Great Plains Steel Corp.

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Great Plains Steel Corp. and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 307. Cases 27-CA-2708 and 27-RC-3560 June 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 25, 1970, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . Thereafter Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and General Counsel filed an answering brief to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, and' the entire record in these cases, 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 adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Great Plains Steel Corp., Cheyenne, Wyoming, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner, to which the Respondent has ex- cepted, alleging that the Trial Examiner was biased and prejudiced After a careful review of the record, we conclude that the Trial Examiner 's credi- bility findings are not contrary to the clear preponderance of all the rele- vant evidence Accordingly, we find no basis for disturbing the Trial Ex- aminer's credibility findings in these cases , and reject the charge of bias and prejudice Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F2d362(CA 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner: Upon an original charge filed May 1, 1969,' amended June 16, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 307 (hereinafter called the Union), against Great Plains Steel Corp. (hereinafter called Respondent), alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, a complaint was issued against Respon- dent on July 2, alleging, as amended, violations of Section 8(a)(1) and (3) of the Act. On the same-day in Case 27-RC-3560 the Re- gional Director for Region 27 directed a hearing before a Trial Examiner on the Union's objection to conduct affecting the results of the election and on the granting of wage increases by Respondent, and directed that such hearing be consolidated with the hearing on the complaint and that thereafter Case 27-RC-3560 be transferred to and continued be- fore the Board. The objections consolidated for hearing with the complaint are limited to the period from February 3, the date of the filing of the peti- tion, to April 25, the date of the election.' Respon- dent's answer as amended denied the alleged unfair labor practices. Pursuant to due notice, this consolidated proceeding was heard by me at Cheyenne, Wyom- ing, on August 19 and 20 and September 30. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, a wholly owned subsidiary of Om- steel Industries, Inc., of Omaha, Nebraska, is a Wyoming corporation engaged in the business of metal fabrication and the sale of various materials with its principal office and place of business at Cheyenne, Wyoming. During the past year it derived gross revenue in excess of $500,000 from its business operations and purchased and received in Wyoming more than $50,000 worth of goods directly from points outside the State of Wyoming. Respondent admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. ' All dates hereinafter refer to 1969 unless otherwise indicated Ideal Electric and Manufacturing Co., 134 NLRB 1275 (1961) 183 NLRB No. 96 GREAT PLAINS STEEL CORP. 969 III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues This consolidated proceeding involves nine al- legations of interference , restraint, and coercion, alleged also to be for the purpose of destroying the Union's majority status and evading Respondent's obligation to bargain collectively with the Union, alleged discriminatory withholding of approved wage increases from employees because of their union activities, and the objection to conduct af- fecting the election , i.e., promising wage increases to the employees if they would reject the Union in the election. The issues as framed by the pleadings and the ob- jection are: (1) interference , restraint, and coercion by (a) telling employees that previously approved wage increases were being withheld because the Union had filed an election petition ; (b) telling em- ployees that their wage increases were being withheld because of their union activities; (c) promising employees new and improved insurance benefits to induce them to vote against the Union; (d) threatening employees with plant closure if the Union succeeded in organizing them; ( e) promising employees pay raises and other benefits if they voted against the Union ; (f) promising employees pay raises as soon as the Union 's objections to con- duct affecting the results of the election were disposed of; (g) granting pay raises on two occa- sions to certain employees in fulfillment of its promise to do so if the employees voted against the Union; and (h ) requesting employees to sign state- ments prepared by Respondent disavowing its com- mission of alleged unfair labor practices; and (2) discriminatory withholding of -approved wage in- creases from its employees because of their union activities. At the conclusion of the case -in-chief, the General Councel's motion to dismiss paragraph 8(c) of the complaint, alleging that Respondent promised its employees new and improved in- surance benefits to induce them to vote against the Union, was granted. A subsidiary issue is -whether the allegations of the complaint, including the alleged discrimination in violation of Section 8(a)(3) of the Act, are suffi- ciently supported by the charge , as amended , alleg- ing violations of Section 8(a)(1) and ( 5) of the Act, in the light of the requirements of Section 10(b) of the Act. B. Chronology of Events Respondent is a wholly owned subsidiary of Om- steel Industries , Inc., an Omaha, Nebraska, cor- poration . Respondent's only officials in Cheyenne were Russell A. Clark, the plant manager , and John Gilmore , the plant superintendent or foreman under Clark. In addition, Al Mininni , Omsteel's contract sales manager , was designated as coor- dinator of Respondent and as such was Clark's im- mediate supervisor . Bert J . Baines, Omsteel's vice president in charge of production , was Mininni's immediate supervisor . Richard T. Kingslan was Omsteel's personnel manager. According to Respondent , it never granted general or across-the-board wage increases but only granted wage increases based on merit to individual employees, and in doing so did not consider all or a group of employees at any one time for such in- creases. Gilmore, as the employees ' immediate su- pervisor and foreman, recommended such in- dividual merit increases to Clark after consultation with him . Thereafter Clark transmitted his recom- mendations to Mininni , who in turn transmitted his recommendations for approval by Baines. Sub- sequently , Omsteel 's personnel department would put such increases into effect. Clark succeeded Mininni as Respondent 's plant manager on November 1, 1968, but Mininni did not leave Cheyenne to return to Omaha until January. As a result Mininni was available for consultation with, and did consult , Clark and Gilmore concerning pay raises in December and early January. In December 1968 or early January , Respondent approved wage increases for 10 of its then approximately 20 production and maintenance employees , to be ef- fective partially in February and partially in March. This fact was not announced to or known by the employees until later. The record establishes that throughout the entire period in question the employees' primary concern was in securing an increase in wages . On or about January 25, a majority of Respondent 's production and maintenance employees requested Johnny D. Spears, the Union 's secretary and treasurer, to or- ganize Respondent 's employees. Spears advised them that before he would even consider organizing the plant they would have to pay their initiation fees and 1 month's dues, to think it over carefully, and to return within 1 week after they had made up their minds . On or about February 1, at a second meeting with Spears , 15 of the employees signed unambiguous authorization cards, which stated only that the signer authorized the Union to represent him as his collective -bargaining agent . The 15 also signed applications for membership in the Union, and a substantial majority paid their initiation fees and 1 month 's dues and signed checkoff authoriza- tions for subsequent dues . Respondent had approxi- mately 20 production and maintenance employees at that time , including 1 plant clerical in charge of material inventory. Respondent contends that the above -discussed wage increases were not finally approved by Om- steel until mid or late February , but the record establishes, based on the testimony of Respondent's officials, that such wage increases were approved prior to Respondent 's knowledge of the employees' union activities, including the filing of the petition, which occurred after the approval and before the planned effective dates in February and March. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, even if finally approved in mid-Februa- ry, the record establishes that Respondent thereafter withheld such approved wage increases from the employees until June because of their union activities and the filing of the representation petition. Whatever the effective date of approval, Respondent admitted that it thereafter withheld such wage increases from the employees because of their union activities, including the filing of the petition, and frequently so advised the employees. When called originally as an adverse witness, Clark testified that these wage increases were de- cided on in December 1968 by himself, Gilmore, and Mininni, to be effective, some in February and some in March, to approximately 9 or 10 of the em- ployees. In a written statement furnished to the Board by Respondent's attorney, John E. Tate, prepared by him in consultation with Clark, Tate stated that the pay raises had been determined in January and had been held up thereafter because of his legal advice of the possibility of the Union using them as the basis for unfair labor practice charges or filing objections to the election if it lost. Respon- dent offered no evidence concerning, nor does the record establish, the specific dates in February and March on which the individual employees would have received these wage increases if they had not been withheld. Gilmore testified that in January shortly after the first of the year he was advised by Clark that the raises which had already gone to the home office would have to be withheld on account of the employees' union activities. Frank Roper, who acted as supervisor in Gilmore's absence, testified that everybody was scheduled to receive a raise when the union activity began around the first of February, but that Gilmore had informed him then that the raise could not be granted because of the union activity. When recalled as a witness for Respondent more than a month after the original hearing, Clark, con- trary to his original testimony, testified that he, Gil- more, and Mininni had decided in early January to grant these raises, they were not approved by Om- steel until late February, and they were to be granted to the employees on various unspecified dates in February, March, April, and May. I do not credit Clark's testimony as changed at the second hearing. On cross-examination Clark again ad- mitted that the wage increases had been decided on in either December 1968 or January. Clark also ad- mitted that he informed Gilmore that the wage in- creases had been approved but that they could not be granted because the Union might file unfair labor practice charges. I am satisfied and I find that these wage increases, subsequently granted to 10 employees on or about June 13, were finally ap- proved by Respondent sometime in January, prior to Respondent's knowledge of the employees' union activities which Respondent acquired on or shortly before the filing of the petition by the Union on February 3, and that thereafter Respondent withheld such previously approved wage increases because of the employees' union activities, includ- ing the filing of the petition, in turn because of the possibility of unfair labor practice charges or the filing of objections to the election. On or about February 10 Gilmore informed Jim- mie Lee Hite, one of the employees, that Hite had a 10-cent-an-hour raise in the office approved by Respondent but that he had "messed things up" and that Respondent would not be able to release it to him because of the employees' union activities. Hite explained that Gilmore said this because he had been promising Hite a raise since before the prior November. Gilmore admitted discussing the subject of raises during late January and early February with a number of the employees although he could not recall any specific individuals, includ- ing Hite . According to Gilmore, he told each em- ployee with whom he talked about wage increases that he had been informed by Clark that Respon- dent's attorney had advised Respondent to make no changes at that time. However, in an affidavit taken by Respondent and offered in evidence by the General Counsel, Gilmore testified that he had told employees: "As to pay raises, I have said that we were about to put raises into effect when this union matter came up, but our lawyer advised us that if we did, the unions might use it as a basis for filing an unfair labor charge or objections to the results of an election. I think I said this sometime in February or March of 1969." Gilmore flatly con- tradicted this sworn statement, testifying at the hearing that he had not told employees this, and that the wage increases had not been approved. Gil- more also testified that he had no knowledge of the Union's election petition, but did have knowledge of the union activity, which tends to corroborate Hite's statement. Contrary to Gilmore, Clark testified that he told Gilmore that the wage in- creases had been approved but that they could not be granted because of the employees' union activi- ties and the possibility of unfair labor practice charges. I credit Hite and do not credit Gilmore, who was substantially impeached by his own af- fidavit. The representation hearing was held March 3. On the evening of April 8 Respondent held a dinner at a Cheyenne hotel to which all of its employees were invited, one of the purposes being to explain certain changes in Respondent's group insurance program as of the prior December which were not thoroughly understood by the employees. Approxi- mately half of the employees attended. After dinner, speeches were made by Kingslan, Baines, Mininni, and Tate. Kingslan explained the changes in the group insurance program, and then in- troduced Baines . Baines discussed the history of Omsteel and Great Plains and his role as a labor negotiator for Omsteel. He and all of the sub- sequent speakers made plain to the employees that Respondent was opposed to the Union and did not want the employees to vote for it in the forthcom- ing election. Both Baines and Mininni stressed the GREAT PLAINS STEEL CORP. 971 desirability of the employees negotiating directly with Respondent instead of through the Union. Either Baines,- Minnini , or Tate gave several exam- ples of specific companies ' having gone out of busi- ness as a result of union organization and sub- sequent strikes. Mininnhi, who actually started Respondent as a subsidiary of Omsteel , spoke of its early history and stressed the desirability of the em- ployees' working with Respondent and not through the Union, informing them that they would do better negotiating directly with Respondent rather than through the Union . Tate, who tape recorded his speech and so advised the audience, also stressed the reasons why Respondent was opposed to the Union and wanted the employees to vote against it, informed the employees that Respondent would negotiate with the Union in good faith if it were selected, but that negotiations could take up to 2 years before a contract was reached, and in- formed the employees of a specific company in Cheyenne, which he had represented as attorney, where a union had been selected, ensuing negotia- tions reached an impasse because of the union's in- sistence upon a checkoff provision , a strike ensued, and the company subsequently shut down and went out of business, with the result that all of the em- ployees lost their jobs. After the speeches, the gathering broke up into smaller groups and a number of conversations and discussions ensued between the employees and Respondent 's representatives, including Clark and Gilmore as well as the speakers . Because of the reference during the speeches to the closing of other plants as a result of union organization, the subject of Respondent closing its Cheyenne plant came up. Mininni told a number of the employees that Omsteel had gotten along without Respondent for 50 years and no doubt could do so again if it had to if things got too tough . Both Clark and Mininni admitted the foregoing. On cross -examina- tion Mininni admitted that he had no knowledge of any consideration by or possibility of Omsteel's closing Respondent's plant. During the conversations after the April 8 dinner meeting, Mininni told several of the employees that they had a dime-an-hour raise waiting for them in the office and that they would do better by going along with Respondent and could get an additional greater raise by negotiating directly with it instead of working through the Union . Both Mininni and Gilmore told the employees that there was an ap- proved raise in the office but that it could not be given out because of their union activities and the possibility of unfair labor practice charges against Respondent . Mininni told Mickey Barnhart, an em- ployee, who asked why he had not received a raise • promised in December, that he had gone down on Friday or Saturday and joined the Union, on Mon- day the raise came in, and he would have received it if he had not joined the Union. This statement was not denied by Mininni . February 1, the date the employees signed their authorization cards and ap- plications for membership in the Union, was a Saturday. Reference was made to the raise being 10 cents an hour. Mininni also told the employees that if the Union wasn't voted in their raises would be released immediately . When some of the employees asked what they could do about the Union after they had proceeded that far, Tate replied that they could all sign a withdrawal statement and submit it to the Union. Mininni admitted that many of the employees asked about the pay raises "in the of- fice" and when they would receive them and stated that he replied that Respondent 's attorney had ad- vised it not to release these pay increases because such action could be the basis for filing an unfair labor practice charge or objections to the forthcoming election. On or about April 17, Clark called James N. Ben- son, another employee, to Clark 's office and told him that the employees ' raises had been approved but that they could not get them as long as the union activity was going on . The election was held at the plant on the morning of April 25 . Approxi- mately 30 minutes prior thereto , nine of the em- ployees were engaged in a group discussion in the shop. Benson said to the others that he was going to talk to Mininni, who was in the shop , before Ben- son made up his mind how to vote, and ask him about their raises. The employees could see but not hear Benson talk to Mininni. Benson asked Mininni how soon the employees could get wage increases if the Union lost the election . Mininni replied "im- mediately." Benson returned to the group of em- ployees and told them that Mininni had said that they could get the wage increases of from 20 to 30 cents an hour immediately provided the Union lost the election , an apparent reference to the greater raises promised by Respondent to the employees at the April 8 dinner in addition to the raises already approved but not released if they voted against the Union. Mininni denied telling Benson that the employees would get an additional raise if they voted against the Union , but admitted replying to him that if the employees voted against the Union in his opinion the approved raises could be released immediately. I credit Benson and the other employees . Fifteen employees voted , four for the Union, eight against, and three challenged ballots . Immediately after the results were announced in the plant that morning, Tate advised all of the employees who had voted that the approved raises in the office could not be released until 7 days after the election. (Under the Board's Rules, including the intervening Saturday and Sunday , the Union had 7 days within which to file objections to the election.) Some of the em- ployees understood Tate to say that there would have to be a 7-day waiting period before Respon- dent could talk to the employees about raises. By this time all of the employees knew that there was an approved wage increase waiting "in the office." On May 1, the Union filed an objection to conduct affecting the election, alleging that Respondent 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promised a wage increase to the employees if they would vote against the Union , and an unfair labor practice charge to the same effect alleging a viola- tion of Section 8(a)(1). Although Respondent had promised the em- ployees that the previously approved wage in- creases would be released immediately or shortly after the election if the Union lost and had promised additional more substantial wage in- creases if the employees voted against the Union, Respondent took no action with respect to such wage increases during April and May. As a result a number of the employees became dissatisfied and from time to time complained to Respondent's offi- cials concerning their promised pay increases. On June 11 , 10 of the employees signed authorization cards for the Union, the same form as that signed February 1. There were then only 14 production and maintenance employees in the unit, 7 having left Respondent 's employ and 1 additional em- ployee having been hired . Thus the Union again secured the signatures of a substantial majority of the employees in the unit. As a result of the em- ployees' continued complaints concerning their promised wage increases, on June 11 or 12 Minin- ni, Clark, and Gilmore met with three of the em- ployees, Hite, Barnhart, and George Riedel, con- cerning wage increases . According to Respondent, the employees were trying to persuade it to grant wage increases so that it would not lose its good employees, but no agreeement was reached with respect thereto . According to Hite, whom I credit an d whose testimony in that regard was undenied, the employees kept after and met with Respon- dent's officials to ascertain why the wage increases which had been promised immediately after the election had not been released . It may well be, as Respondent contends, that some of the employees were threatening to quit because they had not received the promised wage increases. Subsequently Clark had the three employees sign an affidavit concerning that meeting to the effect that they asked Respondent to grant wage increases so that it would not lose good employees and that no agreement was reached . Hite testified that Clark asked them to sign such an affidavit to help him get out of a bind . Clark admitted that he told the three employees when he requested them to sign the af- fidavit that Respondent had been charged with an unfair labor practice and wanted to formulate or come up with some facts of its own to show that it. was not guilty as charged . Whatever occurred at that meeting on June 11 or 12, on June 13, retroac- tive to May 5, Respondent granted the wage in- creases of 5 and 10 cents an hour previously ap- proved in January to 10 of the 14 employees in the unit. Clark identified nine of the employees who received the wage increase on June 13 retroac- tive to May 5 . Roper subsequently testified that he also received that wage increase although he had not been named by Clark in his testimony. All of the 10 employees received an increase of 10 cents an hour except 2, who received 5 cents an hour. I find that this increase was granted pursuant to Respondent's promise to release the previously ap- proved wage increases after the election if the Union lost, and was granted at a time when Respondent knew that the Union 's objection to the election was pending. On June 16 the Union filed an amended charge, alleging a refusal to bargain in violation of Section 8(a)(5). On June 24 Spears presented Clark with the 10 authorization cards signed June 11 and requested recognition and bargaining. Clark refused to look at the cards, said that he was without authority and refused to bargain , and sug- gested that if Spears desired to explore the matter further he contact Tate . Later that day Clark sent Spears a telegram stating that Respondent had a good-faith doubt that the Union represented a majority of its employees because a majority had voted against it on April 25. Spears did not contact Tate. On June 26 Clark asked substantially all of the employees to sign previously prepared identical af- fidavits containing certain facts, conclusions, and self-serving declarations with respect to Respon- dent's position concerning some of the incidents in- volved in this proceeding. These affidavits were prepared in advance by Respondent 's attorney and did not constitute facts elicited from the employees, i.e., their knowledge of what had occurred with respect to the various incidents . Clark summoned each of the employees individually to his office, asked him to read the statement and sign it if he agreed with it, and informed him that the signing was voluntary. Clark did not advise the employees as to the purpose of the statement or assure some of them that no reprisals would be taken against them for refusing to sign . Apparently Clark told some of the employees that there would be no reprisals whether or not they signed the affidavit. When originally called by the General Counsel Clark testified that he told the employees only that he wanted them to read it and would like them to sign it if it was true. Clark testified that the af- fidavits constituted a compilation of Respondent's interpretation of what some of the charges against it were and Respondent's position as to what oc- curred during the time period covered , and that it wanted to ascertain if the employees actually be- lieved the charges . Eleven of the employees signed the affidavits, two making a few brief modifications in the margin . George Riedel refused to sign. After the statements were signed they were sworn to be- fore Clark's secretary, a notary public. The record establishes that at that time all of the employees knew that Respondent had under con- sideration wage increases as previously promised, and that under such circumstances they were un- willing to curry disfavor with Respondent by refus- ing to sign the affidavit, even though a number of them disagreed with certain statements therein, as evidenced by their subsequent testimony at this GREAT PLAINS STEEL CORP. 973 hearing. Nine of the eleven employees who signed the affidavit subsequently received a pay raise. One of the other two had left Respondent's employ. George Riedel, the only one who refused to sign the affidavit, did not receive the subsequent pay raise. Hite testified that at the time Clark requested him to sign the affidavit the employees were expecting to get their raises, Respondent was asking about their company attitude and what they knew, and he figured that if he didn't sign the statement he wouldn't get his raise. Lewis Lyon, no longer employed by Respondent, testified that he signed the affidavit after making two corrections in the margin because he felt that it really didn't say anything of consequence, it was ambiguous, and it stated no real facts as he knew them. He testified that he felt the affidavit would do him no harm and would do Respondent no good. As with many of the others, Clark did not advise him as to the purpose of the affidavit or assure him that there would be no reprisals, but did advise him that his signing was voluntary. During their conver- sation Lyon asked Clark why he had not released the raises which had been promised and were "in the office." Clark replied that he could not release them on advice of Respondent's attorney because of the pending unfair labor practice charges. Lyon told Clark that Lyon understood from a Board agent that the raise could be given if it was for the purpose of retaining employees and suggested that Clark get somebody to witness telling the em- ployees about the raise. Clark replied that he had not thought of doing that. Clark, when recalled by Respondent after more than a month's interval, stated, contrary to his original testimony, that he had told the employees the purpose of the affidavit, i.e., the pending investigation by the Board, assured them that there would be no reprisals whether or not they signed, and informed them that their sig- ning was voluntary and that they should sign only if they agreed that it was true. I credit the employees' and Clark's original statement concerning the cir- cumstances surrounding the signing of the af- fidavits. Later the same day Clark had Hite, Barnhart, and George Riedel sign the affidavit concerning the June 11 or 12 conference about wage increases they had with Clark, Mininni, and Gilmore, hereinabove discussed and found, including the statement that the employees were requesting wage increases so that Respondent would not lose its good employees, one of the suggestions Lyon had made to Clark earlier that day. As Clark then told Hite and testified herein, Clark had this affidavit signed because he wanted to formulate or come up with some facts to show that Respondent was not guilty of the unfair labor practices charged. On or about June 27, Mininni called Hite to the office and asked him whether all of the employees would be happy if Respondent gave everybody a 20-cent raise in addition to the raise which had al- ready been given. Mininni advised Hite that Respondent would be keeping its promise to the employees if it did this. Hite replied that some of the men would be satisfied and others would probably take the money and go with the Union anyway. Hite testified that Mimnm was supposed to give the employees a definite answer that same day concerning this second raise , but decided to withhold it for a few days. Although Mininni testified that he never promised a wage increase to anyone, he did not deny this specific conversation with Hite. On June 27 Clark invited Spears to Clark's of- fice, at which time Clark had Hite and Barnhart present for the purpose of witnessing the conversa- tion and subsequently informing all of the other employees concerning it. This likewise followed one of the suggestions made to Clark by Lyon the preceding day. Clark asked Spears if the Union had any objection to Respondent granting the em- ployees a wage increase. There was no mention of when, how much, or which employees. Spears replied that the Union had no objection whatever. Clark admitted that he had discussed the raises with Gilmore and Mininni before talking to Spears, and that he wanted Hite and Barnhart present to verify that what he told them about the wage increases was true. Later that day Spears sent Clark a letter, received by Respondent July 1, stating that, while the Union had no objection to Respondent granting a wage increase to its employees, the Union con- sidered itself their bargaining representative and requested that, before any changes in terms and conditions be made, Respondent discuss them with the Union. Respondent did not contact the Union again with respect to raises. On July 18, Respondent granted wage increases retroactive to June 29 in amounts varying from 10 to 30 cents an hour to 9 of the 13 employees remaining in the unit. Respondent con- tends that these raises were for the economic pur- pose of not losing its employees because of its com- petitively low wages, as stated in the affidavit which Respondent prepared and had Hite, Barnhart, and Riedel sign after their conference with Respondent about wage increases. In support of this contention, both Clark and Mininni testified that after June 12 or 26 Respondent lost about half of the production and maintenance employees then on its payroll. Clark testified that after June 26 Respondent lost at least half of the 14 production employees then em- ployed. Mininni testified that, after the wage con- ference with Hite, Barnhart, and Riedel on June I 1 or 12, Respondent lost over half of its production employees. On the contrary, Respondent's records, as prepared by Respondent and introduced by the General Counsel, establish that after June 12 or 26 Respondent lost only one of the production em- ployees then on Respondent's payroll. The record establishes, and I find, that Respondent granted the wage increases on July 18 pursuant to its promise to the employees to grant such wage increases if they voted against the Union, and to induce them 974 DECISIONS OF NATIONAL to vote against the Union in any rerun election which might result from its objection. Although Respondent insisted throughout that it granted wage increases only on the basis of merit to in- dividual employees and that it never granted overall or a substantial number of wage increases at the same time, the record establishes that all of the em- ployees, a total of 12, on Respondent's payroll as of February 1 and still employed through June, except a new employee hired May 9 and Brotherton, em- ployed as a plant clerical not actually engaged in production, received one or the other of the two pay raises. Seven of the twelve employees received both increases, three received only the first in- crease granted June 13, and two received only the second increase granted July 18. C. The Adequacy of the Charge As hereinabove indicated, a subsidiary and preliminary issue in this proceeding is whether the allegations of the complaint are sufficiently sup- ported by the Union's charge, as amended, in the light of the requirement of Section 10(b) of the Act that: "Whenever it is charged that any person has engaged in ... any ... unfair labor practice, the Board ... shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect ...." In the construction of that requirement, it has long been settled that the violations alleged in a complaint must be suffi- ciently related to the allegations of the charge, or the subject matter thereof, but are not restricted to the specific violations alleged in the charge. The in- stant charge, as amended, alleged specific viola- tions of Section 8(a)(1) and (5) of the Act as well as a general violation of Section 8(a)(1). The com- plaint alleged violations of Section 8(a)(1) and (3) of the Act. The alleged violation of Section 8(a)(3) was limited to the withholding of previously ap- proved wage increases. Wage increases were the specific subject matter dealt with in the Union's charge. Respondent contends that, because the charge was limited to promising an increase in pay to induce the employees to vote against the Union, other acts of interference, restraint, and coercion, and a refusal to bargain as to which the Regional Director refused to issue a complaint, seven of the nine alleged violations of Section 8(a)(1) and the alleged violation of Section 8(a)(3) are improper because they are not "closely related" to the viola- tions alleged in the charge. Respondent's contention with respect to the seven 8(a)(1) allegations of the complaint is without merit. It is now well settled that a charge containing a general allegation of acts of inter- ference, restraint, and coercion in violation of Sec- ' North American Rockwell Corp v N L R B, 389 F 2d 866 (C A 10, 1968), Texas Industries, Inc v NLRB , 336 F 2d 128 (C A 5, 1964) 4 Fn 3,supra ' Fn 3, supra C M Gunther & Son, Inc , d/bla Pioneer Flour Mills, 174 NLRB 1202 LABOR RELATIONS BOARD tion 8(a)(1) is sufficient to warrant the inclusion of any 8(a)(1) allegation in a complaint.3 As the Court of Appeals observed in the Texas Industries case:4 It is established that this section [10(b)] precludes the Board from issuing a complaint on its own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board.... However, the charge is not a formal pleading, and its function is not to give notice to the respondent of the exact na- ture of the charges against him.... This is the function of the complaint. The charge rather, serves merely to set in motion the investigatory machinery of the Board. It is largely for the benefit of the Board, not the respondent, so that it may intelligently determine whether and to what extent an investigation is warranted. Consequently, the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get "so completely outside ... the charge that it may be said to be initiating the proceed- ing on its own motion ...." [Citations omitted. ] As the court of appeals in North American Rockwell' also noted: The charge in the case at bar notified the petitioner that it was faced not only with the specific violations alleged, but with "other acts and conduct" which "interfered with, restrained and coerced its employees in the ex- ercise of rights guaranteed in Section 7 of the Act." This language is, to be sure, general, but it formed a sufficient basis for later specific al- legations. ... It was noted in Indiana Metal Products Corp. v. N.L.R.B., 202 F.2d 613, 619 (7th Cir. 1953), that "basing the complaint upon broad allegations in the charge may well, at times, be unfair to an employer, but such in- terpretation is required by the broad language of Section 10(b).' With respect to the allegation of discrimination in violation of Section 8(a)(3) as a result of withholding approved wage increases although the charge was limited to allegations of violations of Section 8(a)(1) and (5), it is well settled that the complaint may contain allegations related to the same subject matter as that covered in the charge, even though the alleged violation involves a dif- ferent section of the Act. As was recently reiterated by the Board, the applicable criteria are whether the allegations of the complaint are "related to and arose out of the same situation as that conduct al- leged to be unlawful in the timely filed charges. "6 (1969), and cases cited therein, see also, N L R B v Fant Milling Com- pany, 360 U S 301 (1959), Truck Drivers and Helpers, Local Union 568, Teamsters (Red Ball Motor Freight, Inc ), 157 NLRB 1237 (1966), Warren- Teed Products Co, 138 NLRB 131 (1962), and North Country Motors, Ltd, 133 NLRB 1479 (1961) GREAT PLAINS STEEL CORP. In North Country Motors,7 the Board specifically found an 8 (a)(3) allegation in the complaint suffi- ciently related to a charge alleging only violations of Section 8(a)(1) and (5 ). The two cases relied on by Respondent in support of its contention are primarily inapposite inasmuch as the Board and the court, respectively , found that the allegations of the complaint were supported by the charge.8 The charge herein dealt with the subject matter of wage increases. The violation of Section 8(a)(3) in the complaint alleged discrimination by the withholding of approved wage increases from employees because of their union activities. A major portion of the entire proceeding was devoted to the subject matter of wage increases, including their withhold- ing, promising, and granting. I conclude and find that the alleged violation of Section 8(a)(3) is suffi- ciently related to the subject matter alleged in the charge , and that such allegation comports with the requirements of Section 10(b) of the Act. D. Interference, Restraint, and Coercion The complaint alleged that on or about February 10 Gilmore told employees that previously ap- proved wage increases were being withheld because the Union had filed a petition, and that at the April 8 dinner for employees, Gilmore and Mininni told certain employees that their pay raises were being withheld because they went to the Union. As hereinabove found , on or about February 10 Gil- more told Hite that he had a 10-cent-an-hour wage increase approved and in the office but that he had "messed things up" by going to the Union and Respondent would not be able to release it to him because of the employees' union activities. The record establishes that throughout the period of time from the filing of the petition on February 3 to the election on April 25, Gilmore told a number of employees that their pay raises had been approved but could not be put into effect because of their union activities and Respondent 's attorney 's advice that the granting of such wage increases might be used as the basis for an unfair labor practice charge . As hereinabove found, during the conversa- tions after the dinner on April 8, both Gilmore and Mininni told various employees that their approved wage increases were in the office but could not be released because of their union activities and the possibility of unfair labor practice charges. Some employees were told this was on advice of counsel and others were not. Mininni specifically told Barn- hart that his raise had come in on a Monday and that he would have received it if he had not joined the Union the prior Saturday, February 1. On or ' Fn 6,supra a N L R B v Pecheur Lozenge Co, Inc, 209 F 2d 393 ( C A 2, 1953), Casino Operations , Inc, 169 NLRB 328 (1968) ° N L R B v Exchange Parts Co 375 U S 405 ( 1964), Central Freight Lines, Inc, 179 NLRB 914 (1969), Dorn 's Transportation Co, 168 NLRB 975 about April 17 Clark told Benson that the em- ployees raises had been approved but could not be released because of their union activities. Regardless of whether the first wage increase was approved in January, or mid-February as con- tended by Respondent, Respondent admitted that on frequent occasions between the filing of the petition and the election it informed various em- ployees that their raises could not be granted or released on advice of counsel because of their union activities , including the filing of the petition, because of the possibility of unfair labor practice charges and/or objections to the election . It is well settled that withholding employees' wage increases because of their union activities which otherwise would have been granted, and so advising them, is a violation of the Act. The applicable test with respect to both granting and withholding wage in- creases under such circumstances is whether or not they would have been granted in the normal course of events absent any union activities . In other words, if a wage increase would have been granted for sound economic reasons in the normal course of events, it should be granted in spite of intervening union activities; and, advising employees that it is being withheld because of such activities , patently discourages their union activities and interferes with, restrains , and coerces them in the exercise of the rights guaranteed by the Act. On the other hand, if a wage increase would not have been granted for sound economic reasons in the normal course of events, its granting after the commence- ment of union organizational activities and/or after the filing of a petition for an election, for the pur- pose of inducing the employees to vote against the union and favor their benefactor, likewise interferes with their guaranteed rights.9 Even if Respondent's first wage increase had not received final approval, telling employees that their wage increases could not be granted because of their union activities and/or the Union's filing of a petition clearly interfered with their guaranteed rights, regardless of any reliance by Respondent on its counsel's advice . As the Board recently ob- served: By withholding salary increases, which it would have granted had there been no organizing campaign and so advising its employees, the Respondent restrained and coerced its em- ployees and thereby violated Section 8(a)(1) of the Act. This is so despite the fact that the Respondent may have believed that it could not grant any raises because of a pending elec- tion petition.10 Respondent's reliance on the decision of the Board in Standard Coil" and of the court of appeals 457 (1967), McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237 (1966) 10 Dorn's Transportation Co , fn 9, supra " Standard Coil Products, Inc , 99 NLRB 899 (1952) 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Crown Tar'2 is misplaced. In that older decision, the Board found that telling employees that a wage increase was being withheld while an election peti- tion was pending because of fear of violating the Act was not a violation of Section 8(a)(1) because the employer assured the employees that in any event the wage increase would be granted to all em- ployees regardless of the outcome of the election. In Crown Tar the court of appeals found, on facts substantially similar to and in reliance on the deci- sion of the Supreme Court in Exchange Parts,13 that the granting of a wage increase for the specific pur- pose of inducing the employees to vote against the union was a violation of Section 8(a)(1). The court found that Crown had deliberately authorized a wage increase for the purpose of thwarting the union's anticipated organizational efforts, but had withheld such increase until such efforts began whereupon it was granted for the purpose of induc- ing the employees to vote against the union. Because the court stated that Crown "waited until the organizational effort was under way and then, while in a position to refrain from granting the in- crease, and with knowledge of the union's activity ... the increase was made effective," Respondent contends it was warranted in withholding the in- crease here and so advising its employees. The decision of the court was based not on the fact that the employer was in a position to withhold the in- crease but on the fact that it granted the increase deliberately for the purpose of inducing the em- ployees to vote against the union. Patently any em- ployer is in a position to withhold an increase at any time before it is granted and this is not the criteria applicable to whether such increases should be granted or withheld. The decision does not stand for the proposition, urged by Respondent, that an approved wage increase, which would have been granted but for the advent of organizational activity and/or the filing of representation petition, should be withheld and the employees so advised. I am satisfied and find that Respondent, by telling its em- ployees that their approved wage increases, or that approval thereof which otherwise would have been granted, were being withheld because of their union activities or because of the filing of a representation petition by the Union, interfered with, restrained, and coerced them in violation of Section 8(a)(1) of the Act." As hereinabove noted, the allegation of the com- plaint concerning the promise of improved in- surance benefits was dismissed on motion of the General Counsel at the conclusion of the case-in- chief. The complaint as amended alleged that Respondent, by Mininni, threatened its employees with plant closure if the Union was successful in its organizing campaign. As hereinabove found, during the formal speeches after the dinner of April 8, Tate and perhaps one of Respondent's officials described instances of companies having gone out of business or closing their plant as a result of union organization. During the conversations after these speeches in a discussion concerning the possibility of Omsteel closing Respondent's plant in Cheyenne, Mininni told the employees that Om- steel had gotten along without Respondent for 50 years and no doubt could do so again if it had to if things got too tough. Patently this was a not too subtle prediction that if the Union won the election Respondent might close its plant, particularly in the light of the formal speeches. Respondent had made clear that it was unalterably opposed to the Union and did not want its employees to support it. The Supreme Court has recently clarified the criteria applicable to such predictions with respect to the question of whether or not they are merely expressions of opinion within the protection of Sec- tion 8(c) of the Act or the free speech proviso of the Constitution, or constitute threats in violation of the Act.15 The Court stated that an employer may "make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be care- fully phrased on the basis of objective fact to con- vey an employer's belief as to demonstrably proba- ble consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization .... If there is any implication that an employer may or may not take action solely on his own initiative for reasons unre- lated to economic necessities and known only to him, the statement is no longer a reasonable predic- tion based on available facts but a threat of retalia- tion based on misrepresentation and coercion, and as such without the protection of the First Amend- ment. We therefore agree ... that `conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.' . . . as stated elsewhere, an employer is free only to tell `what he reasonably believes will be the likely economic consequences of unionization that are outside his control,' and not `threats of economic reprisal to be taken solely on his own volition."' (Citations omitted.) Mininni admitted that he had no knowledge whatsoever of any consideration of or plan by management to close the Cheyenne plant, and thus, in the language of the Court, the eventuality of such closing was not capable of proof. I am satisfied and I find that Respondent, by threatening its em- 12 Crown Tar and Chemical Works v N L R B, 365 F 2d 588 (C A 10, union activity which otherwise would have been granted , and withholding 1966) the approval of wage increases because of union activity which otherwise " Fn 9, supra would have been approved " As a matter of practical and legal effect , there would appear to be no 'S N L R B v Gissel Packing Company, Inc , 395 U S 575 (1969) substantial difference between withholding wage increases because of GREAT PLAINS STEEL CORP. ployees with possible closure of the plant in the event the union organization was successful , inter- fered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The complaint alleged that Respondent, by Mininni, at the April 8 dinner promised its em- ployees pay raises and other benefits if they voted against the Union. As hereinabove found, the record establishes that on several occasions Respondent promised its employees not only that the wage increases already approved and "in the of- fice" would be released but that an additional greater wage increase would be granted if they voted against the Union in the forthcoming elec- tion. During his speech at the April 8 dinner, Mininni stressed the desirability of the employees negotiating directly with Respondent instead of through the Union and that they could do better by doing so. Respondent was well aware that the em- ployees' primary concern was in securing wage in- creases. During the ensuing conversations after the dinner, Mininni told several employees that there was a dime-an-hour wage increase waiting for them in the office, and they would do better by going along with Respondent and that they could receive an additional greater raise by negotiating directly with it instead of working through the Union. Mininni also told Barnhart that he would have received his previously promised wage increase if he had not joined the Union just prior to its ap- proval, and told the employees that if the Union was not voted in their raises would be released im- mediately. In addition, Gilmore and Clark told em- ployees that pay raises had been approved but could not be released because of their union activi- ty. Approximately 30 minutes before the election, Mininni informed Benson that if the employees voted against the Union raises for them could be granted immediately. Benson thereupon informed' the other employees of this statement before they voted. Benson understood, and conveyed to the other employees, that Mininni was promising another and greater wage increase in addition to that already approved but not yet released. It is now well settled that the promising, or the granting, of wage increases or other benefits during an or- ganizational campaign or the pendency of an elec- tion for the purpose of inducing employees to vote against a union is an unfair labor practice in viola- tion of Section 8(a)(1) of the Act.16 As hereinabove noted, the appropriate test is whether or not such benefits would have been granted for sound economic reasons in the normal course of events absent union activities by the employees. If they would have been, they should be granted and their withholding discourages such activities in violation of the Act. If they would not have been granted for sound economic reasons in the normal 977 course of events absent union activities , but instead are promised or granted because of such activities in order to induce employees to vote against their union or abandon such activities, their promising or granting is in violation of the Act. The Supreme Court stated in Exchange Parts:" We have no doubt that it [Section 8(a)(1)] prohibits not only intrusive threats and promises but also conduct immediately favora- ble to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that ef- fect.... "The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the em- ployer as well by his threats or dimination." .. . 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 beneficience of an em- ployer is likely to be ephemeral if prompted by a threat of unionization which is subsequently removed. Insulating the right of collective or- ganization from calculated good will of this sort deprives employees of little that has lasting value. I conclude and find that Respondent, by promis- ing its employees wage increases to induce them to vote against the Union, violated Section 8(a)(1) of the Act. The complaint alleged that Respondent, by Clark, told its employees that they would receive wage increases as soon as the Union 's objections to conduct affecting the election were resolved. The record contains no evidence in support of this al- legation , and accordingly I find that the General Counsel has failed to sustain his burden of proof with respect thereto. The complaint alleged that Respondent, by Mininni , on or about June 12 and on or about July 18, granted pay increases to certain employees in fulfillment of its promise to do so if they voted against the Union. As hereinabove found, on or about June 13, as a result of its prior promise to do so and after meeting with an employee committee the preceding day, Respondent released the previ- ously approved wage increases of 5 and 10 cents an hour to 10 of the employees in the unit retroactive to May 5, while the Union's objection to conduct affecting the election was pending before the Board. The record establishes, and I find, that Respondent's purpose was twofold: to fulfill its promise to its employees to release the previously approved wage increases if they voted against the Union, and to induce the employees to vote against 1e N L R B v Exchange Parts Company , 375 U S 405 (1964) 17 Id 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union in the event the Union's objection was sustained and a second election held. Before the election, Respondent promised its em- ployees additional greater wage increases if they would vote against the Union. On June 26 Lyon in- formed Clark that according to a Board agent Respondent could grant a wage increase if it was for the purpose of retaining employees, and sug- gested that he get somebody to witness telling the employees about such a wage increase . Later the same day Clark had three employees sign a prepared affidavit including a statement that they were requesting wage increases so that Respondent would not lose its good employees. On or about June 27, Mininni asked Hite if Respondent in ful- fillment of its prior promise gave everybody a 20- cent raise in addition to the raise it had already given would that make all of the employees happy. On June 27 Clark, in the presence of two of Respondent's employees, asked Spears to waive the granting of a wage increase . Although Spears replied that the Union had no objection, on July 1 Clark received a letter from the objection, requesting that before any changes in the employees' terms and conditions be made they be discussed with the Union. Respondent did not contact the Union further. On July 18 retroactive to June 29, Respon- dent granted wage increases in amounts varying from 10 to 30 cents an hour to 9 of the 13 em- ployees remaining in the unit, again while the Union's objection to conduct effecting the election was pending before the Board. Respondent's contentions that the Union waived Respondent's second wage increase and that it was justified in granting such increase to prevent the loss of employees to other employers are without merit. When Clark, although Respondent allegedly believed that the Union did not represent its em- ployees, asked Spears, in the presence of two of the employees who had been instructed to inform the other employees, if the Union had any objection to Respondent's granting a wage increase, manifestly the Union could do nothing but accede or suffer the displeasure of the employees and the loss of ad- herents. Moreover, the Union could not legally waive the commission of unfair labor practices in- volving the employees' rights guaranteed by the Act as distinguished from the Union's rights. If the issue were one of refusal to bargain, which it is not, then the Union could under appropriate circumstances waive its rights. Here Respondent requested the Union to waive rights of the employees affected by the granting of the wage increase, specifically and deliberately in the presence of the employees. In fact, the Board has held that the mere requesting of such a waiver is a violation of Section 8(a)(1) of the Act when done under circumstances -calling the employees attention thereto. The Board stated: the Respondent, on its own initiative, directed the employees' attention to the union aspect of the matter. We further find that, through this conduct, the Respondent sought to discredit the Union and discourage member- ship therein by announcing a desire to offer immediate benefits to its employees and then shifting to the Union the onus for not institut- ing these benefits. 18 Moreover, the waiver, if such it was, was withdrawn by the Union long before Respondent granted the employees the second wage increase. On July 1 Respondent received the Union's letter advising Respondent that while the Union, as stated orally, had no objection to Respondent granting the em- ployees wage increases, it nevertheless represented the employees and requested that before any changes in terms and conditions were made Respondent discuss them with the Union. Respon- dent did not thereafter contact the Union and did not grant this wage increase until July 18. On June 26 Respondent had three employees sign a prepared affidavit including a statement that the employees were requesting wage increases to prevent Respondent from losing good employees, admittedly for the purpose of formulating or com- ing up with facts to establish that Respondent was not guilty of the unfair labor practice charged, after another employee had informed Clark that accord- ing to a Board agent a raise could legally be granted if it were for the purpose of retaining employees. In support of this apparent afterthought, Clark and Mininni testified, contrary to Respondent's own records, that after June 12 Respondent lost at least half of its employees then in the unit because of low wages. Respondent's records established that in fact Respondent lost only one employee then employed. I find that Respondent granted this second wage increase pursuant to its prior promise to do so if the employees voted against the Union, and to induce them to vote against the Union in the event of a rerun election as a result of the Union's objection. I am satisfied and I find that Respondent, by granting its employees wage increases on June 13 and July 18 to induce them to vote against the Union, inter- fered with, restrained, and coerced them in viola- tion of Section 8(a)(1) of the Act.19 The complaint alleged that on or about June 26 Respondent, by Clark, requested employees to sign affidavits prepared by Respondent disavowing Respondent's commission of alleged unfair labor practices. As hereinabove found, on June 26 Clark called all of the employees to his office individually and requested them to sign identical affidavits previously prepared by Respondent's attorney con- taining Respondent's version of the facts as well as conclusions and self-serving declarations. While the employees were informed that the signing was McCormick Longmeadow Stone Co, Inc, fn. 9, supra 's McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237 (1966), and Ambox, Incorporated, 146 NLRB 1520 (1964) GREAT PLAINS STEEL CORP. 979 voluntary, i.e., they did not have to sign if they did not want to , they were not told the purpose of the statements and some were not assured that no reprisals would be taken against them . Respondent secured these affidavits in connection with its preparation of a defense with respect to the charges filed against it. While such a purpose is manifestly appropriate , the Board has established certain criteria which must be observed in order to prevent such employee interviews and statements from in- terfering with , restraining, and coercing the exer- cise of their rights under the Act. The Board has held that in connection therewith the employer must communicate to the employee the purpose of the questioning, assure him that no reprisals will take place , and obtain his participation on a volun- tary basis .20 The court of appeals in Neuhoff ap- proved these criteria . 21 Respondent failed to comply with two of these criteria . Moreover, Respondent was not seeking to ascertain the facts as known by the employees but instead was requesting them to sign identical affidavits prepared by Respondent , admittedly consisting of its version of the facts , designed for the purpose of establish- ing a defense against the unfair labor practice charges . The record establishes that some if not all of the employees signed the statements because of fear that if they did not Respondent would not grant them their pending wage increases . George Riedel , the only employee who refused to sign such affidavit, did not receive the subsequent wage in- crease . The employees ' subsequent testimony under oath at these hearings, relieved of this implicit coer- cion, revealed that certain of the facts , conclusions, and self-serving declarations contained in such af- fidavits were not in fact correct . It is clear that the obtaining of such affidavits under such circum- stances interfered with the employees ' right to ad- ministrative due process in the enforcement of their Section 7 rights, and their guaranteed right to aid and assist their Union in the prosecution of its un- fair labor practice charges . I am satisfied and I find that Respondent, by securing such affidavits under such circumstances, interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. E. Additional Issues The complaint also alleges that Respondent en- gaged in the acts of interference, restraint, and coercion found hereinabove for the purpose of destroying the Union's majority status and thereby evading Respondent's obligation to bargain collec- tively with the Union. As found above, Respondent specifically promised its employees both of the wage increases if they voted against the Union, in- formed its employees that their previously ap- proved wage increases were being withheld because of their union activities, including the filing of the petition, threatened to close the plant if the Union were successful in organizing, granted both wage increases for the purpose of inducing the employees to vote against the Union in any rerun election, and requested its employees under coercive circum- stances to sign previously prepared identical af- fidavits to the effect that Respondent had not en- gaged in any unfair labor practices. The record establishes, and I find, that Respondent engaged in such unfair labor practices for the purpose of destroying the Union's majority status and thereby evading Respondent's obligation to bargain with it. The complaint alleged, Respondent admits, and I find the following to be a unit appropriate for the purposes of collective bargaining within the mean- ing of the Act: All production and maintenance employees employed by Respondent at 1720 Pacific Avenue, Cheyenne, Wyoming, but excluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. As hereinabove found, on or about February 1 the Union received signed unambiguous authoriza- tion cards as well as applications for membership from 15 of the 20 employees then in the above- found appropriate unit, all of which cards were properly authenticated and received in the record. There is no contention or evidence that such cards were secured by misrepresentation. I conclude and find, as alleged in the complaint but denied by Respondent, that, on or about February 1, the Union was designated by a majority of the em- ployees in the appropriate unit as their bargaining representative and was then and thereafter the ex- clusive bargaining representative of the employees in the aforesaid appropriate unit. F. Discrimination in Hire or Tenure, Terms or Conditions of Employment The complaint alleged that, from on or about February 10 to on or about May 5, Respondent withheld approved wage increases from its em- ployees because of their union activities , thereby discriminating against them in violation of Section 8(a)(3) of the Act. As hereinabove found , Respon- dent withheld the wage increases approved in January to be granted on unspecified dates in February and March from some 10 employees, ad- mittedly on advice of counsel because of their union activities, including the filing of the petition. For the reasons hereinabove detailed, it is well set- tled and I find that withholding such wage increases which normally would have been granted but for the union activities, which admittedly was the 20 Johnnie's Poultry Co, 146 NLRB 770 (1964) 21 N L R B v Neuhoff Brothers Packers, Inc, 375 F 2d 372 (C A 5, 1967) 427-258 O-LT - 74 - 63 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason for their withholding here, discriminated against the employees as to a term or condition of employment and discouraged membership in the Union in violation of Section 8(a)(3) of the Act.22 IV. REPORT ON OBJECTIONS The objection consolidated for hearing with the complaint by order of the Regional Director in- cluded the promise by Respondent between the dates of the petition and the election of wage in- creases to the employees if they would reject the Union in the election, and the granting of wage in- creases on or about May 5, which occurred after the election . Based on the above findings of fact and the entire record herein , I conclude and find that the Union's objection has been established and that Respondent thereby engaged in conduct affect- ing the results of the election. The Regional Director's order directing the consolidation of the hearings on the objections and the complaint further directed that thereafter Case 27-RC-3560 be transferred to and continued before the Board. Inasmuch as my Recommended Order, for reasons stated hereinafter , provides that Respondent be required to bargain with the Union , I recommend that the petition in Case 27-RC-3560 be dismissed and that all proceedings therein be vacated.23 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. Respondent is an employer engaged in com- merce, and the Union is a labor organization, within the meaning of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By withholding previously approved wage in- creases from its employees because of their union activities, Respondent engaged in discrimination to discourage membership in the Union , thereby en- gaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 4. All production and maintenance employees employed by Respondent at 1720 Pacific Avenue, Cheyenne , Wyoming, but excluding office clerical employees, professional employees, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times on and after February 1, the Union has been and now is the exclusive representative for the purposes of collective bar- gaining of the employees in the above unit within the meaning of Section 9(a) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Although the complaint did not allege a refusal to bargain, and none is found, the General Counsel contends, in the light of the Supreme Court 's recent decision in Gis- sel Packing Company,24 that a bargaining order is warranted and indeed required as the only effective remedy available . The Supreme Court there held that a bargaining order is warranted when an em- ployer engages in unfair labor practices so coercive in nature that, even in the absence of an 8(a)(5) violation, a bargaining order would be necessary as the only available effective remedy to repair the un- lawful effect of those practices because their com- mission had obviated the possibility of a fair elec- tion or rerun election. The Court noted that "such an order would be an appropriate remedy for those practices ... if they are of `such a nature that their coercive effects cannot be eliminated by the appli- cation of traditional remedies, with the result that a fair and reliable election cannot be had .' ... The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a §8(a)(5) violation or even a bargaining de- mand, when that was the only available, effective remedy for substantial unfair labor practices." The Court went on to point out that the Board had authority to issue a bargaining order in "less ex- traordinary cases marked by less pervasive prac- tices which nonetheless still have the tendency to undermine majority strength and impede the elec- tion processes." Even in such less extraordinary cases, where there is a showing that at one point the union had a majority the Court noted that: "If the Board finds that the possibility of erasing the ef- fects of past practices and of ensuring a fair elec- tion (or a fair rerun ) by the use of traditional remedies, though present, is slight and that em- ployee sentiment once expressed through cards would, on balance, be better protected by a bar- gaining order, then such an order should issue." (Citations omitted.) Since that recent decision, the Board has frequently followed and elucidated the teaching of 22 McCormick Longmeadow Stone Co , Inc , fn 19, supra. 23 Schuckman Press , Inc, 172 NLRB No 256 ( 1968). 21 N L R B. v Gissel Packing Co , Inc., 395 U S. 575 (1969) GREAT PLAINS STEEL CORP. the Supreme Court.25 In each of the cited cases, the Board found that a bargaining order was warranted even in the absence of a violation of Section 8(a)(5). For example, in Heck's, the Board stated: "The Respondent's relentless campaign to defeat the Union's organizational efforts included serious and extensive acts of interferences, restraint, and coercion against its employees in violation of Sec- tion 8(a)(1). These unfair labor practices tended to destroy the Union's majority status achieved by authorization cards and were so flagrant and coer- cive in nature as to require, even in the absence of an 8(a)(5) violation, a bargaining order to remedy their effect." In Brescome, the Board stated: "We also further find upon a consideration of the entire record ... that, apart from the violation of Section 8(a)(5), an order directing Respondent to bargain with the Union, upon request, is necessary to remedy the effects of its other unfair labor prac- tices . The record establishes that the Union had a majority when the Respondent began its course of unfair labor practices directed at destroying this support. The subsequent dimunition of support, as revealed by the Union's loss in the election, can only be attributed to Respondent's unlawful con- duct." As hereinabove found, the Union secured unam- biguous signed authorization cards from three-quar- ters, a substantial majority, of the employees in the appropriate unit. Thereafter, Respondent engaged in the flagrant and coercive unfair labor practices herein found, and the Union lost the election by a two to one margin , only four employees voting for it. Patently, as the Board noted, supra, this loss of the election can only be attributed to Respondent's unlawful conduct, primarily its promise of wage in- creases if the Union lost the election. Respondent's coercive unfair labor practices, including advising employees that previously approved wage increases were being withheld because of their union activi- ties, threatening to close the plant if the Union suc- ceeded in organizing, promising both the withheld and additional greater pay raises if the employees voted against the Union, in any rerun election, the 's E g, Heck's Inc, 180 NLRB 430 (1969), W T Grant Company, 180 NLRB 400 (1969), The Brescome Distributors Corporation, 179 NLRB 787 (1969), and Garland Knitting Mills of Beaufort, South Carolina , Inc , 178 NLRB 396 (1969) 26 The record does not contain the specific date or dates on which the wage increases approved in January and granted as of May 5 would have been granted to the individual employees if they had not been withheld Clark testified that some of the increases would have been granted in Febru- ary and some in March Absent records, this could be considered a self- serving declaration Subsequently he changed his testimony to February through May, which I did not credit On the other hand, other officials and witnesses of Respondent, including Mmmni , Clark's superior, testified that the wage increases effective May 5 would have been granted early in February if they had not been withheld because of the employees' union activities Gilmore testified that Clark informed him in early January that the wage increases which had already gone to the home office would have to be withheld on account of the employees' union activities On or about February 10, Gilmore told Hite that he had an approved 10-cent-an-hour raise "in the office" which could not be released because of his union ac- 981 likelihood of which was known, or should have been known, by Respondent, and requesting em- ployees, under coercive circumstances, to sign af- fidavits exonerating Respondent of its unfair labor practices, obviate the possibility of a fair rerun election by destroying the Union's majority and leave a bargaining order as the only effective remedy. Accordingly I shall recommend a bargain- ing order. I shall also recommend that the petition be dismissed and that all proceedings be vacated in Case 27-RC-3560. I shall also recommend that the employees be made whole for loss of the wage in- creases withheld from them until May 5 because of their union activity by retroactive payment to the date when such increases would have been granted but for their union activity.26 Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and-desist order.27 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Great Plains Steel Corp., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that previously ap- proved wage increases , or that approval thereof which otherwise would have been granted, are being withheld because of their union activities or because of the filing of a representation petition by their labor organization. (b) Threatening its employees with plant closure because of their union activities. (c) Promising its employees wage increases to induce them to vote against their labor organiza- tion. (d) Granting its employees wage increases to in- duce them to vote against their labor organization. (e) Coercively requesting its employees to ex- ecute previously prepared affidavits or statements. tivities Roper, who acted as supervisor in Gilmore 's absence , testified that "everybody" was scheduled to receive a raise around the first of February when the union activity began , and that Gilmore had told him at that time that the raises could not be released because of such activity Mininni told Barnhart that his raise had come in on a Monday , that he had joined the Union the previous Saturday (February 1), and that he would have received it if he had not done so In the light of the foregoing it appears reasonable to conclude that the withheld wage increases would have been granted on or about February 10 In the event that Respondent 's official records, which were not produced at the hearing, establish the specific dates on which each individual named in Appendix A hereof would have received such wage increase if it had not been withheld , the computation of such retroactive amounts should of course be from such dates , instead of February 10, to May 5 The specific dates are not of substantial monetary significance, inasmuch as the withheld raises amount to only 40 or 80 cents a day per employee n N.L.R B. v Express Publishing Company, 312 US. 426 (1941), NLRB v Entwis le Mfg Co , 120 F 2d 532 (C A. 4, 1941), Consolidated Industries, Inc , 108 NLRB 60 (1954), and cases cited therein 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 307, or any other labor organization of its employees, by withholding previously approved wage in- creases or in any other manner discriminating against employees in regard to hire or tenure of em- ployment or any term or condition of employment. (g) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the aforesaid Local 307 as the exclusive representative of its employees in the appropriate unit found herein with respect to rates of pay, wages, hours, and all other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Make each of the employees named in Ap- pendix A hereof whole for the loss he sustained by reason of the withholding of the wage increase ef- fective May 5, 1969, by the payment of the sum of 5 or 10 cents an hour to each as set forth in Appen- dix A hereof, retroactive to February 10, 1969, or the date, as shown by Respondent's records, when such wage increase would have been granted to each if it had not been withheld, together with in- terest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716), less any tax withholding required by law. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of retroactive payments due under this Order. (d) Post at its plant in Cheyenne, Wyoming, co- pies of the attached notice marked "Appendix B. 1128 Copies of said notice, on forms provided by the Re- gional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 IT IS FURTHER ORDERED that the petition in Case 27-RC-3560 be, and it hereby is, dismissed, and that all proceedings held in connection therewith be, and they hereby are , vacated. APPENDIX A HOURLY WITHHELD NAME WAGE INCREASE Mickey R. Barnhart 10 cents James N. Benson 10 cents James E. Clawson 10 cents Raymond Fresquez 10 cents Jimmie Lee Hite 10 cents James R. Kyvig 10 cents Lewis Gordon Lyon 5 cents George F. Riedel 5 cents Frank Roper 10 cents David Wilson 10 cents APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 307, or any other labor organization of our employees, by withholding previously ap- proved wage increases or in any other manner discriminating against our employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT tell our employees that previ- ously approved wage increases, or that ap- proval thereof which otherwise would have been granted, are being withheld because of their union activities or because of the filing of a representation petition by their labor or- ganization. WE WILL NOT threaten our employees with plant closure because of their union activities. WE WILL NOT promise our employees wage increases to induce them to vote against their labor organization. " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Y° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 11 GREAT PLAINS STEEL CORP. 983 WE WILL NOT grant our employees wage in- creases to induce them to vote against their labor organization. WE WILL NOT coercively request our em- ployees to sign previously prepared affidavits or statements. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL, upon request, bargain collectively with the aforesaid Local 307 as the exclusive representative of our employees in the ap- propriate unit noted below with respect to rates of pay, wages, hours, and all other terms and conditions of employment, and, if an un- derstanding is reached, embody such un- derstanding in a signed agreement . The ap- propriate unit is: All production and maintenance em- ployees employed by us at 1720 Pacific Avenue, Cheyenne, Wyoming, but exclud- ing office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL make Mickey Barnhart, James Benson , James Clawson, Raymond Fresquez, Jimmie Lee Hite, James Kyvig, Lewis Gordon Lyon, George Riedel, Frank Roper, and David Wilson whole for the loss each sustained by reason of our withholding of the wage increase effective May 5, 1969, by the payment of the sum of 5 cents an hour to Lyon and Riedel and 10 cents an hour to each of the others retroac- tive to February 10, 1969, or the date, as shown by our records, when such wage in- crease would have been granted to each if it had not been withheld. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor or- ganization. Dated By GREAT PLAINS STEEL CORP. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551.