Alton Box Board Co.

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alton Box Board Company and International Broth- erhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Cases 26-CA-2700, 26-CA-2740, and 26-RC-2788 November 12, 1968 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 11, 1967, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the allegations pertaining thereto be dismissed. In addition, in an Errata to his Decision, issued on December 18, 1967, the Trial Examiner further recommended that certain objections to conduct affecting the results of the election filed by the Petitioner be sustained, and that the election of April 14, 1967, be set aside. There- after, the General Counsel and the Charging Party filed exceptions to the Decision and briefs in support thereof, the intervening employees filed an answering brief to certain exceptions filed by the General Counsel, and the Respondent filed certain cross- exceptions to the Trial Examiner's Decision. Upon consideration of certain issues raised by the parties in ' connection with the Trial Examiner's dismissal of certain allegations of the complaint, the Board was of the opinion that it was desirable, in giving thorough and final consideration to the issues in this case, to have additional information which could best be obtained by further hearing. According- ly, on May 22, 1968, the Board issued an Order Reopening Record and Remanding Proceeding to Regional Director for Further Hearing in accordance with the Board's Rules and Regulations. On August 15, 1968, the Charging Party and the Petitioner filed a Motion to the Board requesting that the Board approve the withdrawal of the unfair labor practice charges in Cases 26-CA-2700 and 26-CA-2740, and that the Board adopt the recommendation of the Trial Examiner contained in his Errata to his Decision noted above. In a telegram to the Board dated August 15, 1968, the General Counsel stated that he did not oppose the Motion and moved that the withdrawal request be approved. The Respondent, on August 16, 1968, in its reply to the Motion opposed the Charging Party's Motion, in part, urging, inter alia, that the Board proceed to rule upon and dismiss the out- standing objections to the election. It did not oppose the request to withdraw the charges. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-mem- ber panel. The Board has duly considered the matter. We are of the opinion that it would effectuate the policies of the Act to permit the Charging Party to withdraw its charges. Accordingly, ORDER IT IS HEREBY ORDERED that the request of the Charging Party to withdraw its charges be, and it hereby is, granted. IT IS FURTHER ORDERED that the consolidated complaint herein issued by the Regional Director on June 9, 1967, be, and it hereby is, dismissed. As for the election held on April 14, 1967, we agree with the Trial Examiner that certain objections to conduct affecting the results of the election be sustained, that the election be set aside, and that a third election be directed.' We find that the record supports the conclusions of the Trial Examiner that between the date of the first election, January 13, 1967, and the date of the second election, April 14, 1967, the following conduct of the Respondent interfered with the free choice of the employees: Plant Superintendent McGill's numerous acts of inter- rogation of employee Shephard in regard to the Union and the election; Personnel Manager Drake's threats and promises of benefits made to employee Williams; and Plant Superintendent McGill's statements to employees concerning wage increases being withheld because of the pending election made both in his letter to all employees on April 10, and repeated in a speech to assembled employees on April 12. As we have found that the election on April 14, 1967, was held under circumstances which made a free election impossible, we shall set it aside and 1 Pursuant to a petition filed on November 4, 1966, an election was held on January 13, 1967, in which the Petitioner failed to receive a majority of the ballots cast . This election was set aside by a Supplemental Decision , Order, and Direction of Second Election issued by the Regional Director for Region 26 on February 23, 1967, and pursuant thereto a second election was held on April 14, 1967. A majority of the valid ballots counted plus challenged ballots were not cast for the Petitioner , and on April 20, 1967, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director found that certain objections raised material and substantial issues which could best be resolved on the basis of record testimony , and on May 26, 1967, ordered that Case 26-RC-2788 be consolidated with Cases 26-CA-2700 and 26-CA-2740 for the purpose of resolving the issues in question. 173 NLRB No. 105 ALTON BOX direct a third election at a time deemed appropriate by the Regional Director. IT IS HEREBY FURTHER ORDERED that the election held on April 14, 1967, among the employees in the appropriate unit be, and it hereby is, set aside. [Direction of third election2 omitted from publication] 2 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of issuance of the Notice of Third Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236 TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION LLOYD BUCHANAN, Trial Examiner The consolidated com- plaint herein (issued June 9, 1967; charges filed March 8 and 13, April 19 and 28, and May 26, 1967), as amended, alleges that the Company has violated Section 8(a) (3) of the National Labor Relations Act, as amended, 73 Stat. 519, by with- holding ment wage increases because of employees' union activities and in order to induce them to discontinue union membership or not to join, and Section 8(a) (1) and (5) of the Act by said acts, by interrogating its employees concerning union activities and desires and how they would vote in a Board election, warning that the plant would not grow and threatening plant closure and denial of wage increases if the Union were selected as bargaining representative, informing employees that wage increases had been withheld because of, their union activities and because an election petition had been filed, promising wage increases if the Union were rejected, promulgating and posting a rule against union organizing activities during working hours and enforcing a rule restricting employee smoking in the restrooms, both because its em- ployees engaged in protected concerted activities, and refusing to recognize or bargain with the Union and committing the various described acts in order to undermine the Union, dissipate its majority, and destroy the conditions for a fair election The answer, as amended, admits' certain facts but denies the allegations of unfair labor practice. Consolidated for trial with the unfair labor practice case was a representation case with respect to issues raised by objections 1, 2, 3, and 6 filed by the Union to conduct affecting the results of a second election conducted by the Board on April 14, 1967, among the employees. (An election held on January 13 and won by the Union had been set aside.) It was early agreed that the proof in support of the objections would be limited to that offered with respect to the unfair labor practices, or some of the latter since it would not go beyond the objections filed and referred for hearing. The case was tried before me at Humboldt, Tennessee, on i Since informal oral and written attempts to develop a better image of operations have failed, may I say more formally but quietly When, here or elsewhere , I cite an admission (or other fact), the record includes and supports my citation . If the fact be not found on review, I suggest a further and proper search . (Cf 20th Century Glove Company, Inc, 165 NLRB No 122 fn. 1 ) As much can be said with respect to alleged facts found on review which are contrary to my own declarations BOARD CO. 745 July 17 through 21, 1967, inclusive, and August 22. Pursuant to leave granted to all parties , comprehensive and well-pre- pared briefs have been filed by the General Counsel and the Company, the tune to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following- FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Delaware corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a) (5) At the opening of the hearing I granted, with limitations noted on the record, a motion to intervene made by 5 employees on behalf of 68 (reference was made to "ap- proximately 72") who had by their signatures on July 12 indicated their opposition to the Union and their desire to intervene The issue of majority was nevertheless to be determined as of April 13, when the Union requested recognition, and all parties proceeded on that basis. While the petition to intervene indicated employee interest and standing in July, consideration of signatures at that time for the purpose of determining majority would ignore the effect of earlier violations found. Nor could a finding of majority and obligation to bargain in April be disturbed by a petition in July. The General Counsel's motion to the Board for special permission to appeal from my ruling granting the motion to intervene was denied without prejudice to the right to renew in exceptions filed. I find and conclude that, as found in the representation proceeding and herein alleged, the following is an appropriate unit within the meaning of Section 9(b) of the Act. All production and maintenance employees, including regular part-time employees, plant clerical employees and truckdrivers employed at the Company's Humboldt, Ten- nessee, plant, but excluding office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act As agreed on the record after detailed analysis, there were 136 employees in the unit on April 13; and the General Counsel submitted 80 union authorization cards signed about As a citizen , I am concerned with Board accuracy ; as a Board employee, I am especially concerned . I would not disturb any radiant feeling or sense of well-being ; nor even a charitable attitude toward any respondent . But however disturbing the thought , facts are deter- nunative, and search for the facts is important . If there be surprise that this is pointed out, the explanation lies in repeated errors and refusals to correct misstatements. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the end of March by employees in the unit, 69 being a majority. On February 14, during the course of the election cam- paign, 68 employees signed and submitted to the Company a petition opposing recognition of the Union. This was men- tioned in an exhibit submitted by the General Counsel early in his case. It is nowhere claimed that this petition was sponsored by the Company or that it otherwise constituted interference, restraint, or coercion. Counsels' comparison, at the trial, of the February petition with the Union's cards indicates that 25 employees signed both whatever attack might be made on any of the cards, no more than 55 can be counted toward the necessary majority of 69.2 The submission to solicitors' requests, first for one side and then for the other, indicates that in those cases neither the cards nor the petition are reliable to prove majority designation. The February petition suggests a preference contrary to that claimed for the cards on which we might otherwise rely for a finding of majority representation A finding of majority cannot be based on such ambivalence. It thus became unnecessary to pass upon the validity of each of the 80 cards submitted by the General Counsel, or to receive testimony attacking them. Proof of majority is a sine qua non to a finding of refusal to bargain.3 For reasons detailed, recited, and summarized on the record, the allegation of violation of Section 8(a) (5) was dismissed before em- ployees were called by the Company or the Intervenors to attack the validity of the cards and the alleged union majority. Thus we did not reach such questions as whether the antiunion petition supported a good-faith doubt of union majority, whatever inference right be drawn from the Company's interference. I would here point out only a few of the facts lest they be overlooked on review of all that was said on the record. With references to authenticity and validity, when I referred to the circumstances under which the petition and the cards were signed and I called for any further proof in connection with the February petition before I ruled on the issue, and when I answered in the affirmative the question whether the ruling would be "as to the effect that Intervenor's Exhibit 2 [the petitionl might have on the union's majority status," the General Counsel declared that he did not "have any argument to make, except to say . . quite conclusionary, that General Counsel's position is that the signing of Intervenor's Exhibit 2 does not nullify the union's majority status as of April 14, 1967." Indeed, the General Counsel had earlier declared, after the issue of signers of both the petition and a card was raised as well as the question of the circumstances under which the petition was signed, that he would "not contest it" unless he offered evidence that signatures on the petition were not authentic After the refusal-to-bargain allegations had been dismissed, the General Counsel confirmed my understanding of the record and of his position by stating that there was nothing in his files to indicate that there had been unlawful interference in connection with the February petition or that it had been signed under circumstances which would invalidate the sig- natures. When, at the close of the hearing, the General Counsel stated similarly that he was not prepared to call the 25 employees who had signed the antiunion petition in February and union cards a month later, he was in addition reflecting the fact that comparison of the two groups had not earlier been made to learn who had signed both ways, as well as the early estimate that the hearing would last 3 days. (This is not to place a penalty on inadequate estimates. But with early knowledge available for comparison and determination of the number who had signed both for and against the Union, the estimate covered but a small fraction of the necessary time had such an inquiry been contemplated.) The possibility that petition signatures had been obtained by coercion is recognized. But with no intent shown to prove that, and with the later declarations that the General Counsel had no such evidence and that he was not prepared to call the petition signers (these matters being clearly relevant and having in addition been pointed out, as we have seen), there was no reason for permitting the Company and the Intervenors to proceed with attempts to show that the General Counsel's card majority was invalid, thereby prolonging the hearing as these hearings are otherwise necessarily prolonged. B The Alleged Violation of Section 8(a) (1) The issues had further and substantially been reduced at the opening of the hearing (including at the point of dismissal prima facie acceptance of the validity of the Union's cards although questions were indicated with respect to some of them, which need not now be indicated). With respect to the remaing alleged violations, we can similarly confine ourselves to the significant and material points. 1. Interrogation Employee Wade testified that just outside the plant entrance approximately a week before the election of January 13 Plant Superintendent McGill asked him what he thought about the Union and, when he evaded with the remark that he had never been in a union before, McGill continued with the question whether he wanted a union, to which he did not reply. According to McGill, the conversation was most casual, one might wonder about his recollection of it even if Wade was outside 'fz hour after the change of shifts McGill testified that he asked Wade whether anything was wrong and, on receiving a negative answer, asked "how everything was going and [Wade] said okay." According to McGill, the latter question put to employee Flowers directed the latter's attention to the election and lus now declared confusion about voting. Aside from the issue of credibility (Flowers testified that McGill asked him what he knew about the Union), McGill's admitted questions could reasonably and did indicate to these em- 2 See I Posner, Inc., 133 NLRB 1573, 1575, where the Board, finding that a majority for District 65 had not been shown, declared "Moreover , approximately 20 employees whose names appear on District 65 cards also signed authorization cards on behalf of Local 21906 " The Board made no comparison of or reference to the respective dates of signing . See also Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB No. 73. 3 H.W. Elson Bottling Company, 155 NLRB 714, Hermann Equipment Manufacturing Company, Inc., 156 NLRB 716. ALTON BOX BOARD CO ployees a reference to the imminent elections. Particularly in the context then existing, I find that such interrogation of Wade and Flowers (this by McGill, and other interrogation as we shall note) constitutes interference with protected con- certed activities: I so find and conclude. The General Counsel urges further that it is significant that Wade, who had already signed a card, did not reply to McGill's questions his avoidance or untruthful reply allegedly indi- cating his fear and the interfering effect of the question-as if the test of interference were actual effect rather than the tendency to interfere. My finding is based on the latter and I conclude that the Act was thus violated. It may be noted that violation could be found in these questions had the employee signed a card, but after the interrogation, and likewise had he not signed at all, in which case the likely argument would be that the questions had the actual effect of deterring him' Without undertaking to point out all such instances, I would note that another remark which Flowers attributed to McGill (as a threat or promise?) was not alleged Employee Shephard testified credibly that about Apnl 12 McGill asked him how things were going along with respect to the Union, that he replied that he guessed he would have to go union and, after McGill's further inquiry, said that he had his reasons, that McGill then asked whether he could talk to Shephard away from the plant, suggesting the latter's home, and that they then made an appointment for the following morning. McGill had also asked how the other men in the area were going, and he declared that if any would like to ask any questions, he would be glad to answer them. Three of the others joined McGill and Shephard at the latter's home the following morning. Near the end of their discussion, McGill expressed the hope that they would change their minds: they could vote as they pleased, but he hoped they voted for the Company. He asked Shephard to come by the next day and tell him how he was going to vote, and repeated, as he had previously said to Shephard, that the others would pretty much vote as he did. As Shephard was going to the polling place the following day, McGill called him over and asked which way he and the other were "going " Shephard replied that they had not changed they were going to vote for the Union. McGill's version is that Shephard approached him and said that he had some questions about the election and that, when he suggested that they had better talk ouside the plant, Shephard agreed, suggested his own home, and asked whether others might come since they might have questions also. The subjects allegedly discussed the following morning were quite innocuous, the election, scheduled for the next day, ap- parently wasn't even mentioned! This picture of mutual and complete unconcern with the election was marred only when, at McGill's car as he was leaving, Shephard allegedly volun- teered that he had not made up his mind, but would tell McGill before the election how he was going to vote. If, to change the figure, this did not disturb the existing harmony, a jarnng note was injected the next morning when Shephard approached McGill and told him that he had decided to vote for the Union. McGill's suggestion that Shephard ask his alleged questions away from the plant is itself suspect, as is McGill's account of the group discussion under the circumstances existing and after 747 the careful arrangement. But further, McGill noticeably flushed as he testified concerning his idea that, they meet outside the plant and Shephard's suggestion that other employees attend. I reject McGill's version, and credit Shephard's, and I find and conclude that the former was guilty of unlawful interrogation as alleged. It will serve little purpose to consider other allegations and instances of interrogation (even as in the breakroom, con- cerning which Supervisor Pillow could only testify that he did not recall it) We shall see below that circumstances, in connection with an alleged withholding of an increase, raise at least a question of credibility concerning statements made by Pillow to employee Brock. We can add Supervisor Quinn's questioning of Durbin before the January election, which was violative and included by amendment after Quinn testified concerning it 2. Threats and promises An implied threat might be found in Quinn's statement to Durbin about the first of the year that a mill in Humboldt which had a union had moved out But this was neither alleged nor litigated Durbin told us further that Quinn threatened that, if the Union came in, the plant would not grow despite the extra land available and the plans for expansion, and that he replied that, if it was planned to expand, that would occur "whether the union came in or not " Although admitting the interrogation which we have just noted, Quinn denied making the threat attributed to him. I have no sufficient basis for a credibility finding that he did threaten. Brock testified that Pillow told him that the organizational efforts had led to the denial of wage increases,4 and that if the Union obtained more than a 7-cent increase, the plant would shut its doors. It was pointed out, in denial and without contradiction, that Brock was at the highest classification and rating, and it is therefore doubtful that he would be spoken to about the denial of an inapplicable increase. Under the circumstances, I do not rely on Brock's testimony concerning the withholding of an increase or the threat of closure, which Pillow also denied Employee Williams testified haltingly but credibly that on the morning of April 13, the day before the election, Personnel Manager Drake called on him and spoke with him in front of his father's house, next door, and that Drake said in substance that if the Union were voted out, the men would receive a raise while, if it were voted in, they would not get anything. From an earlier statement given by Williams, and not now denied by Drake, it appears that the latter asked how he felt about the Union (another instance of interrogation) and that Williams replied that he was for it. Drake denied the promise and threat attributed to him by Williams He testified that he had known Williams for many years and that he now merely questioned Williams about his poor attendance record. Why he did not arrange to speak to Williams at the plant, and why he chose to do it on the day before the election, he did not explain. However poor Williams' record, there were no marked latenesses immediately before. Confronted with an earlier denial that he had ever visited employees at home prior to May 17, a month after the 4 Such statements will be further considered within. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election (thus emphasizing the timing of this visit), Drake admitted that he went to see Williams, but actually saw him next door. The evident concern which Drake now exhibited and his contradictions support the testimony that he promised benefits and threatened in connection with union acitivites. Employee Hunt testified that Drake called on him at home at dusk on April 13 and said that the men would get a 10-cent increase in June, but that they would not receive it if the Union came in. Drake denied that he visited Hunt, and evidence was received that he attended a meeting elsewhere at 7 o'clock that evening. The reference to dusk or "about dusky dark," Hunt's testimony that Drake was there 5 to 10 minutes, the agreement that the sun set at 6 28, and the further agreement that it takes approximately 15 minutes to drive from Hunt's home to the place of Drake's meeting do not prove that it was impossible for Drake to have been at both places as testified. On the other hand, these timing factors can no more that allow for such presence; they cannot prove the General Counsel's position. While the element of unreliability noted above in Drake's testimony leads me to doubt that Hunt's story was made of the whole cloth, the finding to be made is not sufficiently clear and I make none in this connection 3. Statements to employees concerning increases withheld We recall Brock's testimony concerning Pillow's reference to denial of wage increases. On a different level stand a letter and a speech made by McGill. On April 10 McGill mailed to all of the employees a letter in which he declared inter alga I have heard quite a lot of conversation about this subject [of merit or plant raises]. Some of you have said "the Company gives the raises and can do so when they want." True-the Company does give the raises and our Manage- ment here at Humboldt has done this yearly, both general raises and merit raises. The thing many of us don't realize, or perhaps know, is that during the time the Company received a petition for an election and a final election is held the Company by law is not allowed to give wage increases. Similarly on April 12, in a speech to the employees on each of the three shifts, McGill said- Several of you have talked to me about the normal and overdue merit increases, let me take this opportunity to explain to everybody why the holdup. The law does not allow any change in the condition of employment before or in between or the second election. This union would file unfair labor practices if we made merit increases. We are positive they would do that, because they have filed unfair labor practices because we moved employees from a job lower to a higher paying job with increases in some cases. No proof was offered to support the declarations of alleged fact that there had been "a lot of conversation" and that several employees had talked to McGill about merit increases. Cf Standard Coil Products' where, with the reference to withholding of increases, it was declared that increases would be granted as soon as the representation matter was resolved and regardless of the outcome; and where the fact of inquiries made was supported by evidence of employee knowledge of an increase at another of the Employer's plants. Still other facts noted as significant in that case are not present here. While, as we shall see, it cannot be said that increases would certainly have been forthcoming, the vice here lies in the reference during the union campaign to the absence thereof, if the increases were not regular and periodic, the rating reviews were, and would have been proper as in accordance with the Company's normal practice. Any fear that unfair labor practice charges might be filed, stemming from a Board agent's question on May 17 whether merit increases had been granted unlawfully could not justify McGill's letter and speeches of a month earlier. As for earlier fear of possible charges, the issue at the moment is not the withholding of increases or merit ratings, but the references thereto. I find and conclude that the letter and speeches were "calculated to influence [the] employees' choice of a bar- gaining representative"6 and were violative. 4. Rule against organizing activities It was admitted that the following notice was posted on the company bulletin board on November 11, 1966. No person will be allowed to carry on union organizing activities in the plant during working hours. Anybody who does so and thereby interferes with his own work or the work of others will be discharged. The allegation is of promulgation and posting, there is none of enforcement. To support the Company's explanation that the rule was posted to maintain production and discipline during working hours, it was testified for the Company that the reference in the posted rule was to union activities only because there was no other kind of solicitation on working time. In this connection the General Counsel offered a list of contributors to a flower fund It appears that this was posted at the cafeteria door sometime between the January and April elections, a box being placed with it and the employees signing as they contributed. It does not appear that the list's silent solicitation or the contributions occurred during working time, the location suggests that the employees were on break. We have testimony concerning one exception- Shephard, who told us about this, added that he made his contribution at his machine, giving it to the employee whose sister had died, the flowers being for the latter's funeral. Nor is there proof of solicitation contrary to the posted rule or of disparate treatment in the testimony that employee Kyle (one of the intervenors) was collecting money outside the plant door to buy company buttons When it was noted that this was outside the plant, Saranko, who testified to this, told us also that he saw the collection cigar box on Kyle's desk next to his machine. We do have evidence that Pillow in December 1966 passed a box around in his department for Blurton, a truck driver who was in the hospital. Since Pillow is a supervisor, the Company is responsible for his action even though he testified that he had never done this before and that he neither asked for permission nor notified his supervisors. But I would not base a finding of violation by the Company on this single instance; it 5 Standard Coil Products Company, Inc., 99 NLRB 899, 904, 905. See also Allen Fruit Company, Inc., 101 NLRB 761, 762. 6 Ambox, Incorporated, 146 NLRB 1520, 1521. ALTON BOX BOARD CO. does not prove that the posting was disparately enforced or violative. Indeed, the exceptional aspect of Pillow's action is emphasized by the solicitation outside the plant the following month. The timing of the posting may warrant a finding that the rule was discriminatorily promulgated and posted.' While this rule was posted in the middle of the Union's earlier campaign, which began in September 1966, and before the first election, which was held on January 13 and thereafter set aside, we have seen that, with the single exception which occurred after it was posted, there was no occasion for a broader rule and no disparateness in its application and enforcement. I find and conclude that the promulgation and posting were not violative. 5. Rule against smoking The allegation that a rule restricting smoking in the restrooms has been enforced since about January 20, 1967, is admitted; denied is the companion allegation that this has been done because employees engaged in union activities, the Company's position being that such a rule had been enforced since long before that date. Received in evidence and testified to by Production Manager Rogier was a notice dated March 1, 1966, from Rogier to all foremen, in which he cited the rule which the Company "originally" had Anyone caught smoking or loitering in the restrooms except during normal company break periods will be subject to immediate dismissal. The notice further informed the foremen, "... the rule is to be enforced" by them 48 hours after its distribution. Such a rule was evidently not being enforced at that time, and it will become evident that it was not thereafter enforced in the intervening year prior to its admitted enforcement since January 20, 1967. Saranko testified that before the January election there was no rule against smoking; he had been permitted to smoke in the restrooms when there on breaks or "for the normal purposes", he could (whether he actually did is not clear) go there merely to smoke. French testified that before the January election, although he smoked in the restroom when he otherwise found it necessary to go and he did not go there merely to smoke, there was no policy concerning smoking in the restroom. Shephard knew of a rule against smoking in the restrooms. He testified first that he did not know of any instance when it was enforced but, his recollection refreshed by an earlier statement, he told us that the rule had been enforced in November 1966. Employee Moody's knowledge and experience were dif- ferent. Before January 13, he told us, he knew of no rule against smoking, and he went into the restroom to smoke whenever he wanted to during slack periods "or if things would get too rough", but during the week after the January election Supervisor Williams told him, "Now no one will be allowed to smoke in the restroom." Brock, not very reliable in his testimony concerning another employee's card which he endorsed, testified uncertainly first that there had been a rule against smoking in the restroom and elsewhere, but then that Pillow told him that after the election. I do not rely on this testimony. (The witness did not indicate that he was basing his answers on a variance in the dates cited to him, January 20 and January 13.) 749 For the Company, Ziegler, the general foreman, testified that there "has always been a rule" against smoking or loitering in the restroom and that it had been "strictly enforced." If the rule had "always" existed as Ziegler testified, Rogier's memorandum to the foremen suggests that it had not been strictly enforced despite Ziegler's testimony that it had been since he came to the plant in 1963. Beyond that, if the rule was known to and recognized by some employees, clearly it had not been enforced or known to all or even to a substantial majority if we can judge from the testimony received. Here again we have the element of timing. If "as many as six or eight at one time" congregated in a restroom and prompted the March 1966 memorandum, there is no evidence to explain the admitted enforcement since January 1967 and the failures to enforce earlier, as testified. Such a rule does not appear to have been or to have been regarded by the Company . as a serious matter asked whether it appeared in the company rulebook, General Manager Collins replied that he did not know. The question was not pursued, and although Rogier's memorandum indicated serious and frequent violations, Collins told us further that no disciplinary action was ever taken because of such violations. Without supplying details or any information concerning action taken, if any, Ziegler testified, "As far as I know, all disciplinary action, as far as no smoking in the restroom, has been oral." Nor does Pillow's testimony support the claim that the rule had been earlier enforced. For while, enforcing the rule in January, he told the men under him that there was too much loafing and smoking in the restroom (he had seen 8 or 10 standing around loafing and smoking in the restroom a day or so before), he had observed that from time to time on various occasions since the previous August but had never warned or otherwise disciplined anyone for it. As Pillow explained it, he now spoke to his men about it "[f] or their own protection, for their own good." It is this sudden need for protection which is here attacked. There is no support for Drake's testimony that prior to the advent of the Union some foremen enforced the rule strictly, some not. The issue is not whether there had earlier been such a rule, but whether it had not been enforced while it now was enforced because of the employees' protected concerted activities. On the basis of all of the testimony on this issue, pro and con, I find and conclude that, the election having been held, the Company unlawfully retaliated by enforcing the rule. C. The Alleged Violation of Section 8(a)(3) Referring to the same merit increases concerning which McGill had written and spoken in April, it is alleged that merit increases have been withheld since November 4, 1966, because of the employees' union activities, and to induce them not to become or remain members. The violation alleged and argued by the General Counsel is the withholding of merit increases, not of any general increase, regular, periodic, and deter- minable. Nor, whatever the remedy might be in such a case, is the violation alleged to be the failure to make merit reviews. Here reviews and upgradings are assumed, and the allegation is that merit increases (in short, neither general increases nor merit reviews) have been withheld. 7 Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527, 528. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 10(b) limitation date in this connection is November 26, 1966, and we are limited to violations after that date. This covers merit reviews and ratings and merit increases in January or April 1967, when quarterly reviews would be but were not held. (Not in issue is the annual wage readjustment which was made in June and, we were told, was larger than normal because merit increases had not been granted.) A few classification change increases were granted, but these were objectively determinable without the element of discriminating (or discriminatory) award which characterizes merit increases; nor are they in issue We have already referred to the Company's fear, declared by Drake, of unfair labor practice charges if merit increases were given to some employees and not to others. To find, as we have, that McGill's references to the withholding of merit increases was violative is not to hold that there was an actual discriminatory withholding. The Company could well have feared, as Drake testified, that unfair labor practices would be filed if some increases were now granted; and while such fear could not be based on the later event, the reasonableness of the fear is supported by the Board agent's question to Drake on May 17, noted above. The Company was faced with a legal question to be decided at its peril. Whatever the answer to that question, and the finding which might be but now need not be based thereon, we must consider another aspect. The statements concerning withholding of increases were violative, as found, whether or not they were true no proof was taken nor was any necessary in that connection to show that increases were in fact withheld Where the issue is the actual withholding, however, rather than statements about it, proof of withholding is necessary, which is to say that certain merit increases would have been granted defining the em- ployees who would have received them and a reasonably identifiable amount in each case. (To point to McGill's admissions is to justify only the finding of interference.) I find and conclude that we have at most proof that rating reviews were withheld, not that merit increases would and should have been granted. Even McGill could not correctly say, before reviews were made and ratings established, that merit increases were withheld. (Drake told us that employees are rated quarterly but that the Company has no set policy to grant merit inceases.) Accuracy in this respect is important because it reflects what is alleged and also prevents us from creating a problem as to remedy. Whether for sufficient and valid reason or not, what was withheld was merit review, which might lead to increases. To say that merit increases were withheld is to assume without evidence a definite result from an unde- termined and now unmeasurable review. A finding of violation in failing to make merit ratings, were that alleged, would lead to the same complication with respect to remedy. By very definition, merit increases in this case depend on merit ratings and review. They are not automatic; and we do not even have standards, or reference thereto, for determination. If, despite fear and later threat that a charge of violation might be filed were increases granted, the failure to make ratings were violative, we are not empowered to make such ratings to support an award of retroactive increases and backpay. The General Counsel has neither submitted standards to be applied nor claimed the authority or ability to do so. Were it alleged that the withholding of regular or determin- able increases was violative, we would be concerned with finding "a basis for a reasoned conclusion"8 as to the amount of backpay. Nonexistent merit ratings do not provide such a basis. It is within the Board's power to direct reimbursement, were the amount reasonable determinable, on the 8(a) (1) finding made above that the Company referred to a with- holding of merit increases. Such withholding thus adirutted would provide basis for reimbursement, a basis which cannot be found in the omission of rating reviews which might have led to merit increases to unidentified employees and in unidentified amounts The issue can be approached in another way, no more satisfying to the General Counsel Although the distinction between increase based on merit review and those regularly granted or based on stated factors was noted at the hearing, the General Counsel has offered no authority in support of his position. The Board noted that "specific wage and fringe benefits" had been proposed in McCormick Longmeadow Stone Co., Inc ,9 cited by the General Counsel. M & W Marine Ways, Inc.,10 cited by the Company, involved merit increases presumably needed to meet compe- tition, a measurable element, and is hardly in point here. In The Borden Company,i 1 also cited by the Company, wage increase reviews according to past practice were suspended by the employer but, with indefinite postponement of the election, were granted. It is something else to say that a converse withholding of such reviews would have there been violative (the indefinite postponement would have been a consideration) or that an employer, making a decision under such circumstances, acts at his peril where discrunrnation is not in fact shown with respect to which employees might have been affected or to amount. These two cases lack the element of uncertainty of award and amount thereof which here exists Surely we must not overlook the Board's decision in Ambox, Incorporated12 as it bears on increases and announce- ment of increases while election proceedings remain undeter- mined. The Board there held that the announcement of a general increase "was calculated to influence" and was therefore violative of Section 8(a) (1) (like the announcements above). Granting of increases could, depending on other circumstances, be deemed similar interference with employees' choice of a collective-bargaining representative. If the increases in Ambox were not according to a regular schedule, any here could similarly be attacked as being without a fixed and nondiscriminatory basis. We can hardly hold that withholding of merit increases particularly is discriminatory. To permit or insist on such, with the inherent element of discretion, under such circumstances would be to open a Pandora's box of argument. Different from fixed, regular, or definitely ascertainable increases, what standards should be applied and how great merit increases recognized, and to whom, as proper while an election proceeding is pending? Would not the Board have to sit in judgment on the exercise of management's discretion (or itself 8 N.L R.B. v. Kartank, Inc., 227 F. 2d 190, 193 (C.A 8) Cf ascertained, used in making bonus payments in previous years... American Fire Apparatus Company, 160 NLRB 1318, where, there, 9 158 NLRB 1237, 1238. being no intervening element of rating or judgment not made, I the 10 165 NLRB No 24 Board declared that the amount of Christmas bonus paid to all 11 161 NLRB No. 114 employees was "to be determined by a formula , as neat as can be 12 146 NLRB 1520. ALTON BOX BOARD CO judge and pronounce on the basis of unidentified factors) where, unlike even the case where it is claimed that there has been an abuse of discretion, discretion with respect to identity of employees and amount of increase has not been exercised? To what extent was a merit increase justified in specific instances, and to what extent would such increases have been "calculated to influence" improperly? 751 Company to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith 16 1 FURTHER RECOMMEND that the complaint be dismissed insofar as it alleges violation of Section 8(a) (3) and (5) of the Act III THE OBJECTIONS TO THE ELECTION In one way of another it has many times been declared and recently repeated that 13 Where pre-election conduct of one of the parties has the undesirable effect of unduly influencing its result, the Board has set aside such election and ordered a new one. The Board has striven to conduct elections in an atmos- phere in which employees are free from pressure, coercion and undue influence from either the employer or the union. The Board has determined that elections must take place under "laboratory conditions" to enable employees to express their uninhibited desires. While the rulings on the objections to the election would appear to follow the findings of interference herein, I refrain from making such rulings in view of the limited scope of the consolidation by the Regional Director.14 With the agreement noted that the proof in support of the objections would at no point go beyond that offered with respect to the unfair labor practices, and on the basis of the violations found herein, I would recommend that objections 1, 3, and 6 be sustained, and that objection 2 be overruled. Because the conditions for a fair election have been destroyed, I would recommend further (but do not) that the election be set aside I as RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company, Alton Box Board Company, Humboldt, Tennessee, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning union activities, desires, and voting. (b) Promising benefits and threatening employees in con- nection with union activities (c) Informing employees that wage increases had been withheld because of union activities. (d) Because of union activities, enforcing a rule against smoking in the restrooms. (e) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in Humboldt, Tennessee, copies of the attached notice marked "Appendix."' 5 Copies of said notice, on forms to be furnished by the Regional Director for Region 26, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to its employees are cus- tomanly posted. Reasonable steps shall be taken by the 13 N L R.B v Tennessee Packers, Inc., 379 F.2d 172 (C A. 6) 14 Unlike a referral and consolidation "for the purposes of hearing, ruling and decision by a Trial Examiner" and transfer to the Board, the complaint herein recites a consolidation "for hearing " While this needlessly complicates the proceedings , it appears in order to sever the cases now that the hearing has been held (at the opening of the hearing, I denied the Company 's motion to sever), and to transfer the representation proceeding to the Regional Director Such severance and transfer are hereby effected. The election here was not held pursuant to an agreement under Section 102 62 (a) of the Board 's Rules and Regulations , Series 8, as amended . Cf Joslyn Stainless Steels, 167 NLRB No. 43 . It is only the limitation on the consolidation and referral here which requires the severance and return to the Regional Director for action with respect to setting aside the election. 14a Errata , dated December 18,1967 I note the Regional Director 's Order of June 30, 1967, amending his order of consolidation , and his amendment of July 3, 1967, to the Order Consolidating Cases I hereby revoke the severance indicated in my decision of December 11, 1967 , and I recommend that objections 1, 3, and 6 to conduct affecting the results of the election be sustained and that the election of April 14, 1967, be set aside. 15 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." 16 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 26, 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: WE WILL NOT interrogate employees concerning union activities, desires, or voting. WE WILL NOT promise benefits or threaten employees in connection with umon activities. WE WILL NOT inform employees that wage increases have been withheld because of umon activities. WE WILL NOT because of union activities, enforce a rule against smoking in the restrooms. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual aid or protection, or to refrain from any or all such activities All our employees are free to become or remain, or refrain from becoming or remaining, members of International Broth- erhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or any other labor organization. Dated By ALTON Box BOARD COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161