxes and would personally review all suggestions, was aptly described by the Trial Examiner as, "Its effect can reasonably be said to be that employees could now have a direct pipeline to the President of the Company, and to encourage them to use that approach rather than relying on outside representatives to present their grievances." Accordingly, for the reasons stated, I find that the announcement of and the placing in effect of the package of benefits, including those which had been promised during the union campaign and were the subject of the prior litigation, when considered in the light of Respondent's earlier unlawful conduct, was calculated to influence Respondent's employees' choice of a bargaining representative in the event of a second election and, thus, constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. General Counsel has urged , in his brief, that a broad order, as distinguished from a customary limited order, be recommended . In the preceding case the Board adopted the Trial Examiner's finding that the conventional remedy would be inadequate "to undo the effect of the massive and deliberate unfair labor practices committed by Respondent in its successful efforts to frustrate organization by its employees." Herein , we are confronted with the unusual situation of a respondent placing into effect certain previously promised benefits at a time when the promises themselves were being litigated as violative of the Act, by reason of the context in which they were made. The Board is thus confronted with a fait accompli certainly bordering on, if not constituting , defiance of its processes. I agree with General Counsel that a broad order should issue and, as found in the previous case, President Hirschberg should personally be required to sign the "Notice." It is therefore recommended that Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in the above section entitled "Interference, Restraint, and Coercion," to the extent therein found, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that the Respondent , The Paymaster Corporation , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union membership , activities, and desires , or demanding copies of a union authorization card being circulated by an employee, in a manner violative of Section 8(a)(1) of the Act. (b) Threatening employees with legal action for having given testimony in a Board proceeding or, without cause, accusing an employee of giving false testimony, in a manner impinging upon and constituting interference with the Board's statutory processes , in violation of Section 8(a)(1) (c) Threatening employees with economic retaliation by reason of their having engaged in union activities, or, alternatively , for their having given testimony in a Board proceeding. (d) Granting or promising wage increases , a pension plan, improvement in the individual cost of a hospitalization program , the establishment of or improvement of a suggestion box program , the addition of paid holidays , or the improvement of other fringe benefits, in order to interfere with the employees ' choice of a bargaining representative , or as an inducement to the employees to reject or refrain from activities in support of United Steelworkers of America, AFL-CIO, or any other labor organization. (e) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self- THE PAYMASTER CORP. organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its plant in Chicago, Illinois, copies of the attached notice marked "Appendix. 9'31 Copies of said notice, to be furnished by the Regional Director for Region 13, after being duly signed by President T. B. Hirschberg, Jr., shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, ,including all places where notices on each of Respondent's bulletin boards are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps it has taken to comply with the foregoing Recommended Order. IT IS FURTHER RECOMMENDED that unless within 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent shall notify the said Regional Director, in writing, that it will comply with the foregoing Recommended Order'32 the National Labor Relations Board issue an Order requiring the Respondent to take the aforesaid action. 91 In the event that this Recommended Order is 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 is 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 Decision and Order." 33 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent 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 National Labor Relations Act, as amended, we hereby notify our employees that: 389 WE WILL NOT interrogate our employees concerning their organizational efforts, or demand copies of union authorization card being circulated by an employee , in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with legal action for having given testimony in a Board proceeding, or accuse an employee of giving false testimony, in a manner impinging upon and constituting interference with the Board's statutory processes , and in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with economic retaliation by reason of their having engaged in union activities, or alternatively , for their having given testimony in a Board proceeding. WE WILL NOT grant or promise wage increases, a pension plan, improvement in the individual cost of a hospitalization program, the establishment or improvement of a suggestion box program , additional paid holidays , or the improvement of other fringe benefits in order to interfere with our employees' choice of a bargaining representative , or as an inducement to reject or refrain from activities in support of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to join or assist United Steelworkers of America , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees have the right to join , or not to join, United Steelworkers of America , AFL-CIO, or any other union. THE PAYMASTER CORPORATION (Employer) Dated By T. B. Hirschberg, Jr., President 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 S. Dearborn Street, Chicago, Illinois 60604, Telephone 353-7597. 299-352 0-70-26