Consolidated Fibers

CONSOLIDATED FIBERS 843 Consolidated Fibers and Freight Checkers, Clerical Employees and Helpers Union , Local No. 856, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 20-CA-6427 June 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On December 30, 1971, Trial Examiner Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Consolidated Fibers, Oakland, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's recommended Order. was held in San Francisco, California, on September 9 and 10, 1971, before me. The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Since the hearing's close, briefs have been received from General Counsel's representative and Respondent's coun- sel. These briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary eviden- ce received, and my observation of the witnesses, I make the following findings of fact: L JURISDICTION Respondent raises no question with respect to General Counsel's jurisdictional claim. The complaint's relevant factual declarations-which are conceded to be correct -warrant the following determinations: That Consolidat- ed Fibers has been, throughout the period with which this case is concerned, a partnership whose partners have been Western Paper Stock Export Company and Comco Paper Stock Company, California corporations; that it has been engaged in the nonretail supply and distribution of paper products at Oakland, California; that, during the past year, in the course and conduct of its business operations, Respondent sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California; that, during the same period, Respondent purchased and received goods and products valued in excess of $50,000 which were shipped directly from out-of- state points I find that Respondent was, throughout the period with which this case is concerned, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner: Upon a charge and amended charge, filed November 12, 1970, and February 9, 1971, respectively, and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served on Consolidated Fibers, designated as Respon- dent within this Decision. The complaint issued on July 8,- 1971; therein, Respondent was charged with unfair labor practices affecting commerce, within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. 61 Stat. 136 73 Stat. 519. Within Respondent's duly filed answer, certain factual statements in General Counsel's complaint were conceded; Respondent, however, has denied the commission of unfair labor practices. Pursuant to notice, a hearing with respect to this matter Ii THE LABOR ORGANIZATION INVOLVED Freight Checkers, Clerical Employees and Helpers Union, Local No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, designated Complainant Union within this Decision, is and, at all material times herein, has been, a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issues General Counsel, herein, seeks a cease-and-desist order calculated to forestall a course of conduct-purportedly chargeable to Respondent's management-which inter- fered with, restrained, and coerced the firm's office and clerical workers with respect to their exercise of rights 197 NLRB No. 132 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statutorily guaranteed and which discriminated against them for the purpose of discouraging their adherence to Complainant Union herein. Further, General Counsel contends that various acts and statements purportedly chargeable to management representatives destroyed those "laboratory conditions" which have commonly been deemed necessary for conducting a fair and free election to determine whether Respondent's office and clerical work- ers desired union representation ; that the present possibili- ty of erasing these consequences of Respondent's statutori- ly proscribed conduct and guaranteeing the subsequent conduct of a fair election, through conventional proce- dures, must be considered slight and, therefore, that a bargaining order, bottomed upon Complainant Union's signed designation card showing of majority status, within a bargaining group limited to Respondent's office and clerical workers, should be considered necessary and proper. N L.R.B. v. Gissel Packing Company, 395 U.S. 575. The questions herein presented for resolution may, then, be summarized as follows: 1. Whether various acts and statements purportedly chargeable to Respondent's management, during a period which both preceded and directly followed Complainant Union's representation claim, interfered with , restrained, and coerced Respondent's office and clerical workers with respect to their exercise of statutorily guaranteed rights and concurrently subjected them to statutorily proscribed discrimination. 2. Whether the course of conduct chargeable to Respondent's management representatives effectively de- stroyed those "laboratory conditions" which this Board normally deems prerequisite when conducting representa- tion votes; whether the consequences of such conduct can possibly be erased, and a fair and free representation election subsequently conducted, by resort to conventional procedures. 3. Whether a bargaining order, bottomed upon Com- plainant Union's prior designation and selection by a majority of Respondent's office and clerical workers, should be considered necessary and proper. Regarding these questions, Respondent presently con- tends that General Counsel has failed to prove any course of conduct or statements, properly chargeable to Respon- dent's management, violative of statutory rights. Further, Respondent contends that Complainant Union herein -when it withdrew a Board representation petition filed concurrently with its recognition demand and, thereafter, sought to pursue its representation claim through certain dispute and grievance procedures set up pursuant to the National Master Freight Agreement, with respect to which Respondent was privy-made a so-called "election of remedy" which this Board, within its discretion, should now recognize as sufficient to bar Complainant Union's present resort to statutory procedures. B. Facts 1. The union campaign begins During October 1970, several of Respondent's Oakland clerical workers began to discuss the possibility of unionization. According to Donna Nestroyl, Respondent's accounts payable clerk , one such discussion took place in the firm's lunchroom . While it was in progress , Respon- dent's office manager, Anne Leff, allegedly joined the discussion. (The record contains a stipulation that Office Manager Leff, throughout the period with which this case is concerned, was a supervisor within the meaning of the statute. I so find.) According to Nestroyl, Leff advised the discussion participants to forget unionization, declaring that Respondent would never "go" for such a develop- ment. Respondent's office manager reportedly stated, further, that anyone desiring unionization could leave. "If you aren't satisfied, you know where the door is." Leff, so Nestroyl testified, then left. Some days later, according to Nestroyl, the subject of possible unionization was again raised during a scheduled office conference for clerical workers . Leff reportedly declared, once more, that they could "just forget" such a possibility, that Respondent's office workers had never been and never would be unionized, and that dissatisfied workers knew where the firm's door was. When queried further by General Counsel's representative, Nestroyl testified, finally, that Leff had likewise said girls "interest- ed in the union" would not have jobs. Leff, when summoned to testify as Respondent's "managing agent" under Rule 43(b) of the Federal Rules of Civil Procedure, was not questioned directly regarding these reported statements. Later, however, when queried by Respondent's counsel, she did deny-without elabora- tion or qualification-that she had never had any occasion to discuss "unions in general" with her subordinates in Respondent's lunchroom. Though she testified , in some detail, with respect to various matters customarily dis- cussed during periodic monthly staff meetings, Leff was not queried about her purported remarks regarding possible unionization during October's staff conference. Some corroboration with respect to Nestroyl 's testimony, dealing with Leff's purported comments, has been provid- ed by Jill Williams, Complainant Union's principal employee protagonist . She, too, charged Leff with lunch- room comments that there would be no union ; that anyone who tried to start a unionization campaign , or participate therein, would be discharged ; that Respondent had never had a union ; and that none would be permitted . Williams provided nothing more than generalized testimonial corroboration , however, with regard to Leff's purported repetition of these sentiments during a subsequent October staff discussion. Considered in totality, General Counsel's presentation -specifically with respect to these October developments -did not strike me as overwhelming or compellingly persuasive. Both Nestroyl and Williams did testify simply, straightforwardly, and with self-righteous conviction; their composite testimony, however, reflects some variant recollections which suggest their reliance upon less-than- perfect memories, seemingly buttressed , to some extent, with rationalization. (Nestroyl's prehearing statements, so the record shows, contain no reference to Leff's October comments.) In rebuttal, however, Respondent has proffered nothing more than Leff's general denial with respect to one segment, merely, of General Counsel's presentation. Upon CONSOLIDATED FIBERS 845 such a limited record, I find myself constrained to conclude that General Counsel's contention has been "preponderantly" supported. Respondent's office manager, while a witness, struck me as quite strong-minded, with a somewhat forceful "rough and ready" manner; the logic of probability persuades me that a person with her tempera. ment-upon discovering her subordinates consideringlunion- ization possibilities-would be more than likely to declare her views, regarding Respondent management's negative reaction, forthrightly and without qualification. I am satisfied, therefore, that Leff, during both her lunchroom and staff conference comments, did suggest-within the context of several remarks forecasting poor prospects for unionization-that those workers who were not "satisfied" were free to resign. With due regard, however, for her later conceded disclaimer, discussed more fully below, that Union supporters would find their job tenure in danger, I cannot credit Williams' or Nestroyl's purported recollec- tion that Respondent's office manager had flatly threat- enedI prospective union supporters with discharge. 2. Complainant Union's demand for recognition On November II and during the morning hours of November 12, pursuant to Williams' solicitation, 11 of Respondent's Oakland-based clerical workers signed cards which authorized Complainant Union to function as their collective-bargaining representative. Some time later, on the last designated date, Complainant Union's secretary dispatched a letter to Robert Scherman-concededly, then, Respondent partnership's executive head-claiming desig- nation by a majority of Respondent's office and clerical workers as their exclusive bargaining representative and requesting negotiations. Shortly after noon on the same day, Business Representative Rosa of Complainant Union hand-delivered a copy of this letter at Respondent's place of business. Within a short time thereafter, Scherman asked Leff whether she knew "anything" regarding Complainant Union's claim. When she responded nega- tively, Scherman requested her to question the workers concerned and determine what Complainant Union's claim signified.' Consistent with this directive, Respondent's office manager, so her testimony shows, summoned at least 5, possibly 7, of the firm's 20 clerical workers, separately, to her office. Leff 's testimony regarding her conversation there with one such worker, Carole Allen, reads as follows: I asked Carole if she had signed a card. I said I understand there's a number of people that wish to belong to the union, and I said did you sign a card and she wouldn't answer me, and she said will this jeopardize my job; and I said no. I might say that each of the employees that I asked, asked me the same question. Would I be fired over this, and my answer to them was no. Respondent's office manager, whose proffered recollec- tions in this respect were substantially corroborated by General Counsel's witnesses, Nestroyl and Jody Alexeev, 1 On November 12, Complainant Union filed the original charge herein, Respondent was charged, generally, with statutorily proscribed interroga- tion and threats Likewise, Complainant Union concurrently filed a representation petition (Case 20-RC-9697) seeking certification within a two of the workers questioned, declared that her talks with each worker followed a similar pattern. Most of the girls queried were reluctant to concede that they had signed Complainant Union's card; so far as the record shows, no more than two reported signing. Nevertheless, when Leff reported to Scherman later, she told him that a so-called "group of individuals" had signed cards looking toward a union representation vote. Scherman was told that Leff had spoken with no more than "four or five" clerical workers. He vouchsafed no comment. The present record, however, contains a stipulation that on November 12, and at all times since that date, Respondent partnership "orally refused and continues to refuse" to grant Complainant Union's recognition demand until that Union wins Board certification. No reliable, probative, or substantial evidence has been proffered regarding the next contact between Complainant Union and Respondent's representatives. The record does, however, reflect a union representative's statement-made during subsequent "grievance" proceedings which I pro- pose to discuss further within this Decision-that two union business representatives met with Respondent's counsel on November 17; that counsel declared that Respondent partnership "wanted an NLRB election" within a bargaining unit which then encompassed 20 clerical workers; and that Complainant Union then, for the first time, learned Respondent was privy to the National Master Freight Agreement and maintained contractual relationships thereunder with both Local 70 and Local 287 of the International Brotherhood of Teamsters. Respon- dent's counsel, speaking for his client herein, substantially corroborated this purported summary. 3. Complainant Union's quest for recognition through National Master Freight Agreement Procedures On November 20, Secretary Tham of Complainant Union notified Respondent by letter that, since "no reply" had been received to Complainant Union's November 12 letter, the Union was filing charges with the Joint Western Area Committee created pursuant to the National Master Freight Agreement, claiming a violation of article 2, section 3 thereof. That contractual provision, now in force, provides, in relevant part, that: At such time as a majority of [employees of a signatory employer who have not designated a signatory union as their collective-bargaining agent] in an appropriate bargaining unit, designate, as evidence by a card check, a signatory union as their collective bargaining agent, they shall automatically be covered by this Agreement and applicable Supplemental Agreements. Substantially, so the record shows, Complainant Union was contending that-since Respondent was then privy to the National Master Freight Agreement with respect to some Oakland and San Jose, California, drivers and warehouse workers-nothing more than a card check, confined to Respondent's previously unrepresented Oak- bargaining unit defined to encompass Respondent 's Oakland office clerical workers Whether Complainant Union's representation petition and concurrent charge were filed before Rosa 's visit to Respondent's place of business, or thereafter, the present record does not show 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land clerical workers, should be required to determine Complainant Union's majority representative status. Consistently, within a letter dated December 2, Com- plainant Union's secretary notified the Regional Office that the Union wished to withdraw its Case 20-RC-9697 petition for certification. Respondent's counsel, however, protested. First, he contended that the National Master Freight Agreement had no application with respect to Respondent's clerical workers' representation. Second, he suggested that Complainant Union's withdrawal request should not be considered genuine since recognition was simultaneously being sought dehors Board procedures pursuant to purported contractual provisions. Within a December 16 letter, Respondent's counsel was notified, however, that, with due regard for the relevant circum- stances, the Regional Office was "obligated" to accept Complainant Union's withdrawal request, notwithstanding the Union's concurrent claim for recognition pursuant to designated contractual provisions. Concurrently, Com- plainant Union was told that the withdrawal request had, in fact, been approved. 4. Changes in working conditions With matters in this posture, General Counsel contends that Respondent's management, beginning on or about November 12 and continuing thereafter, prescribed more stringent working conditions for Respondent partnership's clerical workers and denied them pay raises because of their demonstrations of support for Complainant Union or their membership therein. Supporting this contention, General Counsel has proffered several witnesses whose testimony-should it be credited-would warrant the following determinations: 1. Time Records. That, within 1 week following Novem- ber 12, Respondent's clerical workers, who had previously been held responsible for keeping their own time and attendance records, were directed to sign in and sign out, throughout their working day, on similar timesheets, which were thereafter kept on the company bookkeeper's desk. 2. Make-Up Time. That Leff's previously liberal prac- tice, whereby workers were permitted to "make up" time previously taken off- for personal business or time lost through tardiness within a given pay period, was signifi- cantly modified, with workers first being denied any chances whatsoever to "make up" lost time, and subse- quently being permitted to "make up" such time only through Saturday work. 3. Coffee and Food. That Respondent's previous permis- sive practice, whereby clerical workers were permitted to consume food or drink coffee and other beverages at their desks throughout the day, so long as they were not sloppy, was completely rescinded, with violators of the newly proclaimed restriction subject to reprimand. 4. Harassment That Respondent's office manager, who had never previously pressed Nestroyl for greater working speed with respect to her daily mail opening and mail delivery responsibilities, began to harass her with repeated queries "all the time" regarding the prospective completion of these designated tasks. 5. Telephone Calls. That Respondent's previously liber- al practice with respect to telephone usage, whereby clerical workers were permitted to use their desk tele- phones freely for both intraoffice and outside personal calls, though they were not supposed to abuse this privilege, was significantly modified , with some four or six office telephones changed to require the routing of outside calls through Respondent's switchboard, so that they could no longer be dialed directly. 6. Christmas Party. That Leff's program for the firm's previous 1969 Christmas party, which had been celebrated at a quality restaurant nearby, with a half day holiday on the afternoon of Christmas Eve, was neither duplicated nor matched during the 1970 holiday season. 7. Nestroyl's Reassignment That Nestroyl, Respon- dent's accounts payable clerk, who had been previously relieved, pursuant to her August 1970 request, from periodic temporary designations to service Respondent partnership's office reception desk , was reassigned to such duty. 8. Medical Appointments That Williams, Respondent's accounting machine operator, who had previously been permitted to leave work whenever she had to visit her physician during working hours and to make up her work time lost thereafter, was told she would not, henceforth, be permitted to resume work following such visits unless she presented a written note from her physician and that she would no longer be permitted to make up worktime lost for doctors' office visits. 9. Year-End Bonuses. That Respondent's management, which had previously given various "eligible" clerical workers Christmas or year-end bonuses, in varying amounts, during both 1968 and 1969 calendar years, provided no bonuses whatsoever for clerical workers during the 1970 calendar year. 10. Three-Month Salary Increases. That Respondent's management, which had previously promised and granted raises to new clerical workers routinely after 3 months following their hire dates, withheld such a promised raise for Cynthia Lindsey following Complainant Union's recognition demand, purportedly because the representa- tion "matter" which that Union's recognition demand had raised precluded all raises until its final resolution 11. Annual Wage Reviews. That Respondent's manage- ment, which had, pursuant to policy, previously conducted regular January 1 wage reviews,, followed by February merit raises for those deemed worthy, postponed the regular wage review which it normally would have conducted shortly after January 1, 1971, because Com- plainant Union's representation claim had not yet, then, been resolved. With respect to these various matters, so the record shows, Nestroyl was General Counsel's principal witness. Her testimony was, however, corroborated partially by three of Respondent's present or former clerical workers. Save for some partial testimonial corroboration, prof- fered by Richard Stovroff, Respondent's nominal presi- dent, Office Manager Leff provided Respondent's primary rebuttal with respect to these several charges. Substantially, she contended that the so-called "changes" reported really reflected reaffirmations of company policy previously stated or changes dictated by business necessity. Her CONSOLIDATED FIBERS 847 testimony, in this connection , may be summarized as follows: 1. Time Records Respondent's change in timekeeping procedure was conceded . Leff declared , however, that the firm's clerical workers had not, habitually , kept their time records current ; that before semimonthly paydays, when the timesheets were collected, many would complete them hurriedly , and that such completed up-to-date timesheets could not be collected , when needed, from absent workers. Respondent's management therefore concluded, so Leff testified, that payroll preparation would be simpler with the timesheets kept "in one central location " and with everyone signing in and signing out daily , rather than close to their pay period's completion. 2 Make-Up Time Respondent's office manager con- tends herein that the firm's generally permissive policy with respect to make-up time was maintained without change throughout the period with which this case is concerned . While a witness , however, she described Respondent's policy in seemingly divergent terms. First, she declared that following November 12 any worktime lost had to be made up within the same calendar week. Then, she reported that Respondent 's workers were "asked" to make up such time within the pay period during which their worktime had been lost , since Respondent's pay periods were semimonthly , Leff's second formulation suggested that make -up time could sometimes be worked following the calendar week within which worktime had been missed . Further, Respondent's office manager testi- fied, initially, that she had discouraged workers from making up lost time by taking shorter lunch hours. Then, she conceded that, during busy periods , such a make-up time practice might be permitted ; she noted that some clerical workers might have made up lost worktime during their lunch hours since November 1970, but contended that she could not so testify positively, without checking Respondent's time records . Leff's testimonial description of Respondent's policy suggested that workers were permitted to make up lost time on the very same day during which some of their regular worktime had been missed ; she denied categorically that Respondent 's clerical workers had ever been given a contrary directive . Never- theless, she conceded, while a witness, that , within a prior sworn statement, she had reported telling Respondent's workers "that they could not make up time on the day they had lost it." The significance of these testimonial discre- pancies will be discussed further within this decision. 3. Coffee and Food Respondent's minute records with respect to Leff's periodic clerical staff meetings reveal frequent references to housekeeping problems resulting from the workers' consumption of food and beverages at their desks . During 1969, so these minutes show , the firm's clerical workers were directed , at least once , to clear soda cans and candy wrappers from their desks; on December 31, 1969, they were told flatly that there would be "no more eating" permitted at desks, though coffee drinking would be permissible . Thereafter, during 1970, Respon- dent's workers were first directed to clear their desks before leaving work , with "empty coke bottles, etc." thrown out; on May 14 and June 10, however, they were again told that they were "no longer to eat" at their desks, though coffee or soft drinks consumed in cups or glasses would be permitted. By August 17, this prohibitory directive had been softened; the employees were told that cups and glasses should be put away by closing time, that their desk drawers should be kept clean , and that "crumbs" should be placed in the wastebasket. During a November 6 staff meeting, Respondent's office manager merely proscribed "food or beverages" near certain office machines. (While a witness, Leff conceded that, shortly after Complainant Union's November 12 recognition demand, she did make several verbal announcements, without calling a staff meeting, which encompassed, inter alia, a request that workers should "please" not keep food at their desks.) By February 16, 1971, Respondent's clerical workers were, again, being directed to clean out their desks and to dispose of "fruit, soup, etc." together with other useless materials. With matters in this posture, so Respondent's office manager presently contends, her late November 1970 verbal directive merely reflected a reiteration of standard company policy. 4. Telephone Calls Respondent's minutes for several staff meetings reflect a company policy whereby clerical workers were permitted to use company telephones for personal calls provided such calls were made on the worker's own time, with "emergency" calls permitted, however, during working time. Despite this, Leff substan- tially conceded a generally permissive company posture with respect to telephone usage by clerical workers so long as such privileges were not abused; she contended that this permissive policy subsisted throughout the period with which the present case is concerned. Respondent's office manager did confirm General Counsel's charge that, within a month following Complainant Union's recognition demand, the desk telephones of some four to six clerical workers were physically modified to require the routing of their outside calls through Respondent's switchboard, so that such calls could no longer be dialed directly She contended, however, that this was done upon "economic" grounds; that those workers whose telephones were "restricted" were not normally required to make outside business calls; and that those specific modifications which were made did not, in any event, completely preclude the workers affected from making outside calls, whether for personal or business reasons. 5. Christmas Party Respondent's 1969 Christmas party was, so the record shows, held at the Black Angus, located in Jack London Square, Oakland, California. Leff conced- ed that the firm's 1970 party was held in the office between 11 o'clock and 2 or 3 in the afternoon. She noted, however, that the company's "economic position" was not good, thus implying that management's decision to hold a less lavish Christmas party reflected fiscal conservatism. 6. Nestroyl's Reassignment The record warrants a determination that, for about 1 year before September 1970, Nestroyl had been designated to serve a regular relief stint at Respondent's front desk between noon and 1:00 p.m.; Leff conceded that Nestroyl had finally strongly protested her designation for reception desk duty. Respon- dent's office manager declared, however, that such front desk relief, during the regular receptionist's lunch hour or during periods when the receptionist might be ill represent- 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed light duty, since there were comparatively few business visitors daily; that temporary designations for such duty were routinely rotated ; and that Nestroyl had initially been tapped for such relief work because her regular work materials were readily portable, so that her work could be handled while Respondent's front desk was being manned. Leff testified, nevertheless, that Nestroyl had been relieved from reception desk duty following her protest . The record does show that Nestroyl has since been reassigned such relief work occasionally ; Leff presently contends, however, that her reassignments have been dictated by need. 7. Year-End Bonuses. The record does show that Respondent's management, during December 1968 and December 1969 particularly, had given various clerical workers Christmas or year-end bonuses in diverse amounts; Leff's testimony, indeed, warrants a determina- tion that such bonuses were given all clerical workers with a certain minimum period of service who were still in Respondent's hire during the months in question. These bonuses, so Respondent's office manager testified, were calculated on the basis of each worker 's longevity and performance record . (They ranged from $ 100 to $725 per person during December 1969; comparable sums had been paid during the previous calendar year.) During December 1970, no clerical workers, concededly , received bonus payments . Respondent's office manager testified categori- cally, however, that no bonuses whatsoever were then dispensed in Respondent 's name. 8. Annual Wage Reviews. The record shows that Respondent partnership, for the first 2 years following its June 1968 formation , reviewed wage rates currently being paid on each January 1; thereafter, merit raises would be granted particular clerical workers deemed worthy . Specifi- cally, wage reviews , followed by raises, were conducted during January 1969 and January 1970. While a witness herein, Leff conceded that Respondent's management conducted no wage review during January 1971; she declared that the regularly scheduled review had been foregone pursuant to counsel's advice. According to Leff, Respondent's management was counseled "to hold status quo" because the firm was "in" negotiations ; she told her subordinates, whenever the question of salary review was raised, that "due to the hearings , we wish to maintain an impartial stand and keep this status" without change. Respondent's clerical workers were told, further, that no wage review would be conducted "until settlement was made or until we understood where we were going" with respect to union representation. However, Respondent's office manager testified further that, when this manage- ment decision was made, there was no "anticipation" that "negotiations" with respect to representation would last any great length of time. According to Leff, Respondent's management finally determined, when Complainant Un- ion's representation claim remained pending through April 2 Within his brief, General Counsel notes that Respondent has proffered "no evidence" that clerical workers were, once more, being "sloppy" at their desks, during a period which immediately preceded Leff's November reaffirmation of her prior directive Respondent's purported failure in this respect, however, cannot, without more, be considered sufficient to satisfy General Counsel's statutory burden Since no reliable, substantial, or probative showing has been made-beyond a bare implication derivable from Nestroyl's testimony-that Leffs pronouncement was reiterated 1971 without resolution, that it would be "only fair" to review current salaries and grant merit raises retroactively. Respondent's office manager then testified, without con- tradiction, that a belated wage review was conducted and that checks which reflected raises granted retroactively, back to February 1, were distributed on April 30 or May 15, thereafter. I so find. With respect to several matters which General Counsel's witnesses had discussed, Respondent's counterpresentation reflects no rebuttal. Specifically, with respect to: (1) Nestroyl's claim of personal harassment; (2) Williams' testimony regarding Leff's declaration that she would be required, thereafter, to produce a written doctor's excuse following any period of absence for medical reasons; and (3) Lindsey's testimony that she was denied a promised raise due December 16, 1970, following her completion of 3-months' service, the present record shows no denials. Upon this record, with due regard for General Counsel's failure to controvert some major portions of Respondent's defensive presentation, certain factual determinations, within my view, must be considered warranted. First. Leff's reaffirmed directive, following Complainant Union's recognition demand, that Respondent's clerical workers would not be permitted to consume food at their desks, clearly constituted nothing more, so I find, than a reprise of her previously less-than-successful tries to control a recurrent "housekeeping" difficulty. General Counsel's presentation herein provides no reliable, proba- tive, or substantial basis for rejecting the office manager's contention that food consumption by Respondent's clerical workers, while at their desks, created recurrent problems; I find that it did.2 It is argued, of course, that Respondent's prohibitory rule, previously promulgated, had never been rigorously enforced; General Counsel suggests, therefore, that, when Respondent's office manager, following her reiterated November directive, reprimanded Nestroyl and Williams for purportedly violating the firm's "no food" rule, such "stringent" reaffirmations of the rule reflected a policy shift with respect to the rule's enforcement, realistically calculated to convey management's sense of displeasure over Complainant Union's recently presented representa- tion claim. Considered in totality, however, the present record will not, within my view, preponderantly support such a suggested conclusion. Determination seems war- ranted, merely, that Respondent's office manager, when confronted with a recrudescence of this particular "housek- eeping" difficulty, shifted from simple hortatory tactics to reprimands, for the time being, hopefully seeking positive results. Second: General Counsel's presentation, considered as a whole, does not, within my view, preponderantly overcome Respondent's contention that some supposedly retaliatory "changes" challenged herein derived from business consid- without reasonable cause, General Counsel's suggestion that her directive necessarily derived from statutorily proscribed motives must fall Further, should a presumption nevertheless be found warranted , arguendo, that Respondent's workers were not, just then, creating serious housekeeping problems, Leff's decision to reaffirm her prior "no food" rule nevertheless could not, in any event, be faulted "The pedestrian need not wait to be struck before leaping for the curb " See Betts Cadillac Olds, Inc, 96 NLRB 268, 286 CONSOLIDATED FIBERS 849 erations. Specifically, with respect to Respondent's conced- ed modification of timekeeping procedures for clerical workers, Leff's testimonial recital, wherein she detailed several of her prior timekeeping system's deficiencies, stands without contradiction. (Nestroyl's testimony reflects a concession that Leff had expressed concern about the workers' reporting for work on time, and recording their time at work correctly, during an August 17, 1970, staff meeting.) Further, nothing within the present record would warrant a determination that the firm's newly modified timekeeping procedure was really more time-consuming, demeaning, or burdensome. General Counsel does, however, suggest that, before Respondent's time-keeping procedures were changed, the firm's clerical workers had "some control" with respect to their working hours, since they could make up time lost whenever they were tardy, or whenever they had to leave work for "essential" personal reasons, and then record such make-up time worked on timesheets which they personally maintained. Pointing to Respondent's purport- ed decision whereby these workers were "no longer permitted" to, make up missed working time, General Counsel contends that Leff's revised timekeeping system was calculated to facilitate enforcement of this discrimina- tory change in policy. Thus, so the argument runs, Respondent's revised procedure for handling time records should be considered part of management's program of reprisal, since the denial of "make-up time" privileges, which it was calculated to police, worked a hardship on the firm's clerical workers. This rationale, however, cannot be considered persuasive, primarily because the record with regard to Respondent's purported change in "make-up time" policy, which will be reviewed hereinafter, provides no reliable, substantial, or probative support for General Counsel's contention that the workers concerned were completely denied make-up time privileges previously enjoyed, directly following Complainant Union's recogni- tion demand. With matters in this posture, Respondent's present contention that the change derived from business consider- ations solely cannot be considered significantly overborne. Respondent's 1970 Christmas party, following Complain- ant Union's representation claim, may, conceivably, have been, by some standard never specified, less lavish, less prolonged, and less convivial than the previous year's party; the firm's clerical workers may have been required to provide their own refreshments. General Counsel's presentation, however, reflects no testimonial traverse covering the office manager's contention that her firm's "economic position" when 1970 drew to a close was generally less favorable than it had been 1 year previously. (Within his brief, General Counsel's representative makes no reference to this complaint, mentioned in Nestroyl's testimony.) Since the record does provide some limited factual support for Leff's conclusionary statement, without provid- ing countervailing evidence sufficient to warrant its rejection, her proffered justification for Respondent's presumably scaled-down Christmas party must be consid- ered worthy of credence. Finally, Respondent's failure to pay December 1970 Christmas bonuses stands conceded. However, General Counsel's contention that Respondent's decision to refrain, so far as the firm's clerical workers were concerned derived from purposes- of reprisal can hardly be considered proven. Leff's testimonial statement, never challenged , that Respondent's year-end "economic posi- tion" was less favorable than previously , has been noted. The fact that Williams may have been told-some 3 or 4 months previously-that she would get a Christmas bonus does not, without more, warrant this Board's rejection of Leff's testimony . General Counsel does, however, note further that Respondent's employees were never told bonuses would be withheld for economic reasons . Manage- ment's failure to lay bare its reasons, under the circum- stances herein present, may, indeed, warrant a suspicion that something more than simple business judgment dictated its decision ; that failure, however, can hardly be considered sufficient to justify General Counsel's present contention. The office manager's further testimony that Respon- dent's management personnel likewise received no bonus payments stands without contradiction . With due regard for the present, limited record, Leff's necessarily implicit contention that bonus payments were withheld for business reasons, within my view, cannot be considered preponder- antly overcome. Third: With respect to several "working conditions" previously discussed, General Counsel's presentation, considered in context, will not preponderantly support a conclusion that Respondent's management consciously and deliberately promulgated "changes" bottomed upon statutorily proscribed consideration. Specifically, with respect to Respondent's so-called "make-up time" policy, previously mentioned, General Counsel's case derives primarily from whatever testimony Nestroyl and Williams proffered. The former did testify, inter alia, that, shortly following Complainant Union's recognition demand, her superior "announced that we were not allowed to make up any time" but that perhaps 1 or 2 months later the firm's clerical workers were permitted to recoup their lost time by Saturday work . The present record, however, provides no probative or substantial basis for concluding that Nestroyl was personally deprived at any time of her previously conceded right to make up lost working hours. Her testimony does suggest that-with respect to one occasion never properly dated for the record-she protested a directive that she recoup her lost time by working Saturday morning. Leff's proffered recollection regarding this contretemps , however, reveals that Nestroyl was merely told her lost time would "have to be made up" within the "same" pay period and within Respondent's Oakland office, if not on Saturday, then some time during the firm's regular working hours. Nestroyl was never recalled to rebut this contradictory testimony ; Leff's recital, which I find consistent with the record considered , as ,a whole, has been credited. In this connection, Williams, who did testify without qualification that she was personally denied the right to work "make-up" time, conceded, during cross-examina- tion, that "other persons in the office were not denied make-up time" though she was. Despite these testimonial variances with regard to Respondent's purported policy 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change, General Counsel contends that Leff's proffered description of her firm's supposedly consistent policy reflects various discrepancies sufficient to warrant her testimony's total rejection. This trier of fact, however, has not been persuaded. Rather, the present record considered in totality, within my view, reflects a generally permissive company policy with respect to working "make-up" time, maintained throughout the period with which this case is concerned, which Respondent's office manager, neverthe- less, may well have administered somewhat inconsistently with various ad hoc modifications . Inter aka, Williams' personal freedom to recoup lost working time was, presumably, restricted ; her testimony, with respect thereto, rings true. Nevertheless , General Counsel's presentation will not, within my view, support a determination that, dunng the period with which we are concerned, Respon- dent's management completely revoked a generally main- tained permissive policy with respect to working make-up time; nor will it preponderantly sustain a conclusion that Williams, particularly, wash restricted for statutorily pro- Iscribed reasons. Nestroyl's further testimony that , following Complainant Union's recognition demand she was persistently pressed to perform her mail handling duties faster , merely reflects a subjective reaction proffered without testimonial or cir- cumstantial corroboration . Despite Leff's failure while a witness to note her denial , I find Nestroyl's testimony in this connection, standing alone, less than sufficient to support a determination that she was really harassed or chivvied without justification , or for nonwork-related reasons. General Counsel's representative, within his comprehensive brief, proffers no such contention. Leff's conceded decision to have certain office tele- phones physically modified so that persons using them for "outside" calls would have to route such calls through Respondent's switchboard, within my view, reflects no really restrictive change in company policy. The record, save for a brief unsupported comment in Nestroyl's testimony which I do not credit , will support a conclusion that Respondent's clerical workers, generally, were still permitted to make "outside" personal telephone calls, at any time, so long as that privilege was not abused. The record does warrant a determination that , following several observations by a superior , Williams was separately directed, both orally and within a written November 24 memorandum, to refrain from using company telephones, except for "emergency" calls. While a witness, she conceded, however, that Respondent's stated reason for this particularized restriction was because she was making "too many" telephone calls; she conceded further that, when confronted with this charge, she had vouchsafed no reply. Consistently, while a witness herein, she advanced no claim that Respondent's charge, when made , lacked justification. Within his brief, General Counsel has suggested that Respondent's management proffered no "legitimate expla- nation" for physically modifying certain telephones ; Leff's rather offhand testimonial declaration that the modifica- tions were economically motivated is characterized as contrary to common sense. But Respondent's mere failure to prove that these challenged modifications really promot- ed savings cannot be considered a reliable , substantial, or probative basis for General Counsel's directly contrary contention that they constituted a so-called "harassing" tactic. The record reflects Nestroyl's concession that Leff had, previously, cautioned her staff not to abuse their telephone privileges. General Counsel 's representative does suggest, however, that the program's timing, plus the limited selection of persons whose telephones were modi- fied, provide sufficient ground for a determination that Leff's move constituted calculated harassment. The record considered in totality, however, provides no real proof, within my view, that Respondent's clerical workers, with Williams possibly the sole exception , were personally discommoded or significantly restricted with respect to their use of company telephones. With respect to Nestroyl's redesignation for relief receptionist work, credible testimony does warrant a conclusion that she was assigned such relief work for some time, never specified, following Complainant Union's recognition demand, despite her previously voiced threat to resign should Leff continued to give her "front desk" duty. Nestroyl could not, however, recall how long these renewed "front desk" assignments continued, nor could she proffer a guess as to precisely "why" she had been thus reassigned . When questioned regarding the basis for her prior protests, Nestroyl had merely declared that she found it burdensome and time-consuming to move her work materials and that she had not been able to get her regular work done. In rebuttal, however, Leff claimed that Nestroyl was redesignated for relief receptionist duty, despite her previously proffered protest , because she was "needed" when the firm's other relief receptionist was sick, and because she (Nestroyl) was "most" conveniently available for temporary transfer. Respondent 's accounts payable clerk was not summoned to contradict this proffered rationale . With such a limited record, this trier of fact is confronted now with divergent , rather than contradictory , testimonial statements, conclusionary in content, each standing alone without corroborative factual detail or purportedly "objective" support. General Coun- sel's presentation, within my view, could perhaps be considered sufficient to generate some "suspicion" that Leff's purpose in renewing Nestroyl's relief receptionist designation, under the circumstances, was retaliatory. Testimony which merely generates suspicion, however, cannot be considered weighty enough to satisfy General Counsel's burden of proof, with regard to Respondent office manager's "true" motive. General Counsel next contends that "further harass- ment" of Respondent's clerical workers subsequent to November 12 was manifested when Leff promulgated a so- called "new" rule, pursuant to which those workers who were required to visit a physician dunng working hours were told to present written medical excuses before being permitted to resume work. The present record, however, provides no support for General Counsel's contention that this so-called "rule" was generally promulgated . His sole witness regarding the rule , Williams, testified that she was given Leff's edict during a private conversation. Further, Williams conceded that, since she had undergone surgery shortly before, her absences from work to visit her CONSOLIDATED FIBERS 851 physician had, before the conversation now in question, been frequent. Finally, she conceded that Respondent's office manager had ultimately characterized her "doctor's excuse" requirement as merely prospective. (The record, however, contains no reliable, substantial, or probative evidence that the supposed "rule" was ever enforced thereafter, even with respect to Williams' subsequent doctor's appointments ) With matters in this posture, Leff's mere verbal pro- nouncement regarding her new requirement so far as Williams was concerned, though possibly subject to censure as nonwarranted and captious, can hardly be considered "harassment" subject to statutory prohibition; General Counsel's contention with respect thereto, within my view, cannot be considered preponderantly proven. Fourth: There remain, for present consideration, Respon- dent's management's conceded decisions to suspend a scheduled wage review and concommitant salary changes, pending a settlement of Complainant Union's representa- tion claim. With respect thereto, the record reflects no contradiction of Cynthia Lindsey's testimony that she was denied a previously pronused raise supposedly due December 16, following her completion of 3-months' service; this, despite a conceded company practice with respect to such "three month" raises, for newly hired workers. Further, the record shows without contradiction that, since Respondent's formation, wage reviews had been conducted each January, and that merit raises had been granted effective some time during February thereafter. No such wage review was conducted during January 1971 and no merit increases were granted Respondent's clerical workers were, concededly, told that their possible raises were being withheld pending some final disposition of Complainant Union's recognition demand. The signifi- cance of these conceded management determinations will be discussed further within this decision 5. The Joint Area Committee session On January 19, 1971, during the afternoon, the Joint Area Committee, pursuant to the National Master Freight Agreement, convened to consider Complainant Union's contractually based representation claim. Two business representatives presented Complainant Union's case; Leff appeared in Respondent's behalf Following Complainant Union's presentation, Leff conceded Respondent's status as a National Master Freight Agreement signatory, but contended that, with respect to Complainant Union's recognition demand, this Board's jurisdiction should be considered paramount. With matters in this posture, the committee decided, upon a motion made and seconded by two employer members, that, since Respondent was a National Master Freight Agreement signatory, the case was properly before them. However, upon a motion thereupon made that Complainant Union's position with respect to the merits should be sustained, the six members of the bipartite panel deadlocked. 6. The subsequent office discussion Following this committee session, Leff returned to Respondent's premises. Some six clerical workers, thereaf- ter, separately made their way to her office; they asked what had happened. When Leff reported the committee's tie vote, Nestroyl asked what that meant. According to Nestroyl's testimony herein, Leff replied that the matter would be considered by another council and that "with negotiations and with everything," 2 years might be required to reach a settlement. With respect to subsequent developments during this discussion, the composite testimony of Nestroyl, Lindsey, and two more clerical workers, should it be deemed worthy of credit, would warrant the following deterrmnations: That Nestroyl asked what would happen with respect to their raises and was told that none would be granted until Complainant Union's representation claim was settled; that Ethel Lewis, Vice President Bloom's secretary, then declared her desire to discuss a petition to oust Complain- ant Union from Respondent partnership; that Nestroyl thereupon asked whether 100 percent concurrence would not be required "as far as signatures go" to oust Complainant Union herein; that Leff responded affirma- tively, declaring that the girls' decision would have to be unanimous; that Nestroyl then declared her view that such a goal would not be reached, to which Leff responded with "something like" a comment that the workers would then be stuck; that a general discussion then ensued concerning who would and would not sign a petition; that Nestroyl then, according to Lindsey's recollection solely, asked what would happen should no petition be signed, to which Leff replied that "no raises or anything" would be given; and that Leff, when queried further as to whether the firm's clerical workers would get raises and further benefits should they sign the petition, suggested they sign it and take their chances. According to Nestroyl, Respondent's office manager likewise declared, inter aka, that something would have to be done to get the company's office back to its normal routine. Both Nestroyl and Lindsey further recalled a comment by Respondent's office manager that the workers present did not have to worry about keeping their jobs, since they were still working. Before the discussion ended, however, Leff noted, so Nestroyl purportedly recalled, that Respondent's clerical workers had shown "poor timing" and had picked the wrong union. Leff's proffered recollections, with respect to this discussion, contain less circumstantial detail. Substantially, however, she confirmed Nestroyl's testimony that she was approached by several girls; regarding their comments, she declared that. [T]hey asked what do we do' now? We're not getting anywhere. Everything is stalemated, and they asked me what my personal advice was; and I told them the only way that I see that they can get anywhere is that you all want it or you don't want it. You'll have to make up your minds, but you have to make up your minds which way you want to. I can't make the decision for you . . . they were debating amongst themselves the pros and cons of which way they wanted to move. Respondent's office manager denied suggesting which course she thought they should pursue, but conceded she had said that whatever decision the girls made would have to be unanimous. When asked, subsequently, whether a petition had been discussed, Leff recalled that "they" had 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked how to proceed; that she had "probably" said they would have to prepare some type of petition and that they would have to take it before some Board representative. Previously, while being questioned within a different context with regard to her comments during "office meetings" as to when salaries would next be reviewed, Leff had testified that some clerical workers had said the negotiations (with respect to Complainant Union's claim) would take anywhere from 3 years to 6 months; that she had said it could be settled in 2 weeks, and perhaps within a month, but that she could not recall anyone mentioning 2 years. Thereafter, Respondent's office manager was asked, following her return from the Joint Area Committee session, whether she had been asked how long it would be before the situation could be resolved; Leff, so her testimony shows, had said she did not know. Confronted with these testimonial conflicts, this trier of fact concludes, first of all, that Leff did not, during the conversation now under consideration, characterize the situation as one which could take "2 years" to settle. True, both Nestroyl and Lindsey testified that she did. With due regard for the record considered in totality, however, their professed recollection did not impress me as reliable. I note, in this connection, that Complainant Union's representation petition had been withdrawn I month previously. The original charge herein, which Complainant Union had concurrently filed, then encompassed a purported 8(a)(1) violation solely Thus, when Leff re- turned from the deadlocked January 19 committee session, there were no viable statutory or contractual proceedings, premised upon Complainant Union's recognition demand, waiting for resolution. Assuming, arguendo, that Respon- dent's office manager then had reason to believe, neverthe- less, that Complainant Union would pursue its contractual- ly based claim before a superior Joint Area Committee panel, nothing in the present record suggests that she had further been given any ground for supposing that such "second step" proceedings would be protracted; the proceedings, which I propose to discuss within the next section of this decision, were in fact concluded within less than 4 weeks. General Counsel suggests that Leff was "obviously delighted" to tell her subordinates Complainant Union's representation claim would take longer to settle than they had expected; neither the cold record nor my observation of Leff's witness chair demeanor, however, would warrant such a characterization. Further, General Counsel would have me find Leff's testimony both inconsistent and improbable, because she first conceded a comment that the matter could be settled within 2 weeks to I month, but then testified that, following her January 19 return to Respondent's premises, she had said she did not know how long a settlement would take. For reasons previously noted, these testimonial references cannot be considered lacking in consistency. Leff mentioned the first comment following a lengthy series of questions devoted to discussions about Respondent's wage review program conducted in regular office meetings, while her second, supposedly inconsistent statement, was made following a direct reference to the January 19 conversation. With matters in this posture, Leff's denial that she mentioned a possible 2-year delay, within my view, merits credence. Concededly, Respondent's office manager did reiterate her previous declarations that no wage review would be conducted and no raises granted pending some settlement with respect to Complainant Union's recognition demand. Within this context, so I find, one of Respondent's rank- and-file clerical workers, Ethel Lewis, then mentioned a petition, "to 86 [oust] the Union" from Respondent partnership. During a general discussion which followed, Leff concededly contributed comments, I find, that the "girls" would have to make their own decision regarding any further course of action; that whatever decision they made would have to be unanimous ; that they would have to prepare some type of petition; and that they would have to "take it" before a Board representative. General Counsel, herein, seeks a factual determination that Respondent's office manager "openly encouraged" the firm's clerical workers to circulate a petition which would undercut Complainant Union's representation claim. My disposition with respect thereto will be set forth, subse- quently, within this Decision. For the present, I note merely my factual findings that Leff's various comments with regard to the petition were solicited rather than volunteered and that they were proffered as personal opinions, rather than directives, during a rather informal discussion which her subordinates had initiated. Further, consistent with Nestroyl's testimony, I find that Leff did declare, either in words or substance, that "something" had to be done to get Respondent's office back to its normal routine. Likewise, I find that-when asked whether raises would follow should the workers sign the proposed petition-she did suggest that they sign and take their chances. Lindsey's purportedly parallel testimo- ny-that Leff went so far as to say raises would not be given should the workers fail to sign the projected petition, and that, if it were signed, rendering Complainant Union's demand no longer viable, everything would go back to normal-smacks of hyperbole; her recital, within my view, merely warrants credence as rationalized and somewhat embellished corroboration for Nestroyl's less dramatic recollection, noted. I note and credit, however, Lindsey's concession corroborative of Nestroyl's testimony during cross-examination that Leff told the workers present they did not have to worry about keeping theirjobs, since they were still "working" there. 7. The second Joint Area Committee session On February 10, six members of the so-called "Main Committee" designated to handle disputes under the National Master Freight Agreement convened to consider Complainant Union's case. Two union representatives were present ; Respondent was represented by Leff, together with another company spokesman. Complainant Union's representative first recapitulated the relevant chronology with respect to his organization 's recognition demand. (When requested to cite the controlling contractu- al provision upon which Complainant Union relied, the representative quoted art. 2, sec. 3 of the National Master Freight Agreement, using language which varied slightly from the formulation proffered for the record herein. Since a determination with respect to the source or significance of these language differences, however, would not affect CONSOLIDATED FIBERS this case's disposition, they need not be detailed.) Respon- dent was described as privy to the National Master Freight Agreement, plus the appropriate "Pickup and Delivery" contract. Complainant Union's representative conceded, however, that Respondent had not signed the master contract's "office worker" supplement. Citing three prece- dent cases, Complainant Union requested a committee confirmation that Respondent was contractually bound to grant it recognition. Respondent's counterpresentation, set forth within the committee's transcript, may be summarized as follows: Respondent currently maintains collective-bargaining rela- tionships with the ILWU, the Steelworkers, and two Teamster locals; the firm's office employees have never been organized; and Respondent, following notification that Complainant Union's representation petition had been withdrawn, had attempted to file its own petition, but had been told by the Regional Office that proceedings with respect to any company petition would be deferred pending a disposition of certain unfair labor practice charges, presumably those now presented for resolution. With matters in this posture, Respondent contended that Complainant Union had "elected" to pursue its claim for recognition through Board proceedings; that the firm's contractual commitment under the National Master Freight Agreement was not sufficiently broad to cover office workers, and that two prior committee cases required the matter's dismissal. At this point, one of the committee's employer-members suggested that article 2, section 3 might not be determina- tive, since Respondent was concededly not privy to the master contract supplement covering office clericals. Questions were then raised with respect to the size of Respondent's clerical staff and Complainant Union's representation therein. The committee's transcript reveals Leff's concession that, when Complainant Union's demand was presented, the firm had 20 to 21 clerical workers. Confronted with Complainant Union's designation cards, she further conceded that there were 11 cards; and that all of the card signers had been on Respondent's payroll when the cards were signed. She declared, however, that one had been terminated and one had resigned, since then. (While a witness herein, Leff contended that she had not counted the cards or checked their dates, though she conceded that she had "looked" at the card signer's signatures. On the basis of the committee's transcript, I find Leff's testimonial recollection partially mistaken.) With matters in this posture, following a short executive session, one of the committee's three union members moved that Complain- ant Union's case be found "improperly" before the committee. Another union committee member seconded the motion, which was carried. The session was then concluded. Meanwhile, on February 9, Complainant Union filed its first amended charge herein. Respondent was charged with various 8(a)(1), (3), and (5) violations which foreshadowed General Counsel's present complaint. There have been no further contacts between Complainant Union and Respon- dent representatives. C. Conclusions 1. Interference, restraint, and coercion 853 General Counsel contends, herein, that from the moment she discovered her subordinates discussing possible unioni- zation the Respondent's office manager "unlawfully attempted to interfere" with their statutory right to select a collective-bargaining representative. With due regard for well-settled precedents, presumably determinative herein, I concur. Though the present record will not, within my view, sustain a factual conclusion that Leff , during several October conversations, flatly threatened Respondent's clerical workers with discharge should they attempt self- organization, testimony which I have found credible, for lack of persuasive rebuttal, does warrant a determination that those who then were considering possible unioniza- tion, were twice advised to "forget" such a possibility, since Respondent would never "go" for union recognition within its clerical force. Such comments, within a context of further remarks deemed subject to statutory proscription, have been found reasonably calculated to interfere with, restrain, and coerce employees, since they necessarily imply that concerned workers would find unionization futile. When required to judge the impact of statements made within the context of the employer-employee relationship, so the Supreme Court has noted, this Board may properly take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. N. L. R. B v. Gissel Packing Company, 395 U.S. 575, 619-620. Within my view, such factors having been taken into account, Leff's comments clearly merit characterization as possessed of coercive thrust. cf. N.L.R.B. v. Sutherland Lumber Company, Inc., 452 LRRM 67 (C.A. 7). See also Interstate 65 Corporation, 186 NLRB 248, and Mid-South Towing Company, 177 NLRB 964, enfd. 436 F.2d 393 (C.A. 8), in this connection. Further, Leff stands credibly charged with several comments suggesting that dissatisfied workers were free to resign. Such remarks, within a context which encompassed further statements calculated to discourage unionization, have likewise been found viola- tive of law. Charlena Lobianco, d/b/a Loby's Cafeteria, 187 NLRB No. 54; State Electric Supply Company, 187 NLRB No. 9. Though their context, herein, could hardly be considered grossly coercive, similar determinations with respect to Leff's several remarks noted seem warranted; I find them subject to statutory proscription. Further, I find consistent with General Counsel's contention, that Leff's November 12 program of interroga- tion, directed to seven of Respondent's clerical workers, necessarily interfered with, restrained, and coerced them with respect to their exercise of rights statutorily guaran- teed. Fontana Bros., 169 NLRB 368; Struksnes Construction Co., Inc., 165 NLRB 1062, 1063. True, Leff's questions may have had a legitimate purpose; Respondent's counsel notes cogently that President Scherman had merely directed her to determine "what was going on" since he had presuma- 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bly been truly surprised by Complainant Union's recogni- tion demand. The present record, however, will not, within my view, sustain a conclusion that Leff's limited purpose was communicated to those questioned. Note should, of course, be taken that Respondent's office manager merely questioned some seven clerical workers ; she did not conduct a comprehensive poll. The fact that her program of interrogation may have been suspended following conversations with something less than a majority of Respondent's Oakland clerical staff, however, cannot, within the present record 's context, provide Respondent with exculpation. See N L.R.B. v. Lexington Chair Co., 361 F.2d 283, 290 (C.A. 4), in this connection. The workers queried, so credible testimony shows, had solicited and received assurances that their responses would not jeopardize their job tenure Concededly, however, when their conversational responses were directly requested, without the safeguards which a poll by secret ballot would have provided, five of those questioned, so I have found, dissembled despite Leff's proffered reassur- ances. My determination herein that Leff's challenged course of conduct merits statutory proscription cannot properly as bottomed, however, upon the fact that she questioned Respondent's clerical workers while Complain- ant Union's representation petition was pending. Compare Struksnes Construction Co, Inc, supra. Since Complainant Union's petition was not filed until the very day its recognition demand letter was delivered, and, thus, the very day when Leff's interrogation took place, the present record will not support a determination that she pressed her questions with knowledge of the petition's pendency. See Fontana Bros., supra, in this connection. Finally, note should be taken that Respondent's office manager did press her inquiries, realistically , within a coercive context. Those workers who were questioned had been separately summoned to her office ; when summoned, they were clearly fully cognizant that Leff had previously forecast a negative reaction from Respondent's manage- ment with respect to their prospective unionization. With matters in this posture, determination could hardly be considered warranted that Leff's program of interrogation was being pursued within a context devoid of union hostility. Compare N.L.R.B. v. The Deutsch Company, Metal Components Division, 445 F.2d 902 (C.A. 9) in this connection. 2. Discrimination Within his brief, General Counsel charges Respondent's management with mounting a campaign calculated to undermine Complainant Union's representative status, inter alia, through a series of retaliatory measures whereby various conditions of work which the firm's clerical workers had previously enjoyed, before Complainant Union's recognition demand, were significantly modified. He cites Long Island Airport Limousine Service, 191 NLRB No. 16, in this connection. I have, however, herein found General Counsel's presentation, with respect to most of these matters, deficient in probative thrust. Presumably, General Counsel would have this Board find Respondent's various "changes in working condi- tions" retaliatory in purpose because they were promulgat- ed and purportedly put in force within days or weeks following Complainant Union's recognition demand; because such changes, superficially considered , seemingly compassed deprivations or policy changes suggestive of harassment, and because they were directed mainly toward Complainant Union's principal employee protagonists. Within the context provided by some of Leff's previous declarations, reasonably calculated to convey manage- ment's determination to forestall unionization , such con- siderations could well be deemed sufficient to make General Counsel's prima facie case herein. Then "in the absence of any acceptable explanation " with respect to the changes which he challenges as discriminatory , determina- tion might be considered warranted that Respondent's course of conduct did, indeed, reflect a calculated policy of reprisal because the clerical workers concerned had displayed their desire for unionization . Compare Morgan Precision Parts, 183 NLRB No. 119, enfd. 444 F .2d 1210 (C.A. 5). Previously, within this Decision , I have found, however, that, with respect to Leff's prohibition of food consumption at workers' desks, the firm's policy and practice, following Complainant Union 's recognition de- mand, reflected no significant change . And, with respect to various other changes previously noted , the record reveals several proffered "explanations" which, within my view, have not been preponderantly overborne. True, Leff's many-faceted course of conduct, challenged herein as discriminatory, could readily generate suspicion with respect to her motives . General Counsel 's presenta- tion, however, cannot be considered, within my view, sufficiently persuasive to sustain his present burden of proof with respect thereto . Within his brief, General Counsel's representative notes that: From her testimony from the stand, it is apparent that Miss Leff is a very forceful personality who was always mindful of her authority over these employees and delighted in its assertion. That characterization , which I would certainly consider perceptive, may well be sound . It would not, however, follow necessarily that Leff's various directives and policy changes, shortly following Complainant Union 's recogni- tion demand, derived from a purpose of reprisal. Respon- dent's clerical workers may very well have been sensitized with respect to their managerial superior's forceful man- ner; they may very well have been, further, somewhat restive thereunder. And, once having manifested their desire for self-organization, they could conceivably have believed Leff's subsequent course of conduct retaliatory. Viewed dispassionately , however, the present record does not, within my view, provide reliable or substantial support for such a conclusion . Leff's supervisory practices and techniques may have been somewhat arbitrary , captious, and lacking in consistency. She may have been pursuing legitimate managerial goals without sufficient regard for the promotion or preservation of staff morale . However, I cannot find, within the present record, reliable, substantial, and probative evidence sufficient to warrant a determina- tion that Respondent's office manager was deliberately creating discriminatory "pressures" which would persuade her subordinates to foreswear unionization . Compare CONSOLIDATED FIBERS 855 Herbert E Orr Co. Inc., 185 NLRB No. 141, in this connection. 3. The suspension of Respondent's wage review program Despite my conclusion, noted, with respect to most of General Counsel's 8(a)(3) contentions, well-settled deci- sional doctrine requires a determination that Respondent's management did violate Section 8(a)(3) and (1) of the statute, when, upon being confronted with a recognition demand and prospective representation election, they decided to withhold, from workers within the prospective voting group, pay raises which might otherwise have been granted. Compare Northrop Corporation, Ventura Division, 187 NLRB No. 26; N.L.R.B. v. Great A & P Company, 166 NLRB 27, 29, enfd. F.2d 296, 298 (C.A. 5) Accord: Russell-Newman Manufacturing Co. v. N.L R B., 406 F.2d 1280 (C.A 5), in this connection. The withholding of routinely scheduled pay raises from workers solely because of their prospective participation in a representation vote clearly 'constitutes statutorily pro- scribed discrimination against such workers, who are distinguishable from their fellows solely because of their participation in protected concerted activity, since such discrimination may "to some extent" discourage member- ship in a labor organization by persuading deprived employees to reject unionization. N. L. R. B. v. Great A & P Company, supra Though it may be necessary to prove the particular employer's purpose to discriminate so as to discourage union membership, specific evidence of such motivation is not required. See Russell-Newman Manufac- turing Co. v. N.L.R.B., supra. General Counsel's burden, with respect to this facet of the matter, will normally be considered satisfied by proof that the particular employer- respondent had specifically directed his workers' attention to the so-called union aspect of their situation. Stating the matter shortly: when employers declare their desire to grant immediate wage or fringe benefit improvements to their workers, but then shift to the labor organization concerned the blame for their failure to grant such benefits promptly, determination is considered warranted that they have been seeking to discredit that labor organization and to discourage, membership therein. McCormick Longmead- ow Stone Company, 158 NLRB 1237, 1242. Accord: Big Three Industrial Gas and Equipment Co, 181 NLRB 912; the Deutsch Company, Metal Components Division, 178 NLRB 616. Within the Deutsch Company case last cited, this Board recently stated the relevant decisional principal positively- When confronted with a labor organization's representation campaign, concerned employers must deter- mine whether to grant or withhold benefits just as they would normally, absent the labor organization's presence. These principles, clearly, must be considered determina- tive herein . Within his brief, Respondent's counsel suggests that his client, confronted with Complainant Union's recognition demand, had "no choice" but to maintain currently effective pay scales, since the firm's management would otherwise be charged with "trying to buy their employees" for the purpose of forestalling Complainant Union's formal designation as their collective-bargaining representative. However, Respondent's contention that, under the circumstances here presented, its neutrality could be preserved only by withholding those "three-month" raises and merit raises which would otherwise have been considered and/or granted , derives from a misconception. See Standard Coil Products, Inc., 99 NLRB 899, 901-904, and footnote 8 therein. Within a recent Board decision, which dealt with a comparable situation, the determinative legal principles, previously noted, were reaffirmed, in language which merits repetition. The Gates Rubber Company, 182 NLRB 95. Therein the Board noted that: It is uncontradicted that unit employees expressed a keen interest in the timing of the wage increase, and it is undisputed that, were it not for the union election, the print-shop employees would have received the wage increase comparable to and at the same time as that negotiated by the Respondent and the Rubber Work- ers. In these circumstances, neutrality is not maintained by an announced withholding of wage increase because of a pending Board-conducted election. It is well settled that the employer's legal duty is to proceed as he would have done had the union not been on the scene. Here the Respondent withheld increases which would normally have been granted but for the presence of the Union and pendency of the election and advised employees that their wage increases were being withheld for this reason. [Emphasis supplied.] The fact, noted in Respondent's brief, that Complainant Union's representation petition has been withdrawn, before the calendar period during which Respondent's regularly programmed wage review would have been conducted, certainly cannot be considered a distinguishing feature sufficient to warrant a different conclusion. Consistent with the decisional principles noted , determina- tion is found warranted herein that Respondent partner- ship, when it withheld Lindsey's promised "three-month" raise and subsequently deferred the yearly wage review which it would otherwise have conducted, did discriminate against the firm's Oakland clerical workers for impermissi- ble reasons and concurrently interfered with , restrained, and coerced them with respect to their exercise of rights statutorily guaranteed . I so find. 4. Further interference, restraint, and coercion General Counsel's contention that Respondent's office manager, during a January 19 conversation, encouraged her subordinates to sign a petition deauthorizing Com- plainant Union to represent them and further encouraged them to withdraw their support from Complainant Union for the purpose of retaining existing employee benefits and working conditions, presents a closer question. Well-settled doctrine, declared and refined through Board and court decisions too numerous to cite , teaches that concerned employers violate the statute when they "encourage and solicit" workers to cancel or withdraw their prior manifestations of union support. See, e.g., N.L.R.B. v. Deutsch Company, Metal Components Division, 445 F.2d 902 (C.A. 9), enfg. 178 NLRB 616; Compare N.L.R.B. v. L.B. Foster Company, 418 F.2d I (C.A. 9), enfg. 168 NLRB 83, 86-87. The present record, however, requires a threshold determination as to whether Leff's 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several comments, during the January 19 conversation now being reviewed, should really be considered "encourage- ment" and "solicitation" thus statutorily proscribed. With due regard for the total context within which such comments were made, I find they deserve such a stringent characterization. True, I have previously found, within this Decision, that Leff's comments were made during a somewhat disjointed informal discussion, which her subordinates had initiated; that they were solicited rather than volunteered ; and that they were proffered as mere personal opinion rather than as directives or positive suggestions . Further determina- tions have been made, however, that Leff had, during the conversation, reiterated Respondent's purpose to defer a previously routine yearly wage review and grant no raises, pending some settlement with respect to Complainant Union's representation claim ; that she had professed a lack of knowledge with respect to the period of time which might be required before Complainant Union 's claim could be settled; and that she had said "something" would have to be done to restore the firm's normal office routine. When asked whether Respondent's previously settled pattern with respect to raises would be reinstituted should the firm's clerical workers sign the proposed petition, Leff had suggested , so I have found, that they sign and take their chances . These remarks, whether or not they were deliberately proffered to promote or solicit a particular reaction from Leff's listeners, clearly deserve characteriza- tion as reasonably calculated to persuade her subordinates that Complainant Union's repudiation would be their wisest, most promptly remunerative course . So construed, these conversational contributions, despite their subtlety and relatively soft thrust, merit statutory proscription. 5. Respondent's alleged refusal to bargain General Counsel herein charges that Respondent has violated, and continues to violate , Section 8(a)(5) and (1) of the statute, through its refusal to bargain collectively with Complainant Union as exclusive collective-bargaining representative for its clerical workers , since that organiza- tion has demonstrated its majority status within a defined bargaining unit of such workers, appropriate for collective- bargaining purposes . For the purpose of remedying this claimed violation, General Counsel seeks a Board Order directing that Respondent bargain. Determinations regarding the propriety of such orders derive from the application, within particular factual situations, of certain principles which the United States Supreme Court has defined and established. N.L.R.B. v. Gissel Packing Company, 395 U.S. 595. The Court, therein, sanctioned this Board's practice with respect to promulgat- ing bargaining orders, where a union's representative status has been demonstrated through designation cards signed by a worker majority within a unit appropriate for collective-bargaining purposes, consequent upon a deter- mination that the concerned employer has committed unfair labor practices which would "impede the election process" thus rendering improbable the likelihood that a representation election free from coercion could thereafter be conducted. And the Court held, further, that such a determination can be made without reference to whether the employer's claim of doubt, with respect to the given union's majority status , was made in bad faith. The Board's authority, thus, was confirmed to make [the determination ] whether the effects of the employer's unfair labor practices can be erased without issuance of a bargaining order, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. With regard to this required determination , the Court drew, broadly, three guidelines governing the promulgation of bargaining orders. N. L R. B. v. Gissel Packing Company, supra at 614-615. First, it declared that bargaining orders should issue to remedy unfair labor practices "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of [the unfair labor practices ]" found. The Court likewise sanctioned the use of bargaining order remedies in "less extraordinary cases marked by less pervasive practices which nonetheless [in the Board's discretion] still have the tendency to undermine majority strength and impede the election processes." Finally, however, it noted a third category, wherein the unfair labor practices found "because of their minimal impact on the election machinery" will not sustain a bargaining order. With these principles in mind, General Counsel herein notes cogently that "we must decide" whether Respon- dent's unfair labor practices previously found are suffi- ciently serious and pervasive to warrant a determination that "the possibility of erasing the effects of past practices and of insuring a fair election by the use of traditional remedies" though present, is slight, or whether these statutory violations were so limited in scope that their "impact" upon the Board's election machinery should be considered minimal. The present record, considered in totality , will not, within my view , sustain General Counsel's contention that the Supreme Court's defined prerequisites for a bargaining order have been satisfied herein . Note should be taken, in this connection, that Lefrs October 1970 comments, though I have found them violative of law , lacked sufficient coercive thrust to prevent Complainant Union's subsequent designation by a majority of Respondent's clerical workers as their bargaining representative ; that her November 12 questions, calculated to test the validity of Complainant Union's representation claim, were directed to a minority of the workers concerned; and that her subsequent January 19 conversational comments , though reasonably calculated to suggest her favorable disposition with respect to a deauthorization petition's possible circulation, did not, then or thereafter, promote such a petition's preparation. Respondent management's decision to defer a promised "three-month" raise for one clerical worker who had completed her probationary period, while concurrently deferring a routinely scheduled wage review and possible merit increases consequent thereon, could, however, reasonably be considered more likely to undermine Complainant Union's majority strength and stultify the election process . Note should be taken, however , that, with respect to both the wage review and merit increases, the management's deferral policy was discarded some 3 CONSOLIDATED FIBERS 857 months later; merit raises were then given some clerical workers, never specified for the present record, retroactive to the February date when such raises would have been given, absent Respondent's prior deferral -decision. The record is silent with respect to whether Lindsey concurrent- ly received her postponed "three-month" raise. I suspect, however, that this lapse in Respondent's defensive presen- tation derives from oversight. Should some remedial action with respect to Lindsey's situation still be necessary, however, factual inquiries prerequisite thereto can be made hereafter. Within his brief, General Counsel represents that those merit increases which certain workers may have received on May 15, with a February retroactive date, were increases given pursuant to a settlement agreement, mentioned by Respondent's counsel, en passant, within some correspondence produced for the present record; General Counsel suggests that such increases, therefore, cannot constitute or be considered evidence calculated to show Respondent's purported good faith. Cf. Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (C.A. 5); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (C.A. 5). Duly considered, in connection with General Counsel's contention that a bargaining order should herein be found required, however, such a suggestion lacks persuasive thrust. The substantive terms of the settlement agreement mentioned by Respondent's counsel, within a letter which General Counsel's representative first sought to exclude from the present record, have not been cited; General Counsel's representation that, inter aka, they called for a restoration of Respondent's previously maintained wage review policy cannot, therefore, be verified. Further, the settlement, so far as can be determined, was presumably drafted and signed before February 3, 1971; necessarily, it must have related to Complainant Union's original charge 'herein, wherein Respondent was merely charged with generalized 8(a)(1) violations. Finally, should a presump- tion be deemed warranted, arguendo, that the settlement did call for a prompt restoration of Respondent's wage review program, the General Counsel proffers no rationale herein calculated to support a contention that compliance with a settlement commitment should not be considered reasonably likely "to [erase] the effects of past practices and [insure] a fair election by the use of traditional remedies" thereafter. With matters in their present posture, then, I conclude and find that General Counsel, herein, has failed to make a sufficient case for this Board's promulgation of a bargain- ing order pursuant to Gissel Packing principles. Compare J.A. Conley Co., 181 NLRB 123; Central Soya of Canton, 180 NLRB 546; Arcoa Corp., 180 NLRB 1; Poughkeepsie Newspapers, 177 NLRB 972, in this connection. Within General Counsel's brief, however, the further contention is made alternatively that Respondent's office manager had gained "independent knowledge" with regard to Complainant Union's majority status when she learned, during the February 10 Joint Area Committee session, that Complainant Union held cards which had been signed by 11 company clerical employees within a concededly appropriate bargaining group encompassing, at most, no more than 20 workers when Complainant Union presented its recognition demand. Under these circumstances, Gener- al Counsel suggests Respondent's present failure to recognize and bargain with Complainant Union should be found violative of Section 8(a)(5) independent of any unfair labor practices which Respondent's management may have committed; he cites Wilder Manufacturing Co., Inc., 185 NLRB No. 76, and Snow & Sons, 134 NLRB 709, for support. The contention, within my view, must be rejected, however. See Linden Lumber Division, Summer & Co., 190 NLRB No. 116. The Board's decision, within the case last cited, dealt specifically with a situation in which the concerned union's majority status had not been established through the Board's election process and where the record did not contain evidence, with respect to independent unfair labor practices, sufficient to warrant a determina- tion that no fair and truly representative election could be conducted. The Board concluded that, absent "the com- mission of serious unfair labor practices [which] interfere with the election processes and tend to preclude the holding of a fair election" the respondent therein con- cerned should not be found a 8(a)(5) violator solely because of its refusal to accept proffered evidence of majority status other than a Board election result. Snow and Wilder, wherein the Board did find 8(a)(5) violations, were specifically distinguished. Referring to a purported summary, found within the Supreme Court's Gissel, supra, decision, with respect to the Board's current practice in 8(a)(5) cases bottomed upon designation card showings, the Board noted: The statement that an employer could not refuse to bargain "if he knew, through a personal poll for instance, that a majority of his employees supported the union," may well have referred to Snow. [Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9)]. But the decision in that case rested not only on the fact of employer knowledge but also upon the fact that the employer breached his agreement to permit majority status to be determined by means other than a Board election. That case must be distinguished from our recent decision in Wilder, supra. There we found an 8(a)(5) violation not only because of admitted employer knowledge of majority status, but also because of the absence of any evidence that the employer was willing to resolve any lingering doubts of majority status through our election procedures. Respondent's posture herein, when confronted with Com- plainant Union's recognition demand, presents, however, features precisely the reverse of those found determinative within the two Decisions noted. Thus, Respondent's management never voluntarily agreed with Complainant Union's spokesman regarding any mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the question of that organization's majority status. Rather, when Complainant Union sought confirmation with respect to its representative status pursuant to National Master Freight Agreement dispute procedures, Respondent protested, refused to concede the Joint Area Committee's jurisdiction, and finally prevailed. Shortly, therefore, this case does not present the previously noted Snow situation; Respondent never breached an 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement to permit majority status to be determined by some means apart from a representation vote. Likewise, Respondent's posture, herein, clearly reveals the particular feature which this Board's Wilder decision found lacking, namely, plentiful evidence that Respondent was more than "willing to resolve any lingering doubts of majority status" through the Board's election process. Inter aka, the record shows that Respondent's management, when confronted with Complainant Union's determination to withdraw its representation petition, protested such action, but without success. Subsequently, the record suggests, company counsel sought to file a representation petition in Respon- dent's behalf, but was told, so he states, that any Regional Office disposition with respect to such a petition would be deferred pending a determination with respect to the present complaint case. Compare Linden Lumber Division, Summer & Co., supra, in this connection. With matters in this posture, General Counsel's 8(a)(5) charges herein cannot be considered preponderantly sustained. They should, within my view, be dismissed. Having reached this conclusion, I find it no longer necessary to consider, within this Decision, General Counsel's fully litigated and briefed contentions regarding the composition of the unit which should be deemed appropriate for collective-bargaining purposes herein, the validity of Complainant Union's designation cards, or the soundness of that body's claim to majority representative status While this matter was pending before me, Respon- dent's counsel requested, concurrently with the submission of his brief, permission to argue his case further orally, so that he could present additional relevant points. Since the Board's rules do not specifically provide for such argument before Trial Examiners following a hearing's close and following the submission of briefs; since counsel did have an opportunity to argue orally and state his contention during the hearing; and since the briefs submitted do present adequately the questions with respect to which determination has been required, counsel's request is, herewith, formally denied. Having decided to recommend dismissal of General Counsel's complaint in this particular respect, I find no present necessity to consider Respondent's defensive contention that Complainant Union herein, when it withdrew its previously filed Board representation petition and sought recognition instead through contractual proce- dures, made a so-called "election of remedy" which this Agency should, within its discretion, consider sufficient to preclude the present resort to statutory procedures. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct described in section III herein, since it occurred in connection with Respondent's business operations described in section I herein, had, and continues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States; absent correction, such conduct would tend to lead 3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that the Respondent engaged, and continues to engage, in certain unfair labor practices which affect commerce, I shall recommend that it be directed to cease and desist therefrom and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. CONCLUSIONS OF LAW 1. Respondent, Consolidated Fibers, is an employer engaged in commerce, within the meaning of Section 2(2)(6), and (7) of the Act, as amended. 2. Complainant Union, Freight Checkers, Clerical Employees and Helpers Union, Local No. 856, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain employees of Respondent to mem- bership. 3. Respondent's management representatives, by com- ments reasonably calculated to suggest that efforts to achieve unionization would be futile; by coercively interrogating employees with regard to their support for Complainant Union herein; and by encouraging or soliciting employees to revoke their previously signed union designation cards, have interfered with, restrained, and coerced Respondent's office clerical workers with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent has engaged, and continues to engage, in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act, as amended. 4. Respondent herein, by withholding a promised raise from one clerical worker following her completion of 3 months' service, and by temporarily deferring a regularly programmed yearly wage review and consequent pay raises pending a determination of Complainant Union's repre- sentation claim, has discriminated against such workers with regard to their terms and conditions of employment to discourage their support for Complainant Union herein. Thereby, Respondent has engaged, and continues to engage, in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3 ORDER Respondent, Consolidated Fibers, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making statements calculated to convey the thought 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 CONSOLIDATED FIBERS 859 that attempts to achieve self-organization would be futile; questioning employees within a context of further conduct statutorily proscribed with regard to their union member- ship or their support for Complainant Union herein; or soliciting and encouraging employees to revoke previously signed union designation cards; (b) Withholding promised raises from workers who have completed their first 3 months of service or temporarily deferring a regularly programmed yearly wage review, and consequent pay raises, for the purpose of dissuading employees from seeking or retaining union representation; (c) In any like or related manner interfering with, restraining, or coercing employees or discriminating against them in their exercise of rights which the National Labor Relations Act guarantees. 2 Take the following affirmative action which is necessary to effectuate the policies' of the Act: (a) Post at its Oakland, California, facility copies of the notice attached to this decision as an appendix and comply with the commitments set forth therein.4 Copies of the notice, on forms provided by the Regional Director for Region 20, as the Board's agent, shall be posted immedi- ately upon their receipt, after being duly signed by Respondent's representative. Once posted, they shall remain posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material; (b) File with the Regional Director of Region 20, as the Board's agent, within 20 days from the date of service of this Decision, a written statement setting forth the manner and form in which it has complied with these recommenda- tions.-5 4 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 National Labor Relations Board " shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " determined that we violated the law by committing certain unfair labor practices. In order to remedy such conduct, we are being required to post this notice . We intend to comply with this requirement, and to abide by the following commitments. WE WILL NOT suggest to our employees that their efforts to select and designate a collective-bargaining representative would be futile. WE WILL NOT question our employees, under circumstances which the National Labor Relations Act forbids, regarding their membership in, or their support for, a labor organization. WE WILL NOT encourage or solicit our employees to withdraw their support from any labor organization which they may have designated or selected as their collective-bargaining representative. WE WILL NOT withhold or defer promised raises for newly hired employees following their first 3 months of service nor will we defer any regularly scheduled wage reviews or consequent salary increases because a question of representation with respect to the workers affected may be pending. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees or discriminate against them with respect to their hire or tenure of employment or the terms and conditions of their employment, because they have exercised rights which the National Labor Relations Act guarantees. WE WILL, if such action has not already been taken, reimburse particular workers for any pay losses which they may have suffered because of our previous withholding of promised "three-month" raises or because of our previous deferral of regularly scheduled wage reviews and pay increases which would thereafter have been granted. Dated By APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been CONSOLIDATED FIBERS (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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 . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, Califor- nia 94102, Telephone 415-556-0335.